Court revives lawsuit involving corrupt INS Officer

The Ninth U.S. Circuit Court of Appeals recently reinstated a portion of a lawsuit seeking to hold the federal government responsible for the conduct of an asylum officer who asked two Chinese women applying for asylum in the United States for sex and money in exchange for a favorable resolution of their cases. The officer was arrested, charged and convicted after one of the women, in cooperation with the Justice Department, wore a wire to her meeting with the officer, who sexually molested her and asked for $2000 bribe to approve her case. The officer later committed suicide in jail (the article from metnews merely says he died, but another article from the Daily Journal specifies it was a suicide). The facts of this story and the ensuing civil lawsuit are absolutely incredible. You can read the metnews article in its entirety here. The Ninth Circuit decision can be found here.

FBI uncovers largest human trafficking operation in US

CNN reports that 6 California-based job recruiters have been indicted in federal court for what basically amounts to importing slaves from Thailand by falsely promising them jobs under the H2 visa program. Not only were these unscrupulous individuals planning to detain these Thai workers and make them work for free but in some cases even demanded that they pay additional money to them or they would have them arrested. The FBI says this is the largest human trafficking ring they have uncovered to date in the United States. More on this story here.

Congress passes $600 Million Border Bill

Congress today passed legislation to strengthen security along the border with Mexico. It now goes to President Barack Obama, who had requested the $600 million the measure provides and is expected to sign it into law. The money will fund some 1,500 new border patrol agents, customs inspectors and other law enforcement officials along the southwestern border, as well as two more unmanned aerial "drones" to monitor border activities.Congress' speedy approval of the border security funds marked a rare display of bipartisanship in the hot-button immigration debate. More on this here.

Immigration Chief vows to fix problems at California Service Center

For those of us practicing in SoCal, the problem of repetitive, unduly burdensome and sometimes overreaching Requests for Evidence is nothing new. Now, it seems that enough complaints have reached Congress to trigger a promise by USCIS Head Alejandro Mayorkas to take steps to resolve the situation.

Requests for Evidence (known as RFEs) are formal written requests sent by USCIS officers after a visa application has been filed, if after review they realize the application is either missing some supporting documents or needs clarification. For example, if you file a marriage petition, the USCIS may request additional documents asking for proof that you are cohabiting or that you are commingling your finances or what not. For employment visas, the USCIS may ask for additional evidence that the employer has the financial ability to pay the prospective employee (tax returns, payrolls, etc), or that the employee is qualified for the position (degrees, letters of experience etc).

RFEs are great if used appropriately. Rather than incurring the waste of time and money in rejecting a visa application, the USCIS cashes the filing fee, gives it a case number and a priority date (very important) and then allows the person to supplement whatever is missing.

The problem is that in practice, those of us who are in the private bar, have seen too many RFEs, particularly in the employment visa category, that demonstrate the officer has either not looked at the application or else is deliberately trying to stall the processing. This is particularly egregious when you pay an extra couple of thousand dollars in a premium processing fee to ensure that your application is processed faster and more efficiently. I can't tell you how many responses I had to write back beginning with the sentence "The evidence requested has already been attached to the initial filing application, please see Exhibit Tabs A, B, C etc."

As I wrote in an earlier blog, these types of undue delay can jeopardize a job particularly if the job is time sensitive. Foreign actors, or musicians, hired for a particular concert or theatrical performance, cannot afford to miss their scheduled appearance without causing significant financial backlash.

To be fair, I think the problem is not that the officers are lazy or incompetent. Actually I have always believed and always stated that they are overworked and underpaid. Naturally, they then try to shift their incredible burden onto the customer. I hope that Mr. Mayorkas and Congress can recognize that the first step in improving procedures at the California Service Center and other particularly busy centers is to hire more and train better. If they cannot spend more money, at least rearrange the budget to fill these needs. You can read more about this issue in the Los Angeles Times here.

New online case status tool for USCIS customers

USCIS announced the launch of a new online inquiry tool designed to expand users’ access to their case information. Say for example, if you filed your application for citizenship months ago, and there has been an unusual delay in obtaining results. In Los Angeles, it used to be that you would have to stand in a long line going around the block at the crack of dawn and then wait several more hours inside the office before you could speak to an officer. Then, a few years ago, USCIS started offering online appointments through INFOPASS so clients or their attorneys could come in at set times to make their case status inquiry, thus eliminating a lot of delay. While at the beginning, this INFOPASS system did improve some time delays, recently, it is back to business as usual, with some case inquiries taking up to 4 hours, even if you asked for the earliest appointment slot available. Hoping that with this new tool, which gives more information than previous online case inquiry tools, there will be less of a need to make in person inquiries. This would save time and resources not only for the public and attorneys but for the already over-extended USCIS officers. More information can be found at the USCIS official website here.

10,000 U visas approved

The Los Angeles Times reports that USCIS has reached the 10,000 cap on U visas for the first time since it began implementing them in 2008. U visas provide a path to citizenship for nonimmigrant victims of certain specified major crimes.

