Immigration Lawyers Toolbox® Magazine, Issue 02 | Spring 2021

IMMIGRATION ® LAWYERS TOOLBOX ISSUE 2 | SPRING 2021

MAGAZINE

ImmigrationLawyersToolbox.com

Authenticity, Vulnerability, and Following Your Instict How Kathia Quiros Esq. Turned A Major Life Crisis Into A Thriving Law Practice

ImmigrationLawyersToolbox.com

Publisher’s

Note

President John Q. Khosravi, Esq. Contrubuting Writers Nadine Heitz, Esq. Jeremy Peskin Sameer Khedekar, Esq. Liam Schwartz, Esq. Janette Turner, J.D. Zara Najam, Esq. Marco Scanu Andrew Wilson, Esq. Ksenia Maiorova, Esq. Felipe Alexandre, Esq. Hudaidah Bhimdi, Esq. Alen Takhsh, Esq. Claribel Madueña, Esq. Sabrina Damast, Esq. Karina Velasquez, Esq. Scott Andrew Fulks, Esq. Tahmina Watson, Esq.

There is a breath of optimism in the air. Although Covid-related immigration issues have caused severe delays in visa processing, the dreaded daily regulatory updates from DHS/DOJ/DOS have stopped.

Moreover, Adjustment and Naturalization timelines are starting to go back to pre-covid levels. Even some I-751 cases are being adjudicated rather quickly and judiciously. On the Removal side, the Supreme Court’s decision in Niz-Chavez brought needed clarity to the NTA issue.

On a personal level, I am excited to publish the second issue of the Immigration Lawyers Toolbox® magazine. Over a dozen colleagues contributed educational articles on a myriad of topics for both newcomers and seasoned practitioners. We’ve also added sections to promote the immigration Facebook groups, the success of Colleagues, and spread information about employment opportunities to further support our community. I hope that the Toolbox Magazine, Training Programs, and Podcast can help promote your practice in every way possible. Thank you for your support!

If you would like to be considered for submitting an article, please contact: Info@ImmigrationLawyersToolbox.com

© Immigration Lawyers Toolbox® All Rights Reserved 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here is intended as individual legal guidance.The laws change frequently and some of the information may become outdated.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.

John Khosravi, Esq. President of Immigration Lawyers Toolbox®

IMMIGRANT LEGAL RESOURCE CENTER

IMMIGRATION L AW

PRACTICE GUIDES ALL TITLES ARE AVAILABLE IN PRINT & PDF OPTIONS, AND INCLUDE: 

CASE L AW ANALYSIS BY OUR EXPERT ATTORNEYS;



STEP-BY-STEP INSTRUCTIONS;



CLEAR & CONCISE L ANGUAGE; and



NUMEROUS SAMPLE FORMS & EXAMPLES.

USE CODE

ILT2021

TO SAVE 15% ON YOUR ORDER* https://www.ilrc.org/store * DISCOUNT EXPIRES JUNE 30, 2021 AND EXCLUDES SHIPPING. QUESTIONS? CONTACT: (415) 255-9499

Immigration Tech I

by Nadine Heitz, Esq.

Immigration Tech II

by Jeremy Peskin

Biz Management

by Sameer Khedekar, Esq.

Consular Quiz

by Liam Schwartz, Esq.

Expert Opinions

by Janette Turner, J.D.

International

by Zara Najam, Esq.

Immigration Business Plans

by Marco Scanu

L-1A/EB-1C Corner

by John Khosravi, Esq.

Non-Immigrant Visa (TN)

by Andrew Wilson, Esq.

Immigrant Visa (EB-1A)

by Ksenia Maiorova, Esq.

Immigrant Visa (EB-2C NIW)

by Felipe Alexandre, Esq.

I-9 Compliance

by Hudaidah Bhimdi, Esq.

Family-Based (Interview)

by Alen Takhsh, Esq.

Court

by Claribel P. Madueña, Esq.,

Crimmigration

by Sabrina Damast, Esq.

U-Visas

by Karina Velasquez, Esq.

Asylum

by Scott Andrew Fulks, Esq.

Personal Development

by Tahmina Watson, Esq.

CONTENTS

Cover Interview

TABLE OF

08 12 16 18 24 26 32 35 38 44 48 51 56 61 64 68 72 74 78

08 IMMIGRATION LAWYERS TOOLBOX

The Interview

Authenticity, Vulnerability, and Following Your Instinct:

How Kathia Quiros Turned A Major Life Crisis Into A Thriving Law Practice

When the Pandemic erupted,

shockwaves went out through the Immigration world. The global movement of people came to a halt. Travel Bans emerged. And the future of immigration law and practice came under doubt. My law practice was affected too: fewer calls, emails, and consultations.

I knew I had to do something and make a change. The solution came from daily Instagram notifications when Immigration Attorney Kathia Quiros would go live. While I was frozen in place, I saw that she continued to do her videos every day. I realized she was on to something. I took a page from her book and did the same and completely changed my practice within a year. I was lucky enough to have a great interview with her that I wanted to share with you. John Khosravi. For the full interview, please check out Episode 188 of the Immigration Lawyers Podcast.

ILT MAGAZINE l ISSUE NO.

02

Kathia Quiros did not originally want to become an immigration lawyer. In fact, just twenty years ago, she did not plan on becoming a lawyer at all. Born and raised in Peru, she studied dentistry and journalism, and even practicing dentistry before moving to the United States in 1996. Five years later, she found herself in law school.

Today, Kathia runs a robust law firm that helps families and undocumented immigrants, especially those who are seeking protection through U Visas, VAWA petitions, and the like. With a following of 200,000 subscribers on YouTube and 500,000 more across other social media platforms, she also serves hundreds of thousands of immigrants through her online content.

However, the journey for Kathia was not smooth sailing. To get where she is now, she had to endure what she describes as a major life crisis. She did not know it then, but that hurdle would be the jump-off point to a greater, more majestic height in her career.

Immigration Lawyers Toolbox: How did you get into immigration law?

Kathia Quiros: I started law school thinking I was gonna be a commercial transactions lawyer.

That was my dream. I wanted to make lots of money [laughs]. So I did the whole nine yards to become a commercial transactions lawyer.

But then, this guy comes up to me and says, “I’m gonna start an Immigration Clinic and you’re the only one who is Hispanic in your class. We need you to serve the Latino community.” I said I wasn’t interested. I was only interested in my resume, my grades, and I was clerking for a judge… so the guy said, “Well, this could give you an A,” to which I responded, “Where do I sign up?” [laughs]

Kathia Quiros, Esq. That was the moment that changed my life. Once I started the Immigration Clinic, I was sent to immigration court and I saw the eyes of a 16-year-old in shackles.

He had been caught at a bridge in Chicago. They brought him all the way from Brazil to work at this bridge and he was in court and he ended up being removed. I was pregnant when that happened so I just couldn’t stop sobbing. So that day, I decided I was gonna be an immigration lawyer.

09 SPRING EDITION l 2021

The Interview ILT: As an immigration lawyer, you have one of the largest audiences on YouTube. How did you manage to gain a huge following?

I started law school with one kid.

I finished law school with three.

Somebody told me that if I would practice law on my own, I could control my hours. I was very naive and I totally believed it. [laughs] But I figured I would be better on my own than working for someone who’s expecting 100-hour weeks, right?

For the first year, I reinvented the wheel every day with three little babies around me. But in the second year, I got smarter. I met the person who ended up being my brother from a different mother, my mentor, and my partner for many years.

So I had help. I realized that I had more time to do what I really liked to do, which is public education. So I started with public education in 2005 and I never stopped.

Then out of the blue — or out of God’s mercy — I came up with this idea of doing a video about how to become a better immigrant and a better person. On top of talking about the law, like I was doing it, I decided to also start talking about how to feel better, how to not feel broken, because there are better things than that.

At first, everybody told me I was nuts. But since I was going through my midlife crisis, it was the perfect time to be nuts. [laughs]

I started with these videos and I noticed that the views were higher than my law videos. And I thought, “What if I do it live?” On the first day, there were around a hundred people. The following day, there were 600. The number of people liking the page started multiplying by the hundreds. So I had touched a nerve that others had not touched.

ILT: How did your office look like as compared to how it is today?

KQ: Before, it was just me and a handful of paralegals. Now it’s massive. My appointments run all the way through July.

For many years, I charged $50 per consultation because I was interested in serving and I had other businesses. And now, just to avoid the massive amount of people trying to make an appointment with me, the consultation fee is now $200 and I’m still looking at my next appointment for July.

What social media has done is crazy. But it’s a blessing. And in the process of keeping my practice the way it is, I’m serving so many people. I am serving thousands and thousands every day. I think that’s the biggest blessing.

02

KQ: My law school professors were my mentors. So when I did the clinic, they said that I could do this on my own. And back then, the Bar was very small in Las Vegas, so I was encouraged to open my own firm.

ILT MAGAZINE l ISSUE NO.

ILT: What did you do after graduating from law school?

KQ: I’m not gonna tell you that I have perfected it because I would be lying. It all started 3 ½ years ago. I did what everybody else did. I read all the books that I could read and watched all the videos that I could watch. I followed everybody else, publishing short videos about the law and promoting my law firm.

And like everybody else, I was doing okay with a few thousand followers.

And then, the truth is, I broke down.

I had a major life crisis. I ended up divorced with four children. And it was a very hard time in my life.

At that point, when I was very vulnerable and very heartbroken, I decided that I needed to give. There was a day that I was just sitting and thinking, “What am I gonna do?” I didn’t want to think about my pain.

10 IMMIGRATION LAWYERS TOOLBOX

The Interview

ILT: It’s amazing to see you have a huge following that could compete with talk shows on TV, to think that you started with just yourself and social media.

ILT MAGAZINE l ISSUE NO.

02

KQ: I don’t think I am doing anything special. What I do is I just follow my heart and my instinct.

Some people think that social media is hard because they are not willing to open themselves up to just being themselves. The key is to be authentic. People have an eye for that. When you let your guard down, it’s when you can finally touch people.

The moment I show the immigrant Kathia, the vulnerable Kathia, the Kathia that makes mistakes and tries to fix them, at that moment, I am being genuine and people are like, “Okay, I understand. You are not perfect, but you’ll be there for me.”

Kathia’s Tips To Boost Your Law Practice Through Social Media ● Make sure your engagement is high. Subscribers and followers are good indicators of your growth, but you’ll really know you’re doing something right when people engage with you. Once they interact with you, they won’t forget you. ● Use chatbots to talk with potential clients online. For every video that Kathia publishes, she gets around 150 messages in her inbox. The chatbot that she uses, YoTengoBot, is programmed to answer questions with Kathia’s YouTube videos that are relevant to the question.

● There are many ways to build your online presence and strengthen your business without having to use YouTube. Don’t force it if it’s not for you. There is room for everything and everybody. It’s just a matter of learning how to do it and learning what you’re good at. ● And finally, the key factor is being authentic. You can be the smartest, most articulate lawyer around, but when you fail to be authentic, you’ll fail to connect with the people you want to serve.

12

Immigration Tech I

IMMIGRATION LAWYERS TOOLBOX

The Top 7 Tech Mistakes Made by Immigration Attorneys

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

In my journey to find the best possible

combination of technology apps for my own law firm, I have come to realize that there is no perfect solution. But that doesn’t mean I can’t get as close to perfect as possible!

Since launching my solo firm in 2015 I have used so many different tech apps that sometimes I can’t even remember them all!

For the first few years, it was just me with a part-time assistant, so I experimented a lot. Here is a list of the ones I remember: My Case, Clio, Lexicata (now Clio Grow), Practice Panther, Faster Law (add-on to Clio), eImmigration Air (Cerenade), Smokeball, LollyLaw, CampLegal, and Prima Facie (and this doesn’t include all the other addons like a scheduler and communications apps). I have done demos with companies like Neutrinet (formerly AILaw), Infotems, Lawcus, FastVisa, and more. Some I could write off immediately, and others I tried and stayed with for years.

Nadine Heitz, Esq.

Nadine@HeitzImmigrationLaw.com Here is what I finally settled on and it took

the pandemic last year to force me to really develop a totally online automated system.

But just because this is what I use, doesn’t necessarily mean it’s what YOU should use.

ILT MAGAZINE l ISSUE NO.

02

Right now my apps are: Monday.com (for practice management to track all cases), Docketwise (for immigration forms), Practice Panther (just for invoicing), Dubsado (for CRM and to launch the case with quote/contract/deposit invoice), Pipefile for document collection, Calendly for appointments, Gmail for communications and I connect most of them together with Zapier or app integrations.

From the day I started my firm, I knew that I wanted technology to play a big role. Since it was onlyme, I had to have systems and automation in place to minimize the need for staff. Today my two full-timers are well versed in all our systems and I feel like we have a really good set up to minimize the most important fears we all have: things falling through the cracks (like missing an RFE or brief due date!) and clients not being satisfied (solution is automated monthly status reports!).

I think it’s important to say that I don’t consider myself a computer techie. I actually hate computer programming (I once failed a university computer programming course!) but I love working with apps that are intuitive, look good on the screen, and make my life easier. Here I will share with you some of the mistakes that many of us have made and continue to make when we work with tech apps in our immigration law firms.

1. Not creating a budget for technology.

Yes, these apps will cost money – most of them will be charged monthly. So put a line item on your expense sheet to budget for technology. Paying for tech apps has become a cost of doing business. Just like paying rent , the phone bill, and the utility bill, you must pay for some technology.

Whether you are just starting out or a seasoned veteran, you need tech apps in your law firm to reduce errors and stay on top of things. Excel spreadsheets or Word charts just won’t cut it anymore (unless maybe you are a true wiz at Excel and can build something really phenomenal, not me!). If you plan for this in your budget then it won’t be so hard to take the plunge when you have to pay for these apps every month or year.

13 SPRING EDITION l 2021

3. Giving up on apps that frustrate you. Perhaps in the example above, you select another option, (c) scream and tear your hair out and say, I’m quitting this stupid app and never using it again! But take a deep breath and think about what you are doing. Is it because the app is not working or is it because you don’t really know how to use it? Sometimes we give up too easily without really giving the software a fair chance.

That leads me to the next point.

If you can’t find what you are looking for, send them an email or fill out a product support ticket. This is how I learned to use Monday.com – I sent them so many questions over the past year and they were always helpful with the responses. It was like having a custom helper just for me. Same for Dubsado – they have wonderful tutorials and I especially love anything taught by Cameron because he just explains everything so well. And if the help videos and articles don’t work for you, ask the company for a one-on-one session. You would be surprised how willing they are to set this up with you or your team at no extra cost. I’ve done this lots of times with Docketwise and Pipefile.

5. Staying with apps you truly hate for fear of migrating data.

When I do my coaching sessions with immigration attorneys or when I speak on technology panels with AILA, I frequently hear comments about how much the immigration attorney hates their software that they have been using for years! They are often using apps like LawLogix, INSZoom, or Cerenade. Not to

say that these apps are bad, but these ones seem to be singled out a lot. And the reason they stick with them (besides being in a firm where they have no control over the software because the boss won’t change it) is due to the fear of migrating all their client data to a new program.

Yes, the fear is real! But still, you really should explore your options.

Begin by asking the current provider exactly what can be extracted and how it will be done. Ask a lot of questions.

Some types of data can’t be easily moved like invoicing details. But usually, all the basic info can be exported including the notes to the case. Ask your colleagues who have migrated data from these apps. The AILA Practice Management department may be able to provide you with some guidance on best practices here. Weigh the pros and cons of moving to a new system. It may be a tough ride for a while, but in the long run, it may be worth it.

6. Paying for apps you don’t use or that overlap with others.

Do you really know everything your software can do? For example, many tech providers are now including features like document e-signing and texting to clients, thus eliminating the need for stand-alone apps with these features. I suggest that you conduct a tech audit and make a list of every single app that your firm uses. Add columns for the monthly or yearly cost and state the features each one has.

Then evaluate if you have any overlaps. You may be surprised at what you discover.

But don’t go purging your apps too quickly! As long as you feel you have a really good business reason to keep using an app, despite some overlaps, then go for it. For example, I use Docketwise for immigration forms and they also offer

02

Many of us, including our staff, select option (a) because it’s the easy way out! I’ve noticed that sometimes my staff would not even bother to tell me that something isn’t working properly, and they would just fix it the best they could. I now have a rule that you MUST report every software bug you encounter. That’s the only way the tech providers will know there is a problem! It makes things better for all of us when you report issues, after all, you are paying for a service and it should work properly.

4. Not exploring how to fully use the apps you have. Any time I feel frustrated and can’t make my app do what I want it to do, my first solution is to consult the help articles. Every software provider has this and the good ones have searchable videos or articles that you can view.

ILT MAGAZINE l ISSUE NO.

2. Just settling for apps that don’t work. We’ve all been there; you are creating your client’s immigration forms and the app is not auto-populating properly. What do you do?

Do you (a) create your own workaround and just manually fill in the form or (b) send an email to the company to inform them of the problem.

Immigration Tech I

14 IMMIGRATION LAWYERS TOOLBOX

Immigration Tech I invoicing, but I really prefer the invoicing features in Practice Panther so I keep one account open with PP because it provides my firm with greater efficiencies. The cost is not too high for this and I feel it’s worth it. Just be aware of your tech apps so that you are not paying for things you really don’t need.

7. Not automating your client status reports. This is a game-changer once you get this set up. Immigration cases take so long to be adjudicated that clients will call or email frequently to ask what’s going on. Or the client hasn’t yet provided all their information and/or documents, yet they call you asking if you sent in their case yet!

We have other automated emails for things like “USCIS Pending” where the client gets automated emails once a month just to let them know that there is nothing we can do right now but wait.

More status updates get sent out for everything from Biometrics appointment reminders to asking for a copy of their green card once the case was approved.

It has made our staff way more productive because they just click a button to generate the sequence of automations.

Understand that you do not necessarily have to be using Monday.com to make this happen. Some other apps also offer workflows you can customize so that automatic emails are sent out based on certain triggers. Even if you just automate one thing, like monthly emails for cases that are pending with USCIS, you can cut down on the incessant phone calls from clients!

I believe that the future of immigration law is making full use of technology to become more efficient in our practices. The nonlawyer companies that are selling the do-it-yourself marriage green card services are not our direct competitors. But we can learn from some of the things they are doing that clients like.

If we can automate some of our own systems by using immigration forms software with effective online questionnaires, gather documents online securely with a system that clients can easily use, and stay on top of critical deadlines with apps that raise red flags, then we are going to be better attorneys and have a more stress-free office!

If you are overwhelmed with where to begin, check out my www.TIPLawyers.com website where you can book a one-on-one coaching session with me and if you use Facebook, join my private group called Technology for Immigration Practitioners (TIP) where we discuss all types of tech solutions just for immigration attorneys. And remember, it will never be perfect, but you can certainly get close!

ILT MAGAZINE l ISSUE NO.

02

To avoid this, I have set up automated emails sent to clients at specific intervals based on their case stage using Monday. com. For example, after we have sent a client their Docketwise questionnaire and their Pipefile checklist, we change the case status in Monday.com to “Waiting on Client.” This sends an automated email to the client every 3 days that we customized

in advance, reminding them to get us all their info or else we can’t start to work on their case.

