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Carl Shusterman's Immigration Update

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  1. Supreme Court and Consular Nonreviewability: Kerry v. Din


    http://shusterman.com/images/visa-application-denied.jpg When our Founding Fathers wrote the Constitution and the Bill of Rights and established the doctrine of separation of powers, they did not carve out an exception for consular nonreviewability. This came about much later as a result of ignominious laws and rulings which excluded Chinese immigrants from the United States.


    Today, if I, a US born citizen, were sponsoring my wife for a green card, and the USCIS denied her application without explaining why, I could sue the USCIS in Federal Court to challenge the decision.


    However, if a consular officer abroad did the same, I would not have access to the Federal Courts because of the doctrine of consular nonreviewability.


    Why should the Federal Courts lack jurisdiction over the decision of a State Department consular officer to deny a green card to the spouse of a US citizen when they clearly have jurisdiction to review an identical decision by a USCIS examiner? This makes no sense whatsoever.


    The Supreme Court’s recent decision to grant certiorari in Kerry v. Din, 718 F.3d 856 (9 Cir. 2013), a Circuit Court decision which relies on a tiny crack in this seemingly absurd doctrine, allows the Court to reexamine consular nonreviewability for the first time in over 40 years.


    Here is the story behind Kerry v. Din:


    In September 2006, Fauzia Din, a US citizen, married a man born in Afghanistan. The next month, she submitted an I-130 visa petition on his behalf. In 2008, the USCIS notified her that the petition was approved and, in September of that year, Ms. Din’s husband had his green card interview.


    He answered all the questions truthfully, including the ones regarding his employment as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime and his job as a clerk for the Afghan Ministry of Education for the new government which came to power after the US invasion. The interviewing officer informed him that he would receive his immigrant visa in the next few weeks.


    However, after many months of inquiries from him and his wife, in June 2009, he was informed that his visa had been denied and that he was ineligible for a waiver.


    After an inquiry as to why he was inadmissible, in July 2009, the US Embassy e-mailed him that his visa had been denied under 8 U.S.C. 1182(a)(3)(B). This section of law lists a wide variety of grounds of inadmissibility due to terrorist activities.


    Did the Embassy believe that he was a terrorist, or merely that he is inadmissible for having worked as a payroll clerk for the Taliban-controlled government? The State Department refused (and continues to refuse) to answer this all-important question.


    Ms. Din sued the State Department in Federal Court in an effort to get an answer. However, the District Court Judge dismissed her complaint citing the doctrine of consular nonreviewability.


    She appealed to this ruling to the US Court of Appeals for the 9th Circuit. On May 23, 2013, the Court ruled, in a split decision, that there is a limited exception to this doctrine which is applicable to her. They ordered the State Department to provide Ms. Din with a “facially legitimate and bona fide” reason for denying her husband’s immigrant visa citing the Supreme Court’s decision in Kleindienst v. Mandel, 408 U.S. 753 (1972).


    The Court stated that while generally, federal courts are without power to review the actions of consular officers:


    “...we have recognized a limited exception to the doctrine of consular nonreviewability. When the denial of a visa implicates the constitutional rights of an American citizen, we exercise ‘a highly constrained review solely to determine whether the consular official acted on the basis of a legitimate and bona fide reason.’”


    Why is the State Department challenging this extremely limited exception when their own Customer Service Statement to Visa Applicants states, “We promise to you, the visa applicant, that...we will explain the reason for any visa denial to you.”?


    Hopefully, the Supreme Court will rule that a US citizen who has been fighting to bring her husband to the US for over 8 years, is entitled to more than a citation to a code section as the reason why a consular officer denied her husband’s application to live together with her in the US.


    More importantly, the entire rationale behind the doctrine of consular nonreviewability is contrary to the concept of a free society in which citizens are guaranteed certain rights.


    The Supreme Court, in considering Kerry v. Din, should reexamine consular nonreviewability since this doctrine undermines the right of due process of law guaranteed in the Bill of Rights.


