Monday, June 9, 2014

Supreme Court rejects family unification in CSPA

Mayorkas v. DeOsorio, No. 12-930 (cert. granted June 24, 2013) The Supreme Court struck down this case ) case Mayorkas v. DeOsorio. The Court will consider whom Congress intended to benefit by INA § 203(h)(3), a provision which allows beneficiaries of certain visa petitions to retain earlier priority dates after “aging-out” (turning 21) and losing child status. The government sought Supreme Court review of an en banc decision of the Ninth Circuit holding that § 203(h)(3) applied to derivative beneficiaries of the Family 3d and 4th preference categories, as well as those in the Family 2A category. DeOsorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012). In so holding, the Ninth Circuit rejected the Board of Immigration Appeals’ interpretation of § 203(h)(3) as applying only to derivative beneficiaries of the Family 2A preference category. Matter of Wang, 25 I&N Dec. 28 (BIA 2009). Here is the opinoin written by Justice Kagan http://www.supremecourt.gov/opinions/13pdf/12-930_3d46.pdf

Thursday, June 5, 2014

When your job is to find immigration or marriage fraud...

Believing there is Fraud around every corner is biasing our immigration system. Here is how we can fight it. --- “The human understanding when it has once adopted an opinion draws all things else to support and agree with it. And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects and despises, or else by some distinction sets aside and rejects, in order that by this great and pernicious predetermination the authority of its former conclusion may remain inviolate.”[1] -Sir Francis Bacon, Father of the Scientific Method (1620) --- Ask an immigration attorney about the most frustrating aspect of their practice today, and most will tell you that they spend an inordinate amount of time explaining basic reasoning and logic skills to US immigration officers set to deny approvable cases – cases where the only dispute is what the record logically reflects, not an actual insufficiency of the record itself. Why is this? Are the adjudicating immigration officers at DHS and DOS deliberately harassing petitioners and applicants? Is there some anti-immigrant conspiracy or cabal? Unlikely, but what then explains this phenomena? Social science has the answer and you should use it to your advantage when appealing an illogical denial or notice of intent to revoke. Let’s take a closer look at the problem… Whether it’s a family case suspected of a fraud in Ghana, or an H-1B petition for a growing IT startup, petitioners are being suspected of fraud at alarming rates. Most denials are based upon a failure to provide “sufficient evidence” to establish eligibility for the benefit sought. However in many, if not all of these cases, the officer likely believes there to be an element of potential fraud that they are valiantly battling back against. This is because every officer is trained to suspect fraud around every corner and success is measured not in cases approved or growth of the economy, but in levels of potential fraud detected and prevented. Walk through a service center and what do you see? Take a look at embassy cubicles and what do you find? I will tell you what we find; we find “fraud” literally wallpapering the environment. Service Centers and Embassies are covered with newspaper clippings, training materials, and bulletins detailing high levels of immigration fraud, warning staff to be hyper-vigilant for fraud. The US Embassy is Accra, Ghana is an excellent case in point. The Inspector General (OIG) Latest Report[2] found: “The staff capably and courteously handles a heavy workload in a challenging, high-fraud environment.” The report then notes, “Fraud in immigrant and NIV applications is widespread. Consular officers are attentive to the potential for fraud and malfeasance. The recent investigation and subsequent dismissal of a long-time LE staff employee and some local guards has heightened this awareness.” Yes, you read that correctly; even the staff at the US Embassy is suspected of committing fraud in Accra, Ghana. According Governmental Accountability Office (GAO)[3] over 90% of family connections are requested to provide DNA evidence of their family connections. The Embassy even has a special webpage discussing “Romance Scams.” The page warns US citizens about “attempts at fraud by persons claiming to live in Ghana who profess friendship or romantic interest over the Internet.”[4] Fraud, fraud, fraud, fraud, fraud… Did I mention fraud? It’s around every corner, don’t you know? And perhaps there is some fraud, but that’s not the point here. The point is this, creating an environment that conditions immigration officers to suspect fraud around every corner significantly impacts the performance of these officers. This is not my pet theory. This is social scientific fact. It’s called Confirmation Bias, and as Sir Francis Bacon noted above, its impact has been widely noted and accepted within social science since at least the 17th Century. Confirmation Bias is summed up in the Quarterly Journal of Economics, published by the Oxford University Press. This article has been cited more than 450 times in peer reviewed scientific journals since its publication in 1999.