USCIS Celebrates Constitution Week With 260 Naturalization Ceremonies
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Three Sisters Convicted in Family-Sponsored Immigration Fraud Case
On September 21, 2018, the United States Citizenship and Immigration Services (USCIS) announced that it had assisted in the investigation of three individuals in upstate New York in a visa fraud case [PDF version]. The investigation led to the convictions of all three individuals.
The three individuals who were charged and ultimately convicted were Dalia Lita, Elina Rahman (E. Rahman), and Lubna Rahman (L. Rahman). The three individuals are sisters.
The USCIS detected fraud in the immigrant visa petitions involving the sisters and notified investigators of the U.S. Immigration and Customs Enforcement (ICE). The case was then referred to the U.S. Department of Justice (DOJ) for criminal prosecution.
In 2001, Lita filed petitions for her two sisters, E. Rahman and L. Rahman. The evidence at trial established that Lita was aware that the petitions she filed on behalf of her sisters “contained false statements meant to conceal their true identities and prior, illegal residence in the [United States].” After the petitions were approved, E. Rahman and L. Rahman applied for immigrant visas “knowing that their applications also contained the same false statements.” E. and L. Rahman ultimately obtained immigrant visas based on their fraud.
The three sisters face serious penalties as a result of their convictions. The USCIS notes that they may each be sentenced to a maximum term of imprisonment of five years with a maximum term of post-imprisonment supervised release of three years. Furthermore, they may each be ordered to pay a fine of up to $250,000. Sentencing will occur on January 14, 2019. The judge presiding over the case, Senior U.S. District Judge Thomas J. McAvoy, will consider numerous factors in deciding on sentences.
The case was investigated by Homeland Security Investigations (HSI) and successfully prosecuted by Special Assistant U.S. Attorney Jason W. White.
On our site, we often discuss the severe immigration penalties that may stem from fraud. Aliens who procure or attempt to procure visas or other immigration benefits through fraud may face removal from the United States and ineligibility to obtain future benefits. However, this case highlights that certain forms of immigration fraud may also implicate U.S. criminal laws. Criminal sanctions may adhere in addition to civil immigration penalties. If an alien is facing immigration charges relating to fraud, or is seeking a waiver of inadmissibility due to immigration fraud, he or she should consult with an experienced immigration attorney. If an alien is criminally charged with offenses relating to immigration fraud, he or she will need to retain an experienced criminal defense attorney. If the individual already has an immigration attorney, that attorney may assist him or her in finding criminal counsel.
USCIS Publishes Draft of Proposed New Public Charge Rules
On September 22, 2018, the Department of Homeland Security (DHS) announced that, in the near future, it will publish an extremely consequential proposed rule revising the definition of “public charge” under the Immigration and Nationality Act (INA). We have uploaded the DHS news release [PDF version] and the draft rule [PDF version] for your convenience.
The most prevalent public charge provision in the INA is found at section 212(a)(4) of the INA. This provision renders an alien who does not establish that he or she is not likely to become a public charge inadmissible. It is mainly relevant in the context of family-sponsored immigrant visa and adjustment of status applications. You may read a detailed walkthrough of the current public charge rules here [see article]. In addition, there is a public charge deportability provision found at section 237(a)(5) of the INA. However, as we discuss in our full article, the public charge deportability provision has been construed narrowly and is seldom invoked [see article].
Before discussing the draft rule, it is important to remember that the rule has not yet been published in the Federal Register. Once the proposal is published in the Federal Register, it will be open to public comment for 60 days. After the 60 day notice and comment period, DHS will consider the comments and work on drafting a final rule for publication in the Federal Register, at which point the rule will take effect. It is likely that any new public charge rules would not take effect for several months, at the earliest.
While we expect that the proposed rule that the DHS intends to publish “in the coming weeks” will be substantially similar to the draft rule, the DHS may make alterations before publication. For that reason, we will summarize the key points of the draft rule here and write a longer post once the DHS publishes a proposed rule for public comment in the Federal Register.
Under the current public charge rules, a consideration of whether an alien is likely to be a public charge is most relevant in the family immigration context. Nearly all family-sponsored immigrant visa or adjustment of status applicants require an affidavit of support in order to have their applications approved. Under current rules, a properly submitted affidavit of support that comports with all of the legal requirements is generally sufficient to overcome the presumption of public charge.
