Immigration Lawyers Toolbox® Magazine, Issue 04 | Fall/Winter 2021

IMMIGRATION ® LAWYERS TOOLBOX ISSUE 4 | FALL/WINTER 2021

MAGAZINE

ImmigrationLawyersToolbox.com

TIPS & TRICKS FOR I.V. INTERVIEWS FROM A FORMER CONSULAR OFFICER Robert Melvin, Esq. | page 32

CREATING TECH SAVVY CLIENTS Nadine Heitz, Esq. | page 8

THE AFGHAN

IMMIGRATION CRISIS

W/ SPOJMIE NASIRI, ESQ. page 24

immigrationlawyerstoolbox.com

President & Chief Editor John Q. Khosravi, Esq.

Staff

Publisher’s Note

Editor

Anna Sergeeva, Esq. Cover by Caela Alyssa Dela Cruz Dan Stanley Sabong Layout by Wilfredo Daoas

Contributing Writers Nadine Heitz, Esq. Jeremy Peskin Joseph Tsang, Esq. Spojmie Nasiri, Esq. Liam Schwartz, Esq. Robert Melvin, Esq. Brian Scott Green, Esq. Disna Weerasinghe, Esq. Lena Nevsky, Esq. Gerri Marshall, Esq. Ryan Knight, Esq. Sonya Peterkin, Esq. Joseph Gentile, Esq. Claribel Madueña, Esq. Sabrina Damast, Esq. Vanessa Ganguin, Esq. Marco Mazzeschi, Esq. Aycan Iskent Ekener, Esq. If you would like to be considered for submitting an article, please contact: Info@ImmigrationLawyersToolbox.com

Disclaimer: None of the information provided here is intended as individual legal guidance.The laws change frequently and some of the information may become outdated.

Please consult with an attorney in private to discuss an individual case.

© Immigration Lawyers Toolbox® Incorporated All Rights Reserved

The end of the year is always a time for reflection and

planning. Looking back to where you were and where you are now and analyzing successes and failures. Then looking forward to planning the new year with yourself, your family, and your team.

I encourage you to do this. Having a focused outlook for the future is key to reaching your goals. I also recommend visualizing the goal in your head (and maybe even on a vision board). You will be surprised at how effective this is.

I know our busy work lives get our heads stuck in our minds on our practice and immigration law, but I strongly urge you to take care of your health too. Get a trainer or trainers and develop a team around your physical and mental health. It will pay dividends in your personal and professional life.

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

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The Harrowing Journey from Kabul to U.S. and the Legal Immigration Pathways for Afghan Parolees

Benefits of Immigration Software

by Jeremy Peskin

Essentials to Managing an Immigration Law Firm

by Joseph Tsang, Esq.

by Spojmie Nasiri, Esq.

30

Consular Quiz

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Tips and Tricks for Immigrant Visa Interviews What You Need to Know at the Window

by Liam Schwartz, Esq.

by Robert Melvin, Esq.

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State Department Rebuffed (Again) Over ‘‘No-Visa Policy’’

by Brian Scott Green, Esq.

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I-140s: Ability to Pay the Proffered Wage

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EB-1 Extraordinary Ability for Business Owners: Experience & Practice Pointers

by Disna Weerasinghe, Esq.

by Lena Nevsky, Esq.

48 54 58

Demonstrating Extraordinary Ability in the Arts for a Foreign Musician/Singer (O-1B)

by Gerri Marshall, Esq.

Obtaining H-1B Approvals for Financial Analysts

by Ryan Knight, Esq.

Spousal-Based Green Card Applicants Forced to Conform Marriages to Imposed Standards

by Sonya Peterkin, Esq.

64

Privately Enforcing the Financial Support Obligations in the Form I-864, Affidavit of Support

by Joseph Gentile, Esq.

68 72

Cancellation of Removal (Part III): Exceptional and Extremely Unusual Hardship

by Claribel Madueña, Esq.

76

Global Business Mobility Visa Promises a New Solution for Companies Moving Staff to the UK

Federal Case Corner

by Sabrina Damast, Esq.

by Vanessa Ganguin, Esq.

80

Italy: Visa Options for Individuals and Companies

84

Obtaining Turkish Citizenship via Real Estate Investment or Depositing Money to a Bank Account in Turkey

by Aycan Iskent Ekener, Esq.

by Marco Mazzeschi, Esq.

)'*!%*!+

How to Turn Your Tech-Challenged Clients Into Tech-Savvy Clients

by Nadine Heitz, Esq.

!"#$%&' (

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Immigration Lawyers Toolbox® Magazine

How to Turn Your Tech-Challenged Clients into Tech-Savvy Clients Author: Nadine Heitz, Esq.

We all know that using technology Nadine Heitz, Esq.

HeitzImmigrationLaw.com, Dine@HeitzImmigrationLaw.com

in your law practice is important, but many lawyers feel that clients can’t handle it. I hear this frequently in my coaching sessions with other attorneys.

They tell me, “My clients prefer a paper questionnaire!” or “My clients don’t even have a computer!” or “My clients can’t scan documents!” These are all legitimate concerns, and I want to show you how I’ve managed to turn the most tech-challenged client into a tech-savvy client!

1. Set expectations early about how you will communicate with your client.

No one likes to find out what they initially signed up for is not what they expected. That’s why it’s best to set out your expectations right in your service contract. I have several clauses in my contract that explain this.

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The first thing my clients learn is that they will have to book a phone meeting with me when they need to ask me a question. We rarely answer our phones – we let our reception service answer (we use Smith.ai) and they are trained to book a call-back time with existing clients.

This allows us to be prepared to discuss their case at a time we all agreed upon and we won’t get constantly interrupted when we are working during office hours.

We use Calendly for setting up call-back appointments. If we get objections from clients that they cannot reach us right away, we explain the reason for this policy and frame it in a way to show how it benefits them – we tell them we are busy working on cases, including theirs.

Our clients soon learn that this can be a positive thing! They will always get a call back at a prearranged time when we are fully able to give them the attention they need.

Issue No. 4

2. Educate your clients on how to scan documents.

This can be a game-changer. We have all received blurry pictures of client’s documents, maybe even a thumb or hand holding the page, or even a kitchen counter background behind the document. Then we succumb to allowing clients to drop off documents in person because they complain that they don’t have access to a scanner or don’t know how to use one. Here’s what you can do: We email our clients the booking link so they can set up the callback on their own. Anytime I send a client an email with something important about their case, I include the booking link at the end with a comment like: “If you need to discuss this further, please book a call with us here___.” This has worked well to cut down on unnecessary random phone calls from clients.

Any other online scheduling app such as Acuity or Apptoto can be used for this. You can add your team members to your scheduling account if you want them to get the appointments booked on their calendar rather than on yours. I have all existing client call-backs booked on my legal assistant’s calendar.

Clients know they will NOT have me calling them back. They are told from the beginning that my legal assistant will be the one to speak with them, and anything that my legal assistant cannot deal with will be escalated to me.

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• • •

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1. Open

the

Notes

app.

2. Click the icon at the bottom to create a new note.

3. Select the icon for the camera option – then you will see the option to “Scan Documents” If they do not have an iPhone (I believe this also works on Android phones) or don’t want to use the Notes app, suggest that they download the free app, Camscanner. The free version is just fine for scanning, even though it will have the word Camscanner in small print at the bottom of the page. If you teach your client in the beginning how to scan documents and how to combine pages into one scan, you won’t get those 10 emails with one image on each email!

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Sometimes we think the easiest way for a client to send us their documents is to just email them as an attachment. Not only is that an unsecured method to send sensitive documents, especially things like tax returns, but here is the problem with this process and I’m sure you can relate:

•

First, ask them if they have an iPhone. If they do, spend a few minutes (or even better, record a Loom video about it) explaining that they can use the built-in scanner on their Notes app on their iPhone. This is one of the best-kept secrets! Here are the steps:

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• •

You give your client a checklist of 10 documents needed.

Client emails you 2 out of the 10.

You now have to track or remember that you only got 2 and still need 8 more.

Client emails your legal assistant 3 more documents.

Legal assistant now must coordinate what client sent you and what client sent to them.

You are not aware that legal assistant got those 3 documents.

Client calls you to ask if all documents are in.

You frantically search the file, search your email to try to remember what they sent you and what they still need.

You tell the client they still need 8 documents and client gets a bit upset.

It’s a tracking nightmare!

You need an orderly way to collect all the client’s documents, and it should be in some type of client portal or online app designed for document collection.

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that you can utilize to achieve the same objective. As long as there is one central online location for your client to easily upload their documents and your team has a way to accept or reject the uploads as needed. Otherwise, you will be stuck playing phone or email tag to explain why that tax return copy is no good or why USCIS can’t accept a blurry image!

4. Use a client portal or an app like Pipefile.

We use Pipefile because it’s ideal for the document collection process.

And best of all, the client does not have to create an account or create a password. The client gets an email with a link to click on. They are immediately presented with a list of all the documents needed.

They can go through the list and upload what they have. They can access the link later to upload more.

Each time they upload documents we are notified via email. We can go to Pipefile and reject or accept their documents in the Pipefile app and the client will be notified why we rejected a particular document.

You can even specify to accept PDF documents only!

No more email chains back and forth between you, the client, and your staff. Everyone can look in one spot and know exactly what has been submitted. No more searching around for documents your client insists they sent to you! You now have the ultimate proof of what your client sent, when they sent it, and what they still need.

Pipefile even reminds your client to submit their documents. We have ours set at every 3 days, so until the document list is complete, the client will be reminded with an email and/or text, every 3 days and the reminders will stop when all have been uploaded.

You don’t have to use Pipefile, you may have a client portal within your practice management system

5. Be strict with your own rules.

We often give in to our clients who do not want to take the time to learn some new tech skills. But if you have a bit of patience in the beginning to ensure your client learns how to do it, they will totally thank you later.

Imagine how many ways they will be scanning all kinds of documents in the future for other reasons!

They will always remember it was your team that taught them how to do it.

But if they really cannot handle any technology at all (and yes, unfortunately, no matter how patient you are, some just won’t be able to do it), then you will have to provide some other options. For scanning, we explain that they can go to any Office Depot, or similar location and have their documents scanned. And if that is not possible, then maybe you will have to resort to some old-school document collections where the client comes to your office or sends you documents through the mail. But at least it will not be the norm.

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Issue No. 4

6. Use a questionnaire that clients can easily complete on their phone.

7. Conduct a welcome session on the phone or on zoom with your client before any work is started.

While I don’t like texting messages back and forth between clients about their case, I do like sending out questionnaires to my clients as a text message to their phone.

I use Docketwise because I find it the easiest for my clients to use.

They can get a text or an email with the link and there’s no password they need to register. They can immediately start answering the questions. And if they don’t understand a question, they can insert a message to me right from within the questionnaire. This works both ways, if we find they didn’t answer a question properly, we can flag the question and send the client a message about what they need to do. No more email chains back and forth or phone calls to collect information! It’s all done through Docketwise and I have yet to find a client that cannot handle this. You can even send it to them in many other languages.

One of the first messages we send to our new clients is an email with a Calendly link to set up what we call the “New Client Strategy Session.” They always book this right away because they are eager to start working with us having just paid their deposit and signed their contract. This is where my legal assistant speaks with the new client on the phone for about 3045 minutes to go over everything, including the technology systems we are going to be using. Prior to this meeting, the client already received a link to their Welcome Package that explains everything, including links to some brief instructional videos on our systems. Here is the chance where we can discuss any problems or objections they may have. And we make sure they have actually read the Welcome Package!

This phone meeting is critical to establish your rules and it ties back to the first point which is to set your expectations early. No casework gets started until this meeting is completed.

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If you can spend some time up front to educate your clients on how to use your office systems, as well as have a little patience, then work will be so much easier for your whole team. Imagine clients who successfully upload documents, who know how to book a meeting with you in advance, who complete their online questionnaires at home making it easier for you to create their forms. If we can improve on one of the biggest pain points of our job as immigration attorneys – the gathering of documents and information – your staff will be happier and more efficient, and so will you! Good luck with your techsavvy clients!

About the Author After spending years perfecting the systems within her own U.S. immigration law practice, Nadine built a network of like-minded immigration practitioners who share tips and tricks to make things in the office run smoother, faster, and easier. Check out https://tiplawyers.com/ for more information and joint the Technology for Immigration Practitioners (TIP) Facebok Group h t t p s : / / w w w. f a c e b o o k . c o m / groups/191457918187525

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Benefits of Immigration Software Author: Jeremy Peskin

O

Jeremy Peskin

Docketwise.com, Jeremy@Docketwise.com

f all areas of the law, immigration practice can be one of the most personally meaningful, as it involves helping clients work through profoundly significant life transitions.

That said, running an immigration law firm can be difficult work. Luckily, like in many other fields, technology has made everything a bit easier. Using it effectively can lead to more business and lower costs. For many lawyers, technology is a real no-brainer, but the most difficult part is knowing how to start. Fortunately, doing so is more straightforward than one might think!

By necessity, immigration law requires the submission of extensive forms to federal agencies like USCIS. This used to mean hours of tedious data entry, done mostly by hand. Now though, immigration software has made this part of the practice easier than ever before! Technology has allowed for the preparation of these forms to be almost fully automated, leaving more time for the work that really matters.

But immigration software does more than just simplify the completion of forms! It can also double as a robust case management platform. In other words, the software provides a user-friendly interface for organizing cases, establishing timelines, and delegating work to team members.

Put simply, technology can increase the efficiency of law firms that handle immigration cases. It boils down to this—less time spent on each case equals more cases which equals more impact.

Rather than doing mindless clerical work, attorneys can spend more of their valuable time helping clients.

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Issue No. 4

Here are some of the features which make technology such a boon to the field of immigration law: Send Personalized Questionnaires to Clients One of the first steps in an immigration case used to be having clients sit down with a pen and paper to write down an exhaustive array of personal information, some of which might not even be applicable in their particular case. Requiring everything from citizenship status to marital details to past employment, this process could be quite lengthy.

Now immigration case management software like Docketwise makes it possible for attorneys to streamline the information collection process by sending multilingual personalized questionnaires to their clients.

These questionnaires allow lawyers to choose which specific questions to ask on a case-by-case basis, meaning that clients only have to provide information that is really needed. Questionnaires also come professionally branded with a firm’s individual logo, and have multilingual functionality, meaning they can easily be toggled to whichever language a client is most comfortable with. These sorts of dynamic features greatly reduce the time and effort needed to gather pertinent client information.

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Create and Edit Forms with Ease Immigration software handles not only the completion of forms, but also the selection of forms in the first place, a process which can be complicated.

As previously noted, technology has helped automate the job of completing forms for immigration proceedings.

For instance, Docketwise’s “smart forms” can populate long, complicated applications with client information in a few clicks.

The data is received through questionnaires, stored in a digital profile, and matched to forms as needed through a finely-tuned software. These smart forms feature complex logic that can determine the exact array of forms to prepare based upon the details of the case.

Reputable services include every form an immigration practitioner might need, even the most obscure.

In special cases, attorneys can also create and edit forms from scratch for ease and flexibility. Notice an input error, or want to change something later? Forms can be easily edited after the fact.

With the ability to produce hundreds of pages in just minutes, this technology can save vast amounts of time and effort.

Organize and Delegate Cases to Staff Aside from expediting the process of creating forms, immigration software can also serve as a fully functional case management platform. This means that it often includes an array of useful administrative features, which allow immigration law firms to sort their work in an intuitive fashion.

Cases can be assigned to particular members of a team, so each individual knows what he or she is responsible for. Time-sensitive tasks can be given due dates, which will trigger automated reminders as deadlines approach.

Immigration software also allows attorneys to write notes for each particular case, in order to keep track of useful details. All this comes in a single, centralized location, making for an easy and efficient workflow. Because of this all-in-one functionality, practitioners do not have to switch between platforms while working, which makes things simpler.

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Immigration Lawyers Toolbox® Magazine

Store Client Information Securely on the Cloud Another benefit of immigration case management software is cloud-based storage, which makes it possible for lawyers to access their cases from anywhere. Rather than having data stored on inhouse servers or in physical form, immigration software provides firms a secure home for their cases online. Accessible only through password-protected logins, which can be issued to multiple team members, immigration software provides attorneys a user-friendly repository of client information.

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Ignore the Hassle and Danger of Regular USCIS Changes

Out of the office?

Traveling?

No problem.

USCIS rolls out changes to its many forms on a regular basis. Keeping up with each new edition can be a huge headache

This interface can be accessed with just an internet connection.

With this technology, different individuals in an immigration law firm can access case information no matter where they are. Attorneys should make sure to look for a service which employs a highlytrusted cloud encryption protocol, like Docketwise’s Amazon S3, to ensure that data is being handled with the utmost care.

Immigration software like Docketwise closely monitors these updates, and adjusts accordingly within just a few business days of a change. Subscribers never have to worry about filing outdated versions of forms, and can instead focus their attention on more substantive areas of their practice.

These updates, as well as roundthe-clock customer service, are included with the basic package.

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Efficiencies That Scale These efficiencies enable immigration law firms to scale by completing more cases in less time. In a recent survey conducted

by Docketwise, its users reported an average savings of 6 hours per case using Docketwise versus no immigration software. Whether you’re benefiting from a full suite of case management features or just leveraging the intelligent multilingual intakes to speed up form preparation, the cost of immigration software is just a fraction of the revenue those time savings enable your firm to earn as it scales.

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Immigration Lawyers Toolbox® Magazine

Essentials to Managing an Immigration Law Firm Author: Joseph Tsang, Esq.

H

Joseph Tsang, Esq.

TsangSLaw.com, JDTsang@TsangSLaw.com

ere’s the thought: How would, Peter Drucker, the Father of Corporate Management, known for his profound insights that have shaped the way international companies have governed for over 20 years, lead a modern immigration law firm? As the managing partner of a boutique immigration firm, I have decided to implement three of his most revolutionary ideas and what follows are some of the key findings from our experience here. I hope you find it helpful.

Principle 1: Knowledge Workers Are Not Robots Drucker’s concept of Knowledge Workers, first introduced in the 1950s, revolutionized management practices around the world. Transitioning from a manufacturing-based economy, knowledge workers became our primary workforce today by generating value with their minds rather than muscle. What this means in practice is that knowledge workers of the law firm are not what they do but who they are.

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The human resources of the immigration firm are primarily knowledge workers and not robots. Robots are tasked with repetitive tasks such as filling forms and mailing applications (although those tasks need to be done, this is not the main reason why clients hire a law firm); but the core competitive value of an immigration law firm is how knowledge workers understand the unique needs of the clientele and navigate them through the complexity of the U.S. immigration system. This service demands creativity, empathy, efficiency, expertise, and a wide range of other soft skills that are distinct from manual labor.

If the above is true, then the role of a manager in the immigration firm would be to develop workplace policies that would enhance the strengths of the employees that align with the firm’s core values and beliefs. As an example, here are two policies we have implemented to achieve this goal (please note: because each firm has different values, these policies should be varied depending on the needs of each organization).

Issue No. 4

1. Your team should only “work” half of the time And sleep through the rest of the day… no, not really! Work has been misinterpreted for decades as our mindsets are fixated on the manufacturing economy. The work of a knowledge-based economy depends on the individuals’ use of the mind. This means that long-term results appear when the paralegal or attorney spends half of their time on legal work like drafting letters, communicating with clients, and building the case and the other half on non-legal work such as strategizing and reflecting, marketing, office design, relationship building, taking a break to refresh mental capacity, and many more depending on the individual’s needs. The knowledge worker needs to determine for herself when and how would she use her time and space to work and to grow. If a paralegal is constantly at peak capacity, using 100% of her time on casework for an extended period of time, then they will likely become unmotivated, make careless mistakes, fail to grow themselves—and might ultimately leave the firm discouraged.

