DV-2015 Lottery Fever

Congratulations to the winners of the DV-2015 Green Card Lottery. Against great odds, you were selected. Now comes the hard part.

As you know, selection does not guarantee a visa. 125,514 individuals were selected for DV-2015 (out of 9,388,986 entrants), but only 50,000, including their family members, receive visas. Winners must receive their visas by September 30, 2015 or before the 50,000 quota or 3,500 country quota is exhausted. In general, the lower the case number, the earlier the interview and the better chances of receiving the visa before the elapse of the program. Interviews will commence October 1, 2014. The big difference in DV processing this year is that the selectees and their family members will submit their immigrant visa application online and no paper will be filed with the Kentucky Consular Center (KCC).

Each Lottery visa applicant must meet the general requirements for admissibility to the United States. Admissibility bases for refusal include medical, criminal, security, and previous unlawful presence in the US. But in addition to these admissibility bases and the general Lottery eligibility requirements of education or experience and nationality chargeability, there are numerous reasons for a consular officer to deny diversity visa applicants – some of them, quite reasonable; others – not so. Whether understandable or not, the risks can be quite high – from paying thousands of dollars in visa fees and travel expenses without receiving the visas, to having tourist or student visas cancelled, to being unable to receive these visas in the future, or to being subject to a permanent bar to entry to the United States.

Each DV applicant must attend his/her interview at the appointed time. While this sounds simple, those who miss their interview run the risk of not having the interview rescheduled because of significant demand for the visas. Even showing up at the Embassy for the interview without one’s passport may be cause to turn a person away from the Embassy and therefore his opportunity for the visa. It’s happened – for example, to immigrate, a person may have applied with his home government for a new passport or for an exit stamp and does not receive the passport back by the date of the interview. Embassy guards, with the imprimatur of consular management, may, and have, turned away such applicants in the past, thereby depriving Lottery “winners” of the opportunity to receive immigrant visas.

The most common reason for denial is that the visa application is not processed to conclusion before the end of the program. At the interview, the consular officer tells the applicant that he or she must present additional documentation or that his application must undergo administrative processing. Even when the applicant submits additional documentation in a timely fashion, that does not mean that his application will be adjudicated before the deadline. Last year we wrote about how the US Embassy in Tashkent was not diligently finalizing the processing of pending applications, and instead collected new fees and reallocated visas to new applicants. Of course, all is not dependent on a consular officer: if an application does not receive final security clearances from Washington before the deadline, the consular officer is not authorized to issue the visa.

Some of the most bizarre Lottery-specific denials that we have seen over the years relate to photographs. One would think that if the State Department’s Lottery website accepted a photograph for entry that the photograph met the requirements. Not true, in the opinion of some consular officers. Many have disqualified applicants because the photograph in the DV-entry was not on a neutral background; was partially darkened; was not “recent”; or did not look like the person because they gained a lot of weight. These individuals and their families were refused by a consular officer after 1) the State Department accepted the DV entry; 2) the KCC did not disqualify the entry after selection; and 3) they paid the processing fees, bolstering the coffers of the government by tens of thousands of dollars in visa fees and allowing officers to reallocate the visas to other individuals.

“Pop-up” marriages – marriages after selection, but before the visa interview – are also targeted by consular officers for refusals – often times, justifiably so; other times, not. We previously wrote about the Ukrainian man who died of a stroke the day after being baselessly accused of entering a sham marriage by a consular officer. Another couple was permanently barred from the US for allegedly having a sham marriage; 10 years later, they are still happily married, have two children, but can no longer visit or immigrate to the US.

Other issues that arise at the visa interview include the education or experience credentials of the applicant (e.g., authenticity of the diploma); consular questions about whether the applicant will be able to support his family in the US or will become a public charge; the applicant’s failure to include a spouse or a child on the DV-entry; the presence of a relative in the US illegally; and the accuracy of past visitor visa applications.

For example, if the husband of the selected individual had previously procured a US visa under false pretenses and the consular officer found him to be subject to Section 212(a)(6)(C)(i) for a material misrepresentation, the family can immigrate through the DV program, but he would need to file for a waiver after his wife arrived in the United States. He would then need to have the waiver adjudicated before the end of the DV program for that fiscal year (or immigrate with a waiver based on a family immigration petition).