About the Author After spending years perfecting the systems within her own U.S. immigration law practice, Nadine Heitz, (HeitzImmigrationLaw.com) built a network of likeminded 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 Technology for Immigration Practitioners, and join the Immigration Lawyers group here: https:// www.facebook.com/groups/191457918187525

16

Sponsored Article

IMMIGRATION LAWYERS TOOLBOX

Why Docketwise Opened Its API to the Public

By Jeremy Peskin

Jeremy Peskin With Challenges Come Innovation CEO at Docketwise Jeremy@Docketwise.com Over the past five years, we’ve seen unprecedented pressure and change in US immigration.

From the Trump administration’s public charge rule and travel bans to Covid-19, these have been challenging times for immigrants and immigration practitioners.

However with challenges comes innovation.

Across the immigration space, new technologies have emerged to solve problems both new and old.

ILT MAGAZINE l ISSUE NO.

02

Client-facing apps like LegalPad and Boundless help companies and individuals navigate the immigration process.

Meanwhile solutions for attorneys have sought to modernize almost every aspect of immigration lawyering. LegalBoards helps lawyers get things done quicker and more efficiently. ImmiTranslate makes translating legal documents easier.

Services like Docketwise streamline form preparation and case management.

We’re even seeing the arrival of apps that help lawyers build their own apps.

Community.lawyer launched a #nocode tool for legaltech, which Greg Siskind used

to build Public Charge Advisor. Another immigration lawyer, Jared Jaskot, founded yotengo.bot to help firms build their own AI powered chatbots.

These are exciting times for modern immigration lawyers and their clients. Yet the utility of modern apps can be limited if they are siloed.

Better Together - The Power of APIs Much of the same data, like clients’ names, address histories, translatable documents and matters, are used across apps. Yet a frictionless flow from intake bot to case management system to translated documents and back is not possible without some connection between them.

This is where API’s are so powerful. An API is like a tunnel in cyberspace that can unite completely different apps under a singular purpose, like modernizing an immigration practice.

Often, a product with a well built API will serve as a platform for disparate apps to interact with it, and with one another.

Apple’s API changed modern history by giving apps like Uber and AirB&B access to iPhone owners. In the legal sector, Clio’s API and app directory has served as a powerful platform for legaltech.

17 SPRING EDITION l 2021

For that reason, we opened the most critical functions of our application to the public via a secure and RESTful API. Our integrations with popular tools like QuickBooks, LawPay, Gmail, Outlook, Zapier and others are already critical to our users’ workflows. We’ve seen firsthand how much more useful apps are together than they are apart.

Our own open API has enabled us to go a step further by integrating with more targeted immigration-focused apps. These technologies are built specifically for immigration lawyers and enable us to enhance our users’ lives in sometimes almost magical ways. Examples include: ● I m m i Tra n s l a te .

ImmiTranslate is a leading provider of certified translations for immigration lawyers.

● YoTengoBot. YoTengoBot is a chatbot made specifically for immigration law firms and speaks Spanish. The integration enables law firms to seamlessly intake clients and leads into Docketwise via a chatbot inside Facebook Messenger, WhatsApp, and SMS. ● LegalBoards. LegalBoards helps law firms build, and execute customized workflows for daily work with lean and agile methodologies.

The integration sends Docketwise matters to LegalBoards for tracking and automation.

What This Means for You Whether you’re an immigration practitioner, immigrant or technologist, you’ll benefit from a community of immigration software applications united by a common secure API.

● Practitioners: your data should be free to flow with you, not trapped in silos. The less time you waste retyping information the more you can spend providing value to your clients. If there’s an app that you love alongside Docketwise, encourage them to integrate ● Technologists: secure and authenticated access to information removes friction from your own products, improving your users’ experiences. The app directory also provides a platform where immigration firms can find your product. As many of us understand, building a useful app is the easy part - finding users is the challenge

02

At Docketwise, we feel we have the power to change that. With thousands of immigration lawyers and paralegals logging into Docketwise every day, we have the unique ability to connect immigration firms with tech that will make their lives easier.

The integration enables ImmiTranslate to access law firms’ foreign language files (with permission, of course), translate them behind-the-scenes and then deliver the translated copies right back into Docketwise

ILT MAGAZINE l ISSUE NO.

However, in immigration tech, no platform has emerged.

Immigration Tech II

18

Biz Management

IMMIGRATION LAWYERS TOOLBOX

Understanding the Request for Proposal (RFP)

By Sameer Khedekar, Esq.

The Request for Proposal, or RFP, is the

approach “larger” companies take to identify and select their service providers, including their immigration law firms. This article will explain:

Sameer Khedekar, Esq. Sameer@Bayan.Law

1. Why should I learn about RFPs? 2. What kind of companies issue RFPs? 3. What do companies hope to accomplish by issuing RFPs? 4. Should I respond to the RFP? 5. What do immigration RFPs and responses generally look like?

6. How do I get a company to include my firm in the RFP process?

Why should I learn about RFPs?

ILT MAGAZINE l ISSUE NO.

02

You may be a business immigration associate or junior partner at a “larger” firm, spending most of your time on casework. You see some of your senior lawyers working closely with their marketing team on mysterious sales pitches, and would like to learn more about what they are doing because, hey, you would like eventually start bringing in clients too!

Or, you may own a solo or “smaller” business immigration practice and are looking to grow your corporate book of business, because you see how the recurring income of corporate immigration clients can help stabilize your business.

Or, you may be someone in between. In any case, knowledge of RFPs is essential to

winning corporate immigration work, even if your ideal corporate clients don’t issue RFPs. What kind of companies issue RFPs? The Holy Grail of corporate immigration business development is winning a corporate account without an RFP. Why? Because it’s SO much easier. RFPs are a major drain on resources, both on the corporate side and your side. That is why “smaller” companies (generally, companies with less than 100200 foreign nationals) with fewer resources opt to select their vendors through a more informal process. Their HR or legal team may get referrals to a few firms, bring them in for interviews and presentations, and then select which firm they prefer working with.

Once a company has grown enough to require their own procurement department, they are usually obliged to go through the RFP process to select vendors. Usually, procurement departments exist within publicly-traded companies (but not always), and are responsible for ensuring that the company is getting good value for the services they pay for.

So, you say, I’ll stay away from the kind of companies that issue RFPs and try to win the kind of companies that don’t! Clever, but it’s not that easy, because you have no way of knowing if a company will decide to issue an RFP or not.

19 SPRING EDITION l 2021

Companies can issue RFPs for a variety of reasons: 1. They are not happy with their current provider and want to find a new one.

2. They have different providers for US immigration and global immigration and want to consolidate into one provider for both.

3. The company has hired a new immigration or global mobility manager who initiates the RFP process to bring in a law firm they are comfortable with.

4. They are required by policy to “kick the tires” every 2-3 years, but may not change their provider.

5. They want to negotiate fees with their current provider by bringing in challengers and requesting quotes from them.

Should I respond to the RFP? So, you’ve been invited to the RFP dance! Should you go? This is an important question, and the answer is not always “yes”.

account! That should not be your expectation here, since chances are they have a favorite and you were just included as a point of comparison).

Here are some reasons to decline the invitation:

Here are some reasons to respond (some are obvious enough):

1. You are certain that you were brought in only as a comparison point, and you do not want to devote the considerable resources required to an unwinnable RFP.

1. Your client issued the RFP and you want to keep them as your client (note that if this happens, it’s usually not a good sign).

2. You did not know about the RFP before you were invited, which may mean that you are only there to fill out the invitation list.

2. You were invited by a person with whom you’ve had successful business relationships in the past.

3. The company is not a good fit for your firm’s mission and strengths. Sometimes, winning an account can be a bad thing in the long run.

3. You work with them in some capacity already, and though they want to consolidate providers, you believe you can meet their requirements for a consolidated service approach.

4. You have no warm contacts within the organization, but you would like to use the RFP process to build relationships there, market your firm, and get practice (note that I did mention that you want to win the

4. The company makes it clear that they are mostly just interested in lowering fees and not so much in the quality of services, and you are not interested in participating in a race to the bottom. This may be evident in their executive summary, where they list lower fees as one of their main goals in the RFP, or perhaps even invite you to join an online blind auction where competitors bid each other down!

02

What do companies hope to accomplish by issuing RFPs?

There may be other reasons, but these are the most common.

Note that companies sometimes issue RFPs even if they have no intention of switching providers!

These can also be called Requests for Quotes (RFQs) or Requests for Information (RFIs) and are often less extensive than RFPs, and may not lead to change in providers.

But the incumbent firm needs to take these very seriously because a misstep in the response can lead to stakeholder doubts, which in turn can lead to an RFP and the hiring of a new, shiny firm.

ILT MAGAZINE l ISSUE NO.

More importantly, informal selection processes are often loosely based on the RFP process anyway. If you want to get really good at pitching and winning corporate clients, going through the rigors of the RFP is a great way to hone those skills.

Biz Management

20 IMMIGRATION LAWYERS TOOLBOX

Biz Management

There is no right or wrong answer here. My only recommendation is to not jump in blindly, but instead be thoughtful about what you realistically expect to get out of a process that will consume your firm’s resources for at least a few months.

What do immigrationw RFP’s and responses generally look like?

Think of the RFP and response exercise as a college application on steroids. You will be asked to provide information about some or all of the following:

ILT MAGAZINE l ISSUE NO.

02

● Your firm’s history, mission, and service approach (are you a good fit for the client?) ● How your firm distinguishes from others in the marketplace ● Your areas of expertise (do they match up with the company’s needs?) ● Your organizational chart ● The staff you propose to place on the account (and their backgrounds)

● How many accounts you have lost (and which ones, and why) ● Your domestic and/or international capabilities ● Your financial viability ● What technology you use (this relates more to the client view and usage rather than what you use internally) ● How you ensure data integrity and security ● Your fees and the services that are included and not included in those fees ● Your service level agreement and expectations (promised turnaround times for each application or petition and response times for each inquiry) ● Your commitment to diversity ● Transition/change management process RFPs will subtly signal the pain points they are currently facing and hope to resolve. Are they growing quickly and need more help scaling?

Are they getting only transactional help and need a more consultative approach? Or is it just as simple as their current firm is not answering questions fast enough? Any one of these can be the reason the RFP is issued, and you may see questions that directly or indirectly solicit answers to help them understand how you can help them solve these problems.

Some RFPs are issued in PDF format, and simply require a response in a PDF document. Others place all of their questions in excel format and ask you to respond in specific cells of the document. The reason they do this is so that they can line up all responses in one spreadsheet to more easily compare them to each other. Online RFP tools (used across industries) are becoming increasingly common, which is not

a great trend for the immigration space, since they tend to have very generic question fields that do not allow for immigration-specific responses.

Stakeholders (global mobility, legal, procurement, managers of foreign nationals, etc.) will score the responses, choose finalists, and invite them in for lengthy presentations. Then, they will pick their winner and backup, notify the losers, and proceed to negotiate fees and services with the winner. If the negotiations fall through (they obviously rarely do), then they will begin the process with the backup.

How do I get a company to include my firm in the RFP process?

If you are asking this question, I apparently haven’t scared you off yet! Good for you.

Generally speaking, companies add law firms that they know of and have (in their minds) strong reputations. What are companies, but a collection of people with their own individual likes and dislikes? In the immigration context, this most often is the Global Mobility Director or Manager and their immigration managers and specialists within a company’s Human Resources/ Talent Acquisition organization. So get to work getting to know these people! You will eventually build relationships and champions in

21 SPRING EDITION l 2021

Biz Management

those communities, and over time, this will lead to the establishment of your reputation and inclusion in future RFPs. It does not matter if you are with a big firm and if they have people who do this already. When companies think of law firms, they think of people they like and trust. That person can be you! Start attending HR and Global Mobility events, try to get speaking engagements there, and over time, you will help your firm get invited to more dances.

Once you have corporate clients, be an amazing service provider.

Some of the best lawyers I’ve seen at business development did not step one foot into the networking

arena of HR organizations and conferences. Instead, they managed their clients with white gloves, and developed extremely strong personal relationships with them.

Guess what? HR professionals tend to change jobs fairly frequently, and when they do, which firm are they going to want to bring into their new organization?

If you don’t win the RFP, don’t worry. Use the process as a learning experience. Don’t be afraid to ask for feedback. Remember, how you handle yourself helps create a reputation and brand for you and your firm. Be intentional about that.

If you win, congrats! The hard work is just beginning!

About the Author and entrepreneurs.

Sameer was just selected for inclusion into the Lawdragon 500 Leading Corporate Employment Lawyers Guide, joining only 70 other corporate immigration lawyers nationwide.

Sameer

is also listed in Chambers USA and the International Who’s Who of Corporate Immigration Lawyers. He is one of only a handful of immigration lawyers to be certified as an immigration expert by the State Bar of California.

Click on the Image to Catch my Interview with Sameer Khedekar, Esq. $25.00 (Free for VerifiedImmigrationLawyer.com Members

ILT MAGAZINE l ISSUE NO.

02

Sameer is the Founder and Managing Partner of Banyan, a global immigration law firm (www.banyan.law). He brings 17+ years of experience managing immigration service delivery for Fortune 500 companies, mid-size employers, startups,

24 IMMIGRATION LAWYERS TOOLBOX

Consular Quiz

Immigration Lawyers Toolbox Magazine Consular Quiz

By Liam Schwartz, Esq.

Do you think the visa application process is simply about sending your client to “pick up” his

or her visa at the consulate? Think again. Test your knowledge of the Foreign Affairs Manual, and consular processing in general, with the following dozen questions. Have fun!

Liam Schwartz, Esq.

1. What normally determines where an

Liam.Schwartz@Goldfarb.com individual should apply for a visa?

(a) The country of the person’s citizenship (b) The place of the person’s residence (c) The country which issued the person’s last visa

ILT MAGAZINE l ISSUE NO.

02

2. Which visa classification is described by the FAM as designed for enhancing economic and commercial interaction between the United States and foreign countries?

3. True or false: An American consular officer may refuse a visa application in order to assist host country authorities to prevent the departure of the applicant from their jurisdiction.

4. How many U.S. consular posts are in Mexico? a) 4 b) 8 c) 10 d) 12 e) 15

5. A consular officer generally contacts the Admissibility Review Office in order to: (a) Check whether a visa applicant is subject to a statutory inadmissibility. (b) Recommend the issuance of a nonimmigrant visa waiver (c) Verify whether a visa applicant may have overstayed during a previous visit to the United States. w 6. Most of us know that INA 214(b) refers to the general presumption that all visa applicants are immigrants unless they satisfy the consular officer that they qualify for one of the nonimmigrant visa categories defined in INA 101(a)(15). But what does INA 214(a) refer to? (a) The authority of the Attorney General to set the duration and conditions of admission to the U.S. of nonimmigrants (b) The classes of aliens ineligible to receive visas and ineligible to be admitted to the United States (c) The definitions of the various classes of nonimmigrants.

25 SPRING EDITION l 2021

Consular Quiz 9. If a visa adjudicator introduces herself as a FAST officer, what does this indicate about her? (a) She is recognized as being among the most efficient adjudicators at post (b) She is a relatively new foreign service officer

7. A consular officer bidding for a post in Africa might consider: (a) Port Au Prince (b) Port Louis (c) Port Moresby (d) Port of Spain 8. True or false: A visa applicant’s failure to volunteer critical information may constitute a misrepresentation for the purposes of INA 212(a)(6)(C)(i).

(c) She is the consular unit’s anti-fraud manager 10. True or false: An approved Form I-129, Petition for Nonimmigrant Worker is to be considered by consular officers as prima facie evidence that the requirements for E classification have been met.

11. The Consular Officer has denied your client’s visa request after informing him that additional information is required; what are the statutory grounds for visa ineligibility? (a) Section 214(b) (b) Section 212(a) (c) Section 221(g) 12. Which are there more of: U.S. Foreign Service Officers or Immigration Attorneys?

Consular Quiz ANSWERS on Page 34 About the Author

02

corporate immigration law. His law practice focuses on assisting companies in relocating executives, managers and specialized knowledge employees to the U.S.

ILT MAGAZINE l ISSUE NO.

Liam Schwartz is Head, Corporate Immigration Practice at Goldfarb Seligman Law Offices in Tel Aviv, Israel. Liam is a recognized leader in United States and Israeli

26 IMMIGRATION LAWYERS TOOLBOX

Sponsored Article

Expert Opinion Report: Top 10 Tips for Success

By Janette Turner, J.D., Foundation for International Services, Inc., www.fis-web.com,

Expert Opinions can support a successful

outcome for your client but there are risks if you do not know the best practices. Here is a quick guide on getting top results with Expert Opinions.

in sociology who may not be best to weigh in on whether a candidate has a bachelor’s degree in computer information systems.

The better practice is to make sure your provider has experts who are recognized authorities in the industry being reviewed.

Summary: Top 10 Best Practices for Expert Opinions Network of Experts and Fields Narrow Degree Fields Detailed Job Duties Work Product Samples

Janette Turner, J.D. JHTurner@fis-web.com

Pertinent Research Progressively Responsible Work Experience Underlying Evaluation: NACES Timing Professor Phone Call or Site Visit Brainstorming What is an Expert Opinion (EO)? An Expert Opinion by a recognized authority provides a comprehensive analysis of an employer’s need for a specific position or the education and professional experience of a candidate to meet government regulations. Expert Opinions have been used for several decades and have grown increasingly common in the last decade because of their success in cases including H-1B, O-1/2, L-1A/B, H-3, E-2/3, EB-1/2/3, P-3, National Interest, Audits, and TN/USMCA, among others. How and when to best use Expert Opinions will be discussed here.

Top 10 Best Practices for Expert Opinions

ILT MAGAZINE l ISSUE NO.

02

(1) Network of Experts and Fields To cut down on having to go to multiple providers, ask to see the provider’s list of fields and expert qualifications. Be aware that some providers do not use university professors and industry experts with years of experience, but instead put their own signature and stamp on an Expert Opinion and declare they are experts. Some providers may offer an expert with a master’s degree

It is also a best practice to review sample letters and the C.V. of the proposed expert to determine if they understand what you need and can handle your case type. For example, for L-1A cases, the expert should have experience in showing how an individual has worked for a qualifying organization and will work in an executive capacity making decisions without much oversight or in a managerial capacity supervising and controlling the work of professional employees or a department or function of the organization. For L-1B cases, the expert should have experience showing how an individual has specialized knowledge about the company’s products, services, processes, or techniques or an advanced level of knowledge or expertise in the organization’s processes and procedures. Your provider and expert need to know the requirements for different letter types such as: • •

H-1B Specialty Occupation; Wage Analysis; Qualified; Degree Equivalency H-2A/B Seasonal Need for Workers

27 SPRING EDITION l 2021

•

• • • • • • • •

• • • •

•

An experienced provider should have a network of recognized authorities in academia and professions covering a broad swath of fields. Ask to see their fields list which should include experts ranging from: Agricultural/ Animal/Plant/Veterinary Science, Architecture, Communication,

Journalism, Biological and Biomedical Sciences, Business, Management, Marketing, Communications Technologies, Computer and Information Sciences, Construction Trades, Education, Engineering, Family and Consumer Sciences/Human Sciences, Health Professions, Legal Professions and Studies, Mathematics and Statistics, Multi/ Interdisciplinary Studies, Physical Sciences, Social Sciences, Sports, Kinesiology, Physical Education/ Fitness, to Visual and Performing Arts.

By using a provider with a broad network of experts and successful opinion types, you will cut down on your workload by having vetted experts ready to go. Always review sample letters and the C.V. of the proposed expert to ensure they understand what you need.