[5] “A person suffers from confirmatory bias if he tends to misinterpret ambiguous evidence as confirming his current hypotheses about the world… “Teachers misread performance of pupils as supporting their initial impressions of those pupils; many people misread their observations of individual behavior as supporting their prior stereotypes about groups to which these individuals belong; scientists biasedly interpret data as supporting their hypotheses… This study’s results found that when influenced by Confirmation Bias “the hypothesis that the agent believes in may be more likely to be wrong than right.” Furthermore, they showed that “the agent may come to believe with near certainty in a false hypotheses despite receiving an infinite amount of information.” With this in mind, it’s amazing our immigration system works at all. “A great deal of empirical evidence supports the idea that confirmation bias is extensive and strong and…supports the view that once one has taken a position on an issue, one’s primary purpose becomes that of defending or justifying that position. This is to say that regardless of whether one’s treatment of evidence was evenhanded before the stand was taken, it can become highly biased afterward.” [6] In other words, once your case exhibits any of the wide-ranging potential fraud factors, there is a very good chance that the officer reviewing your case just flipped a switch in their head and are now looking for any and all ways to deny your case whether they are conscious of it or not. A sobering thought, no? So what can you do when the officer deciding your case is conditioned to find fraud where it does not exist? Not much in the petition process itself unfortunately. With fraud factors being as loose as they are, it is often unavoidable to submit a petition that will not raise some potential red flag – and we know where it goes from there. What we can do however is fight every appeal as vigorously and thoroughly as possible and highlight to anyone that will listen that the “Culture of Fraud” within our immigration system is leading to erroneous denials, separating families, and hurting American businesses. We can cite the social science and include them in our appeals to the BIA, the AAO, and in federal court. Often all it takes is getting your case in front of someone who is not as conditioned to the Culture of Fraud and you find that your case is back on track, but I say we need to do more and make sure every member of the BIA, AAO, and federal court realizes that this bias exists strongly within the Department of Homeland Security and the Department of State. Give them not just the facts of your case, but the hard social science as well about why this case is in front of them at all and not approved in the first instance. If we are lucky, our successful appeals may push a cultural change in the training and atmosphere within the walls of USCIS Service Centers, USCIS local offices, Embassies, and Consulates. No one wants to be wrong or overturned on appeal, and there is no conspiracy to deny our approvable cases that raise fraud factors that are too liberally drawn up. Beyond our steady, well argued appeals AILA must push this agenda. AILA must, · push for a tightening of potential fraud factors; · push for stronger tracking of how many cases are reversed on appeal AND holding immigration officers accountable for their reversed decisions; · push for faster appeals processing times, which often drag on too long to be reasonably pursued by our clients. --- As with many things these days, Wikipedia is a great place to get started. Its article on Confirmation Bias is will written and includes an extensive bibliography that you can cite in your future appeals of biased decisions. [1] From The New Organon and Related Writings {1960; 1620}, quoted in Nisbett and Ross {1980, p. 167}. [2] http://oig.state.gov/documents/organization/126064.pdf [3] http://www.gao.gov/assets/270/267129.html [4] http://ghana.usembassy.gov/romance_scam.html [5] First impressions matter: A model of confirmatory bias (Matthew Rabin, Joel L. Schrag), In Quarterly Journal of Economics, volume 114(1), 1999. [6] Confirmation bias: A ubiquitous phenomenon in many guises. RS Nickerson - Review of general psychology, 1998 - psycnet.apa.org. Cited 1,401 times to date according to Google Scholar. Reprinted with permission. About The Author Christopher M. Pogue, Esq. Christopher M. Pogue, Esq. is Of Counsel with the Fleischer Law Firm, LLC. His law practice specializes in representing individuals, families, and businesses around the United States and around the world in US immigration matters. Contact: cpogue@immigrate2usa.com and Websites: www.PogueImmigrationLaw.com / www.immigrate2usa.com

Tuesday, March 25, 2014

H-1b cap fy2015 news

Premium Processing for Cap-Subject Petitions to Begin by April 28, 2014 WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2015 cap on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked. The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap. USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency is prepared to use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees. Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. For more information on premium processing for FY 2015 cap-subject petitions, see the USCIS Alert. H-1B petitioners should follow all requirements to avoid processing delays and possible requests for evidence. USCIS has detailed information, including an optional checklist, to assist in completing and submitting an FY 2015 H-1B petition. The processing worksheet is available on the USCIS website, www.uscis.gov. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B FY 2015 Cap Season Web page. Or call the National Customer Service Center at (800) 375-5283 or (800) 767-1833 (TDD for the hearing impaired). For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.

