local issues that affect new york-based immigration practices and

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

14th Annual AILA New York Chapter Immigration Law Symposium

Local Issues That Affect New York-Based Immigration Practices And Hot Issues Out Of Washington

A SURVIVOR’S GUIDE TO THE PRACTICE OF IMMIGRATION LAW

Editor-in-Chief Elaine H. Witty

Associate EditorsEve C. Guillergan John A. Quinn Michael F. Turansick

Managing EditorRizwan Hassan

About AILA The American Immigration Lawyers Association (AILA) is a national

bar association of more than 11,000 attorneys who practice immigration law and/or work as teaching professionals. AILA member attorneys repre-sent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives for lawful entry and residence in the United States. AILA members also represent thousands of U.S. businesses and industries who sponsor highly skilled foreign workers seeking to enter the United States on a temporary or per-manent basis. In addition, AILA members represent foreign students, en-tertainers, athletes, and asylum-seekers, often on a pro bono basis. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides its members with continuing legal education, publications, information, pro-fessional services, and expertise through its 36 chapters and over 50 na-tional committees. AILA is an affiliated organization of the American Bar Association and is represented in the ABA House of Delegates.

American Immigration Lawyers Association 1331 G Street, NW

Washington, D.C. 20005 Tel: (202) 507-7600 Fax: (202) 783-7853

www.aila.org

http://www.aila.org/


14th Annual AILA New York Chapter

Immigration Law Symposium (2011)

AILA Titles of Interest AILA’S OCCUPATIONAL GUIDEBOOKS

Immigration Options for Artists and Entertainers Immigration Options for Physicians

Immigration Options for Nurses & Allied Health Care Professionals

Immigration Options for Religious Workers Immigration Options for Academics and Researchers Immigration Options for Investors and Entrepreneurs

STATUTES, REGULATIONS, AGENCY MATERIALS & CASE LAW Immigration & Nationality Act (INA)

Immigration Regulations (CFR)

CORE CURRICULUM Forms & Fundamentals

Immigration Law for Paralegals*

TOOLBOX SERIES AILA’s Immigration Practice Toolbox

AILA’s Litigation Toolbox

FOR YOUR CLIENTS Client Brochures (10 Titles)

U.S. Tax Guides for Foreign Persons and Those Who Pay Them, 4 volumes—

(H-1Bs, L-1s, J-1s, B-1s)*

AILA’S FOCUS SERIES EB-2 & EB-3 Degree Equivalency

by Ronald Wada Waivers Under the INA

by Julie Ferguson Private Bills & Pardons in Immigration

by Anna Gallagher The Child Status Protection Act

by Charles Wheeler

Immigration Practice Under AC21 by A. James Vazquez-Azpiri & Eleanor Pelta

AILA’S PERIODICALS VOICE: An Immigration Dialogue Inside Immigration Monographs

ONLINE RESEARCH TOOLS AILALink Online

TREATISES & PRIMERS Business Immigration: Law & Practice by Daryl Buffenstein and Bo Cooper

Kurzban’s Immigration Law Sourcebook by Ira J. Kurzban

Professionals: A Matter of Degree by Martin J. Lawler

AILA’s Asylum Primer by Regina Germain

Immigration Consequences of Criminal Activity by Mary E. Kramer

Immigration Law & the Military by Margaret D. Stock

Representing Clients in Immigration Court by CLINIC

Essentials of Immigration Law by Richard A. Boswell

Litigating Immigration Cases in Federal Court by Robert Pauw

Immigration Law & the Family edited and written by Charles Wheeler

Immigration Law & the Transgender Client by Transgender Law Center

& Immigration Equality

OTHER TITLES The Waivers Book

The Diplomatic Visas Handbook The Entrepreneurial Lawyer: How to Run a Successful

Immigration Practice AILA’s Guide to Worksite Enforcement

and Corporate Compliance AILA’s Guide to PERM Labor Certification

Going Global: Trends in Outbound Immigration AILA’s Global Immigration Guide:

A Country-by-Country Survey Immigration Practice Pointers

The Consular Practice Handbook Immigration Practice Under NAFTA and Other Free Trade Agreements

The International Adoption Sourcebook

GOVERNMENT REPRINTS BIA Practice Manual

Immigration Judge Benchbook CBP Inspector’s Field Manual

USCIS Adjudicator’s Field Manual EOIR Immigration Court Practice Manual

Affirmative Asylum Procedures Manual

Tables of contents and other information about these publications can be found at www.ailapubs.org.

Orders may be placed at that site or by calling 1-800-982-2839. *An AILA-distributed title

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

14th Annual AILA New York Chapter Immigration Law Symposium

Local Issues That Affect New York-Based Immigration Practices And Hot Issues Out Of Washington


Editor-in-Chief Elaine H. Witty

Associate EditorsEve C. Guillergan John A. Quinn Michael F. Turansick

Managing EditorRizwan Hassan

Copyright © 2011 by the American Immigration Lawyers Association

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage retrieval system, without written permission from the publisher. No copyright claimed on U.S. government material. Requests for permission to make electronic or print copies of any part of this work should be mailed to Director of Publications, American Immigration Lawyers Association, 1331 G Street NW, Washington, D.C. 20005, or e-mailed to [email protected].

Printed in the United States of America

ISBN 978-1-57370-xxx-x Stock No. 5x-xx

Website for Corrections and Updates

Corrections and other updates to AILA publications can be found online at: www.ailapubs.org/BookUpdates.

If you have any corrections or updates to the information in this book, please let us know by

sending a note to the address below, or e-mail us at [email protected].

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is distributed with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

—from a Declaration of Principles jointly adopted by a committee of the American Bar Association and a committee of publishers

Proceeds from the sales of AILA publications are reinvested in the association to help support member programs and services in the areas of federal and state advocacy, government liaison, practice assistance, ethics education, media outreach, and timely dissemination of members-only information via InfoNet. In addition, contributions are made to the American Immigration Council (formerly known as American Immigration Law Foundation (AILF)). The American Immigration Lawyers Association (AILA) is a national bar association of more than 11,000 attorneys who practice immigration law and/or work as teaching professionals. AILA member attorneys represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives for lawful entry and residence in the United States. AILA members also represent thousands of U.S. businesses and industries who sponsor highly skilled foreign workers seeking to enter the United States on a temporary or permanent basis. In addition, AILA members represent foreign students, entertainers, athletes, and asylum-seekers, often on a pro bono basis. Founded in 1946, AILA is a nonpartisan, not-for-profit organization that provides its members with continuing legal education, publications, information, professional services, and expertise through its 36 chapters and over 50 national committees. AILA is an affiliated organization of the American Bar Association and is represented in the ABA House of Delegates.

http://www.ailapubs.org/BookUpdates

mailto:[email protected]

vii

Table of Contents A Survivor’s Guide to the Practice of Immigration Law

14TH AILA NEW YORK CHAPTER IMMIGRATION LAW SYMPOSIUM (2011)

1. The Path is Blurred—How to Navigate Your Way Through Ethical Dilemmas.....1

by Jason Abrams

2. Employee Selection—Recruitment Strategies and Techniques...............................7 by Suzanne Seltzer

3. Tips for Employee Retention and Satisfaction ......................................................10 by Anastasia Tonello

4. Five Tips for Advising Regional Center Investors, Non-Regional Center Investors, and Regional Center Developers...........................................................13 by Wendy Hess, Kate Kalmykov, Ceridwen Koski, and Stephen Yale-Loehr

5. Supervised Recruitment: An Expanding Procedure for PERM Applications .......20 by Deborah J. Notkin

6. Should an Employer Join E-Verify? The Pros and Cons in a Nutshell .................25 by Bonnie K. Gibson

7. Summary of Recent Relevant BALCA Cases .......................................................26 by Sharryn E. Ross

8. Navigating Through a Marriage on the Rocks.......................................................34 by Maurice H. Goldman, Timothy Fallon, and Elizabeth Brettschneider

9. Prosecutorial Discretion: What Is It? When Can You Seek It? What Does

It Get You?.............................................................................................................42 by Paul O’Dwyer

10. Strategic Use of Mental Health Evaluations in the I-601 Waiver Process ............50

by H. Raymond Fasano

Preface This year’s conference theme, A Survivor’s Guide to the Practice of Immigration Law, reflects the continuing frustration of practicing immigration law in an environment comprised of workplace raids and audits, endless Requests for Evidence, unjustified case denials and rejection notices, and what feels like anti-immigrant sentiment from the government. With 18 months to the next presidential election and no sign of immigration reform on the horizon, a dismal economy, and numerous states passing anti-immigrant legislation, it is easy to get disheartened. Our conference is designed to remind you that “when the going gets tough, the tough get going!” Our speakers will give you practical solutions to gnarly immigration law and ethical issues, ideas for improving your law office practice management skills, and litigation and advocacy strategies. It is important for us not to lose sight of the fact that what we do matters. Behind each case is a human being whose future in this country depends on us. Imagine that by assisting our client, we will have changed the course of a family forever. Many of us are the children, grandchildren, and great-grandchildren of immigrants. We know from personal experience how emigrating to the United States has had a profound effect on us and our loved ones. It has changed the course of human history. We must remember not to get disheartened in the face of adversity but rather rise to the occasion. It is our hope that you will be reinvigorated in the practice of immigration law and pick up a few survival tips along the way!

Elaine H. Witty Eve C. Guillergan

Michael F. Turansick John A. Quin

New York, NY December 2011

A Message from the Chapter Chair Welcome to the 14th Annual AILA New York Chapter Immigration Law Symposium Handbook, issued in conjunction with our conference program: “A Survivor’s Guide to the Practice of Immigration Law.” It is our distinct honor and privilege to bring you a series of insightful and useful practice advisories. Our deepest gratitude goes out to our esteemed colleagues who have shared their years of experience and words of wisdom on the pages of this handbook. We extend our thanks to Grace Woods, Emmie Smith, and Rizwan Hassan at AILA National for their assistance. Our deepest appreciation goes out to our handbook editors, Elaine H. Witty, Eve C. Guillergan, Michael F. Turansick, and John Quinn, all of whom worked tirelessly to produce these materials. We also recognize the hours of time devoted by the New York Chapter Executive Committee, the Conference Program Committee, and AILA National staff who every year organize this conference for our benefit. In our opinion, what makes AILA a unique bar association is the commitment of its members to enhance the practice of immigration law and to support one another in becoming better lawyers. AILA is a collegial environment where we share with one another practice pointers, marketing strategies, case outcomes, and exemplars. It is unprecedented to have attorneys who willingly and selflessly share knowledge and information. It is this spirit of cooperation that makes AILA special. It’s our survival tactic against arbitrary and inconsistent government policies; it’s our secret weapon. We hope you find the survival tips in this handbook a welcome addition to your professional toolkit.

David G. Katona, Chapter Chair New York, NY December 2011

About the Editors

Elaine H. Witty is founder of Witty Law Group, PLLC with offices in New York and Memphis. An active member of the immigration bar, Ms. Witty is past chapter chair of the New York Chapter of the American Immigration Lawyers Association (AILA) and currently serves as vice-chair of the Tennessee Bar Association’s Immigration Law Section. She has taught immigration law seminars at New York Law School, City University of New York, City Bar Association, Federal Bar Association, and AILA National and chapter conferences. Ms. Witty was once again named one of the top immigration attorneys in the Northeast by Avvo.com. She can be reached at [email protected].

Eve C. Guillergan ([email protected]) manages an innovative immigration law firm in New York. Her practice includes business and family-based immigration, litigation and deportation/removal defense, and naturalization. Ms. Guillergan is a 1992 graduate of Rutgers School of Law in Newark, NJ. She is an active member of the bar and has served on numerous committees for the AILA New York Chapter. She is currently on AILA’s Pro Bono Committee.

Michael F. Turansick is a partner at Fragomen, Del Rey Bernsen & Loewy LLP and manages the firm’s Chicago office. He has more than 25 years of experience in corporate immigration law and manages a diverse practice comprising individual, start-up, mid-size, and large multinational companies. Mr. Turansick currently serves as secretary of the French American Chamber of Commerce in Chicago and is a board of trustee member of the American Immigration Council. A frequent author and speaker on immigration topics, Mr. Turansick is listed in the current editions of Best Lawyers and The International Who’s Who of Corporate Immigration Lawyers. He can be reached at [email protected].

John A. Quinn has been practicing immigration law for 15 years focusing primarily in the area of business immigration. He works extensively with and provides strategic advice to IT firms, athletes, sports organizations, educational institutions, and consumer goods companies. Formerly a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, Mr. Quinn is a member of AILA and the American Bar Association. He can be reached [email protected].





The Path is Blurred—How to Navigate Your Way Through Ethical Dilemmas

by Jason Abrams Jason Abrams has been a partner with the firm of Abrams & Abrams LLP since 2008. He specializes in employment-based and family-based petitions and applications, including H-1B, H-3, and L-1 nonimmigrant visas and all immigrant petitions, including skilled and unskilled workers, extraordinary ability, and multinational manager petitions. Mr. Abrams also works on complicated situations involving fraud allegations, identity theft, and foreign victims of predatory universities. He has served as co-chair of the AILA New York Chapter’s Committee on Ethics and the Unauthorized Practice of Law for several years, and is currently chair of AILA National’s Committee on Consumer Protection. The overarching theme of a responsible ethics presentation is the sharing of best practices. With the advancement of technology in the legal sector, those practices often take on new appearances, but at their heart they are most notably clear communication with clients, an efficient system by which deadlines are managed, and a risk-averse policy toward shortcuts and client secrets.

Cloud Storage The recently released iPhone 4S seeks to move its users toward “cloud” storage, which millions of people will count on to access billions of contacts and e-mails on servers in locations unknown to them. And as any technology brought to the masses will eventually end up in the hands of Luddites, chief among them immigration lawyers, we seek to confront the necessary new series of ethical questions before they turn into ethical dilemmas. The New York State Bar Association (NYSBA) released an ethical option in late 2010, relating to the most common purpose for attorney cloud storage, which is to efficiently retain client files. The opinion1 permits such storage provided the attorney uses reasonable care, yet the opinion is confined to the specific facts supplied by the opinion seeker. The NYSBA requires any attorney using cloud storage to stay abreast of technological advancements so that attorney-client privilege is not violated. Considering the rate at which technology advances and the difficulties in understanding the chain of custody of any data, that can be a tall order for many attorneys. Most state bars and bar associations weighing in on the cloud storage issue are finding it acceptable. The Pennsylvania bar agreed, and went so far as to recommend the following to attorneys seeking to avoid ethical catastrophes2:

1. Backing up data to allow the firm to restore data that has been lost, corrupted, or accidentally deleted;

2. Installing a firewall to limit access to the firm’s network;

1 Copyright © 2011. American Immigration Lawyers Association.

2 14TH ANNUAL AILA NEW YORK CHAPTER IMMIGRATION LAW SYMPOSIUM

3. Limiting information that is provided to others to what is required/needed/requested;

4. Avoiding inadvertent disclosure of information such as Social Security Numbers;

5. Verifying the identity of individuals to whom the attorney provides confidential information;

6. Refusing to disclose confidential information to unauthorized individuals (including family members and friends) without client permission;

7. Protecting electronic records containing confidential data, including backups, by encrypting the confidential data;

8. Implementing electronic audit trail procedures to monitor who is accessing the data; and

9. Creating plans to address security breaches, including the identification of persons to be notified about any known or suspected security breach involving confidential data.

