CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘immigration’

Federal Litigation and How to Turn a USCIS Denial into an Approval

Posted on: July 17th, 2019

By: Ken Levine

The FMG Immigration Section was retained to prepare a green card case for one of the top chess players in Asia.  Our client, Oliver Barbosa, is a chess Grandmaster who hails from the Philippines.  He is currently ranked the 2nd best chess player in his country, the 60th best chess player on the Asian Continent and the 474th best chess player in the world.  FMG was already familiar with Oliver’s credentials. Our firm had previously secured an O-1 (extraordinary ability) work visa on his behalf, which allowed him to work as an Instructor for a prominent chess instruction company in New York City.

Information on Oliver’s impressive chess accomplishments can be seen in the attached articles:

http://bangkokchess.com/gm-oliver-barbosa-runner-up-of-the-14th-bcc-open-2014/

http://www.chessdom.com/parsvnath-international-open-oliver-barbosa-clinches-title/

Given the substantial evidence supporting Oliver’s O-1 work visa we had confidence that USCIS would look favorably upon our EB1 filing.  However, USCIS raised several legal issues in a request for evidence (RFE) and cast doubt on his eligibility to receive a green card under this category.  FMG immigration attorneys vigorously responded to the Immigration Service’s RFE and two weeks later we were met with a surprising denial decision.

After assessing the denial and determining that the legal reasoning set out in the decision was very much at odds with the actual evidence, FMG strongly recommended pursuing federal legal action.  While there are appellate steps within the USCIS process (Motion to Reconsider or an Appeal to the Administrative Appeals Office) these options were substantially less preferable than simply taking USCIS straight to Federal Court.   FMG filed what is known as a “Declaratory Action” in the U.S. District Court for the Eastern District of New York – https://www.pacermonitor.com/public/case/28492611/Barbosa_v_Barr_et_al

Our case was never reviewed by the Federal Judge nor was it necessary to appear in court.  23 days after filing and a mere five days after the Assistant U.S. Attorney (AUSA) entered their appearance, we received a notice that USCIS had reopened the denial and approved the EB1 petition.  The approval means that Oliver and his wife (Sunshine) will receive their green cards under our country’s most elite and prestigious immigration category.  Congratulations Oliver and Sunshine!

Oliver emailed us the below comments and has authorized us to print them here:

I have had the privilege of having Ken as my immigration attorney for over 3 years.  He had my O1 application approved then we hired him to prepare the green card.  Since the beginning of the green card process I was realistic and understood that the immigration process will sometimes not go smoothly, but I also believed that my decades of success and recognition in chess would work in my favor. 

The EB1 denial was unexpected and devastating.  While we were reluctant to challenge Immigration in court, since taking the government to court is just not what one does in the Philippines, Ken convinced us.  He spent a lot of time answering our questions about a lawsuit and addressing our concerns.  Ken explained his reasons for wanting to sue the government, pointed out what evidence he felt Immigration did not consider, and overall really seemed to have all the bases covered. Less than 3 weeks after the case was filed we received a call from Ken.  Immigration reversed the denial and approved my EB1 case!! 

I want to say a few things about Ken.  He is honest, trustworthy and very straightforward. He will tell you exactly where you stand and what direction you should go.  Thank you so much Ken for all your help, your perseverance and last, but certainly not least, for believing in my case.  Winning in court would not have been possible without your hard work, knowledge and skill.  I have already recommended him to other chess players and will certainly retain his services for my future immigration matters.”

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Hooray! My Employee’s H-1B Visa Was Finally Approved! Now Why Am I Getting This Revocation Notice?

Posted on: June 19th, 2019

By: Ken Levine

For the past two years, USCIS has ramped up revocations of approved H-1B petitions. While there are no reliable government statistics, word of mouth in the immigration legal field, as well as increased federal litigation concerning H-1B revocations, clearly underscores the existence of this trend.

Under 8 C.F.R. 214.2(h)(11) USCIS must satisfy at least one of the below criteria in order to initiate H-1B revocation proceedings:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or (2) The statement of facts contained in the petition was not true and correct; or (3) The petitioner violated terms and conditions of the approved petition; or (4) The petitioner violated requirements of section 101(a)(15)(H) of the Act or paragraph (h) of this section; or (5) The approval of the petition violated paragraph (h) of this section or involved gross error.

In particular, USCIS has taken to stretching the bounds of “gross error” criteria to justify revocation of petitions for occupations that USCIS now believes do not merit recognition as a specialty occupation. An example of this approach can be found in the Service’s increased attempts to revoke approved H-1B petitions for Systems Analyst or Market Research Analyst positions.

As well, USCIS has substantially increased scrutiny on H-1B workers in the information technology field. Employers in the IT field must be especially diligent in filing amendments when there are changes to the terms of the position or location of employment. Even minor position changes that come to light through a USCIS audit can easily trigger an H-1B revocation notice.