Thus, a policy where knowledge workers only spend half of their time working on cases and the other half on projects related to their interests and strengths help continue to develop all personnel at the firm to continue to grow and achieve their career goals.1 This leads to the second policy.

2. Each person should take ownership of the entire case In the past, this is how a typical workflow would look like: (1) The intern completes a basic task for the paralegal; (2) the paralegal checks the intern’s work, makes her own edits, and sends it to the attorney or case manager; (3) finally, the attorney or case manager makes final edits and wraps up the case for filing.

Nowhere in this traditional workflow does any of the aforementioned knowledge workers take ownership of their case. At best, this is an efficient machine that generates products, but at worst, it creates apathy that could translate into the final work product that could turn away clients.

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Flipping the entire process around, we tested out the extremely inefficient method of having each person in the process act as if they were the lead on the case and communicate daily progress with the entire team.2 This means the interns would prepare a case strategy as if they were the lead attorneys on the case, while the paralegal does the same, as well as the attorney. Then all case workers on the case would share notes to see how each person would approach the case. The redundancy is admittedly inefficient, but the pros have outweighed the cons.

Preparing cases like this have (1) allowed seasoned attorneys to see how other smart and capable knowledge workers think and improve their case strategies; (2) allowed the interns and paralegals take full ownership of every case they work on; (3) enhance the quality control of all filing as multiple layers of case workers review the case from start to finish; and (4) train the paralegals and interns to reach a very high caliber of performance with strong capability, autonomy, agency, and creativity.3 Like an artist proudly exhibiting her work at a gallery, interns, paralegals, and attorneys should feel immensely proud when each case is completed.

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department should focus on how to provide benefits and meaningful growth for the employees, with any discussions about salary as the cherry on top. If in addition to the base salary, the hiring manager focuses on getting to know each employee, understanding their life stage, and prepares a growth plan with customized perks and learning opportunities to enhance their career objectives, then the relationship between employer and employee will be transformed.

No longer will employees feel like they are robots being squeezed to perform meaningless tasks but will feel more like a mentee being cherished by the mentor.

Principle 2: Your Best Workers Are “Volunteers” When was the last time that you enjoyed your work so much that you forgot to go home? Drucker was deeply impressed by the passion and quality of work that unpaid volunteers contributed to nonprofit organizations. What drives their passion is a meaningful goal and responsibilities that move them toward that goal.4 The immigration law firm is not exempt from being a source of meaning—in fact, many surveys have shown that most immigration practitioners find tremendous meaning in the work they do (but the problem is how do we translate this passion and commitment to the rest of our team and new hires).

Knowledge workers will only love their work and take ownership if they are allowed to make progress in their value-driven goals, and if we can inspire them, then they will be able to help the firm flourish.

Conversely, if the immigration firm sticks to the traditional model of treating paralegals as form-filling robots, the new generation of employees will likely not stay long enough to be inspired by the vision and will quit as they won’t find meaning in the actual day-to-day work. So here is how I have applied Drucker’s concept of workers as volunteers at every level of the firm:

“

So much of what we call management consists of making it difficult for people to work.”

1. Find the ultimate “why” of each employee and stop focusing on the salary The goal of the hiring manager should not primarily focus on providing a competitive salary, because that is ultimately not the goal of knowledge workers. If knowledge workers are passionate about the mission, and if they are given the space to perform with their mind, then the salary will not be the primary objective of their employment. Instead, the hiring

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- Peter F. Drucker

To do this, we found that every person at our firm has a different goal for their employment based on their life stage. Young graduates are mostly concerned about how to gain meaningful experience and bonuses; mid-career managers are concerned with work–life balance and retirement plans; senior employees are concerned about healthcare and their legacy.

And most young families with small children would need more work remote privileges. The hiring manager would do well to spend the majority of the time understanding the needs of each teammate, designing the best work arrangement, and providing them the resources to achieve their career objectives—as opposed to what the industry is paying and what is the least they can give to hire a particular talent.

2. Customize rewards for each knowledge worker We all have different needs, and it is important to know what each worker needs to flourish. If the office is a platform for knowledge workers to accomplish their valuedriven goals, then the management is responsible for removing as many obstacles as possible in their way.4 Some people might need more freedom and agency to execute their vision while others need more collaboration. It is essential that the manager of the firm understands the best environment for each individual worker and provide them the resources and circumstances to thrive in that environment. This could mean that some people have a lot of work remote privileges, while others get reimbursement for gas to come to work because they work better around people.

Issue No. 4

Principle 3: Why Does Your Firm Exist?

On top of removing obstacles for work, it is even more important to know the appropriate motivations of each worker. Certain knowledge workers respond well to achievement milestones and recognition, while others respond best to cold hard cash and bonus; some value a sense of accomplishment and selfrecognition of growth and progress, while others crave the affirmation of peers.

To implement these ideas, we provide flexibility to all employees to design their own work environments. This translates to remodeling the office according to their input and needs, and not just providing work remote privilege but also all the technology to enable high productivity. We provide many paths of communication so management can hear what are everyone’s needs clearly and tailor each individual and team’s bonuses based on a set of clear performance metrics. For some, that means the number of cases managed, and to others the number of roles they play in contributing to their teams. The rewards are also specific to each person’s needs as each person’s goals and motivations are different.

These policies have helped turnover rates to stay low and attract the desired team members that are the best fit for the firm.

Many immigration law firms suffer from a high labor turnover, loss of talent, loss of motivation, and loss of value created by knowledge workers. The solution to these issues starts by clearly identifying the firm’s reason for existence. This sounds too grand to be practical, but the immigration law firm’s goal and purpose in society must be immediately relevant to the firm itself, based on its strengths, differentiation, and culture.5 Each firm will have its unique competitive edge and mission, but the key idea is to make sure its vision is clear and consistent throughout the organization. Here are some examples of what we tried to do: 1. Creative solutions for complex legal problems – our mission We defined our mission as providing creative solutions to complex legal problems. With a team of knowledge workers with various strengths taking on cases as their own and reviewing with each other for the best outcome, our firm is built to produce unique and innovative work product instead of pumping out massive amounts of cases per hour and per worker.6 Workers who value creativity might be drawn to our practice, whereas partners who want high profitability and productivity might decide we are not the best fit. Corporate clients who need us to process hundreds of cases per year might only engage us for their overflow and complex cases since that is our core competency.

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The point is that by making your mission clear, it signals to the clients why they should hire you and not someone else and provides clarity for your team on what is the ultimate goal of the firm. This way the firm is not serving clients that are not the right fit and team members are not being required to do work that does not match what they are seeking. This might sound simple but it took over half a year of intense analyses and reflection before our team came to this conclusion. It is common and all too easy for firms to want to do everything because they can; but the thing to know is that they shouldn’t. Focus on what you are best at and build the entire firm around that key mission. When the firm finds its mission, it will find its market, teammates, and ultimately its identity.

2. Know and organize your team’s strengths The purpose of management is to make people’s strengths effective and weaknesses irrelevant. 7 Every individual has their own strengths and weaknesses, and if the manager can organize the knowledge workers such that each person is only working on their strengths, then the weaknesses of each individual can become quickly overcome. A person who is super detail-oriented and good at assembling a case might not be good at strategizing big picture plans, and vice versa.

Once the mission of the firm is clear, the manager’s task is to figure out how everyone can work together so that each person’s strength is best utilized to achieve the goal.8

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The firm is only as strong as the weakest link. If all the cases at the firm require one manager to oversee prior to filing, then when that manager breaks down, so does the firm.

Applying this principle, we created a hiring program and bonus and reward structure so that each knowledge worker’s job title and job responsibility is not what is assigned to them, but a combination of what they want and where they are most needed. Their salary and bonuses are not tied to their hours but to their performance in growing the firm as a whole. This applies to the top management as well as to the interns.

Conclusion If immigration law firms are going to survive sweeping changes in today’s market, it must transform the workplace to empower the knowledge workers on their team.

If the practice of immigration law is to stay relevant through the age of AI and the creation of new legal software, then it will prevail only if the work of providing legal strategy towards specific situations to clients and helping them understand is irreplaceable.

But that is majority knowledge work, and one that is ever evolving and adjusting to the world we inhabit. Firms that can provide an environment for their knowledge

workers to continue to thrive will continue to see their organizations flourish. This requires the manager to clearly understand their role and understand what needs to be done from the top down. The purpose of this short article is to share how we are doing it at Tsang & Associates as an experiment to explore how Peter Drucker would have managed a modern-day immigration law firm.

About the Author Joseph received his J.D. from Pepperdine University in 2012 with a Certificate in Dispute Resolution, has practiced abroad in London, Taipei and Shanghai, and is now the managing partner of Tsang & Associates, an international

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immigration law firm with offices in Los Angeles, Taiwan, and Shanghai. Joseph currently serves as the Chair on AILA’s National Law Student Outreach Committee.

He has authored multiple articles

on immigration issues, as well as co-authored the book, “Confucius Meets Shakespeare,” and ever burns with the love for literature.

He currently resides in sunny California with his wife and son.

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Endnotes 1 Have you carefully thought about what your strengths are? This is not a simple question. It takes seasoned managers years to discover their true contributions. Start by thinking about in what environment do you perform at your best. Think about how do you learn something new? For more information, I invite you to read Peter Drucker’s Managing Oneself.

Drucker, P. (2005). Managing Oneself. Retrieved 3 November 2021, from https://hbr.org/2005/01/managing-oneself 2 Leadership is required when everyone is involved in the same project. The effective executive would be responsible for communicating everyone’s plans and progresses. Creativity and inspiration love to flow out of well-managed group progress.

Drucker, P. (2004). What Makes an Effective Executive. Retrieved 3 November 2021, from https://hbr.org/2004/06/what-makes-an-effective-executive 3 The process of managing an entire case benefits each team member’s professional development. It is not just the intern who will be challenged to argue and arrange evidences, the manager is challenged to understand how they should manage to keep everyone on the right track. Out of these valuable experiences may we discover more deeply our values, work styles, and contributions.

Drucker, P. (2005). Managing Oneself. Retrieved 3 November 2021, from https://hbr.org/2005/01/managing-oneself 4 The manager comes into the office prepared to help in whatever the team needs. Ask what needs to be done and how can you help.

Revisit the plan and progress and get into action to help the paralegal and intern clear out a path to perform at their best.

Drucker, P. (2004). What Makes an Effective Executive. Retrieved 3 November 2021, from https://hbr.org/2004/06/what-makes-an-effective-executive 5 The term “Corporate Social Responsibility” or “CSR” has been misused too often. CSR is not an altruistic contribution into popular issues so that the firm might have a positive public image. It is the firm’s contribution to its immediate economy so that the business and the society it functions within may benefit mutually. Think of CSR as a survival measure of your office because your firm needs your immediately relevant market to have a purpose and earn an income.

Drucker, P. (2001). The essential Drucker: the best of sixty years of Peter Drucker’s essential writings on management (p. 37). New York: Harper Collins.

6 Various strengths come together to make differences. Out of our differences, innovation happens. Some of the most frequent occasions of innovations happen when we observe our daily failures, when we consider the facts of our disagreements, when we start to look at something differently, and when we are exposed to new resources.

Drucker, P. (2002). The Discipline of Innovation. Retrieved 3 November 2021, from https://hbr.org/2002/08/the-discipline-of-innovation 7 The law firm does not manage a product. It manages its knowledge workers. Management is to make knowledge workers capable of joint performance. As human beings perform differently than programmed robots, the law firm is a constantly learning and teaching institution.

Drucker, P. (2001). The essential Drucker: the best of sixty years of Peter Drucker’s essential writings on management (p. 10). New York: Harper Collins.

8 The manager’s task is not merely plugging the right personnel into the right role, but developing a managerial attitude throughout the firm. The knowledge worker’s strengths come into play when she sees her work and product the way that the manager sees them. I invite you to read further into Peter Drucker’s The New Society.

Drucker, P. (1950). The new society. New York: Harper & Brothers.

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COLLEAGUE UPDATES MERGER & MOVES G ib bs H ou sto n Pauw a nnou nc ed a m erg er with Ad am Bo yd and Be nja mi n Corne ll How a r d G r eenb er g and Na uma an H ame ed j oi ning to f orm Gre e nbe rg Ha mm ed PC A ar on K ar ne ll , jo ins EI G a s Se nio r A ttor ney , Cons ul ar Af f a irs St ep hanie R. J ur k owsk i j o ints Ho dgs on R us s L LP Dav id G r unbl at t wil l b e jo ine d by Se nio r A ss oc ia te s Va la rie Mc Ph er so n, Je nnif er W ex l er a nd E ric a Loo mb a.

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COLLEAGUE LOSSES Da le Schwa rtz (19 42 – 2021) Lis a Brodyag a (1 940 – 20 21 ) Monic a Roisma n (19 75 – 202 1)

Immigration Lawyers Toolbox® Magazine

The Harrowing Journey from Kabul to U.S. and the Legal Immigration Pathways for Afghan Parolees Author: Spojmie Nasiri, Esq.

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Spojmie Nasiri, Esq.

NasiriLaw.com, Spojmie@NasiriLaw.com

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n August 15, 2021, the world watched in disbelief as Afghanistan’s capital city, Kabul, fell to the Taliban’s control amid scenes of chaos and panic. In the fifteen days that followed, hundreds of thousands of U.S. Embassy workers, diplomats, aid workers, government contractors, and civilians flooded the streets filled with fear and desperation as they attempted to catch flights out of the Hamid Karzai International Airport.

What they encountered was a chaotic and dangerous evacuation effort led by the United States and its allies. American officials have described it as one of the largest, most complex evacuations in history.

Cover Story

During the fifteen days of the chaotic evacuation, my fellow Afghans endured horrendous difficulties in their attempts to get inside the airport. Many waited days amidst the chaos and dangerous conditions in hopes of being evacuated.

I stayed awake many of these nights desperately advising and guiding my clients to get access inside the airport. As my clients and others sought their way through the unimaginable and dangerous crowds, they endured beatings by the Taliban with whips and sticks. Many fought their way through tear gas, extortions, and even a suicide bombing. Countless were separated from their loved ones amidst the mayhem. One client, an attorney in Afghanistan, clung desperately to her fourteen-year-old daughter and young son while she endured large crowds, beatings and extortions as she walked from one gate to another desperately seeking a safe passage into the airport.

After five harrowing days, she would finally get inside the airport through the sewer canal at the airport’s entrance.

Issue No. 4

The images of death and destruction shared with me via WhatsApp are hard to forget.

Another client, a lawful permanent resident with eight children, fought her way through the mayhem after attempting for seven days to gain access inside the airport. She and her children were sprayed with tear gas, and gunshots nearby ruptured one of her young child’s ear drum.

On her eighth desperate attempt, she and her children were finally able to get inside the airport, but not before suffering extreme trauma that impacts them to this day. It is unfathomable the difficulties Afghans evacuees endured during the unprecedented evacuation. For those lucky enough to have been evacuated from Afghanistan, their life in the U.S. will be safe, but full of challenges and uncertainties.

“Lily Pads” In the course of the fifteen days of the U.S. lead evacuation, an estimated 120,000 individuals were evacuated from the Hamid Karzai International Airport according to the U.S. government.

The evacuees underwent rapid processing at the airport before being taken to U.S. military bases in six countries, including Bahrain, Germany, Kuwait, Italy, Qatar, Spain, United Arab Emirates, referred to as “Lily Pads”. On

several bases, and in particular the U.S. base in Qatar, Afghan evacuees endured large crowds, unsanitary conditions, including lack of access to food, water, and bathrooms while sitting in sweltering heat amidst rat infestations. On these “Lily Pads” the evacuees went through extensive security checks and medical examinations before they were flown to one of the eight military bases in the United States referred to as “Safe Havens”. A small number of evacuees have been detained and sent to the U.S. base in Kosovo because they were flagged as possibly having ties to terrorist organizations. As of December 17, 2021, approximately 3,000 evacuees remain at the Lily pads overseas.

“Safe Havens” Currently, an estimated 83,000 Afghans have been paroled into the United States and housed at one of the eight military bases referred to as “Safe Havens”. These bases include Fort McCoy in Wisconsin, Joint Base McGuire-Dix-Lakehurst in New Jersey, Fort Bliss in Texas, (parolees are housed at extension site for Fort Bliss in the desert of New Mexico), Fort Holloman in New Mexico, Marine Corps Base Quantico, Fort Lee, Fort Pickett in Virginia, and Camp Atterbury in Indiana. In the last two months, I

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have had the opportunity to visit and provide legal services at Fort Lee, Fort Pickett, Quantico, Fort Bliss, and Fort Holloman. As of December 17, 2021, approximately 55,000 individuals have been resettled in the United States and the U.S. government has been resettling approximately 4,000 individuals a week.

At this time, most of the parolees who arrived early on at various U.S. bases have completed their vaccinations and medical examinations. Physicians on site have also completed I-693 forms and parolees will be provided with a copy upon leaving the base for their final destination. In addition, these parolees have completed their security clearance, biometrics, applications for employment authorization (Form I-765) and applications for Social Security card.

The employment authorization cards and social security cards have been processed and sent to International Organization for Migration (IOM) in Washington D.C. The documents will be mailed to the parolee’s address upon leaving the particular base. Some parolees have received their employment authorization cards on the bases, and the process is constantly being updated. For those who continue to be paroled in, they will go through the same process before leaving a base for their final destination.

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Immigration Lawyers Toolbox® Magazine

In addition, parolees at some of the bases are provided with a copy of the I-94 to use as proof of their status until they receive the employment authorization card. It is important to point out that not all bases have a uniform process of providing the employment authorization card or copy of the I-94 to the parolees. For those individuals who were paroled into the U.S. without an Afghan passport and have not been provided a copy of their I-94 upon leaving a base, it has been challenging to get a copy of the I-94 form. A copy of the I-94 can also be obtained online by putting the first eight numbers of the Tazkera (Afghan ID) or the nine-digit alien number in place of a passport number. In addition, a copy of the I-94 can be obtained by uploading a photo of the evacuee at the site.

Parole status for Afghans: Non-SI Parolee Status Parole is granted either for “urgent humanitarian reasons” or because the entrance of an individual is determined to be a “significant public benefit” to the U.S. In August 2021, the Customs and Border Protection (CBP) allowed certain Afghans to enter the United States under non-SI parole (referred to as Afghan Non-SI Parolees). As with other parolees, these Afghan parolees are paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act. These parolees are eligible to apply for work authorization by submitting Form I-765, Application Employment Authorization Document (EAD), under a C11 category using a CBP “PAROLED” stamp in their passport.

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USCIS is issuing an EAD under a C11 category to all Afghan nonSI parolees, regardless of age.