    The Supreme Court could uphold individual rights as intended by the framers of the Constitution and protect US citizens from the unchecked power of big government by following the logic of the dissent in US ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) in which Justice Jackson, joined by Justices Black and Frankfurter, explains:


    “Now this American citizen is told he cannot bring his wife to the United States, but he will not be told why. He must abandon his bride to live in his own country or forsake his country to live with his bride...”


    “Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl’s admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern. In the name of security this police state justifies its arbitrary oppressions on evidence that is secret, because security might be prejudiced if it were brought to light in hearings. The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected...”
  2. Employers: Form I-9 On-Demand Webinar

    http://shusterman.com/images/immigrationemployment.jpg The DHS has recorded a series of 14 short videos which explain to employers the basics of completing and storing I-9 forms. The videos also instruct employers how to comply with antidiscrimination laws in the I-9 process.


    Having conducted over 100 I-9 seminars for employers since 1986, and creating I-9 videos, it always distresses me to see employers fined millions of dollars for I-9 violations. Hopefully, the following DHS videos will help employers understand their obligations under the I-9 laws and procedures:


    1. Introduction
    2. Why use Form I-9?
    3. Who can legally work in the United States?
    4. How do antidiscrimination laws protect employees?
    5. Who is required to have a Form I-9?
    6. How to Complete Section 1
    7. How to Complete Section 2
    8. How to Complete Section 3
    9. Acceptable Documents for Form I-9
    10. How should I store Form I-9s?
    11. How long am I required to keep Form I-9s on file?
    12. What do I do if I discover a mistake or I'm missing a Form I-9 for an employee?
    13. How do Form I-9 and E-Verify work together?
    14. Where can I find contact information and additional resources?




    At the end of some of the videos, the DHS has posted links to various online resources. As good as these short videos are, I cannot stress enough that I-9 compliance is a complex procedure, and that although the videos do a great job in introducing employers to the basics, there are hundreds of technicalities that are not covered in these videos.


    For example, there is a box on Part I of the form for persons who are noncitizen nationals to check. I would venture to guess that 99.9% of employers (and probably most DHS employees) have no idea what a noncitizen national is.


    Also, many rules for completing I-9 forms are not listed in the law or even in the USCIS regulations. When can an H-1B employee who is changing jobs start working for the new employer? What forms does he have to present to show that he is authorized to be employed for I-9 purposes? These type of questions are not covered in the videos.


    We agree with the DHS that in addition to watching the videos, you consult with I-9 Central and the Employers' Handbook. You should also retain the services of an experienced immigration attorney to answer questions and to conduct periodic internal I-9 audits.

    Form I-9 Resources

  3. DV-2016: The Last Green Card Lottery?

    http://shusterman.com/images/dv-2016.jpg

    On October 1, 2014, you should, if you are qualified, apply for the DV-2016 green card lottery.

    Why?

    It is free. If you win, you can get green cards for you and your family within a short period of time. There are 50,000 green cards and this may be your final chance to apply.

    The Senate, in 2013, passed an immigration reform bill which would eliminate the DV lottery. It looks like the House will refuse to pass the Senate bill, but not because they like the lottery. They don’t! So, if both houses of Congress can get their act together in 2015 and pass immigration reform legislation, the DV-2016 green card lottery may be the last of its kind.

    Do You Qualify for the DV-2016 Lottery?

    You may unless you were born in a country listed below:
    Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

    By the way, persons in Hong Kong, Macao and Taiwan are eligible to apply.

    Just to make things a bit more complicated, if you were born in a country on the list, but your spouse was not, both of you can apply for the lottery.

    If you were born in a country where neither of your parents was born, and they were not legal residents of that country at the time of your birth, feel free to use the country of birth of either of your parents to apply for the DV-2016 lottery.

    Also, you must be a high school graduate (or the equivalent) or have 2 years experience during the past 5 years in an occupation requiring at least 2 years of training or experience to perform.