(2) Narrow Degree Fields for Specialty Occupation To give your client the best chance in specialty occupation cases, check to see if you can narrow the degree fields in H-1B specialty occupation expert letters. This is because USCIS has at times stated the definition of a specialty occupation is an occupation which requires theoretical and practical application of a body of highly specialized knowledge and that means requiring only one degree or an extremely narrow set of degrees.

Let’s look at each part of that statement separately.

One Degree: A company, for example may typically hire an individual for a software developer position with a bachelor’s degree in computer science, computer engineering, software engineering, electrical engineering, electronics engineering, information technology, computer information systems, information science, mathematics, or a related field, but when listing the degree requirement for an H-1B petition, it helps to narrow the degree requirement to something such as “a bachelor’s degree in computer science or a closely related field.”

One Body of Specialized Knowledge: According to the Occupational Outlook Handbook (OOH), the position of “Operations Research Analyst” typically requires a degree in “business, operations research, management science, analytics, mathematics, engineering, computer science, or another technical or quantitative field.” At first glance, these degrees may not seem to share one body of specialized knowledge, but a closer look shows these fields all involve the use of “quantitative and qualitative measurements.” At FIS, we have seen attorneys follow the best practice in this situation of limiting the degree fields accepted for the position to one or two fields, and then adding a phrase like, “or another quantitative field” to allow for foreign nationals with different backgrounds to be considered for the position. The result might be written as “a bachelor’s degree in mathematics or another quantitative field.”

02

•

H-3 Visa Training Program EB-1 Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives EB-2 Advanced Degree, Exceptional Ability, and National Interest Waiver EB-3 Skilled Workers, Professionals, and Unskilled Workers E-2 Visa Treaty trader/treaty investor E-3 Specialty Occupation Workers from Australia; H-1B1 Chile and Singapore F-1 OPT Employment Related to Major L-1A/B Intra-company Transferee O-1 and EB-1 Extraordinary Ability O-1 Peer Consultation P-1 Athletes, P-2 Artists/ Entertainers in Exchange Programs, P-3 Artists/ Entertainers Culturally Unique R Religious Workers TN/USMCA/Mexico/Canada Green Card and Other Visas Qualified for Position Perm Audits, Supervised Recruitment, Business Necessity, Ability to Pay/ Employer, Reasonable Period of On-the-Job-Training Other immigration issues and non-immigration related issues

ILT MAGAZINE l ISSUE NO.

•

Expert Opinions

28 IMMIGRATION LAWYERS TOOLBOX

Sponsored Article Note that narrowing degree fields is not necessary in other Expert Opinions. In fact, letters for some employment-based visa types should list all of the degrees listed in the degree requirement for the position and show how they relate to each other and the occupation as some employmentbased immigrant visa cases need to show that the requirements bear a reasonable relationship to the occupation in the context of the employer’s business and the requirements are essential to perform the job in a reasonable manner.

Finally, do not go outside the acceptable fields listed in the OOH when listing the degree field/s required for a position, and also avoid listing an undefined degree requirement that does not mention an acceptable field in which to pursue training for the position.

ILT MAGAZINE l ISSUE NO.

02

The best practice is to make sure the Expert Opinion company you use is working with the Occupational Outlook Handbook/ OOH and O*NET Online databases and understands when to ask you about narrowing the degree fields.

Avoid companies and experts that ask no questions, as they may cost you in the long run.

(3) Detailed Job Duties for Specialty Occupation Letters When submitting documents to the expert for a Specialty Occupation letter, the best practice is to provide a breakdown of the job duties associated with the position, ideally, in a table. The more details the expert receives on the position, the easier it will be for the expert to show a position is a specialty occupation. A description that includes the steps and subtasks to perform each job duty and the percentage of time associated with each duty will be most helpful. An

(4) Work Product Samples The candidate’s work product has a story to tell about the complexity involved in every step of the development of the product on a daily basis. Successful letters based on the candidate’s work product samples can show the position is so specialized and complex as to require at least a bachelor’s degree in a specialized field of study. The best practice is to provide work product samples to the expert.

(5) Pertinent Research Always provide the expert any documentation of pertinent research or projects that the foreign national completed in his or her collegiate studies. This information is often meaningful to the expert and can help establish the individual is qualified for the position the individual is being sought for.

(6) Progressively Responsible Work Experience For education plus experience evaluations, it is helpful to provide clear documentation establishing that the beneficiary assumed

increasingly senior roles with complex responsibilities, or at least was assigned more senior roles over the course of his/her career. Showing the individual’s experience from entry- to expertlevel demonstrates expertise and the increased probability of succeeding in a new role. With the documentation submitted, make sure to include dates of employment, position titles, details of the job duties performed, collaboration with peers, subordinates, and supervisors, and any recognition of expertise. The expert is then able to refer to the provided information in the opinion to show the candidate’s growth as an employee.

29 SPRING EDITION l 2021

In addition to rush options, also check to see if your provider offers reduced fee revisions for updated letters and also preliminary reviews to determine if the expert finds sufficient evidence to provide an opinion. These options can save you money in the long run.

Brainstorming

You do not want your client to receive a cookie-cutter Expert Opinion, so make sure your provider understands the difference between expert letters, such as: • •

(8) Timing Like everything, attorneys and law firms have preferences on the timing of when to use an Expert Opinion. At FIS, we have seen attorneys successfully use Expert Opinions pre-emptively when filing an H-1B, or when they have received a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) or for an audit response. It

(10)

• • (9) Professor Phone Calls or Site Visits

• •

The Expert Opinion can be supplemented with a phone call between the expert and employer, and can often include the candidate, to help the expert gain knowledge of the candidate’s projects and assignments to show progressive responsibility and expertise. The information is then incorporated into the expert opinion report and shows a greater understanding of the employer and employee relationship. Not all experts are comfortable with the extra work to perform this step, so check to see if your Expert Opinion company offers this.

• •

Business Necessity Specialty Occupation Letter (SOL) Education + Experience Education + Experience + SOL Extraordinary Ability Two Recognized Authority Letters National Interest DOL Audits

These letters require different evidence, and the provider should be ready with vetted experts and sample letters. If you have an RFE or NOID, get it to the provider so an extra set of eyes can review what is needed. A good provider can brainstorm and share what they have seen in the field that has been working for other lawyers and firms so you can make the best decision to give your client the optimal chance for success.

02

Prior to 1987, there was no oversight of evaluation companies, so NACES, the National Association of Credential Evaluation Services, was created to establish and maintain ethical standards.

NACES is now referred to by the US Dept. of State and US Dept. of Education. Best practices include using a company that is certified for the underlying foreign degree evaluation. Also, it is a good idea to have the same company perform any needed translations so the documents match in subject matter and industry verbiage.

depends on whether the attorney likes to come out swinging from the start or hold back a reserve of fire power for later. We have also seen last-minute timing when attorneys need expedited L-1 Expert Opinions for clients with rapidly approaching interviews at a U.S. embassy in the foreign national’s country. Make sure the Expert Opinion company you use can handle rushes and is ready when you are.

ILT MAGAZINE l ISSUE NO.

(7) Underlying Evaluation

Expert Opinions

30 IMMIGRATION LAWYERS TOOLBOX

Sponsored Article SUMMARY

ILT MAGAZINE l ISSUE NO.

02

This article hits the highlights for using Expert Opinions to achieve successful results. A good provider will have a wide network of vetted university professors and industry experts that are recognized authorities with experience in providing expert opinions that meet government requirements.

A top provider will ask questions to help you narrow and expand degree fields and provide sufficient evidence for the expert to provide an opinion. A leading provider will allow you to review sample letters and C.V.s of vetted experts, provide a NACES-level evaluation of any underlying foreign degrees, and offer additional services such as translations, professor phone calls, and rush service. Following these best practices will help you achieve success and satisfaction for your clients.

FIS is committed to your success and will continue to monitor the evolving immigration and Expert Opinion landscape.

Legal advice: This article is not intended as legal advice but as a starting point for discussing Expert Opinions with your provider.

About FIS: The Foundation for International Services, Inc., established 1978, is a leading provider of credential evaluations, certified translations, and Expert

Opinions to help clients obtain U.S. visas and reach international opportunities in employment and education. With a Google rating of 4.7 out of 5 stars and over 280 reviews, FIS sets the standard for international services with responsive service and reliable results. FIS is a charter member in good standing of NACES (National Association of Credential Evaluation Services), which is referred to by the U.S. Dept. of State and U.S. Dept. of Education.

Top Active US Immigration Podcasts 1

Immigration Nerds

2

Murthy Immigration Podcast

3

Immigration Review®

4

Redirect: Immigration Law and Perspectives

5

Statutes of Liberty, An Immigration Podcast

6

The Immigration Conversation

7

Immigration Law for Tech Startups

8

The Immigration Answers Show

9

Immigration Revelation

(Erickson Immigration Group) (Murthy Law Firm)

(Kevin A. Gregg, Esq.)

(Stephen Robbins, Esq. & Matthew Archambeault) (Klasko Immigration Law Partners, LLP) (Fragomen)

(Sophie Alcorn, Esq.) (Jim Hacking, Esq.)

(Fiona McEntee, Esq.)

Immigration Q&A 10 U.S. (John Khosravi, Esq.) the Door: Opportunities for U.S. Immigration 11 Opening (Nadine Heitz, Esq.) Immigrant’s Way 12 The (Margaret W. Wong)

Honorable Mentions Immigration Tech & Marketing – The GMI Rocket Show

1

Immigration Lawyers Toolbox®

2

(Roman Zelichenko, Former Immigration Lawyer) (John Khosravi, Esq.)

32 IMMIGRATION LAWYERS TOOLBOX

International

Talent Retention Options for Employees Not Selected in the H-1B Lottery A Guide for Corporate Clients Seeking International Options to Retain Employees Losing Status in the United States

By Zara Najam, Esq.

Corporate

clients expend significant resources recruiting, onboarding, and training foreign national talent every year. Unfortunately, they are often left at the mercy of the annual H-1B lottery to determine if they can continue to employ or hire new foreign national talent in the United States. Many are disappointed when the results are released and immigration practitioners receive an influx of queries seeking alternative options to retain talent not selected in the lottery.

While there are some alternative U.S. immigration options, they are not often viable for every employee of the company.

Therefore, to fully address our corporate clients’ business needs, immigration practitioners should be prepared to provide options beyond the limited avenues of U.S. immigration.

ILT MAGAZINE l ISSUE NO.

02

Zara Najam, Esq. Zara@Eiglaw.com

The goal of this article is to address potential non-U.S. immigration options for international companies seeking to relocate employees unable to remain in the U.S. While hiring or transferring employees to an overseas entity has always been an option for companies, it is not traditionally explored as a part of a comprehensive long-term plan for each foreign national employee. What makes this a more attractive option this year is that due to the pandemic, companies have realized the power of collaboration across international borders and the ability to continue business despite limited in-person meetings.

On the flip side, the pandemic has also made it increasingly challenging to plan and execute an overseas transfer or hiring strategy. Unlike years past, the timeline in obtaining immigration status for an employee being transferred from the U.S. is unpredictable due to constantly changing travel restrictions and closures of borders, consulates, and immigration authorities.

Layered on top is an undeniable change in governments’ attitude towards immigrants, including highly skilled economic immigrants, due to the sharp increase in unemployment for their citizens and permanent residents.

Understandably, non-U.S. immigration options will be largely dependent on where the corporate client has established presence and location of internal teams.

Time zones may also be a consideration when collaboration with international colleagues is required. Once the client has defined these limitations, immigration practitioners can assess employee-specific factors to determine the viability of obtaining a work permit in the destination countries.

33 SPRING EDITION l 2021

Those employees who have been with the company for more than 12 months can also be considered for an intra-company transfer (“ICT”) work permit. When considering an intra-company transfer, the analysis should hone in the specialized knowledge the employee possesses within the Company and in the industry generally.

Further, careful thought should be given to how the destination country will benefit from this employee’s specialized knowledge. Countries like Canada, Ireland, and the UK emphasize the benefit gained by the receiving entity as a crucial factor in the approval of an intracompany transfer application. A potential downside of an ICT work permit is that it often does not offer a path to permanent residency for the employee, especially in countries like the UK, Singapore, Ireland, and Canada. However, it remains an attractive option for many employees who may want to return to the U.S. on an L-1A visa

after spending the required time employed for the company abroad.

To round out the analysis, immigration authorities for every country generally require the employee to have a relevant degree and/or work experience that matches the role for which they are seeking a work permit. For example, in Ireland, a relevant degree and work experience is required for a Critical Skills Employment Permit but for a General Employment Permit, a degree can be replaced by extensive relevant work experience. Salary ranges are also specified for each role and depend not only on the job market but also on the employee’s experience.

For example, in Singapore, while the minimum required salary for an Employment Pass is SGD 4,500 per month, it is only a starting point and should increase based on the employee’s years of work experience.

02

As a general rule, applications for work permits for occupations in Engineering, IT, or healthcare sectors will likely be less scrutinized by immigration authorities than Sales, Marketing, Customer Service roles in most countries. While there has been a very clear shift in countries like Singapore and Canada encouraging companies to build a strong local talent core, there is still a high approval rate for work permits for occupations where local talent is not readily available. Countries such as UK and Ireland have “shortage occupation lists” which list the roles for which there is a shortage of qualifications, experience, or skills required for the proper functioning of the country’s economy. Most roles on these lists are for various fields of engineering, medical professionals,

and IT roles. Canada also offers a Global Talent Stream for employers to sponsor foreign nationals in IT and engineering roles for work permits without conducting a labor market test. Therefore, an employee in one of these occupations will have a good chance at obtaining a work permit in a country outside of the U.S.

ILT MAGAZINE l ISSUE NO.

Employee-specific factors to account for are occupation, tenure with the company, salary range, relevant education to the role, and nationality. Please note that it is recommended to obtain advice from an immigration attorney licensed in the destination country and information in this article is intended to serve as general guidance about the factors that should be accounted for when assessing for work permits and should not be construed as legal advice.

International

34 IMMIGRATION LAWYERS TOOLBOX

International Last but not least, companies should also be ready to conduct labor market tests, if required, to identify potential local talent before an employee from abroad can be sponsored for a work permit. These labor tests are designed to show the immigration authorities that qualified local talent could not be located and foreign national talent needs to be brought in to meet the business’ needs. Countries such as Canada, Australia, and Singapore are notorious for requiring detailed recruitment efforts before granting a work permit to a foreign national.

If a company is looking to avoid the

labor market test requirements, countries such as United Kingdom, Colombia, Mexico can offer viable options.

Over the past year, the pandemic has added another layer of analysis to the viability of a work permit sponsorship in almost every country – unpredictable processing timelines and travel restrictions.

Timelines are a crucial factor in setting realistic expectations for start dates and avoiding gaps in employment if an employee’s EAD is expiring in the U.S. To determine proper timelines, the

employee’s nationality and where they are physically located should be reviewed. These factors trigger applicable travel restrictions and entry visa requirements, which in turn impact the time required to obtain a work permit and the physical relocation of the employee.

In conclusion, it is not the end of the road for a corporate client or a foreign national if U.S. immigrations are limited or non-existent. An understanding of the factors that may lead to ongoing employment abroad can help clients retain valuable talent.

About the Author Zara Najam is a Senior Global Attorney at Erickson Immigration Group.

Zara specializes in international business immigration, including advising clients on global immigration strategy and program development, securing proper immigration status for

overseas assignments (transfers & new hires), and supporting global mobility and HR teams with management of the company’s global mobility program.

Zara has been recognized as a Super Lawyers Rising Star and is also a

certified Global Mobility Specialist (GMS) by Worldwide ERC. She has been a speaker at several global mobility conferences and authored articles on various aspects of hiring foreign national talent to scale globally.

Answers to the Consular Quiz 1. (b). The applicant’s residence is the determining factor for the place of application under normal circumstances.

9 FAM 504.4-8(A)

4. (c)

10. False. See for example: “If USCIS authorized a Change of Status to E for a person in the United States, that status is only valid as long as you remain in the United States. To obtain an E-visa, the company and applicant must submit a complete package by mail as per first time applicants.”

5. (b) 9 FAM 305.4-3(E)

11. (c) 9 FAM 302.1-8

6. (a)

12. There are more immigration attorneys, but it’s really close! Per the American Foreign Service Association, there are currently 15,600 Foreign Service Officers.

According to Rachel Sommers Pulda, AILA’s Associate Director of Online Resources of AILA in an email dated March 1, 2021: “We currently have around 15,800 AILA members.”

2. The E visa classification. 9 FAM 402.9-2(b)

ILT MAGAZINE l ISSUE NO.

02

3. True. 9 FAM 302.3-2(B)(3)(f)(2)

7. (b) 8. False. 9 FAM 302.9-4(B)(3)(b) 9. (b) FAST = “First and Second Tour”

35 SPRING EDITION l 2021

Sponsored Article

The Essential Ingredient of the E-2 Visa Petition

By Marco Scanu, CEO at Visa Business Plans

T

Patching together thoughts and numbers is not enough. Careful consideration must be given to several components of a comprehensive business plan, including financial, marketing, industry analysis, competition, key personnel, and business Marco Scanu info@visabusinessplans.com organization. The business plan is as important as any investment pitch to new investors on a roadshow, if not more so.

On a macro level, the two possible deciding authorities depending on the nature of the petition, either the United States Citizenship and Immigration Services (the “USCIS”) or the Bureau of Consular Affairs for the Department of State (“C.A.”), must be persuaded that a substantial investment will likely bring economic, financial, and social benefits to the U.S. There is no formula for what constitutes a substantial investment for these purposes.

The bottom line is that it must be of a size and nature that results in a viable enterprise -- that is, one that can grow and become profitable.

It is a matter of how USCIS or C.A. is inclined to view the likely impact of the infused capital in the relevant market. Is the business funded enough to meet entry and growth challenges in its market niche? What will likely be the degree of success? Will the enterprise be sustained? Over what period? Will it hover endlessly on the brink of collapse? Will it need steady infusions of capital? The more positive certainty a business plan brings to questions like these, the more likely the visa.

The same applies to the nature of the investment. The USCIS or C.A. must be persuaded that the applicant cannot easily walk away, that the applicant is irrevocably committed to the venture. Is the applicant at risk enough to stay devoted over the long haul? In colloquial vernacular, does the applicant have skin in the game? An applicant who may jump ship at the first signs of distress stands little chance of getting the visa.

02

A formal business plan will maximize the chances of obtaining the visa. The E2 business plan is in our sweet spot.

For example, based on a $15,000 investment, we constructed a business plan for a company formed to train skilled workers in the complex mechanical installation of proprietary robotics, conveyors, paint booths, and other assembly systems for the automotive and the environmental technology industries. The business plan projected long-term potential. It secured the visa, and, as the plan contemplated, the investment led to a major contract, this time with automaker Tesla.

ILT MAGAZINE l ISSUE NO.

he E2 visa is an integral part of the U.S. immigration program. In a nutshell, sometimes referred to as the Treaty Investor Visa, the E2 visa requires an investment of a “substantial” amount of capital in a bona fide enterprise in the United States. At the core of a successful E2 visa petition is a wellthought-out vision for a successful and selfsustaining business and a comprehensive strategy for making it a reality.

36 IMMIGRATION LAWYERS TOOLBOX

Immigration Business Plans In a similar vein, the investor must have the power to control the operation of the business.

Is the investor’s percentage of ownership less or more than 50%? Is there a corporate device in place to assure the applicant can direct management of day-today operations? The government decision-makers want to know that the person under consideration is the same person to control the business they are being asked to approve.