In addition, some Afghan non-SI parolees may have a “DT” (parole granted at a port of entry or District Office) or “OAR” (Operation Allies Refuge) notation in the parole stamp in their passport. DHS recently began using this code to help distinguish these Afghans from other parolees. Form I-94 provides proof of the beneficiary’s entry as a parolee and the date by which the beneficiary must depart the United States. Both DT and OAR signifies that the individual has been paroled into the United States pursuant to section 212(d)(5) of the Immigration and Nationality Act. Conditions of Parole for Afghans Under humanitarian parole, Afghan nationals can remain in the U.S. temporarily. Parolees are granted protection from deportation for only two years, during which they are eligible to apply for temporary work authorization. Parole is not a permanent immigration status and does not provide a path to permanent immigration status without an underlying basis in immigration law. The parolee must take additional steps to ensure they remain legally present in the United

States after their authorized period of parole has ended. Parolees must complete medical screening and vaccinations as a condition of parole and report compliance within seven days of arrival in the United States. Parolees must also complete Form AR-11 and provide every change in address to USCIS as soon as possible and no later than 30 days after each change of address.

Furthermore, parolees must comply with all public health directives, comply with requests for additional information from the Department of Homeland Security and federal law enforcement, and comply with local, state and federal laws and ordinances. Failure to comply with these conditions could lead to termination of parole, detention, and removal from the U.S., and could interfere with a parolee’s ability to become lawful permanent resident or obtain another immigration status.

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Why thousands of Afghans still remain on the U.S. bases after 4 months of the evacuation During my visits to the various bases, the number one question all Afghans asked me was why it was taking so long for them to leave the bases and when could they expect to leave military bases. It was always a difficult conversation to have with them. Prior to President Trump reducing the refugee resettlement programs, there were processes in place to support refugees adjust to life in the United States.

The services included securing housing, social service related benefits, obtaining work permits, social security cards, job training, and other programs intended for the refugees’ adjustment to life in the United States. During Trump’s presidency, these programs were altogether halted and tremendously impacted the various resettlement agencies in the United States. In addition, because all Afghans have been paroled into the United States at once rather than arriving as refugees in small numbers, this has put a strain on the resettlement agencies’ ability to house Afghans.

In a short time, the resettlement agencies have had to revamp themselves to meet the demands of thousands of Afghans arriving daily at the various bases. These issues have been compounded by the changes the pandemic has brought to the housing market.

Securing housing for Afghan parolees throughout the United States and in popular sought-out destinations such as California, Texas, and the Virginia/D.C. area has been cumbersome for the resettlement agencies. It has also becoming more difficult to find affordable housing in areas within close proximity of refugees’ family members and existing Afghan diaspora communities throughout the United States. The lack of

housing means Afghans will likely stay on military bases for a longer time before they are relocated to their final destination. No doubt, this will exacerbate the stress, anxiety, and mental well-being of the Afghan parolees who have already endured unimaginable hardships of escaping the wrath of the Taliban.

Legal pathways parolees

for

Afghan

For those Afghans paroled into the United States, they must find a pathway to gaining permanent resident status in the United States.

It is likely that the main avenues for relief pursued by Afghans will be through (1) Special Immigrant Visas (SIV), (2) adjustment through family members and (3) asylum.

Special Immigrant Visa (SIV) Congress initially established the SIV program with the Afghan Allies Protection Act of 2009. The program is intended to protect Afghans who worked for the U.S. government in Afghanistan and are at risk because of their service. The July 2021 Emergency Security Supplemental Appropriations Act extended the program and reduced the required length of employment from two years to one year. The Act also allowed certain surviving spouses and children of U.S. government employees abroad to obtain special immigrant status. Those parolees

eligible for SIV in the United States who are at different stages of the SIV process, must complete the process in the United States and file Form I-485, Application to Register Permanent Residence or Adjust Status. For those SIV applicants currently residing in Afghanistan or third countries, they must continue with the process from abroad.

The difficulties these applicants will encounter include the ability to travel to countries where U.S. Embassies are located to attend the required interviews and complete the required security checks (AILA Doc. No. 21100404. (Posted 10/4/21)).

Family-Based Asylum

Petitions

and

With over 70,000 Afghans already paroled into the United States and more expected to be paroled in the near future, all will have to adjust their status in some manner. It is estimated that about 40% of those paroled in thus far are eligible for SIV. The rest will have to either obtain permanent legal status through family-based petitions or other immigration process. However, the vast majority of the Afghan parolees will have to apply for asylum. December 2020 U.S. Citizenship and Immigration Services report noted that the backlog in affirmative asylum applications has grown to more than 350,000 cases.

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Afghan Adjustment Act (AAA) The proposed Afghan Adjustment Act would allow Afghans to adjust their status and apply for lawful permanent residency after a certain amount of time in the United States.

The Afghan Adjustment Act has historical precedent. It is similar to the 1966 bill Congress passed to allow Cuban parolees who fled the communist regime to apply for legal permanent resident status after one year of residence in the United States. Also, in 1977, Congress allowed more than 150,000 refugees from Southeast Asia to apply for lawful permanent resident status. Similar to these two acts, the Afghan Adjustment Act will allow hundreds of thousands of Afghans the chance to obtain their legal status without waiting for many years living in legal immigration limbo. The current U.S. immigration system is not capable of handling the influx of hundreds of thousands of applications filed by Afghans.

Comprehensive immigration reform is needed and until that is done, the Afghan Adjustment Act is necessary to allow Afghans to obtain legal status in a sufficient manner that will avoid hindering their ability to adjust to life in the United States.

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Legal avenues for Afghans seeking to enter the United States Humanitarian Parole Humanitarian parole authorizes an individual to temporarily enter the United States when there is an urgent humanitarian reason or significant public benefit. See INA section 212(d)(5)). Under the Operation Allies Welcome program, Afghans granted parole will be permitted to stay for two years and may be eligible to apply for immigration status. During the evacuation and in the aftermath, Afghans inside Afghanistan and their families were desperate to get their family members out of Afghanistan. For the last several months, my law office phone has been ringing nonstop for people seeking information on how to evacuate their loved ones out of Afghanistan. All across the United States, lawyers, nonprofits, and ordinary people rushed to file humanitarian parole applications on behalf of Afghans trapped in Afghanistan. As of the December 17, 2021 meeting with the USCIS Director, there are approximately 37,000 pending humanitarian parole requests with less than fifty adjudication officers assigned to review these applications. Thus far, as of July 1, 2021, USCIS has processed 617 humanitarian

parole petitions, 434 petitions were denied, 138 petitions were granted, and 45 petitions closed (processing suspended until the beneficiary reaches a 3rd country). Majority of the humanitarian parole approvals are prior to August 31, 2021 as USCIS was prioritizing applications in the event the approvals would help with evacuation efforts.

USCIS typically receives 2,000 applications annually and began receiving approximately 500 to 1000 applications a day. As a result of the high volume of application, USCIS existing intake system could not handle the volume, so USCIS had to create a new system. All cases were expected to be entered in the new system by Tuesday December 21, 2021.USCIS is currently prioritizing applications for individuals in third countries.

For individuals currently residing inside Afghanistan, the individual or someone on their behalf can request parole for a temporary period based on urgent humanitarian or significant public benefit reasons. USCIS authorizes parole on a case-by-case basis and specifies the duration of the parole.

While parole allows for temporary lawful presence in the United States, it does not confer immigration status and does not provide a path to lawful permanent residence or another lawful immigration status.

Issue No. 4

At this time, the State Department is unable to complete the processing of a parole request while the individual is residing inside Afghanistan because the U.S. Embassy in Kabul is closed and all regular consular services in Afghanistan have been suspended.

If determined that an individual may be eligible for parole, a notice will be issued informing the individual that they must arrange their own travel outside of Afghanistan to a country where there is a U.S. embassy or consulate.

Individuals may experience long wait periods while waiting in a third country. The challenge will be obtaining permission to remain in a third country until there is a final decision on the humanitarian parole request.

During the Humanitarian and Significant Public Benefit Parole USCIS Engagement Call on November 5, 2021, USCIS officials stated that humanitarian processing may take several months and USCIS is prioritizing the parole applications for Afghan nationals outside of Afghanistan given the availability of completing the processing for those individuals at a U.S. embassy or consulate, as well as those who have family ties in the United States. The USCIS officials also stated the responsibility of the financial sponsorship of the parolee would be limited to several weeks while the parole is eligible to seek resettlement assistance pursuant to the Afghan Supplemental Appropriations Act.

P-1, P-2, and P-3 Refugee Status On August 2, 2021, The Department of State announced a Priority 2 designation (P-2) for some Afghan refugees and their families, allowing them access to P-2 resettlement options. The priorities currently in use are: • Priority 1: Cases that are identified and referred to the program by the United Nations High Commissioner for Refugees (UNHCR), a United States Embassy, or a designated non-governmental organization (NGO).

• Priority 2: Groups of special humanitarian concern identified by the U.S. refugee program.

• Priority 3: Family reunification cases (spouses, unmarried children under 21, and parents of persons lawfully admitted to the United States as refugees or asylees or permanent residents (green card holders) or U.S. citizens who previously had refugee or asylum status).

More than 4 months after the fall of Kabul to the Taliban, Americans and their allies are all gone and the eyes of the world are off of Afghanistan.

Millions of Afghans, including tens of thousands who served alongside the United States and their allies for years are left behind, living in fear and desperation, uncertain of what future lies ahead for them and their families. For those fortunate to have survived the long and difficult journey to the United States, the

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eyes of the world will be on them to see how they are welcomed in the United States. In the coming months and years, the majority of Afghans will need legal representation and it will be incumbent on us in the legal profession to provide legal immigration services. No doubt, like any refugees before them, the road to adjusting to life in America will have its challenges and opportunities.

About the Author Spojmie Ahmady Nasiri is a firstgeneration immigrant and the founder and principal attorney at the Law Office of Spojmie Nasiri, P.C. in Pleasanton, CA. Spojmie is a member of the California Bar and is admitted to the Northern District of California. She has been practicing immigration law for more than 15 years and focuses on family-based immigration, including U visas, T visas, VAWA, I-601A waivers, as well as consular processing and removal defense. She has been recognized for her dedication and commitment to the immigrant community by her peers and community leaders. In 2019, Spojmie was selected to the Alameda County Women’s Hall of Fame for the Justice Award. Spojmie currently serves on the board of Afghan American Community Organization dedicated to serving the Afghan community and board member of International Orphan Care (IOC) dedicated to helping orphans in Afghanistan. She has served as board President of the Council on American Relations (CAIR) for the San Francisco Bay Area Chapter protecting the civil rights of Muslim Americans.

She is currently part of AILA’s Afghan Taskforce addressing the legal needs of Afghan evacuees.

Spojmie is fluent in Pashto and Dari. She has spoken at numerous AILA conferences and other conferences locally and nationally on immigration law.

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Immigration Lawyers Toolbox® Magazine

Immigration Lawyers Toolbox Magazine

Consular Quiz Author: Liam Schwartz, Esq.

Before testing your knowledge of the

Liam Schwartz, Esq.

Goldfarb.com, LiamSchwartz@Goldfarb.com

Foreign Affairs Manual, and consular processing in general, let’s begin with a quote from a Consular Officer:

“A consular officer might be the first American that a visa applicant meets. The experience of making and attending an interview appointment can be momentous; people dress up for that. They fret and worry. And then – without consciously meaning to – they sometimes can’t help but judge the entire U.S. by their treatment at the U.S. embassy, just as we might do if the situation were reversed.”

True that.

Have fun with this edition of the ILT Consular Quiz!

1) According to the State Department, what is the most significant part of the visa issuing process?

2) What are the three things an applicant needs to do in order to formally make a visa application?

3) What are the two things a Consular Officer is authorized to do in connection with a visa application that has been formally made?

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Issue No. 4

4) Jill’s employer files a Form I-140 immigrant visa petition on her behalf. The I-140 lists Jill’s husband, Jack, and indicates he will be applying for adjustment of status. The I-140 is ultimately denied. If, a year later, Jack applies for a student visa and responds “no” to the visa application question “Has anyone ever filed an immigrant petition on your behalf with the United States Citizenship and Immigration Services”, has he made a misrepresentation?

5) EFM’s typically perform a broad range of consular duties in a U.S. Embassy. Who are they?

6) How many United States Ambassadors are posted to Belgium?

7) According to the White House, how many foreign-born individuals live in the United States today?

8) Does an investor applying for an E-2 visa in Tokyo need to include evidence of a physical office in the United States?

9) The Foreign Affairs Manual specifically prohibits consular officers from “grommeting.” What does this prohibition relate to? (a) Establishing a romantic relationship with another member of the foreign service. (b) Surfing beaches.

at

unauthorized

(c) Binding documents in a certain manner.

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10) Name one of the following three cities that hosts a U.S. Embassy:  The letter “a” appears 4 times in this host city’s name  The letter “u” appears 3 times in this host city’s name  The letter “z” appears 2 times in this host city’s name About the Author Liam Schwartz is Head of Corporate Immigration Practice at Goldfarb Seligman Law Offices in Tel Aviv, Israel. Liam.schwartz@ goldfarb.com

Answers on Page 47

Consular Quiz

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Immigration Lawyers Toolbox® Magazine

Tips and Tricks for Immigrant Visa Interviews -

What You Need to Know at the Window Author: Robert Melvin, Esq.

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Robert Melvin, Esq. MelvinLawGroup.com,

RobMelvin@MelvinLawGroup.com

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fter adjudicating more than 9,000 immigrant visas and managing an immigrant visa section at a high-volume Embassy with a high incidence for visa fraud, the common pitfalls and recipes for success are easy to identify and teach to prospective applicants. Perhaps the most common erroneous assumption in the immigrant visa process is that every vice consul is a legal wizard who knows all the intricacies of U.S. immigration law and is also an expert on human nature and fraud detection. However, the vast majority of Vice Consuls adjudicating visas are actually experts in different fields (e.g. economics, political affairs, operational management, etc.), merely serving their first two years as a Foreign Service Officer in an obligatory consular section tour. Most of these officers also did not speak the native language of the country beforehand and only “learned” the language after a year or less of intensive language training. Therefore, many of the Vice Consuls are almost as nervous, unsettled, and unsure about adjudicating the visas as are the petitioners and beneficiaries.

Consular Corner

So, what does that mean for your client when they go to the Embassy? The main things to remember are to be calm, patient, communicate well, and be brutally honest. Embassy or consulate employees involved in the process have eyes on you once you get in line outside the Embassy, and they are watching you from the time you arrive, while you are submitting your biometrics for verification, waiting in the lobby, and until you leave the building.

If you are behaving nervously, erratic, or strange at any point in the journey, you run the risk of drawing unnecessary negative attention to yourself which could cause unwarranted doubt by the Vice Consul and start your interview on the wrong foot. Be natural; be yourself.

Once you make it to the interview window, there are many things that you can do to help steer the interview in a positive direction, hopefully arriving at an immediate approval before you leave the building. Though it is an unnerving experience akin to a judicial trial, do everything you can to control your worries and appear natural. Countless interviews end up lasting way longer than necessary simply because the petitioner and/or beneficiary(ies) act erratically during the interview as a result of their discomfort with the process. A great way to prepare for this phenomenon and help

Issue No. 4

try to take the edge off is to conduct some mock interviews beforehand; the tougher, the better. Often when the interviewees are nervous, they resort to speaking very quickly in the local language and/or using informal speech which will almost certainly confuse the Vice Consul and likely cause him/her to think there might be something nefarious afoot even though it is simply an innocent reaction to the situation.

Speak slow and clear and ensure that the officer understands you, or you run the risk of causing undue additional scrutiny in your case.

While you have the presumption of validity in an immigrant visa case, the Vice Consul is the final adjudicator of the case for purposes of the interview, and s/he can cause tremendous delays in the final approval by way of a fraud investigation, administrative processing, a refusal, etc. In other words, it is the interviewee’s job to make sure that the officer understands what they are trying to communicate and to give the officer confidence that s/he is doing the right thing by way of an approval.

Tell the truth. The Vice Consul has access to a vast number of databases, including all international, U.S., and local criminal and civil records. This includes but is not limited to arrests and convictions, interactions with immigration and customs and border patrol agencies and their U.S. and international counterparts, credit reports, etc. They WILL know if you have

ever been arrested, deported, convicted, charged, or had any other problems with the law or immigration officials. It is much better for the interviewee to bring up the subject, cast the facts in the light most favorable to themselves, and to be contrite. For civil records like telephone numbers, addresses, property ownership records, etc., the official will also likely have access to that information from credit reporting agencies and other sources. If the official thinks that someone is hiding or obfuscating negative information in an effort to conceal a material fact and obtain an immigration benefit, there is a grave risk of drawing an inadmissibility hit and a denial of the case which can cause problems for the indefinite future. In the worstcase scenario, a beneficiary could create a permanent ineligibility for themselves based upon an evasive or untruthful answer.

Finally, it’s important to always keep in mind that the Vice Consul is only a human being. S/he is going to have good days and bad days, both justified and baseless suspicions and confidences about cases, and all other influences and impressions that we share in our common human experience. So, it is incumbent upon the beneficiary and/or petitioner to control those variables as best as possible on the day of the interview. Again, the best way to do so is to speak

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clearly, use common and easily understood language, and be open and transparent. Some officers only check to see whether the paperwork is in order, do a quick and cursory interview to look for glaring or undeniable fraud factors, conduct search for ineligibility “hits” in the system, and then approve. Others think there is a ninja hiding behind every bush and want to grill each person to discover what are really non-existent “indicators” of fraud.

Either way, the officers in high volume posts must adjudicate around 40 cases per day, so they cannot linger on every case.

Your clients can obtain the best possible outcome every time if they remember the above approaches and do the best they can to move the interview in a positive direction.

About the Author Rob Melvin is a 24-year lawyer, licensed by the State Bar of Texas and admitted to practice before the Board of Immigration Appeals.

For the last 12 years, Rob worked for the Department of State as a Foreign Service officer and Vice Consul at U.S. Embassies in the Dominican Republic, Panama, Pakistan, and Lesotho. Rob held consular commissions underneath both President Barak Obama and President Donald Trump.

Currently, Rob has an immigration law firm and also advises clients on international investments.

Consular Corner

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State Department Rebuffed (Again) Over “No-Visa Policy” Author: Brian Scott Green, Esq.

Overview

Brian Scott Green, Esq. GreenUSImmigration.com,

Brian-Green@GreenUSImmigration.com

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On October 5, 2021, Senior Judge James E. Boasberg of the U.S. District Court for the District of Columbia granted summary judgment to nine plaintiffs, finding that the U.S. Department of State (“State Department”) had violated the Administrative Procedure Act (“APA”) by refusing to process visa cases for individuals from countries covered by Presidential Proclamations. The court found that the State Department’s interpretation of the Presidential Proclamations as preventing U.S. Embassies and Consulates from adjudicating visa applications was arbitrary and capricious, and entered judgment on their behalf. The case is Philip Kinsley, et al., v. Antony J. Blinken, et al., 2021 WL 4551907 at *1 (D.D.C. 2021).

Litigation Corner

“No-Visa Policy” In response to the COVID-19 pandemic, both President Joe Biden and former President Donald Trump issued Presidential Proclamations that restricted entry of foreign nationals to the U.S. who have been present in a specific list of 32 countries, for a period of 14 days. See, Proclamation No. 9984, 85 Fed. Reg. 6,709 (Jan. 31, 2020) (People’s Republic of China), Proclamation No. 9992, 85 Fed. Reg. 12,855 (Feb. 29, 2020) (Iran), Proclamation No. 10143, 86 Fed. Reg. 7,467 (Jan. 25, 2021) (United Kingdom, Ireland, Brazil, South Africa, and the 26 Schengen Area countries), and Proclamation No. 10199, 86 Fed. Reg. 24,297 (Apr. 30, 2021) (regarding nonimmigrants from India).