    You don’t need an attorney to apply, but you do need access to a computer (or a tablet or smart phone) since you must apply online at www.dvlottery.state.gov

    The application period starts at noon on October 1, 2014 (Eastern Daylight Time) and ends at noon on November 3, 2014 (Eastern Standard Time). My advice: Apply early and avoid the crowds. Read the State Department Instructions carefully before you apply.

    Be realistic: Over 10 million people will apply for 50,000 green cards and all applicants are not treated equally. About 20,000 of the DV-2016 green cards will be given to persons born in Africa and another 20,000 to persons born in Europe.

    So, if you were born anywhere else in the world (Asia, North and South America, Australia and New Zealand), winning the DV-2016 will be a longshot, but what have you got to lose?

    Updated 09-24-2014 at 09:28 AM by CShusterman

  4. When You’re Lost in the Rain in Juarez

    http://shusterman.com/images/morales.jpg Imagine having an agency of the US government separate you from your only child.
    It all started when Mrs. Morales’s brother got his girlfriend pregnant in Mexico. They had a son together, but his girlfriend died during childbirth. He drove the child across the border to the US, and his sister and her husband, both US citizens, accepted the child as their own.

    They hired an attorney who helped them adopt their nephew in the California Superior Court.

    After the required two-year waiting period, they hired an immigration attorney who had Mrs. Morales file an I-130 visa petition which was approved by the USCIS.

    Eventually, Mrs. Morales and her son appeared at the US Consulate in Ciudad Juarez, Mexico for an immigrant visa interview.

    The interview was short, but not sweet. The consular officer informed Mrs. Morales that the I-130 had been approved in error by the USCIS, and that he was sending it back to be revoked. Why it was sent back to the USCIS remains a mystery.

    Mrs. Morales was shocked, but respectful. “My son and I will go see our attorney and get this worked out”.

    The officer informed her that while she could return to the US, her son would have to stay behind in Mexico.

    Mrs. Morales was fit to be tied. She and her husband had never been separated from their son for so much as a day. Their son spoke only English and was being treated by a physician in California for ADD.

    Her father, who lived in Tijuana, would have to care for their child until their immigration attorney could work out whatever was wrong with his immigration case. While he was happy to help watch over the child, he was also not in the best of health as he was nearly 80 years old and had recently had a heart valve transplant and he required care himself.

    As soon as she returned to Los Angeles, she met with the attorney. Neither of them understood what was wrong with the I-130. However, the attorney decided that the best course of action was to request a humanitarian parole from the USCIS to reunite the child with his parents while they explored how to get him a green card.

    She prepared a humanitarian parole application, complete with a letter from the child’s physician explaining that the child was in need of constant care. In January, one month after the application had been submitted, the USCIS wrote a letter informing her and her husband that it would take up to 90 days to process their humanitarian parole request.

    Mrs. Morales and her husband both work full-time jobs. Every Friday night, she would drive from Southern California to Tijuana to spend the weekend with her son. Because of his lack of knowledge of Spanish, he was not able to attend school in Tijuana.

    Between December and March, Mrs. Morales continued this exhausting routine, hoping that the USCIS would grant their humanitarian parole request. When this agonizing 90-day period came to an end, Mrs. Morales decided to schedule a legal consultation with me.

    The day that we were retained, we sent an inquiry to the USCIS and contacted Mrs. Morales Congressman. This paid off, but in an unexpected way. Within a few days, we received a letter from the USCIS requesting more information.

    Attorney Ellen Ma Lee and Paralegal Hilary Olson gathered the information, and quickly responded. After a short wait, we made the first of many inquiries.

    Later, I received a call from the caseworker at the Congressman’s office. They were informed by the USCIS that the application for humanitarian parole was on the “expedited track”. Yet, as week after week and month after month passed, we received no answer from the USCIS.

    Finally, last week, something very unexpected occurred. Not from the USCIS, but from CDJ. They asked Mrs. Morales to come to Consulate to submit some additional paperwork.

    Then, a notice appeared online informing Mrs. Morales that an immigrant visa had been issued to her son!