The first eligibility requirement for U nonimmigrant status is that the alien must have suffered substantial physical or mental abuse as a result of having been a victim of one of the crimes considered by USCIS to be "qualifying."

The second requirement is that the crime must be on a list of activities that violate Federal, State, or local criminal law – from murder, rape, torture, sexual exploitation, and extortion to witness tampering, obstruction of justice, false imprisonment, etc. This is not an exclusive list – in fact, the list of qualifying crimes represents the myriad types of behavior that can constitute domestic violence, sexual abuse, trafficking, or other crimes which vulnerable immigrants are often targeted.

Third, the petitioners must obtain certification from law enforcement that they have cooperated with the authorities to identify and prosecute the criminals who targeted them.

Before U visas were available, I remember certain clients with horrific circumtsances who would have greatly benefited from this type of visa. Just to give one example, without revealing too much of course, one case involved a woman who was trafficked into the country as a child, repeatedly raped, beaten, and kept under locks, before she was able to escape. She did seek out law enforcement and a restraining order was granted against her abuser though I am not sure if he was ever caught and/or prosecuted. The woman fortunately was able to adjust her status to a lawful permanent resident through other means, although it took years and a full on court case before an Immigration Judge to obtain relief. The fact that the cap was already reached for U visas this year confirms that stories like hers are, unfortunately, all too common.

The Los Angeles Times article can be found here. More information on U visas can be found on the USCIS official website.

USCIS to make reforms in 10 areas

The USCIS has announced on its official website that it has selected 10 areas to conduct internal review and possible reform after an unprecedent survey asking both its own employees and members of the public what issues were the most urgent to them and in need of change. I applaud the efforts of the USCIS to both engage in communication with the general public where it has traditionally been very difficult to address complaints and concerns, and also, to make some efforts to have a consistent policy. How many times have we heard that Officer X handled a certain problem in one way while on a different day, Officer Y said he had no idea what Officer X said and decided to handle it in a different way? Consistency is something that all of us, whether we are federal employees, customers or lawyers, welcome. The results of the USCIS survey can be found here. The USCIS announcemebt about which 10 areas it will review, can be found here.

US companies seek increase on H1B visa cap

A very interesting article from the Arizona Republic details the efforts of various American companies to lobby Congress to raise the cap on H1B visas, which are temporary employment visas for foreign born workers. Statistics show more than 50% of PhDs and Masters degree graduates from American universities are foreign born in fields that are very needed such as engineering, math, etc. H1B visa holders currently represent 0.06% of the American labor force. I remember the days when H1B cap was not an issue as the number of visas issued hardly reached the numbers allowed by Congress each year. After a drastic reduction of more than 50% of the available visa numbers a few years ago, the H1B process became a race with uncertain results, as I spoke about in an earlier blog. The Arizona Republic article can be found here.

AZ immigration appeal set for November 1

Following Federal Judge Bolton's ruling on Wednesday enjoining certain sections of Arizona's new immigration law that would have required the police to arrest any individual they had a reasonable cause to believe are illegal aliens, attorneys representing the State of Arizona filed an appeal before the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit has already set a briefing schedule for both parties and a hearing is expected to take place on November 1, 2010. More on this issue here.

US Consulate shut down amid violence in Mexico

The U.S. government announced today that it has shut down indefinitely its consulate in the city of Ciudad Juarez, Mexico. Ciudad Juarez is the scene of an increasingly violent drug war. This consulate shut down at least once more previously, when three of its personnel fell victims of drug dealers. Ciudad Juarez is also infamously known as the site of the unsolved murders of hundreds of Mexican women, which was turned into the Hollywood film Bordertown starring Jennifer Lopez. The shutting down of the consulate will undoubtedly create even more of a backlog situation for this very busy post. More information can be found on the Consulate's website here.

Pres. Obama's reaction to AZ ruling

President Obama is set to appear on the TV Show The View this morning. It will be interesting to see if he is asked or mentions on his own the Arizona immigration ruling yesterday. Under President Obama, the number of removal of aliens unlawfully present in the United States has actually increased compared to President Bush's administration. (Read the details in this article) I will blog more after watching the President's televised appearance this morning.

Update: The President did not mention immigration this morning during his televised apearance. The White House website also has no mention of it either.

Judge blocks parts of the AZ Immigration Law

This is big. Judge Bolton blocked the provisions of the AZ immigration law that would allow police to check the immigration status of any person they have a reasonable cause to believe are not in lawful status. This law has been the subject of headlines across the country, attracting passionate advocates both against and in favor of this law. Read the AP article here.

Asylum for gay Iranians

This article from ABC news raises two interesting issues: That of asylum based on sexual orientation, and that of the one year deadline to file for asylum.

I am particularly interested in the one year issue as it has come up many times when discussing potential asylum claims with clients. The law requires that an applicant for asylum file his/her application within one year of arrival in the United States. I do find one year to be a generous amount of time. Additionally, there are some exceptions to this rule given the appropriate circumstances, but generally the courts will not accept a delay of more than 6 months as reasonable.