As one can see, the DV program can be wonderful for the thousands of individuals who win the Lottery and immigrate every year. For those who are selected and do not receive visas, the program can be a living nightmare – one that can haunt for years to come. To minimize your chances of being on the outside looking in, contact us to discuss your situation.

Posted in 212(a)(6)(C), 221(g), Consular Officers, DV-2015, Green Card Lottery, I-601, Immigrant Waiver, Sham Marriage, Visa Denial, Visa Refusal | Comments Off

Alien Smuggling – Hope for the Accused

Consular officers permanently bar more visa applicants every year for “alien smuggling” than any other provision of the Immigration and Nationality Act except misrepresentation. In 2012 alone, consular officers invoked the alien smuggling provision of the INA, Section 212(a)(6)(E), more than 6,000 times, an increase of more than 20% from the year before. What are the standards for a finding of alien smuggling, and what categories of people have been subject to this provision of the INA?

A consular officer can make an alien smuggling finding if he or she decides that a visa applicant has, at any time, knowingly “encouraged, induced, assisted, abetted or aided…” another alien “to enter or try to enter the United States” in violation of law. The Immigration Act of 1990 abolished the “for gain” requirement, so a consular officer does not need to find that the applicant had a profit motive or received money to make this finding.

These findings come up in a variety of scenarios. In the Diversity Lottery context, those who have been selected as “winners” and marry before their immigrant visa interviews are often found to be alien smuggling: entering the marriage in order to smuggle their new spouse into the United States in exchange for money. These “pop-up marriage” cases are subject to rigorous scrutiny, with spouses often subject to separate interviews in separate rooms, with personal questions posed, such as “what side of the bed does your spouse sleep on” and “what kind of toothpaste does she use.” The consulate can send investigators out to the apartment to see if they really are living together.

Other kinds of alien smuggling cases often implicate travel agents or anyone organizing a group tour. If a professor working at a university is responsible for organizing a seminar, and together with his students includes in the group an individual who is not a student, a consular officer could accuse the professor of alien smuggling. Even parents in the process of immigrating could be accused of alien smuggling if they include in their family someone who is not eligible to immigration, for example, a married child under the age of 21.

The good news is that many of these findings are overturned. For example, we have been very successful in getting alien smuggling decisions reversed in Lottery cases mentioned above. Usually, if the marriage is a bona fide one, the couple are able to evidence that the marriage is a legitimate one. This takes time and meticulousness in gathering and presenting this evidence. But if you feel that you have been subject to a wrong accusation of alien smuggling, feel free to contact us to discuss your situation.

Posted in 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Family Immigration, Misrepresentation, Pop-up Marriage, Visa Fraud | Comments Off

No Statute of Limitations on Visa Application Lies

Let’s say you had a run-in with the law a long time ago. As a result, you were convicted of fraud. But it happened so long ago that you do not give much thought to it. So when you applied for a visa a few years back to visit your daughter and her children in the US, you did not indicate the conviction in the visa application form. You received the visa and used it to go to the US several times. You didn’t give much thought to it, until you decided to immigrate with your daughter’s help, and you had to obtain a police certificate. The police certificate indicated the conviction, but you were not worried because you had consulted a lawyer, who told you that although the conviction was for a crime of moral turpitude and did not qualify for the petty offense exception, a waiver was available. Moreover, the lawyer advised that the standard to obtain the waiver under Section 212(h) of the Immigration and Nationality Act was relatively simple to meet: because the crime of moral turpitude took place more than 15 years ago, you only needed to show that you had been rehabilitated, and that you did not pose a threat to the welfare, safety or security of the United States. End of story, right?

Not so fast, says the consular officer. He pulls up from the archive your visitor visa application from several years ago, where you indicated that you did not have a conviction. He shows it to you. You admit that you didn’t fill it in correctly but that under your country’s law, you do not need to indicate convictions more than 10 years old. The consular officer shows indifference to your attempt to justify the omission, saying that you “lied” to obtain a visa. Therefore, he is finding you permanently inadmissible to the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act for committing a willful, material misrepresentation. “OK, I can file for another waiver,” you say.

