Archives August 2017

SGM Immigration Law Group

SGM Immigration Law Group

EB-1C Denial

Every aspect of immigration law is fraught with complications. Sometimes, despite doing everything the right way, you can still get a denial. When it comes to a green card as distinguished as the EB-1C, a denial can be devastating. In this article, we delve into the reasons behind an EB-1C denial and how to avoid it.

EB-1C Background

Before we take a look at the reasons for denial, let’s first find out what goes into an EB-1C green card.

The EB-1C is an immigrant visa designed to grant lawful permanent resident status to the managers and executives of multinational companies that have a branch in the United States. In order to qualify, both you and your employer need to fulfill certain requirements.

Requirements for you

You must have maintained employment with the company for at least one continuous year in the three years leading up to your green card petition. You must also have the intention of immigrating to the U.S. to work in an executive or managerial capacity for the employer.

Requirements for your employer

Your employer must be a U.S. employer that has been doing business in the U.S. for at least one year. They must also have an office, branch, or affiliate overseas that has employed you for this transfer.

Why Was My EB-1C Denied?

So now that we know the basic overview for the EB-1C green card, we can get a better idea of what the USCIS is looking for when processing petitions. WSo, without further ado, here are the top 6 reasons for EB-1C denial.

1. Fees Were Insufficient

One of the common reasons for any visa denial is filing the wrong fees to the wrong places and it still stands as one of the common EB-1C rejection reasons. Due to the ever-changing nature of immigration law, fees and filing structures are also fluctuating. With new laws and policies being put into place each year, it shouldn’t surprise us that the fees change as well.

For example in December of 2016, the USCIS introduced a new fee schedule to a good portion of their visa forms and petitions. The fees from last year no longer apply, causing quite a few problems to those who failed to be updated on the new schedule.

Filing the wrong fees often results in a rejection, meaning that the petition never reached the decision-making stage and was sent back to the petitioner. However, there have been some rare cases in which the USCIS issued an outright EB-1C denial on account of insufficient fees. To avoid this delay, be sure to check the USCIS website for the latest fees or have your immigration attorney handle the fee payment.

2. Inconsistent Information

This reason may seem self-explanatory, but it deserves to be acknowledged in this list. While it remains a simple mistake, it’s one that many petitioners end up making. Double, even triple-checking your information can save you a great deal of headache in the future. Too many petitioners are concerned with getting their petition in as soon as possible and neglect to proofread their information.

The USCIS will either reject or deny your petition on account of incorrect, inconsistent, or missing information. This can cost you both time and money as the petition will need to be resubmitted with a new filing fee.

Avoiding this mistake is simple, make sure that each piece of information is accurate and matches the rest of your documentation. This is another problem that can easily be avoided by having an immigration attorney file your petition.

3. Criminal History/ Violation of Status

When you file your petition, the USCIS will conduct background checks to ensure that you do not have a criminal history in the U.S. or in your own country. Your case will also be examined to see if you have ever been in violation of your visa status in the past. If a crime or violation is found, then it goes without saying that your petition is likely to be denied depending on the nature and severity of the crime or violation.

While avoiding criminal activity is common sense, being in violation of your status may be more of a threat to your case. Overstaying your visa or being considered “out of status” can not only place a temporary bar on your entry into the U.S., it can damage your chances of obtaining visas in the future.

4. You Do Not Qualify

There are plenty of examples of companies that promote an underqualified worker to management for the sole purpose of obtaining a green card. Many of these are rejected due to the fact that the worker has not been a manager for at least one year and the fact that the worker lacks the necessary qualifications to effectively manage.

This may not be the case and you might be qualified, but your petition may still be denied if your qualifications are not apparent in your petition. To avoid this, be sure that your petition includes all of the necessary evidence pointing to your management ability.

5. InAbility to Pay Proposed Wages

Like many of the employment-based green cards, the EB-1C petition requires an offer of employment in order to qualify. That job offer must include the salary or wages that the company promises to pay you. In addition, your employer must demonstrate the capacity to pay you this wage.