Rather than be discouraged by the warnings and requirements states are putting into place for attorneys seeking to use the cloud, readers should consult Reid Trautz’s practice advisory for excellent advice on how helpful the cloud can be to your practice.3

Who Can Pay for What and for Whom The U.S. Department of Labor’s (DOL) 2007 amendments to the regulations governing permanent alien labor certification instituted what many refer to as the “Fraud Rule(s),”4 which contained, inter alia, a mandate that employers must take care of all fees related to applications filed on behalf of their employees, including monies paid to lawyers and for recruitment. More than four years later, there have been no instances of public discipline or debarment based on that mandate. The consolidated PERM FAQs5 have improved our knowledge of how the mandate shall operate, but they continue to avoid the elephant in the room: cash payments. Quite often an employee rather than an employer will be the one meeting with the attorney, and that employee might even be engaged in a cash-based business with the employer. When that employee brings cash to the attorney’s office to pay for legal fees and recruitment, there might be a presumption that the employee is paying his own way in violation of the regulations, but that is not necessarily so. Add in the possibility that even a check drawn on the employee’s bank can belie a reimbursement from the employer, or, conversely, that not every company check means a company is paying, and you have what appears to be an unenforceable regulation. The attorney’s standard best practices, clear communication and the implementation of professional and organizational practices that serve to protect oneself from legal and administrative penalties, criticism, or other punitive measures, come into play in this regulatory scenario. The attorney should document that the employer has been informed of the requirement and document the employer’s statement of compliance. Once in possession of confirmation of the employer’s statement of compliance, for example, just

How to Navigate Your Way Through Ethical Dilemmas 3

two e-mails stating this fact, even if stored in the cloud, may suffice. Some attorneys will accept only a company check, despite the aforementioned possibility that the employee’s next 26 paychecks will be a bit lighter. The requirement that an H-1B petitioner pay for fees and costs associated with the filing of the petition can be just as difficult to enforce. DOL does permit passing such costs on to the employee provided that the actual wage paid does not then sink below the prevailing wage. A payment from the employee to the employer is therefore not a per se violation, which can muddy the waters and prevent the attorney from establishing whether the employer is in compliance. Imagine a situation where the prevailing wage is $50,000, and the fees and costs for the filing of the petition will total $5,000. Does the mere statement on the labor condition application (LCA) that the employee will be paid $55,000 permit the attorney to accept payment directly from the employee? It seems the identical best practices are in play in the H-1B context as in the PERM context. Only the question of how much documentation of the notification to the employer and its statement of understanding remain in question.

Just Who Is the Client Anyway? The question of the availability of advance waivers in the dual representation context is so substantive as to require its own article, and more than one has been written.6 The topic remains hotly debated due to the large number of dual representation situations (and the large number of ways for them to go wrong) in immigration law practice. This article will focus on only one potential situation: The absence of any waiver or statement of limited representation from the employee, and a retainer agreement signed only by the employer. This common situation might appear cut and dry to the immigration law neophyte, but usually only a few cases are required under one’s belt before an attorney will encounter a terminated employee seeking all or part of his file. In the example of a standard employment-based case (with labor certification application) wherein the employee is terminated after the I-140 petition is approved but before adjustment of status can be filed due to priority date retrogression, the employee has multiple reasons for obtaining as much of his file as possible. Barring any controlling state ethical rules, items the attorney can clearly withhold are those pertaining directly to the employer only, such as its tax returns and proprietary information, as well as PERM recruitment results. Items that clearly must be returned to the employee are those that pertain directly to him or her, such as birth and marriage records and personal financial records. Those that create ethical dilemmas most frequently include Forms 9089 and I-140. The Form 9089, though executed secondarily by the employee, is filed by the employer after the employer conducts recruitment. Yet it contains information vital to the employee should he seek permanent alien labor certification via another employer. Some attorneys attempt to withhold these forms from terminated employees at all costs; others haphazardly provide entire files to employees, assuming the employers will not think to inquire about them. The best practice lies somewhere in between a compromise between employer and former employee as to what can be released, documented in writing, absolving the attorney of wrongdoing.


An additional best practice in this hypothetical situation: The attorney, for financial reasons, often feels pulled toward siding with the employer who has asked him or her to withhold a disputed item from the former employee. The attorney would do well to remember that state discipline for prejudicing the employee (former client) may have an equal or greater financial effect. A clear explanation to the employer that the attorney feels the item cannot be withheld is in order. Of course, dual representation is not limited to the employment-based context. Familial relationships go south more frequently than their business counterparts, and the attorney’s failure to terminate representation of one or often both parties early enough can often come back to haunt him or her. Seasoned immigration practitioners will recognize the signs: Two clients, married to each other, suddenly calling the office multiple times to state that the marriage is falling apart and giving precise instructions to the attorney in the event of the other spouse’s call.

Client Secrets A seemingly straightforward employment-based adjustment of status is in jeopardy when the applicant reveals an old criminal conviction to the attorney and requests that this information not be shared with the employer. The employee with the criminal background seeks to maintain H-1B status with the employer at all cost; if the adjustment application could just “go away,” the employee could continue working unfettered until the amount of time permitted in H-1B status is reached or the priority date becomes current. The employee will make the continuation of employment the goal, and will often ask the attorney if another reason for the denial of adjustment of status can be concocted, since revealing the true reason will result in termination. Another example is when an H-1B employee clandestinely reveals his intent to depart to another company and asks questions of the attorney regarding the porting mechanism. All of these situations create ethical dilemmas for the attorney; none can be solved easily by those who remember that each case contains a human element. The attorney’s goal should always be to have the offending client implicate him- or herself and notify the other party. Of course, this will not always be possible but, looking at the first situation above, the only other option is to reveal the conviction. As stated above, convincing the employee to break the news to the employer, or by doing so him- or herself, best protects the attorney. The solution does not change even where the employee will fall into financial ruin without his job, or where the criminal conviction is very old and for a relatively minor offense, yet still triggers inadmissibility. Best practices require a written communication to the employee concerning the inadmissibility, followed by either a written communication to the employer or such communication from the employee to the attorney in which he or she states that notification to the employer has been effected. Secrets in family-based cases seem to arise more frequently. Perhaps the attorney’s office does its own Internet search on its married clients and discovers romantic photos of one with a third party. The photographs might reveal either a cheating spouse or a sham

How to Navigate Your Way Through Ethical Dilemmas 5

marriage. Either way, the attorney must act to resolve the matter, even by direct notification to the cuckolded spouse. Marriage cases and the potential for fraud add a new facet to the issue of client secrets: The attorney might be protecting one client from the other, or protecting his or her law license from the machinations of a felonious couple. So how to approach a “cheater” when such evidence is unearthed? This article suggests the attorney start with the Lifetime movie approach: Demanding that the “cheater” tell the spouse, or that the attorney will do so. If the cheater agrees, and the couple continues the case with no rift between them, the attorney must decide whether the interaction is evidence of a sham marriage. If, on the other hand, the “cheater” refuses, it is hard to imagine ethical consequences for the attorney who reveals the infidelity to the injured party, as they directly relate to the ability to continue representation. Most negative photographic and other evidence on the Internet will be found on Facebook. Facebook has changed its privacy policies numerous times. As a result, users often have previously hidden photos exposed to anyone with or without a Facebook account. Even if limited only to “friends,” those same photos can often be seen by “friends of friends,” thereby widening the circle to tens of thousands of people. Some attorneys have begun checking Facebook (and some use even deeper background checks on clients) prior to representation. Others confine their decision to take on representation to the consultation, preferring not to delve into what is not required of them. The former group believes the latter hide their heads in the sand; the latter believe the former are setting a dangerous precedent by doing something that is not required. Both positions have merit. However, the necessity of an attorney checking Facebook and other sites before representation or including in their retainer agreement the ability to terminate representation and keep all fees upon discovery of adverse evidence is bolstered by a U.S. Citizenship and Immigration Services (USCIS) pronouncement at the 2009 AILA Annual Conference. At the conference, a USCIS official stated that officers would be checking Facebook and other Internet sites to create rebuttable presumptions of fraud. The process was clarified some by the release of a field office memo.7 Since 2009, an informal poll of attorneys shows that agents of U.S. Customs and Border Protection (CBP) remain by far the leaders in “trolling the Internet” for negative information, whereas attorneys have not reported any such activity by USCIS.

Conclusion Facebook, and now, the cloud: It used to be that the outer technological limits of immigration practice involved the insertion of goldenrod paper into a mimeograph machine, but those days are long gone. This article and the cautionary tales contained herein are not meant to discourage practitioners from testing out new technology for their offices. On the contrary, efficiency and ethics complement each other. As a law office runs more efficiently, it is less likely to find itself in ethical dilemmas. Nevertheless, certain ethical dilemmas will stand the test of time and will always outpace technological advancement. The aforementioned cheating spouses, latent criminal convictions, and kickback schemes are only some examples requiring an attorney’s watchful eye for the sake of the client’s and the attorney’s own protection.


1 www.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions825present/EO_842.pdf. 2 Pennsylvania Bar Association Opinion No. 2010-060 (Jan. 2011). 3 R. Trautz, “Mobile Lawyering from Anywhere, 2011 Edition,” published on AILA InfoNet at Doc. No. 11083168 (posted on Aug. 31, 2011). 4 20 CFR part 656; 72 Fed. Reg. 29704 (May 17, 2007). 5 www.foreignlaborcert.doleta.gov/faqsanswers.cfm#fraud_pro_pay1 (retrieved on Nov. 17, 2011). 6 See C. Mehta, “Finding the ‘Golden Mean’ in Dual Representation,” available at www.cyrusmehta.com/related/Finding_the_Golden_Mean-_pdf_02_16_07.pdf (retrieved on Nov. 17, 2011); B. Hake, “Dual Representation in Immigration Practice,” published on AILA InfoNet at Doc No. 05060724 (posted on Jun. 7, 2005) 7

I

USCIS Memorandum, “Social Networking Sites and Their Importance to FDNS,” published on AILA nfoNet at Doc. No. 10101473 (posted Oct. 14, 2010).

http://www.nysba.org/Content/ContentFolders/EthicsOpinions/Opinions825present/EO_842.pdf

http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#fraud_pro_pay1

http://www.cyrusmehta.com/related/Finding_the_Golden_Mean-_pdf_02_16_07.pdf

Employee Selection—Recruitment Strategies and Techniques by Suzanne Seltzer

Suzanne B. Seltzer is a partner of Klasko, Rulon, Stock & Seltzer LLP, and is the chair of AILA’s USCIS Benefits & Policy Liaison Committee. In addition, she is a member of AILA’s InterAgency Liaison Committee, and recently completed her tenure as the Vermont Service Center (VSC) liaison and as a NAFSA Regulatory Ombudsman. Ms. Seltzer speaks and writes extensively on visa options for scientists and researchers. She is listed in Best Lawyers in America, Chambers USA, New York SuperLawyers, and the International Who’s Who of Corporate Immigration Lawyers. A magna cum laude graduate of the University of Pennsylvania, Ms. Seltzer received her law degree from Georgetown University’s Law Center (cum laude). A firm is only as good as the people that work for it. Attracting and retaining clients requires an investment in human capital, in the form of employees and staff, capable of handling client matters in a productive and efficient manner. This article and the one that follows provide guidance on attracting and identifying the best talent to improve your organization, and retaining those key employees. It is only by having the best people, doing their best job, and staying with your firm for the long term, that you are able to effectively manage your firm and its valuable human resources. One of the never-ending challenges of running a practice—big or small—is finding the right staff. Whether because the practice is growing or changing, or because staff is moving up or on, there seems to be very little respite from the recruitment process. The following are suggestions that may facilitate the process: Identifying a Desirable Candidate Prior to identifying a desirable candidate, it is important for the managing attorney to clearly define the position he or she will be expected to fill. This should include more than the job titles of “paralegal” or even “senior paralegal.” Think extensively about the job duties that the individual will perform, and the skillset necessary to perform those duties. For example, a position that will involve preparing H-1B petitions should clearly indicate what aspects of the H-1B petition will be the individual’s responsibility: Is it working from templates or more original drafting? Will it include determining the prevailing wage and preparing the public access file? Will it involve contact with the petitioner and beneficiary, or using information already contained in a database? Who should the individual report to? While it may seem tedious, in the end, a more detailed outline of the job duties will save time. More defined job duties will allow you to articulate the skillset necessary to perform the job, and this in turn will allow you to focus in on desirable candidates. If the position is more senior and independent, it will not only require more years of experience, but also strong writing skills, organizational skills, attention to detail, and the ability to analyze and interpret data. In addition, it may also require an ability to establish systems for managing multiple cases and for developing ongoing relationships with the client.


14TH ANNUAL AILA NEW YORK CHAPTER IMMIGRATION LAW SYMPOSIUM 8

Recruitment Techniques Once the position is clearly defined, you are ready to place the advertisement. In fact, you already may have a draft of the advertisement by virtue of your efforts describing the job. For example, the text of the advertisement may indicate the number of years of experience required or simply note “senior” position; it may include handling a variety of employment-based immigration matters for a specific industry, or perhaps focus more on specific case types such as H-1Bs and PERM; hospitals and research organizations. Most importantly, it should emphasize the key skills you are seeking—whether excellent writing and academic credentials or strong interpersonal skills and fluency in German and Mandarin. Hopefully, this will result in fewer unqualified candidates applying for the position, although it is certainly not a panacea. Deciding where to place the ad comes next. As immigration lawyers, we are no strangers to a variety of recruitment techniques as many of us are familiar with the U.S. Department of Labor’s required and alternative recruitment techniques. Moreover, the Internet does a lot of this work for us, as an ad placed on one website may be picked up by an automated software program (“spiders” or “robots”) and get published on multiple websites. A word of caution: An ad moving from site to site can be like a game of telephone, with some of the descriptions and requirements added or changed. If this appears to be a problem, it may be helpful to ask interested and interesting candidates where they saw the ad. Interviewing Strategies Once the ad has run, there is an initial flood of rèsumès that can be somewhat overwhelming. Fortunately or unfortunately, it often turns out that of the numerous rèsumès, only a few may have anything resembling the required skills and experience. One way to quickly weed through the rèsumès is to do a cursory review to see if the candidate followed directions. If the ad required a writing sample or transcripts, are they included? Did the candidate take the time to draft a cover letter? If so, is it well written? Often, a cover letter will provide a more accurate picture of the candidate’s writing skills than a writing sample. For example, typos in a cover letter or on a rèsumè are a sure sign that there will be typos in your future. And in immigration law, typos are not something easily forgiven. At long last, the time for the interview has arrived. Ask the candidate about the experience mentioned on their rèsumè. You should ask specific questions in your interview of the candidate. Not just how many of this or that type of petition, but ask detailed questions about what was involved. Have the candidate walk you through their role and responsibilities. This shows you both whether they understand the concepts, and also how well they will be able to explain them to clients. In addition, maybe ask about a favorite case or assignment, or the most challenging or difficult case and how it was handled. Also, what questions might they have for you? Did they bother to read your website? This is important in gauging their interest in the position. Finally, it is very important to have the other employees in the office also interview the candidate (for larger offices, maybe just the other employees in the team or group the

Employee Selection—Recruitment Strategies and Techniques

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candidate will be joining). A candidate may show a different side to peers, or your employees may be able to glean certain things you missed. In addition, if people are working together in teams or in nearby quarters, it is important that they get along. Is this someone who fits into the firm culture? It is difficult to spend extensive amount of time to find the right candidate with client deadlines and many things to manage in running a law firm. But hiring the right person can make your practice run more smoothly and create a law firm culture that everyone will enjoy.

