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    Published on 10-20-2017 02:57 PM

    An American Could Do the Job


    On April 18, 2017, President Trump signed the Buy American and Hire American (BAHA) Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws. It also directs DHS, in coordination with other agencies, to advance policies to help ensure ...

    Published on 10-19-2017 10:22 AM

    Employers Beware: Ice Director Warns Of ‘quintupling’ Worksite Enforcement Actions


    In statements made to the Heritage Foundation on October 17, acting Immigration and Customs Enforcement (ICE) Director Tom Homan stated that he has instructed the agency to potentially quintuple worksite enforcement actions next year.

    As reported by CNN , Homan stated that "We've already increased the number of inspections in work site operations, you will see that significantly increase this next fiscal year." Homan further elaborated that "When we find you at a worksite, we're no longer going to turn our heads," Homan elaborated after the event. "We'll go after the employer who knowingly hires an illegal alien[.]”

    Specifically, the news outlet reports that Homan directed agents of Homeland Security Investigations (HSI) to audit how much of their time is spent on worksite enforcement, and to accordingly ...

    Published on 10-19-2017 10:13 AM

    Case Study How to Answer the Level 1 Wage RFE


    The short answer: get help! This is the most difficult RFE we've seen in many years, and definitely the most widespread. The sheer volume of Level 1 Wage RFEs pouring in from CIS onto H1B candidates is insanity. It is more important than ever that we take a stand and answer these RFEs for the sake of the H1B program, US STEM industries, and to continue to attract bright students to the United ...

    Published on 10-18-2017 04:02 PM

    Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’


    Attorney General Sessions who has been hostile towards increased immigration and views the asylum system as a loophole for unauthorized entry into the US said in recent remarks that “over the years, smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” He got even more animated as he went on his diatribe about how the credible fear interview process is being gamed by those who would otherwise be expeditious removed. “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to clients to make false claims to asylum providing them with the magic words needed to trigger the credible fear process,” he said.

    Sure enough, there have been a few lawyers who have filed fraudulent asylum claims and have deservedly faced punishment through criminal convictions. However, the vast majority of these supposedly dirty immigration lawyers are some of the finest people I have known who work with passion to ensure due process, fairness and justice. Mr. Sessions was appropriately rebuked by AILA President Annaluisa Padilla who said, “Attorney General Sessions chose today to deride the American asylum system, the vulnerable populations who seek safety here, and the immigration attorneys who work tirelessly to ensure due process is afforded to everyone,”

    The law surrounding political asylum is extremely complex, and one who fears persecution needs competent representation – and a lot of representation in the asylum arena is pro bono. An asylum applicant’s chances improve exponentially when he or she is represented by a good lawyer. ...

    Published on 10-17-2017 01:29 PM

    RFE Strategies for O-1B Cases


    All immigration attorneys hate the dreaded Requests for Further Evidence (RFE). Current RFEs include boilerplate language, a misapplication of the law, and a total disregard for the documentary evidence to prove the evidentiary criteria.

    It is important to empower the client by presenting the various options to ensure that the client understands that RFEs are not a reflection of the strength of their case, but sometimes they are issued because of the lack of training of the immigration officer, the rapidity in which the immigration officer has to adjudicate, or because of the immigration officer’s misunderstanding of the law and the legal ...

    Published on 10-16-2017 02:14 PM

    Employment-Based Green Card Interviews are Coming – What We Learned from the Ombudsman’s Teleconference


    USCIS recently announced that, beginning October 1, 2017, it will expand in-person interviews for employment-based Form I-485 applications for adjustment of status (“AOS”). Since the 1990s, common practice was for USCIS to adjudicate employment-based AOS applications at service centers, without in-person interviews. However, as part of USCIS’s efforts to comply with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” all employment based AOS applications will now be scheduled for in-person interviews at local field offices.

    On September 28, 2017, the USCIS Ombudsman’s Office held a teleconference with USCIS to discuss this new policy. Here are five things ...

    Published on 10-13-2017 11:05 AM

    Attorney General Sessions Attacks Asylum Seekers and Calls for More Fast-Track Deportations


    During a public appearance at the Department of Justice on Thursday, Attorney General Jeff Sessions called on Congress to curb due process for immigrants by making it more difficult for an individual to seek asylum and to increase fast-track deportations.

    In his speech, Sessions focused heavily on America’s long-standing system that provides asylum to those seeking safety and protection, claiming it is “subject to rampant abuse and fraud.” He argued that increased claims of “credible fear”—where an individual apprehended at the border expresses fear of persecution if returned to their home country—are an indicator of asylum seekers abusing loopholes in the immigration system. ...

    Published on 10-12-2017 11:27 AM

    4 Tips for EB-5 Principal Applicants with Diminished Capacity, Such As Autism


    In the past few months, our firm has been approached by parents with children with Autism or other special needs on whether such children are able to obtain an EB-5 visa. Although we have not received affirmative guidance from the U.S. Department of State (“DOS”) or USCIS, it appears this is a viable option, though each situation will be reviewed on a case-by-case basis.

    Here are four things to know on this topic:

    1. Can Child with Special Needs be Principal Applicant for EB-5? It’s potentially viable for such a child to be the principal EB-5 applicant with the appointment of an appropriate legal guardian who can act on the child’s behalf. Prior to making an EB-5 investment, the legal guardian should ask the Regional Center to affirmatively ...
    Published on 10-12-2017 11:15 AM

    “A Killer Deal” for EB-5 or a “Deal Killer”?


