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Carl Shusterman's Immigration Update

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  1. Denaturalization Task Force To Be Set Up By USCIS


    USCIS plans to establish an office in Los Angeles to focus on denaturalization. It will refer potential cases to the US Department of Justice.

    The USCIS cannot assure compliance with the law because old paper-based records containing fingerprint information from the FBI and DHS can’t be searched electronically. All such records need to be digitized.


    In 2008, a CBP officer identified 206 persons who used different names or other biographical information to gain US citizenship or other immigration benefits. This occurred because ICE did not consistently add digital fingerprint records of immigrants whom agents encountered until 2010.

    On September 18, 2016, the DHS Office of the Inspector General issued a report entitled Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records.


    The report found that that “USCIS granted U.S. citizenship to at least 858 individuals ordered deported or removed under another identity when, during the naturalization process, their digital fingerprint records were not available.” Overall, the report found that fingerprint records were missing from hundreds of thousands of cases.

    The report recommended that DHS establish a plan for evaluating the eligibility of those naturalized citizens whose fingerprint records reveal deportation orders under a different identity. Reports indicate that 95 of the 2,536 naturalization cases reviewed by DHS have been referred to the Justice Department for possible denaturalization.

    In January 2017, the USCIS assigned officers to the Operation Janus joint task-force to look into this problem. As a result, in September 2017, the Justice Department brought a number of lawsuits seeking to denaturalize persons who were granted US citizenship using false identities. In January 2018, the first person was denaturalized under this program.

    In June 2018, USCIS Director Francis Cissna announced that his agency planned to hire “several dozen lawyers and immigration officers to review cases of immigrants who were ordered deported and are suspected of using fake identities to later get green cards and citizenship through naturalization.”

    The USCIS plans to establish an office in Los Angeles to focus on denaturalization. The office will review the records of people who have become US citizens since 1990 (over 17 million persons) in order to identify people who deliberately lied on their citizenship applications. Director Cissna predicted that several thousand cases will be referred to the Justice Department for denaturalization.

    Using a false identity to become a US citizen is an obvious reason for the government to seek to denaturalize a person. However, the USCIS’s approach to remedying this problem is deeply troubling for at least 2 reasons.

    First, the USCIS is not requesting any funding for this program from the Federal Government. Instead, it proposes to simply reallocate funds from the immigration application fee account, which is likely to slow the processing time for legitimate immigration and naturalization petitions. USCIS filing fees for N-400 applications have already risen from $15 when I served as an INS Citizenship Attorney to $640 (plus a biometrics fee of $85) today. And, despite these enormous increases in filing fees, the average waiting times for naturalization interviews have risen to over one year in many USCIS District Offices nationwide.

    Second, in many cases, seeking denaturalization can often be a waste of precious time and resources.

    Consider the pending denaturalization case which the government recently brought against a Florida woman by the name of Norma Borgono.





    Ms. Borgono is a 63-year-old woman who immigrated to the US from Peru 28 years ago. She became a naturalized US citizen in 2007. She suffers from a rare kidney disease.

    Working as a secretary of an export company called Texon Inc., Ms Borgono prepared paperwork for her boss, who pocketed money from doctored loan applications filed with the US Export-Import Bank. Ms. Borgono never benefitted financially from her boss’s fraud scheme.

    In 2011, she helped the federal government convict her boss, took a plea deal (She pled guilty to conspiracy to defraud the United States and to commit mail fraud.) and was sentenced to 1 year of house arrest, 4 years of probation and $5,000 restitution.

    She worked 2 jobs to pay off her restitution, and was relieved of her sentence early.

    In May 2018, many years after she served her sentence, the government notified her that they were seeking to take away her US citizenship.
    Why? The stated reason was because she did not reveal her criminal activity on her application for citizenship even though she was not charged with a crime until well after she became a US citizen.

    In the past, denaturalization was usually reserved for Nazis, dangerous criminals and funders of terrorist organizations. Not any more.

    Is it really a priority for the government to spend precious time and resources in attempting to denaturalize people like Ms. Borgono? Or is the real intent to continue to demonize and intimidate immigrants?

    Updated 07-23-2018 at 12:58 PM by CShusterman

  2. Employers Beware! New USCIS Memos Could Upend Legal Immigration

    In June and July 2018, the publication of 2 important USCIS memos puts US employers at risk. Never during my 40+ years of practicing immigration law have I seen such drastic changes to our immigration system promulgated by an administrative agency.