Similarly, generally speaking, the business plan must convincingly show that the U.S. entity is more than marginal. What does that mean? A marginal enterprise lacks the present or future capacity to generate more than sufficient income to provide a minimal living for the treaty investor and their family. In the ordinary course of economic events, a business that turns barely enough profit to stay afloat might be fine. But when it comes to the E2 visa, the projected investor income must be enough to grow the business and have commercial staying power and economic impact. Again, the USCIS or C.A., as the case may be, will view the business from a U.S. perspective, not what might satisfy an investor.

ILT MAGAZINE l ISSUE NO.

02

Projected thin net profits, however, are not always dispositive. If the investment will create significant job opportunities locally or otherwise have a significant positive impact on the local economy, the applicant may still qualify despite projected income

only enough to sustain the investor and their family. A case in point is the successful E-2 business plan we formulated that didn’t project substantial profits. The business plan, for a chicken farm, while projecting some profit, focused mainly on creating expanded employment. It generated at least 30 jobs in its first year of operations, making a positive impact on the U.S. economy.

In addition, the type of business is not a neutral consideration. If the proposed business is considered more speculative than not, the chances of approval are low. For example, an investment in a real estate venture that lacks reasonable and credible long-term projects is not likely to inspire an initial positive reaction. The decisionmakers are likely to be leery of E2 petitions for businesses in markets that fluctuate up and down as a matter of course and more friendly to those in markets that boast a tried and true record of stable success.

A final word about the business plan content. The business plan should try to anticipate the questions the USCIS or C.A. might raise in viewing the petition. What are their pet peeves for this type of petition?

Where will their focus likely be?

What is the latest trend of issues impacting E2 visas? Answering those questions before they can be asked will give the applicant a substantial boost by bringing a high degree of certainty to the process and, not the least, making the job of the decision-makers easier, thus putting the petition in a good light.

The E2 visa applicant is wellserved to work with experienced business people who know the market landscape, the nuances of the petition process, the thinking of the USCIS and C.A., and how to assemble the materials and draft the content of an effective business plan.

We have educational degrees in business administration and finance and advanced degrees in business management. We have visiting-scholar experience in a graduate-level Hubert H. Humphrey Fellowship Program in entrepreneurship and venture capital. We have presided over world-renowned business plan competitions, like the Intel Challenge, Start-up Chile, and Startup Peru, and served as a panelist

37 SPRING EDITION l 2021

Sponsored Article About the Author

At present, Mr. Scanu is the managing partner and CEO at Visa Business Plans, a Miamibased boutique consulting firm providing attorneys and investors with business planning services in the areas of U.S. and Canadian immigration and SBA loans.

02

Mr. Scanu received a bachelor’s degree in Business Administration (Cum Laude) from the University of Florida and an MBA in Management from Bocconi University in Milan,

Italy. Mr. Scanu was also a Visiting Scholar at Michigan State University under the prestigious H. Humphrey Fellowship (Fulbright program), focusing on Entrepreneurship, Venture Capital, and high-growth enterprises.

ILT MAGAZINE l ISSUE NO.

at several immigration CLE events and conferences. We have sat on several boards of directors and have extensive business experience in high-growth enterprises, international marketing, and business coaching. We are not attorneys, though. This is why an attorney’s extensive educational training and our business expertise are a match made in heaven.

Marco Scanu leads Visa Business Plans, a certified coach from the University of Miami with a globally-based practice coaching Fortune 1000 company executives, entrepreneurs, and professionals in 4 different continents. Mr. Scanu advises clients on turnaround strategies and crisis management. www.visabusinessplans.com

38

L-1A/EB-1C Corner

IMMIGRATION LAWYERS TOOLBOX

L-1A/EB-1C Corner (Review of Jan. 2021 AAO Decisions) John Khosravi, Esq.

T

his month I am focusing on non-precedent decisions by the Administrative Appeals Office for January 2021. In particular a series of decisions discussing the “Qualifying Relationship” aspect of L-1 Intracompany Transfer and EB-1C Multinational Manager cases. This is the requirement that a proper corporation relationship exist between a US Entity and the Entity Abroad.

In support of the petition, the Petitioner provided ownership breakdowns listing the owners of the U.S. and foreign entities.

The US Petitioner’s ownership breakdown showed that it is owned by two Trust and two Individuals. Each trust is shown as owning 30% of the Petitioner’s stock, while the individuals owning 25% and 15% of the Petitioner’s stock, respectively.

Multiple Owners in Common In Re: 15276970 (L-1A, CSC, JAN. 14, 2021)

John Khosravi, Esq. Info@JQKLaw.com

In the L-1 Context, to establish a “qualifying relationship,” the Petitioner must show that the Beneficiary’s foreign employer and the proposed U.S. employer are the same employer (i.e. one entity with “branch” offices), or that they are related as a “parent and subsidiary” or as “affiliates.” See section 101(a)(15)(L) of the Act; see also 8 C.F.R. § 214.2(1)(1)(ii) (providing definitions of the terms “parent,” “branch,” “subsidiary,” and “affiliate”).

ILT MAGAZINE l ISSUE NO.

02

Here, the Petitioner stated that it was an Affiliate. The term “affiliate” applies when two entities are owned and controlled by the same parent or individual or by the same group of individuals, with each individual owning approximately the same share or proportion of each entity.

The foreign entity’s ownership breakdown shows that it is owned by the Petitioner and three trusts, with each of the four parties owning 25% of the foreign entity.

The case was denied because the Petitioner was not able to show that the companies were affiliates since they were not owned and controlled by the same group of owners.

The Petitioner explained that in addition to the Petitioner’s ownership of 25% of the Foreign Entity, both entities are commonly owned by the two Trusts. Thus, the two Trusts owned 60% of the Petitioner, and 50% of the foreign entity (plus 25% ownership of the foreign entity by the Petitioner).

However, this does not give rise to an affiliate relationship. In order to establish an affiliate relationship in the context of an ownership scheme that involves multiple owners and no single majority shareholder, it must be demonstrated that the claimed affiliates

39 SPRING EDITION l 2021

Documenting the Relationship In Re: 11997236 (L-lA, CSC, JAN. 25, 2021) Here, the Petitioner indicated that it and the foreign employer were parent and subsidiary and that it was owned equally by four partners and that these same four individuals owned the foreign employer was follows In denying the petition, the Director emphasized that the Petitioner did not submit sufficient documentary evidence to substantiate its asserted ownership; specifically, documentation substantiating that its four claimed partners had each acquired 500 shares in the company

In these kinds of cases the AAO states that a petitioner’s claimed qualifying relationship, stock certificates alone are not sufficient evidence to determine whether a stockholder maintains ownership and control of a corporate entity.

The corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant annual shareholder meetings must also be examined to determine the total number of shares issued, the exact number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate control.

In addition, a petitioning company must disclose all agreements relating to the voting of shares, the distribution of profit, the management and direction of the subsidiary, and any other factor affecting control of the entity. See Matter of Siemens Med. Sys., Inc., 19 I&N Dec. at 365. Here the evidence was lacking or conflicting.

In this matter, the Petitioner did not provide a stock certificate ledger or registry, corporate bylaws applicable to the Petitioner, minutes of relevant annual shareholder meetings reflecting the issuance of shares, documentation of monies, property, or other consideration furnished to the entity in exchange for stock ownership, stock purchase agreements, minutes of relevant shareholder meetings, or other such relevant documentation demonstrating actual ownership.

In addition, the claimed ownership did not establish that they qualify as parent and subsidiary, or as affiliates, consistent with the regulatory definition. For instance, in the Form 1-129, the Petitioner indicated that it and the foreign employer qualified as parent and subsidiary. The regulation at 8 C.F.R. § 214.2(1)(1)(ii)(K) defines a subsidiary as a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly

02

To solve this, they could have potentially given Proxy Voting power to one of the Trusts to establish common ownership and control by that one Trust.

in April 2017. For instance, the Petitioner provided four share certificates reflecting the issuance of 500 shares to each of its claimed owners in April 2017. However, in apparent conflict, it provided asserted bylaws for the Petitioner specific to an unrelated entity, as well as a claimed “Partnership Agreement” between its owners indicating that each would make an initial capital contribution to the entity in the amount of $5,000.

Evidence should include documentation of monies, property, or other consideration furnished to the entity in exchange for stock ownership. Additional supporting evidence could include stock purchase agreements, subscription agreements, corporate by-laws, minutes of relevant shareholder meetings, or other legal documents governing the acquisition of the ownership interest.

However, in most cases not all of this documentation is not needed for an approval.

ILT MAGAZINE l ISSUE NO.

are owned by the same group of individuals and that each individual owns approximately the same share or proportion of each entity. That is not true of the Petitioner and the Beneficiary’s foreign employer, whose respective ownership schemes include only two if the four owners that are common to both entities. The fact that the combined ownerships the two Trusts resulted in a majority ownership interest 60% in the Petitioner and 50% in the foreign entity - does not satisfy the language in the regulations.

L-1A/EB-1C Corner

40 IMMIGRATION LAWYERS TOOLBOX

L-1A/EB-1C Corner or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.

ILT MAGAZINE l ISSUE NO.

02

However, here, neither entity owns more than half of the other, nor does this matter involve a joint venture. Further, the Petitioner has not demonstrated that one entity exacts control over the other, particularly since it is owned equally by four owners, and the foreign employer appears to be 97% owned and controlled by one of these owners. Therefore, the Petitioner did not establish that it and the foreign employer meet the regulatory definition of parent and subsidiary.

Likewise, although the Petitioner and the foreign employer are owned by the same four individuals, one of these owners is shown to own 97% of the foreign employer, while each other owner only had a 1% ownership interest.

Meanwhile, the Petitioner’s shares are asserted as being held evenly by these same four individuals. As such, clearly, the entities are not one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity. Therefore, the Petitioner and foreign employer do not qualify as affiliates. For the foregoing reasons, the Petitioner has not established that there is common ownership and control between it and the foreign employer; and therefore, it has not demonstrated that there is a required qualifying relationship between the entities.

50-50 Joint Ventures In Re: 12871741 (EB-1C, TSC, JAN. 14, 2021) *Note that the regulations for EB-1C are under different Statutory and Regulatory sections than L-1s (see) INA 203(b)(l)(C) and 8 C.F.R. § 204.5(j)(3)(i)(C)).

In this EB-1C case, although the Petitioner claimed to have “a subsidiary relationship” with the foreign entity, the records showed that the Petitioner had one owner (We call them “X”) and that the Beneficiary of the Form I-140 Application owned the majority of the shares of the Foreign Entity.

Evidence of common ownership was not provided.

The Petitioner asserted that it qualified because it entered into a 50-50 joint venture agreement with the claimed foreign employer and that the joint venture, which the Petitioner deems a legal entity, is a subsidiary of the Beneficiary’s claimed foreign employer.

The Director concluded that a joint venture agreement between the Petitioner and the Beneficiary’s foreign employer does not result in a qualifying relationship between those two companies and denied the case. However, this case could have been approved with better planning. Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362, had established that a 50-50 joint venture company creates a qualifying Parent/Subsidiary relationship between the joint venture company and each parent (although it does not create an affiliate relationship between the two parent companies). If the actual Petitioner had been the Joint Venture subsidiary who was actually employing the Beneficiary/I-140 Applicant, and not the Petitioning that filed the case, this denial could have been avoided.

Ownership & Control In Re: 15236246 (EB-1C, NSC, JAN. 7, 2021) Regulation and case law confirm that ownership and control are the factors that must be examined in determining whether a qualifying relationship exists between United States and foreign entities. See, e.g., Matter of Church Scientology Int’l, 19 I&N Dec. 593 (Comm’r 1988); Matter of Siemens Med. Sys., Inc., 19 I&N Dec. 362 (Comm’r 1986); Matter of Hughes, 18 I&N Dec. 289 (Comm’r 1982).

41 SPRING EDITION l 2021

In response to an RFE, the Petitioner stated that the foreign companies have a service agreement. The Petitioner further stated that the alleged parent company “controlled and supervised” the non-related foreign company, claiming that the two entities have an “inseparable relationship arrangement” in which the new employer exclusively worked for the benefit of related foreign company.

The Petitioner states that the two foreign companies have “more than a close business relationship,” such that the alleged parent company “completely controlled” the new employer abroad.

However, the Petitioner does not establish that any of these factors pertain to ownership or that they demonstrate the existence of a qualifying relationship between the Petitioner. The other South Korean company simply was a separate and unrelated entity.

About the Author John Khosravi is the Managing Attorney of the JQK Immigration Law Firm, Publisher of the Immigration Lawyers Toolbox® Magazine, host of the Immigration Lawyers Podcast, and Former Adjunct Professor of Immigration Law at Loyola Law School, Los Angeles, and Pepperdine Law School. In his free time, Mr. Khosravi enjoys playing the guitar and spending time with his wife and 2 small boys.

02

Petitioner stated that it is a subsidiary of a South Korean entity where the Beneficiary is claimed to have been employed until January 2013, when he assumed a position with another South Korean entity.

The Petitioner neither claimed nor demonstrated that it and the other company operate as part of the same entity, or that they are related as affiliates or as a parent and subsidiary, either directly or indirectly through the previous employer, whose claimed parent-subsidiary relationship with the Petitioner was also not documented. See id.

However, the Petitioner did not provide evidence establishing that the business arrangement between them. Moreover, the Petitioner provided tax returns that did not consistently convey information regarding its ownership. Although Schedules G and K of the Petitioner’s 2016 and 2017 tax returns indicate that the alleged parent company owns 80% of the Petitioner’s stock, its 2018 tax return indicates that another company directly owns 80% of the Petitioner’s stock.

Further, according to Schedule G has a different stock ownership mix.

Lastly, the Petitioner cites Fontenoy Engineering Inc. v. Baran, 2020 WL 137155 (N.D. Cal.), in which the U.S. District Court contemplated the term “related entities” within the context of an H-1B nonimmigrant visa petition whose beneficiary was the subject of multiple H-1B petitions filed by “related entities.”

The Petitioner sought to apply the District Court’s broader interpretation of the term “related entities” to the circumstances in this case, which involved a Petitioner that is not related to the Beneficiary’s foreign employer as its affiliate, parent, or subsidiary, but rather is claimed to be “related” to the foreign entity in some other way. However, the regulations governing Multinational managers are different and have separately defined terms that are not affected by an H-1B case interpretation.

ILT MAGAZINE l ISSUE NO.

Ownership refers to the direct or indirect legal right of possession of the assets of an entity with full power and authority to control; control means the direct or indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter of Church Scientology Int’l, 19 I&N Dec. at 595.

L-1A/EB-1C Corner

44

Non-Immigrant Visa (TN)

IMMIGRATION LAWYERS TOOLBOX

MAINTAINING TN STATUS WHILE PURSUING PERMANENT RESIDENCY

By Andrew Wilson, Esq.

Question: “Why did you change your status from TN to H-1B?” Answer: “I couldn’t file for a green card if I stayed in TN status”.

T

here may be a few reasons why someone may wish to change from TN to H-1B status, but the ability to pursue permanent residency should not be one of them. In an era where immigration advice can too often become beset with opaque, “it depends” generalizations, this is one issue that has a clear answer. Let me shout it from the mountain tops—You do not need to change from TN to H-1B status to pursue permanent residency.

Andrew Wilson, Esq. AWilson@Lippes.com

I think this concept is still misunderstood and makes people uncomfortable. It is seen as an aggressive and risky strategy, as opposed to a pragmatic approach to securing long-term status for someone in TN status. Why should we advise a company to go through the H-1B cap lottery process, pay expensive H-1B filing fees and deal with DOL compliance steps when the same end goal can be achieved from the safe and secure foundation of a TN? It is a completely unnecessary step that may not bring any value to the employer or TN individual.

ILT MAGAZINE l ISSUE NO.

02

You Are Crazy! What About Nonimmigrant Intent?

TN individuals are usually excited when I offer this advice. Other immigration attorneys are sometimes resistant and politely challenge my position. I hear “How can you say that? What about the nonimmigrant intent required for TN status?”

The reticence to ride the TN through a green card process usually stems from an imperfect understanding of the temporary intent requirement for TN status.

What is the Temporary Nonimmigrant Intent Required for TN Status?

Under the USMCA (formerly NAFTA), a TN applicant must prove that the entry for the employment opportunity is temporary.

NAFTA explicitly defined temporary entry as meaning “entry into the territory of a Party by a business person of another Party without the intent to establish permanent residence.”1 The definition of “temporary” is that the individual is not coming with the intent to establish permanent residence.2 The key distinction here that is usually missed in this definition is that the individual is not entering the U.S. with the intent to establish permanent residency on that entry. An individual may pursue permanent residency and still meet the applicable nonimmigrant intent standard of having no plans to establish permanent residency on that entry. “intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.”

1 See, 8 USC §1101(a)(15).

2 8 CFR §214.6(b): “A temporary period has a reasonable, finite end that does not equate to permanent residence. In order to establish that the alien’s entry will be temporary, the alien must demonstrate to the satisfaction of the inspecting immigration officer that his or her work assignment in the United States will end at a predictable time and that he or she will depart upon completion of the assignment.”

45 SPRING EDITION l 2021

Non-Immigrant Visa (TN)

That Sounds Risky? What About Guidance From CBP or USCIS?

In 2007, back when the Nebraska Service Center handled internal TN extensions, they confirmed that a pending or approved I-140, in and of itself, does not preclude an individual from maintaining TN status.3 That guidance is still followed by USCIS today and is based on the fact that those individuals may still complete the permanent resident process abroad through the U.S. consulate in Canada. They will leave the United States to complete the permanent 3 4

In 2008, CBP also verified that TN status had broader nonimmigrant intent flexibility than many people realize. In response to a letter from Charles Herrington, Esq., CBP responded with: “After reviewing applicable law for North American Free Trade (NAFTA) applicants for admission, it is our determination that the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.

Of course, a TN applicant could have the intent to immigrate or adjust status at a future time, but as long as his or her intent at the time of application for admission is to be in the United States for a temporary period pursuant to NAFTA and regulations at 8 CFR 214.6, he or she could be admitted.

However, once a TN files an application for an immigrant visa or adjustment of status, then the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant. The NAFTA professional must establish that the intent of entry is not for permanent residence.”4

This guidance from CBP is interesting because there is no clear definition of what constitutes “files an application for an immigrant visa”. Does this happen when the immigrant visa fee bills are paid?

When you file DS-260 paperwork?

When the IVP interview is scheduled? I take the position that an individual may qualify for TN status up to completing an IVP interview.

Finally, updated in April 2017, insight into this issue can also be found in the Foreign Affairs Manual at 9 FAM 402.17-7, which reads: The agreement encompasses only business persons coming to the United States temporarily. INA 214(b), therefore, is fully applicable to TN visa applicants. Chapter 16 provides the following definition: “Temporary entry means an entry into the United States without the intent to establish permanent residence.”

The department’s regulation (22 CFR 41.59(c)) amplifies this definition to provide additional guidance. The essence of the requirement is that the alien is seeking “temporary” entry into the United States. You must be satisfied that the alien’s proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence.

The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s

“NSC Backs Off I-140/TN Policy Change” (Nov. 14, 2002), AILA InfoNet Doc No. 02111431.

“CBP Letter Addresses Immigrant Intent for TN Applicant Married to I-140 Beneficiary” (Apr. 21, 2008), AILA Doc. No. 09021280.

02

Luckily no one needs to take my opinion alone on this issue. Older guidance from USCIS and CBP, as well as more recent guidance in the FAM all clearly confirm that an individual may maintain TN status while pursuing permanent residency.

residence process, so their entry is always still temporary.