Tips for Employee Retention and Satisfaction by Anastasia Tonello

Anastasia Tonello is the managing partner of Laura Devine Attorneys LLC in New York City, the associated law firm of Laura Devine Solicitors in London where she is also a partner. Ms. Tonello was a charter member and officer of the American Immigration Lawyers Association (AILA) Rome District Chapter and currently serves on its executive committee as the immediate past chair. She also serves as chair of the AILA Department of State Liaison Committee, and is a frequent speaker on consular issues, having spoken at AILA conferences and at the world’s leading business schools and organizations in the United States and abroad. Ms. Tonello received a B.A. from Indiana University and a J.D. from the University of Notre Dame. She is admitted to the New York State Bar Association and is a solicitor of the Supreme Court of England and Wales. She has been recognized in Who’s Who Legal, Legal 500 (UK Edition), Chambers Guide to the UK Legal Profession, and SuperLawyers. You can follow her on Twitter at #anastasianylon. We went to law school to practice law. Who knew as a lawyer we would also need to be employers? Dealing with human resources issues can be one of the most challenging parts of managing a practice. Staff issues can consume an enormous amount of time and, if not dealt with properly, can lead to an unhappy, unproductive, and most importantly, unprofitable firm. Below are some tips that I have found in my practice to be effective in promoting a happy workplace.

Get to Know Your Staff

1. Make sure the people you work with know you, and that you take the time to get to know them. Go out to lunch with them; have team drinks; find a few minutes to catch up on what they did this weekend; and take an interest in their interests.

2. If possible, have an open door policy. If this doesn’t fit in with your work style, have office hours where staff members are free to come in for a chat. As the boss you can be intimidating, so you may need to encourage visits or set up regular catch-up appointments.

3. Be aware that people show and deal with stress in many different ways.

Offer Benefits

1. Offering a matching 401k and insurance benefits is an excellent way to generate good will and let employees know you appreciate them. If cash flow is tight try offering extra holidays or time off.

2. It is also helpful to do an annual salary review. You don’t have to give a big raise, but even a small bonus or an acknowledgment that “we don’t have funds in our budget now, but I haven’t forgotten about you” will gain you points.

3. Provide opportunities for employees to get out of the office—let your employee go on courses or seminars (there are many free ones throughout New York) or take them with you when you visit a client or associated offices, etc.


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Encourage Teamwork

1. Avoid situations where employees think they need to compete with each other in a negative way. Praise often goes to the highest billers and often the quiet operators get overlooked. Make sure all employees feel their roles are valued. The person that makes the copies is just as vital to the firm’s operations as a senior associate.

2. Take a day, morning, or afternoon for a teambuilding exercise. If each person feels necessary to the big picture they are more likely to want to contribute and will take pride in the firm’s success and take responsibility when things go wrong.

3. Stress the importance of working in a team. Everyone is there to help everyone else. No one is an island!

4. When staff conflicts arise, listen to both sides of the problem and try to be impartial. It is important to walk the line between friend and boss. Make it clear that you are there to listen and assist in resolution, but will remain impartial and loyal to the best interests of the firm.

Make Time for Annual Appraisals

1. 360-degree appraisals can help promote a positive and constructive, not critical discussion. Quality of work, attitude, flexibility, and teamwork should all be addressed.

2. Ask the employees to self-appraise. It is a good opportunity to get their perspective on their own work and the firm.

3. Set annual goals and give praise when targets are met, but do what you say you will do. Don’t set expectations only to disappoint.

Communicate the Firm’s Goals

1. Be open about the direction of the firm’s business, finances, and problems where appropriate. Employees are more likely to take an interest in achieving the firm’s financial targets if they know what they are! Employees often overlook the expenses of running a firm. Rent, insurances, telephones, Internet, and postage all cost money. Overheads need to be met before profits are made. By making it a collective goal, if profits are low or not achieved, employees are more likely to understand why they didn’t get a raise this year or the raise they got was not what they wanted.

2. Train your staff to be concerned but not worried. Gain their trust so they are not stressed about losing their jobs.

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3. In the end, a happy staff makes a happy firm. There is no proven recipe for success that fits all firms, but keep an open mind. Remember to make time to value your employees, and make sure they know they are valued; this is the first step to ensuring employee retention and satisfaction.


Five Tips for Advising Regional Center Investors, Non-Regional Center Investors, and Regional Center Developers

by Wendy Castor Hess, Kate Kalmykov, Ceridwen Koski, and Stephen Yale-Loehr Wendy Castor Hess, founding partner at Goldblum & Hess, based in Jenkintown, PA, has practiced immigration law for over 30 years. She represents both foreign investors and regional centers in the area of EB-5 investor visas. Ms. Hess is an active member of the bar and serves as chair of the Philadelphia Bar Association’s (PBA) Immigration Committee, co-vice chair of PBA’s Immigration Section, co-chair of AILA Philadelphia’s USCIS Liaison Committee, and president of the Hebrew Immigrant Aid Society (HIAS) Pennsylvania. She can be reached at [email protected]. Kate Kalmykov, Of Counsel at Greenberg Traurig, LLP, has extensive experience working on EB-5 immigrant investor matters. She represents developers and private equity funds in connection with new projects that qualify for EB-5 investments, including the creation of new regional centers. Ms. Kalmykov advises foreign nationals on obtaining green cards through EB-5 investments and counsels employers on due diligence issues including internal audits and reviews. She can be reached at [email protected]. Ceridwen Koski, an attorney at Laura Devine Attorneys in New York, is admitted to practice in New York and Arizona. Ms. Koski focuses her practice on all areas of business immigration law, including EB-5 petitions. She represents investors, Fortune 500 companies, individuals, corporations, and entertainers. Ms. Koski performs pro bono work on behalf of The Door, City University of New York (CUNY), and the New York City Bar Association pro-bono clinics. She can be reached at [email protected]. Stephen Yale-Loehr is an immigration law professor at Cornell Law School, co-author of Immigration Law and Procedure, and Of Counsel at Miller Mayer in Ithaca, NY. Mr. Yale-Loehr is a member of AILA’s Business Immigration Committee. He is a 2001 winner of AILA’s Elmer Fried award for excellence in teaching and a 2004 winner of AILA’s Edith Lowenstein award for excellence in the practice of immigration law. Mr. Yale-Loehr graduated from Cornell Law School in 1981 cum laude, where he was editor-in-chief of the Cornell International Law Journal. He can be reached at [email protected]. Affluent individuals interested in immigrating to the United States may take advantage of the fifth employment-based preference category (EB-5) if they meet its strict requirements. Congress created the EB-5 category in 1990 to benefit investors who create jobs for U.S. workers.1 Ten thousand immigrant visas are allotted to the EB-5 category annually.2 Governing statutes and regulations are located at Immigration and Nationality Act (INA) §§203(b)(5), 216A and 8 CFR §§204.6, 216. Precedent case law includes Matter of Soffici,3 Matter of Izummi,4 Matter of Ho,5 and Matter of Hsiung.6 U.S. Citizenship and Immigration Services (USCIS) has published several memoranda and stakeholder presentations as EB-5 guidance.7 Most recently, on November 9, 2011, USCIS issued a draft memo to address certain foundational issues in the EB-5 program.8 Investors must be willing to undergo a rigorous two-step immigrant visa process in which a petition for conditional permanent residency is filed and within two years, a petition confirming the bona-fides of the initial petition is filed to remove the conditions of permanent residency. Immediate family members may be included in the process. Basic challenges include tracing the source of investment funds, management of the investment, and working with experts to ensure compliance with all EB-5 requirements.


The investor must be prepared to participate in the onerous task of selecting an investment enterprise and facilitating the generation of extensive documentation required to demonstrate that the enterprise meets the EB-5 requirements. Essentially, petitioners must evidence establishment of a new commercial enterprise, investment of either $500,000 or $1 million, and the resulting creation of 10 jobs. The EB-5 category has been implemented somewhat turbulently, so although the essential requirements appear straightforward, proving them is not. This article provides five tips for three EB-5 processes: (1) representing a regional center investor; (2) representing a non-regional center investor (basic individual); and (3) representing a regional center developer.

Five Tips for Advising Regional Center EB-5 Investors Ninety percent of all EB-5 cases are filed by regional center investors, according to the USCIS.9 While an investor knows that the purpose of investing in a regional center generally differs from the reasons associated with making traditional investments, many of the same key principles in evaluating where to place an investor’s trust and money remain in full effect. By keeping the following five tips in mind, a foreign investor will be in a stronger position to choose the right regional center to accomplish his or her objectives, both financial and personal.

1. Always start with a dose of common sense that starts with the word “credibility.” Foreign investors are typically savvy business people. In the EB-5 regional center context, it is critical that investors use the same business/common sense standards that have served them well in amassing the capital necessary to invest in the regional center. This includes carefully scrutinizing not only the credibility of the staff and operations of the regional center itself but also the projects offered. At the end of the day, this remains an investment, pure and simple—with one twist: Job creation is the measure of success, not necessarily the investor’s profit or even the return of the invested money. For this reason, be sure that your investor seeks appropriate financial and business counsel—individuals well versed in making investments who are capable of evaluating the credibility of a business plan, determining if a project is sound, and determining if the investor’s full goals will likely be realized.

2. A track record of proven success is more valuable than a glitzy marketing campaign. While there are over 190 regional centers currently authorized by USCIS,10 only a small handful of them have been in operation for a long period of time and have produced consistent results. Investors should not “fall” for the regional center that has the most aggressive marketing campaign and/or promises the largest financial gain. Instead, investors should focus on the goal noted above: Determining the most solid vehicle for obtaining lawful permanent resident status through the ability of a regional center’s project to create jobs. Investors should research how many projects a given regional center has financed and how many Immigrant Petition by Alien Entrepreneur (Form I-526) and Petition by

Five Tips for EB-5 Investors and Developers 15

Entrepreneur to Remove Conditions (Form I-829) were filed and approved recently. Inquiry should also be made regarding any denials of I-526 or I-829 petitions as well as the reasons for those denials, if the center is willing to provide such information. It should also be determined how and when past projects have returned the initial capital investment to the investor and at what interest rate, if any. While a new regional center does not necessarily indicate that the projects offered will be unsuccessful in creating sufficient jobs to support an application for conditional residence it is always easier to evaluate those that have been in the business for a while and have a track record of vetting successful job-creating projects.

3. “It Takes a Village” to create and run a regional center, but who is in that “village? Regional centers perform their own due diligence on potential investors. The same due diligence should be applied when a potential investor considers a regional center. This includes researching and being comfortable with the entire regional center team, especially the operations management members. Their past experience and their ability to vet projects not only for profitability but for job creation that lasts beyond the I-829 stage is key. Of particular importance is the methodology the regional center stated it would use in its Application for Regional Center Under the Immigrant Investor Pilot Program (Form I-924), and whether it is consistently applying such methodology11 to calculate key statistics such as direct, indirect, and/or induced jobs.

4. The early bird catches the worm. While there are several successful regional centers, there are not necessarily always “good” projects available. Keep in constant contact with regional centers so that when new investment opportunities are presented, your investor will be able to get on board early. Be aware that it is often best to have your clients be among the first of the investors, rather than the last, especially if the EB-5 project does not result in the creation of sufficient jobs to be credited to each of the investors.

5. Know your investor before you know the regional center. There is no point for investors to go through the painstaking process of choosing the “right” regional center project if the foreign investor will not eventually obtain permanent resident status. It is imperative to learn from the outset whether your client is ultimately eligible for the immigrant visa—whether your client can trace all of the investment funds from a lawful source and whether the investor, or any of his/her family members, have had any immigration violations in the past, or fall within any of the grounds of excludability that would hamper their admissibility to the United States. Of equal importance, always remember that the regional center is a “court of last resort”—if there is a better immigration vehicle available for your clients, make sure that they know about it.

Five Tips in Representing Non-Regional Center Individual EB-5 Investors Issues such as documenting the lawful source of funds and tracing the funds from the investor to the new commercial enterprise are common in individual and regional center EB-5 petitions. However, when it comes to individual EB-5s, there are many unique and complex issues that the attorney must deal with. These include determining if the


investment entity qualifies as a “new commercial enterprise,” if it is located in a “targeted employment area,” and how to document if the required “employment creation” has occurred or will occur.

1. What constitutes a new commercial enterprise? In contrast to regional center EB-5 investors, individual EB-5 applicants must demonstrate that their investment is in a new commercial enterprise. For those that make their EB-5 investment in a brand new business, this requirement is relatively straightforward and can be easily proven through the submission of corporate formation documents. An investment in a business established after November 29, 1990, will meet the “new commercial enterprise” requirement. However, those investors that invest in a company created before November 29, 1990, face a tougher challenge. They can meet this requirement in one of two ways. First, they can show that they have significantly restructured or reorganized an existing business. USCIS has not defined what this entails and has interpreted this requirement restrictively. As a result, this is an argument many EB-5 practitioners shy away from. The second option is to demonstrate that the investor has expanded an existing business. To do this, the investor must not only create 10 full-time U.S. jobs, but they must also expand either the net worth or the number of employees of the business by at least 40 percent. This is a tall order for some, but for others it may be feasible.

2. TEAs aren’t just for regional center EB-5s. Individual EB-5 investments are $500,000 if the investment is in a Targeted Employment Area (TEA). The regulations define a TEA as either a rural area or an area that has an unemployment rated of at least 150 percent of the national average.12 Otherwise, if the investment is not in a TEA, the required amount of investment is $1 million.13 It is important to remember that TEA designation is not decided at the time the individual makes the EB-5 investment. Rather, USCIS has stated that the availability of a reduced $500,000 investment is only decided at the time of I-526 adjudication. This means that if unemployment statistics change, the investor might find that they must invest the higher $1 million amount to satisfy the EB-5 requirements.

3. Can multiple investors pool their investments in a single business for EB-5 purposes? Yes. There is no limit to the number of investors that may qualify for the EB-5 from investment into a single business. In fact, this is often a viable option for smaller projects that cannot wait for the lengthy regional center designation application adjudication process to take place by the USCIS. The downside is that pooled individual EB-5s cannot take advantage of economic models that permit indirect employment to satisfy the 10-job per investor creation requirement.

4. Be aware of the challenges in documenting job creation. Within 90 days before the two-year anniversary on which the investor received the conditional green card, he or she must file an I-829 petition to remove conditions of

Five Tips for EB-5 Investors and Developers 17

permanent residency.14 To do so, the investor must prove that they have sustained their investment and created the necessary 10 direct jobs. To document the number of employees, investors should submit W-2s, Form I-9s, quarterly and annual tax returns, and payroll records. As long as the position will last for at least two years, the actual employees can vary from day to day or week to week. In addition to showing that they have created 10 jobs, the investor must demonstrate that they are held by U.S. citizens or lawful permanent residents. This is often a tall order, as USCIS has held that submission of I-9 forms alone does not satisfy this requirement. This places investors and businesses in a rather precarious position as they find themselves requesting documentation such as birth certificates, passport biographic pages, and other documents that in any other context would violate the anti-discrimination provisions of INA §274B.

