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Why is USCIS Reopening Approved EB-1 Cases Without Any Reason? By Roger Algase

Rating: 4 votes, 5.00 average.

With all the focus on the issue of whether legalization for unskilled, unauthorized immigrants is alive or dead in the GOP House of Tea Party Representatives, we should not lose sight of the war which the Obama administration and its proxy, USCIS, are carrying out against the most highly skilled immigrants of all, namely those with extraordinary ability in the arts, science, education, business or athletics who seek permanent residence in the US through the EB-1 category.

Anyone who has been involved with an EB-1 case knows how difficult and complicated it can be to convince USCIS examiners, not to mention the AAO (Administrative Appeals Office), that a given EB-1 applicant has met the standards for showing extraordinary ability. A 2011 article by Attorney Jan Pederson states that the approval rates were only 62 per cent between 2007 and 2010.

See USCIS releases I-140 Approval/Denial Statistics for EB-1 cases, April 18, 2011.

But what happens when someone has already been approved for this difficult category and suddenly finds that USCIS intends to revoke the approval, with no coherent explanation of why the case was selected for reopening and possible revocation?

Pederson writes:

"Worse yet, USCIS is reopening even approved EB-1 cases and either revoking the approvals or issuing Notices of Intent to Revoke under the
Kazarian[Matter of Kazarian, 580 F.3rd 1030 (9th Circuit, March 4, 2010)] case law."

As explained in more detail in my next post, the Kazarian decision, whose main purpose was to condemn USCIS for making up its own EB-1 requirements that were not in the law or regulations, has provided overzealous USCIS officers with a pretext, albeit a thin one, for reopening already approved extraordinary ability petitions and in some cases revoking them.

But what happens when, as is the case with one of my recent clients, someone who has already been approved for EB-1 extraordinary ability classification receives a Notice of Intent to Revoke (NOIR) for the petition which, on its face, shows that the NOIR was not based on the Kazarian decision and has nothing to do with that decision at all?

If USCIS is now abandoning even the Kazarian pretext for reopening approved EB-1 cases, it is in effect claiming the right to reopen them for no reason at all. In that case, who can be safe from having his or her approved extraordinary ability petition reopened and revoked at any time?

And what else would be next? Would USCIS start reopening and revoking green cards that were based on approved but later reopened EB-1 petitions? How about US citizenship through naturalization based on this type of permanent residence?

Could even citizenship also be revoked without good cause based solely on a USCIS officers whim?

If USCIS has the unlimited, arbitrary, right to reopen previously approved EB-1 petitions for no reason, what is there to stop it from doing the same with other types of immigrant petitions, or for that matter, non-immigrant petitions as well?

This would inject a huge element of uncertainly into the entire legal immigration system that might make it completely unworkable.

To quote from another one of my favorite Latin poets, Ovid (43 BC - 17 AD) writes:

sic erat instabilis tellus, innabilis unda

("No one could walk on the land or swim in the sea.")

Is America's entire legal immigration system in danger of becoming as unstable and unnavigable as the land and sea in Ovid's great epic poem (Metamorphoses, Book 1: 17)?

In an upcoming post, I will examine the Kazarian decision in greater depth. as well as the rationale (if any) for using it as an excuse to reopen already approved EB-1 decisions, and show why even this flimsy excuse does not apply in my client's EB-1 case.

I will also look at the grounds for reopening approved petitions as stated in the INA and Code of Federal Regulations, and show that there is nothing in the statute for regulations that justifies the arbitrary reopening and issuance of an NOIR is a case similar to the EB-1 case involving my client - a case, which in all likelihood is not an isolated one, but may be typical of many other similar arbitrary and unjustified USCIS actions.






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Updated 11-24-2013 at 11:12 AM by ImmigrationLawBlogs

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Comments

  1. Mario Kitty's Avatar
    Your support for the current WH occupant has come to bite you on the rear end. What this administration has repeatedly done on many many areas of the law is to make it up as they go along. As long as you agreed with their decisions you didn't complain, did you? I'm not here going to detail all the illegal acts of this administration, they're well documented. Roger, you may get audited next, if you speak out on this strongly, just like those who have opposed other acts of this administration.

    Can't you see that the allegedly 'overzealous' officers are merely following in the footsteps of those at DOJ (Fast & Furious), Treasury (IRS 501c3 delays and auditing certain outspoken individuals such as Dr. Ben Carson), and HHS (changing, without congressional action, many many parts of 0bamacare). I can go on and on and on but I won't. And I won't feel sorry for you unless you decide to wise up and see what this administration truly stands for.
  2. ImmigrationLawBlogs's Avatar
    In response to the above comment, I have never defended the policies of the Obama administration toward legal immigration. In order to make this even clearer, I have made a revision in the opening paragraph of this post.

    I have also been criticized for allegedly defending Obama's deportation policies. I have, in fact, rarely lost an opportunity to point out how much damage America's Deporter in Chief is doing in that area too.

    Then why did I vote to re-elect Obama last year? Because, even if for self-serving and opportunistic reasons, he has let several hundred thousand DREAMER's and other immigrants off the deportation hook through administrative action, and is holding out at least some hope or extending this.

    His opponent last year, it will be recalled, wanted to give every state the chance to be another Arizona or Alabama and lock up or kick out everyone who was not willing to "self-deport".

    Or doesn't anyone remember back that far?

    Roger Algase
    Attorney at Law
  3. Mario Kitty's Avatar
    Those "Dreamers" you so elevate are now getting a quasi legal status only because yet again, this administration has ignored the basics of the constitutional process.

    And actually the deportation orders being carried out ARE the responsibility of the executive branch. I have no issue with them carrying out that part of the law as they are supposed to. But as with nearly all of this administration's acts, it is done unevenly and without regard to due process (generally) as well as nearly always with some sort of political motive.
  4. Lynn Atherton Bloxham's Avatar
    The total system is a mess and needs to be discarded and a simple, just and easily understood process put in its place (if any at all, as I advocate for a much more open immigration as ideal).

    Too many times the Democrats are focused on only getting voters and not really the best interests of immigrants. In fact Democrats by and large approve of the bureaucracy and excuse its failures.

    Too many Republicans are fearful of false ideas such as overpopulation, jobs lost, welfare use and crime; all issues thoroughly examined and shown to be false by the libertarian and Austrian economists.

    The Immigration regulatory apparatus, as it now stands, is a thoroughly political and unworkable situation. We desperately need people of involvement and true expertise, to step forward bravely and speak the truth about the impossibility of making this doomed system simple, workable and just. Trash it ASAP!
  5. ImmigrationLawBlogs's Avatar
    With regard to Lynn Bloxham's comment, a little history might be in order. During the civil rights era, the Southern segregationists argued that granting voting rights to African-Americans would be a bad idea because it would only create a racial "voting bloc". Similar arguments are now being used to oppose a "pathway to citizenship" for Latino immigrants.

    But now almost everyone recognizes that the civil rights movement was not about "pandering" to minority voters. It was about achieving racial justice and equality.

    This is why Zuckerberg has aptly compared today's immigration reform movement with the civil rights movement.

    It is ironic that in the past 50 years, there has been so little progress against right wing racism and hate. See my 11/23 post on JFK's assassination and its connection with the death of CIR this year.

    Roger Algase
    Attorney at Law
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