Not so fast. Unfortunately, there is no immigrant waiver available to parents of US citizens who have been found inadmissible under Section 212(a)(6)(C)(i). Only spouses and children of US citizens or permanent residents are eligible for a waiver under Section 212(i) of the Immigration and Nationality Act, not parents. Thus, such a finding is fatal to the immigration application. You think that instead of immigrating, you can continue to visit your daughter with a B-1/B-2 visitor visa. But the problem is that, while a nonimmigrant waiver is available for a visitor visa, you are unlikely to receive such a waiver because you have expressed an intent to immigrate to the US, i.e., you will not be able to overcome the burden of Section 214(b) to show that your planned visit to the US is temporary.

Of course, one can seek to challenge the consular officer’s finding that the misrepresentation was willful on your part, that you did not intend to mislead anyone. We would be happy to discuss with you such a possibility. But the lesson here is to be honest when applying for any US visa, and if you are unclear about a question on the application form, to consult with a lawyer, not a travel agent or visa consultant. (I wish I had a dollar for every time we have seen travel agents tell someone to lie or give wrong advice.) A consular officer can go back years and years and years to review previous applications – there are no statute of limitations. If you are unsure how you filled in a form, you can request a copy. But before applying to immigrate, you should think about this issue – and the potential lifechanging problems that may arise.

Posted in 212(a)(6)(C), Crime of Moral Turpitude, Immigrant Waiver, Misrepresentation, Nonimmigrant Waiver, Request For Reconsideration, Section 212(h) waiver, Section 212(i) waiver, Visa statute of limitations | Comments Off

Request for Reconsideration of Immigrant Visa Denials

Many immigrant visa applicants are under the mistaken impression that they are not allowed to challenge a negative visa decision by a consular officer. In fact, every applicant for an immigrant visa has a right to submit a Request for Reconsideration of an immigrant visa denial.

While technically this is not an appeal, a Request for Reconsideration does give the applicant the right to submit new evidence or arguments to challenge a visa refusal.   A consular officer must review such a formal Request; this is an obligation, one that the consular officer cannot shirk.  This obligation is set out in the Department of State’s own regulations, and an appeals court recently confirmed that this is the consular officer’s duty, punching a hole in the armor of the consular nonreviewability doctrine.  However, there is a time limit on the submission of the RFR: it must be submitted within one year of the visa denial decision.

In such a Request, the applicant or his lawyer points out the legal or factual mistake made by the consular officer. For example, a consular officer may have decided that a conviction was for a crime of moral turpitude, or that a misrepresentation was “material” and as a result, denied the visa and permanently barred the applicant from the United States.  The refused applicant can request reconsideration, making arguments that the conviction was not for a crime of moral turpitude or that an inaccuracy in his application was not material.  A refused applicant can overcome an accusation that his marriage is a sham by presenting additional evidence that his marriage is a legitimate one.

If you believe that a consular officer’s immigrant visa decision was erroneous, please feel free to contact us.

Posted in Consular Officers, Request For Reconsideration, Visa Denial, Visa Refusal | Comments Off

Russian Visa Applicants Struck by 221(g) Epidemic

Via a Freedom of Information Act (FOIA) request, I was able to obtain visa statistics (221gMoscowstats0001)  for the US Embassy in Moscow.  Russian visa applicants are no exception to the epidemic of 221(g) decisions around the world.  From 2007-2012, the number of Russian B visa applicants at the US Embassy in Moscow subject to 221(g) more than tripled.  Students and employees of US companies also had their applications increasingly scrutinized: the number of students and H applicants subject to delays more than doubled, and the number of L visa applicants encountering 221(g) increased more than eightfold!

The good news is that the overwhelming majority of Russian applicants subject to Section 221(g) receive their visas.  However, the spike in the number of 221(g) delays and bureaucratic hurdles encountered by Russian visa applicants contradicts the public Embassy pronouncements about facilitating travel to the US.   If you are the subject of a substantial 221(g) delay, please contact us.

 

 

Posted in 221(g), US Embassy Moscow, Visa Denial, Visa Refusal, Visa Refusal Rates | Comments Off

US Visa Revocation Campaign Intensifies

The phone calls keep coming in to our office. From Australia, South Africa, India, Saudi Arabia, Mexico, Russia, Lebanon, all from US visa holders who have had their visas revoked without explanation.   It appears that the US government has intensified its visa revocation campaign, particularly against Muslims.