These Presidential Proclamations were issued pursuant to 8 U.S.C. §1182(f), which gives the President the power to “suspend the entry of all aliens … or impose on the entry of aliens any restrictions he may deem to be appropriate.” Kinsley, at *1.

Issue No. 4

The State Department interpreted these proclamations to restrict the entry of individuals from these 32 countries, thereby leading to a massive backlog of petitions approved by the U.S. Citizenship and Immigration Services (“USCIS”), but not being processed by the State Department’s National Visa Center (“NVC”) in Portsmouth, NH, or the U.S. Embassies and Consulates in these countries. On April 8, 2021, the State Department implemented a National Interest Exception (“NIE”) process that allowed noncitizens seeking an immigrant visa or K-1 fiancé(e) nonimmigrant visa to apply for an exception to the travel ban, which if approved would allow the issuance of a visa to him or her. See, U.S. Department of State, Updates to National Interest Exceptions for Regional COVID Proclamations (Apr. 8, 2021), AILA Doc. No. 20071733 (Updated to NIW).

The plaintiffs in Kinsley, represented by Greg Siskind, Charles Kuck, and Jesse Bless (Director of Litigation for the American Immigration Lawyers Association), claimed that the NIE process amounted to a “NoVisa Policy” that was a violation of §706(1) of the APA (unlawful withholding of agency action), §706(2)(A) (arbitrary and capricious action), as well as §706(2)(C) (agency action in excess of agency authority). Kinsley, at *2.

The plaintiffs filed their suit in April 2021 and moved for a preliminary injunction, or, in the alternative, for summary judgment. The State Department replied by moving to dismiss the lawsuit, or, in the alternative, for summary judgment.

Id.

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Issue No. 4

The Court’s Reasoning Consular Nonreviewability Defendants challenged the standing of the Kinsley plaintiffs, and also raised numerous jurisdictional arguments as to why their claims could not be heard by the court. Judge Boasberg largely agreed with these arguments, and he ultimately granted the State Department’s motion to dismiss as to all but 9 of the over 180 plaintiffs listed in the Kinsley complaint.

Judge Boasberg firmly rejected the State Department’s invocation of the “doctrine of consular nonreviewability,” and noted that he had previously ruled against this assertion as have other judges in the District of Columbia. Kinsley, at *4.

He wrote that “[T]here is no reason that the ‘principles underlying [the consular non-reviewability] doctrine’ would preclude the Court from reviewing implementation of policy relating to the [Presidential] Proclamations.” Id., at *5.

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Mootness and Standing Judge Boasberg did agree with the State Department that the claims of 74 of the plaintiffs were moot as they had been approved for NIEs and issued visas. The State Department also sought to dismiss all plaintiffs who are the sponsors of immigrant visa petitions or K-1 nonimmigrant petitions, since the amended NIE process now only applies to nonimmigrant visa applicants (excluding K-1 applicants).

Judge Boasberg agreed that 8 corporate sponsors of employment-based immigrant visas lacked standing, and granted dismissal of all plaintiffs seeking immigrant or K-1 nonimmigrant visas. Id.

Litigation Corner

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The Kinsley plaintiffs also included corporations and associations with members petitioning for nonimmigrant visas (including J-1 exchange visitors). The court found that the associations had failed to adequately prove that they had “associational standing” under Am. Chemistry Council v. Dept. of Transp., 468 F.3d 810, 815, 820 (D.C. Cir. 2006). The court also found that two corporations petitioning for nonimmigrant visas failed to identify an injury-in-fact that is “concrete and particularized”, but instead raised “generalized grievances.” Id., at *6-7, citing to Warth v. Seldin, 422 U.S. 490, 499 (1975).

The court rejected the State Department’s reframing of the claims of the Kinsley plaintiffs seeking employmentbased nonimmigrant visas. The agency argued that the true source of their alleged injuries was the COVID-19 pandemic, and not the implementation of the Presidential Proclamations. Judge Boasberg found instead that these injuries are “fairly traceable” to the Proclamations, and that the remaining plaintiffs had established their standing. Id., at *7.

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Litigation Corner

Conclusion

Previous Rulings Judge Boasberg noted that many of the issues raised in the Kinsley case have been thoroughly addressed by U.S. district courts in decisions finding against the government based on the suspension of visa adjudications for individuals from the 32 Proclamations countries. Those courts (including Judge Boasberg in a prior case), each found that a novisa policy under the Proclamations likely violated the APA and enjoined the U.S. government from relying on the Proclamations to suspend all visa adjudications for plaintiffs from the affected countries. Id., at *8.

No Deference on §1182(f) The court rejected the State Department’s claim that it was owed deference to its longstanding position on its interpretation of INA §1182(f) and the agency’s reliance on that interpretation, finding that such reliance “is not in accordance with the law.” Id., at *10.

The outcome in Kinsley may have been predictable, as Judge Boasberg made clear that the recent decisions finding that a novisa policy was improper under the Presidential Proclamations. But it is clear from this case that the State Department was not afraid of losing in court (again) using those same arguments.

About the Author Brian S. Green is a solo practitioner in greater Denver, Colorado, who focuses on bringing U.S. District Court challenges to immigration and visa denials and delays, nationwide. Brian has practiced complex litigation and trial work since 2001, and immigration law full-time since 2007. Brian is admitted to practice before eighteen (18) U.S. District Courts around the U.S. Brian “cut his teeth” as a judicial law clerk, assistant public defender, and then as outside trial counsel for General Electric and General Motors Corp.

He is a graduate of Washington & Jefferson College and Case Western Reserve University School of Law.

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Immigration Lawyers Toolbox® Magazine

I-140 RFEs: Ability to Pay the Proffered Wage Author: Disna Weerasinghe, Esq.

T

Disna Weerasinghe, Esq. ScarboroughLaw.com, Disna.Weerasinghe @ScarboroughLaw.com

he Key to a successful I-140 approval depends on addressing one of the main requirements of I-140 eligibility: the ability of the sponsoring-employer to pay the proffered wage to the foreign national – beneficiary. As per 8 CFR § 204.5(g)(2), the burden is on the Petitioning Employer to demonstrate the ability to pay for the required period of time, from the priority date of the instant petition until the beneficiary obtains permanent residence.

The adjudicator’s field manual chapter 22.2(C) (Exhibit A) clarifies that this requirement to mean “evidence that the U.S. employer had the ability to pay the proffered wage at the time the labor certification was filed and continuing until the beneficiary obtains permanent residence.”

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Employment-Based IVs (I-140)

Therefore, attorneys should carefully review the employer’s ability to pay at the conception of an immigrant visa petition, especially, at the drafting stage of a PERM application if the case is one that falls under EB3 or EB2 category.

Issue No. 4

If the initial I-140 petition does not include sufficient evidence to show the employer’s ability to pay, attorneys may find themselves facing difficult I-140 RFEs or receiving I-140 denials. This article is trying to shed some light on how to respond to an I-140 ability to pay RFE in the context of PERM cases.

A large, reputable employer may already have prepared annual reports or audited financial statements that can be easily provided for the required time period, making the attorney’s work less cumbersome, in proving ability to pay. In addition, well established employers with more than 100 employees may demonstrate ability to pay by submitting a letter from their Chief Financial Officer/ Authorized Personnel attesting to the company’s ability to pay for all of its employees including the sponsored foreign nationals.

However, when representing a small employer who may not have prepared annual reports or audited financial statements, a careful planning of demonstrating ability to pay from the inception of an immigrant visa matter is required.

In May 4, 2004, through his interoffice memorandum, then Associate Director of USCIS Operations, William R Yates demystified the documentation process for I-140 ability to pay.

Through the above memorandum William Yates guides USCIS officers in assessing the Petitioning employer’s ability to pay the required wage under 8CFR 204.5(g) (2).

As per the Yate’s memo, Generally, USCIS will accept one of the three documents for the employer’s ability to pay the proffered wage; • A copy of employer’s annual reports; that contains detailed financial information • A copy of employer’s audited financial statements from an independent accounting firm • A copy of employer’s U.S. Federal Tax Returns with all accompanying schedules.

Yates memo further introduces a three-prong test to the adjudicators in making positive determination of ability to pay if any one of the following circumstances present in a case: • Credible verifiable evidence is available that the employer is not only employing the beneficiary, but has also paid or currently is paying the proffered • Employer’s net income is equal to or greater than the proffered wage; • Employer’s net current assets are equal to or greater than the proffered wage.

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The first prong can be used to demonstrate that the employer is already paying the proffered wage.

The second and third prongs from above can be used to establish the employer’s continuing ability to pay the proffered wage, even if the employer is not paying the proffered wage when it files the Petition or beneficiary has not yet been employed by the Petitioner.

Yate’s memo also directs adjudicators to deny the I-140 petitions if the employer is unable to demonstrate the ability to pay through required evidence as the employer has not met the burden to establish eligibility for the requested benefit.

Hence it is worth to look at how this three-prong test applies to employer’s ability to pay. Some AAO non-precedent decisions demonstrate that it has utilized a hybrid judicial test in determining a petitioning employer’s ability to pay.

Employment-Based IVs (I-140)

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1) Credible verifiable evidence is available that the employer is not only employing the beneficiary, but has also paid or currently is paying the proffered In determining the petitioning employer’s ability to pay, USCIS first examines whether the beneficiary was employed and paid by the employer during the period following the priority date. If the employer establishes by documentary evidence that it employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence is considered prima facie proof of the Petitioner’s ability to pay the proffered wage. See Matter of S-T-Corp, ID#15763(AAO May 2016); See Also, (Name not provided), Matter of, EAC06 008 51555(AAO May 11, 2009); (Name not provided); Matter of, SRC06222 53002(AAO January 04, 2010).

“If the Petitioner does not establish that it employed and paid the beneficiary an amount at least equal to the proffered wage during that period, USCIS next will examine the net income figure reflected on the Petitioner’s federal income tax return without consideration of depreciation or other expenses.”

See Riverstreet Donuts, LLC v.

Napolitano, 558 F.3d111, at 116(1st Cir 2009).

2) Employer’s net income is equal to or greater than the proffered wage;

3) Employer’s net current assets are equal to or greater than the proffered wage;

Even if the employer is not paying the proffered wage currently, if the employer’s net income is equal to or exceeds the proffered wage, then the employer has demonstrated the ability to pay.

Ex: 1 Employer A’s proffered wage for the beneficiary is $105,000.

The priority date of the petition is February 1, 2020.

If the Employer A has been paying $105,000 for the beneficiary since February 1, 2020 until now, employer has the ability to pay the beneficiary.

If the employer fails to demonstrate the ability to pay through net income test, then the USCIS will focus on whether the employer’s net current assets exceed the proffered wage.).

See (Name not provided) Matter of, SRC0413650361 (AAO June 29, 2006). Taco Especial v. Napolitano, 696 F.Supp.2d 873, 878–79 (E.D.Mich.2010) (citing USCIS Memorandum, Determination of Ability to Pay under 8 C.F.R. 204.5(g) (2), (May 4, 2004)). Patel v. Johnson, 2 Fed. Supp.3d 108,124 (D Mass.2014).

If the employer A currently pays beneficiary only $50.000, he falls short on $50,000 to meet the proffered wage. In this scenario, Employer A may still use the net income to cover the difference between the proffered wage and the actual wage paid which is $50,000 for that particular year.

Net current assets are the difference between the petitioner’s current assets and current liabilities.

To cover the deficiency, the net income for both 2019 and 2020 should exceed $50,000. Net income can be calculated by deducting total tax (line 31) from taxable income (line 30) of the Form 1120 U.S. Corporate Income Tax Return. In addition, they may also provide a financial statement for the current year (2021) to show that the employer has healthy financial records.

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In (Name not provided) Matter of, SRC0711051724 [AAO Nov 03 2008] page 3, foot note 2, explains current asset as follows: “According to Barron’s Dictionary of Accounting Terms 117 (3rd ed. 2000), “current assets” consist of items having (in most cases) a life of one year or less, such as cash, marketable securities, inventory and prepaid expenses. “current liabilities” are obligations payable (in most cases) within one year, such accounts payable, shortterm notes payable, and accrued expenses (such as taxes and salaries). ___. at 118.”

Issue No. 4

Sponsoring Employer’s current assets, at the end of the year, are displayed on the Form 1120 U.S. Corporate Income Tax Return; Schedule L, lines 1 through 6 and the year-end current liabilities are displayed on lines 16 through 18.

Hence, Net current assets = Schedule L (line 1+6) - (line16+18). If this amount exceeds proffered wage or cover the difference between actual wage and the proffered wage then the petitioning employer has established the ability to pay.

Further, the Service Centers may accept additional evidence such as profit and loss statements, bank account records, or personal records submitted by the petitioner to demonstrate the ability to pay, when appropriate at their discretion.

It is also worth to note that on case by case basis, at their discretion, USCIS may consider the overall magnitude of petitioner’s business activities in determining the petitioner’s ability to pay following the standards set forth in Matter of Sonegawa, 12 I&N Dec 612 (Reg’l Comm’r 1967).

Moreover, if the sponsoring employer has filed multiple 1-140 petitions, it must establish that it has the ability to pay the proffered wages to each beneficiary. In determining whether the petitioner has established its ability to pay the proffered wage to multiple beneficiaries, USCIS will add together the proffered wages for each beneficiary for each year starting from the priority date of the instant petition, and analyze the petitioner’s ability to pay

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the combined wages. See Patel v.

Johnson, 2 Fed. Supp.3d 108,124 (D Mass.2014); Matter of Great Wall, 16 I&N Dec. 142, 144-145 (Acting Reg. Comm. 1977).

Employers often face difficulties when their actual wages are less than the proffered wage of the beneficiary. By using above analysis attorneys may overcome these difficulties. The standard of proof applicable to “Ability to pay” cases is the preponderance of the evidence standard. Therefore the employer does not have to establish “beyond a doubt” element for an approval rather the employer will have to provide credible evidence to demonstrate that it I probably true or “more likely than not the employer has satisfied the standard of proof.

About the Author Disna is an accomplished immigration attorney at Scarborough Law LLC. in Jacksonville Florida, who specializes in business immigration. She helps small and large businesses to navigate through the complex immigration system and to secure proper visa

status for their international workers. She provides thorough legal analysis and demonstrates step by step guidance to achieve the desired results. Disna has written several articles on immigration and conducted seminars to international students and virtual CLE speaking engagements on PERM to newer

practitioners. Her work experience prior to immigration includes working as a judicial extern and a staff member to Late Hon. James R. Cavanaugh and Hon. John T. Kelly in the Superior Court of Pennsylvania, and the Legal Department of Supreme Court of Pennsylvania.

Employment-Based IVs (I-140)

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EB-1 Extraordinary Ability for Business Owners: Experience and Practice Pointers Author: Lena Nevsky, Esq.

Advantages of the EB-1A Category Lena Nevsky, Esq.

LenaNevsky.com, Lena@LenaNevsky.com

The EB-1 extraordinary ability immigrant category has several obvious advantages over nearly any other labor category.

Indeed, an I-140 petition in the EB-1 extraordinary ability category does not require a sponsor or labor certification, is eligible for expedited processing, and rarely has backlogs (fingers crossed), which allows for concurrent I-485 filing or faster consular processing.

These advantages make this category particularly appealing to businesspeople and entrepreneurs. But of course, this is one of the most restrictive categories to satisfy, unless we represent a Nobel Prize winner, which we often don’t.

Business owners often come to me for a consultation convinced that their only options are an E-2 visa, an L-1 with a subsequent EB-1C adjustment, an EB-2 national interest waiver or an EB-5 investment. Rarely have they heard of an O-1A or an EB-1 extraordinary ability options for businessmen or, if they have, they were told they were nearly impossible to obtain. I am not sure why this is so but for me, these cases, however challenging, are the most exciting and interesting to work with.

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Who is a Businessperson of Extraordinary Ability?

My personal journey with EB-1 extraordinary ability business cases started about ten years ago, when an owner of a management consulting firm with several international branches walked into my office.

He was a beneficiary of a L-1A visa, on his second extension, struggling to grow his New York branch to satisfy EB-1 multinational managers requirements, even though growing a New York branch was not his desired business objective. During the first ten minutes of speaking with him it was apparent that he was an expert in his field, an industry leader. He was a perfect EB-1 extraordinary ability candidate who had never heard of this immigrant classification. We quickly prepared his I-140 petition and won an approval as an alien of extraordinary ability in ten days. I got rewarded with multiple referrals that continue to this day.

Issue No. 4

I learned from working with dozens of highly successful business owners that in order to become a leader in his or her industry, this person typically takes the very same steps that the EB-1 regulations require to establish extraordinary ability: •

They enroll into national or international contests for the best brand/company/ executive;

•

They use PR means to create publicity about their work/company;

•

They organize and/or participate in business forums;

•

They create and defend intellectual rights for their original products and methods;

•

They license out their original methods and protect their intellectual rights;

•

They write books and articles in the area of their expertise.

What do Require?

the

Regulations

It is easy to see that the steps successful businesspeople undertake to become industry leaders would generally guarantee compliance with more than the required three (and often as much as eight!) out of ten regulatory requirements for this category set forth in 8 CFR 204.5(h)(3)1.

Compliance with regulatory requirements needs to establish that the applicant sustained national or international acclaim, and his or her achievements have been recognized in the field through extensive documentation.

The evidence provided in support of the petition must establish that the beneficiary is one of that small percentage who have risen to the very top of their field of endeavor.

In addition, the applicant needs to show that he or she is seeking to enter the United States to continue work in the area of extraordinary ability and his or her entry will substantially benefit the United States in the future2.

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A “great professional” is a dirty word in extraordinary ability world.

And what about the Kazarian case adopted by USCIS with its requirement of a “final merits determination?3” Well, my experience shows that the qualitative final merits determination is rarely invoked by USCIS in analyzing EB-1 cases, with most of the emphasis remaining on the quality and caliber of the evidence presented in satisfaction of the regulatory requirements.

The only thing I need to remember about the final merits determination is to steer away from portraying my client as a great professional. A “great professional” is a dirty word in extraordinary ability world.

These efforts typically reward them with extensive industry attention, including abundant and favorable press, requests for interviews, invitations to judge work of others, memberships in prestigious associations and organization, and, of course, financial success at the level substantially higher than most people in their industry experience. They typically have an extensive network of professionals that become a rich pool for experts to endorse their work for EB-1 purposes.

1.

The ten regulatory criteria for EB-1 extraordinary ability category is listed here: https://www.uscis.gov/working-in-the-united-states/permanentworkers/employment-based-immigration-first-preference-eb-1 2.

The USCIS website currently contains a detailed description of the regulations, helpful hints as well as some do’s and don’ts of preparing an EB-1A submission: https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2#footnote-7 3.

Kazarian v. U.S. Citizenship, 596 F.3d 1115 (9th Cir. 2010); full text of this decision adopted by USCIS can be found here: https://cdn.ca9.uscourts.gov/ datastore/opinions/2010/03/04/07-56774.pdf

Talent-Based IVs

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Finally, the applicant needs to establish that they are seeking to enter the United States to continue work in the area of extraordinary ability and that their entry will substantially benefit the United States in the future. I learned that if I build a strong evidentiary case, I only need to pay lip service to these requirements, especially if my client is an O-1A visa holder. If not, I will include a petitioner’s statement briefly describing their game plan.

