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Carl Shusterman's Immigration Update


  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
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