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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.
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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.