The problems encountered by Muslims in dealing with US immigration authorities was the topic of a recently published ACLU  report about the discriminatory USCIS Controlled Application Review and Resolution Program (“CARRP”). The report highlights how USCIS misidentifies national security concerns; encourages FBI interference and harassment; mandates pretextual denials; and deprives due process of green-card holding applicants, primarily Muslim, during the naturalization process.  These thousands are left in legal limbo for years.

If there is one glimmer of hope, it is that these applicants at least are able to wage their battles while in the US, where lawyers, courts, and public opinion can at least attempt to reign in an out-of-control immigration and law enforcement bureaucracy.  What about the tens of thousands of visa applicants outside the US who are unable to receive new visas after their visas were revoked because, as many claim, they are “AWM” – Applying While Muslim?  Or worse, what about the 55,000 visa applicants from around the world of various ethnicities and religions who have had their visas revoked since 9/11 on grounds unrelated to security?

Many of these applicants who have had their visas revoked have opened and developed successful businesses in the United States; spent years and tens of thousands of dollars pursuing an academic degree; obtained medical treatment in the US; or have close family members in the US. But when they are back in their home countries, attempt to board a flight to the US, or attempt to enter the US at a port of entry, they are informed that their visas have been revoked – without disclosure of a reason.  As a result, they are cut off from their businesses; unable to finish their educations; severed from their medical treatment; or isolated from their families because the Department of State revoked their visas.  In contrast to individuals located in the US, where there are, at least in theory, mechanisms in place to check unbridled arbitrary action, individuals located outside the US, in general, do not have resort to an administrative appeals process or judicial redress.

Just how widespread are these cases?   During the summer, there were reports that the US Embassy in Lebanon revoked up to 3,000 visas of Lebanese citizens.  Consular officials routinely act on “poison pen” letters – from disgruntled ex-spouses, business partners, landlords, and employees – by revoking visas without checking the veracity of the claims contained therein. Visas are revoked not just for legal reasons (real or imagined):  as reported in the Economist, an internal Department of State cable published on Wikileaks shed light on how the DOS uses the prestige of a visa – and its threatened or actual revocation – as leverage to achieve political aims.

We recently wrote about the disconnect between the promises of Obama Administration officials in seeking to attract talented immigrants and the real world decisions adversely impacting US business.  The PR machine of the State Department continues to churn, boasting of its efforts to facilitate travel to the United States; yet it is unswervingly silent in addressing the cases of thousands of Muslims and others the world over who have had their visas revoked or denied for no reason whatsoever.

If you have had your visa revoked, please contact us.  Passively accepting a State Department decision to revoke a visa – and relinquishing your ability to ever visit, work in, or immigrate to the United States – is not an option.

 

 

 

Posted in Consular Officers, Department of Homeland Security, Department of State, Revocation | Comments Off

The 221(g) Epidemic and What You Can Do About It

The statistics are stunning.

Over the past four years, more than four million visa applications have been temporarily denied under Section 221(g) of the Immigration and Nationality Act, that is to say, the Department of State collected tens of millions of dollars from visa applicants, only to put their applications on hold.

Year 221(g) findings in Immigrant Visa Cases 221(g) findings in Nonimmigrant Visa Cases Total
2009 273,227 616,284 889,511
2010 286,889 694,620 981,509
2011 312,968 837,477 1,150,445
2012 303,166 806,773 1,109,939

More stunning is the wait time that thousands of visa applicants are subject to. The US Embassy in London publishes on its website a list of nonimmigrant visa cases subject to 221(g) administrative processing and the intake dates of the applications.  As of October 25, 2013, the list encompasses 141 pages and thousands of applicants.  6 individuals have been waiting for four years for action on their applications.  More than 100 individuals have been waiting more than three years. More than 100 individuals have been waiting more than two years. And while the list includes thousands of cases that have been closed or acted upon, the number of pending cases is astonishing.

The good news is that visa applicants subject to 221(g) do have recourse.  While visa applicants as a general rule are unable to find legal succor in US courts for visa denials, they do have the right to sue US embassies and consulates around the world, as well as the Department of State and Department of Homeland Security, in a US federal district court when no action is taken on a visa application. The US government does not have the right to interminably suspend action on a visa application; it must take a decision. While there is no hard-and-fast rule as to what qualifies as a reasonable timeframe in which the government must make a decision – individual circumstances are important – any B, F, J or immigrant visa applicant whose application has been pending for at least 18 months should consider filing a writ of mandamus lawsuit against the government.  (Because the validity of work visa petitions, such as H-1B and L-1 visas, is limited, a different calculus is appropriate in attacking 221g delays in this context.)