According to the regulations, the way to prove that the wage can be paid is through showing the company’s net income, current assets, annual reports, federal tax returns, and financial statements. It also helps if you have already been making this wage during your employment with the company.

Failure to demonstrate that your employer is able to pay the proposed wage for your position is one of the more common EB-1C rejection reasons we see. Work with your immigration attorney to make sure all of your financial documents are in order.

6. Job Description Does Not Qualify

There are many things you can do to avoid an EB-1C denial, but this last reason seems to snag more petitioners than it should. The USCIS lays out what a manager or executive looks like in detail.

A manager should:

  • Oversee the day-to-day work of employees, be in charge of their wages, and have the power to hire and fire.
  • Supervise a function or department of the company.

An executive should:

  • Supervise the work of managers within the company.
  • Be able to make large decisions for the company without substantial supervision.
  • Have the ability to create goals and policies for the company.

There are some positions that have the title of manager or executive (such as account manager) that do not require the employee to fulfill the tasks above. These positions do not qualify for this green card and attempting to apply through them will most likely result in an EB-1C denial.

EB-1C Denial Rate

The USCIS keeps a relatively outdated set of statistics on their website concerning the denial rates for certain green cards. In 2010, the EB-1A denial rate was 38% with 3,200 petitions being approved and 1,998 being denied. According to the chart, this denial rate is lower than most, sometimes even reaching over 50%.

The EB-1B denial rate is much lower, showing that in the same year, only 306 of a total of 3,140 petitions were denied with a calculated denial rate of only 9%.

Unfortunately, the chart does not give the statistics for the EB-1C denial rate. However, your immigration attorney may have a good idea of what your chances are based on their previous successes.

What to Do After an EB-1C Denial

If you heed the above reasons for denial and hire an immigration attorney, you will be setting yourself up for success. However, if you have already received an EB-1C denial and are looking for what to do next, there are some options to consider with your lawyer.

Re-file

In almost all circumstances, you will have the opportunity to re-file with the USCIS. If you have filed your case either by yourself or with a different attorney, you may want to consider finding a new avenue for filing. If you obtain new evidence or had a simple mistake in your petition that resulted in rejection, re-filing may be the first move that you make.

If the denial was due to a more serious issue such as a lack of qualifications or a criminal history, simply re-filing will most likely only result in a second denial. In this case, new evidence of a change of circumstances would be required to take either of the two options below.

Can I Appeal?

There is a possibility that you can appeal the decision to a third party, but there are some caveats to consider. Appealing requires you to file with the Administrative Appeals Office (AAO) and can take a very long time to process. In addition to this, the AAO upholds the decision more often than not, meaning that time will be wasted.

Keep in mind that appealing is only available to applicants who are currently in the U.S. If you are denied by the consulate, you will most likely receive an EB-1C denial notice stating that the decision cannot be appealed.

If you do decide to appeal, do so with an attorney. Stepping into the realm of appeals is not to be done without an expert. Save yourself a substantial amount of time and trouble by getting legal help with your appeals.

Motion to Reconsider

Another option is to file a motion to reconsider. This is a request for the original entity (i.e. the USCIS) to reconsider the case if new circumstances or evidence has arisen. This last part is essential. If you simply file a motion to reconsider without presenting new evidence, your motion will likely be denied. Work with your attorney to find a way to bring new information to light

Consider the Alternatives

Lastly, though it may not be ideal, you may want to contemplate switching your goal to a different green card. Even if you don’t qualify for an EB-1C, you still may be eligible for an EB-2 or and EB-3 green card. Speak with your attorney to determine the options that may be available to you after an EB-1C denial.

How Our Immigration Attorneys Can Help

As we’ve said a few times in this article, the best way to avoid an EB-1C denial is to have an expert handle your case. At our office here at SGM Law Group, we find that the cases that get denied are almost always done without an attorney. With years of experience dealing with employment-based immigration, our lawyers can help you cross every “T” and dot every “i”.