5. What happens if the EB-5 investment runs off course after I-526 approval? Individual investor applicants must submit a business plan that complies with Matter of Ho.15 If the new commercial enterprise deviates from the business plan, such as a change in the scope of the project, a delay in completion, or the inability to raise the requisite amount of capital, USCIS may determine that a “material change” has occurred at the I-829 stage and deny the investor’s petition. Unfortunately, USCIS has not defined what constitutes a “material change.” Is it a slight digression from the business plan or a major change to the project? If there is reasonable cause to believe that the I-829 may not be approved, the investor must make some tough choices. To protect themselves from being placed into removal proceedings, the investor may choose to file a new EB-5 petition. This petition will require that the investor demonstrate anew that the investment meets all of the EB-5 requirements. If the new EB-5 petition and subsequent green card application are approved, the investor must begin a new two-year conditional residence period. In this scenario, aged-out dependents and divorced spouses will no longer be able to derive the benefit of permanent residency from the principal EB-5 applicant.

Five Tips When Representing a Regional Center Developer

1. It can cost over $100,000 and take a year or longer to get designated as an EB-5 regional center. The costs of filing a regional center application are high because of the need to hire: (1) an economist to do a comprehensive economic report for your first project; (2) a corporate and securities law firm to draft the relevant offering documents; and (3) an immigration lawyer to quarterback the process to make sure all elements comply with USCIS’s ever-evolving interpretations. If that is too much money or too long to wait, consider the non-regional center part of the EB-5 program. It requires a project that will create 10 direct jobs per EB-5 investor, but can be faster and can work for some projects.

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2. Not all projects work for EB-5 purposes. Jobs need to be created in a two to three year period for EB-5 purposes. If your project will not create jobs until four years from now, that may be too long for EB-5 purposes. Similarly, if you are creating jobs now, that may be too soon for EB-5 purposes. USCIS wants the EB-5 money to go into a project first, and then have jobs created.

3. The EB-5 program has many ambiguities. Be prepared for ever-changing interpretations by USCIS. USCIS’s recent obsession over “material change” is a particular concern. If USCIS believes a “material change” has occurred in your project, it may require all EB-5 investors to start over. Unfortunately, USCIS has not defined “material change,” so there are no guidelines.

4. Be aware of securities law requirements. A regional center investment is a type of securities offering. Therefore, you must either first register your offering with the Securities and Exchange Commission (SEC), or comply with one of the exemptions from registration, such as Regulation D and/or Regulation S, when you market the project. Otherwise, you may violate SEC rules and negate the entire offering.

5. Even if you get regional center designation, you may not succeed. Marketing EB-5 projects is very difficult, especially with 190 other regional centers competing against you. Moreover, many EB-5 investors these days seem to prefer a “loan” model over an equity investment, so that they know a specific date on which they are supposed to receive their money back. As a practical matter your project must be in a rural or high unemployment area to succeed; most EB-5 investors only want to invest $500,000, not $1 million, to get their green card. Understanding the marketing complexities of EB-5 is as important as understanding securities and immigration law if you want to succeed.

1 Immigration Act of 1990, Pub. L. No. 101-649 (Nov. 29, 1990). 2 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.), §203(b)(5) (2011). 3 22 I&N 158 (Comm’r 1998). 4 22 I&N 169 (Comm’r 1998). 5 22 I&N 201 (Comm’r 1998). 6 22 I&N 206 (Comm’r 1998). 7 See, e.g., USCIS Presentation for EB-5 Quarterly Stakeholder Engagement Meeting (Sept. 15, 2011), published on AILA InfoNet at Doc. No. 11072539 (posted Sept. 22, 2011); USCIS Agenda and Presentation for EB-5 Quarterly Stakeholder Engagement (Jun. 30, 2011), published on AILA InfoNet at Doc. No. 11050462 (posted June 30, 2011); USCIS Proposed EB-5 Operational Changes for Comment (May 19, 2011), published on AILA InfoNet at Doc. No. 11051963 (posted May 19, 2011); USCIS EB-5 Training Materials: In-Depth Lawful Source of Capital Issues (Apr. 14, 2011), published on AILA InfoNet at Doc. No. 11041432 (posted Apr. 14, 2011); USCIS EB-5 Immigrant Investor Program Stakeholder Meeting (Dec. 16, 2010), published on AILA InfoNet at Doc. No. 11010732 (posted Jan. 7, 2011); USCIS Memorandum, Donald Neufeld, “Adjudication of EB-5 Regional Center Proposals, Form I-526 and Form

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I-829 Petitions” (Dec. 11, 2009), published on AILA InfoNet at Doc. No. 09121561 (posted Dec 15, 2009); USCIS Memorandum, Donald Neufeld, “EB-5 Alien Entrepreneurs - Job Creation and Full-Time Positions” (June 17, 2011), published on AILA InfoNet at Doc. No. 09061964 (posted June 19, 2011). 8 USCIS Memorandum, Alejandro Mayorkas, “A Work in Progress: Towards A New Draft Policy Memorandum Guiding EB-5 Adjudications” (Nov. 9, 2011), published on AILA InfoNet at Doc. No. 11110938 (posted Nov. 14, 2011). 9 USCIS Agenda and Presentation for EB-5 Quarterly Stakeholder Engagement (Jun. 30, 2011), published on AILA InfoNet at Doc. No. 11050462 (posted June 30, 2011) at 6. 10www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d765ee0f4c014210VgnVCM100000082ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD (retrieved on Nov. 17, 2011). 11 The two types of methodology utilized are Regional Input-Output Modeling System (RIMS II) or IMpact analysis for PLANning (IMPLAN). RIMS II attempts to estimate how much a one-time or sustained increase in economic activity in a particular region will be supplied by industries located in the region. IMPLAN utilizes the classic input-output (I-O) analysis in combination with regional specific Social Accounting Matrices and Multiplier Models (SAMs). The IMPLAN database contains county, state, zip code, and federal economic statistics that are specialized by region, not estimated from national averages, and can be used to measure the effect on a regional or local economy of a given change or event in the economy’s activity. 12 8 CFR §204.6(e) (2011). 13 8 CFR §204.6(f)(1) (2011). 14 8 CFR §216.6(a) (2011). 15 22 I&N §201 (Comm’r 1998).


Supervised Recruitment: An Expanding Procedure for PERM Applications

by Deborah J. Notkin

Deborah J. Notkin is a partner in the firm of Barst Mukamal & Kleiner. She is a past president of the American Immigration Lawyers Association (AILA), serves on its Board of Governors, and is chair of its Media Advocacy Committee. She is a frequent expert lecturer at the Practicing Law Institute, N.Y. State Bar Association, and AILA. Human Resource magazine named Ms. Notkin one of the 15 most powerful business immigration attorneys in the U.S. In 2010, she received the American Immigration Lawyers Media Award. An advocate for immigration reform, Ms. Notkin has appeared on many television and radio programs. Supervised recruitment is an intensive procedure mandated for some PERM applications at the discretion of the U.S. Department of Labor (DOL).1 In some ways, it resembles the old “traditional job order recruitment” under the labor certification program that pre-dated PERM.2 The word “supervised” is used because recruitment efforts are selected and approved by DOL and applicants are directed to an address controlled by the Office of Foreign Labor Certifications. Supervised recruitment is mandated for several reasons, including: (1) a perception by DOL of a pattern demonstrating an employer’s lack of compliance with audit documentation3; (2) lack of good faith recruitment of U.S. workers4; or (3) a perception of U.S. worker availability for specific occupations in a geographic area.5 It is important to distinguish between “directed” supervised recruitment and “converted” supervised recruitment. The first two reasons stated above may result in what is known as “directed” supervised recruitment. While “converted” supervised recruitment could arguably be used for any of the above mentioned reasons, its use has recently increased on the basis of potential U.S. worker availability for the PERM job offer. The imposition of directed supervised recruitment usually requires all of an employer’s PERM applications to be subject to supervised recruitment for a period of up to two years.6 This type of supervised recruitment is discussed in the audit regulations rather than the enforcement regulations, which pertain to investigations and debarment. Nevertheless, it has sometimes been used as a disciplinary measure. While statistical data is unavailable, anecdotal information indicates that the recent expansion of supervised recruitment seems to be based primarily on the high current unemployment rate in the United States.

Initiating a Directed Supervised Recruitment Application When DOL designates an employer for directed supervised recruitment, the employer is notified that some or all of its PERM applications must be processed under supervised recruitment rather than the normal recruitment process.7 The employer is instructed to

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leave the recruitment portion of the PERM Form ETA 9089 blank as the recruitment efforts will be selected and the wording vetted through the Office of Foreign Labor Certifications. The Form ETA 9089 must be mailed to a special address for supervised recruitment applications rather than electronically filed and contain original signatures of the employer, foreign national, and attorney or agent. Under the current directed supervised recruitment procedures, the employer is usually expected to have received a prevailing wage determination before the application is filed, but not to initiate pre-filing recruitment, as this will be handled after the filing of the PERM application.

Converted Supervised Recruitment A PERM application filed under normal procedures, including pre-filing recruitment, may be converted to supervised recruitment before or after an audit is received.8 The recent increase of these applications likely relates to labor market conditions in the area of intended employment and frequently follows an audit. In 2009, DOL indicated supervised recruitment would be conducted for some financial analysts in New York City.9 Other types of occupations have also been selected, but DOL has made no further pronouncements on what types of occupations are being targeted for supervised recruitment. In converted supervised recruitment, the employer typically receives a “Notification of Supervised Recruitment” explaining the next steps in the process. See Addendum A. However, the specific reasons for the supervised recruitment selections are not stated. Upon receipt of a Notification of Supervised Recruitment, employers should be advised to carefully consider any impulsive temptation to withdraw the application. When an application is designated for supervised recruitment, additional applications for the same employer and foreign national will be designated as supervised recruitment cases.10 In addition, a pattern and practice of wholesale withdrawal of supervised recruitment may lead to directed supervised recruitment of all an employer’s cases, as well as other additional enforcement actions.11 There are circumstances when there is good reason to withdraw a case converted for supervised recruitment. One example is a situation where employment with the sponsoring employer has been permanently terminated. Another example is one in which the foreign national has received a grant of U.S. permanent residence through other means. While the best practice is to withdraw the PERM application when such events occur, there are situations in which the case is selected for supervised recruitment before an appropriate notice can be submitted. . Where withdrawal for valid reasons is necessary, providing an explanation of the specific reason for withdrawal, with accompanying documentation, is strongly advised.

Supervised Recruitment Procedure The procedures stated below and the addendums that follow this article are based on recent converted supervised recruitment directives. It is possible that some directed procedures have slightly varying notices.


1. The employer receives a Notification of Supervised Recruitment from DOL either before or after an audit has been issued. Recent trends indicate that supervised recruitment usually follows an audit. This is likely due to the increased focus put on the potential ability of U.S. workers. DOL has amended its original audit boilerplate to request résumés of all applicants along with the recruitment results statement. The original boilerplate audits did not include a request for résumés. The notice requires the employer to submit a draft advertisement within 30 days of the date of the notice.12 Extensions for up to 30 days for good cause may be requested.13 The notice may include an updated Prevailing Wage Determination.14 Some notices may ask for business necessity of certain requirements or whether a U.S. worker could be trained within a reasonable period o 15f time to perform the job.

2. After submission of a complete response, the employer will receive another notice

entitled “Recruitment Instructions.”16 The notice will indicate that the draft was approved or requires corrections, and it will designate the newspapers where the regulatory three consecutive days of advertisement (including a Sunday) must be placed.17 The notice may also mandate other recruitment vehicles, as well.18 A new posting of the filing of the PERM application also is customarily required.19 The recruitment vehicles are required to be placed within 15 days of the date of the Recruitment Instructions notice.20 Occasionally, DOL mandates recruitment vehicles for which the next publication date exceeds the required 15 days. In this situation, DOL should be contacted immediately. No later than 15 days after the date of the last placed advertisement, the employer must inform DOL of the dates of the placed advertisement.21

3. As the résumés are directed to a post office box under the control of DOL, any

résumés will be sent to the employer with a cover letter entitled “Notification of Résumés Received.” There may be several of these notices as DOL sends these résumés piecemeal as they come in. Because DOL requires that the employer include its name in the recruitment, it is possible that some résumés will be sent directly to the employer; this notice requires that those applicants must also be screened. At this point, the employer is expected to consider all applying U.S. workers but not send in results until further notification from DOL.22

4. Finally, DOL will send a notice to the employer entitled “Recruitment Report

Instructions,” indicating that the recruitment period has ended and requesting copies of the recruitment vehicles, a detailed recruitment report (including the names and addresses of U.S. applicants), and the résumés of those U.S. workers who applied directly to the employer rather than DOL.23 The employer has 30 days to send this response to DOL.24 Again, a 30-day extension can be requested for good cause.25

Practice Pointers—Considering the Possibility of Supervised Recruitment

1. Inform the employer of the possibility of supervised recruitment prior to starting the PERM application, and consider adding additional fees in the retainer agreement in the event an application is converted to supervised recruitment.

Supervised Recruitment

23

2. In the event of an audit, insure that the recruitment report is sufficiently detailed to document an absence of qualified U.S. workers.

3. Make the employer aware of the risks involved in not going forward with supervised recruitment.

4. As many of the recent supervised recruitment orders are apparently based on the perceived availability of U.S. workers, the employer should be encouraged to provide detailed explanations of the reasons that U.S worker applicants are determined to be unqualified.

Conclusion The imposition of supervised recruitment, either converted or directed, is not a death knell for a PERM application. Many attorneys, including this author, have received approvals after running the supervised recruitment gauntlet. Ironically, directed recruitment may have some advantages, as it takes the guesswork out of appropriate recruitment vehicles and DOL reviews your recruitment drafts for any unintentional omissions that can lead to denials. This advantage is offset, however, by the extensive recruitment vehicle ordered by DOL for some professional positions that create exorbitant costs well in excess of what are normal recruitment expenses for such positions. We have no control over what applications will be selected for supervised recruitment, but defensive strategies at the outset should be obvious. Clearly, pre-PERM recruitment efforts that produce qualified applicants (or more qualified applicants than PERM applications when there are multiple applications for the same job offer) should not go forward. Generic applications that don’t include all appropriate job requirements may produce applicants who are not qualified for the position, but will be considered qualified under the PERM regulations. Avoid omitting real-world job requirements that are legal under the PERM regulations in an attempt to avoid an audit. Remember that attorneys, as well as employer clients, are subject to DOL scrutiny for demonstrating a pattern of wholesale PERM withdrawals when supervised recruitment is ordered.

1 20 CFR §656.21. 2 See 20 CFR §§656.21(b), (f)–(g), (i)–(k) (2004). 3 20 CFR §656.20(b); see also, 20 CFR §646.24(f). 4 20 CFR §656.20(b); see also, 20 CFR §646.24(f). 5 “OFLC Frequently Asked Questions and Answers,” available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm (retrieved Oct. 4, 2011). 6 20 CFR §656.20(b). DOL can limit the specific occupations for which supervised recruitment is required. 7 Id. 8 See 20 CFR §656.24(f). 9 “Liaison Questions Submitted by AILA and Notes from February 2, 2009 Stakeholders Meeting,” published on AILA InfoNet at Doc No. 09021165 (posted Feb. 11, 2009), available at www.aila.org/content/default.aspx?docid=27971. 10 “OFLC Frequently Asked Questions and Answers,” available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm (retrieved Oct. 4, 2011). While not official policy, the duration of the supervised recruitment obligation for the employer/employee in the withdrawal scenario is believed to be two years. 11 Id. 12 20 CFR §656.21(b)(1).

http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm

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13 20 CFR §656.21(g); see also, “OFLC Frequently Asked Questions and Answers,” available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm (retrieved Oct. 4, 2011). 14 “OFLC Frequently Asked Questions and Answers,” available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm (retrieved Oct. 4, 2011). 15 See Addendum A, available through AILA InfoNet link provided to conference attendees and on file with author. 16 Id. 17 See 20 CFR §656.21(b). 18 See 20 CFR §656.21(d). 19 See Addendum B, available through AILA InfoNet link provided to conference attendees and on file with author. 20 Id. 21 Id. 22 See Addendum C, available through AILA InfoNet link provided to conference attendees and on file with author. 23 “OFLC Frequently Asked Questions and Answers,” available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm (retrieved Oct. 4, 2011); 20 CFR§ 656.21(e). 24 20 CFR § 656.21(f). 25 See Addendum D, available through AILA InfoNet link provided to conference attendees and on file with author.