    Just revealed… the “last, best and final offer” for the EB-5 program from the judiciary leadership of the House and Senate. During the past few weeks, the EB-5 industry stakeholders representing urban and rural interests have been busy meeting with Chairman Grassley and Chairman Goodlatte, behind closed doors whereupon the “ last, best and final offer” was formed. Senator ...

    Published on 10-12-2017 11:05 AM

    When To Use Comparable Evidence in EB-1A cases?


    There are many interpretations of “comparable evidence.” Some immigration attorneys interpret this alternative criterion to mean that it is only applicable if the profession, not the particular type of evidence, doesn’t fit into the other criteria. For documentary evidence submitted for a particular EB-1 regulatory criteria, as outlined in Policy Memorandum PM-602-0005.1, USCIS recognizes that, "In some cases, evidence relevant to one criterion may be relevant to other criteria set forth in ...

    Published on 10-11-2017 11:56 AM

    The End of DACA


    Deferred Action for Childhood Arrivals (also known as DACA), ordered by the Obama administration in 2012, is a program that has offered temporary protection from deportation to nearly 800,000 people who were brought to the country illegally as children, allowing them to obtain work permits, be eligible for driver’s licenses, and complete schooling.

    To have been eligible for DACA, applicants must have entered the U.S illegally before their 16th birthday, been younger than 31 before 2012, haven’t been convicted of a felony or major misdemeanors, and must have been in school, graduated from school or are honorably discharged veterans of the armed forces or Coast Guard.

    New York State has almost 42,000 DACA recipients. Of those 42,000 recipients, 30,000 live in New York City.

    Published on 10-11-2017 11:50 AM

    Competency Evaluations In Immigration Proceedings: Matter Of M-a-m Cases


    Competency evaluations in immigration proceedings is similar to competency evaluations in criminal cases, however, a specific case – Matter of M-A-M – serves as the guiding principle for the mental health evaluator with immigration clients. This chapter will consider (1) criteria in the Matter of M-A-M case, (2) special challenges in the competency evaluations in immigration proceedings, (3) major psychiatric issues that require scrutiny, and (4) malingering and factitious disorder as alternate diagnostic considerations.
    Case Example
    In an effort to integrate theory and practice, a case example is presented at the outset. Factual mental health issues from this case are interwoven at various points in this chapter. The case concerns a 32-year-old man - John - who relocated from Jamaican as a young adult. He has a long history of psychiatric illness, which is well-documented during his incarceration. At the time of the evaluation, the client had been incarcerated for about eight years and he was interviewed in an ICE detention center in Batavia, New York. Prior to the evaluation, this evaluator obtained a parallel history from the client’s mother and stepfather, which proved extremely helpful. The client was cooperative throughout the evaluation, however he was floridly psychotic and could provide little meaningful information regarding his personal history, mental health issues, and he could not adequately assist this evaluator with regard to his own case.
    Matter of M-A-M Criteria
    3 Prong Test
    Matter of M-A-M 25 I&N December 474 (BIA 2011) provides a three-pronged test for the competency analysis in immigration proceedings.
    First, does the respondent have a rational and factual understanding of the nature (process) and object (aim) of the proceedings. This prong is quite complex because it requires that the respondent possess an understanding about immigration proceedings, which may be difficult to fully understand even by individuals familiar with the law. As a forensic evaluator, I am often shocked by clients who do not have an understanding about asylum proceedings, deportation cases, 601-waivers, and much else. Asylum clients rarely have a full understanding about the criteria, deportation clients refer to their cases as a “ten-year case” without understanding that they must prove the very high bar of exceptional and extremely unusual hardships, and many of my South American clients refer to the 601-A waiver petition as “perdon” so that the client believes that only a simple pardon is needed. As such, even clients with a high school education and without mental health issues by and large do not have a clear understanding about immigration proceedings, goals, process, or what actually needs to be proven. As such, it would seem that an individual with serious and chronic mental health issues could not understand the reason or manner of the goal, purpose, and aim of immigration proceedings, especially when such clients also invariably did not complete their educations and find it quite difficult to properly advocate for themselves and/or negotiate their community in a meaningful manner.
    Second, can the respondent consult (that is, assist) with the attorney or representative. “Consult” is a broad term and can mean many things, however it generally suggests that the client has the capacity to provide meaningful feedback and input about his case based on an understanding about the factual issues and process, as noted in the first criteria. Again, many of the clients I evaluate can provide little or no “consult” to the attorney and/or evaluator, but rather such information and assistance must be carefully elicited from the client by the attorney and/or evaluator given the client’s rather limited understanding about the process. For individuals who have serious and chronic mental health issues consultation will be all the more challenging and perhaps even impossible.
    Third, would there be a reasonable opportunity for the respondent to examine (adverse) evidence, present favorable evidence, and cross examine government witnesses. Again, this is a high standard because the capacity to examine evidence and cross-examine witnesses is something that even experienced attorneys struggle with on a regular basis. The individual who has suffered with psychiatric illness may not have the cognitive capacity and/or psychological wherewithal to undertake ...

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