From gathering evidence to support your case to handling the minutiae of filing, you can rest assured that your case is in the right hands. To get your immigration journey started or to receive help for your EB-1C denial, go ahead and fill out this contact form and let us schedule your consultation today.

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General Requirements for Being an Hired as an Immigration Judge

General Requirements for Being an Hired as an Immigration Judge

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Published at Tue, 15 Aug 2017 22:36:00 +0000


Protect Yourself: How To Find A Good Attorney?

Protect Yourself: How To Find A Good Attorney?

Watch Jeff Isaac talking about the criteria of good attorneys and where to find them. Learn more: http://www.lawyerinbluejeans.com

You can also follow Jeff Isaac and The Lawyer in Blue Jeans Group on Facebook, Twitter, and Google+.

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Two Prominent Florida Republicans Offer Thoughts on RAISE Act Proposal

Two Prominent Florida Republicans Offer Thoughts on RAISE Act Proposal

Two prominent Republicans from Florida made interesting comments regarding the RAISE Act, the substantial immigration bill proposal co-sponsored by Senators Tom Cotton of Arkansas and David Perdue of Georgia. To read an overview of the RAISE Act proposal and my thoughts on the proposed legislation, please see my comprehensive blog [see blog]. In this article, we will examine the comments of Senator Marco Rubio of Florida and former Florida Governor Jeb Bush.

Senator Rubio’s remarks were reported by Melissa Quinn of the Washington Examiner [link].1 I noted in my full blog on the RAISE Act that Senator Rubio seemed to express support for some of the legislation’s goals. In a subsequent interview, he suggested that, despite the RAISE Act being supported by President Trump, he believed that there was no chance that it would pass the Senate.

RAISE Act

Regarding the merits of the legislation, he supported its goal of creating a merit-based immigration system, noting that this particular point of the legislation was similar to the Gang of Eight effort he was part of in 2013. However, Senator Rubio disagreed with the proposed cuts to overall immigration numbers in the proposal. He stated that his goal was not to limit legal immigration, but rather to change the immigration system. He noted that where he differed was the RAISE Act’s setting of an “arbitrary cap on the number of people that are able to come through with a green card.” Instead, he suggested that immigration numbers should be tied to demand.

Newsmax reported comments on the legislation from Jeb Bush, the former Governor of Florida who, like Rubio, ran for president in 2016 [link].2 Similarly to Senator Rubio, Bush backed the RAISE Act’s implementation of a points-based system for employment immigration, noting that it was similar to systems in Australia and Canada which have proven to be successful. Bush went further, also supporting the limitation of family reunification visas to spouses and unmarried children under the age of 21. He criticized the current system of allowing adult siblings, adult parents, and adult sons and daughters to obtain permanent resident status through family-based immigration. He added that the United States takes in far more family-based immigrants as a percentage of total immigrants than “any other country.”

However, Bush criticized two aspects of the proposal. First, he agreed with Senator Rubio that overall immigration levels should not be cut. Second, he disagreed with what he described as the English language requirement, believing that it should only come into play for naturalization purposes.

I agree with both Rubio and Bush that the RAISE Act fails in cutting overall immigration levels. However, as they note, certain elements of the legislation, such as the concept of the points-based immigration system, should be a part of any immigration reform effort. It is unclear whether there is any path in the Senate to passing immigration legislation of this scope. However, if an agreement can be reached on the issue of overall immigration numbers between those who want reductions, such as Senators Cotton and Perdue, and those who want to keep the numbers steady or increase them, such as Senators Marco Rubio and Lindsey Graham, it is possible that workable legislation which includes a points-based system for employment immigration could garner more serious consideration.