Should an Employer Join E-Verify? The Pros & Cons in a Nutshell by Bonnie K. Gibson

Bonnie Gibson is the co-managing partner of the Phoenix office of Fragomen, Del Rey, Bernsen & Loewy, LLP. Her practice emphasis is in immigration, worksite immigration compliance, and corporate immigration compliance programs. Ms. Gibson is a member of the American Immigration Lawyers Association Liaison Committee for Worksite Enforcement and E-Verify, the American Council on International, the Society on Human Resource Management (SHRM), and the Phoenix Committee on Foreign Relations. She has received the highest available rating by Martindale-Hubbell for legal ability and professional ethics and conduct. She is listed in Who's Who Legal - the International Who's Who of Corporate Immigration Lawyers for 2010 and 2011. Ms. Gibson is a Phi Beta Kappa graduate of Indiana University and a summa cum laude graduate of the Indiana University Maurer School of Law.

E-Verify PROS CONS Reduces risk of hiring and training

undocumented workers; also reduces instances of SSA no

match notices

Cost considerations: requires re-tooling I-9 processes and training; also adds 2-

3 minutes to I-9 process for "employment authorized cases" and 30-

60 minutes for "tentative/final non-confirmation" cases

Pro-active approach to continuing government focus on employment

verification; acting early puts employer ahead of inevitable E-Verify requirements, with less

downstream disruption/investment

Compliance Tracking and Monitoring System provides DHS with robust data

mining capability

State law compliance/ no need to monitor for state and local E-Verify laws; no need to review state and

local supply contracts

Must continuously monitor new federal contracts and federal subcontracts for potential application of FAR E-Verify

clause Valuable in ICE audit proceedings,

both in establishing "rebuttable presumption of work authorization"

and in showing "good faith" operation

May require collective bargaining consideration regarding the effects of E-Verify implementation, including time off from work in connection with Tentative

Non-Confirmation Process Public relations benefit as a good

corporate citizen; provides credibility in lobbying on

immigration related matters

Requires continued employment, including training, during period of tentative non-confirmation process

Immunity from liability under "any laws" on account of action taken in

good faith reliance on E-Verify information where employer

otherwise uses system in good faith

Summary of Recent PERM-Related BALCA Cases by Sharryn E. Ross

Sharryn E. Ross is the senior partner of Ross Silverman LLP in Boston, practicing exclusively in the field of business immigration law. She was a member of the AILA Board of Governors from 1994 to 2006, and has chaired numerous national committees within AILA. She is currently the vice chair of the DOL Liaison Committee. Ms. Ross can be reached at [email protected]. I have reviewed the Board of Alien Labor Certification Appeals (BALCA or Board) cases for 2011, and summarized those I feel are most relevant to issues AILA practitioners face in current PERM processing. Full decisions for those summarized below can be found at the Department of Labor website at www.oalj.dol.gov/LIBINA.HTM or can be found by typing the case name into AILA InfoNet at www.aila.org. Recruitment Issues

Proof of Job Bank Posting Matter of Mandy Donuts Corp.—2009-PER-00481 (Jan. 7, 2011). Board found that the start and end dates of the job order entered on the application serve as documentation of placement of a state workforce agency (SWA) job order for 30 days. Matter of A Cut Above Ceramic Tile—2010-PER-00224 (Sept. 26, 2011). Case was originally decided on April 6, 2011, and came to an opposite position, i.e., required proof of publication of the SWA job order. In the case at hand, BALCA has granted en banc review, and AILA has been asked to participate as amicus in the en banc case presenting the question of whether the employer must show proof of publication of the SWA job order, or whether the application for the job order listing the start and end dates is sufficient. (Note that in Matter of Bettina Equities Co.—2010-PER-00151 (Mar. 4, 2011), the Board also required documentation to verify posting. However, the attorney in this case argued HealthAmerica instead of discussing the plain language in the regulations.)

Practice Pointer: For now, the safest way to operate is to print copies of the job order and the posting date information. If you have a pending case that is denied where you do not have the documentary proof, it would be worthwhile to appeal, if you have the time.

Website Posting Documentary Requirements Matter of EZChip, Inc.—2010-PER-00120 (Jan. 12, 2011). Board found that the regulations do not preclude an employer from providing documentation of the posting other than by submitting dated printouts, and that the certifying officer (CO) may find that documentation adequate. In the case at hand, employer



http://www.oalj.dol.gov/LIBINA.HTM

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Summary of Recent PERM-Related BALCA Cases 27

submitted an affidavit from the vice president of worldwide sales of the company, but the Board found that there was no indication that the vice president was the official within the employer’s organization responsible for posting of occupations on the website. The reasoning of the case can be applied to any website recruitment.

Practice Pointer: If you are using any website, the best documentation to include is either copies of each day of the posting, or a copy of the posting (from the posting period) and an affidavit from a person in the company or organization responsible for actually placing the posting on the website, which is attested to under the pains and penalties of perjury. This affidavit should be dated before filing and should be part of your PERM file.

Employee Referral Programs Matter of Sanmina-Sci Corporation—2010-PER-00697 (Jan. 19, 2011). The CO denied the application because the documentation of the employee referral program fell outside of the recruitment period. The Board found that an employer can document this step “by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.” The dates must only establish that the program was in existence at the time of the recruitment. It doesn’t matter if it was in existence for a greater period of time. Specifically, the Board found that in order to make an employee referral program meaningful, the employer must document:

1. That its employee referral program offers incentives; 2. That the program was in effect during the recruitment period; and 3. That the employer’s employees were on notice of the job opening at

issue. On the final point, the case at hand provided an internal web posting and Notice of Filing and the Board held that this proof was adequate. In a footnote, they imply that the Notice of Filing standing alone could provide adequate proof, despite earlier FAQs that suggest the opposite, but specifically state that they did not reach this question. (See also, Matter of AQR Capital Management—2010-PER-00323 (Jan. 26, 2011) and Matter of Deloitte Services LP—2010-PER-00348 (Mar. 2, 2011) for further discussion on the issue of Employee Referral programs.)

Practice Pointer: To be absolutely sure that an employee referral program will meet the guidelines, you might want to have your employer send a broadcast email or post on company intranet, a reminder of the employee referral program at the beginning of their PERM recruitment. The reminder should contain the full program with incentives. You should also only use the employee referral program if one of your forms of recruitment is posting the job opportunity on the employer website. While other methods might succeed, this would be the only “foolproof” way.


Use of Private Employment Firms Matter of Unica Corporation—2010-PER-00006 (Feb. 9, 2011). The Board reiterates examples the regulations give for documentation that can be used to show that recruitment has been conducted by a private firm for the occupation for which certification is sought—i.e., copies of contracts between the employer and the private firm and copies of advertisements placed by the firm for the occupation involved in the PERM application. Specifically, the Board states that documentation must show that the recruitment was for the specific position for which certification is sought, that the firm actually solicited for the position, and that any solicitation occurred during the time period indicated on the 9089. A contract alone is not sufficient. See also Matter of HSB Solomon Associates LLC—2011-PER-02599 (Oct. 25, 2011) for a very good extensive discussion on type of documentation as well as good examples from the attorney’s case for how to structure your documentation. Specifically, the Board stated in this case that an advertisement placed by a private employment firm should be assessed based on whether it contains enough information to adequately apprise U.S. workers about the job opportunity. The Board held, limited to the facts of this case, that the fact that the employer’s name was not included in the advertisement placed by the private for the position was not fatal to the application.

Practice Pointer: If you are going to use a private employment firm as one form of recruitment, a bare-bones signed contract is not enough. The contract should at least mention the specific job opportunity. Further documentation should also outline what the firm did and the specific dates of its search.

Rejection of Applicants Matter of Simmons Audio Video Etc., Inc.—2010-PER-00167 (Mar. 4, 2011). The Board held that the employer’s reasons (“Not qualified”) for rejection of applicants in this case were too general and therefore insufficient to allow the CO to determine whether the rejected workers were capable of acquiring the skills necessary to perform the job duties in a reasonable period of time. Matter of Quantifi, Inc.—2010-PER-00894 (May 12, 2011). Employer lumped together the reasons for rejection of two applicants. The Board held that employer failed to categorize the lawful job related reasons for rejection.

Practice Pointer: To be sure that all reasons for rejection are adequately documented, you might consider delineating the reasons by applicant (similar to what was required in the pre-PERM labor certification process). This assures that you will not leave out any applicant nor incorrectly generalize the reasons for rejection.

Acceptable journals Matter of HSBC Bank U.S.A., N.A.—2010-PER-00655 (Apr. 18, 2011). The Board held that The Wall Street Journal is not a journal acceptable to replace the


Sunday newspaper. Importantly, the employer had submitted an affidavit from a professor stating that the Wall Street Journal is a leading business journal, but that evidence could not be considered because it was not in the record and could not be considered on appeal. Matter of iFuturistics, Inc.—2010-PER-00631 (Apr. 21, 2011). Similarly, the Board held that the employer had not met its burden to show that Computer magazine is a qualifying professional journal and could not consider documentation submitted by the employer that likely would have met the burden because the employer requested a review before BALCA instead of a Motion to Reconsider from the CO.

Practice Pointer: Do not use a professional journal as a substitute for a Sunday newspaper ad unless you know that the journal is without a doubt a professional journal. If you have to use a journal that you have not used successfully before, be sure to have documentation ready should the case be denied, and ask for reconsideration by the CO so that you can submit that documentation.

Timing of Recruitment Matter of Horizon Computer Services, Inc.—2010-PER-00746. The Board held that its reading of the regulation and the regulatory history implies that recruitment does not all have to be within the prevailing wage determination (PWD) validity period as long as some recruitment steps are begun during the PWD validity period. (This issue is pending en banc review by BALCA. AILA has filed an amicus brief urging BALCA to reverse the CO’s decision in the underlying case and clarify that an employer complies with 20 CFR §656.40(c) when it conducts one or more of the required recruitment steps during the prevailing wage validity period. See Matter of Karl Storz Endoscopy America—2011-PER-00040, published on AILA InfoNet at Doc. No. 11101131 (posted Oct. 11, 2011), available at www.aila.org/content/default.aspx?docid=37301.

Job Requirements in Ad Not on Form Matter of East Tennessee State University—2010-PER-00038 (Apr. 18, 2011). The Board denied the case based on the fact that the employer’s advertisements contained requirements not listed on the 9089. Specifically, the Board found that the phrase “native or near native fluency” was not equivalent to responding “yes” to question H.13 on the 9089 indicating that a foreign language was required. The Board also found that the advertisement included the employer’s preferences but the 9089 did not. The case presents a long discussion on the issue of preferences as requirements.

http://www.aila.org/content/default.aspx?docid=37301


Content of Advertisement Matter of Emma Willard School—2010-PER-01101 (Sept. 28, 2011). Case was denied based on the employer’s failure to indicate the availability of employer-subsidized housing in its advertisements and Notice of Filing. Board held that opting not to list any wage or benefit information in the advertisements did not mean that the advertisements contained terms or conditions less favorable than those offered the alien. However, the Board specifically said that this decision cannot be construed as supporting the proposition that an employer never has to offer or disclose a housing benefit to a U.S. worker.

Practice Pointer: If a job requires that an employee live in the employer-subsidized housing, that would have to be listed in the advertisement because it is a requirement as well as a benefit. Form Over Substance

Audit Notice Never Received Matter of 22E. 41st Street Corp./O’Casey's—2009-PER-00402 (Jan. 7, 2011). Interesting discussion of what constitutes an employer's burden of proof in claiming that an audit notice was never received.

Documentary omissions Matter of Forest View Nursing Home and Rehab Center—2010-PER-00106 (Feb. 11, 2011). One of a number of cases where the Board decries form over substance. Case was denied because Notice of Filing was not submitted. Employer's cover letter listed the Notice of Filing as part of the submitted documentation, but it was not part of the appeal File. Following the reasoning in Luigi's Restaurant - 2009-PER-357 (08/31/09), the Board held that the Notice of Filing was clearly intended to be included, and could have been if not for a clerical loss upon sending or receipt, and therefore, in the interest of fundamental fairness, the denial was not warranted. Again, this decision is held to facts of the case and specifically states that it should not be construed as support for requiring the CO to reconsider a case just because an employer forgot to submit required documentation. See also Matter of Washington Hospital Center—2010-PER-00720 (May 13, 2011), wherein the Board also vacated a denial based on employer's failure to provide the addendum submitted to the SWA detailing the job duties. Board again limited case to "these precise circumstances." Interestingly, although in Forest View the Board said CO was not required to reconsider a case because an employer forgot to submit documentation, the Board here specifically found that the CO abused his discretion in refusing to consider whether the absence of the addendum was a mere oversight. Notably, the Board commented on the employer’s quick response to the denial.


And further see Matter of Core Solutions, Inc.—2010-PER-01013 (Aug. 22, 2011). Another denial in a missing documentation case vacated by the Board. Here again, the Board again commented that the employer responded within weeks.

Incomplete applications Matter of Shastriji Pennsylvania Donuts Corp.—2010-PER-00437 (Mar. 29, 2011). Preparer’s title was omitted from the application and Section F-4 was missing skill level, but the Board held that neither was material because the preparer’s complete information is provided elsewhere and the balance of section F-4 was completed. Matter of Nathan Littauer Hospital & Nursing Home—2010-PER-01066 (Aug. 16, 2011). Employer failed to complete J-23 indicating whether foreign national was employed, but in sections K-6 and L-7, employer indicated that foreign national had been working for the employer from May 30, 2005, to present. Board held that under the circumstances of this particular case, CO’s denial was arbitrary and capricious.

Practice Pointer: BALCA's willingness to put substance over form in the above and a number of other cases suggests that it is worthwhile to appeal a case when you have the time, keeping in mind some of the constants in these cases which include quickly filing a Motion to Reconsider and submitting documents, where relevant, or quickly asking for review, and having a clear legal argument. Appellate Issues

Matter of RMS Computer—2010-PER-00809 (June 16, 2011). Case points out the problematic issues of asking for BALCA review without first asking for a Motion to Reconsider when you need to put in further evidence. In this case, however, the Board held that the CO abused his discretion in treating a request for reconsideration as a request for review.

Practice Pointer: It is important to carefully assess what you will be arguing when you appeal your case. If your argument requires submission of documentation, you will need to file a Motion to Reconsider, and, if that is denied, you can then appeal the denial to BALCA, thereby including that documentation in the record. BALCA is limited to an analysis based on evidence upon which the CO’s denial is made. (See discussion of iFuturistics case above, where BALCA basically admitted that evidence would likely have overcome denial if they could consider it.) Requirements

Employer’s Preference Matter of CCG Metamedia, Inc.—2010-PER-00236 (Mar. 2, 2011). The Board reaffirms the pre-PERM regulation that an employer’s preference is deemed to be a job requirement. Thus, in the instant case, where the employer put two years


experience on the 9089 and two to four years experience in the advertisements, the Board held that the requirements in the advertisements exceeded those on the form and may have discouraged minimally qualified U.S. applicants from applying. Matter of East Tennessee State University—2010-PER-00038 (04/18/11) (see above). Case includes a long discussion on the issue of employer’s preference, particularly in the university context.

