By: Danielle Huntley, Esq.

USCIS offers permanent residency, the green card, to foreign nationals who invest either $500,000.00 or $1,000,000.00 in U.S. businesses that create jobs for at least 10 U.S. workers within a 2 year period. This special immigration program, known as the EB-5 visa, can benefit both foreign nationals seeking a way to obtain permanent residency in the U.S., and businesses looking for foreign investment in their projects. These opportunities are available throughout the U.S.

The EB-5 program’s reach and use is only limited by the creativity of those wishing to utilize it.  It is a useful tool because it enables high net worth individuals to obtain permanent residency in the U.S. with no requirement of taking an active role in the business, and enables U.S. companies to obtain job creating capital.  Normally, an investment of $1,000,000.00 is required. However, this investment amount is reduced to $500,000.00 when the investment is made in either a troubled business or in an area of high unemployment.

Under the EB-5 investor program regulations, there are three ways to obtain the benefits of the program:

1. A direct application by one or more foreign nationals who have invested in a qualifying investment.
2. A passive investment by an individual foreigner in a Regional Center which has been pre-approved by USCIS.
3. On or more business entities can apply to USCIS for approval of an entity that would qualify as a Regional Center.

A Regional Center is any economic unit, public or private, which is involved with the promotion of economic growth, including increased exports sales, improved regional productivity, job creation, and increased domestic capital investment. Under the EB-5 regulations, Regional Centers are also referred to generically as the Immigrant Investor Pilot Program. There are currently 160 approved Regional Centers in the U.S.

Our next entry will describe what is required of a foreign investor to participate in this program.

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By: Lawrence P. Lataif

Most people are aware from the news that federal lawsuits are often filed in connection with attempts by individual states to regulate immigration, and by individuals seeking to avoid deportation (now called removal) when found guilty of crimes, denied political asylum, or found to be removable based on other grounds.

Much less known is that federal lawsuits are available for immigration benefits which have been wrongfully denied or unreasonably delayed. Such suits, which represent only a small percentage of federal court lawsuits, can be filed by individuals or employers who are aggrieved or prejudiced by USCIS (United States Citizenship and Immigration Services) action (or inaction) in individual cases. While a federal lawsuit is not feasible or advisable in every situation, it can be very effective when a federal district court judge has become, literally, the court of last resort.

What actions can be brought to Federal Court?

Lawsuits for denied or delayed immigration benefits can include claims for:

1. Declaratory Judgment
2. Injunctive Relief
3. Constitutional Violations – Due Process and Equal Protection
4. Administrative Procedures Act Violations
5. Mandamus Actions
6. De Novo Review of Naturalization Denials
7. Monetary Damages
8. §1983 Civil Rights Actions

Practical Benefits of Filing Suit

Any litigant or lawyer who files a federal court lawsuit must be prepared for lengthy litigation, even though 98.5% of all lawsuits do not go to trial. However, there are practical benefits that accrue to virtually every litigant once a federal court lawsuit has been filed. Among these are:

1. Case gets immediate review by U.S. Attorney’s Office
2. Case gets reviewed by lawyers from OIL (Office of Immigration Litigation)
3. Case gets high level administrative review by USCIS
4. Where the issue is unreasonable administrative delay the case is often won without the government ever filing an answer

When Does Litigation Make Sense?

Federal court litigation can be appropriate in any one or more of the following situations:

1. CIS policy violates statute or regulations
2. CIS policy or regulations are unconstitutional
3. Statutes conflict with each other
4. USCIS ignores favorable evidence to justify denial

Yet, even in these cases, there are important considerations to address before taking the significant step of filing a federal court action. Exhaustion of administrative remedies must be done, unless there is a very compelling reason against it. The costs involved, including legal fees, third party costs and the substantial commitment of time, must be carefully evaluated. Thought must also be given to whether other relief is available to fix the problem, such as a different immigration filing strategy or Congressional action that may change the applicable law.

Helpful Research Resources

Examples of federal court litigation addressed above can be found at the following research resources:

1. Immigration LexisNexis Community (formerly Bender’s Immigration Bulletin – Daily Edition) – www.lexisnexis.com/community/portal/
2. Immigration Daily – www.ilw.com
3. Interpreter Releases – Federal Case Summaries by Gerald Seipp
4. WSJ Law Blog – blogs.wsj.com/law
5. SCOTUSblog -  www.scotusblog.com

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By: Danielle E. Huntley, Esq.

It is only in Wonderland that a state actor can say that they have prosecutorial discretion when they are not a prosecutor and have no statutory authority for discretion. Yet, as we see again, our current immigration system seems stuck in it.