_____________________

  1. Quinn, Melissa. “Marco Rubio: Trump’s immigration bill is ‘not going to pass’ the Senate.” Washington Examiner. Aug. 7, 2017. Washingtonexaminer.com
  2. Beamon, Todd. “Jeb Bush Likes Some Parts of Trump-Backed Immigration Plan.” Newsmax. Aug. 9, 2017. Newsmax.com

Published at Wed, 16 Aug 2017 00:19:00 +0000


DHS Terminates CAM Parole Program (Effective Aug. 16, 2017)

DHS Terminates CAM Parole Program (Effective Aug. 16, 2017)

On August 16, 2017, the Department of Homeland Security (DHS) published a notice in the Federal Register (FR) titled “Termination of the Central American Minors Parole Program” [see82 FR 38926]. As the name indicates, the Acting Secretary of Homeland Security, Elaine Duke, terminated the Central American Minors (CAM) Parole Program. The termination is effective immediately.

CAM Parole Program

The CAM Parole program was implemented on December 1, 2014, and expanded on November 15, 2016. It is important to distinguish between the CAM Refugee program and the CAM Parole Program. Under the CAM Refugee Program, certain parents who are lawfully present in the United States may seek refugee resettlement interviews for their children residing in Guatemala, Honduras, or El Salvador. The CAM Parole Program allowed those deemed ineligible for refugee status to be paroled into the United States instead. The 2016 expansion of the CAM Parole Program extended the parole benefits to unmarried children under the age of 21 of the qualifying child and allowed individuals other than parents to petition in certain cases. Please see the United States Citizenship and Immigration Services (USCIS) page on the subject for more information [PDF version].

On January 25, 2017, President Donald Trump issued an Executive Order titled “Border Security and Immigration Improvements.” We discussed the Executive Order in detail in our article on then-Secretary of Homeland Security John Kelly’s memorandum implementing its provisions [see article]. Both the Executive Order and the Kelly memo directed the DHS to ensure that parole authority is only exercised on a case-by-case basis in accord with section 212(d)(5) of the Immigration and Nationality Act (INA) [see section]. In accord with the Executive Order, Acting Secretary Duke has now terminated the CAM Parole program as being inconsistent with its directive.

Effective August 16, 2017, the DHS will no longer consider parole requests or authorize parole under the CAM Parole Program. Accordingly, individuals who have already been conditionally approved for parole under the CAM Parole Program, but who have not yet traveled to the United States, have had had their conditional parole approval rescinded. However, these individuals may seek parole under the DHS’s regular parole authority by filing the Form I-131, Application for Travel Document, in accord with the form instructions. Each parole application will be assessed on a case-by-case basis in light of whether there are urgent humanitarian reasons or significant public benefit grounds for granting parole.

Individuals who are already in the United States on parole that was granted under the CAM Parole Program will not have their parole rescinded. Instead, they will be able to maintain parole until the expiration of their parole periods, unless their parole is otherwise terminated for unrelated reasons in accord with 8 C.F.R. 212.5(e). These individuals may file for re-parole to stay in the United States on the Form I-131. Requests for re-parole should be submitted at least 90 days before the expiration of the parole period. The USCIS will evaluate each request for re-parole on a case-by-case basis and it may require re-parole applicants to demonstrate urgent humanitarian reasons or a significant public benefit.

Please note that the termination of the CAM Parole Program does not affect the CAM Refugee Program. The CAM Refugee Program remains in effect. The only change is that there is no special parole provisions for those denied status under the CAM Refugee Program.

Individuals who are affected by the termination of the CAM Parole Program, or who are unsure of its effects, should consult with an experienced immigration attorney for case-specific guidance. Please see our full article on humanitarian parole to learn more about the circumstances in which the USCIS will grant parole on humanitarian grounds [see article].

Published at Thu, 17 Aug 2017 15:56:00 +0000


September 2017 Visa Bulletin

September 2017 Visa Bulletin

Introduction

On August 9, 2017, the U.S. Department of State (DOS) issued the September Visa Bulletin [PDF version]. On August 10, 2017, the United States Citizenship and Immigration Services (USCIS) determined that those seeking adjustment of status in the family-sponsored and employment-based immigrant visa preference categories must use the final action dates instead of the more generous filing dates [PDF version].