Practice Pointer: Even if employer’s real world requirements are—e.g., two to four years experience—the fact that PERM form requests minimum requirements should be explained to the employer so that there is no conflict.

Alternate vs. Primary Requirements Matter of Donna Ricco-FYC Apparrel (sic)—2010-PER-359 (Mar. 23, 2011). The Board finds that primary requirements of a Bachelor’s Degree plus five years experience are not substantially equal to alternate requirements of 17 years of experience.

Feasibility to Train

Matter of Rooted & Grounded Nursery, L.L.C.—2010-PER-00253 (Mar. 11, 2011). Employer admits that the alien is the only employee with requisite experience to train another person for his position and Board states that nothing precludes the alien worker from doing so. The Board says that the regulations state that an employer must demonstrate that it is no longer feasible to train a worker to qualify for the position, not that it is no longer feasible for the employer to train a worker to qualify.

Practice Pointer: The paucity of PERM cases on this issue may be due to the fact that even pre-PERM it was very difficult to prove the infeasibility of training a new employee. If you wish to file a case on this basis, I suggest you carefully read the pre-PERM cases, and have documentation available to prove all your reasons. College/University Issues

Most qualified standard Matter of East Tennessee State University—2010-PER-00038 (Apr. 18, 2011). Case reaffirms that in college or university teaching positions, the university can use the best qualified standard in evaluating applicants, even if it is not a special handling case.

Use of print ad not required Matter of The University of Texas at Brownsville—2010-PER-00887 (Jul. 20, 2011). Board holds that the journal ad needed for special handling cases can be in electronic form.


Practice Pointer: DOL has issued an FAQ on the issue of electronic journal ads which goes beyond the University of Texas case and requires that an electronic journal ad must be posted for at least 30 days. Prevailing Wage

Wage less than Prevailing Wage by small amount Matter of Bailey International of Atlanta, Inc.—2010-PER-00468 (Apr. 19, 2011). The Board would not follow its holding in Superior Landscape and forgive a $333 difference in the prevailing wage and the wage listed on the Notice of Filing.

When there are two different PWDs Matter of Take Solutions, Inc.—2010-PER-00907 (Apr. 28, 2011). Employer submitted two PWDs, one for primary requirements and one for alternate requirements. The Board held specifically that if an employer receives more than one PWD based on variations of its minimum job requirements, it must abide by the higher wage.

Incorrect validity period Matter of Junee Commercial—2010-PER-00807 (Jun. 16, 2011). The Board reiterates that it is the responsibility of the employer to get the validity period of the PWD corrected. Although this case was decided while the prevailing wages were still issued by the SWA, it is fair to assume that the holding would be the same under the current system.

Matching 9089 Matter of Oracle USA, Inc.—2010-PER-00752 (Jun. 28, 2011). Employer inadvertently submitted the wrong PWD in response to an audit and the case was denied. Unlike some of the inadvertent omission cases discussed above, the Board denied this case because it is based on not carefully reviewing the form as compared to the PWD as opposed to an inadvertent omission of a document.

34

Copyright © 2011. American Immigration Lawyers Association.

Navigating Through a Marriage on the Rocks by Maurice H. Goldman, Timothy Fallon, and Elizabeth Brettschneider

Maurice H. Goldman is an attorney at Goldman & Goldman, P.C in Tucson. He holds a J.D./ M.B.A. from Hofstra University and is a frequent speaker on immigration law. Mr. Goldman has served on multiple national AILA committees. He is a current board member of the AILA Board of Governors, ASISTA, and Immigrants List, and a trustee to the American Immigration Council (AIC). Mr. Goldman can be reached at [email protected]. Timothy Fallon works in Yonkers, NY at My Sisters’ Place, Inc. He holds a J.D. from Loyola University New Orleans College of Law. Mr. Fallon is an active member of AILA. He was a speaker at the 2011 AILA Annual Conference in San Diego, and serves as co-chair of the AILA New York Chapter New Members Division. Mr. Fallon is a member of the 2012 AILA National Annual Conference Planning Committee, the 2011 and 2010 New York Chapter Conference Planning Committee, and the New York Chapter District Director and Pro-Bono Committees. He can be reached at [email protected]. Elizabeth Brettschneider is an attorney at Avirom & Associates, LLP in New York City specializing in business immigration and complex family immigration law cases. Ms. Brettschneider graduated with a B.A. from Bryn Mawr College and earned her J.D. from the University of Connecticut School of Law. Ms. Brettschneider is an active member of the AILA New York chapter, and currently serves as secretary of its executive board. She also served as chair of the USCIS District Director Liaison Committee from 2008–10, and as co-chair of the New Members Division Committee. Ms. Brettschneider may be reached at [email protected].

“Love on the rocks Ain’t no surprise Pour me a drink

And I’ll tell you some lies Got nothin’ to lose

So you just sing the blues all the time” —Neil Diamond, Love on the Rocks

Neil Diamond was probably not thinking about I-130 petitions when he wrote these lyrics, but the lyrics sure seem to resonate with the immigration practitioner. A marriage can bring the best out of clients and it can bring out the worst. When a breakdown occurs between a married couple and the clients are getting separate or divorced, lawyers are often left to deal with a complicated legal morass. That is, if the lawyer can even remain on the case. This article will address some of the common strategies that a lawyer should employ in dealing with these situations.

Ethical Questions: Who Are You Representing? A marriage-based case often comes without a conflict of interest. In these cases, the attorney typically represents the interests of both the petitioner and beneficiary. Both parties come to you with the same objective in mind, namely the approval of lawful permanent resident (LPR) status of the beneficiary. However, conflicts can arise at any given moment, so an attorney needs to be fully prepared for the worst case scenario. American Bar Association (ABA) Model Rule 1.7(a) states that a lawyer “shall not represent a client if the representation involves a concurrent conflict of interest.” The rule




Navigating Through A Marriage on the Rocks 35

provides that a concurrent conflict of interest exists if the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

Some of the more common scenarios that should set off warning signals in the ethical mind of the lawyer include:

1. When one party starts making accusations of abuse against the other party; 2. When a beneficiary is attempting to get the financial support enforced

pursuant to the duly-signed I-864; 3. When a party has separated from their spouse and is no longer communicating

with him or her; and 4. When the parties have filed for divorce or have divorced.

In these scenarios, the attorney should withdraw from representing both parties, as one client’s interests have become adverse to the other. The best option is to refer each party to separate counsel. If the attorney continues with representation of one or both parties, that attorney is in direct violation of the ethical rules. It should be noted that there is an exception to the general rule that the attorney should withdraw. This rule can be found in ABA Model Rule 1.7, and says that a lawyer can continue with representing adverse clients concurrently if:

1. The lawyer reasonably believes that he or she can provide competent, diligent representation to each client;

2. Such representation is not illegal; 3. The clients are not opposing parties in a lawsuit; and 4. They give informed, written consent.

In the case where the a couple hires you and the beneficiary appears to have a claim for relief under the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA), Pub. L. No. 109-162, 119 Stat. 2960 (2006), while the abuser is the petitioner, the appropriate course of action is to withdraw from representation and refer the victim to a colleague for assistance in the preparation and filing of the I-360 petition.

I-751—Relevant Waivers of the Joint Filing Requirement When a client is facing the looming deadline to remove the conditions of his or her lawful permanent residency status, and the marriage on which the initial I-130 petition and conditional residence were based is on the rocks, deciding how and when to file the Form I-751 Petition to Remove the Conditions of Residence requires care and strategic planning. The following provides a summary of the I-751 process and available waivers.

Differences Between Jointly-Filed Petitions and Waivers There are some key differences between I-751 Petitions filed jointly and those filed under one of the waiver provisions. If a conditional permanent resident (CPR) is filing an I-751 Petition jointly, with the petitioning spouse, and files after the expiration date of the LPR


card, he or she will need to include an explanation of the late-filing with the I-751 Petition.1 However, if filing under one of the waiver grounds, the CPR does not need to provide such an explanation. A waiver can be filed prior to or after the expiration of the LPR card up until the date an immigration judge issues a final order of removal.1 While the burden of proof is on U.S. Citizenship and Immigration Services (USCIS) to prove fraud in jointly-filed I-751 petitions, the burden shifts to the CPR in a case filed under one of the waiver provisions.2 Waiver adjudications are discretionary, while a jointly-filed petition must be approved if the elements of eligibility are met.3 Your client is not limited to one waiver ground.4 He or she can apply for multiple waivers on the same form if he or she is independently eligible for each.5 The CPR could apply for a second waiver on a separate application (paying the fees again).6

Types of Waivers

Good Faith Marriage—but Terminated—Waiver The CPR must show that the marriage was entered into in good faith despite the fact that it has been terminated through divorce or annulment.7 USCIS will certainly look more critically at the good faith of the marriage where the marriage has been terminated since the grant of conditional residence. In an attempt to avoid a Request for Evidence (RFE), submit as many bona fides of the marriage in the initial submission. The marriage must be annulled or a divorce decree issued before this waiver can be granted. If the case is filed as a waiver, but is filed before the legal termination of the marriage, USCIS will issue an 87-day RFE for the final divorce decree. If a decree is provided, the case will proceed as a waiver case and be adjudicated accordingly. If the divorce is not finalized and a final divorce decree is not submitted by the deadline, USCIS will issue a denial of the I-751 and a Notice of Termination of Conditional Resident Status. A Notice to Appear (NTA) may than be issued.

Battery or Extreme Cruelty Waiver The CPR must show that he or she was the victim of battery or extreme cruelty by his or her spouse some time during the course of their marriage.8 The CPR must also demonstrate that the marriage was in good faith, but there does not need to be a final divorce decree. Petitions should include substantial documentation and exhibits of both the bona fide nature of the marriage, as well as the battery or abuse suffered by the CPR.

Termination of Status and Removal Would Result in Extreme Hardship A CPR applying under this waiver provision does not have to demonstrate that the marriage is terminated and there is no requirement to show the marriage was entered into in good faith. Hardship for this type of waiver can be to the CPR herself but you can also use broader arguments about hardship to the family and other individuals as well.9 If applicable to the hardship, it is recommended to include information on country conditions in the CPR’s home country. The CPR must show that hardship is significantly greater than the hardship encountered by others who are removed from the United States. The regulation states that a CPR can only use hardship that arose during the time period where the foreign national was a conditional permanent resident.10


Deciding Which Way to File the Case When a Marriage Is on the Rocks There is no waiver of the joint filing requirement based solely on the fact that a CPR entered into the marriage in good faith but he or she is legally separated from the petitioning spouse or divorce proceedings have been initiated.11 A CPR cannot file a joint petition without the signature of the petitioning spouse. If he or she does, USCIS will seek to get the signature through an RFE. If the spouse still refuses to sign, than the petition will be denied for failure to submit proper signatures.12 If both spouses sign the I-751 as a joint petition but indicate divorce proceedings are pending, an RFE will be issued requesting the final divorce decree and a giving the CPR the opportunity to convert the case to a waiver. If the couple is still married (and sufficient bona fides are provided), the case can proceed as a joint filing.13 If the divorce is final, then the application can be converted to a waiver petition, as explained below.

If the I-751 is filed as a waiver but is filed before the legal termination of the marriage, USCIS will issue an RFE for the final divorce decree, which must be provided in order for the case to be adjudicated under this waiver. The lawyer should also consider any ethical implications by representing both parties.

Converting the Case from One Waiver Category to Another Your client has filed the I-751 Petition jointly with her spouse. However, while the case is pending with USCIS, problems with the marriage develop, and the couple is considering separation or divorce. What are her choices? If the spouses both sign the application and attend the I-751 interview, and the marriage is still valid at the time of adjudication, USCIS can and should adjudicate the petition. If the U.S. citizen (USC) spouse refuses to attend the interview, then USCIS cannot adjudicate the case as a jointly-filed petition. The CPR will have to request that the petition be converted to one of the waiver grounds. If the “good faith marriage but termination” waiver is chosen, USCIS will give the CPR time after the interview (usually 87 days) to allow for the divorce to be finalized and the divorce decree submitted to the officer adjudicating the petition. The petition could also be converted into one of the other waiver grounds, if available.

Separation of Spouses in U & T Cases Both U and T nonimmigrant status provide paths to immediate employment authorization and eventual adjustment of status for victims of certain crimes and human trafficking (and their qualifying family members) who often have no other option in the U.S. immigration system. But what happens when those family members, in particular spouses, cease being family members?

U Nonimmigrant Status (U Visa)

Qualifying Family Members As a part of the I-918 Petition process for U Nonimmigrant Status, the principal petitioner (U-1) may file Form I-918, Supplement A, Petition for Qualifying Family


Member of U-1 Recipient for qualifying family members.14 For a U-1 who is age 21 or older, the spouse and children (under age 21) are qualifying family members.15 For a U-1 who is age 20 or younger, qualifying family members include spouse, children, parents, and unmarried siblings (under 18).16

Spouse (U-2) In order to qualify as a spouse for purposes of U nonimmigrant status, the spouse of a U-1 who is in the United States must be married to the U-1 during the following periods:

1. At the time the I-918 Petition is filed; and 2. When the I-918 Supplement A is adjudicated.17

If the spouse is outside the United States during the pendency of the I-918 and I-918 Supplement A, he or she must also be married to the U-1 at the time the spouse enters the United States with a U-2 visa.18 A divorce before the I-918 Supplement A is adjudicated, or prior to U-2 admission to the United States, would negate the spouse’s ability to hold U nonimmigrant status.19

Divorce After I-918 Supplement A approval U-2 Nonimmigrant Status can be revoked by USCIS if the U-2 spouse and U-1 divorce.20 If U-2 Status is revoked due to divorce, the spouse would be unable to later adjust status.21 Even if U-2 Status is not revoked immediately upon divorce, once the spouse applies for adjustment of status, USCIS would discover the termination of the qualifying family relationship and terminate U-2 Status.

T Nonimmigrant Status (T Visa)

Qualifying Family Members As a part of the I-914 Application for T Nonimmigrant Status, the principal applicant (T-1) may file Form I-914, Application for Immediate Family Member of T-1 Recipient for certain family members.22 For a T-1 who is age 21 or older, the spouse and children (under age 21) are qualifying family members.23 If the T-1 is age 20 or younger, qualifying family members include spouse, children, parents and unmarried siblings (younger than 18).24

Spouse (T-2) In order to qualify as a spouse for purposes of T nonimmigrant status, the spouse of a T-1 who is in the United States must be married to the T-1 during the following periods:

1. At the time the I-914 Application is filed; and 2. When the I-914 Supplement A is adjudicated.25

As with U nonimmigrant status, if the T-2 spouse is outside the United States during the pendency of the I-914 and I-914 Supplement A, he or she must also be married to the principal (here, T-1) at the time of admission to the United States with the T-2 visa.26


Divorce Following I-914 Supplement A Approval USCIS may revoke T-2 Nonimmigrant Status upon a final divorce.27 Revocation of T-2 status would make the spouse ineligible to adjust status.28 As above with U-2 status, even if T-2 status is not revoked by USCIS upon divorce, application for adjustment of status would be futile, as it would lead to discovery of the termination of qualifying family relationship.

Dissolution of Asylee Marriages Spouses who receive asylum through the principal asylee also face a dilemma if they divorce their husband or wife. The rules for what happens upon divorce are as follows.