Just the threat of litigation alone may serve as a deterrent to the open-ended visa processing. And if not, then visa applicants should file such lawsuits so that the government will understand that it must act, that it cannot sit on applications, that it cannot engage in perpetual fishing expeditions.  The Departments of State and Homeland Security may not be accountable to visa applicants for delays and inaction, but they are to judges.

 

Posted in 221(g), Consular Officers, Department of Homeland Security, Department of State, writ of mandamus | Comments Off

Bait-and-Switch, Department-of-State-Style

The below article was recently published on the Immigrant Lawyer’s Weekly website – http://discuss.ilw.com/content.php?2398-Article-Bait-and-Switch-Department-of-State-Style-by-Kenneth-White

Yesterday, we wrote about how USCIS holds out the lure of green cards to foreign entrepreneurs, only to pull back the bait once the businessman has committed untold hours and funds to the development of a business in the United States. The Department of State is no slacker in the bait-and-switch game. It has used the Diversity Green Card Lottery as a means to reap a windfall by holding out the lure of green cards to those selected in the Lottery, only to turn away thousands of applicants after they have paid substantial application fees. The US Embassy in Tashkent is an excellent case study.

After the DV Lottery drawing, the selected “winners” submit application forms to the Department of State’s Kentucky Consular Center (“KCC”). The KCC then invites selectees for immigrant visa interviews. At the interview each family member pays $330 in non-refundable fees. For a variety of reasons, the Embassy in Tashkent temporarily refuses 30-40% of all Uzbek DV applicants under Section 221(g) of the Immigration and Nationality Act. But rather than continuing to process many of these applications, it pushes these individuals to the back of an artificially-created queue, so that it can accept new visa fees from new applicants. This results in the Embassy receiving tens of thousands of dollars in visa fees from individuals who do not receive visas and re-allocating visas to other applicants who also pay visa fees. In short, the Embassy has consciously decided to “double dip”.

Part of the problem can be attributed to the rules of the Lottery. Only 50,000 Diversity visas may be issued in a fiscal year and no more than 7% of the visa recipients may be issued to nationals of a single country. However, the Department of State preliminary selects many more than 3,500 Uzbeks entrants and family members. In addition to the quota, there is a time limit, with applicants required to receive visas by September 30 of each year or the selection is nullified. As a result, there is a shortage of visas for Uzbek winners and time limitations.

Because demand greatly exceeds supply, the Embassy in Tashkent ends up earning money on and shattering the dreams of jilted Uzbek applicants. For example, rather than issue a visa to a qualified applicant, the Embassy will temporarily deny the visa, stating it needs to do a check on the applicant’s academic credentials. But rather than do the check in a timely fashion, it will set aside his application and re-allocate his visa to another individual. This contravenes the Department of State’s own regulations requiring a consular officer to finalize the processing of Lottery visas as fast as possible because of the time constraints. [1]

The Embassy’s inefficiency exacerbates the problem. Many posts have in place a dropbox system or courier service in which an applicant can submit a missing document to the consular officer. But Tashkent does not. Rather, it will only allow a person to submit additional documentation, including passports for visa issuance, in person. To do so, the Embassy must schedule an appointment. It does so on a limited basis, further squeezing the bottleneck of time and visas. So if an applicant was able to obtain a missing police certificate a day after his interview, he will be at the mercy of a scheduling officer allowing him to bring in that police certificate to enable processing to be finalized.

“I feel like I’m stuck in a lottery within a lottery,” one applicant who had paid more than $1500 in application fees told me who has been waiting for more than two months for the Embassy to verify the authenticity of his diploma. “Waiting. Wondering whether the US Government will select me again to bring in my passports, whether it is more interested in my money or issuing to me and my family a visa that I qualify for. It all seems like a game. We feel so close to immigrating, but at the same time, so far away.”