    Employers need to be aware of the content of these USCIS memos, how they could be impacted and how best to remain in compliance.

    USCIS Memo re: RFEs and NOIDs (7-13-18)

    On July 13, the USCIS published a memo regarding Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).


    When an employer sponsors a person for a temporary working visa or a green card, if USCIS needs more evidence in order to decide whether to approve or deny the benefit, they usually send an RFE to the employer.

    Typical RFEs either request additional information about the employer (Ability to pay prevailing wage, need for the employee’s services, etc.) or the employee (Justification for requiring a certain level of education or experience, etc.). In 2017, the number of RFEs for H-1B petitions increased 44% over the previous year.

    The employer is given time to respond to the RFE. After the response, the USCIS examines the original petition/application and the employer’s response to the RFE before deciding the matter. In some cases, the USCIS issues a NOID and grants the employer a chance to respond.

    The July 13th memo does away with many RFEs and NOIDs. It grants USCIS examiners, in many cases, with the power to simply deny requests for immigration benefits when they determine that the evidence is “insufficient” to grant an application.

    But if an application or petition for a temporary visa or green card is denied by the USCIS, couldn’t the employer simply refile for the benefit using premium processing?

    Even this may no longer be an option in many cases.

    USCIS Memo re: NTAs Where Person has No Status (6-28-18)

    What complicates this is an USCIS memo issued on June 28 stating that if a denial renders the person “out of status”, the USCIS will issue a Notice to Appear (NTA) which will place him in deportation proceedings before an Immigration Judge.

    This worst case scenario is to be avoided at all costs. The employer would be forced to terminate the employee who was being sponsored for a temporary working visa or a green card.

    What can Employers do to Avoid the Penalties Imposed by the New USCIS Memos?

    Below are a number of strategies to help you in sponsoring employees for temporary visas and green cards:

    1. If you are sponsoring an employee for a green card, make sure to keep renewing his temporary work status until his green card application is approved. This way, even if a problem arises with the green card application, the fact that he is in a temporary working status will prevent the USCIS from initiating deportation proceedings.

    2. Apply for extensions of H-1B, L-1, O-1 and other types of temporary working status 180 days before the status expires, and consider using premium processing. This way, should there be a problem in extending the temporary status, the employee will still be in proper status, and you can reapply for an extension.

    3. Temporary status is employer-specific. If Employer B is petitioning for H-1B status for an employee who is currently working for Employer A, it is a wise idea to use premium processing and not to have the employee change employers until after the petition and the application for a change of employers is approved.

    4. Always overdocument a petition or application. Clearly document that you have complied with the prevailing wage and posting requirements, that you have the ability to pay the employee and the reasons a particular university degree and level of experience are required for the job. In general, it is not a good idea to include the ability to speak a foreign language in the job requirements.

    5. Make sure that you choose an immigration law firm to represent your company whose lawyers have many years of experience working for employers and who have successfully obtained thousands of approvals of temporary work visas and EB green cards.

    6. Take a look at the following online resources:




    7. If you are an employer, feel free to call one of our employment-based attorneys, Cheryl Gertler or Que Hirschi for advice on how to avoid the penalties contained in the new USCIS memos.

    Updated 07-23-2018 at 12:59 PM by CShusterman

    Tags: employer, l-2 Add / Edit Tags
  3. Apply For Relief From Removal Under Pereira V. Sessions

    On June 21, 2018, the Supreme Court issued a decision in Pereira v. Sessions which will benefit many thousands of persons who are in removal/deportation proceedings, who have been ordered to leave the US or who have already been deported.



    Immigration attorneys are getting ready to file Motions to Reconsider and to apply for Cancellation of Removal for persons who have been found deportable in the past. Some of these persons may also be eligible for other forms of relief from deportation. For example, a person who married a US citizen may be eligible for adjustment of status.


    The Supreme Court, by an 8 to 1 vote, ruled that Mr. Pereira, a Brazilian citizen who came to the US on a visitor’s visa in 2000, overstayed and was placed in removal proceedings in 2006, was eligible to apply for a green card through cancellation of removal as a non-LPR.

    One of the requirements for Cancellation of Removal is that a person be physically present in the US for 10 years or more. The law provides that if the person receives a Notice to Appear (NTA) before an Immigration Judge, his period of continuous residence is deemed to end. This is known as the “stop time rule”.