Asylum An asylee’s spouse may receive asylum as a part of the I-589 application.29 In order to qualify as the asylee’s spouse, he or she must have been the spouse at the time the asylum application was approved.30 For purposes of spouses outside of the United States, the asylee and his or her spouse must remain married at the time of filing an I-730 Application for following-to-join and when the spouse is admitted to the United States.31

Divorce Following Asylum Grant If the asylee spouse and asylee divorce before the spouse files for adjustment, he or she may not adjust status through the principal.32 Unless formally terminated by USCIS, the derivative asylee does not lose asylum status due to divorce.33 Instead, the spouse should file his or her own I-589 Application, with the goal of having it approved nunc pro tunc backdated to the date of the receipt of derivative asylum status.34 If the I-589 is thus approved, the former asylee spouse may file adjustment of status if one year has passed since original receipt of derivative asylum status.35

However, if the secondary I-589 is denied, the former asylee spouse will be referred to Executive Office for Immigration Review removal proceedings.36

Eligibility to Naturalize in Three Years If your client has become an LPR after an approval of an I-360 VAWA case, she is eligible to apply for naturalization after three years rather than waiting for five. Even if your client obtained her conditional lawful permanent residency through an I-130 and subsequently had an approved I-751 Petition to Remove the Conditions of Residence under the waiver for battery/extreme cruelty, she would also be eligible for early naturalization. Section 316(a) of the Immigration and Nationality Act (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.), sets out the general eligibility requirements for naturalization. Under that section, a person becomes eligible for naturalization only after they have been an LPR continuously for a period of five years. However, section 319(a) of the INA provides that if the LPR is married to a USC, the LPR is eligible for naturalization after three years if the couple lived in marital union together for the three years immediately preceding the date of filing the naturalization


application.37 The Victims of Trafficking and Violence Protection Act of 200038amended INA §319(a) by expanding the category of people eligible after three years to include:

1. Those who have obtained LPR status through an approved I-360, Petition under INA §204(a)(1)(A)(iii) or (iv) or under §204(a)(I)(B)(ii) or (iii), if the abusive spouse or parent naturalizes after the Form I-360 has been approved; and

2. Those who obtained LPR status through an approved I-751 under §216(C)(4)(C)—the extreme cruelty waiver.

The provision also protects those who have become LPRs through cancellation of removal under INA §§204A(b)(2)(A)(i)(I) or (III) (ie., the battered spouse, intended spouse, or child of a USC).39 Although the mechanics of cancellation of removal are slightly beyond the scope of this article, if a new client comes to you who already has lawful permanent residency and wants your help with naturalization, it is important to look at the category that the client obtained LPR status to determine eligibility for the three-year naturalization process.

If your client fits into one of the categories above and the application was denied citing lack of eligibility to benefit under INA §319(a), you may seek a motion to reconsider the denial.40

1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.), §216(d)(2)(B). See also USCIS Memorandum, D. Neufeld, “Adjudication of Form I-751 Petition to Remove Conditions on Residence Where the CPR Has a Final Oder of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (Neufeld Memo) (Oct. 9, 2009), published on AILA INFONET at Doc. No. 09110667 (posted Nov. 6. 2009). This memo provides a list of examples of what constitutes good cause and extenuating circumstances for a late filing.

1 Id. See also Form I-751 Instructions. 2 8 CFR §216.5(a)(1), (e)(1). 3 USCIS Memorandum, D. Neufeld, “I-751 Filed Prior to Termination of Marriage” (April Neufeld Memo) (Apr. 3, 2009), published on AILA InfoNet at Doc. No. 09072166 (posted July 21, 2009). 4 USCIS Memorandum, D. Neufeld, “Adjudication of Form I-751 Petition to Remove Conditions on Residence Where the CPR Has a Final Oder of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (Neufeld Memo) (Oct. 9, 2009), published on AILA INFONET at Doc. No. 09110667 (posted Nov. 6. 2009). 5 Adjudicator’s Field Manual (AFM), ch. 25.1(c)(2), note. The AFM notes that other than the battered spouse/child waiver, all reasons MUST be applied for at once. But please note, the I-751 form still says “Check One” in the section that asks you to pick a waiver category and this attorney has encountered adjudicators that insist that a separate application must be submitted for each waiver category. 6 For a good discussion of the way USCIS will look at multiple I-751 filings, see USCIS Memorandum, D. Neufeld, “Adjudication of Form I-751 Petition to Remove Conditions on Residence Where the CPR Has a Final Oder of Removal, Is in Removal Proceedings, or Has Filed an Unexcused Untimely Petition or Multiple Petitions” (Neufeld Memo) (Oct. 9, 2009), published on AILA InfoNet at Doc. No. 09110667 (posted Nov. 6. 2009). 7 8 CFR §216.5(a)(1). 8 8 CFR §216.5(e)(3). 9 INA §216(c)(4)(A). 10 8 CFR §216.5(e)(1). See also I-751 Form Instructions.


11 USCIS Memorandum, D. Neufeld, “I-751 Filed Prior to Termination of Marriage” (April Neufeld Memo) (Apr. 3, 2009), published on AILA InfoNet at Doc. No. 09072166 (posted July 21, 2009). 12 Id., n.3. 13 Please note: The petitioning spouse would have to attend the interview if called for the adjudication of the joint petition to continue. 14 INA §101(a)(15)(U)(ii), 8 CFR §214.14(a)(10), (f) 15 Id. 16 Id. 17 8 CFR §214.14(f)(4). 18 Id. This includes at time of nonimmigrant visa interview abroad and admission at U.S. port of entry. 19 8 CFR §214.14(f)(4); see also 8 CFR §214.14(h)(2)(D). 20 8 CFR §214.14(h)(2)(D). 21 8 CFR §245.24(c); see also INA §245(m). 22 INA §101(a)(15)(T)(ii); 8 CFR §214.11(o). 23 Id. 24 Id. 25 8 CFR §214.11(o)(4). 26 Id. 27 8 CFR. §214.11(s)(1)(iii). 28 8 CFR §245.23(b)(1). 29 INA §208(b)(3); 8 CFR §§208.21(a), (d), 1208.21(a), (d). 30 8 CFR §§208.21(b), 1208.21(b); see also Affirmative Asylum Procedures Manual, Refugee, Asylum, and International Operations Directorate Asylum Division, at 79 (Nov. 2007, revised Jul. 2010). 31 Id. 32 8 CFR. §209.2(a)(1)(iii); see also Affirmative Asylum Procedures Manual, Refugee, Asylum, and International Operations Directorate Asylum Division, at p. 79 (Nov. 2007, revised Jul. 2010). 33 Affirmative Asylum Procedures Manual, Refugee, Asylum, and International Operations Directorate Asylum Division, at p. 80 (Nov. 2007, revised Jul. 2010). 34 Id. at 79. 35 Id. at 80–82; see also 8 CFR §209.2(a)(1)(ii). 36 Affirmative Asylum Procedures Manual, Refugee, Asylum, and International Operations Directorate Asylum Division, at 83, 84 (Nov. 2007, revised Jul. 2010). 37 USCIS Memorandum, W, Yates, “Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (INA), as amended by the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386. HQOPRD 70/33.1.” (Jan. 27, 2005). 38 Pub. L. 106-386. 39 USCIS Memorandum, W, Yates, “Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (INA), as amended by the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386. HQOPRD 70/33.1.” (Jan. 27 2005). 40 This would only apply to cases denied on or after October 28, 2000. See USCIS Memorandum, W, Yates, “Clarification of Classes of Applicants Eligible for Naturalization under Section 319(a) of the Immigration and Nationality Act (INA), as amended by the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), Pub. L. 106-386. HQOPRD 70/33.1.” (Jan. 27 2005).

Prosecutorial Discretion: What Is It? When Can You Seek It? What Does It Get You?

by Paul O’Dwyer

Paul O’Dwyer is a graduate of the National University of Ireland and the Honorable Society of Kings’ Inns, Dublin, and was admitted to practice in New York in 1990. Mr. O’Dwyer practices immigration law in New York City specializing in asylum and deportation defense and removal proceedings generally at the trial and appellate level. He is chair of the AILA National Refugee & Asylum liaison committee and is a regular speaker on panels and seminars on immigration law. Mr. O’Dwyer can be reached at [email protected].

Background “Prosecutorial discretion” is a concept, long recognized in a variety of arenas, that recognizes the authority of an agency to decide whether and how to enforce particular laws in particular cases. Typically, those decisions are made as a result of prioritizing, based on a set of identifiable criteria, rather than through arbitrary or random decision making. The concept of prosecutorial discretion applies in civil, administrative, and criminal contexts. For instance, in the criminal law context, police officers exercise discretion in deciding who to arrest or issue tickets to; prosecutors exercise discretion in deciding which cases to plea bargain and what pleas to accept, and what punishments to seek.

Prosecutorial discretion has a long tradition in immigration law. Although there is no statutory authority, the authority (and in some instances, obligation) of immigration officials to exercise some discretion in deciding when to commence removal proceedings and execute removal orders (among other actions) has been recognized in a long series of memoranda issued by legacy Immigration Naturalization Service (INS), and now by the U.S. Department of Homeland Security (DHS). Additionally, statutory authority to allow otherwise inadmissible foreign nationals into the United States through a humanitarian parole may also be viewed as an example of prosecutorial discretion. Typically, the exercise—or lack—of prosecutorial discretion is not subject to any type of judicial review.

The most relevant earliest memorandum providing specific guidance for the exercise of prosecutorial discretion in the immigration context can be found in a memo from the then-head of legacy INS, Doris Meissner, in 2000 (Meissner memo),1 written largely in response to the 1996 amendments to the INA which stripped immigration judges of much of their discretion. The Meissner memo in turn relied on well-established principles of prosecutorial discretion employed by U.S. attorneys in the criminal law context. The concept of prosecutorial discretion was expressed in this memo as follows: “Service officers are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process–from planning investigations to enforcing final orders ….” The Meissner memo has in large part being superseded by the Morton memos of 2010 and 2011.2



Prosecutorial Discretion 43

Recent Developments

Morton Memos In the last 18 months, there has been renewed attention on prosecutorial discretion, as a result of a series of memos issued by DHS: two memos issued by U.S. Immigration and Customs Enforcement (ICE) director, John Morton (Morton memos),3 and a letter issued by Janet Napolitano to U.S. Senator Richard Durbin (Napolitano letter).4 The “civil immigration enforcement priorities of U.S. Immigration and Customs Enforcement (ICE) as they relate to the apprehension, detention, and removal of aliens” was outlined in a memo from John Morton dated June 29, 2010, and reissued in March 2011.5 This memo establishes three categories of foreign nationals, in descending order of priority, for enforcement purposes:

1. Foreign nationals who pose a threat to public safety or national security, including:

—foreign nationals engaged in or suspected of terrorism or espionage, or who otherwise pose a danger to national security;

—foreign nationals convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders (determined with reference to the three offense levels established in the Secure Communities Program);

—foreign nationals not younger than 16 years of age who participated in organized criminal gangs;

—foreign nationals subject to outstanding criminal warrants; and

—foreign nationals who otherwise pose a serious risk to public safety.

2. Recent illegal entrants; and 3. Foreign nationals who are fugitives or who obstruct immigration controls. These

include: —Fugitive foreign nationals;

—Foreign nationals who reenter illegally after removal; and

—Foreign nationals who obtain admission or status by visa, identification, or immigration benefit fraud.

This memo requires that “ICE detention resources should be used to support the enforcement priorities noted above or for aliens subject to mandatory detention by law.” On August 20, 2010, John Morton issued another memo6 which recommended the dismissal without prejudice of removal proceedings for foreign nationals with petitions


pending before USCIS, assuming that approval of these petitions would render the foreign national eligible for relief.

Two additional memos were released on June 17, 2011. The first was concerned primarily with the favorable exercise of prosecutorial discretion in cases involving certain crime victims, witnesses, and plaintiffs to civil lawsuits.7 The second memo, by far the most relevant for our purposes, gave further guidance for implementation of the June 2010 Morton memo.8 It outlines particular actions by DHS that should be guided by discretion. These include:

1. Issuing or cancelling a notice of detainer or Notice to Appear (NTA); 2. Deciding whom to stop, question, or arrest for an administrative violation; 3. Deciding whom to detain or to release; 4. Seeking removal by means other than a formal proceeding in immigration court; 5. Settling or dismissing a proceeding; 6. Granting deferred action, granting parole, or staying a final order of removal; 7. Agreeing to voluntary departure, the withdrawal of an application for admission,

or other action in lieu of obtaining a formal order of removal; 8. Pursuing an appeal; 9. Executing a removal order; and 10. Responding to or joining in a motion to reopen removal proceedings and to

consider joining in a motion to grant relief or a benefit. This memo set forth eight classes of individuals whose cases warrant “particular care” when deciding whether or not to exercise discretion. Those are, in no particular order of importance:

1. Veterans and members of the U.S. armed forces; 2. Long-time LPRs; 3. Minors and the elderly; 4. Individuals in the United States since childhood; 5. Pregnant or nursing women; 6. Victims of domestic violence, trafficking, or other serious crime; 7. Individuals who suffer from a serious mental or physical disability; and 8. Individuals with serious health conditions.

The factors to be considered include the following: 1. The agency’s civil immigration enforcement priorities; 2. Length of presence in the United States, especially presence while in lawful

status; 3. Circumstances of arrival in the United States and manner of entry, particularly if

the foreign national came as a young child; 4. Pursuit of education in the United States, especially those who graduated high

school or have successfully pursued or are pursuing a college or advanced degrees;


5. Whether the person, or the person’s immediate relative, has served in the U.S. military, reserves, or national guard, especially those who served in combat;

6. Criminal history, including arrests, prior convictions, or outstanding arrest warrants;

7. Immigration history, including any prior removal, outstanding order of removal, prior denial of status, or evidence of fraud;

8. National security or public safety concern; 9. Ties and contributions to the community, including family relationships; 10. Ties to the home country and conditions in the country; 11. Age, with particular consideration given to minors and the elderly; 12. Whether the person has a U.S. citizen or LPR spouse, child, or parent; 13. Whether the person is the primary caretaker of a person with a mental or physical

disability, minor, or seriously ill relative; 14. Whether the person or the person’s spouse is pregnant or nursing; 15. Whether the person or the person’s spouse suffers from severe mental or physical

illness; 16. Whether the person’s nationality renders removal unlikely; 17. Whether the person is likely to be granted legal status or other relief from

removal, including as a relative of a U.S. citizen or permanent resident; 18. Likelihood of being granted temporary or permanent status or other relief from

removal, including as an asylum seeker, or a victim of domestic violence, human trafficking, or other crime; and

19. Whether the person is currently cooperating or has cooperated with federal, state, or local law-enforcement authorities such as ICE, U.S Attorneys or the U.S. Department of Justice, the U.S. Department of Labor, or the National Labor Relations Board, among others.

Napolitano Memo In August 2011, Janet Napolitano wrote a letter9 (to members of the Senate Judiciary Committee) in which she announced an “interagency working group to execute a case-by-case review of all individuals currently in removal proceedings to ensure that they constitute our highest priorities … to ensure that new cases placed in removal proceedings similarly meet such priorities … [and to] issue guidance on … appropriate discretionary consideration to be given to compelling cases involving a final order of removal.”10 Strictly speaking, this announcement addressed how the Morton memos (and prosecutorial discretion generally) are expected to be applied to individuals currently in removal proceedings, and did not establish any new standards or law.