The theme of a “lottery within a lottery” is a persistent one when discussing the Embassy in Tashkent. For example, it has issued visas to dozens of applicants with trivial spelling errors or birthdate mistakes in their DV entries, but denied visas to others with similar errors or mistakes. Some speculate that the Embassy denied these applicants to punish them because they used the services of Lottery consultants and to serve as a deterrent to others thinking of using such services. After refusing to discuss the rationale with the author (“Post will not discuss the cases of applicants who have already been issued and whom you do not represent”), the Embassy provided this “explanation”: “The rules for applying for the Diversity Visa, while simple, are strict. In each case, the Consular officer determines the qualifications of the applicant by making an informed decision based upon the information contained in the electronic entry, the applicant’s DS-230 application, and information gained during the interview. An applicant who fails to follow the instructions may be disqualified.”

After months of correspondence and the intervention of the Visa Office, the Embassy has now reconsidered this position, agreeing to re-open such denials. But as one can guess, it has positioned those individuals to the back of the line it created, thus appearing to be “reasonable” and holding out the bait of the green card, knowing full well that the final switch will come on October 1 when there will be no immigrant visas available for these applicants.

And the beat goes on…

 

1See 9 FAM 42.33 N9.2, N10.2, PN6

Postscript – Certain individuals who were denied because of entry inaccuracies were eventually issued visas, on the final days of DV-2013.  However, many of those whose academic credentials were supposed to be verified had the clock run out on them.

Posted in Consular Officers, Department of State, DV-2013, Green Card Lottery, US Embassy Tashkent | Comments Off

Bait-and-Switch, USCIS-Style

The below article by White & Associates was recently published on the Immigrant Lawyer’s Weekly website - http://discuss.ilw.com/content.php?2396-Article-Bait-and-Switch-USCIS-Style-by-Kenneth-White

Bait-and-Switch, USCIS – Style1

by 

Kenneth White

Reader Quiz: What is the difference between these two regulations?

Executive capacity means an assignment within an organization in which the employee primarily: ( ) Directs the management of the organization or a major component or function of the organization; ( ) Establishes the goals and policies of the organization, component, or function; ( ) Exercises wide latitude in discretionary decision-making; and ( ) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Executive capacity means an assignment within an organization in which the employee primarily: (A) Directs the management of the organization or a major component or function of the organization; (B) Establishes the goals and policies of the organization, component, or function; (C) Exercises wide latitude in discretionary decision-making; and (D) Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization.

Answer: 2-3 Years and a Lifetime. You see, the former is the regulation which governs how USCIS decides whether or not to approve an executive’s L-1A status for three years or, in the case of an extension of a new office petition, prolong his L-1A status for two years. 8 C.F.R. § 214.2(l)(1)(ii)(C). The latter is the regulation which governs whether or not the executive will be granted permanent residency status pursuant to the EB-1-3 category. 8 C.F.R. § 204.5(j)(2). The statute defining executive capacity for the granting of L-1A status and EB-1-3 immigration, INA Section 101(a)(44)(B), is identical. Other than the numbers and letters, you don’t see a difference? Neither do I.

But USCIS does. For the former, USCIS is relatively flexible in authorizing three-year L-1A status or extending for two years the L-1A status of individuals acting in an executive capacity. For the latter, however, USCIS moves the goal posts – subjecting the company-petitioners and the individual beneficiaries filing for a green card to heightened scrutiny and grafting additional unwritten requirements on to be considered an executive. This is not an anomaly. In fact, USCIS recognizes that “many” I-140 immigrant petitions are denied after L-1 approvals.2

How does USCIS justify this disparate treatment? Simple. It states that examiners spend more time on immigrant petitions and so are able to delve into more detail than examiners on L-1 petitions.3 It says that the stakes are higher for immigrant petitions and that heightened scrutiny is justified;4 it treats the green card as a Holy Grail, reserved for the truly worthy who will have the ability to naturalize. Each petition is a “separate record of proceeding with a separate burden of proof” and “must stand on its own merits.”5 Finally, USCIS asserts that it is not bound by “errors” made by L-1A examiners, that it would be “absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent.”6

To illustrate, take the case of Andrey, the head of a successful travel agency. After operating his own tour enterprise and travel agency in Russia for more than a decade, he set out to establish a similar business in the US. His US company filed a new office L-1A petition on his behalf so that he could work as the CEO. The petition was approved, and he received a one-year L-1 visa. Over the course of the year, he developed his business in the United States, managing to reach sales of $1 million, turning a profit, and hiring 5 Americans.