    The immigrant visa arrived by mail, and Mrs. Morales immediately drove to Tijuana. I spoke with her as she crossed the border into Mexico yesterday afternoon. In the evening, I received a message from Mrs. Morales that she and her son had crossed back into the US, and that he had been admitted as a lawful permanent resident!

    What happened at the USCIS Parole Office and why CDJ granted the child a green card after keeping him separated from his parents for nearly 8 months, we may never know.

    But Mr. and Mrs. Morales are thrilled to have their son back home, and so are we.
  5. Supreme Court Rules Against Immigrant Families

    http://www.bluffton.edu/~sullivanm/washdc/supremecrt/front2.jpg On June 9, 2014, the Supreme Court of the United States in Scialabba v. DeOsorio, in a 5-4 decision, reversed the decision of the U.S. Court of Appeals for the 9th Circuit, and ruled that the “automatic conversion” clause of the Child Status Protection Act (CSPA) does not provide benefits to most immigrant families.

    As a result, tens of thousands of immigrant families will continue to be separated as parents and underaged children immigrate to the U.S. while sons and daughters who turned 21 years of age during the waiting process are forced to remain abroad, separated from their families.

    The Court ruled that the automatic conversion clause was ambiguous and deferred to the highly-restrictive 2009 decision of the Board of Immigration Appeals (BIA) in Matter of Wang.

    We have explained in previous posts why we believe that the Board’s decision in Matter of Wang is unreasonable and should not be accorded deference. However, the decision of the Supreme Court cannot be appealed.

    The Court held that

    “The first clause of §1153(h)(3) states a condition that encompasses every aged-out beneficiary of a family preference petition. The second clause, however, does not easily cohere with the first. It prescribes a remedy that can apply to only a subset of the beneficiaries described in the first clause.”


    It deferred to Matter of Wang which restricts the persons who may benefit from CSPA’s automatic conversion clause to aged-out beneficiaries of 2A family-based petitions.


    The sons and daughters of our plaintiffs who are beneficiaries of family-based 3rd and 4th preference visa petitions do not qualify for automatic conversion or even for retention of their priority dates.

    As the dissent points out, when the U.S. citizen sister of Norma Uy sponsored her and her family for green cards in 1981, Norma’s daughter Ruth was 2-years-old. However, after waiting in line with her parents for a green card for over 20 years, by the time that the family reached the front of the line, Ruth was over 21 years of age, too old to immigrate together with her family under Matter of Wang.

    Going to the back of the 2B line isn’t much of an option.

    Because of the numerical restrictions in this category, the length of the 2B line is 28.7 years for persons born in the Philippines and 115.5 years for persons born in Mexico. So, as a practical matter, not receiving credit for the time that they spent waiting in line together with their parents, prevents sons and daughters of immigrants from reuniting with their families in the United States.

    Is this really what Congress intended when they passed the Child Status Protection Act in 2002? Not according to the bipartisan group of Senators who submitted an amicus brief to the Supreme Court disputing the government’s interpretation of the law.

    Furthermore, what sense does it mean to subtract the time the visa petition was pending from all children of green card applicants, but apply the automatic conversion clause to only a small subset of children?

    The petition for Norma Uy was approved the same day that it was filed. The reason that her daughter Ruth was over 21 years old when the priority date was reached is the 23 year waiting time for a sibling born in the Philippines.

    What if Norma had a sister who was sponsored on the same day, and the sister had a son born on the same day as Ruth? Suppose the government took 10 years to approve the petition. Under the Supreme Court’s decision, Ruth’s cousin would be able to subtract 10 years from his age when the priority date was reached, and unlike Ruth, he could immigrate with this family.

    If the automatic conversion clause, unlike the subtraction clause, only protects a small subset of sons and daughters of immigrants, whether children are able to immigrate together with their families is akin to playing roulette in Las Vegas. Purely a matter of luck!

    Now that the Supreme Court has ruled against immigrant families, Congressional action is necessary to restate in the most clear and unambiguous language possible the intent of CSPA’s automatic conversion clause.

    Our country should have an immigration system that unites families, not one which needlessly separates them.

    Updated 06-09-2014 at 10:56 PM by CShusterman

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