Prosecutorial discretion is a valuable necessity for state and local District Attorneys, and federal prosecutors charged with prosecuting crimes.  It means that a prosecutor can choose not to prosecute someone, negotiate a plea bargain and drop charges among other actions. Prosecutorial discretion recognizes the need for flexibility when enforcing state or federal laws. If you have ever seen an episode of Law & Order where the prosecutor makes a deal with a defendant for their testimony against another defendant, you have witnessed prosecutorial discretion in action. Or if you hear on the news that the District Attorney has decided not to press charges against an individual, that is an exercise of prosecutorial discretion. Prosecutorial discretion is at its broadest at the beginning of the criminal process, and, ceases to exist once an individual has plead guilty or been convicted. This ending of prosecutorial discretion is vital in our democracy, because if prosecutorial discretion is unfettered, the rule of law becomes solely dependent upon the whims of individual state actors.

There is a great deal of confusion surrounding prosecutorial discretion in the enforcement of immigration law. The director of ICE, John Morton, released a memorandum on June 17, 2011 (the Morton memo) that instructs ICE personnel how to exercise prosecutorial discretion in the following situations – which the memo clearly states is not exhaustive:

• deciding to issue or cancel a notice of detainer;
• deciding to issue, reissue, serve, file, or cancel a Notice to Appear (NTA);
• focusing enforcement resources on particular administrative violations or conduct;
• deciding who to stop, question, or arrest for an administrative violation;
• deciding whom to detain or to release on bond, supervision, personal recognizance, or other condition;
• seeking expedited removal or other forms of removal by means other than a formal removal proceeding in immigration court;
• settling or dismissing a proceeding;
• granting deferred action, granting parole, or staying a final order of removal;
• agreeing to voluntary departure, the withdrawal of an application for admission, or other action in lieu of obtaining a formal order of removal;
• pursuing an appeal;
• executing a removal order; and
• responding to or joining in a motion to reopen removal proceedings and to consider joining a motion to grant relief or a benefit.

Furthermore, the criteria used to decide whether to exercise prosecutorial discretion is neatly summarized in the first footnote of the Morton memo. It states:

“The Meissner memorandum’s standard for prosecutorial discretion in a given case turned principally on whether a substantial federal interest was present. Under this memorandum, the standard is principally one of pursuing those cases that meet the agency’s priorities for federal immigration enforcement generally.”

The memo goes on to give a long list of 19 broad, subjective factors that an ICE agent should use to determine whether to exercise prosecutorial discretion. These factors are so broad that it would not be difficult for most aliens in removal proceedings to make a colorable claim under one or several of the factors. The broadness of when prosecutorial discretion can be invoked, and what policies support its invocation, is so vast that it renders the rule of law in immigration enforcement tenuous at best.

This is particularly true when prosecutorial discretion can be exercised when the alien is under a final order of removal. If the alien is under a final order of removal, they have undergone a trial in immigration court in front of an immigration judge, and they have exhausted their administrative appeals and judicial remedies in federal court. Imagine if a criminal prosecutor could decide to drop all charges against a defendant who has been convicted by a jury of his peers and after all appeals had been exhausted– the rule of law would be meaningless. The prosecutorial discretion granted to ICE agents is that broad.

Prosecutorial discretion in immigration enforcement needs to be limited in the same way that it is limited for criminal prosecutors. Otherwise, the fair administration of the immigration laws of this country is rendered impossible. Unfettered “prosecutorial” discretion that can be exercised even after a final order of removal,  results in arbitrary decisions, wasted taxpayer dollars and utter dependence on bureaucratic whim.

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By: Danielle E. Huntley, Esq.

The O-1 visa is a useful tool to bring the world’s best and brightest to the United States. The O-1 visa enables a U.S. company or institution to petition to bring an alien of extraordinary ability to the U.S. An alien of extraordinary ability can also self-sponsor for the O-1. It is initially granted for a period of three years, and it is particularly useful because it can be renewed indefinitely and it can facilitate obtaining a green card for the alien. It enables many foreign doctors and researchers to come to the U.S.

Since 1991, according to the Code of Federal Regulations (CFR), the evidence submitted to establish extraordinary ability must show that the “alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.”  8 C.F.R. §204.5(h)(3) To establish this, evidence “of a one-time achievement (that is, a major, international recognized award), or at least three of the following” criteria, must be shown:

“(i) Documentation of the alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(ii) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;

(iv) Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;

(v) Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

(vi) Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media;

(vii) Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases;

(viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

(ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.”

8 C.F.R. §204.5(h)(3)

The text quoted above plainly states that there are two ways to establish extraordinary ability: (1) a major, international recognized award (the Nobel Prize is an often used example), or (2) establish at least three of the above criteria. However, reading only the CFR would be misleading because USCIS recently added a new, second level of criteria – a nebulous final merits determination.