But what to do in a case like this one, where the person who wishes to seek asylum has been living in the United States since childhood, brought here by his parents and believing all his life until he reached adulthood that he was a citizen? Mohammad Abdollahi is a 24 year old man who was raised in Ann Arbor, Michigan since childhood. It was only after his arrest at a protest (the article does not mention what kind of protest or the specific charges against him) that it came to his attention and to the attention of the authorities that he is here without any lawful status. Given the Department of State recognizes and documents persecution of gays and lesbians in Iran, it seems that, absent the one year issue, Mr. Abdollahi could have a viable asylum case based on his sexual orientation.

This is another type of downfall for the children in limbo that I spoke about in an earlier blog. It will certainly be interesting to see if this case or another like it will result in a new legal precedent that will clarify further the exception to the one year rule.

Sharp decrease in H1B visas

Eweek.com reports a sharp decrease in the issuance of H1B visas in the past two years, after gaging statistics from the Department of State and interviewing Kellie Lego, a Maryland based immigration attorney. H1B visas are temporary employment visas normally given for three years and that can be renewed one time only for another three years to qualified foreigners needed to fill certain positions at American companies. Though the Department of Homeland Security would not speculate why there would be this drop of almost 30% in the number of H1B visa recipients, Lego blames the economy in the US, as well as certain increased scrutiny both at the consular level and at the border by U.S. Customs and Border Inspection.

What the article fails to mention is that, added to the above-noted reasons, a couple of years ago, the filing fees for H1B visas increased tremendously. These filing fees are of course nonrefundable regardless of the result. Also, there was a significant reduction by Congress for the numbers of visas available, leading prospective employees to rush their applications all on the first available date and then wait for a lottery type of draw to see if their applications would be lucky enough to be randomly selected.

I don't have a problem with increased scrutiny since it is true that the H1B process has been abused in the past, by people who were planning from the getgo not to work in the positions asserted by their employers, for various reasons. A concern is the fact that review of a consular decision or a decision by the Border officer is left pretty much entirely to their discretion and there is little or no system for a meaningful review by an appellate body in place.

Given all these hurdles, it is understandable that less people would want to undergo the burden of moving their entire family or even planning for such a move, when they cannot be certain in the end that they will be selected and admitted under this category. The article from eweek.com can be found here.

Children in Limbo

Being the child of immigrants myself, one of the most heartbreaking things in my career has been coming across children who make the dangerous crossing to the United States sometimes not even accompanied by their parents but by a smuggler, the so-called coyotes. Imagine them being scared to death, arrested and interviewed, not knowing what to say, where to turn for help, maybe even being threatened not to talk by the unscrupulous individuals who were in charge of them for a few hundred dollars. When they do make it without being caught, the childen often grow up all their lives here believing they are United States Citizens. When I read stories like this one from the Waco Tribune, where a smart young woman Valedictorian of her high school finds out her dream of going to college is shattered because unbenownst to her, she was brought here as a child by her parents, without any lawful immigration status, I sympathize and I wish that there could be a provision in the law to help children in these situations.

Faster visas for artists

Though I have filed employment visas before, I have never filed the special subcategory of visas for artists. From speaking with colleagues, one thing is for sure. One of the common problems has been the processing time, which sometimes is so long that the employer cancels the job offer because he/she simply cannot wait while the very much needed position sits unfilled.

This problem I am sure is exacerbated when you are trying to obtain a visa for a singer or actor, who are working on even tighter schedules. For example, if the singer is hired to do a concert on a certain date, with tons of advertising for months before in order to sell tickets at the venue,the concert promoter simply cannot change the date at the last minute because of visa problems, without encountering huge technical problems and financial losses. Or a film production that has obtained a permit to film on the streets of New York City for example, for a limited amount of days, cannot wait on one of its actors who is caught up in red tape.

This is why it's great news that the government has announced it is going to speed up the visa process for artists, in effect reducing it from approximately 120 days to 14 days only. I cannot believe this has not been done before as I know there is a premium processing available for other temporary employment visas, which has for years enabled the employee to obtain the visa in about 14 days or less, if otherwise eligible, by simply paying an extra filing fee. I am not sure if this new processing time for O and P visas required a similar added fee but I am certain a lot of people would gladly pay the extra fee if it means a speedier process. Read the entire New York Times article here.

New online tool to search for immigrant detainees

One of the most difficult things is to calm down a person who has just had her family member arrested by ICE and is panicked because she has no idea where he is or whether he has already been or about to be removed. Often, calling the detention centers in search of the officer in charge, or even obtaining an A number through which the detainees can be identified, is a gruelling search marked by many unanswered voice mail messages, letters and faxes. Today, ICE has created a search tool on its website to locate the detainee online. This is great news as it will no doubt improve and speed up communication between all, the family members, the attorney, the officer in charge, and of course the detainee, to determine what, if any, forms of relief would be available under the law. You can read more about it in this article from the Associated Press. ICE online detainee locator can be found here.

Lawsuit over AZ Immigration Law

Attorneys for the ACLU and the State of Arizona debated the constitutionality of Arizona's new immigration law before Federal Judge Susan Bolton. Read the full article from the Sierra Vista Herald.