The September Visa Bulletin represents the last Visa Bulletin of FY-2017. It is the first of the 12 visa bulletins from the fiscal year to see priority date regression in several categories, which we will detail in the article. The next Visa Bulletin, for October 2017, will be the first Visa Bulletin of FY-2018.

Immigrant Visa Bulletin

In this article, we will examine the final action dates for both the family-sponsored and employment-based preference cases. We will also examine the DOS’s news and notes included with the September Visa Bulletin. Please see our full articles on using the Visa Bulletin [see article] and the difference between final action dates and filing dates [see article] in order to learn more about the issues discussed in this article.

Finally, please see our comprehensive list of all articles on FY-2017 Visa Bulletins [see article].

Family-Sponsored Cases

The USCIS has determined that beneficiaries of approved family-sponsored immigrant visa petitions must use the final action dates from the September 2017 Visa Bulletin for filing for adjustment of status. The beneficiary of an approved family-sponsored petition may file for adjustment of status if the final action date for his or her preference category and chargeability area is earlier than his or her priority date. If the applicable final action date is after the priority date, the applicant will be ineligible to file for adjustment of status in September. The priority date is generally when the immigrant visa petition was properly filed.

The F1 final action dates for Worldwide, China, El Salvador, Guatemala, India, and Honduras retrogressed to May 1, 2010. The F4 final action dates in these categories retrogessed to January 1, 2002 (see also Interpreter Releases Daily 4 08-10-17). Note that El Salvador, Guatemala, and Honduras are not included on the family-sponsored chart, but are noted in the DOS’s comments on the Visa Bulletin.

The DOS appended the following note for the F2A category: “NOTE: For September, F2A numbers EXEMPT from per-country limit are authorized for issuance to applicants from all countries with priority dates earlier than 22SEP15. F2A numbers SUBJECT to per-country limit are authorized for issuance to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 22SEP15 and earlier than 01OCT15. All F2A numbers provided for MEXICO are exempt from the per-country limit.”

Employment-Based Cases

The USCIS has determined that beneficiaries of approved employment-based immigrant visa petitions must use the final action dates from the September 2017 Visa Bulletin for filing for adjustment of status. The beneficiary of an approved family-sponsored petition may file for adjustment of status if the final action date for his or her preference category and chargeability area is earlier than his or her priority date. If the applicable final action date is after the priority date, the applicant will be ineligible to file for adjustment of status in September. The priority date depends on the type of employment-based petition. If labor certification was required, the priority date will generally be the date on which the labor certification application was approved by the U.S. Department of Labor. If labor certification was not required, the priority date will generally be when the petition was properly filed.

News and Notes from the September 2017 Visa Bulletin

The DOS noted that retrogression of final action dates for Family First Preference (F1) and Family Fourth Preference (F4) occurred for Worldwide, China, El Salvador, Guatemala, India, and Honduras. The retrogression of the final action dates was necessary to keep visa numbers within the annual per-country limits for FY-2017. The DOS explained that the final action dates will return to what they were for the October 2017 Visa Bulletin.

The DOS determined the family-sponsored and employment-based preference numerical limits for FY-2017, as required by section 201 of the Immigration and Nationality Act (INA). The limitations are as follows:

  • Worldwide Family-Sponsored: 226,000
  • Worldwide Employment-Based: 140,000

Based on these numbers and the per-country limitation in section 202(a) of the INA, the FY-2017 per-country limit is 25,620. The dependent area annual limit is 7,320.

Conclusion

As we noted, the September 2017 Visa Bulletin is the final Visa Bulletin for FY-2017. The next edition in October will be the first of FY-2018, and it may permit applicants to use the filing dates instead of the final action dates. We will update the site once the October 2017 Visa Bulletin is released.

Published at Mon, 14 Aug 2017 23:27:00 +0000


DHS OIG Report Finds Waste in Administering Polygraph Exams to CBP Job Applicants

DHS OIG Report Finds Waste in Administering Polygraph Exams to CBP Job Applicants

On August 10, 2017, the Department of Homeland Security (DHS) Office of Inspector General (OIG) released a report showing that the U.S. Customs and Border Protection (CBP) spent more than $5,000,000 on polygraph exams for job applicants who had already admitted to disqualifying criminal acts and/or drug use prior to the polygraph exams [PDF version].