This new level of review was not added through the congressionally mandated procedures for adding new regulations to the CFR, but rather through a December 22, 2010 Policy Memorandum. The memo updates the Adjudicator’s Field Manual in relevant part to say:

“Meeting the minimum requirement of providing required initial evidence does not, in itself, establish that the alien in fact meets the requirements for classification as an alien of extraordinary ability…In Part Two of the analysis in each case, USCIS officers should evaluate the evidence together when considering the petition in its entirety to make a final merits determination of whether or not the petitioner, by a preponderance of the evidence, has demonstrated that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise, indicating that the alien is one of that small percentage who has risen to the very top of the field of endeavor.”

Oddly enough, USCIS imposed these new restrictions under the cover of a Ninth Circuit Case, Kazarian v. USCIS, which faulted USCIS with “unilaterally impos[ing] novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. §204.5.” Kazarian, 596 F.3d 1115, 1121 (9^th Cir. 2010).

Even putting aside the flagrant disregard of the regulation making process, mandated by the Administrative Procedure Act, this second level of review is facially problematic. It gives the USCIS adjudicating officer, who most likely has no experience or qualifications in the alien’s field of ability, the unfettered power to ignore the regulatory criteria and deny petitions using the rubric the totality of the circumstances. The O-1 visa is left to the mercy of the adjudicating officer’s particular opinions and prejudices. This new level of review will undercut predictability and will make the application process more time consuming, resource intensive and expensive for the alien and the U.S. companies or institutions who are petitioning for them.

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By: Lawrence P. Lataif, J.D., LL.M  and Danielle E. Huntley, Esq.

On July 7, 2011, a remarkable federal court case in the Southern District of New York, Lawson v. USCIS, coverage here, illustrates how complicated naturalization can be. Vernon Lawson was ordered naturalized by Circuit Judge Chin over the good moral character arguments raised by USCIS’ lawyers.

To qualify for naturalization, a legal permanent resident (LPR) must meet various criteria relating to age, length of residence in the US, knowledge of English and US government and good moral character for the five years prior to filing. The case got to federal district court by virtue of a statute recognizing that the right to US citizenship is precious. Therefore, the federal courts have jurisdiction to conduct a de novo review of any naturalization application denied by USCIS.

Lawson’s case is notable because in 1986 he was convicted of first-degree manslaughter for the death of his wife while under the influence of drugs and alcohol. (NB – Lawson would have been statutorily excluded from naturalization if the conviction had occurred after November 29, 1990. 8 USC §1101(f)(8)) At age 14, Vernon Lawson came to the United States as an LPR from Jamaica. He eventually enlisted in the Marines and served in the Vietnam War. When he returned from combat, Lawson was suffering from PTSD and was addicted to drugs and alcohol. While incarcerated for manslaughter, Lawson was an exemplary inmate, completing three degrees and mentoring other inmates. After being paroled in 1999, he began working as a substance and alcohol abuse counselor in a New York City hospital, while taking care of his elderly mother. Judge Chin ruled that the extent of Lawson’s rehabilitation overcame the violent criminal conviction of manslaughter and ordered USCIS to grant Lawson US citizenship.

While most immigrants seeking naturalization are not trying to overcome a criminal conviction on the scale of first-degree manslaughter, even most “straightforward” cases require planning and nuanced responses. Effective planning before a naturalization filing can make all the difference between disaster and citizenship. Lawson’s “victory” in court came 51 years after Lawson arrived in the US.

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By Lawrence P. Lataif, J.D., LL.M.

On June 17, 2011, USCIS announced that it has decided to indirectly enact “The Dream Act” by administrative action, bypassing Congress in doing so. It took this step by issuing a memo revising and expanding its guidelines for prosecutorial discretion, by stating that it won’t deport those who are “pursuing education in the United States…” nor will it deport anyone who has served in the military or who has an immediate relative who has served.

Certain members of Congress are constantly calling for reconsideration and passage of The Dream Act. Others point out problems with it, like Senator Sessions (R-Ala.) states here.

While some aspects of the Dream Act have merit, any stand-alone immigration legislation is a terrible idea. Why? Because if comprehensive immigration reform (CIR) can ever see the light of day, there must be an absolute resistance to any aspect of immigration reform on a stand-alone basis. To do so will only lessen the interest in CIR of those who prevail, and double the resistance to CIR of those who feel cheated by a piece-meal and partisan enactment. Stand alone laws relating to “sealing the border” should be just as off-limits as The Dream Act, even though some aspects of both ideas would have to be included in a CIR package. Back door amnesty should be as much off the table as wholesale, front-door deportations.