I have never had eyebrows raised at these requirements, and I am inclined to think that the quality and caliber of my evidence to satisfy the regulatory criteria ultimately determines the outcome of the case.

Here are some practice pointers I would like to offer that may contribute to success of an EB-1 submission in extraordinary ability category, at least they work for me: •

Practice Pointers for a Successful Submission: Years ago, when I had a practice in New Jersey doing family immigration cases, I took time to attend a USCIS Vermont Service Center’s open house, a two-day event in St. Albans, Vermont. During the open house, I got to meet USCIS adjudicators at round table events, giving private attorneys advice on how to better prepare winning cases. I was amazed to see that the USCIS adjudicators were actually real people, like me. They displayed a willingness to be helpful, an ability to joke and appreciate a joke, and to express an emotion, including what seemed like genuine understanding and compassion. Granted, Vermont is not Texas and it is not Nebraska.

Call me delusional but I keep the human quality of those meetings with VSC officers in my heart when I prepare a case: I communicate to them, to their human qualities, to their ability to care.

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Zero in on and define precisely petitioner’s expertise and make all evidence align with and support only his or her chosen talent.

A successful businessperson or entrepreneur may have a history of being engaged in a number of different projects. They may often change the direction of their company, the product and/or service for a variety of reasons. Everything they touch turns into gold but what is that one thing, their unique talent, their most exquisite skill that makes them extraordinary? We need to narrow it down and communicate it very clearly. I start my work with that because it will determine the rest of the steps.

•

Explain the petitioner’s industry in detail, if needed. The USCIS may attempt to discount the achievements of an applicant if he or she is extraordinary in the field that appears marginal, not sufficiently broad to warrant extensive competition by many players. When in doubt, I provide printed evidence about the industry of the petitioner, its players, its associations and awards to educate the adjudicator and to create strong context for the achievements of the applicant. It makes the picture complete.

•

Every regulatory requirement contains multiple evidentiary elements, each one of which must be satisfied with sufficient evidence. There is a human tendency to interpret regulatory requirements in a self-serving way, ignoring the inconvenient “secondary” elements of the definition. But we must be convinced that each evidentiary element is firmly established.

For example, “receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor” requires evidence of the award and also evidence establishing that the award is national or international in scope, that it is recognized as such, and that it is for excellence in the applicant’s field of endeavor.

Issue No. 4

•

•

•

Don’t try to comply with every regulatory criteria you can - pick the most compelling ones and go deep. I personally like to show compliance with more than 3 requirements, but not more than 5. Mindful of the fact that the final merits determination returns the attention of the adjudicator to the evidence submitted under the regulatory criteria for its quality and caliber, I make it my task to be highly selective of what I want him to see. I definitely don’t want to submit anything that is borderline or weak, since, in my opinion, it undermines the quality of my other strong evidence.

•

Take control over the endorsement letters.

USCIS is generally unimpressed with endorsement letters, let alone boilerplate ones.

An endorsement letter is a powerful instrument to bolster the evidence submitted in support of the evidentiary requirements, with its power stemming from the unquestionable expertness of the affiant and a detailed assessment of applicant’s achievements that is specific, experience-based and genuine.

I usually prepare very detailed case-based guidelines for endorsement letters and provide examples within the same industry. Sometimes I get a real gem, rarely - nothing, in most cases I can work with authors to edit the letters to perfection.

Sustained acclaim – how long? The regulations require showing of “sustained acclaim” in the field of endeavor. I generally think that 3 years of active success in the industry can fit the bill and I rarely want to feature acclaim that is older than 10 years.

•

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If you feel that the case is somewhat weak, take time to build it up and/or consider starting with a O-1A visa. I consider myself conservative in assessing my client’s cases.

I don’t like taking risks on their behalf and I don’t like to lose. Even with fairly well qualified clients, I often suggest to undertake specific steps to strengthen the evidentiary basis of their EB-1 cases. Also, if it is in line with their legitimate business objectives, I would recommend starting with an O-1A visa, especially that the O-1A and the EB-1 have very similar evidentiary criteria and standards for showing extraordinary ability. So, we practice with O-1A and then perfect it with EB-1.

Use comparison with the US counterparts to explain evidence. I was taught this by a colleague and find it a winner.

For example, if I represent a personnel management consultant, who created a unique hiring method, I will compare his work to the hiring methods commonly known in the US, say, the Myers-Briggs or the Hogan pre-employment assessment methods, pointing out respective similarities or differences, as the case may be.

This brings my client’s work closer home for the adjudicator and puts his achievements at the same level as the US authorities in his field.

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Write an effective brief, starting with a strong executive summary. I’m usually trying to keep my legal briefs to no longer than 12 pages. In my opinion, the longer is the brief the less attention it will get. I usually start with an executive summary setting forth my case in four or five dense paragraphs. I think of it like this: if the adjudicating officer reads nothing else, this is what I want him to know about my client, his achievements and his unquestionable qualifications for the extraordinary ability category.

•

Keep the volume of evidence manageable.

I have seen attorneys submit cases that are over 1,000 pages long. I frankly think that if a 300-page submission is not sufficient to prove a case, 700 hundred extra pages will not make a difference. I’m trying to keep to a 300-page limit, this keeps me focused on the strongest evidence I have.

If you don’t do these types of cases, I highly recommend that you try one.

They are a lot of challenge and a lot of fun, but best of all – my clients inspire and motivate me to grow professionally and individually, and to remain forever teachable.

About the Author Lena Nevsky is a first-generation immigrant, having come to the United States as a refugee from the Soviet Union. She holds an MBA degree from New York University and a J.D., cum laude, from Seton Hall University, New Jersey. Admitted

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in New York and New Jersey, she has been practicing immigration law for over 20 years, increasingly specializing in helping business owners and entrepreneurs, mostly from Russian speaking countries, to fulfill their immigration and

busines goals in the United States.

In 2018, Lena accomplished her dream and moved to Hawaii to enjoy exquisite beauty of the islands and to maintain an online immigration practice helping clients located all over the world.

Issue No. 4

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Consular Quiz Answers 1) The visa interview. 9 FAM 504.7-2(b) https://fam.state.gov/FAM/09FAM/09FAM050407. html 2) Submit Form DS-160; pay the required application fee; and provide required biometric data (generally a photograph and fingerprints). 9 FAM 403.2-3 HTTPS://FAM.STATE.GOV/FAM/09FAM/ 09FAM040302.HTML#M403_2_5_B_2 3) Issue the visa or refuse it. 9 FAM 403.7-3 HTTPS://FAM.STATE.GOV/ FAM/09FAM/09FAM040307.HTML 4) No. Per 9 FAM 302.9-4(B)(8): “An applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” https://fam.state.gov/FAM/09FAM/09FAM030209. html#M302_9_4_B_3 5) Eligible Family Members, adult family members of U.S. government personnel overseas. https://www.state.gov/global-community-liaison-office/family-member-employment/overseas-family-member-employment/family-member-employment-within-a-u-s-embassy-or-consulate/

6) Three: The United States Ambassador to Belgium; The United States Permanent Representative to NATO (commonly called the U.S. Ambassador to NATO); and the United States Ambassador to the European Union 7) Over 40 million foreign-born individuals live in the United States today. (Per the latest census, that’s about 12% of all people residing in the country.) https://www.whitehouse.gov/briefing-room/ presidential-actions/2021/02/02/executive-order-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/ 8) No, not necessarily. “Although having physical office space may be relevant in determining whether the requirements for an E visa have been met, it is not a requirement to qualify for the visa.” FAM 402.94(D) Physical Office Space https://fam.state.gov/FAM/09FAM/09FAM040209. html

9) (c) 9 FAM 504.10-2(D)(5) https://fam.state.gov/FAM/09FAM/09FAM050410. html#M504_10_2_D_5 10) Ulaanbaatar, Mongolia; Ouagadougou, Burkina Faso; and Brazzaville, Republic of the Congo

Consular Quiz Answers

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Demonstrating Extraordinay Ability in the Arts for a Foreign Musician/Singer (O-1B) Author: Gerri Marshall, Esq.

Explaining the process of an O-1B Gerri Marshall, Esq.

GDMTheLaw.com, Gerri@GMDTheLaw.com

Visa (from start to finish) for a foreign musician/singer to a potential client (PC) can be daunting because you are doing so many different things during the consultation, such as: trying to figure out whether the PC qualifies for O-1 status, you are educating your PC about the O- 1B Visa process, you’re trying to earn your PC’s trust, you have to set up expectations they need to meet, all while many times dealing with the stress of time (most foreign musicians/singers need to be in the United States on a specific date, many times causing the O-1B Visa process to be urgent and stressful). In this scenario, a PC can be the actual foreign musician/ singer, the agent, the manager, a single employer in the United States (though rare for a touring musician/singer), and sometimes, the artist’s foreign employer/ representative.

THE 2-STEP PROCESS Who you speak to is irrelevant when breaking down the O-1B Visa process, because the O-1B Visa process is, for the most part, a big 2-step process: 1. O-1 Visa Petition (Form I-129, Form I-907 (if necessary) contracts, itinerary, publicity, arguments, and consultation letter); and 2. The O-1 interview abroad at an American Consulate/Embassy (often this step consists of the foreign musician/singer attending a biometrics appointment on the first day and the actual O-1 Visa interview the next day).

Breaking down the O-1B Visa process in this manner makes it easy for a PC to understand your consultation, makes it easier for you to explain your role in the O-1 Visa Petition, and helps set expectations of your client.

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Issue No. 4 THE 3 MAJOR REQUIREMENTS The O-1B Visa Petition can be broken down to 3 major requirements. If you satisfy these 3 major requirements, you will, for the most part, be able to satisfy the O-1B Visa Petition regulatory criteria (101(a)(15)(O) of the Act (8 C.F.R. §214.2(o)) and can check off requirements met on the I-129 checklist https://www.uscis. gov/i-129Checklist. The 3 major requirements for an O-1B Visa Petition for a musician/singer are: 1. Petitioner information and documents proving petitioner is legitimate and currently active (assuming it is a company petitioning for foreign musician/singer).

• Helps you fill out Forms G-28, I-129, and I-907.

2. Itinerary and contracts for the time requested (not more than 3-years).

• Helps you fill out Form I-129.

• Helps you satisfy regulatory criteria.

3. Musician/singer’s publicity • Helps you satisfy regulatory criteria.

Of course there are numerous other requirements for an O-1B Visa Petition you need to meet, but if you focus on satisfying the 3 major requirements listed above, you will have the necessary information to fill out required forms, draft arguments/testimonials, and send the case to the appropriate peer group or labor or management organization. In the discussion below, I will provide some ideas on how to satisfy the regulatory criteria for a foreign musician/ singer O-1B Visa Petition: 1. A written consultation from a peer group or labor and/or management organization with expertise in the field. 8 C.F.R. §214.2(o)(2)(ii)(D) In most cases, the consultation letter for a singer/musician can be obtained from the American Federation of Musicians. However, depending on the type of singer/ musician, a consultation letter may also be requested from the American Guild of Musical Artists and/or the American Guild of Variety Artists. Always contact the AFM, AGMA and /or AGVA if unsure, they are extremely helpful.

When submitting your O-1B Visa

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Petition to a labor organization or peer group to be evaluated for a consultation letter, you will need to present Form I-129, employment/ representation contracts, itinerary, and publicity. Keep in mind, you should always try to obtain the consultation letter BEFORE sending your O-1 Visa Petition to USCIS. In some cases, you may not have the time to obtain the consultation letter beforehand, and you will need to send the O-1 Visa Petition to USCIS, but keep in mind that the USCIS will send you an RFE requesting the consultation letter (amongst other things). Therefore, try your best to include it with your initially filed O-1 Visa Petition. Also, keep in mind that for your foreign musician/singer’s consultation letter may be accepted by the USCIS for a period up to 2-years of the dates of a previous advisory opinion if the foreign musician/ singer seeks to be readmitted to the United States to perform similar services (which for a musician/ singer this is usually the case for renewals).

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2. A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed. 8 C.F.R. §214.2(o)(2)(ii)(B)

3. An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events and activities. 8 C.F.R. §214.2(o)(2)(ii)(C)

For this requirement, you can present agent representation agreements, management agreements, direct employer agreements, summaries of oral agreements with employers, etc...

Try your best to not expect each O-1 musician/singer to have a specific type of contract, instead try to work with what is presented to you and/ or work together with the client to draft these agreements (if possible, so that appropriate language can be included in these agreements).

Present the agreements to USCIS and explain the basics included in the agreement such as: salary, who the principal parties are, dates, etc…

Make sure to include an itinerary with dates, names of venues/ locations/events, addresses, and contact information for venues/ locations/events. Keep in mind that the O-1 Visa Petition will be issued with validity dates in accordance with the itinerary and contracts presented to USCIS. Therefore it is important to include as much information possible of the type of work the foreign musician/singer will be engaging in the United States, such as: live music concert performances, music production, video production, promotional work, attending awards’ ceremonies, attending meetings with industry professionals (Spotify, Pandora, Universal, Sony, etc…), TV work, and other

Talent-Based NIVs

things. When including contact information for venues/locations/ events, always try to include the owner, general manager, or a wellknown promoter as the contact for the venue/location/event. USCIS will call and verify some of these individuals, and you will get hit with a nasty RFE if USCIS calls some of these contacts for the venues/ locations/events and they do not confirm the foreign musician/ singer’s upcoming performance.

Also, you should always try to include evidence to support that these contacts are who you are saying they are. Some of this evidence can include Secretary of State formation documents for the venue/locations, statement of information, articles about the venue/location/event, articles about the contact at the venue/ location/event, performance flyers, and other evidence to make it a fully documented case. The more you explain and provide evidence, the less likely you will get an RFE for this information.

Issue No. 4

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4. Evidence of the beneficiary’s extraordinary ability or achievement in the field of expertise, can be shown by evidence of a significant national or international award (8 C.F.R. §214.2(o)(3)(iv)(A)), and/or evidence of prominence in the field of endeavor. (8 C.F.R. §214.2(o)(3)(iv)(B)).

Set up your publicity evidence in the most organized manner possible to make it easy for the USCIS officer to review your case, and less likely for you to be issued an RFE. Use colored sheets listing your evidence, one by one, and indicate how each piece of evidence satisfies the regulatory criteria. For example, if you are going to include evidence that the foreign musician/ singer has Billboard Music Charts, make sure you list it on your sheets, such as in the following manner: Billboard Music Charts •

Requirement 2 – Evidence that the Beneficiary has achieved national or international recognition for achievements evidenced by critical review or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications.

•

Requirement 4 - Evidence that the Beneficiary has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other achievements reported in trade journals, major newspapers, or other publications.

Evidence of a Significant National or International Award – Grammy or Latin Grammy Award and/or Nomination 8 C.F.R. §214.2(o)(3) (iv)(A) Keep in mind that if the foreign musician/singer has been nominated for or has achieved a Grammy or Latin Grammy Award, you can easily satisfy the regulatory requirement found in 8 C.F.R. §214.2(o)(3)(iv)(A) – Evidence of a Significant National or International Award. Always include evidence of the importance of a Grammy and/or Latin Grammy Award and explain the significance of this achievement in your argument. Do not assume the USCIS Officer knows what it is. And even when the foreign musician/singer has a Grammy or Latin Grammy Award or nomination, it would be wise for you to still satisfy the regulatory criteria found in 8 C.F.R. §214.2(o)(3)(iv)(B) because believe it or not, there are still USCIS Officers who will issue you an RFE for not including any other publicity evidence, especially since the USCIS is also making “final merits determinations” for O-1 Visa Petitions.

Requirement 1: Evidence that the Beneficiary has performed, and will perform, services as a lead or starring participant in productions or events which have distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements. & Requirement 3: Evidence that the Beneficiary has performed, and will perform, services in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials.

The USCIS seems to be ok with grouping these two requirements since both require evidence of the foreign musician/singer’s previous and upcoming live performances.

Some of the evidence that can be included for these two requirements consist of the following: •

Performance flyers demonstrating the musician/ singer’s previous live music concert performances.

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Immigration Lawyers Toolbox® Magazine

• • • •

•

•

Evidence of the foreign musician/singer’s previous performances on live television Pictures showing the foreign musician/singer’s performing live.

Articles Affidavits and/or testimonials from previous employers attesting to the singer/ musician’s previous performance.

YouTube videos showing the foreign musician/singer performing (obviously take a picture of the YouTube video) Evidence of other prominent artists performing at the same venues/events where the foreign musician/singer has performed.

Requirement 2: Evidence that the Beneficiary has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications.

For this criterion, try your best to include the following types of evidence: • •

• •

Re-include the Latin Grammy or Grammy award/nomination for this criterion Evidence of OTHER awards and award nominations (Billboard, IHeart, Premio Lo Nuestro, ASCAP, BMI, SESAC, etc…)

Articles about the foreign musician/singer’s career and achievements Music charts (rankings/ratings)

• • •

• • •

Requirement 4: Evidence that the Beneficiary has a record of major commercial or critically acclaimed successes, as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other achievements reported in trade journals, major newspapers, or other publications.

For this criterion, try your best to include the following types of evidence: • • • • •

• •

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RIAA platinum and gold certification Special recognitions from government officials Evidence of millions of streams on Spotify, Pandora, Apple Music, etc… (if foreign artist does not have millions of streams, still include the evidence especially if the artist has 100,000 views).

Evidence of millions of views on YouTube Internal reports demonstrating streams/downloads/views of social media music platform Evidence demonstrating that the foreign musician’s music is played in other countries (besides the United States and the beneficiary’s country)

Music charts (rankings/ratings) RIAA platinum and gold certification High ticket sales for live music concerts Evidence of Sold-Out concerts Evidence of millions of streams on Spotify, Pandora, Apple Music, etc… (if foreign artist does not have millions of streams, still include the evidence especially if the artist has 100,000 views) Evidence of millions of views on YouTube Internal reports demonstrating streams/downloads/views of social media music platform

Requirement 5: Evidence that the Beneficiary has achieved significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field.

Such testimonials must be in a form that clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements.

• •

•

• •

• •

Testimonials and affidavits from industry experts O Make sure these testimonials are well-drafted and include as many details possible about the musician/singer and his career Publications about these industry experts demonstrating why they ARE experts in their field Re-include the Latin Grammy or Grammy award/nomination for this criterion.

Re-include evidence of OTHER awards and award nominations (Billboard, IHeart, Premio Lo Nuestro, ASCAP, BMI, SESAC, etc…)

Re-include articles about the foreign musician/singer’s career and achievements Re-include music charts (rankings/ratings)

Issue No. 4

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Requirement 6: Evidence that the Petitioner has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence.

• • • •

• • •

U.S. Bureau of Labor Statistics wage statistics for comparison Copies of your foreign artist’s previous contracts showing a highly paid salary Copies of other artists’ contracts for comparison Testimonials from other artists, indicating that the salary commanded by the foreign musician/singer is high Copies of previous tax returns showing high income Evidence of high music publishing/royalty payments If your artist does not have the above-mentioned evidence, you can think outside the box.

On one occasion, I argued that the foreign musician/singer was highly paid because he owned several restaurants and properties in an expensive beach area and made the connection that he purchased these restaurants from his high salary as a musician/singer.

About the Author Gerri D. Marshall was born, raised, and educated in Los Angeles, California, where she graduated from Southwestern Law School. She has been a member of the California Bar since 2013. Gerri is also a proud graduate of the University of California, Los Angeles (UCLA) where she obtained her Bachelor of Arts degree in both History and Political Science, often being included on the Dean’s Honors’ List.