ILT MAGAZINE l ISSUE NO.

As a law student, I once researched an issue for a motion that was part of a capital defense case. I outlined everything for the attorney but was weak on the specific support for my conclusion. The attorney mocked me by saying, “Great, I will just tell the judge you told me this is the answer.”

46 IMMIGRATION LAWYERS TOOLBOX

Non-Immigrant Visa (TN)

temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment. An intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.

Repeated renewal of a TN visa that leads to extended stay in the United States, may still be temporary, as long as there is no immediate intent to immigrate.5 When reading the above, it is important to appreciate that the required nonimmigrant intent for a TN is not violated by a plan to obtain permanent residency in

the future. The intent is judged against each specific entry, and an “intent to immigrate in the future that is in no way connected to the proposed immediate trip need not in itself result in a finding that the immediate trip is not temporary.”

Stay the TN Course A TN individual does not need to switch to H-1B or L-1 status to pursue permanent residency.

If handled properly, there is no reason not to maintain TN status throughout the permanent resident process. This can save high H-1B filing fees and DOL compliance steps for the employer.

In addition to immigrant visa processing, there may be scenarios where an adjustment of status filing is possible, as long as you are mindful of the risk of being accused of immigrant intent by filing an Application for Adjustment of Status soon after entry.6 Interestingly, I once had to file I-129 TN extension paperwork for a client who already had I-485 paperwork pending.

That TN extension was approved, and I have heard of a similar case from at last one other attorney. I would not rely on that as a normal strategy, but it is an interesting piece of the puzzle when analyzing the nonimmigrant intent rule for TN status.

ILT MAGAZINE l ISSUE NO.

02

About the Author Andrew M. Wilson is a Partner and Immigration Practice Group Co-Leader with Lippes Mathias Wexler Friedman LLP. He is listed in Best Lawyers in America for Immigration Law, the International Who’s Who for Corporate Immigration Law, the International Who’s Who of Business Lawyers, and New York Super Lawyers—

Upstate.

He has been named Buffalo Immigration Law “Lawyer of the Year” by Best Lawyers in 2013, 2018, and 2021. He currently serves as an AILA Local CBP Liaison and has also been active in SHRM as a Panel Member on its Global Special Expertise Panel and Corporate Social Responsibility Special Expertise Panel.

Rather than taking a transactional approach, Andrew focuses on building long-lasting relationships with clients as a trusted advisor. He represents companies, major league sports teams, and individuals in all areas of immigration law.

5 9 FAM 402.17-7.

6 See USCIS Policy Manual, Chapter 3 - Adjudicating Inadmissibility. While USCIS does not officially adopt the DOS 90-day rule, applicable guidance reads “However, USCIS officers must examine all of the factors in an applicant’s case. After such review, USCIS officers may find that an applicant made a willful misrepresentation, especially if the violation or inconsistent conduct occurred shortly after the consular interview or admission to the United States.”

Facebook Immigration Lawyer Groups 1

Nerdy Immigration Lawyers Solo Immigration Attorneys

3

Business Immigration Attorneys E-Visa Master Practitioners

5

6

L-1 Visa Master Practitioners Crimmigration

9

4

Sports Immigration Lawyers Consular Processing Attorneys

7

2

8

Technology for Immigration Practitioners (TIP) Immigration Lawyers Toolbox® Private Facebook Group Email us @: Info@ImmigrationLawyersToolbox.com (Practicing Private Immigration Lawyers Only)

10

48

Immigrant Visa EB-1A

IMMIGRATION LAWYERS TOOLBOX

Advocating for Extraordinary Ability Applicants in Federal Court: A Case Study

By Ksenia Maiorova, Esq.

I have spent most of my professional

career avoiding becoming a litigator. It was a preference mirrored in my initial career choice as a corporate finance attorney, and then in my transition to immigration. In my immigration practice, I deliberately avoided removal defense cases, focusing instead primarily on matters that kept me out of various courtrooms – sports visas, family immigration, and naturalization.

ILT MAGAZINE l ISSUE NO.

02

As the Trump-Miller agenda to reduce the rate of all immigration came into focus, I began to note disturbing trends in my extraordinary ability practice, and in cases reported by other attorneys. While most media attention at the time was focused on reporting the alarming decline in the approval of H-1B petitions, an equally concerning downward trend was taking Ksenia Maiorova, Esq. place in the space of extraordinary ability visas and green cards. In particular, by the KSenia@KMImmigration.com fall of 2019, EB-1A approvals dropped by nearly 30% as compared to the average of prior administrations, including Republican ones. There was also a significant uptick in Requests for Evidence, many of which articulated ultra vires requirements, inflated the legal standard, and made confounding factual and legal conclusions.

Our advocacy at the agency adjudication level was not proving to be an effective tool to fight back against an agency that had by all indicators gone rogue. If we wanted a fair tribunal for our clients, it became apparent that federal courts were our best shot. And while litigation was a manifestly intimidating concept for someone who had gone to such lengths to avoid it, when USCIS denied an EB-1A to my athlete who was ranked in the top 10 in the world, I decided to join the ranks of immigration attorneys seeking justice in federal court.

Before deciding to file an action in federal court under the Administrative Procedure Act, I weighed all other options. While other attorneys have sometimes had success by

simply refiling a strong case, I did not have the luxury of time, due to a combination of my client’s soon-to-expire student status and his need for travel flexibility during an Olympic year. Reasonable minds can certainly disagree on this matter, but I reasoned that we were dealing with an agency that was plagued with systemic abuses of substantive and procedural due process, and I was not confident that my petition would fall in the hands of a more reasonable adjudicator if we refiled. Contrary to popular belief, an appeal with the AAO is not required to exhaust administrative remedies in the case of a denied I-140 petition, and the AAO statistics reflect that it rubber stamps over 90% of the denials it reviews. As such, we proceeded with an APA claim in the Federal District of Nebraska.

Admission to the Federal District of Nebraska was surprisingly easy, did not require a personal appearance, and took less than two weeks. With the guidance of Frank Symphorien and Amy Maldonado, immigration attorneys who are regulars in federal court, I registered for and learned the basic functionality of the federal court electronic filing system, PACER, and began preparing my complaint.

49 SPRING EDITION l 2021

Furthermore, I articulated due process arguments based on the agency’s invention and application of novel legal standards in my client’s case, with most of these ultra vires requirements articulated in the discussion of the regulatory criteria at 8 C.F.R. § 204.5(h)(3) (i)-(x). USCIS credited us with the Awards and Publications criteria, but claimed that we had not established a third regulatory criterion.

1 2 3

Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) 25 I&N Dec. 799, at 805–06 (May 15, 2012) In re , (AAO Feb. 3, 2011).

02

Concerning the inflation of the legal standard, in the complaint, I argued that the petition is subject to adjudication on a preponderance of the evidence standard, which requires that a fact be more likely than not to be true. The argument was anchored with citations to and quotes from Matter of Chawathe, the seminal case on the standard of proof in immigration proceedings.1 I pointed out that the adjudicator had a tendency to summarily dismiss certain exhibits in the Administrative Record without offering any explanation as to why such evidence was deemed to have

diminished credibility or limited probative value. In line with recent trends in adjudication, much of the attack on the evidence focused on expert testimony, which was either completely ignored or wholly discounted. Concerning testimonial letters in particular, USCIS tends to make bogus claims and cites various decisions that are either completely non-binding or do not stand for the position proffered by the agency. As such, when reviewing RFEs, NOIDs, and denials, it is critically important for the practitioner to read and analyze every point of authority cited by USCIS, and to identify inaccurate holdings, nonbinding authority, and other problems with these citations.

The Service concluded that we had not established the Memberships criterion found at 8 C.F.R. § 204.5(h) (3)(ii). Our claim to this criterion was based on the athlete’s selection to his national team to represent his country at the World Championship.

With the petition, we provided evidence in the form of a letter from the team’s head coach, articulating specific quantitative criteria that an athlete had to accomplish to be selected to the national team by his federation. We also submitted evidence of the qualifying standard for the World Championship, demonstrating that less than 5% of athletes in the world made the minimum standard to compete at the World Championships. This was a criterion that rested heavily on expert testimony, and the complaint focused on the fact that the testimony was consistent with other evidence, and that the agency was not free to discount expert, substituting its own judgment in lieu of uncontroverted expert testimony. I cited to Matter of Skirball Cultural Center2 (a case the holding of which USCIS routinely misstates), the USCIS Policy Manual Chapter 11, and to an unpublished AAO case that specifically found that membership on a national team can satisfy this criterion3.

ILT MAGAZINE l ISSUE NO.

In the complaint, I argued that the decision by the Nebraska Service Center a) ignored credible and probative evidence in the Administrative Record, b) misstated facts and mischaracterized evidence, c) misapplied established legal standards for adjudicating Extraordinary Ability Petitions, d) inflated the standard of review above preponderance of the evidence, and e) articulated ultra vires requirements not found anywhere in the applicable law.

These actions constitute an abuse of agency discretion and a violation of the Administrative Procedures Act.

Immigrant Visa EB-1A

50 IMMIGRATION LAWYERS TOOLBOX

Immigrant Visa EB-1A We were also not credited with the Critical or Leading Role criterion.

Our claim to this criterion was based on the athlete’s numerous records in the NCAA. It goes without saying that a person who owns an all-time record can reasonably be described as leading, but we also had to establish that the NCAA has a distinguished reputation. To that end, we submitted evidence demonstrating that 80% of the US Olympic Team at the 2016 Olympic Games were current or recent NCAA athletes. In the decision, USCIS articulated the ultra vires claim that the role had to be critical to the operation of the entire organization, which I argued in the complaint to be extraregulatory.

The third criterion in dispute was the Salary criterion. Here, I made a novel argument. My athlete was not a professional, so he was not receiving sponsorship funds or other remuneration

typical of a professional athlete.

He was, however, on a full athletic scholarship at the University of Kansas. Based on this, I argued that the scholarship was remuneration for his services as an athlete and would thus qualify to be considered under this criterion. I reiterated this argument in the federal complaint.

The final element addressed by the litigation was the prospective benefit requirement. In its decision, USCIS conflated this requirement with the future work requirement and its discussion on the matter was, at times, utterly incomprehensible.

The adjudicator wrote: “Neither the statute nor the regulations specify that the employment must be full-time, but you failed to response to this requirement or minimal hours of employment or incidental to the primary source of income does not substantially benefit prospectively the United States.” Arguing something that

garbled seemed futile, so in the complaint, I focused on the evidence of prospective benefit that was submitted into the record, relying on the helpful language in Matter of Price.4 This evidence included viewership statistics for the athlete’s sport at the Olympics, evidence that the world championship in his sport is the third largest spectator event in the world, and the athlete’s top 10 in the world ranking.

The negotiation with the AUSA was neither lengthy nor difficult. He called several days after receiving his copy of the record, asked a few clarifying points about the law, and told me that the case would be reopened and approved. In parting, he pondered, “Well if a guy who is top 10 in the world does not qualify for a green card, how extraordinary do you have to be to get one?” If only we did not have to litigate to find out.

About the Author Sports Immigration Law Conference and as well as the editor and contributing author of “Immigration Options for Artists, Entertainers & Athletes, Third Ed.,” AILA’s treatise on extraordinary ability immigration.

ILT MAGAZINE l ISSUE NO.

02

Ksenia Maiorova is the Managing Partner of Maiorova Law Group, PLLC, where she focuses her practice on the representation of athletes, coaches, and other sports industry professionals in their immigration matters. She is the founder and chair of the annual

4

Matter of Price, 20 I&N Dec. 953 (Act. Assoc. Comm’r. 1994)

51 SPRING EDITION l 2021

Immigrant Visa (EB-2C NIW)

Navigating Matter of Dhanasar (National Interest Waivers, EB-2C)

By Felipe Alexandre, Esq.

T

his article will explore the current adjudications trend of the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) regarding requests for waivers of the Labor Certification process which the U.S. Department of Labor (DOL) mandates for most employers who wish to sponsor for foreign nationals for permanent residence.

It is crucial to note that NIW eligibility is limited only to those foreign nationals who qualify for inclusion in and file under the employment-based second preference (“EB2”) category, meaning that the petitioner must be “a member of the professions holding an advanced degree or an alien of exceptional ability in the sciences, arts, or business.” (See 8 C.F.R. § 204.5(k)(1)). The same regulation states that an advanced degree is a U.S. professional degree or higher

NYSDOT vacated by the AAO in Dhanasar In 2016 the USCIS Administrative Appeals Office (AAO) issued its decision in Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) reversing the denial by the Texas Service Center (TSC) of a NIW request (as part of an EB-2 self-petition) from an aerospace engineer. The TSC Director’s denial was based on the long-accepted reasoning of the NYSDOT decision.

Matter of Dhanasar was designated as precedential by the (then) Secretary of Homeland Security Jeh Johnson, and it vacated the previously existing precedential AAO decision in “NYSDOT”. The AAO acknowledged that the national interest waiver criteria as set out in the NYSDOT decision had led to unduly restrictive interpretations of the regulations and the statute by USCIS and “unnecessarily narrowe[d]…the Secretary’s broad discretionary authority to grant a waiver when he “deems it to be in the national interest”; the NYSDOT criteria were (in the words of the AAO) “ripe for revision”.

02

National Interest Waiver and the EB-2 Category

but a baccalaureate degree along with five years of progressive experience in the field would also suffice. At least one AAO decision has confirmed that the AAO will examine the nature of the work experience to determine if it was indeed progressive rather than static; see In Re 10205290, AAO (Non-Precedent) Decision, March 25th, 2021.

ILT MAGAZINE l ISSUE NO.

National Interest Waivers (NIW) were extremely difficult to obtain in the years after the AAO handed down its precedential decision in Matter of NY State Dept. of Transportation, 22 I&N Dec 215 (1998) (“NYSDOT”) because of the AAO’s inflexible interpretation of the relevant regulations (8 C.F.R. § 204.5(k)). However, the framework for adjudicating NIW requests has changed significantly (and is now more favorable to Felipe Alexandre petitioners) following the publication of Felipe@AlexandreLaw.com the AAO’s decision in Matter of Dhanasar, 26 I&N Dec 884 (AAO 2016). Knowing how to navigate Dhanasar’s requirements could mean the difference between approval and a frustrated client.

52 IMMIGRATION LAWYERS TOOLBOX

Immigrant Visa (EB-2C NIW) The AAO’s stated goal in Dhanasar was to simplify the criteria for the grant of a NIW and to create “…a new framework for adjudicating national interest waiver petitions” (Id. at 888). Once it has been established that the alien meets the minimum threshold for consideration under the EB-2 category as either a member of the professions holding an advanced degree or its equivalent or as a person of exceptional ability in the sciences, arts, or business, USCIS may grant the waiver if the alien can show: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is wellpositioned to advance the proposed endeavor; and (3) that, on balance it would be beneficial to the United States to waive the requirements of a job offer and thus of labor certification.

ILT MAGAZINE l ISSUE NO.

02

Significantly, the AAO pointed out that its decisions and those of USCIS adjudicators in the years following NYSDOT had unduly emphasized the geographical aspect to national interest, when such a literal interpretation was not necessarily required by the law: “Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance…we seek to avoid overemphasis on the geographic breadth of the endeavor” (Id. at 889-90).

In addition, the AAO stated that whether or not the endeavor would provide a benefit to the United States “…does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field”, which NYSDOT had seemed to suggest to the detriment of many exceptional applicants. Very few individuals can actually prove that their absence from the United States will harm the national interest. However, many more are able to prove that their presence would be a benefit to our society. Huge difference!

Finally, the AAO reiterated that a national interest waiver may be appropriate where a Labor Cert would either be “impractical” (for example in a field in which the alien’s “…unique knowledge and skills are not easily articulated” on a Labor Cert) or where “…the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.” (Id. at 89091).

Dhanasar’s three-part test Once the applicant establishes that he/she is either a) a member of the professions holding an advanced degree (or its equivalent), or b) has demonstrated exceptional ability in the sciences, arts, or business by satisfying three of the seven criteria laid out in 8 CFR § 204.5(k) (3)(ii) and demonstrating that they possess a “degree of expertise significantly above that ordinarily encountered in the sciences, arts, and business”, they have then

earned the right to a showdown with the Three Dhanasar prongs, which are: 1. Substantial Merit National Importance

and

In Matter of R-F-M, (A.A.O.) March 23rd, 2017, the AAO stated that in determining whether a foreign national has met the “substantial merit” prong of the Dhanasar test “…merit may be demonstrated in a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.”

(Id. at 2, emphasis added) In that decision, the A.A.O. accepted that a teacher who sought to bring STEM techniques and knowledge to high school students in the inner city would be performing work of substantial merit, as the work “provides valuable educational benefits to his students”. However, since his work was limited to the Chicago school district there was no evidence of any benefit to students or schools in the rest of the country.

This was a very similar reasoning that the Dhanasar panel had used.

53 SPRING EDITION l 2021

Immigrant Visa (EB-2C NIW) Clearly the lesson from these cases is that a petitioner must be prepared to fully document her qualifications and evidence from peers and organizations in her field who attest to the importance and utility of her work for the national interest.

For example, the AAO has found that medical research may qualify a petitioner for a NIW where evidence of the “potential prospective impact” (and therefore

Similarly, in Matter of E-A-A, AAO December 27th, 2016 the necessary “potential prospective impact” was obvious to the AAO where the petitioner (a clinical cancer researcher) submitted voluminous evidence including “...expert letters from professors working in the field of cancer staging, along with members of the [redacted] discussing how clinicians and researchers rely upon comprehensive evidence-based anatomic staging data as the critical factor to understanding cancer and treating patients”. It is thus crucial that advocates argue that the Petitioner’s clinical experience, while valuable and indispensable, is not the bulk of the contribution that they will be making here in the United States since such clinical work is strictly limited to the patients in the hospital they serve.

Academic research, writing blogs, speaking in medical seminars, etc., can make the difference in these types of cases.

• •

• • • •

•

A degree or diploma relating to the area of exceptional ability Letters from previous employers demonstrating ten years of full time experience A license to practice the profession High salary Membership in professional associations Evidence of recognition for achievements and significant contributions to the field Other comparable evidence to establish eligibility

02

Similarly, in Matter of P-P-M (AAO March 27th, 2019) a radiologist’s stated goal of carrying out research in the field of diagnostic radiology did not warrant a NIW grant, since the AAO noted that the majority of her time would be spent on clinical duties in a hospital setting, not on research, and that there was no evidence that her teaching would impact the U.S. healthcare industry, rather than merely the patients and trainees she personally interacted within the course of her clinical duties. It is thus imperative to extract skills and initiatives from your clients that can be construed to have an impact that travels beyond their organization, employer, clients, students, etc.

national importance) is convincing; see In Re: 8610928, AAO December 12th, 2020 where an orthopedic surgery research fellow submitted “...documentation of his ongoing research and its publication which indicates that the benefit of his proposed work has broader implications, as the results are disseminated to other experts in his field through medical journals and conferences.”

ILT MAGAZINE l ISSUE NO.

While Dhanasar acknowledged that academic research on aerospace propulsion systems and the broad impact this research would have in the industry was significant and far reaching enough to constitute National Importance, it also held that Mr. Dhanasar’s similar teaching endeavor failed to satisfy the National Importance prong since its benefits would be limited to the students being taught by Mr. Dhanasar and nothing in the record showed that the benefits would be felt by others outside the classroom.