DOES AN EMPLOYER HAVE ANY DEFENSES TO AN H-1B REVOCATION?

The regulations allow for an employer one opportunity to rebut the basis of a USCIS revocation. USCIS must send a summary outlining the specific reasons why revocation has been initiated.  Employers are then given 30 days to file a response. If the response is deemed persuasive then USCIS will uphold the validity of the approval.  Otherwise, USCIS will formally revoke the petition.

However, just because a petition has been revoked does not mean the matter must end there. Employers who believe that the Service’s decision to revoke their H-1B petition was unwarranted should strongly consider challenging the revocation in Federal Court. Federal Judges are reluctant to afford deference to USCIS decisions if those decisions are not logical, rational or well founded.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Latest Update on the H-1B Visa Application Process

Posted on: February 11th, 2019

By: Layli Eskandari Deal

The U.S. Department of Homeland Security (DHS) has issued a final rule implementing changes to the H-1B visa program for petitions filed under the H-1B cap (better known as the H-1B visa lottery).

The rule reverses the order whereby USCIS selects H-1B petitions for the standard allotment of 65,000 visas and the 20,000 visas allocated for the advanced-degree exemption. It also adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The final rule is scheduled to become effective on April 1, 2019.

Under the reverse selection process, USCIS will first select H-1B petitions for the general allotment of 65,000 visas. Then USCIS will select from the remaining petitions a number estimated to reach the advanced degree exemption. The reverse selection rule applies to petitions filed for the FY 2020 H-1B cap season (this year). The agency expects the lottery reversal to increase the number of individuals selected who possess an advanced degree from a U.S. institution.

The rule also implements an electronic registration requirement for H-1B cap-subject petitions which DHS has postponed until next cap season (FY 2021). Once implemented, it will require those seeking to file H-1B cap petitions to first electronically register with USCIS. Only petitioners whose registrations are selected will then be able to file an H-1B cap-subject petition.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at 770.551.2700 or [email protected].

USCIS Reverses Course – STEM OPT Students May Now Work At 3rd Party Client Sites

Posted on: September 18th, 2018

By: Ken Levine

On August 17th U.S. Citizenship and Immigration Services (USCIS) posted an announcement on their website to publicize the agency’s decision to once again allow STEM OPT F-1 students to engage in training programs at a third-party client worksite.  This update supersedes the Agency’s policy change in April 2018 which disallowed STEM OPT students from being placed at 3rd party client sites.

This new guidance essentially restored an employer’s ability to place OPT students in a science, technology, mathematics or engineering (STEM) field at a 3rd party client site, so long as all applicable training obligations are met, and a bona fide employer/employee relationship is maintained for the full duration of the assignment.

This USCIS policy reversal was welcome news for the many U.S. employers who had historically trained their OPT personnel by placing them at 3rd party work sites.  However, it is extremely important that employers be vigilant in ensuring that the training is in full compliance with the I-983 training program. Companies that sponsor their OPT employees for an H-1B visa should expect that USCIS will closely scrutinize the OPT training program details.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Ken Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

Supreme Court on Prolonged Detention and Bond for Immigrants

Posted on: March 27th, 2018

By: Layli Eskandari Deal

Immigration has been a hot topic in the news lately due to the various issues being litigated in the Courts.  Recently the Supreme Court made a ruling on the issue of prolonged detention by Immigration and Customs Enforcement (ICE) of immigrants who are in removal (deportation) proceedings.

In Jennings v. Rodriguez, 138 S.Ct. 830 (2018), the Supreme Court held that the Immigration and Nationality Act (INA) authorizes the prolonged detention of certain noncitizens without a custody hearing during their removal cases.  This was a reversal of the 9th Circuit Court of Appeals decision that authorized detention only for six months, at which point, the detained individual must then receive a custody (bond) hearing before an Immigration Judge.  Post decision, the Supreme Court has remanded this case back to the Ninth Circuit for consideration of whether the 5th Amendment Due Process Clause entitles immigrants to a hearing over their prolonged detention.

This week the Supreme Court has agreed to review whether U.S. immigration laws allow ICE to indefinitely detain foreign nationals in the removal process if the person has previously committed crimes.  The case is Nielsen v. Preap.  Current laws allow ICE to take an individual into custody after they have served their criminal jail term prior to their release from prison.  A person detained immediately can then be held indefinitely.  The 9th Circuit Court of Appeals ruled that foreign nationals who are not promptly taken into custody must be given an opportunity to be released on bond.  The federal government argues the same rules should apply to individuals promptly taken into custody as those who are released from prison and then taken into custody at a later date.  We now await the Supreme Court’s decision on this type of detention.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].