Upon becoming a licensed attorney in California, Gerri worked as an immigration attorney in Los Angeles County where she filed 1000s of O and P Visa Petitions for musicians, music groups, singersongwriters, composers, DJs, athletes, athletic coaches, models, actors, producers, directors, tv hosts, comedians, editors, writers and business professionals from Europe, Australia, Canada, South America, Africa, South Korea, and

Mexico. She has successfully filed numerous applications related to Lawful Permanent Residency, Naturalization, waivers, Fiance Visa petitions, other work visa petitions, and federal government seizures/forfeitures with the United States Citizenship and Immigration Services, abroad at the American Consulates and with the United States Customs and Border Protection.

Gerri also files and maintains trademarks with the United States Patent and Trademark office.

Gerri is completely fluent in Spanish. When not working, Gerri loves music (and art generally) and especially enjoys attending live music festivals and concerts, including those where her clients perform. She loves exercising, reading, traveling, cooking, and spending time with her husband, family, friends, and clients.

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Obtaining H-1B Approvals for Financial Analysts Author: Ryan Knight, Esq.

Financial Analysts are no longer the Ryan Knight, Esq.

ImmigrationKnight.com, Ryan@ImmigrationKnight.com

slam-dunk occupation for H-1B petitions that it used to be. There appears to be an increasing number of AAO denials for this occupation each month. Nevertheless, it is still possible to obtain H-1B approvals for these occupations if the weaknesses are identified and countered upfront.

This scrutiny of Financial Analysts parallels the familiar trend of skepticism that often attaches itself to H-1B positions with the term “analyst” in the title (i.e., operations research analyst, market research analyst, data analyst, computer analyst, etc.). This may be directly tied to 2019 updates to the Occupational Outlook Handbook, which expanded the degree fields relevant to the occupation to encompass “a number of fields of study… including accounting, economics, finance, statistics, and mathematics.”

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This language appeared in RFEs, denials, and AAO decisions throughout 2019 and 2020. Petitioners’ reliance on the Handbook, without more, allowed USCIS to determine that a degree “in a specific specialty” was not required based on “the various degrees which many financial analysts can possess.” It is worth noting that during this period, USCIS did not put forward an argument explaining why these “various” fields were disparate – the disqualifying metric.

That said, the petitioner always bears the burden in these filings, and the failure to affirmatively provide such an argument allowed USCIS to unilaterally reach the conclusion of disparate fields.

Issue No. 4

The current Handbook provides that typical fields of study for Financial Analysts now include accounting, business, economics, finance, mathematics, and statistics. The inclusion of business as an acceptable field of study explicitly undermines a finding of a specialty occupation under § 214.2(h)(4)(iii)(A)(1) and casts doubt on the merits of the position from the start. References to O*Net and FLC Data Center do not narrow the field of study or overcome this deficiency. Petitioners should anticipate pushback and focus on the complexity and a narrow field of study for the proffered position, providing evidence under the three remaining regulatory criteria.

The first half of § 214.2(h)(4)(iii) (A)(2) – commonality – operates in tandem with the Handbook, as evidenced the holding in Shanti v. Reno (“common factors to be considered include: whether the Handbook reports that the industry requires a degree in a specific specialty…”). Consequently, reliance on this particular criterion is unlikely to result in evidence that is more probative than the Handbook as the inclusion of business or business administration as acceptable degree fields are likely to be frequently present.

As a result, sample job descriptions and credentials of similarly situated employees from related companies will likely have to be cherry-picked because of the overwhelming presence of business and business administration references. Cherrypicking weakens this evidence under the standards invoked in Earl Babbie’s Practice of Social Research, which is often used by USCIS to dismiss relevant job postings under this criterion.

Instead, petitioners may be better served by emphasizing complexity under the second half of § 214.2(h) (4)(iii)(A)(2). A robust job description is the first step, one that clearly identifies the skills and knowledge taught in finance and accounting degree programs. For each of the major job duties, match the specific knowledge taught in relevant courses (i.e., Corporate Finance, Financial Modeling & Valuation, Quantitative Financial Analysis, etc.) and apply them to the duties.

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For documentary evidence of complexity, consider searching for scholarly articles in Google Scholar that directly pertain to the proffered position. Given the sheer volume of scholarly research, it is likely that there will be an article that either explains in academic terms (jargon) the complexities of tasks like financial modeling, or that directly links financial analysis to the petitioner’s industry (i.e., commercial real estate).

The Beneficiary can help identify relevant articles.

The size and hiring practices of the petitioner may enable invoking § 214.2(h)(4)(iii)(A)(3).

If an organization or hierarchy chart is included that identifies similar positions, make sure the credentials of these hires match the stated job requirements for the proffered position. If they do, the stated requirements carry more force. That said, the third prong is the weakest of the four and meeting that criterion by itself is unlikely to carry the day given Defensor v.

Meissner. Therefore, internal hiring practices should work together with the position’s complexity and nature.

If the petitioner has several hundred employees, USCIS views the absence of hiring practices with suspicion.

It may constitute a tacit admission that other financial analysts were hired with degrees in business or business administration. In these scenarios, it would be worth identifying and differentiating these positions as lacking the complexity and responsibility of the proffered position in the support letter.

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For use under § 214.2(h)(4)(iii) (A)(4), there are still some online resources that contradict the Handbook’s inclusion of business as an acceptable degree field while also avoiding the mention of business administration. Career One Stop is still one of these, and it has a significant probative value under this final criterion as a Department of Labor publication. Maryville University and Investopedia also currently have helpful descriptions of academic preparation to support a finding that the nature of the position requires a specific, specialized degree.

Printouts from the Beneficiary’s curriculum that describe the knowledge taught in relevant classes can be applicable here as well. Also, if only a handful of job postings and employee credentials are found that support the case, consider including them under the fourth criterion rather than the second – but make sure to explicitly state that. Over the past several years, I have not seen USCIS or the AAO apply Babbie’s Practice of Social Research to evidence submitted under the final criterion.

Given the current level of scrutiny, petitioners are advised to take some time in crafting a solid job description for the initial filing, as

making significant changes after an RFE is ill-received by USCIS. Never make the mistake of including business or business administration as an acceptable degree field for the proffered position. If the Beneficiary has such a degree, the argument shifts to whether they are qualified for the position by virtue of academic concentration or experience – do not undermine the position by making these fields a stated requirement.

For an instructive analysis by the AAO, consider In Re: 6865332 (AAO June 17, 2020), which provides additional insights to avoid fatal shortcomings for a Financial Analyst.

About the Author Ryan Morgan Knight brings several years of diverse immigration experience to his practice. From handling corporate transfers, family petitions, unskilled labor filings, asylum claims, investment visas, National Interest Waivers,

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USCIS interviews, religious workers, employment-based green cards, removal proceedings, J-1 physicians, and everything in between, there are few areas within the immigration complex that Ryan

is not familiar with. He particularly excels with the most difficult cases – the long-shot H-1B, the small E-2 investment, the start-up L-1, the missed site visit, the struggling artist, etc.

Immigration Lawyers Toolbox® Magazine

Spousal-Based Green Card Applicants Forced to Conform Marriages to Imposed Standards Author: Sonya Peterkin, Esq.

M

Sonya Peterkin, Esq.

SAPeterkinLaw.com, SAPeterkin@HelpNowLaw.com

arriage to an American citizen or U.S. permanent resident remains the most common path to U.S. residency for foreign nationals. To obtain U.S. residence through marriage, the U.S. immigration system requires the parties to prove their marriage is both legally valid and bona fide at its inception.1 A bona fide marriage is defined by U.S. immigration law as one the couple entered into with the intent to build a life together, and not solely for immigration purposes.2 The decision-making authority for green card applications lies with the United States Citizenship and Immigration Services (USCIS) and consular officers who rely almost exclusively on documents, records, and photographs provided by the couple, their testimonies

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during interviews, and independent investigations. While case law establishes that immigration officers cannot dictate the lifestyle of a married couple or impose his or her ideals, in reality, marriages involving foreign nationals are held to romanticized and outdated American standards creating significant obstacles for binational spouses.3 These obstacles are even more prominent in nontraditional binational marriages since nontraditional marriages tend to contradict many of the outdated principles and traditions the government agencies have come to rely on. For this reason, immigration practitioners must be prepared to handle cases involving nontraditional binational marriages with a heightened level of skill and consideration.

Issue No. 4

This article will examine how our current immigration system creates unfair obstacles for nontraditional binational couples and practice pointers for immigration practitioners handling cases involving nontraditional marriages.

U.S. immigration officers are trained to identify specific red flags to marriage fraud, which are often insensitive to cultural differences and discriminatory. Marriages that differ from the idealistic American standards in which these red flags are premised, trigger marriage fraud suspicion. USCIS identifies the following circumstances as red flags to marriage fraud: • unusual or large age discrepancy; • unusual cultural differences; • no cohabitation since marriage; • different religious practices; and • low employment/financial status of the petitioner.

The identified fraud indicators promote ideals that fail to normalize modern marriages and the changing roles and values of the parties involved—particularly that of varying ethnicities, ages, sexuality, and cultures—and the undeniable complexities of a marital union overall. For example, generally, immigration officers view separation, discord, and extramarital affairs as illegitimacy and suspicions of fraud, instead of marital difficulties, like they are in marriages involving U.S. citizens.

Except where a different standard is specified by law, a petitioner or applicant applying for permanent resident status must only prove the validity of his/her marriage based on the preponderance of the evidence, also known as the ‘more

likely than not’ standard.4 The ‘preponderance of the evidence’ standard requires only that the evidence demonstrates that the applicant’s claim is ‘probably true.’5 In such instance, the determination of ‘truth’ is made based on the factual circumstances of each individual case.6 Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the immigration officer must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the legitimacy of the marriage is probably true.7

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Since every marital union is different, the regulations, caselaw, policy memoranda, and USCIS training materials provide a list of only suggested documents to prove a genuine marriage.8 The suggested documents include: • proof of a joint bank account; • cohabitation; • birth certificates of children born to the marriage; • joint ownership of property, etc.

The problem is, as marriages become more and more nontraditional and appear at odds with the prior generation’s ideals of marital unions, some couples will be unjustly disadvantaged from the onset of their marriage, and will not have all, or even some, of the types of evidence listed above, for a variety of reasons—some of which are simply generational changes and preferences. Although immigration officers cannot require that the parties share a certain type of marital life or that they provide specific types of documentation— since the actual type of marital relationship can take many forms so long as the parties intended to establish a life together— applicants without traditional forms of evidence commonly face higher scrutiny.

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Nontraditional Marriages And Marriages Primarily Driven For Reasons Other Than Love U.S. immigration law defines a “sham marriage” as one in which the sole purpose at the inception of the marriage is to gain an immigration benefit. Thus, based on immigration policies and regulations, economic status, political gain, melding two families, carrying on the family name, having their relationship recognized in a religious ceremony, legal gains—such as tax purposes, child custody, inheritance, and social security—are all acceptable reasons for marriage.

Yet, immigration authorities deter all but “love-based” marriages. The issue is that norms of love differ for men and women, and across age groups, ethnicities, sexuality, and cultures, and evolves over time, unlike the standards of marriage applied by immigration officers in spousal petitions.

Data reveals that some of the ways the new generation of marriages differ from traditional marriages are steady increases in interracial, interethnic, and interfaith 9 marriages, couples who choose to live separately while married,10 and married couples choosing to maintain separate bank accounts instead of pooling their money into one account.11 This data does not appear to be seriously considered

by U.S. immigration officers.

When the markers of a genuine marriage boil down to traditional hallmarks of a marital union—like joint bank accounts, cohabitation, and same race/ethnicity/religion— nontraditional marriages, and marriages primarily driven for reasons other than ‘love,’ are unjustly disadvantaged, because they appear at odds with the standards which are not based in law and relied upon by immigration officers. Thus, the adopted

nonevolving rigid standard of determining a bona fide marriage has the effect of creating unjust obstacles to couples in modern, nontraditional genuine marriages.

Practice Pointers Bark v. INS, 511 F.2d 1200 (9 Cir. 1975), states that “the concept of establishing a life as marital partners contains no federal dictate about the kind of life that the partners may choose to lead.”

In other words, adjudicating U.S. immigration officers should not have a set of requirements that all marriages must conform to. They must look at each case individually.

Additionally, foreign nationals cannot be required to have more conventional or more successful marriages than citizens.12 These laws were intended to prevent government intrusion into the personal affairs of a marital union.

However, in practice, marriages involving foreign nationals are held to standards and expectations that have been made necessary for conferment of immigration benefits, even when not based in law.

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Issue No. 4

Nontraditional marriages will need to be approached with careful strategy and case preparation in anticipation of government suspicion.

The immigration practitioner must inquire into the relationship of the parties before and after marriage. The most important question in any marriage case is: Did the couple intend to establish a life together at the time of marriage? The more the practitioner learns about the marriage and the parties of the marriage, the better the practitioner can pinpoint the less traditional areas of their relationship (weaknesses) and understand the reasons behind it in anticipation of government suspicion. The practitioner must identify the problem to the client and go over it so the client can explain the issue factually at the time of the interview.

Once issues in the case are identified and a plan is made to deal with them, practitioners must impress upon their clients the need to provide documentation of their lives together. The practitioner must determine creative ways of proving a bona fide marriage for clients unable to produce traditional forms of evidence such as joint bank accounts and cohabitation. The type and amount of documentation will depend entirely on the facts of the case. Each document provided as evidence must be carefully reviewed to ensure the documents

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say what they are intended to say, and if they do not, there is an explanation of why, and if possible, documentation supporting the explanation. Examples of less commonly used evidence of a bona fide marriage include: • memberships to organizations and clubs like gyms and wholesale stores; • online accounts showing relevant and important personal information; • personnel records from current and/or former employers naming the other spouse as the emergency contact; • if the spouses have pets, a printout of a letter or bill from the veterinarian listing both spouses (or a joint pet adoption certificate); • affidavits from people with first-hand knowledge of the relationship—in addition to friends and family seek affidavits from coworkers, pastors, clergymen, and members of church congregation, neighbors, landlords, etc.; • a printout from Netflix or a similar membership showing that each spouse is listed as a user; • letters or cards addressed to the couple; and • records showing the spouses both are members of the same religious institution.

Submitting documentation that evidences a bona fide marriage and provides explanations to any discrepancies in the case is just one part of proper case preparation.

The immigration practitioner must prepare the parties of the marriage for their interview. The immigration practitioner must go over the questions and answers they can likely expect at the interview.

For complete representation, immigration practitioners should be prepared to accompany the parties to their USCIS interview and to advocate for them by helping the client deal with issues that may arise and clarify questions regarding aspects of their case.

Couples seeking to obtain lawful permanent resident status through a marriage-based green card application, and who must prove that their marriage is genuine, must adhere to outdated practices and American traditions, and measure up to discriminatory standards to be acknowledged by immigration officers as legitimate partners.

Until these standards are changed, immigration practitioners must be prepared to advocate for clients— particularly of nontraditional marriages—at every stage of the immigration process.

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Immigration Lawyers Toolbox® Magazine About the Author Sonya Peterkin is a Floridalicensed immigration attorney.

Sonya’s Jamaican roots allows her to uniquely and personally relate to immigrants and their families.

Her relatedness and unique understanding of immigrants and the issues they face, are what drives her to dedicate her advocacy skills towards advancing the rights of immigrants and vulnerable groups, as well as educating the community.

Sonya’s practice consists primarily of family-based immigration matters. During her law school internships, she became a Certified Domestic Violence Advocate, where she worked with many domestic violence victims in Central Florida to obtain protective orders against their abusers in court. Due to her legal training and experience with domestic violence matters, combined with her passion for immigration law, she developed

a special interest in assisting immigrant victims of domestic violence obtain immigration status under the Violence Against Women Act. She has spent her legal career merging her passion, experience, and knowledge, to provide reliable family-based U.S. immigration representation internationally, and participates in various speaking engagements and within organizations enhancing communities.

Endnotes 1

Matter of Laureano, 19 I. & N. Dec. 1, 2–3, 1983 WL 29913 (BIA 1983).

2

Id.

3

Damon v Ashcroft, 360 F. 3d 1084 (9th Cir. 2004).

4

Matter of Chawathe, 25 I & N Dec. 369, at 375 (AAO 2010).

5

Id at 376.

6

Id.

7

Id.

8

Matter of Soriano, 19 I&N Dec. 764, 765-766.

9 Brittany Rico, Rose M. Kreider, and Lydia Anderson, Growth in International and Interethnic Married-Couple Households, Census Bureau (July 9th, 2018), https://www.census.gov/library/stories/2018/07/interracial- marriages.html.

10 Samantha Joel, Ph.D, Could You Live Apart, Together, Psychology Today (October 31, 2013), https://www.psychologytoday. com/us/blog/dating-decisions/201310/could-you-live-apart-together.

11 TD Bank Survey Finds Many Couples Maintain Separate Bank Accounts (Mar. 24, 2014), available at https://mediaroom. tdbank.com/2014-03-24-TD-Bank-Survey-Finds-Many-Couples-Maintain-Separate- BankAccounts.

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Id.

Marriage-Based

Facebook Immigration Lawyer Groups 1

Nerdy Immigration Lawyers Solo Immigration Attorneys

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Business Immigration Attorneys E-Visa Master Practitioners

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L-1 Visa Master Practitioners Crimmigration

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2

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

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Privately Enforcing the Financial Support Obligations in the Form I-864, Affidavit of Support Author: Joseph Gentile, Esq.

Lily met Mark while he was working Joseph Gentile, Esq.

SarrafGentile.com, Joseph@SarrafGentile.com

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abroad and she was finishing school.

They hit it off instantly and got married.

Mark was then relocated back to America and they moved. It was Lily’s first time away from home. Mark was a US citizen, sponsored Lily for her green card and signed a Form I-864, Affidavit of Support.

In addition to being newly married and a little homesick, Lily was on her way to making the American Dream a reality. But the relationship soured. Mark became abusive. Lily visited the ER a few times.

Mark refused counseling. Lily finally left.

Mark earned all the money and refused to financially help her. Lily stayed with

Affidavit of Support

friends, but she was unable to find work and was ineligible for most public assistance because she lacked citizenship.

Unable to lean on her friends for much longer, a shelter might be necessary.

For most immigration lawyers, the fact pattern is clear: CR1, I-130, a conditional green card, upcoming 751, possible VAWA, etc. But what about the I-864?

Mark sponsored her and promised to financially support her. This frequently overlooked and rarely enforced document deserves a second look. For those like Lily, it’s a lifeline.

Issue No. 4

Some Background -- Form I-864 Basics

Introduction The financial benefits conferred on sponsored immigrants by the Form I-864 have been poorly understood, rarely enforced and frequently maligned. As a result, many immigrants who divorce or separate from their sponsoring spouses, have unnecessarily struggled financially. They have been essentially left in the cold and have unknowingly walked away from life-changing sums of money.

Without US citizenship, sponsored immigrants can only receive very limited government aid and, if unable to support themselves, must rely on the help of friends or charitable organizations (which is often inadequate) to survive. The Form I-864 offers a real lifeline. And it’s incumbent on the immigration bar to ensure that it’s thoughtfully used.

For better or worse, a centuryold bedrock principal of U.S. immigration policy is that the US should not admit those deemed likely to become a “public charge.”