    How did Mr. Pereira satisfy the 10-year rule since he was served with an NTA 6 years after he arrived in the US?

    The Immigration Judge, the Board of Immigration Appeals (BIA) and the US Court of Appeals for the 1st Circuit all held that he did not satisfy the 10-year requirement since he was served with an NTA in 2006, 6 years after he arrived in the US. However, the Supreme Court held that because the NTA did not specify the date and time of his hearing before the Immigration Judge as required by law, the NTA was invalid and the stop time rule did not apply.

    The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created the requirements for both Cancellation of Removal and the stop-time rule. IIRIRA requires that the NTA must specify the “time and place at which the proceedings will be held”. 8 USC 1229b(d)(1)

    However, the NTA which Mr. Pereira received in 2006 did not specify the date and time of his hearing. Instead, it simply ordered him to appear before an Immigration Judge “at a date to be set at a time to be set”. Therefore, the Supreme Court held that since the NTA did not comply with the requirements of the law, the stop-time rule does not apply.


    Who Benefits Under the Pereira Decision?

    This decision is significant in that it applies not only to Mr. Pereira, but to many thousands of persons who are currently in removal proceedings as well as to persons who have been ordered deported from the US and to those who have already been deported.


    In 1997, after the passage of IIRIRA, the Attorney General promulgated a regulation stating that an NTA served on a noncitizen need only provide “the time, place and date of the initial removal hearing, where practicable.” 62 Fed. Reg. 10332 (1997). Per this regulation, the government typically does not inform persons of the date and time of their initial hearings in Immigration Court on their NTAs. The Supreme Court held this regulation to be invalid, and ruled that these NTAs do not comply with the law and, therefore, the stop-time rule does not apply.


    As a result, there are many thousands of persons who are now eligible to reopen their removal proceedings to enable them to apply for relief from deportation.

    Mr. Pereira was able to accumulate 10 years of physical presence in the US because, in 2007, when the government sent him an NTA with the date and time of his hearing before an Immigration Judge, the government sent the NTA to an incorrect address. By the time he was turned over to the DHS in 2013 as the result of a traffic violation, he had satisfied the 10-year continuous physical presence requirement for cancellation of removal.




    The Supreme Court’s decision will allow thousands of persons whose cases are before Immigration Judges or on appeal to the BIA or the Federal Courts to apply for cancellation of removal. It also benefits persons who have been ordered deported, granted voluntary departure or who have been granted relief, like withholding of removal, which does not lead to permanent resident status.

    To qualify for relief from removal under Pereira, a person must qualify to apply for cancellation of removal if the stop time rule does not apply to them because their NTA did not specify the date and time of their hearing before an Immigration Judge. Cancellation of removal is available to those who meet the following requirements:


    1. You have been physically present in the US for a continuous period of 10 years prior to the institution of removal proceedings. (This requirement is not applicable if you have served a minimum of 24 months in the US Armed Forces, were present in the US during your enlistment or induction, and are either serving honorably or have received an honorable discharge.) “Continuous” means that you can not be out of the U.S. for more than 90 days at a time, or 180 days in the aggregate, during the 10-year period.
    2. You have been a person of good moral character for 10 years;
    3. You are not inadmissible under §212(a)(2) or (3) (criminal and security grounds) or deportable under §237(a)(1)(G) (marriage fraud), (2) (criminal grounds), (3) (failure to register and falsification of documents) or (4) (security and related grounds).
    4. Your removal would result in exceptional and extremely unusual hardship to your spouse, parent, or child, who is a citizen of the United States or a lawful permanent resident.


    Persons who meet the above criteria should consult with immigration attorneys as soon as possible to learn what needs to be filed to request that an Immigration Judge or the BIA reconsider their cases. While their applications for cancellation of removal are pending, they are eligible to receive Employment Authorization Documents (EADs).

    An even bigger question is whether any removal proceeding initiated with a defective NTA fails to comply with jurisdictional requirements. Already, some Immigration Judges have granted Motions to Terminate. We will discuss this issue in a subsequent blog post.

    As a former INS Trial Attorney (1976-82), I wouldn’t be surprised if the number of persons who benefit from the Pereira decision number is in the hundreds of thousands.

    Free Legal Consultations Under Pereira

    Our law firm is offering free legal consultations with our deportation defense attorneys Giselle Sotelo and Jennifer Rozdzielski for persons who qualify under the Pereira decision through the end of July.