The NIW regulations are not limited to those who rise to the top of their academic fields, and the post Dhanasar AAO should be amenable to the national importance of those not in academia such as entrepreneurs and those who create employment. Like many athletes and artists who apply for a National Interest Waiver, many successful entrepreneurs do not possess an advanced degree but are able to prove their exceptional ability under 8 CFR § 204.5(k)(3) (ii) by meeting three of the seven statutory criteria. Briefly, these seven criteria are:

54

Immigrant Visa (EB-2C NIW)

IMMIGRATION LAWYERS TOOLBOX

The AAO has stated that “[e]vidence that the endeavor has the potential to create a significant economic impact may be favorable”, but has not defined “significant”. This writer believes that those who believe that their endeavor would create jobs should be prepared to show that the number of projected new jobs is comparable to, or greater than what a similar enterprise in the area would create.

supporting U.S. veterans causes and show the importance of developing and maintaining effective programs that meet their needs.” While the Petitioner submitted a business plan in that case, there was no discussion regarding the economic benefits of the venture since the focus remained on the social impact and significant public interest in supporting our veterans. Use this argument in support of your client’s contributions in helping us battle COVID-19 which is certainly a “significant public interest” right now.

ILT MAGAZINE l ISSUE NO.

02

Practitioners representing entrepreneurs should be prepared to argue, using key language from Dhanasar, that ‘significant potential to employ U.S. workers’ is not the same as a ‘potential to employ a significant number of U.S. workers,”’ and that “[e]vidence that the endeavor has the potential to create a significant economic impact may be favorable but is not required, as an endeavor’s merit may be established without immediate or quantifiable economic impact.”

This argument can be successfully made with a detailed business plan clearly showing projected direct and indirect employment, as well as other projected economic benefits to the region of the proposed endeavor. It is also important to use language from Dhanasar which directly acknowledge that it might be impractical for self-employed petitioners to apply for and receive a Labor Certification because competitors are not likely to want to hire those who might undercut their position in their market.

2. “Well-positioned” advance the endeavor In addition, as the U.S. recovers from the economic devastation of the COVID-19 pandemic it is reasonable to assume that the AAO would expand its interpretation of “potential prospective impact” for petitioners who seek NIWs for projects which would benefit Americans in their recovery. As of the date of this writing, the author has not found any AAO opinion which cites a COVID 19 argument.

Given the processing times of these cases as well as the length of time it takes the AAO to adjudicate an appeal, it is very likely that they have not adjudicated cases filed post-COVID. Focusing on how your client can help our society battle the effects of COVID-19 is certainly a worthwhile argument and one with significantly high public interest.

Thus, it is important to remember that the more significant the social impact, the more USCIS might be willing to waive the requirement of proving substantial economic benefits.

For example, it is clear from the decision in Matter of E-C-H (AAO December 27th, 2016) that societal benefit is an important consideration for the AAO when it held that the evidence submitted by the petitioner in support of his “wounded warrior” project showed “...significant public interest in

to

NYSDOT required a showing that it was more likely than not that the endeavor would succeed, quite a high burden for a new enterprise. Dhansaar reformulated this criterion to require only a showing that the petitioner is “wellpositioned” to carry it out. At the risk of stating the obvious, a NIW petitioner must be prepared to show evidence that her qualifications, education, or experience are of such a level as to allow her to potentially make the project a success. In E-C-H- the AAO pointed to “...the significance of the Petitioner’s past projects in the field is corroborated by documentation of peer, business, military, philanthropic. and government praise for his work.

In addition, he has submitted a thorough business plan offering

55 SPRING EDITION l 2021

3. Beneficial to the United States Essentially this prong of the Dhanasar test weighs the potential impact and effects of the endeavor to the country, and compares it to the inherent benefit to the economy of the Labor Certification requirement.

The AAO considers such factors as “a past record of success”, the potential for job creation, and the difficulty of obtaining a Labor Cert for a petitioner whose skills may be too specialized to pass the DOL’s certification process.

Conclusion A NIW grant essentially allows a petitioner to bypass the often arduous and expensive process of obtaining a Labor Certification.

Naturally, the standard is high and USCIS is exacting in its requirements. However, Dhanasar has considerably expanded the field of those who may qualify, and this writer believes through experience that the AAO is open to creative arguments in support of novel endeavors. Do not automatically disqualify a case simply because the client is not in a profession normally associated with exceptional or extraordinary ability, such as doctors and researchers. Instead, focus on their track record and ask yourself if duplicating that track record here in the U.S. would be considered exceptional and would have a broad impact in our society.

If the answer is yes, your client just might have a shot if you’re willing to be creative and think outside the box.

Felipe Alexandre is a passionate immigration attorney and owner of Alexandre Law Firm and AG Immigration with offices in California, Nevada, New York, and Florida. His experienced team of attorneys and legal assistants have assisted clients from all over the world with virtually every category of immigration petition and legal matter.

From persecuted asylees to wealthy entrepreneurs, clients caught up in deportation proceedings, those seeking family unification through immigration petitions, and those seeking to enter our country through their exceptional abilities and skills, his team has helped people from all walks of life achieve the American Dream and reside lawfully in the United States.

Felipe loves representing clients from all over the world and learning about their cultures. He has used his language skills to personally communicate with clients who speak English, Portuguese, Spanish, French, Haitian Creole, and Mandarin Chinese.

02

In E-A-A the AAO was convinced that the petitioner was “wellpositioned” to advance the project by evidence of his “notable experience on high-profile projects in this area and his past success in performing influential original research”.

About the Author

ILT MAGAZINE l ISSUE NO.

detailed information about the nature of the services he intends to provide, and the credibility of the plan is supported by evidence of multiple communications from potential clients and collaborators.”

The importance and utility of communications with potential clients and collaborators cannot be understated here. This can be in the form of emails, job offers, letters of intent, etc.

Immigrant Visa (EB-2C NIW)

56

I-9 Compliance

IMMIGRATION LAWYERS TOOLBOX

Basics of I-9 Compliance Hudaidah Bhimdi, Esq.

T

he Immigration Reform and Control Act (IRCA) of 1986 requires employers to use the Form I-9 to verify the identity and work eligibility of all employees hired after November 6, 1986. Employers are required to properly complete the Form I-9 every time they hire an employee (citizen or non-citizen) to perform labor or services in return for wages or other remuneration.

Federal immigration law forbids three things: 1. An employer knowingly hiring an unauthorized alien;

Hudaidah Bhimdi, Esq.

Hudaidah.Bhimdi@BhimdiGlobal.com

2. An employer continuing to employ a person if the employer becomes aware that he or she is, or has become, unauthorized; and 3. An employer hiring any individual without complying with the employment verification process.

When must the Form I-9 be completed?

ILT MAGAZINE l ISSUE NO.

02

The process for Form I-9 must begin on the day an employee begins work or beforehand.

The employee must complete Section 1 of the Form I-9 on the first day of employment and must provide the supporting documents noted on the “Lists of Acceptable Documents” within 3 business days of the first day of employment (Thursday rule – first day on Monday, Section 2 completed by Thursday).

What are the Employer’s obligations with Form I-9?

1. Have employees fully and properly complete Section 1 of the Form I-9 by the first day of employment.

The employee may present either a single document establishing both employment authorization and identity (a “List A” document) or two documents--one establishing employment authorization (a “List C” document) and one establishing identity (a “List B” document).

2. Review the identity documentation to ensure that they appear genuine and apply to the employee presenting them. The employer may not specify which document(s) an individual may present but may request additional documents or refuse the offered documents if they do not appear genuine and/or do not meet regulatory requirements.

3. Complete Section 2, sign, and date the employer certification within 3 business days of the employee’s first day of employment. The employer attests, under penalty of perjury, that it has examined the employee’s documentation and has verified the individual’s ability to work in the United States. The person who signs this section must be the person who examined the original documents in the presence of the employee.

4. Retain the Form I-9 for the later of three years after the employee’s hire date or one year after the employee’s termination date. Form I-9s should be kept apart from other personnel files.

57 SPRING EDITION l 2021

What Offenses Can Employers Be Found Liable For? Employers face penalties for IRCA violations that can be imposed for knowingly hiring unauthorized employees as well as for committing paperwork violations even if all employees are authorized to work.

Civil Penalties These “paperwork” civil fines for failure to comply with Form I-9 requirements, such as failing to complete all required fields or listing items in an incorrect field are effective for penalties assessed after June 17, 2020 where the associated violation occurred after November 2, 2015.

Unlawful Employment of Unauthorized Workers: • First offense fine is $583 – $4,667 • Second offense fine is $4,667 – $11,665 • Subsequent offenses fine is $6,999 – $23,331

Common I-9 Mistakes • • • • • •

Criminal Penalties • Employers can be criminally sanctioned for IRCA violations if they engage in a practice or pattern of hiring or continuing to employ unauthorized employees.

The employer may be fined up to $3,000 for each unauthorized alien, imprisoned for up to six months, or both.

Best Practices for I-9 Compliance • •

•

• •

• •

Establish an immigration compliance policy regarding Form I-9.

Conduct an internal I-9 audit of the files to see if any violations requiring correction.

Provide regular training programs regarding I-9 compliance rules for human resource professionals.

Create uniform company policies regarding Form I-9.

Create a Re-verification tickler system to make certain Forms I-9 are checked in a well-timed manner.

Form I-9 recordkeeping process should be centralized.

Separate Forms I-9 from personnel records.

•

•

Employee does not sign/ date in Section 1.

Employee does not complete Section 1 on the first day of employment.

Employee does not indicate citizenship status.

Employer does not properly or completely enter documents in Section 2.

Employer requests certain documents.

Employer does not complete Section 2 by 3rd day of work.

Employer does not enter date of hire.

Employer representative does not sign, date and print name in Certification section.

Improper retention.

What to expect in an ICE I-9 audit?

ICE will provide the Notice of Inspection (NOI) compelling production of all Forms I-9 in at least 3 business days. Notice will seek the records for: • • • •

All supporting documentation Payroll records A list of current employees Articles of incorporation and business licenses

02

6. Make the Form I-9 available for inspection if requested.

Substantive/Uncorrected Technical (Paperwork) Violation Fines: • Minimum fine per individual of $234 • Maximum fine per individual of $2,332

ILT MAGAZINE l ISSUE NO.

5. Re-verify employment authorization for employees presenting a time-limited Employment Authorization (EAD) or other type of time-limited document.

The employer must reverify such authorization on or before the expiration date of the original document. Re-verification is also required if the employee’s basis for work authorization has changed or if the employee is re-hired within three years of the original date on the Form I-9.

I-9 Compliance

58 IMMIGRATION LAWYERS TOOLBOX

I-9 Compliance How do you respond to a Notice of Intent to Fine (NIF)?

ICE will review all Forms I-9 for technical and substantive violations and will verify if all employees are authorized to work in the US by cross referencing SSNs, A-numbers, etc. ICE may contact the employer prior to serving the NOI by phone to set up the timing of the inspection.

ICE may provide the employer with an extension for some of the information that is needed (payroll records).

At conclusion of the audit, ICE provides one or more of the following: 1. Notice of Inspection Results (i.e. “Compliance Letter”) 2. Notice of Suspect Documents (alien numbers do not match government records) 3. Notice of Discrepancies (SSNs do not match government records) 4. Notice of Technical or Procedural Failures

ILT MAGAZINE l ISSUE NO.

02

Based on employer’s responses, ICE then issues one of the following: 1. Warning Notice 2. Notice of Intent to Fine (NIF): may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.

The employer can either negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF.

1. Retain copies of all correspondence and documents provided to ICE since being served with the NOI. If possible, document all discussions with the ICE agents during the process.

2. Request an OCAHO hearing within 30 days of being served the NIF. Requesting OCAHO provides you with the possibility of negotiating with ICE. You are not obligated to proceed an OCAHO hearing and if circumstances warrant, you can withdraw.

3. Provide legal brief especially if there are multiple counts and/ or employees involved. A legal brief will focus on the specific issues and provide the Office of Chief Counsel (OCC) with an opportunity to agree or disagree with arguments.

4. Be precise and provide each named count and each employee methodically.

If you were provided with an audit spreadsheet, analyze the audit spreadsheet and for each employee and count, determine if you want to agree with ICE’s allegation or deny the allegation. In order to show good faith, if ICE is correct on a specific issue, agree to that point and focus on other points that are not so clear.

5. Take into Consideration legal rebuttals when reviewing each count and employee on the audit spreadsheet: •

Was Form I-9 Required?

Form I-9 is not required for: an independent contractor; an employee of the foreign company only visiting the US; or an employee hired before November 6, 1986.

•

Is the request outside the retention period? ICE can make such a request, based on statute of limitations, ICE’s public stance has been to focus on the 3/1 rule.

Unrepresented employers turn over all the I-9 forms in their possession, if asked, when in fact many of those I-9 forms could have legally been purged.

•

Is ICE charging the client under a correct count? Is it really failure to prepare or failure to present?

Knowingly hiring or continuing to employ?

Failure to complete forms correctly?

•

What type of error is it? Is your client being charged with only substantive errors or uncorrected technical errors.

59 SPRING EDITION l 2021

I-9 Compliance 7. Negotiate with ICE and make a counteroffer. Provide ICE with a reasonable response time before following up on your counteroffer. At the end, if an agreement if not reached and your client is willing, you can always go to OCAHO.

•

Create, or engage counsel to create, an I-9 compliance handbook and training materials, with annual updates on: • How to manage the completion of the Form I-9 • How to detect fraudulent use of documents in the Form I-9 process • How to use E-Verify (if signing up is a viable option, after discussing with Counsel)

•

Have a plan to manage and contain an ICE visit and ensure that the plan is communicated to the first employees that agents are likely to meet (ex: receptionists) and the responsible party at each worksite.

•

Make sure employees know their rights.

How and employer can protect themselves before ICE shows up?

6. Keep in mind the Five-Factor Test.

The fines can be adjusted up or down 5 percent for each of five factors: 1. business size, 2. good faith, 3. seriousness, 4. employment of unauthorized aliens, and 5. prior history with ICE.

•

Engage counsel to perform an audit of Form I-9 and Company policies and procedures for completing the I-9 process.

These are mitigating factors that ICE considers when assessing civil fines (can increase or decrease the fines by up to 25%).

About the Author STEM OPT, STEM extensions, and change of status from F-1 to J-1, H-1B, and other non-immigrant visa categories.

Immigration compliance (I-9) is also critical for employers. In this context, Hudaidah represents companies facing government investigations or audits and she works proactively with businesses to develop immigration and compliance policies and conduct internal assessments.

02

resident applications, Hudaidah guides clients on a full range of business visas including H-1B professional, E-1 and E-2 investors, L-1 intracompany transferees, O-1 artists, EB-1 executives, EB-2 advanced degree works or professionals, and other employees going through the labor certification process. Hudaidah also helps many international students transition to the workforce through advising on issues such as F-1 reinstatement,

ILT MAGAZINE l ISSUE NO.

Hudaidah Bhimdi is a seasoned immigration practitioner focusing on business immigration and I-9 compliance for US and Global corporations. She also handles affirmative immigration cases, such as family and naturalization.

Hudaidah advises businesses and professionals with immigration strategies and represents them before U.S. government agencies within the U.S. and abroad.

Whether the cases involve nonimmigrant visas or permanent

61 SPRING EDITION l 2021

Family-Based (Interview)

Preparing for your First Marriage-Based Adjustment Interview

you stating that she just received her marriage-based Adjustment of Status (AOS) interview notice in the mail and wants to meet as soon as possible to prepare!

Alen Takhsh, Esq. Alen@TakhshLaw.com

Your client has every reason to be both jubilant and anxious. The AOS interview is usually the culmination of eight to ten months of diligent work and patience and often the only milestone standing between your client and her legal permanent residence in the United States.

The proper adjustment of status forms were duly filed and receipted, the client’s biometrics have been taken (or at least an acknowledgment received stating that her previously obtained biometrics will be used), her combo employment authorization and advance parole document is inhand and, now, the moment of truth. There are several important components to the AOS interview to bear in mind, and so let us explore them together.

First, your client needs to be documentarily prepared for the interview. There are two sub-categories here: civil documents and bona fides. Civil documents generally refer to passports, birth certificates, marriage certificates, judgments for dissolution of any prior marriage(s), and certified dispositions of criminal infractions. Your client will have submitted a copy of these to U.S. Citizenship and Immigration Services (USCIS), but the officer will most certainly want to see the originals for verification purposes.

Bona fides, on the other hand, refer to any evidence lending credence to the “realness” of the relationship in question. At the time of the filing of the case, your client submitted documents evidencing cohabitation and comingling of funds with her U.S. citizen spouse, including but not limited to: joint lease; joint checking and/or savings account; joint debit and/or credit cards; joint health, dental and life insurance (showing the other spouse as the beneficiary); joint automobile insurance; joint phone, Internet and/or utility bills; photographs attesting to the loving and ongoing relationship; and/or affidavits from friends and family having borne witness to the union and its continued evolution.

It is just as imperative that your client supplement the record with any evidence obtained during the pendency of the case, namely from the time of the submission of the case until the then-present time. Proving the ongoing nature of the relationship is an integral, if not the most important, aspect

ILT MAGAZINE l ISSUE NO.

An excited (and nervous) client emails

02

By Alen Takhsh, Esq.

62 IMMIGRATION LAWYERS TOOLBOX

Family-Based (Interview)

ILT MAGAZINE l ISSUE NO.

02

of the AOS interview. In practical terms, if, for instance, your client submitted her case in March 2021 and included joint bank statements from January and February of 2021 (presuming the AOS interview will be sometime in January 2022), then she would be well advised to supplement the record by providing six months’ worth of bank statements from June to December 2021. Is there a new lease? Include it. How about any newly acquired joint credit cards?

Gym membership? Any photos from a sociallydistanced, postCOVID vacation to Hawaii? You get the picture.

As part of her AOS journey, your client will also need to show that she is not inadmissible for any health-related reasons. Form I-693, Report of Medical Examination and Vaccination Record, must be submitted along with the initial forms or at the time of the AOS interview. Should she choose the latter route, USCIS will send your client an “I-693 Deficiency Notice” on yellow paper. Make sure to give your client prior notice of its arrival, however, to avoid a frantic email / text / call from her about there being something wrong with the case. Bear in mind that you only have 60 days from the date of the doctor’s signature on the I-693 to submit the medical report to USCIS (so do not have your client complete it too early!), but that it is valid for two years once it has been submitted to USCIS. Practice pointer: advise your client to have it completed upon receiving her interview notice in the mail.

Just as importantly though, your client needs to be both emotionally and psychologically prepared for the interview. Whether you realize it or not, you are not simply her attorney; you are also her psychologist. Appreciating this facet of the AOS interview is critical to a successful outcome.

Sometimes clients are from certain parts of the world where authority and government figures are synonymous with agents of fear. Your client needs to be told, in no uncertain terms, that there is nothing to fear because there is literally nothing to fear! Officers are themselves often fathers, mothers, brothers, and sisters, and they have a simple task at hand: engage in a conversation with the petitioner and the beneficiary to determine the veracity of the claimed relationship.

Your client and her spouse cannot “study” for this interview, because you either know your life or you do not. That being said, it is important to review the contents of forms I-130 and I-485 with the petitioner and the beneficiary to make sure the couple is clear on their biographic information, physical addresses, employment history, etc. Special attention should be given to the Yes/No questions on Form I-485 pertaining to general eligibility and inadmissibility grounds.