Monday, February 3, 2014

U.S. Immigration Lawyer in Cincinnati, Ohio: Will Justin Bieber be deported? A legal analysis

U.S. Immigration Lawyer in Cincinnati, Ohio: Will Justin Bieber be deported? A legal analysis: Is Justin Beiber going to be “Deported”? Justin Bieber is an internationally-recognized pop star who has recently gained notoriety, not f...

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Will Justin Bieber be deported? A legal analysis

Is Justin Beiber going to be “Deported”? Justin Bieber is an internationally-recognized pop star who has recently gained notoriety, not for his singing or performing abilities, but for his repeated run-ins with the law. In January of this year alone, sources have reported that Bieber egged his neighbor’s house in California, allegedly causing $20,000 in damages; that he was arrested in Miami and charged with driving under the influence, resisting arrest, and driving with an expired license; and that he was charged in connection with an alleged assault of a limo driver in December after he turned himself in to the Toronto police. Although this type of behavior is fairly expected, if not common, among both celebrities and teenagers in general, Bieber’s legal issues could potentially have much farther-reaching consequences than how they would affect other teenage boys. Because Justin Bieber is originally from Canada, he is required to apply for a visa in order to be allowed to live and work in the United States. He is currently in the country on an O-1 visa, which is granted to people with “extraordinary ability in the sciences, arts, education, business or athletics” and which allows him to temporarily live and work here. However, under current immigration law, Bieber’s legal troubles could potentially subject him to deportation or render him “inadmissible,” meaning that he would not be able to renew his visa in the future. These possibilities are discussed in further detail below. Deportability 8 USC 1227 lists the reasons why an alien who is already present in the United States can be subject to removal from the United States. If Bieber is ultimately convicted of some or all of the crimes with which he is charged, he could be deported under 8 USC 1227(a)(2) for committing a crime involving moral turpitude, for having multiple criminal convictions, for having committed an aggravated felony, or for any combination of the three. However, because Bieber has only been accused, but not convicted, of egging his neighbor’s house and assaulting a limo driver, it is too early to predict whether he will ultimately be deported from the U.S. Alternatively, now that a White House petition calling for Bieber’s deportation has acquired more than 100,000 signatures in one month—the number of signatures that require the White House to answer the petition—perhaps the White House will address the issue before Bieber has a chance to make it through the court system. Inadmissibility
8 USC 1182 provides an extensive list of the kinds of aliens who are not eligible to receive visas or be admitted into the United States. If Justin Bieber is ultimately convicted of some or all of the crimes with which he has been charged, he could be deemed inadmissible under 8 USC 1182(a)(2). That section addresses the inadmissibility of aliens who have been convicted of certain crimes, or multiple crimes, or both. Nevertheless, it is still too early to tell whether Bieber will be deemed inadmissible and unable to renew his O-1 visa because, again, he has yet to be convicted of any of his pending charges. As a practical matter, it seems fairly unlikely that Justin Bieber will be deemed inadmissible or will face deportation. He has the means to hire prominent defense attorneys who will do their best to ensure that Bieber is either not convicted of any of his pending charges, or that his convictions will not affect his immigration status. Additionally, and perhaps more importantly, Bieber’s status as a famous pop star will be useful in influencing a judge to be more lenient in deciding how to convict and sentence Bieber so he can avoid the negative immigration consequences that accompany a criminal record. However, Bieber’s situation is not typical of the majority of aliens who have experience with the United States’ criminal justice system; many aliens are unable to afford a private attorney to represent them, and judges are much less willing to be forgiving in regards to convicting and sentencing them. So, while Bieber will probably be safe for now, thousands of other aliens—who may not have money or status, but who do have jobs and families and other connections to this country—are being deported or denied entry to the U.S. every day. Neil Fleischer is an attorney who has been practicing immigration law since 2000. He is based out of Cincinnati Ohio and has clients throughout the world. Lisa Splawinski is a second-year law student at the University of Cincinnati and a law clerk at the Fleischer Law Firm who is interested in practicing immigration law after graduation.

Monday, January 20, 2014

Could Justin Bieber be deported ?

Could Justin Bieber be #deported? http://tinyurl.com/pe6dfkf #immigration #bieber #yolkonface If he is convicted of an agrravated felony he could . An aggravated felony ) is used in the United States immigration law to refer to a broad category of criminal offenses that carry certain severe consequences for aliens seeking asylum, legal permanent resident status, citizenship, or avoidance of deportation proceedings. Anyone convicted of an aggravated felony and removed from the United States "must remain outside of the United States for twenty consecutive years from the deportation date before he or she is eligible to re-enter the United States. It is doubful he will be convicted, thus it would not trigger immigraiton consequences... but if it did? Baby, baby baby..... Could he have yolk on his face?