Requesting Prosecutorial Discretion A request for exercise of prosecutorial discretion is appropriate at any of three stages:

1. Prior to commencement of removal proceedings (to ask ICE not to commence a removal proceeding, or to issue or not issue an expedited or summary removal order);


2. After commencement of proceedings (to ask ICE to terminate proceedings, to

release the person on a bond, or other condition of release, to stipulate to relief); and

3. Post-final order (to ask ICE not to enforce a removal order aka deferred action,

and/or to consent to a joint motion to reopen). A request should be well-documented. It should contain a letter summarizing the client’s life history, positive and negative, including criminal law violations and evident grounds of inadmissibility. It should focus the reader’s attention on the equities, and in particular, those factors outlined in the June 17, 2011 Morton memo. The request should be tightly focused and not unlike a hardship-based application for relief—e.g., for cancellation or a waiver—and explain how the foreign national’s case brings them within the class of foreign nationals described in the Morton memos.

Current Status Regarding Guidance on Implementation At the time of the writing of this article, there has been little practical guidance on the implementation of the memos themselves, or the application of the criteria outlined in these memos to specific classes of cases. Reports from DHS officers indicate that there has been no instruction and no training on the implementation of the Morton memos, and so they are being applied in a random and ad hoc manner.11 This should inform the manner in which a request for deferred action is made. ICE officers may claim to be unfamiliar with the Morton memos, or claim that they are not bound by them, so your request must be grounded in, and make reference to, these memos and to the specific criteria outlined in them. Remember that you are asking an official to overlook your client’s legal transgressions and exercise discretion in their favor. It is not a right—at least not from ICE’s perspective anyhow—and the more thoroughly the request is documented, and the more reasonable it seems, the greater the likelihood of success not just on that particular application, but also on other, successive, requests.

The Guidance Memo for Cases in Removal Proceedings On November 17, 2011, additional guidance was issued by DHS to officers and ICE attorneys on how to address requests for an exercise of discretion for individuals in removal proceedings. One memo provides guidance to ICE attorneys reviewing cases before the Executive Office for Immigration Review. This memo will be referred to as the “Guidance memo.” The Guidance memo established two general sets of criteria to be applied to cases under review for exercise of prosecutorial discretion.12 This is the most concrete guidance so far on how discretion is to be exercised for cases in removal proceedings. Cases meeting the first criteria are to be pursued “in an accelerated manner” (i.e., they should not benefit from an exercise of discretion), and they include:


1. Suspected terrorists or national security risks; 2. Foreign nationals with one felony or multiple misdemeanor convictions; 3. Illegal entry, re-entry, or immigration fraud; 4. Misdemeanors involving:

a. violence, threats, or assault, b. sexual abuse or exploitation, c. driving under the influence of alcohol or drugs, d. flight from the scene of an accident, e. drug distribution or trafficking, or f. other significant threat to public safety;

5. Gang members, human rights violators, or other clear threats to public safety; 6. Foreign nationals who entered the country illegally or violated the terms of their

admission within the last three years; 7. Foreign nationals who have previously been removed; 8. Foreign nationals found to have committed immigration fraud; or 9. Foreign nationals with “an egregious record” of immigration violations.

Cases meeting the second criteria are to be considered for a “favorable exercise of discretion,” and they include:

1. Members, spouses or children of members in good standing, or veterans, of the Coast Guard or Armed Forces;

2. Children in the United States for more than five years, who are in or have successfully completed high school;

3. Foreign nationals who came to the United States under the age 16, have been here over five years, completed high school, and are pursuing or completed higher education;

4. Foreign nationals over age 65 present in the United States for more than 10 years; 5. Foreign national victims of domestic violence, human trafficking, or other serious

crime in the United States; 6. LPRs for 10 years or more with a single, minor conviction for a non-violent

offense; 7. Foreign nationals with a serious mental or physical condition requiring significant

medical or detention resources; or 8. Foreign nationals with very long-term presence in the United States, an immediate

U.S. citizen family member, and compelling ties and compelling contributions to the United States.

On November 17, 2011, the Office of the Principal Legal Advisor issued a memo to all chief counsel offices and directed a review of the following: All pending cases where an NTA has not been filed; all cases with pending master hearings scheduled; and all non-detailed cases with merits hearings scheduled within the next seven months.13 The memo requires Office of Chief Counsel (OCC) to apply the criteria set forth in the June 17, 2011, Morton memo and the “Guidance” memo. It states that in cases where prosecutorial discretion will be exercised, a standard joint motion package should be filed or an oral motion made to the immigration court. So, if you have a case in removal


proceedings that you want terminated, you should prepare a joint motion asking for proceedings to be terminated; contact the local OCC to ask exactly how well documented the motion has to be. If in doubt, document everything.

Conclusion If and when to ask for an exercise of discretion depends on the particulars of every case. If a person may be eligible for relief in removal proceedings, then it may not be a good idea to ask ICE not to commence proceedings, or to ask them to terminate if proceedings have been commenced. This is particularly true if the person has strong equities, as he or she then has a strong argument for deferred action if unsuccessful in proceedings (provided, of course, that a hearing on eligibility for relief will not reveal derogatory information which otherwise might not have come to light), and there are significant benefits to deferred action—notably, employment authorization, and the knowledge that ICE cannot show up in the middle of the night and detain them pending a removal proceeding. On the other hand, having a final order of removal undoubtedly places someone in a more vulnerable position, because ultimately, deferred action doesn’t confer status, and can (according to ICE) be rescinded by them at any time. Finally, developments in this area are all new, and the approach of DHS officers and attorneys are still evolving, will presumably continue to evolve for some time, and will vary from office to office. So know those local office practices before making any applications. Ultimately, it is all a risk analysis, and should be discussed thoroughly with the client and subject to their consent. It is also important to know your local office’s practices as much as possible, and try use the history of other cases to your advantage.

1 Legacy INS Memo, D. Meissner, “Exercising Prosecutorial Discretion” (Nov. 17, 2000), published on AILA InfoNet at Doc. No. 00112903 (posted Nov. 29, 2000). 2 ICE Message to Employees, J. Morton, “Internal Realignment of ICE Offices” (Jun. 9, 2010), published on AILA InfoNet at Doc. No. 10062563 (posted Jun. 25, 2010); ICE Memo, J. Morton, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (Jun. 29, 2010) published on AILA InfoNet at Doc. No. 10062989 (posted Jun. 29, 2010); ICE Memo, J. Morton, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (Mar. 2, 2011) published on AILA InfoNet at Doc. No. 11030323 (posted Mar. 3, 2011). 3 Id. 4 DHS Letter to Sen. Dick Durbin, Janet Napolitano, “Prosecutorial Discretion, Enforcement and DREAM Act Response” (Aug. 18, 2011), published on AILA InfoNet at Doc. No. 11081834 (posted Aug. 18, 2011). 5 ICE Message to Employees, J. Morton, “Internal Realignment of ICE Offices” (Jun. 9, 2010), published on AILA InfoNet at AILA Doc. No. 10062563 (posted Jun. 25, 2010); ICE Memo, J. Morton, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (Jun. 29, 2010) published on AILA InfoNet at AILA Doc. No. 10062989 (posted Jun. 29, 2010); ICE Memo, J. Morton, “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” (Mar. 2, 2011) published on AILA InfoNet at AILA Doc. No. 11030323 (posted Mar. 3, 2011). 6 ICE Memo, J. Morton, “Guidance Regarding the Handling of Removal Proceedings for Aliens with Pending or Approved Applications or Petitions” (Aug. 20, 2010), published on AILA InfoNet at AILA Doc. No. 10082561 (posted Aug. 25, 2010). 7 ICE Memo, J. Morton, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs” (Jun. 17, 2011) published on AILA InfoNet at AILA Doc. No. 11061731 (posted Jun. 17, 2011). 8 ICE Memo, J. Morton, “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” (Jun.17, 2011), published on AILA InfoNet at AILA Doc. No. 11061734 (posted Jun. 17, 2011).


9 DHS Letter to Sen. Dick Durbin, Janet Napolitano, “Prosecutorial Discretion, Enforcement and DREAM Act Response” (Aug. 18, 2011), published on AILA InfoNet at AILA Doc. No. 11081834 (posted Aug. 18, 2011). 10Id. 11 AILA and AIC Report, “Holding DHS Accountable on Prosecutorial Discretion” (Nov. 2011) published on InfoNet at AILA Doc. No. 11110947 (posted Nov. 9, 2011). 12 ICE Guidance Companion to Vincent Memo, “Guidance to ICE Attorneys Reviewing the CBP, USCIS, and ICE Cases Before the Executive Office for Immigration Review” (Nov. 17, 2011) published on InfoNet at AILA Doc. No.11111749 (posted Nov. 17, 2011) 13 ICE Office of the Principal Legal Advisor, P. Vincent, “Case-by-Case Review of Incoming and Certain Pending Cases” (Nov. 17, 2011) published on InfoNet at AILA Doc. No. 11111761 (posted Nov. 17, 2011).

Strategic Use of Mental Health Evaluations in the I-601 Waiver Process by H. Raymond Fasano

H. Raymond Fasano is a member of the Law Offices of Youman, Madeo & Fasano, LLP, dedicated to immigration litigation. He is counsel of record in published Federal Circuit Court and BIA decisions and a renowned author of numerous articles in the field of immigration litigation. Mr. Fasano is a nationally sought after speaker on the topic of immigration litigation. Mr. Fasano can be reached at [email protected].

Immigration attorneys who submit I-601 waivers of inadmissibility have the burden of establishing extreme hardship to a qualifying relative if the waiver is not granted. The Sisyphean task of advocating for a waiver of inadmissibility has a greater likelihood of success when an immigration practitioner partners with a mental health expert who can offer a clinical observation and diagnosis of the client. Mental health or medical experts are valuable assets who convert clinical findings into legal terms that meet the standard of “extreme hardship” while remaining within the scope of their expertise.

Attorneys are most often retained for waiver of the bar established by §212(a)(9)(B) of the Immigration and Nationality Act (INA).1 This bar can be waived if “the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.”2 To qualify for a waiver of the bar to reentry, the foreign national must show extreme hardship to their qualifying U.S. citizen or permanent resident spouse. Congress legislated the extreme hardship standard in the INA but did not define it. Accordingly, it is up to immigration counsel in consultation with medical and/or mental health professionals to define that term on a case-by-case basis. By crafting the extreme hardship standard to meet the particular facts and circumstances of the client, attorneys and healthcare professionals provide the adjudicator with a clinical analysis upon which to make a favorable finding of extreme hardship.

Matter of Cervantes-Gonzalez3 is the leading BIA case to enumerate the factors an adjudicator may take into consideration in determining whether a foreign national has established extreme hardship. These factors include a qualifying lawful permanent resident or U.S. citizen spouse; the qualifying relative’s family ties outside the United States; the conditions in the country to which the qualifying relative would be forced to relocate if the waiver is not granted; the extent of the qualifying relative’s ties to said country; the financial impact of departure from the United States and relocation abroad; and the health of the qualifying relative, including the availability and suitability of medical care abroad. The best method of demonstrating extreme hardship is to present these hardship factors in their totality rather than independently.4 An attorney must work with the health care professional to enumerate the hardship factors in a manner that does not merely repackage legal conclusions, but instead, conveys to the adjudicator that the clinical diagnosis meets the legal burdens of proof. The effective health care professional uses a combination of medical jargon and lay terminology in the report to support clinical conclusions that meet the extreme hardship standard. This approach is effective in



Strategic Use of Mental Health Evaluations in the I-601 Waiver Process 51

demonstrating to the adjudicator that the client meets the extreme hardship standard enumerated in the statute. The health care professional must earn credibility with the adjudicator so the medical and psychological conclusions are given the appropriate weight. All references to psychological trauma or a psychological diagnosis must contain a citation to the Diagnostic of Mental Disorders, 4th Edition (DSM-IV) published by the American Psychiatric Association (APA). The APA is the national medical specialty society whose physician members specialize in diagnosis, treatment, prevention, and research of mental illnesses including substance use disorders. The DSM-IV codifies psychiatric conditions and is used worldwide as a key guide for diagnosing disorders in adults and children. The DSM-IV lists known causes of disorders, statistics in terms of gender, age at onset, and prognosis, as well as some research concerning the optimal treatment approaches. Mental health professionals utilize the DSM-IV to evaluate, diagnose, and treat patients. The DSM-IV is considered the “bible” for any professional who makes psychiatric diagnoses in the United States and abroad. (The fifth edition of the DSM, (DSM-V), will be available in 2013.) An I-601 waiver should be framed around the qualifying relative’s diagnosis by a health care professional. More weight is given to a report or evaluation that contains a history of treating the qualifying relative pre-dating the filing of the I-601 waiver. Treatment for preexisting conditions or medical/psychological issues associated with the stress of the immigration process are more persuasive than a one-time session. Ongoing treatment shows that there is a sincere problem that is being addressed; an ongoing therapeutic relationship gives the report credibility. The psychological evaluation of the qualifying relative should identify the manifestations of the underlying condition and demonstrate how a separation will exacerbate that condition. A report prepared solely for the purpose of obtaining a waiver is given little weight and will often undermine a waiver application.5 When meeting with clients, counsel should inform them of the value of participating in ongoing therapy, since adjudicators distinguish between those applications in which a report is prepared for the sole purpose of an I-601 waiver and ones that relate to ongoing therapy. It is important to note that a treatment plan comprised of therapy and medications often leads to a positive outcome.6

A successful I-601 waiver will be able to compare and contrast mental health care availability and quality in the beneficiary’s native country with the access to and quality of mental health care in the United States. It will include the availability of psychotropic medications and societal attitudes toward mental health issues. If a health care expert is able to offer an opinion as to the availability of care, the quality of care, and the availability of medications, the adjudicator should be satisfied that the qualifying relative “would lack access to adequate treatment for his mental health needs in Mexico.”7 A comprehensive I-601 waiver includes factors most favorable to the qualifying relative to meet the extreme hardship standard. It provides the adjudicator with the facts and


circumstances comprising the depth of hardship. In so doing, the adjudicator will be provided with sufficient cause to grant the I-601 waiver.

1 Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.). 2 INA §212(a)(9)(B)(v). 3 22 I&N Dec. 560, 565–66 (BIA 1999). 4 Matter of O–J–O–, 21 I&N Dec. 381 (BIA 1996). 5 Matter of [name not provided], Application for Waiver of Grounds of Inadmissibility under INA §212(g), (AAO, July 7, 2009), available at www.uscis.gov/err/H1%20-%20Waiver%20of%20Inadmissibility%20-%20Medical%20-%20212%20(g)/Decisions_Issued_in_2009/Jul072009_01H1212.pdf (retrieved Nov. 4, 2011). (The record failed to reflect an ongoing relationship with the applicant’s spouse or any history of treatment for the disorder suffered by the applicant’s spouse.) 6 Matter of [name not provided], Application for a Waiver of Grounds of Inadmissibility under Section 212(h) of the Immigration and Nationality Act (AAO, Jun. 29, 2005) at 6, available at www.uscis.gov/err/H1%20-%20Waiver%20of%20Inadmissibility%20-%20Medical%20-%20212%20(g)/Decisions_Issued_in_2005/JUN292005_01H1212.pdf (retrieved Nov. 4, 2011). (“While the evaluation diagnoses the applicant’s spouse and son with depression and anxiety, it does not prescribe any particular course of treatment ....”) 7 Matter of [name not provided], Application for Waiver of Grounds of Inadmissibility under INA §§212(a)(9)(B)(v) and 212(i), 2010 WL 4686587 (AAO Apr. 6, 2010).

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