Why aren’t members of Congress speaking out against any consideration of stand-alone bills instead of getting lured into a discussion of their merits? What is needed is a broad consensus in Congress that says: “nothing except CIR will be considered.” This will force all sides to sit down and work out a reasonable CIR package.

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By: Danielle E. Huntley, Esq.

There are two primary objections raised when discussion of a national biometric ID card is raised. The first is that it will drive the undocumented further underground, and the second is that it is too severe a privacy invasion.

The first objection, that a national ID card will drive the undocumented further underground is valid to a point, but I do not think it is anymore valid than claiming that driver’s licenses drive non-licensed drivers further underground. To drive in the United States you need a license, and it is relatively simple for an officer to check the validity of that license. To work in the United States we need a similar way for employers to efficiently check the identity of an employee and whether they are authorized to work in the United States. Without a simple, efficient and accurate system in place to check the work eligibility of prospective employees, a void is created that enables unscrupulous employers to exploit the undocumented, and incentivizes those looking for work to come to the United States and be at the mercy of those same employers.

The second objection is weightier because the Federal Government would have unique biometric data from U.S. Citizens (NB – USCIS already has biometric data from legal permanent residents). I think the best way to overcome this legitimate fear, is to think of all of the data that the Federal Government has on each of us right now, and that we have no way to restrict or control its dissemination in a secure way. Biometrics, if done right, could provide that security. The goal of a biometric national ID card would not be the capture of an individual’s entire life story or entire biometric profile, but just enough information to prove that you are who you say you are.

Additionally, the entity that holds the national ID card’s biometric data would need to treat that data like the IRS treats tax and financial information in its custody. For example, let’s say that the FBI is investigating an individual for suspected money laundering. The FBI cannot simply access IRS records and examine that individual’s tax returns and other financial disclosures. By statute, the FBI would need a court order to compel the IRS to disclose the financial information it has in its custody. Similar, strong non-disclosure laws would be important to protect biometric data collected for a national ID card.

Next up employer sanctions…

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By: Danielle E. Huntley, Esq.

Comprehensive immigration reform seems elusive, if not impossible. If any consensus is to work I suggest rallying around a policy that stands on three legs: biometric national ID, employer sanctions and amnesty. In this post I’m going to deal with the biometric ID card and deal with the other two in subsequent posts.

First, without a biometric ID card, comprehensive immigration reform can’t work. Historically speaking, the 1986 amnesty and reform failed to reduce illegal immigration because forged Social Security cards and drivers licenses were as easy to obtain as a pack of cigarettes. A biometric ID card enables employers to reliably and efficiently verify the employment eligibility. The current I-9 form is hyper-technical, onerous and ineffective. For example, in May 2010 the Justice Department sued John Jay College for more than $113,000 for demanding more documents from employees than the minimally required work eligibility documents. The government routinely punishes companies for demanding too many or too few documents, or for accepting inadequate documents. A biometric ID card eliminates these burdens for employers.

Third, a biometric ID card could contain voluntary, life-saving information. Other countries have incorporated blood type, emergency contacts and organ donor preference into their ID cards. Medics, hospitals and rescue personnel could access this vital information from the card’s magnetic strip.

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By Lawrence P. Lataif, J.D., LL.M.

US immigration law and policy takes a beating in our public discourse everyday. Everyone knows something about immigration, but calm discussions often get tossed aside by more pressing issues: jobs, the economy, national debt and deficits, etc. When immigration is discussed, objectivity is rare and truth is almost always an orphan. Almost everyone who speaks about immigration has an agenda and if they don’t deliberately lie, they contort the truth the point that it is unrecognizable. Too much heat, too little light. The typical illegal has not lived here since infancy and is not a valedictorian; nor is the typical illegal a deadbeat or criminal. Sealing the border is an impossible illusion, and blanket amnesty would be an engraved invitation to millions of additional illegals.

After 35 years of practicing immigration law and thinking about its larger policy issues, I have become convinced that sensible immigration reform is both necessary and achievable. I am also convinced that the mainstream media largely ignore flaws in the current immigration laws that raise unnecessary barriers to doctors, scientists, engineers, and entrepreneurs who can make enormous contributions to our society, while literally handing out 50,000 green cards a year to foreigners in a lottery. Go figure.

This blog will explore these issues; from trying to explain in plain English the minutia of immigration rules and regulations, to the larger policy issues that beg to be addressed. Among the topics we will explore are:

• Secure communities
• E-Verify
• Employer Sanctions
• Amnesty
• Securing the border
• Path to citizenship
• National ID Card
• Visas for foreign investors
• Green cards: how to get them and keep them
• Naturalization: how to get it and why
• Federal court litigation: how and why to sue USCIS and DHS

We look forward to the dialogue.

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