Under the draft rule, the DHS would instead determine whether an applicant is likely to become a public charge based on the “totality of the circumstances.” This would require adjustment of status applicants to file a new Form I-944, Declaration of Self-Sufficiency, along with the Form I-485 adjustment of status application. The rule would also introduce new procedures for evaluating whether a nonimmigrant seeking change of status or extension of status has already become or has been a public charge during his or her stay and/or whether the petitioner is likely to become a public charge in the future, except in categories exempt from the public charge ground of inadmissibility. Significantly, the rule would also revise implementing regulations for section 213 of the INA, which allows the Secretary of Homeland Security to accept a public charge bond from certain individuals seeking adjustment of status.
Receipt of certain benefits would be weighed as “highly negative factors” against finding that an alien is not likely to be a public charge. Under current rules [see section], receipt of the following three means-tested public benefits are considered adverse factors in public charge determinations:
Supplemental security income (SSI); Cash temporary assistance for needy families (TANF), but not including supplemental cash benefits or any non-cash benefits provided under TANF; and State and local cash assistance programs that provide for income maintenance.
The draft rule would also include the receipt of the following benefits significant adverse factors in public charge determinations in addition to the three that are already considered:
Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education); Medicare Part D Low Income Subsidy; Supplemental Nutrition Assistance Program (SNAP, or “food stamps”); Institutionalization for long-term care at government expense; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing.
The draft rule requests public comments on whether the Children's Health Insurance Program (CHIP) should also be included in a final rule. However, CHIP is not currently among the public benefit programs in the draft rule.
The draft rule includes a 36-month rule under which the receipt of the public benefits listed above (exempting CHIP, at least in the draft rule) within 36 months of an application would be a heavily weighted negative factor in the public charge context. Prior receipt of such benefits — i.e., prior to 36 months before submission of the application — would still be a negative factor but not a heavily weighted one. Other factors that would be considered would include how much the alien received in benefits, how many individual benefits he or she received, and the duration for which he or she received benefits, along with other factors.
In another important point, the draft rule would not count as negative factors any public benefits that were not covered under the previous public charge regulations and which were received before January 1, 2019. However, any such benefits received after that date would count as negative factors.
The draft public charge rule will constitute, if implemented, one of the most significant changes in immigration law in recent years. The provisions in the rule are categorically unfavorable to aliens seeking immigrant visas, adjustment of status, change of nonimmigrant status, and extension of nonimmigrant stay, and who are not otherwise exempt from the public charge provisions. Its consequence would be especially felt in the family immigration context, where many applicants for immigrant visas or adjustment of status may have a significantly higher bar for establishing eligibility to become lawful permanent residents. Furthermore, the rule's expansion of public benefits that would be encompassed under the public charge regulations would potentially imperil many immigrant visa and adjustment of status applications.
In one final note before we conclude, the draft rule proposes no change to how the DHS interprets section 237(a)(5) of the INA — the public charge deportability provision. That means that section 237(a)(5) should continue to be an uncommonly charged deportability ground. Please see our full article on section 237(a)(5) for more information [see article].
As we noted earlier, it is too early to tell what the ultimate outcome of this draft rule will be. It is possible that the Final Rule — if any is published — will be significantly watered down from the draft rule that we have discussed in this article. Furthermore, it is uncertain when the DHS will publish a proposed rule and start the 60-day comment period, much less when DHS would publish a Final Rule, assuming it ultimately does so.
Those with questions about how the proposed rule may affect them should consult with an experienced immigration attorney for a case-specific consultation. Furthermore, an experienced attorney may provide up-to-date guidance based on developments in the process toward the draft becoming a Final Rule. It is important to reiterate that family-sponsored immigrant visa applications and adjustment of status applications will, for the time being, continue to be adjudicated under the current public charge rules, not the draft rule or future proposed rule in the Federal Register. You may read about the current rules in our main article on the subject [see article].
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Twelve years after being interviewed by The New York Times Magazine, five women, who all started their law careers at Debevoise & Plimpton, reflect on ambition, leadership and success.
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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.
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.
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.
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):