His company then filed an L-1A extension petition. USCIS approved that petition, i.e., it deemed Andrey to be working as an executive and that he would continue to act in an executive capacity. A month later, the company filed an almost identical package of documents in support of its petition for Andrey’s green card. This time, USCIS resisted, first sending out a burdensome Request for Evidence questioning whether Alex was indeed working as an executive. After submitting a voluminous response addressing each of the points raised, USCIS denied the petition, stating that he is not working as an executive and will not be working as an executive. Implicit in the decision – heading up a 6-person company does not suffice to qualify as an executive.

Andrey’s company filed an appeal. But rather than finding legal succor, it found an echo chamber: the Administrative Appeals Office repeated the assertions of the Service Center, namely, that it is not bound by the “mistake” of an L-1 examiner. Later that year, not surprisingly, his company’s L-1A extension petition on his behalf was approved again for another two years.

This beat has been going on for years. In 2012 alone, the author found numerous AAO decisions in which the beneficiary was in the US in L-1A status, only to have his or her I-140 green card petition denied on executive or managerial capacity grounds. Even before reaching the AAO, the USCIS has planted the poison seed for inconsistent decisions by mandating that companies file L-1 and immigrant petitions at different Service Centers with different examiners: L-1s at the California and Vermont Service Centers, immigrant petitions with the Texas and Nebraska Service Centers.

Contrast the above with the public pronouncements made by USCIS: how it welcomes entrepreneurs to the US, how it established an entrepreneur-in-residence program, that small business makes up the backbone of American economy. .. Just recently, in the EB-5 context, USCIS espoused the importance of deference to previous agency determinations. Such a policy of deference to previous decisions “ensures predictability” for business, “and also conserves scarce agency resources, which should not ordinarily be used to duplicate previous adjudicative efforts.”7

Where does the truth lie – in the press releases and announcements of USCIS, or in the real world Service Center and AAO denial decisions which adversely impact talented entrepreneurs, their companies, employees, and customers?

The irony is that many of these entrepreneurs came to America in search of predictability, rule of law, and stability, attributes often absent in the business landscapes of their own countries. Yet after investing hundreds of thousands of dollars, hiring American workers, providing needed services and innovation, and toiling to grow their businesses, they encounter the whims and uncertainty of an immigration bureaucracy hellbent on interpreting a single statute and identical regulations in different ways. The image of Lucy pulling the football from a foolhardy Charlie Brown trying to kick it comes to mind, with USCIS encouraging businessmen to invest and luring them with the prospect of a green card, only to snatch it away from them at the last minute. When will USCIS action match its words? When will it cease the intellectual dishonesty underpinning the adverse decisions in EB-1-3 petitions?

[1] This article is the first in a two-part series on how immigration agencies play a game of bait-and-switch with potential immigrants. Tomorrow we will publish an article entitled “Bait-and-Switch, Department of State-Style”

[2] August 15, 2012 Decision of AAO, p. 6 - http://www.uscis.gov/err/B4%20-%20Mu…12_02B4203.pdf

[3] “Because USCIS spends less time reviewing I-129 nonimmigrant petitions than I-140 immigrant petitions, some nonimmigrant L-1A petitions are simply approved in error.” Id. at p.7.

[4] E.g., “Examining the consequences of an approved petition, there is a significant difference between a nonimmigrant L-1A visa classification, which allows an alien to enter the United States temporarily, and an immigrant E-13 visa petition, which permits an alien to apply for permanent residence in the United States and, if granted, ultimately apply for naturalization as a United States citizen.” Id.

[5] February 9, 2012 Decision of AAO, p. 5 - http://www.uscis.gov/err/B4%20-%20Mu…12_03B4203.pdf

[6] Id. pp. 5-6

[7] May 30, 2013 Memorandum on EB-5 Adjudications Policy, p. 23

 

 

Posted in Administrative Appeals Office USCIS, Business Immigration, DV-2015, USCIS | Comments Off

Summer Work and Travel Program Scandal at Embassy in Moscow – Memo of White & Associates to Office of Inspector General

Attached are our memorandum and exhibits addressed to the Office of Inspector General at the Department of State regarding the Summer Work and Travel Program scandal at the US Embassy in Moscow:  Memo - swtletter0001; Exhibits - swtexhibits0001

Posted in 214(b), Consular Officers, Department of State, Office of Inspector General Department of State, Summer Work and Travel, US Embassy Moscow | Comments Off