Act of Aug. 3, 1882, 22 Stat. 214.

For decades, the Form I-864 has been the practical manifestation of that principal. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (creating the binding Affidavit of Support). Not surprisingly, the I-864 is mandatory in nearly all family-based immigration cases.

The relevant statute can be found at section 213(A) of the INA. 8 U.S.C. § 213A; 8 C.F.R. § 213a.

The Form I-864 is usually one of many documents that are signed during the course of an immigration application. This form is signed not by the intended immigrant but by the “sponsor” who becomes legally bound to financially support the intended immigrant if he or she is unable to do so. Once signed, the I-864 becomes a binding contract between the sponsor and the US government, of which the sponsored immigrant is a beneficiary.

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The document is essentially a risk-allocating device designed to ensure that US taxpayers bear little of the financial risks associated with this new immigrant. The I-864 accomplishes this with two financial levers.

First, it obligates the sponsor to repay any government assistance (e.g., food stamps, social security insurance, Medicaid, etc.) consumed by the beneficiary. Second, it requires the sponsor to ensure that the sponsored immigrant is always supported with a minimal amount of money; specifically, at least 125% of the federal poverty line. While the poverty guidelines are updated annually and the actual financial amount varies based on geography and personal circumstances, the current (2021) monthly amount is $1,342 for a single adult. In other words, a sponsor must ensure that the sponsored immigrant earns or receives at least that much a month.

Any amount that the sponsored immigrant earns less than $1,342, the sponsor must make up. In certain situations, these amounts can add up, especially if months or years pass without any financial support. In certain circumstances, like those involving our fictional Lilly, these amounts can be lifechanging.

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This obligation to financially support a sponsored immigrant begins when the immigrant obtains status based on the sponsor’s support.

And the obligation continues indefinitely until one of five events occur: 1. Citizenship. The immigrant becomes a US citizen.

2. Work Credits.

The immigrant receives credit for 40 quarters of work.

3. Departure. The immigrant stops being a permanent resident and leaves the US. 4. Another Sponsor.

The immigrant obtains status based on another sponsor.

5. Death. The immigrant or sponsor dies.

Critically – and as the Form I-864 explicitly notes – divorce or separation “does not” end a sponsor’s I-864 obligations. In fact, aside from the five items listed above, nothing can terminate the sponsor’s obligations to ensure that the immigrant is earning the prescribed amount. In other words, there are no traditional “defenses” other than these five terminating events.

Enforcing the Obligations

I-864

Financial

In crafting the I-864, the government recognized that some sponsors may refuse to fulfill their financial obligations to the detriment of both the indigent immigrant and taxpayer-backed support programs on which sponsored immigrants may need to rely.

Sometimes sponsors (like our fictional Mark) do shirk these responsibilities. As a result, lawmakers who instituted the Form I-864 also passed rules that allow sponsored immigrants to sue their sponsors, something which the I-864 explicitly notes. To encourage sponsor compliance, and the retention of qualified counsel to prosecute such claims, the law also contains a fee shifting provision.

Sponsors who are successfully sued must not only pay the money they owe the immigrant but must also pay attorneys fees and costs incurred to compel such payment.

As a result of these rules, sponsored immigrants are able to hire lawyers on a contingency basis – usually without having to pay any upfront costs – to sue their sponsors. This means that attorneys who handle I-864 cases usually cover all the litigation expenses and only get paid if they win. This is in contrast to how most divorce or immigration lawyers charge their clients on an hourly or flat-fee basis. Indeed, family law cases and the state courts in which they are typically litigated, prohibit contingency fee arrangements.

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While state and federal courts share concurrent jurisdiction, I-864 enforcement actions are best suited for federal court. That is because the legal claim is based entirely on a body of law and immigration policy that is federal in origin, and raises purely federal questions. Moreover, federal judges are more likely to enforce the actual terms and rigid contractual framework of a contract between the defendant-sponsor and the US government, wherein the sponsored immigrant plaintiff is a beneficiary. In fact, bringing I-864 claims in state court, especially in the context of a divorce or other domestic state law proceeding, potentially complicates already complex issues and could result in erroneous judicial decisions. That is because state court judges may reflexively apply equitable concepts to what is a strict breach of contract claim for which there are few, if any, defenses.

Issue No. 4

For example, despite the fact that the term “income” as used in the relevant statute is specifically defined and limited to “taxable earnings,” 8 C.F.R. § 213a.1 (definitions), state court judges will usually impute to the immigrant the “worth” of certain charitable items, such as the rental value of having been able to sleep on a friend’s couch. So in our fictional story above, even though Lilly was unemployed and sheltered with friends to avoid further abuse, a state court judge might conclude that she was still “earning” $500 a month since that was the value he ascribes to the sofa she slept on. A federal judge, applying the statutory definition of “income,” would likely recoil at such gymnastics.

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Finally, most courts have held that state divorce law cannot be used to waive I-864 rights. As the Ninth Circuit held: Thus, under federal law, neither a divorce judgment nor a premarital agreement may terminate an obligation of support. Rather, as the Seventh Circuit has recognized, “[t]he right of support conferred by federal law exists apart from whatever rights [a sponsored immigrant] might or might not have under [state] divorce law.” Liu v. Mund, 686 F.3d 418, 419–20 (7th Cir. 2012).

Erler v. Erler, 824 F.3d 1173 (9th Cir. 2016). This, too, counsels in favor of filing I-864 actions in federal court.

Nevertheless, some courts will entertain the idea that a preciselyworded global settlement, separation agreement or divorce decree may extinguish the financial support obligations of a sponsor.

These fact patterns vary widely and are unique enough to require a case by case analysis. Similarly, obtaining citizenship through other means, such as with another sponsor, VAWA or another route that allows for self-sponsorship, presents complications that must be thoroughly vetted before taking any action.

Conclusion The financial obligations sponsored immigrants are owed based on the Form I-864 is a meaningful benefit that warrants attention and, in rare instances, enforcement.

For the immigration lawyer, this presents a useful, powerful and underappreciated tool.

About the Author Joseph Gentile is a co-founding member of Sarraf Gentile LLP, a New York based law firm that represents immigrants and others in federal complex litigation nationwide. The firm’s cases have recovered over $2 billion. For more information, please visit www. sarrafgentile.com or email Joe at joseph@sarrafgentile.com.

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Cancellation of Removal (Part III): Exceptional and Extremely Unusual Hardship Author: Claribel P. Madueña, Esq.

Welcome to the third article in a four-

Claribel P. Madueña, Esq. Claribelaw.com, Claribel@Claribelaw.com

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 immigrants in removal proceedings. Immigration & Nationality Act (INA) §240A. This remedy is available to certain lawful permanent residents (green card holders) and non-residents.

To qualify for cancellation of removal as a legal permanent resident, applicants must establish: 1) lawful permanent residency for at least 5 years; 2) continuous physical presence in the United States for at least 7 years after having been lawfully admitted; and 3) no aggravated felony convictions.

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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) 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 removal would result in the requisite hardship.

Issue No. 4

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3. The health condition of the respondent, or respondent’s children, spouse, or parents and the availability of any required medical treatment in the country of return;

Exceptional and Extremely Unusual Hardship to Qualifying Relatives Once you have determined that your client is statutorily eligible for cancellation (no disqualifying crimes and continuous physical presence met), you must consider hardship. Please note that only nonpermanent residents are required to show their removal from the United States would result in “exceptional and extremely unusual hardship” to their qualifying relatives.

Exceptional and extremely unusual hardship is defined as hardship that is “substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members here.” Matter of Monreal, 23 I&N Dec. 56, 65 (BIA 2001).

There is no bright-line rule for hardship, instead, the court looks at a cumulative of factors to make its determination. These factors first appeared in 1999 to provide guidance for “extreme hardship” in suspension of deportation cases. The Nicaraguan Adjustment and Central American Relief Act (NACARA) regulations also refers to those factors and are codified at 8 CFR §1240.58: 1. Age of the respondent at time of entry to the U.S. and at time of application;

4. Respondent’s ability to obtain employment in the country of return; 5. Length of residence in the U.S.; 6. Existence of other family members who are or will be legally residing in the U.S.; 7. Financial impact of the respondent’s departure; 8. Impact of a disruption of educational opportunities; 9. Psychological impact of the respondent’s removal; 10. Current political and economic conditions in respondent’s country of origin; 11. Family and other ties to the country to which the respondent would be returned; 12. Contribution to and ties to a community in the United States, including the degree of integration into society; 13. Immigration history, including authorized residence in the United States; and 14. Availability of other means of adjusting to permanent resident status.

While the concept of “exceptional and extremely unusual” is easy to understand, in practice it is factintensive and laborious as reflected by the factors. If preparing the hardship component of your case feels easy, you are not trying hard enough! Not every factor will necessarily apply in your client’s case, but for the factors that do apply, you must document the hardship thoroughly. It is your client’s burden to establish the facts of their case. See section 240(c)(4)(B) of the Act, 8 U.S.C. §1229a(c)(4)(B) (2018) (providing that an applicant “must comply with the applicable requirement to submit information or documentation in support of the applicant’s application for relief”).

See generally Matter of CalderonHernandez, 25 I&N Dec. 885, 886 (BIA 2012) (discussing the presumptions and requirements of proof regarding whether a qualifying relative child will remain in the United States or leave with the applicant); Matter of Ige, 20 I&N Dec. 880, 885–86 (BIA 1994) (same).

2. The age, number, and immigration status of the respondent’s children and their ability to speak the native language and to adjust to life in another country;

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Strategy and Analysis My advice is to start developing the theory of hardship early, which will require many conversations with your client and their family members.

1.

Who is a qualifying relative?

Only legal permanent resident or U.S. citizen spouses, children, and parents are considered qualifying relatives (QR). If your client does not have a QR, then they do not qualify for cancellation. To qualify as a spouse, your client must be in a valid and bona fide marriage! I have had clients refer to their partner as a “spouse” without being legally married, so be sure you confirm the relationship with legal documents.

A “child” in immigration law is defined as someone who is under 21 years old and unmarried. See INA §101(b)(1). Once a child turns 21 years old or marries, that person is no longer a qualifying relative for non-LPR cancellation of removal. This is especially important to remember when advising your client and scheduling your merits hearing date. You must submit a birth certificate listing the applicant as a parent to prove the relationship. A stepchild may also be a qualifying relative if the applicant married the child’s parent before the child turned 18.

You must submit the child’s birth certificate and marriage license to prove this relationship.

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The respondent’s hardship is not part of the equation, but it is worth mentioning as it relates to the QR’s suffering. For example, in Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) the applicant had six children, two of whom were undocumented.

The Board of Immigration Appeals considered the hardship of the two undocumented children as it affected the four U.S. citizen children. To prove the familial relationship, be sure to submit birth certificates, marriage licenses, and any other relevant document.

2.

Evidence of Hardship

Start gathering the evidence early and make sure your client understands what you need! Keep in mind that you may need to help them with certain requests.

Sometimes, I draft a letter for them to take to their child’s school, therapist, and/or doctor.

Or I make the request myself by mail, fax, email, or online forms depending on the agency and/or my client. As you have probably already learned, some clients are

not as cooperative, or they have a hard time understanding where to go for information. Below is a list of evidence you should submit; however, it is non-exhaustive, and I encourage you to get creative! a.

Determine what your client’s family will do if your client is ordered to return to their country of origin. This is a difficult conversation because it is fraught with emotion, but also because many families do not know what they would do for certain. I phrase this question as “I know it is impossible to know what you will do if your case is denied, because it is scary and awful to think about.

However, we must tell the judge what the most likely scenario would be for your family so that we can prepare the case accordingly.”

I also break down what hardship means and how we prove it.

This usually activates the client’s thought process and participation.

I think it’s important to empower them and make it clear that you’re a team. We cannot win cases without client cooperation!

Issue No. 4

b.

Talk to your client and family members. At first, I like to ask clients basic questions to get a sense of their daily lives and stresses. For example, work, income, health, children’s health, family members here in the U.S., family members in the country of origin, education level, and goals for the future. Once I have built trust with clients, I dig deeper – always starting with the basic definition of exceptional and unusual hardship. “Of course, your family would be devastated if your case isn’t granted, but is there anything else we can present to the judge to make you stand out?”

This is when I ask questions about death, abuse, trauma, and mental health. c.

Declarations. You must include a declaration from your client detailing the hardship their qualifying family members would face if the application is not granted.

If your QR is a spouse, you must also submit their detailed declaration.

If your client’s child[ren] are old enough, they should also submit a declaration. The more details, the better!

e.

Financial records. Request bank statements, receipts, pay stubs – anything that will show income and expenses. For many of our clients, this is perhaps the biggest factor, however, the BIA has made clear that economic hardship factors will not be the sole basis for an exceptional and extremely unusual hardship finding. Even if you add the argument that your client’s children may face fewer economic and educational opportunities in the parent’s country of origin, it is still insufficient to support a finding of the required hardship. See Matter of Andazola, 23 I&N Dec. 319, 323 (BIA 2002). f.

Pre-hearing Statement.

You must put as much detail and reference the record. Remember, we want to make it easy for judges to grant our clients’ applications!

Really connect facts to the hardship factors, always striving to make your client’s circumstances “exceptional and unusual.”

3.

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Preparation is key!

Know the facts of your case and work closely with your client to prepare them for the hearing. By the time the merits hearing arrives, you should have an extensively documented case. This will make the hearing go much more smoothly and put you more at ease. Sometimes, your client may win before ever stepping into the courtroom.

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.

d.

Medical records. Request medical records and provide summaries if the record is extensive.

This will make it easier for the judge and it is also another opportunity for you to make your case! If your client’s qualifying relative has a certain medical condition, print articles regarding that condition.

Also, if you’re making the argument that medical treatment in the country of origin is expensive or simply unavailable, prove it. Provide expert declarations, articles, and research speaking to this specific issue to give your argument teeth.

Matter of J-J-G, 27 I&N Dec. 808, 811 (BIA 2020).

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Federal Case Corner Author: Sabrina Damast, Esq. This recurring column will highlight some of Attorney Sabrina Damast’s favorite federal court decisions from the prior three months. The cases will run the gamut of immigration practice, from detention issues to crimmigration, due process to asylum eligibility.

First Sabrina Damast, Esq.

SabrinaDamast.com, Sabrina@SabrinaDamast.com

Circuit Rejects Bright-Line Requirement for Prolonged Detention Bond Hearings

Fourth Circuit Finds that IJs have Inherent Authority to Terminate Removal Proceedings

The First Circuit has determined that the Constitution does not require a bond hearing for all non-citizens who have been detained for more than six months.

Rather than draw a bright line, the court determined that the reasonableness of prolonged detention will need to be analyzed on a case-by-case basis, mandating that individual detainees file habeas petitions in federal court demanding that they receive a bond hearing before an immigration judge.

The Fourth Circuit has determined that Immigration Judges have the inherent authority to terminate removal proceedings.

This authority derives from the same regulatory authority that gives Immigration Judges and the Board of Immigration Appeals the authority to administratively close proceedings (8 C.F.R. § 1003.10(b) and 8 C.F.R. § 1003.1(d) (1)(ii)). The Fourth Circuit declined to defer to the Attorney General’s contrary decision in Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (AG 2018).

The full text of Reid v. Donelan can be found here: http://media.ca1.uscourts. gov/pdf.opinions/19-1787P-01A.pdf

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The full text of Chavez Gonzalez v. Garland can be found here: https://www.ca4. uscourts.gov/Opinions/201924.P.pdf.

Issue No. 4

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Eleventh Circuit Address Consular Nonreviewability Doctrine The Eleventh Circuit has determined that the doctrine of consular nonreviewability does not deprive a federal court of subject matter jurisdiction over a challenge to a visa denial. However, the doctrine does protect the government from having to proffer a factual predicate for a visa denial if the consular officer cited to a ground of inadmissibility that specifies discrete factual predicates. The petitioner in this case did not allege that the Department of State denied the visa in bad faith. Therefore, the court did not have the opportunity to opine on what factual assertions in a complaint would be sufficient to plead bad faith.

Sixth Circuit Allows U Visa Applicants to Sue USCIS Over Delay in Adjudication of Waitlist Determinations

Fifth Circuit Requires Reopening of In Absentia Order when NTA was Missing Time and Date of First Removal Hearing

The Sixth Circuit has determined that U visa applicants may sue U.S. Citizenship and Immigration Services over the agency’s delayed adjudication of U visa applications that, if approvable, would result in the placement of the applicant on the U visa waitlist. Notably, the court was not persuaded by the government’s argument that reasonableness should be measured

by USCIS’s published processing times for U visa applications, suggesting instead that “most (if not all) U-visa adjudications might be unreasonably delayed.” The court deemed it “unhelpful to fixate on the average snail’s pace when comparing snails against snails in a snails’ race.”

The Fifth Circuit has determined that an Immigration Court must rescind an in absentia removal order issued against a respondent when the Notice to Appear served on the respondent was missing the time and date of the first removal hearing. The court noted that the code sections governing recission of an in absentia removal order and the stop-time rule both reference the notice requirements of 8 U.S.C. § 1229(a). Thus, a Notice to Appear that is insufficient to trigger the stop-time rule because of missing information related to the first removal hearing is also insufficient to substantiate an in absentia order, as per the Supreme Court’s recent decision in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).

The full text of Barrios Garcia v. U.S. Department of Homeland Security can be found here: https://www.opn.ca6.uscourts. gov/opinions.pdf/21a0217p-06. pdf.

The full text of Del Valle v. Secretary of State can be found here: https://media.ca11.uscourts.gov/ opinions/pub/files/201914889. pdf

The full text of Rodriguez v. Garland can be found here: https://www. ca5.uscourts.gov/opinions/ pub/20/20-60008-CV0.pdf.

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Ninth Circuit Finds that a Final Removal Order does not Trigger the Stop-Time Rule The Ninth Circuit has determined that the issuance of a final removal order (after service of a defective Notice to Appear) does not trigger the stop-time rule for cancellation of removal purposes.

This is important for individuals who already have an administratively final removal order, and who may be filing a motion to reopen for cancellation of removal, or who may be contesting their removal orders at the circuit court. These individuals are continuing to accrue physical presence in the United States, assuming their Notices to Appear lacked the time and date of their first removal hearing.

The full text of Cantor v. Garland can be found here: h t t p s : / / c d n . c a 9 . uscourts.gov/datastore/ opinions/2021/11/03/19-73085. pdf

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Ninth Circuit Requires the Department of Homeland Security to Make a Good Faith Effort to Produce the Drafter of a Probation Report and a Crime Victim for Testimon The Ninth Circuit has determined that when the Department of Homeland Security (DHS) produces a probation report that contains a victim’s narrative, it must make a good faith effort to produce both the drafter of the report (i.e., the probation officer) and the victim for cross-examination. In this case, the DHS produced the probation report to support its assertion that the petitioner had been convicted of a particularly serious crime.

Therefore, was ineligible for withholding of removal. The court noted that the petitioner “was never given any sort of opportunity to cross-examine the witnesses whose testimony was embodied in the probation report, and upon whose testimony the BIA ultimately relied upon in denying his appeal. Nor

was any effort made – good faith or not – by the DHS to procure the witnesses, after Alcaraz preserved his right by adequate objection.

This rendered the BIA’s procedure fundamentally unfair, especially given that probation reports may not offer a ‘highly reliable basis’ on which to make important immigration decisions.”