The DHS OIG analyzed 380 polygraph exams administered to applicants between 2013-2016. Nearly 20-percent of those who were administered the polygraph exams had previously admitted to criminal activity or drug use that disqualified them from being hired at CBP, regardless of the results of the polygraph exams. The CBP’s own data indicated that approximately 2,300 applicants who took polygraph exams admitted to disqualifying offenses or factors prior to their exams, including:

  • Illegal drug use;
  • Drug smuggling;
  • Human trafficking; and
  • Having close personal relationships with people who commit such crimes.

DHS OIG

The DHS OIG noted that each polygraph exam costs taxpayers $2,200, thus explaining the estimated high cost associated with the useless exams.

The DHS OIG attributed the problem to the CBP’s failure to consistently use its on-call adjudication process, which allows examiners to determine prior to administering the polygraph exam whether the job applicant had already made admissions that rendered him or her un-hirable by the CBP.

In response to the findings, the CBP implemented the OIG’s recommendation to immediately contact adjudicators when an applicant admits to wrongdoing. Upon the determination of an adjudicator that the applicant is unsuitable based on his or her admissions, the examiner ends the test and the applicant is removed from the hiring process. Additionally, the CBP implemented a pilot program for a new polygraph format. The DHS OIG stated that the CBP’s implementation of its recommendations has both improved efficiency and allowed the CBP to focus on suitable candidates who are more likely to pass the polygraph and meet the requirements for the position.

Analysis

Although $5 million dollars is a miniscule amount of the DHS’s budget, the report is nevertheless troubling for two reasons.

Firstly, although the amount is small in the grand scheme of DHS funding, it is still an egregious waste of taxpayer money on polygraph exams for persons patently unsuitable for work at the CBP. The government has a fundamental obligation to not waste taxpayers’ money.

Secondly, the Trump Administration has requested significant amounts of new funding for the DHS in order to facilitate hiring and new initiatives regarding immigration enforcement. Unsurprisingly, the Trump Administration has thus far had difficulty securing its desired funding from Congress, and it will likely continue to have such difficulty going forward. In the meantime, it is important for the DHS to carefully study how it spends the money that it already receives. The OIG pointed to a similar issue in the summary of the report, namely, the on-going difficulty in completing the CBP hiring surge ordered by President Trump:

“Given its plans to hire 5,000 additional Border Patrol Agents, it is important that CBP focus its resources on the most qualified and suitable applicants.”

Regarding both money and resource allocation, the DHS’s favorable response to the OIG report is certainly encouraging. We can only hope that the reforms will fully resolve the scourge of frivolous polygraph examinations.

Published at Mon, 14 Aug 2017 23:53:00 +0000


Overview of GAO Report on Refugee Screening

Overview of GAO Report on Refugee Screening

If you need an experienced and knowledgeable U.S. immigration, deportation, or immigration appeals attorney, please call our toll-free number at:

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Published at Wed, 09 Aug 2017 23:14:00 +0000


Overview of GAO Report on Refugee Screening

Overview of GAO Report on Refugee Screening

If you need an experienced and knowledgeable U.S. immigration, deportation, or immigration appeals attorney, please call our toll-free number at:

(866) 456-­8654 | * Call Us – Toll Free *

or at our NYC number:

(212) 202-­0342

You can also contact us with Skype:

Free Skype CallFree Skype Call

Have a Question?

Ask us immigration, deportation or immigration appeals questions online with our convenient “Ask a Question” form:

Ask a Question 

Want to Schedule a Consultation?

You can schedule a consultation with us on Skype, over the phone, or in person by using our “Online Consultation” form (we offer a 15 minute free consultation for asylum seekers, and our fee is only $160 per 45 minutes for all other cases):

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Attorney Advertising

Prior results do not guarantee similar outcomes

Published at Wed, 09 Aug 2017 23:14:00 +0000