    If you qualify for relief from removal under Pereira and you need immigration help, please contact our office and provide your information.

    We will get in touch with you to schedule a time for you to speak with Attorney Giselle Sotelo or Attorney Jennifer Rozdzielski.

  4. Registered Nurses Immigration Update (June 2018)

    Never in the past 40 years have I seen the immigration process for RNs applying for working visas and green cards change as much as it has in the past few months.

    On Friday, June 8, nurse recruiter Tanya Freedman and I will speak about some of these changes on Facebook Live and what foreign-born nurses and healthcare providers in the US can do to better prepare and take advantage of these changes.


    For the first time ever, RN staffing companies across the US have seen I-140 visa petitions for RNs denied by the hundreds by the USCIS. As with IT staffing companies, the USCIS is demanding that the staffing companies be directing the day-to-day activities of the nurses in order to be considered their “employer” for immigration purposes.

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    On the bright side, thousands of RNs from the Philippines, India and many other countries have immigrated to Canada during the past 10 years. Many of these nurses preferred to come to the US, but the lack of job opportunities and long waiting times discouraged them from doing so. Now, they are Canadian citizens and are eligible to work in the US on TN (Trade NAFTA) visas.


    Also, the waiting times for Filipino RNs to get green cards in the US have considerably improved over the past few years. As recently as June 2016, the backlog was nearing 8 years. Now, it is less than 2 years. RNs from other countries (except India and China) have no backlogs whatsoever.

    Many of the hospitals and other health care providers that we represent have been doing the following:

    1. Sponsoring RNs for green cards whose petitions for green cards filed by staffing companies have been denied and who are looking for employment opportunities;

    2. Hiring RNs who are Canadian/Mexican citizens and sponsoring them for TN status; and

    3. Sponsoring RNs for green cards who have EAD work permits in the US or who are living
    abroad.


    Updated 06-14-2018 at 04:04 PM by CShusterman

  5. Tired of Waiting for the USCIS? Think Mandamus!

    What’s the most common complaint of people who have applied for immigration benefits? And for those who have been interviewed by the USCIS?

    Take a wild guess or simply click the video below and close your eyes!



    Back in the 60s, a British Rock Group called the Kinks had a major hit with a song that began:

    I’m so tired,
    Tired of waiting,
    Tired of waiting for you…

    In the 1970s when I worked as an Attorney for the U.S. Immigration and Naturalization Service (INS), immigrants sometimes had to wait for what seemed like forever to get their appointments or to get a decision on their application even after an in-person appointments.

    Fast forward to 2018. These days, it takes even longer for you just to get an interview date and can sometimes take months or even years after your appointment to get a decision.

    Are You Tired of Waiting?

    You may be able to solve your problem by making an InfoPass appointment with the USCIS. If that doesn’t work, you may want to meet with someone from the staff of your Member of Congress’s office and have them write an inquiry letter to the USCIS. Sometimes, these strategies work, and sometimes they do not.

    But you’ll be happy to know that there is a strategy that almost always works, and we have been successfully using this strategy for over 30 years!

    Petition for a Writ of Mandamus

    If you have applied for asylum, a green card or US citizenship, and all you have got from the USCIS is a receipt and maybe a biometrics appointment, and you have waited way more than what the USCIS has stated on their website is the average waiting time, wait no more!

    The same applies if you have been interviewed and it is now months later, and you have yet to receive a decision.



    You can have an immigration lawyer file a Petition for a Writ of Mandamus in Federal Court to force the USCIS make a decision in your pending case.

    The Federal Judge can not tell the USCIS whether they should approve or deny your case but the Judge can order the USCIS to make a decision on your pending application and to do it quickly.

    In fact, it has been our experience over the past 30+ years that just filing a Mandamus action in Federal Court usually prompts the USCIS to grant our request way before the matter even comes before the Judge.

    Of course, we only bring Mandamus actions when our client has a good case and in almost all of the actions that we have filed, our clients have received a positive response from the USCIS.

    This year, we filed a Mandamus action in Sacramento and received a long delayed adjustment of status interview. Our client is now a lawful permanent resident. Earlier, we filed a Mandamus action in San Francisco which prompted the USCIS to our client’s asylum application.

    Of course, going to Federal Court is certainly not the least expensive way to solve your case, but if you are so tired, tired of waiting, Mandamus may be your best bet!

    Mandamus Resources

    Updated 04-09-2018 at 12:07 PM by CShusterman

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