The full text of Alcaraz-Enriquez v.

Garland can be found here: h t t p s : / / c d n . c a 9 . uscourts.gov/datastore/ opinions/2021/09/16/15-71553. pdf

Issue No. 4

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

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

Ninth Circuit Eliminates Single Factor Rule in Credibility Determinations The Ninth Circuit, in an en banc decision, has abrogated its rule that it must uphold an adverse credibility determination if a single factor cited by the agency is supported by substantial evidence.

The court found this rule to be inconsistent with the REAL ID Act’s requirement that credibility determinations be made using a “totality of the circumstances” standard.

The full text of Alam v. Garland can be found here: h t t p s : / / c d n . c a 9 . uscourts.gov/datastore/ opinions/2021/09/08/19-72744. pdf

Second Circuit Applies Matter of Soram Retroactively The Second Circuit has determined that the Board of Immigration Appeals’ definition of a crime of child abuse under section 237(a) (2)(E)(i) of the INA, as outlined in the Board’s decision in Matter of Soram, 25 I&N Dec. 378 (BIA 2010), can be applied retroactively to pre2010 child endangerment crimes.

Thus, the court found the petitioner removable for a 2006 conviction in New York for child endangerment.

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.

The full text of Marquez v. Garland can be found here: https://www.ca2.uscourts.gov/ decisions/isysquery/198e93b50 3 e 8 - 4 9 1 a - a 0 e 7 202821b1e8e4/2/doc/18-3363_ o p n . p d f # x m l = h t t p s : / / w w w. c a 2 . u s c o u r t s . g ov / d e c i s i o n s / isysquery/198e93b5-03e8-491aa0e7-202821b1e8e4/2/hilite/

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Global Business Mobility Visa Promises a New Solution for Companies Moving Staff to the UK Author: Vanessa Ganguin, Esq.

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Vanessa Ganguin, Esq.

VanessaGanguin.com, Vanessa@VanessaGanguin.com

K immigration practitioners are eagerly awaiting to see how the UK Government’s latest immigration reform to reflect the global nature of business pans out. The Global Business Mobility visa is set to commence in Spring 2022 and will provide more new solutions for companies moving staff to the UK – whether or not they have a presence there.

“Immigration routes that may once have worked for business, no longer do; they have not evolved in tandem with businesses,” a recent Government briefing admitted. It promised the new Global Business Mobility visa route would “enable an overseas business to temporarily send an employee to the UK for a specific corporate purpose that could not be done by a resident worker.”

Global Business Mobility visas should prove helpful for firms establishing a UK footprint or transferring trainees, senior and specialist staff to the UK as well as secondments to UK firms on big contracts.

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What problems does the Global Business Mobility visa solve?

Examples of the kind of immigration solutions the Global Business Mobility visa is set to advance includes setting up a subsidiary in the UK and being able to send a whole specialist team of “expansion workers” - not just the sole representative currently allowed. There will now be a route for businesses with no UK presence to send workers to establish a branch or subsidiary which is much more handy than existing routes. An easy transition to sponsor these workers in more permanent roles once a UK branch is operational is promised too.

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How would sponsorship work on the Global Business Mobility route?

The new route also promises immigration provisions for secondments to a UK firm that companies may be doing business with to oversee production and get hands-on experience in a way that would be tricky under a visitor visa. The new visa will enable secondments in high value import and export deals and to oversee substantial investment. The existing visitor visa route is very restrictive as people can only come for six months which sometimes isn’t enough. The current arrangements only cover employees of clients of UK export companies, not import related secondments.

Who should apply for a Global Business Mobility visa?

The UK Home Office has announced five categories who will benefit from the new immigration route: •

• •

•

•

Senior or specialist workers meeting specific business needs Graduate trainees as part of a training programme Secondment workers to UK firms in high value contracts or investments Service suppliers to the UK in line with UK trade agreements UK expansion workers establishing a UK presence

What requirements will Global Business Mobility visa applicants need to demonstrate?

The Home Office has intimated that depending on which of the above assignments they are on, applicants may need to meet the following requirements: • • •

•

Sponsorship by the UK entity receiving applicants Appropriate skill and salary levels for the role Minimum length of time an applicant has been employed by the overseas firm Assignments will be temporary (though flexible and routes should be switchable to more permanent status)

These requirements will be confirmed when more details of this new visa are announced.

The principle will be that the UK business that receives the workers will be the sponsor licence holder. Applicants would need to demonstrate they have a receiving business, a sending business and that there is a business relationship between them. For example, an overseas parent company could be sending staff to a UK subsidiary; or an overseas service supplier may have a contract with a UK client; or an overseas company could be sending staff on secondment to a UK supplier of goods or setting up a UK branch pre-trading.

In the case of UK expansion, it will be interesting to see whether the new UK branch applies for a licence on arrival, or if an overseas business has access abroad to apply for the licence first to give it a head start. The Home Office has identified challenges it needs to overcome in establishing this route, including what footprint would reasonably be expected before they can sponsor workers and what activities connected to establishing the footprint could not be done as a business visitor.

The first three will be for firms with a UK presence, the last three at firms with no UK presence.

(Secondments are a route for both.)

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What routes may the Global Business Mobility visa replace?

The new route appears to consolidate the existing IntraCompany Transfer visa (plus recent UK Migration Advisory Committee recommendations on the route following a consultation) along with other business mobility routes such as Sole Representative of an Overseas Business, IntraCompany Graduate Trainee visa and the Temporary Work – International Agreement visa.

if the Home Office’s Migration Advisory Committee’s recent recommendations are indeed followed – to enable a team of up to five to come to the UK to establish a subsidiary of an overseas business.

Could Global Business Mobility visas lead to settlement in the UK? The good news is that a Home Office briefing to UK immigration lawyers has intimated that on the Global Business Mobility visa “assignments will be temporary but flexible and workers will be able to switch to permanent routes.”

The Global Business Mobility visa appears to be an update of such existing routes to facilitate international agreement visas for contractual service suppliers and independent professionals, secondments or short term assignments and –

There are some questions remaining about the longer-term aspects of the Global Business Mobility routes. At present, current routes have different limits on how long they can stay in the UK, varying from up to six months under the business visit secondment rules

to potential settlement under as a Representative of an Overseas Business. With the exception of the latter, migrants do not start counting time toward settlement unless they switch to the Skilled Worker route, and visitors are not even permitted to do that.

The Migration Advisory Committee has recommended allowing time spent on the temporary IntraCompany Transfer route to count towards a route to settlement.

Hopefully this recommendation will also inform the Global Business Mobility visa to make like easier for people who need to stay on a more permanent basis.

As always, the devil will be in the detail. For more details watch this space.

About the Author With over 25 years’ specialist experience in UK immigration, Vanessa Ganguin’s immigration advice has spanned high court appeals to multinational takeovers. Vanessa co-founded boutique US-UK immigration law firm Ganguin Samartin in 2015, before

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founding UK immigration specialists Vanessa Ganguin Immigration Law last year. As Managing Partner, Vanessa continues to advise a wealth of clients from the US still, from entertainers and artists to start-ups and big brands moving staff to the UK.

Immigration Lawyers Toolbox® Magazine

Italy: Visa Options for Individuals and Companies Author: Marco Mazzeschi, Esq.

Italian immigration procedure for Marco Mazzeschi, Esq. Mazzeschi.it, MM@Mazzeschi.it

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work or business purposes varies depending on the length of the foreign citizen’s intent to stay in Italy.

For stays up to 90 days every 180-day period: (i)

If the individual is a visa required national (such as China, India, Russia nationals), he will need to obtain an entry visa from the Diplomatic Italian Authority (Italian Consulate) in the citizen’s country of residence. It cannot be issued directly in Italy or by an Italian Consulate located in a country where the applicant is not formally a resident. Usually, the visa is released after 3 to 15 days from the application date but timing may vary depending on the competent diplomatic authority;

(ii)

Non-visa required nationals (such as U.S. citizens) can enter on business or tourism, up to 90 days every 180-day period, without requiring a visa. You can find more information on how to calculate your 90 days using this tool https://www.mazzeschi.it/ how-can-i-count-my-90-days-inthe-schengen-area/.

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For any stay exceeding 90 days, irrespective of the purpose of the stay, a visa is required.

Visas for Individuals: 1. Elective Residence Visa (ERV): this visa is for those who want to live in Italy without working. ERV requires the applicant to show a minimum passive income (i.e. not deriving from work or salary) of not less than € 31,000/year and to have a suitable accommodation. Applicants cannot work and are not permitted to work from home, blog for payment, or otherwise dodge this restriction.

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2/3 of the total workforce must hold a Master’s degree; (iii) the enterprise is the holder, depositary or licensee of a registered patent (industrial property), or the owner and author of an original registered software.

Applicants must submit documents proving a substantial and steady private income (including pensions or annuities) from property, stable economic and commercial activities, or from other sources and proof of financial means, such as letters from the applicant’s bank indicating the financial status of their accounts, including the amount of money in each account, copy of last pension, tax returns, etc. The spouse and children up to 18 years of age are entitled to a family visa, but the applicant will need to prove a higher income (+20% for the spouse and +5% for each child).

2. Investor Visa: In 2017, Italy introduced a visa for investors seeking to enter Italy to engage in capital investments that benefit the Italian economy.

The Investor Visa can be obtained by: (i) purchasing Italian government bonds worth two million euro (to be kept for a period of at least two years); or (ii) investing € 500,000 in a company or € 250,000 in a “innovative start-up”; or (iii) donating one million euro in philanthropic projects of public interest.

An investor visa holder receives a two-year residence permit (permesso di soggiorno

“per investitori”), which is renewable for an additional three years subject to proving that the investment is still in place.

3. Create your own “start-up” company: an attractive option for those who want to relocate to Italy and start a business.

This visa is aimed at nonEU nationals intending to set up an innovative start-up business (companies must meet the conditions set forth by law 221/2012) or to join an already established startup company. The applicant must: (i) prove the availability of at least € 50,000 to be used for the sole purpose of establishing and operating the start-up; and (ii) submit a detailed business plan. The key for obtaining the clearance from the Italian Ministry of Economic Development is being able to submit an “innovative” project rather than the availability of funds.

4. Start your own business: if you do not qualify for a start-up visa but you still intend to carry out business activities in Italy, you can register an ordinary company, the most common type is an Srl (limited liability company) with a minimum € 10,000 registered capital.

With few exceptions, Italy allows foreigners to register a new company entirely owned by foreign individuals or companies. A self-employee visa as company’s director can however be obtained only when a company has been in activity for at least 3 years and issuance is subject to quotas.

If the company is adequately funded, it can hire non-EU workers immediately, without first hiring a certain number of local workers (Blue Card permit holders). This option is viable only for highly skilled workers who have a 3-year university diploma and who are offered a minimum salary of € 25,000 year.

The innovative character of the start-up is identified by at least one of the following criteria: (i) at least 15% of the greater value between annual costs and turnover can be attributed to R&D activities; (ii) at least 1/3 of the total workforce are PhD students, holders of a PhD or researchers; or, alternatively,

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The law does not set any limits, such as minimum capital or turn-over, number of local workers, etc., but it leaves ample discretion with the Immigration Office to assess the company’s financial ability to carry out the business and bear all charges relevant to the workers. Accordingly, it is always advisable to start a new business with adequate and substantial funds, in addition to the minimum € 10,000 capital.

In fact, the law states that any permits to foreign workers can be annulled or revoked if the company is established only with the purpose of favoring immigration.

5. Self-employee visas: this visa can be applied for by individuals who are freelancers and do not have a company that wants to hire them or sponsor their work permit. The issuance of the visa is subject to Italy’s quotasystem, fixed annually and not all self-employment categories are available each year. The requirements to apply for the visa are (i) evidence of suitable accommodation; (ii) proof of financial resources exceeding € 8,500 (but Italian Consulates expect the applicant to prove the ability to have a much higher income); (iii) obtainment of a police clearance; and (iv) clearances issued by the Chamber of Commerce or professional body which governs the activity the applicant intends to carry out.

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2. Assigned (posted) workers (“lavoratori distaccati”)

Most Consulates have a very restrictive policy and are very cautious before issuing a visa to an applicant who cannot guarantee to havew stable occupation and substantial remuneration in the country.

Despite obtaining the necessary clearances in Italy many applications are rejected

by Consulates on discretionary grounds.

Visa options for companies – Business Immigration Visas 1.

Subordinate (employed) workers (“lavoratori dipendenti”) Subordinate workers (i.e., employees) are those whose services are hired by a company or an employer operating in Italy. The issuance of a visa for “lavoro subordinato” is subject to the specific quotas released annually by the Italian Government. When quotas are issued, the Italian company will need to obtain a work permit (issued by the Immigration Office, after having obtained the clearance from the Labour Authority and from the Police Department) in order to be authorized to hire the applicant.

An exception to the quota system is for highly skilled workers (those who have a 3-year university diploma are offered a minimum 1-year contract and a salary of not less € 25,000 per year). In this case, the employer can hire the worker locally and must obtain a specific work permit called a Blue Card.

Italian immigration law provides for different kinds of assignment procedures, depending on the relationship between the foreign and Italian company and the job to be carried out. a. Intra-Company Transfer (National Process) The foreign worker can be transferred from the foreign parent company to an Italian affiliate for up to 5 years. This kind of assignment is applicable to highly specialized personnel or managers who have been working in the same sector (some offices require that the worker has worked for the sending company) for at least 6 months. b. Service Agreement Assignment This procedure requires that a service agreement is executed between the worker’s foreign company and the Italian company.

The latter do not need to be affiliated and part of the same company group of the foreign company.

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c. EU Intra-Company Transfer For Non-EU nationals who are temporarily seconded from a company established outside the European Union, where the worker is employed since at least 3 months prior to the transfer to a host entity in Italy, either directly owned by the non-EU sending company or by another company of the same group. This visa applies to managers, specialists, or trainees and is granted for a maximum duration of 3 years.

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About the Author

Holders of an EU ICT permit issued in another EU member state and who are transferred to Italy under the framework of an intra-corporate transfer are not required to apply for a visa to enter Italy unless the assignment exceeds 90 days within 180 days.

Marco Mazzeschi is an Italian lawyer with 35 years of experience in corporate immigration, business, and commercial law. He is admitted to the Milan Bar Association (1998) and to the Taipei Bar Association as a foreign practitioner (2016). He is the founder of Mazzeschi Srl, an Italian boutique firm with 20+ staff, specialized in business, corporate immigration and citizenship law.

The firm has the main office in Florence and satellite offices in Milan, Taipei, and Tokyo. Amongst its staff has both Chinese, Japanese, Spanish, and Portuguese mother tongue associates. Mr. Mazzeschi is adjunct professor at Chinese Culture University and AILA member since 2001.

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Obtaining Turkish Citizenship via Real Estate Investment or Depositing Money to a Bank Account in Turkey Author: Aycan Iskent Ekener, Esq.

In today’s world, countries have started Aycan Iskent Ekener, Esq. EkenerLaw.com, Info@EkenerLaw.com

to commercialize their citizenship through different investment programs and grant their citizenships to foreign nationals under certain criteria. The primary purpose of such programs is to boost a country’s economy and achieve a positive financial impact by injecting foreign investors’ money into the marketplace. Even though such programs are being criticized due to their potential risks to create social, legal, and eventually economic problems, at a global scale they are becoming more and more common each day.

In recent years, Turkish Citizenship Law has made it easier to obtain Turkish citizenship through different programs in which foreign nationals are allowed to invest in real estate or deposit their money into a bank in Turkey. According to the most recent version of the regulation, Turkey now grants citizenship to foreigners who make $250,000 investment in buying a property with the condition of not selling it within 3 years. Also, another vehicle to obtain Turkish citizenship is to deposit and retain $500,000 in a bank account in Turkey under foreigner’s name for 3 years without withdrawing any funds from the original deposit.

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Turkish Citizenship via Real Estate According to the Presidential Proclamation signed in 2018, foreigners who purchase real property (such as residential apartment or commercial building/office) in Turkey may obtain Turkish citizenship. The value of the property and purchase price shall not be less than $250,000.

Before the real estate is purchased, a property valuation report showing the fair market value of the property must be prepared by the real estate appraisal agency that is certified by the Capital Markets Board (CMB) and the Banking Regulation and Supervision Agency (BRSA). The preparation date of the report included in the application package can be up to 3 months before the application date. If the valuation report is not obtained and not submitted with the application, then a valuation report will be requested based on the purchase date of the property. Even though the foreigner will not be able to sell the property for 3 years, they may use the property in any manner he/she chooses, such as residing, or leasing, or renting and receiving rental income.

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This option may present higher protection for a foreigner’s money because the foreigner does not need to covert his/her investment money to the Turkish lira, and as such, the deposited amount can be kept in U.S. dollars, or in any other currency. In this way, foreigner may protect his/her original money against potential currency fluctuations.

Requirements: (1) Ownership interest must be established in the property; (2) The value of the property, that is not less than equivalent of $250,000, must be paid fully; and (3) The title deed, and title registration must bear the annotation of non-transfer for a period of 3 years.

Thus, the property cannot be transferred and/or sold within 3 years after the purchase.

Turkish Citizenship via Depositing and Retaining of $500,000 in a Bank Account by depositing a minimum amount of $500,000 (or equivalent) into a bank within Turkey with the condition of not withdrawing it in a period of 3 years, the foreigner can apply for Turkish citizenship.

Foreigner does not need to deposit the total amount into one single account and can even use different bank accounts under his/her name in Turkey with a combined deposited amount of $500,000 to apply for Turkish citizenship.

Joint bank accounts, such as bank accounts under both husband and wife’s name, can also be used as long as the other account holder consents to the condition of not withdrawingmoney for 3 years.

During this time, the foreigner will be eligible to collect interest from the bank for his/her deposit.

In both citizenship programs discussed above, Turkey will grant Turkish citizenship to the spouse and children (under 18 years of age) of the foreigners.

The application process will be adjudicated before General Directorate of Population and Citizenship Affairs under Ministry of Interior of Turkey.

The anticipated processing time is up to 6 months from the date of application submission.

Advantages of Turkish Citizenship Turkey is a beautiful country with a rich culture and splendid geographical location housing more than 82 million population. While Turkey’s population is majority Muslim, its Constitution is secular with no state religion, it has an open economy, and its laws are designed to respect all faiths and lifestyles.

Especially in its big urban cities such as Istanbul, Izmir, Ankara, Antalya, Mersin, the lifestyle and conditions very much resemble European cities. Healthcare and education may be offered free of cost for Turkish citizens.

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Turkish citizens also enjoy visa free travels to several countries such as Argentina, Russia, Ukraine, Brazil, Armenia, Fiji, South Korea, Georgia, Hong Kong, Maldives, Mexico, Peru, and many more…

Turkey is a part of the E treaty visas with the United States, therefore Turkish citizens can take advantage of E visas to form and start their businesses in the United States. E visas are popular amongst Turkish citizens and they are usually granted for 5 years as multiple entry. Turkey and Europe also has an established Ankara treaty in place that enables Turkish citizens to initiate their businesses in Europe with optimal regulations.

In our office we assist foreign nationals from start to finish in obtaining Turkish citizenship. For more information, please contact info@ekenerlaw.com.

About the Author Aycan Iskent Ekener is an Istanbul Bar and California Bar licensed attorney, located in Irvine, California. She is serving as a legal expert on broad range of U.S. immigration issues, and cross border immigration related issue between Turkey and U.S.

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