It is also imperative to advise your client not to allow the officer’s energy to dictate the course of the interview. What do we mean by that? Clients often become flustered when their “Good morning!” is met with silence or their smile greeted with a stoic face and, believe it or

not, people, places, and dates soon become a blur to them. It does not have to be like that. Your client needs to be reminded that, irrespective of the interviewing officer’s demeanor and mannerism, the law is the law, and the facts are the facts, and that by remaining true to themselves, they will have already won half the battle. But, how exactly do you do that? Dressed in business casual attire, your client should speak both calmly and confidently, smile appropriately, and treat the officer with respect, while not going overboard with “Yes, Sirs!” and “Yes, Ma’ams!” Irrespective of where you will be sitting in relation to your client, whether next to her (socially distanced) or just behind her, your mere presence in the room will go a long way in reassuring and calming her nerves.

The questions which your client will be asked will, for the most part, be relatively rudimentary in nature, i.e., how did you meet, where did you meet, have you met his parents, how did he propose, what was the last movie you watched together, what is his work schedule, etc. At the present time, 95% of the instant writer’s marriage-based AOS

63 SPRING EDITION l 2021

interviews last anywhere from 30 to 45 minutes. If the USCIS officer has any doubts regarding the bona fide nature of the claimed relationship, the case may be referred to the Marriage Fraud Unit for further investigation which, in and of itself, is not the proverbial kiss of death. It simply means that the government believes certain aspects of the case require further scrutiny, often resulting in a second interview being scheduled. It is important to note, however, that you, as the attorney of record, have the right to challenge an interviewing officer

Family-Based (Interview) asking inappropriately intrusive questions or treating your client in a hostile manner. You may do so directly or by requesting to speak with a supervisor. You are not simply at the interview to take notes—remember to zealously (and respectfully) advocate! Make certain to also get a post-interview notice from the officer indicating the outcome of the interview as proof that your client did in fact present herself inperson that day— crazier things have happened.

Practice pointer: think of every stage of the AOS process as building

the record for a possible appeal, i.e., prepare for the worst; and hope for the best.

In closing, remember this: most advocates know the law and most should know their clients’ cases like the back of their hands, but the way to set yourself apart from the pack is to help your clients become calmer, more confident versions of themselves—even if just for those 30 to 45 minutes. In doing so, you will have helped them attain more than just their legal permanent residence in the United States.

peers for his outstanding work and commitment to the spirit of the legal profession, earning him the Super Lawyers designation.

Alen earned his Bachelor of Arts in Economics from The University of Chicago and his Juris Doctor from UIC John Marshall Law School.

He also serves on the boards of Heartland Alliance and the National Immigrant Justice Center, two nonprofits dedicated to providing housing, healthcare, jobs, justice, and immigration services to those in need.

ILT MAGAZINE l ISSUE NO.

Alen Takhsh is the founder and principal attorney at Takhsh Law, P.C. in Evanston, IL. As a firstgeneration immigrant, Alen’s practice is devoted to his clients’ aspirations of legally living, working, and investing in the U.S. He has been recognized by his

02

About the Author

64 IMMIGRATION LAWYERS TOOLBOX

Court

Cancellation of Removal (Part II): Criminal Convictions

By Claribel P. Madueña, Esq.

Welcome to the second article in a four-part

series regarding Cancellation of Removal.

Immigration & Nationality Act (INA) §240A. To recap, Cancellation of Removal is a form of immigration relief available to certain foreign nationals that the Department of Homeland Security is seeking to remove from the United States. This remedy is sought Claribel P. Madueña, Esq. before an Immigration Judge in court. Lawful Claribel@ClaribelLaw.com Permanent Residents (LPR) also known as Green Card holders) and non-residents can both apply for Cancellation of Removal.

For an LPR to qualify for Cancellation of Removal, they must establish: 1) Lawful permanent residency for at least 5 years; 2) Continuous physical presence in the United States for at least 7 years after having been lawfully admitted; and 3) No aggravated felony convictions.

ILT MAGAZINE l ISSUE NO.

02

The elements for a non-permanent resident applicant are more difficult to meet and require: 1) Continuous physical presence in the U.S. for at least 10 years; 2) Good moral character for 10 years preceding the application; 3) No convictions under INA sections 212(a)(2), 237(a)(2), or 237(a)(3); and

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

This article will focus on showing that an applicant’s criminal record does not disqualify them from relief.

Certain Criminal Convictions for Legal Permanent Residents Lead to Removal Proceedings An LPR may be placed in removal proceedings for different reasons (fraud or residency abandonment), but a common reason is because the government alleges that they have been convicted of a crime that makes them deportable. INA § 237. Three forms of immigration relief are available to waive criminal record issues. One is Cancellation of Removal (“LPR cancellation”) under INA § 240A(a), 8 USC § 1229b(a). Unlike defenses like the 212(h) waiver, LPR cancellation may only be granted once. In other words, if a legal permanent resident finds themselves in removal proceedings two (2) or more times, they only have one shot at using LPR cancellation.

Once relief has been granted to waive certain criminal grounds, the non-citizen cannot be charged with being deportable or inadmissible based solely on the conviction or conduct that initially put them in removal proceedings. However, a conviction that occurred after becoming a legal permanent

65 SPRING EDITION l 2021

Court

resident and that was waived by a grant of some relief still can be joined to a new, subsequent conviction to create new immigration penalties such as being deportable for having two crime involving moral turpitude (CIMT) convictions.

It is important to note that there is an exception for certain crimes involving moral turpitude (CIMT) known as the “Petty Offense Exception.” The exception applies if: (a) the person has committed only one CIMT,

When the Clock Stops

A legal permanent resident may be deportable for being convicted of the following: crimes of moral turpitude within five years after the date of admission and is convicted of a crime for which a sentence of one year of longer may be imposed; two or more crimes involving, moral turpitude not arising out of a single scheme of criminal conduct; controlled substance conviction other than a single offense involving possession for one’s own use of 30 grams or less of marijuana; certain firearm convictions; failure to register as a sex offender; crimes of domestic violence, stalking, and child abuse; and aggravated felony convictions. See INA §237(a)(2).

Criminal Bars for Non-Legal Permanent Resident Cancellation (“Non-LPR Cancellation”) An applicant that applies for non-LPR cancellation cannot be convicted of any offense listed in INA sections 212(a)(2), 237(a)(2), or 237(a)(3). If the person does have a conviction listed in those sections, they do not qualify for non-LPR cancellation. Disqualifying convictions include but are not limited to: • • •

• • • • • • •

•

Crime involving moral turpitude (see below for exception); Offense relating to controlled substances; Two or more offenses that brought a total sentence imposed of five years or more; Engaging in the business of being a prostitute; Aggravated felony; High speed flight from an immigration checkpoint; Firearms offense; Crime of domestic violence or stalking; Crime of child abuse, neglect or abandonment; Violation of certain portions of a domestic violence protection order (only for convictions on or after September 30, 1996); and Failure to register as a sex offender under a federal law.

w(c) the offense carries a maximum possible sentence of less than one year.

This exception applies both to inadmissibility and deportability, meaning an applicant filing for nonLPR cancellation and an applicant filing for LPR cancellation may use it to their advantage.

Strategy and Analysis The first thing that you must do is to obtain your client’s full criminal record. Often, the client will not have the necessary documents. I I usually begin my investigation in the following manner: 1. Review the Notice to Appear (NTA) for alleged crimes and/or deportability grounds.

Sometimes, the government makes mistakes, and you may be able to terminate proceedings entirely.

For example, your client is charged with being deportable because they were convicted of a CIMT within five years of becoming an LPR, however, you realize the petty offense exception applies.

02

Deportable Crimes by LPRS

(b) a sentence of six months or less was imposed, and

ILT MAGAZINE l ISSUE NO.

Another important note regarding LPR cancellation is that certain criminal offenses will “stop the clock” from accruing the requisite continuous physical presence time needed to qualify for this relief. For example, if the admission date (as an LPR, tourist, border crossing cardholder, student, etc.) is in 2010 and in 2015 the person commits a certain offense for which they are convicted of in 2016, the clock stops on the date the person committed the offense in 2015. Not the date of the conviction. Therefore, the seven years of continuous presence has not been met and they cannot apply for LPR cancellation.

66 IMMIGRATION LAWYERS TOOLBOX

Court but to put it simply, you must know the exact disposition of each criminal case because you will compare that offense to the statute the government is using to either deport your client, or you will compare that offense to the INA to determine whether your client is eligible for cancellation of removal.

2. Review any other discovery that the government has made available.

ILT MAGAZINE l ISSUE NO.

02

Sometimes they provide the arrest record they have, known as the CLETS printout report. If the government is seeking to deport your LPR client, they must provide conviction documents to meet their burden of proof and substantiate the factual allegations and charge of removability in the NTA.

This analysis is known as the “Categorical Approach” and you must master it if you plan to represent clients with criminal records. It is perhaps the sharpest tool in your defense strategy arsenal. The Immigrant Legal Resource Center (ILRC) is an amazing resource and I recommend reading their practice advisories. In fact, I believe it is one of the best ways to begin your research.

his lesson!” but then I thought, “what happened to make him slip up?” So, after talking to Paul, I learned that three days before he was arrested, he found his 15-year-old daughter in bed with an 18-year-old boyfriend Paul knew nothing about. Paul called the police, but when they arrived, they did not arrest the older boyfriend.

The officers told Paul that his daughter consented, so there was no need to arrest him. They practically laughed in Paul’s face – he felt infuriated, humiliated, and dismissed. To blow-off steam, Paul and his wife went out to dinner and dancing that Saturday night. Paul was arrested on his way home, and subsequently placed in removal proceedings.

This example helps you in two ways: 1) it humanizes your client; 2) and provides important context for their behavior. This is not the same as excusing their behavior, but the additional information paints a fuller picture for the judge.

3. Instruct your client to do a live scan to obtain RAP sheet.

6.

Show rehabilitation and remorse.

I recommend running their fingerprints in any state they have had contact with law enforcement.

This is especially informative because many clients cannot remember arrest dates or offenses.

The arrest record will orient both you and your client so you can go on to the next step. Sometimes it may be wise to run your client’s fingerprints with the FBI as well.

In addition to obtaining conviction records, do not forget about the rehabilitative documents, such as: positive probation reports; proof of community service completion, fine payment, class attendance and completion, and counseling;

5. Talk to your client about each arrest.

4. Instruct your client to obtain certified criminal records from the court clerk’s office.

Once you have their record, go over it with them. Do not wait until you are preparing for your merits hearing to do this. Discussing the events leading up to the arrest will help you get a better understanding of your client and their lives, and how they came about getting in trouble in the first place. Moreover, it may help you rehabilitate your client.

Once you have the full record before, you may get into the nitty gritty of analyzing the statute of conviction and comparing it to the federal offense. An entire book can be written about this subject,

For example, I had a client, let us call him Paul, that had four driving under the influence convictions.

The third and fourth arrest were seven years apart. At first glance, I thought “wow, Paul never learned

67 SPRING EDITION l 2021

Court

character letters from co-workers, family, friends, and supervisors; training certificates; and school records. It is incumbent upon you to request this type of evidence from your client because it will help balance out the negative factors.

Make sure your client knows how many times they have been arrested, reasons for arrest, and outcome of the case. Practice direct and cross examinations and do not shy away from really pressing your client and reminding them about the message they need to get across (rehabilitation and remorse!). They will have to know what to expect in court and prepare accordingly.

About the Author Claribel P. Madueña is a BoardCertified Legal Specialist in Immigration & Nationality Law. She is a solo practitioner in the Bay Area with more than 10 years of experience representing immigrants and their families.

Her practice primarily focuses on family-based immigration and removal defense.

02

7. Practice, practice, practice.

ILT MAGAZINE l ISSUE NO.

When you are preparing your client for testimony, they must always show remorse and admit mistakes.

While I often talk about racism and racial profiling with my clients, I do not let them fall into that trap of avoiding accountability. Sometimes, you must acknowledge the fact that your client was likely targeted because of their skin color. This is the reality we live in and it will earn your client’s trust because they feel seen. However, you must always follow it up with your legal strategy.

You want to empower your clients while explaining what approach will be the most effective in court.

I explain to clients that legally speaking, if they have a conviction, then they have committed a crime and must accept that. The judge does not want excuses, she wants accountability.

68 IMMIGRATION LAWYERS TOOLBOX

Crimmigration

Post-Conviction Relief: When the Solution to Your Immigration Problems is in Criminal Court

By Sabrina Damast, Esq.

The intersection between immigration and criminal law is always complicated, and in many instances, seemingly nonsensical.

A simple drug possession misdemeanor can prevent a non-citizen from ever obtaining lawful permanent residency. A felony burglary, on the other hand, may

ILT MAGAZINE l ISSUE NO.

02

have no deportability or inadmissibility consequences. To make matters worse, the consequences of these convictions may vary from state to state — as different states define comparable crimes in differing ways — and from circuit to circuit — as each Sabrina Damast, Esq. appellate court construes the governing Sabrina@SabrinaDamast.com federal statutes differently. The full panoply of immigration consequences that can attach to a conviction — such as those associated with a crime involving moral turpitude, controlled substance violation, or aggravated felony — are myriad and beyond the scope of this article, which assumes that practitioners have identified the immigration consequences of their clients’ criminal histories, and are now seeking remedies for these consequences.

Sometimes, a waiver may exist to address the immigration consequences of a conviction.

Sections 209(c), 212(h), and 212(c) of the INA provide for certain criminal waivers, and lawful permanent residents may be able to mitigate the consequences of convictions through a grant of cancellation of removal for lawful permanent residents under section 240A(a) of the INA. At other times, however, a conviction may pose nonwaivable immigration consequences. When

a non-citizen finds himself convicted of an offense that poses a non-waivable ground of inadmissibility or deportability — or that would make obtaining a waiver extremely difficult due to the violent or dangerous nature of the offense — the solution may be found in criminal court through a postconviction relief motion. Post-conviction relief may come in the form of a motion to vacate a plea or sentence, a reduction of a felony to a misdemeanor, a gubernatorial or presidential pardon, and, occasionally, an expungement.

Motions to Vacate

“

A rehabilitative dismissal of a plea or reduction of a sentence will not be recognized by immigration authorities.

”

A motion to vacate a guilty plea or sentence

may eliminate the immigration consequences of a plea, but the motion must be premised on a legal, procedural, or constitutional error in the underlying criminal proceeding. A rehabilitative dismissal of a plea or reduction of a sentence will not be recognized by immigration authorities.

When a state court “vacates a conviction based on a defect in the underlying criminal proceedings, the respondent no longer has a ‘conviction’ within the meaning of section 101(a)(48)(A) [of the INA]. If, however, a court vacates a conviction for reasons

69 SPRING EDITION l 2021

Felony-to-Misdemeanor Reduction In certain states, some convictions can be classified as both felonies and misdemeanors. In such states, the reduction of a

Most commonly, this will assist Temporary Protected Status (TPS) or Deferred Action for Childhood Arrivals (DACA) eligible individuals.

Both TPS and DACA recipients are barred from retaining their status if they are convicted of felonies. See INA § 244a(c)(2)(B) (i); USCIS, “DACA Frequently Asked Questions,” Section I(A).

“

The petty offense exception only applies if the maximum sentence for an offense is no more than one year of incarceration, which is the most common maximum penalty for misdemeanor offenses.

”

A reduction may also assist a client with a single conviction for a crime involving moral turpitude who would like to take advantage of the petty offense exception found in section 212(a) (2)(A)(ii)(II) of the INA. The petty offense exception only applies if the maximum sentence for an offense is no more than one year of incarceration, which is the most common maximum penalty for misdemeanor offenses. Assuming the non-citizen was actually sentenced to no more than six months of incarceration, reducing a felony to a misdemeanor may be sufficient to obtain the benefit of the petty offense exception.

Pardon A full and unconditional pardon from a state governor or the president of the United States will eliminate some, but not all, immigration consequences of the conviction. Section 237(a)(2)(vi) of the INA states that the immigration consequences of sections 237(a)(2)

02

When evaluating the reason for the state court’s decision, the agency may “look to the law under which the [state court] issued its order and the terms of the order itself, as well as the reasons presented by the respondent in requesting that the court vacate the conviction.” Id. at 625. A similar standard applies to modifications of sentences. See Matter of Thomas and Thompson, 27 I&N Dec. 647 (A.G. 2019).

felony to a misdemeanor may provide beneficial immigration consequences.

ILT MAGAZINE l ISSUE NO.

unrelated to the merits of the underlying criminal proceedings, the respondent remains ‘convicted’ for immigration purposes.” Matter of Pickering, 23 I&N Dec. 621, 625 (BIA 2003), reversed on other grounds by Pickering v. Gonzales, 465 F.3d 263 (6th Cir. 2006).

Crimmigration

70 IMMIGRATION LAWYERS TOOLBOX

Crimmigration would eliminate the aggravate felony deportability, but would not impact the deportability and inadmissibility stemming from a controlled substance violation. Still, this may be useful, particularly for a lawful permanent resident, who may be able to seek cancellation of removal once the aggravated felony deportability grounds have been eliminated by the pardon.

Expungement

ILT MAGAZINE l ISSUE NO.

02

(i), (ii), (iii), and (iv) of the INA do not apply if the non-citizen receives an unconditional pardon for the offense. These sections correspond to the deportability grounds for crimes involving moral turpitude, aggravated felonies, and highspeed flight from an immigration checkpoint.

It is important to note that the pardon only wipes out these grounds of deportability. It does not impact any other deportability ground (such as the ground related to a controlled substance violation) or any grounds of inadmissibility.

This can have the paradoxical effect of eliminating the deportability grounds of a conviction, but still leaving the non-citizen subject to inadmissibility grounds for the same offense. A good example of this would be a conviction for the sale of drugs, which is usually an aggravated felony and controlled substance violation. The pardon

As mentioned above, rehabilitative dismissals (often called expungements) are generally not recognized by immigration authorities. One notable exception is that expungements eliminate the categorical criminal bars for DACA applicants and recipients. The Department of Homeland Security, as a matter of administrative policy, has determined that “[e] xpunged convictions . . . will not automatically disqualify” a non-citizen from obtaining or renewing DACA. See USCIS, “DACA Frequently Asked Questions,” Section V, Question 68. Instead, such convictions will be “assessed on a case-by-case basis.” Id. For example, practitioners have been able to get DACA approved and/ or renewed for clients convicted of misdemeanor driving under the influence offenses that are subsequently expunged, even though these offenses are considered significant misdemeanors that typically bar DACA approvals.

“

“…rehabilitative dismissals (often called expungements) are generally not recognized by immigration authorities.”

”

The other notable exception exists only within the Ninth Circuit and applies to first-time, simple possession of a controlled substance conviction entered before July 14, 2011. See NunezReyes v. Holder, 646 F.3d 684 (9th Cir. 2011). Specifically, a non-citizen convicted of a first-time simple possession offense, who is granted probation and subsequently completes probation without any violations, will not be considered to have sustained a conviction for immigration purposes. See LujanArmendariz v. INS, 222 F.3d 728 (9th Cir. 2000), overruled prospectively only by Nunez-Reyes, 646 F.3d at 686.

71 SPRING EDITION l 2021

State court practice is very different from immigration practice, and the standards for obtaining post-conviction relief will vary by state. It is important for immigration practitioners to either familiarize themselves with the state law governing postconviction motions or to work

Crimmigration closely with a post-conviction relief lawyer in the relevant state.