Friday, December 6, 2013

Eb-2 and EB-3 from China visa bulletin updates

Beginning with the June 2013 Visa Bulletin, the third preference employment-based immigrant visa category (EB-3) for individuals born in the People’s Republic of China (China) has a more recent cut-off date than the second preference employment-based category (EB-2). The December 2013 Visa Bulletin indicates that EB-3 immigrant visas are available for Chinese nationals whose priority dates are earlier than October 1, 2011, while EB-2 visas are available for those whose priority dates precede November 8, 2008. This situation is likely to continue.1 Accordingly, practitioners should consider filing Immigrant Petitions for Alien Worker (Form I-140) in both the EB-2 and EB-3 categories either concurrently for new petitions, or filing an EB-3 petition for a Chinese national who is already the beneficiary, Please contact us if interested

Tuesday, October 1, 2013

E-verify is unavailable

E-Verify is currently unavailable due to a government shutdown. While E-Verify is unavailable, you will not be able to access your E-Verify account. As a result, you will be unable to: • Enroll any company in E-Verify • Verify employment eligibility • View or take action on any case • Add, delete or edit any User ID • Reset passwords • Edit your company information • Terminate an account • Run reports • View 'Essential Resources.' Please note that all essential resources may be found by visiting www.dhs.gov/e-verify. In addition, E-Verify Customer Support and related services are closed. As a result: • Employees will be unable to resolve Tentative Nonconfirmations (TNCs). • Telephone and e-mail support will be unavailable. You may send e-mails, however, we cannot respond until we reopen. • E-Verify webinars and training sessions are cancelled • E-Verify Self Check will not be available We understand that E-Verify’s unavailability may have a significant impact on your company’s operations. To minimize the burden on both employers and employees, the following policies have been implemented: • The 'three-day rule' for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay. • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen. • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines. • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses). We apologize for any inconvenience and look forward to serving you once we resume operations. Please subscribe to this distribution list to receive future alerts when service resumes. Please do not reply to this message. See our Contact E-Verify page for phone numbers and e-mail addresses. ________________________________________

Monday, September 23, 2013

Tuesday, August 6, 2013

Could a Star of REAL HOUSEWIVE"S of New Jersey be deported?

Two stars of the "Real Housewives of New Jersey" have been freed on $500,000 bond each amid fraud charges. Teresa Giudice and her husband, Giuseppe "Joe" Giudice, appeared in federal court Tuesday morning. The Giudices are charged in a 39-count indictment with conspiracy to commit mail and wire fraud, bank fraud, making false statements on loan applications and bankruptcy fraud. They both had to surrender their passports and can't travel outside of New Jersey and New York. The husband could be deported to Italy if convicted because he's not a U.S. citizen. Authorities say the couple submitted fraudulent mortgage and loan applications from 2001 to 2008, including fake tax returns and W-2s. Prosecutors allege Joe Giudice failed to file tax returns for the years 2004 through 2008. The most serious charges the couple face, bank fraud and loan application fraud, carry a maximum potential penalty of 30 years in prison and a $1 million fine. If convicted, Joe would be considered an "aggravated felon" under immigration laws be subject to mandatory detention ( no bond) and removal. If you ask me, that is better than being on that show which my wife and others cnsider a guilty pleasure. I love when pop culture and immigraiton law mix

Mark Zuckerberg "likes" CIR and "pokes" Congress to do pass comprehensive immigration reform as it effects high tech workers too

"Facebook CEO Mark Zuckerberg supported immigration refporm Monday night when he joined publicly with tech leaders, civil rights activists and undocumented immigrants to call for a comprehensive overhaul of the nation's immigration policies - an issue he said touches not just Silicon Valley but "the whole country." "This is something that we believe is really important for the future of our country - and for us to do what's right," the social media innovator told a crowd of several hundred at the Yerba Buena Center for the Arts in San Francisco. H-1b visas are used to bring high tech workers and those with BA degrees r higher to the United States to work. The current law limits to 65,000 the number of foreign nationals who may be issued a visa or otherwise provided H-1B status each fiscal year (FY). Laws exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas. In addition, excluded from the ceiling are all H-1B non-immigrants who work at (but not necessarily for) universities, non-profit research facilities associated with universities or government research facilities

Friday, July 26, 2013

New Visa Category for Comprehensive Immigration Reform

With Comprehensive Immigration Reform on again off again proposition, the fine folks at the Onion had a new idea for a new visa category. Click link below for details from the Onion http://tinyurl.com/q5pquo8