Successful post-conviction relief requires two sets of expertise: that of the immigration attorney — who identifies the immigration consequence of the conviction and helps post-conviction counsel identify an alternative resolution

in state court that avoids that consequence — and that of the postconviction attorney — who knows the state standards governing post-conviction motions and can negotiate with the prosecution to secure a better outcome in the criminal proceedings for the client.

including applications for asylum, permanent residence, NACARA, fraud waivers, and criminal waivers. As an attorney in private practice, she solidified these skills by representing clients threatened with deportation.

Sabrina is an active member of the American Immigration Lawyers Association and the Los Angeles County Bar Association. In her spare time, she enjoys singing, swing dancing, and musical theater, and

she is the leader of a local Girl Scout troop. Sabrina is a member of the New York and California Bars and is admitted to the Central District of California, the Southern District of California, the Northern District of California, the Eastern District of California, the Ninth Circuit Court of Appeals, and the United States Supreme Court. She frequently publishes articles, teaches CLEs, and gives presentations on immigration law.

ILT MAGAZINE l ISSUE NO.

Sabrina Damast practices in the areas of immigration and nationality law and post-conviction relief. Before opening her own law practice, Sabrina served as a judicial law clerk in the Los Angeles Immigration Court and worked as an immigration attorney in private practice. As a law clerk, she conducted research and wrote more than two hundred decisions for dozens of Immigration Judges.

She developed an expertise in all forms of deportation defense,

02

About the Author

72 IMMIGRATION LAWYERS TOOLBOX

U-Visas

U-VISAS FOR BEGINNERS

By Karina Velasquez, Esq.

Before the Victims of Trafficking and

Violence Protection Act (VTVPA) was enacted in 2000, many undocumented individuals were afraid to report crimes to the police due to fear of coming out of the shadows and risking deportation. The VTVPA created new visas for victims of certain crimes, allowing them to apply for U Nonimmigrant Status (U-Visa) along with other provisions. Back in 2000, Congress thought capping the newly created U-Visa at 10,000 annually would be sufficient. However, such a cap has created an absurd backlog that is threatening the intent of the law.

Aside from the current backlog, the U-Visa

Karina Velasquez, Esq. offers a lot of benefits. First, I cannot Karinavlaw@gmail.com emphasize enough the importance of

“

asking any potential client during their initial consultation if they have ever been a victim of a crime especially those in removal proceedings or facing permanent bars of inadmissibility. Subsequently, the U-Visa is an excellent defense of deportation and many times the only option available for those with permanent bars, because a complete U package must include form I-192 “Application for Advance Permission to Enter as a Non-Immigrant”, which is intended to waive many instances of inadmissibility such as previous violation of order of deportation, some criminal records, etc.

ILT MAGAZINE l ISSUE NO.

02

...make the job of the certifying officer easier by properly researching to whom to submit your request.

”

Since the U-Visa is for victims of crimes, the single most important document in the process is without a doubt, a bulletproof I-918 Supplement B U Non-Immigrant Status Certification (or Supp. B). This form must be signed by the police, district attorney, judge, or any official organization with the ability to investigate the crime including but not limited to child protection services depending on who has jurisdiction over the case. Usually, you will deal with the police department and they typically have a designated officer in charge of signing the Supp. B. That officer may be a sergeant or lieutenant in the SVU or victims service department.

My advice is to make the job of the certifying officer easier by properly researching to whom to submit your request. Do not forget to fully complete the Supp. B, include a copy of the police report, a self-stamped envelope, a simple cover letter in which you provide the best phone number (like your cellular phone) and email address for the officer to reach you for any follow-up, and if you have the E.R or other medical documents that show injuries caused by the incident to your client is advisable to include it too (do not send pages of jurisprudence and legal analysis of why your client is a victim that deserves a signed certification -unless you are resubmitting the form after a previous denial). Most likely the certifying officer has a full-time job as a cop and signing certifications is an extra duty without extra pay so be mindful and simpatico to the officers since they can help you in the long run to win your case.

73 SPRING EDITION l 2021

To properly bulletproof your Supp.

B, avoid selecting just one criminal activity in Part 3 especially if that option is “Felonious Assault” since is easy for USCIS to argue the criminal activity investigated in the police report is not among those specifically listed or not similar to crimes listed in the regulation. This is because most misdemeanors assaults will come short of the definition of a felonious one. I strongly advise to use the facts in the police report to find more than one qualifying criminal activity.

For example, try making a case for “False Imprisonment” since most penal codes define it as “the unlawful violation of the personal liberty of another”. Let’s say your victim was unable to move during the criminal activity, even for a brief period because two or more suspects were blocking the victim’s escape or a single suspect that blocked the victim’s ability to move.

I strongly recommend checking false imprisonment along with any other criminal activity especially if you only have a felonious assault.

By making a case of more than one qualifying criminal activity, a positive adjudication from USCIS is a likely outcome.

”

Another important part of Supp B is part 7, the description of injuries to the victim. Since the petitioner has the burden of proving “substantial physical or mental abuse as the result of having been a victim of qualifying criminal activity”, I always add Post-traumatic stress disorder along with any documented physical injuries because physical injuries tend to heal with time but not mental injuries. This fact has proven to be important considering the years-long wait for adjudication and the practice of USCIS to request further evidence years after the initial filing date.

Once the Supp. B is signed you have six months to submit your package to USCIS. In your cover letter lay down the 4 requirements in Title 8 Code of Federal Regulations section 214.14(b), why your client meets them, and explain why your client and beneficiaries, if any, are eligible for the waiver (I-192).

Include evidence of physical and mental injuries such as E.R. notes, medical letters, and always include a psychological evaluation from a licensed therapist with ample experience writing evaluations for immigration purposes. Pretty much the same therapist you would use for asylums or waivers of inadmissibility along with the declaration of your client about the incident and how being a victim has negatively affected their lives forever.

My advice for best practice management is to write in the client-attorney retainer a provision specific for U cases, spelling out that currently, the processing time is several years and clients must

understand that any development in their case will be immediately communicated with them. I add this clause because currently, USCIS is taking 4 to 5 years to process those applications and if your client calls you or texts you every two to three months asking the status of their case, you are talking of approximately 6 times each year that you have to repeat yourself. If you have more than 10 pending U cases, you are going to find yourself wasting a lot of time (energy) in reassuring your clients that the case is still pending. Such energy can be used to advocate expanding the current annual cap or expediting the issuing of employment authorization documents while the U-Visa is pending, just like pending asylum or pending adjustment of status cases.

About the Author Karina Velasquez is a licensed attorney in Venezuela and California. She has over 10 years of experience working in complex immigration law cases and her practice is located in San Francisco, CA. www.kvvlaw.com

02

I strongly advice to use the facts in the police report to find more than one qualifying criminal activity.

ILT MAGAZINE l ISSUE NO.

“

U-Visas

74

Asylum

IMMIGRATION LAWYERS TOOLBOX

The 5 In-Flux Asylum Changes You Must Revisit Before Stepping into Client Meetings in 2021

By Scott Andrew Fulks, Esq.

Professional competency requires that

immigration attorneys who assist asylum applicants stay abreast of a constant stream of changes. While even the most seasoned practitioners struggled to keep pace with the new regulations promulgated by the Trump administration, effective advocates must double down in 2021 to track the evolving state of asylum law during the early months Scott Andrew Fulks, Esq. of Biden’s presidency. This will include Scott@DeckertLawFirm.com revisiting the following five make-or-break issues before your next client meeting.

ILT MAGAZINE l ISSUE NO.

02

1. Work authorization and ASAP/CASA class action membership On April 29, 2019, President Trump issued a memorandum attempting to limit the eligibility for employment authorization for those seeking asylum. Previously, asylum applicants could apply for a work permit 180 days after submission of an asylum application. The final rule published on June 26, 2020, extended this wait time to 365 days and an additional rule removed a regulation requiring USCIS to adjudicate the application within 30 days of receipt.

On September 11, 2020, a federal judge in the U.S. District Court for the District of Maryland issued an injunction on behalf of two non-profit organizations and their corresponding members concerning the above rule. The upshot for practitioners

and clients was that both organizations, the Central American Solidarity Association of Maryland (CASA) and the Asylum Seeker Advocacy Project (ASAP), created seamless, electronic applications to provide membership for asylum seekers across the country. Through a few easy steps, asylees could submit CASA and ASAP membership cards with their I-765 applications to circumvent the final rule.

As any immigration attorney knows, one of the first questions posed by an asylee is, “When can I obtain a work permit?” The current injunction and the additional step of obtaining membership in one of these two non-profits is a crucial tool to bring forward an otherwise harsh wait for your client and their families.

2. Scheduling orders in lieu of master calendar hearings A memorandum entitled “Enhanced Case Flow Processing in Removal Proceedings” (December 1, 2020) modified the hearing process in immigration court. Whereas many administrative courts remain closed due to the COVID-19 pandemic, the Executive Office for Immigration Review (EOIR) created a method by which pleadings and applications for relief could be submitted to the court without attendance at master calendar hearings. An updated memorandum entitled

75 SPRING EDITION l 2021

Asylum 3. Additional mandatory bars to asylum On October 21, 2020, a joint EOIR and USCIS final rule established seven additional mandatory bars to asylum eligibility. The prior practice of discretionary review of prior convictions was substituted for mandatory ineligibility for those who have:

As clients desire to know whether their upcoming hearing will be postponed or they will need to attend in person, it will be crucial to determine how the immigration court with jurisdiction over the matter is handling current dockets.

• •

• • • •

Convictions for alien smuggling and illegal reentry; Convictions in support of criminal street gangs; Convictions for driving while intoxicated that cause serious bodily injury or death; Multiple convictions for driving while intoxicated; Felony convictions of any kind; Convictions for the use of false documents or receipt of public benefits; and Accusations of domestic violence.

Whereas the rule was to become effective on November 20, 2020, Judge Susan Illston in the Northern District of California enjoined the rule one day prior.

New client meetings in 2021 will require an assessment of whether any of the potential bars to eligibility are applicable. Though the rule remains enjoined, the client must be aware that future litigation could wreck an otherwise winnable asylum claim. Note especially that accusations alone—not convictions—of domestic violence are potentially problematic.

4. Filing fee increases for USCIS, EOIR, and BIA A substantial roadblock to procedural due process was set to impede immigrant’s rights to appeal when a final rule published by the Department of Justice dramatically increased filing fees. Among the more egregious fee hikes were appeals to the BIA from the IJ ($975 from $100); motions to reopen or reconsider before the BIA ($895); and appeals to the BIA from USCIS ($705 from $100), among several others. Most fees saw three-fold to nearly five-fold increases. Asylum applications were set to require a novel $50 filing fee.

A day before the rule was to take effect, Judge Mehta of the D.C. circuit enjoined most of the increases. The only fees which were permitted to become effective were the motion to reopen and reconsider before the OCIJ ($145) and the notorious appeal from an immigration practitioner complaint ($675).

Whether or not the filing fee increases are implemented will significantly hamper a client’s decision to file an appeal. Because appeal filings naturally fall in a shortened window of time, it is imperative to know if the client will be able to afford the motion.

02

In cases where an individual merits hearing has not been scheduled and a representative has filed an EOIR-28, immigration judges are encouraged to issue pre-hearing scheduling orders to establish a 30day deadline for a filing of written pleadings. If representatives and/or parties attend the master calendar hearing and are unprepared to take pleadings, a scheduling order will be set to provide written pleadings.

Once evidence is received by the court, the parties will have 20 days to file a response. If the court finds that removability has been established, a 60-day deadline will be set for the submission of applications for relief from removal.

The implementation of these memoranda across the nation’s immigration courts has been uneven, with some attorneys indicating that they have received scheduling orders for clients with upcoming master calendar hearings while many other courts remain closed due to the COVID-19 pandemic.

•

ILT MAGAZINE l ISSUE NO.

“Revised Case Flow Processing Before the Immigration Courts” (April 2, 2021) only slightly modified the announcement made during the Trump administration.

76 IMMIGRATION LAWYERS TOOLBOX

Asylum

5. Third Country Transit Ban A day before President Biden’s inauguration, a final rule making asylum applicants ineligible who transited through a third country without requesting asylum went into effect. On February 2, 2021, President Biden issued an Executive Order requiring agency review of this and other asylum bans; however, the “Third Country Transit Ban” remains in effect.

Therefore, the implementation of the rule is especially problematic for citizens fleeing persecution in the Northern Triangle of Central America. Granted, whether or not the regulation will remain in effect at the time of adjudication of the asylum claim is yet to be seen.

Nonetheless, practitioners need to question prospective clients about their transit to the United States and answer question 2.A. of Part C on Form I-589 appropriately.

Undoubtedly, the ever-changing world of asylum law has reached warp-speed in late 2020 and early 2021. Between the final attempts by the Trump administration to implement new regulations, the ongoing litigation by various parties, and the Biden administration’s systematic retooling of the previous term’s carnage, practitioners would do well to frequently revisit the current state of potentially casebreaking issues. Misadvising clients on these matters could not only overinflate client expectations but run lawyers into malpractice.

ILT MAGAZINE l ISSUE NO.

02

About the Author Scott works with businesses, families, and individuals on immigration matters. Having spent most of his childhood in South America and later emigrated to Europe as an adult, Scott has a passion for immigrants and the opportunities provided by global migration. He utilizes his bilingual abilities and cultural awareness to guide immigrants through an

increasingly complex and unstable U.S. immigration system.

Scott first joined the firm in 2015.

He began practicing immigration law upon graduation from the University of St. Thomas School of Law in Minneapolis. While in law school, Scott successfully obtained asylum for a West African client before USCIS and authored an

amicus brief to the U.S. Supreme Court that was influential in securing a 5-4 decision for the plaintiffs in a landmark First Amendment case.

In his spare time, he enjoys spending time with his wife and children, coaching soccer, and supporting Minnesota United.

77 SPRING EDITION l 2021

Personal Development

How Immigration Lawyers Can do More With Less

By Tahmina Watson, Esq.

Tahmina Watson, Esq.

Tahmina@WatsonImmigrationLaw.com But before I explain what that looks like,

“

I must explain that our pro bono services are still needed. It won’t be so easy for nonimmigration lawyers to gain the expertise immigration lawyers already have. You know that and I know that. Therefore, in many cases, it will be important to continue and maintain pro bono services, such as for Citizenship Day and other clinics for naturalization or DACA. But sometimes when a large group of people needs to be served, the low bono model will be most useful. This will especially be needed if immigration reform goes through. You can be sure the folks operating these clinics will come knocking on your door.

What I kept thinking about is what will we do if we received request for 50 lawyers to help at the detention center? We wouldn’t have been able to provide that kind of help.

What is Low Bono and Who Pays?

”

In a Clinical setting, low bono refers to a fraction of an Attorney’s hourly rate. In the clinics here in Washington state where this experiment has been successful, $100 per hour was a reasonable rate that attracted experienced lawyers. Here, Clients do not pay but receive the pro bono help they need.

It is the Clinic itself that pays the lawyers’ fees. We call this a stipend.

Here is how all the pieces fell together for us. After the chaotic scenes at airports and know-your-right presentations where we all jumped in to help regardless of where we lived, the calls for help kept coming. “We need two lawyers here, please; eight lawyers there, please.” To the credit of every member of the Washington Chapter of AILA, we were able to serve the community. But over time, it was increasingly difficult to meet the demand.

As the chair of the Response Committee of AILA WA, I was constantly thinking about what else the Trump administration might be cooking up and how we would meet the needs of the community. One such thought swirled around Trump’s threat of mass deportation. I’m sure you remember it well.

We all do. Detentions were up already and ‘interior enforcement’ and ‘border security’ executive orders paved the way for Trump to carry out his threat.

What I kept thinking about is what will we do if we received a request for 50 lawyers to help at the detention center? We wouldn’t have been able to provide that kind of help.

In addition, as time went by, it became clear that our members needed some form of compensation for their time and efforts. It wasn’t fair to keep asking lawyers to donate time when they had bills of their own to payand their work that needed attention.

In April 2017 I started creating charts and diagrams of what a potential solution could look like. That was the start of WIDEN Washington Immigrant Defense Network.

02

of immigration lawyers in the last four years will be forever etched in our minds. The inhumane executive orders, burdensome RFEs, the avalanche of dreaded Friday night bad news. The stress was overwhelming. And while we are under a new administration, the impact of those dreadful policies will be with us for a while. One of the areas where our energy has been depleted is offering pro bono help. It is simply not feasible to do it in the same way. However, in Washington state, we found a solution that takes into account our fatigue, our need for being valued, and the community’s need for service: low bono legal clinics.

ILT MAGAZINE l ISSUE NO.

What we have gone through as a collective

78 IMMIGRATION LAWYERS TOOLBOX

Personal Development

successful that the clinic was able to double the funds it raised and add twice as many lawyers for 2021! It is a win-win model.

It was launched in June 2018, with the support of my wonderful co-founders that are fellow lawyers in the community. The idea was that WIDEN would provide a stipend to experienced immigration lawyers to provide representation in detained trials.

But as I was attending various roundtable discussions to understand how to raise funds for WIDEN, I kept hearing that legal clinics could not find immigration lawyers to attend their sessions, that even if lawyers signed up, often they would not show up. So, clinic organizers were facing troubling situations, especially as the needs of the people they served increased.

It was then that I realized that the stipend model could be expanded.

The time to experiment presented itself in early 2019. A small community organization in Bellevue, WA, had tried to fulfill members’ needs by arranging to get lawyers from one of the minority bar associations. I’m on that listserv and could see those requests. After some months, I noticed that those requests were made multiple times for the same event and I could see

that interest was dropping from lawyers attending. I didn’t attend those clinics, my hands were full organizing, but I was an observer.

In May 2019, I was contacted by Lalita Uppala, Executive Director of the Indian Association of Western Washington (IAWW) who asked me to help her find immigration lawyers to meet the needs of the clinic. What was most interesting to me is that they had already raised the funds for this. I had been waiting for just this moment to put my thoughts into action. After discussing the fee rates and the procedures and processes to get our lawyers paid, I got to work.

Once again, our AILA WA lawyers stepped up to this call to action. At this point, my organizing skills and foresight had gotten sharper. So, to ensure I didn’t have to repeat this each month, I created an 18-month roster - one lawyer a month from June 2019 to December 2020. I handed over the roster to the clinic and appeared as a troubleshooter when needed.

What was so rewarding was that once implemented, this program was seamless. And it was so

And, what is even more extraordinary is that the City of Seattle’s Office of Immigrant and Refugee Affairs took this model and created a large-scale program in collaboration with the King County Bar Association and AILA WA. You can read more about that here. The City of Seattle is calling this a legal innovation.

What is important for us to recognize is that the former administration’s unprecedented assault on our systems required unprecedented solutions. And those solutions must be carried forward into the future. We cannot go back to how things were. This model is one of those solutions that can be used for certain large-scale or ongoing immigration service settings, and could possibly be expanded beyond immigration as well. In my opinion, as immigration lawyers, we need to pave the way for what will work for us and this could be one way for our colleagues to be valued while helping the community in a sustainable way.

To learn about the background and genesis of these clinics, you can read my book, Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World.

ILT MAGAZINE l ISSUE NO.

02

About the Author Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications.

She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America. She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds

and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans.

Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She was recently honored by the Puget Sound Business Journal as one of the 2020 Women of Influence. You can reach her by email at tahmina@watsonimmigrationlaw.com or follow her on Twitter at @tahminawatson.

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

Info@ImmigrationLawyersToolbox.com

© Immigration Lawyers Toolbox® All Rights Reserved