Employment related Immigration cases

L-1 Specialized knowledge

Administrative Appeals Office overturns California Service Center decision.  Held: Specialized knowledge was a requirement for the position.  Beneficiary has that qualification for the position is fulfilled by showing that he holds a "unique combination of experience and knowledge" in petitioner's proprietary technology not available in the United States.  

The controlling regulation 8 C.F.R. 214.2(l)(1)(ii)(D) does not require that the beneficiary must be he one to have developed this product or technology.  L1 worker only must establish that he possess "special knowledge in the company's product and its application in the international market" or has "advanced level of knowledge or expertise" in the company's "process and prcedures."  WAC1014051163.

PERM: BALCA says University/ college professors do not just teach.

University profesors perform teaching functions even if work does not nvolve teaching, advising the students and evaluating their work in a classroom.  In the absence of defined requirements for teaching BALCA considered that in addition to offering instructions to students, most professors perform research and community service as part of their teaching job. 

Instructional coordinator in Library Science would be eligible for permanent employment certification as college or university teacher.

H1B worker can't be removed

Badrawi v. U.S, 07-cv-01074-JCH, filed 4/12/11

The Federal Dist. Ct. Connecticut held that when an H1B worker filed a timely extension petition he is not removable upon expiry of his lawful stay.

The Court held that under the Federal Regulations such worker is employment authorized for 240 days from the date of expiry of his status.  Fairnes and due process required that the foreign nationals stay within U.S. be considered authorized by the regulations. 

PERM filing Delay

Matter of Il Cortile Restaurant, decided on October 12, 2010

Business days are redefined by the Board of Alien Labor Certification (BALCA) as inclusive of the weekends and holidays if employees work on those days.  Delay in filing Labor Certification for this reason should not result in denial.

U.S. vs. Arizona

Federal agency Department of State sued the State of Arizona seeking to stop the State from enforcing its new immigration enforcement law which enables a police officer to ask for proof of lawful residence in the United States if the officer had a reasonable suspicion that the person is illegally present in the country and arrest for failing to provide the document.

The Federal court stopped the crucial parts of the state legislation from taking effect.  The case is pending at the federal Supreme Court.  Justice Kagan recused herself from the case.  This leaves an even number of judges to decide the case.  If the judges at the Apex court couldn't reach a majority decision i.e. remain equally divided on deciding whether the Arizona law is bad, the State law would be enforceable.  (Posted 1/4/11)

Note: More States are willing to follow Arizona type state legislation.

H-1B Employment Conditions Violation - Settlement Agreement

Employer consented to settle the issue in NJ company, Peri Software Solutions Inc. with the Wage and Hour Division of U.S. Department of Labor.  The employer admitted that it had violated Code Federal Regulation provisions by not paying the H1B workers their required prevailing wages and by demanding that the H1B employee pay penalty for employment termination. 

Back wages and civil penalties were awarded in the matter.

Benching: Employer to pay Backwages to the H-1B Worker

Wage and Hour division vs. Itek Consulting, Inc., 2008-LCA-00046, decided May 6, 2009.

         In an impermissible benching claim the Administrative Law Judge holds that employer is liable to pay back wages where employee was not offered work on the day he reported for not having the social security number and did not report to office thereafter.  An employer is required to pay the LCA wages from the date the H-1b enters into employment and is liable to pay backwages if the failure to offer employment was due to an employment related reason and not due to the failure of the H-1B worker. 

         Instances where the nonproductive employment is due to reasons not related to employement: where the employee's inability to work is because employee is visiting places or pregnant or incapacitated due to accident.

         Employers must cooperate with the investigator who may assess penalties for failure to cooperate.  Read more ...

Delay in bringing an impermissible Benching claim

Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-39 (ARB Mar. 30, 2007)

         Benching is a continuing violation says the Administrative Review board and held that the limitation period for benching starts on the latest date on which the employer fails to perform an action or fulfill a condition. 

        Actions for impermissible benching could be brought against the employer within 12 months from the time the employment relationship terminates.

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Court to hear constitutional claim for visa denial

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4/11/11 -  9th Circuit upholds Federal Court's ban on enforcement of parts of Arizona Law in U.S. v. Arizona.



State Legislations of Immigration:

Villas at Parkside V. City of Farmers Branch, Texas; decided 3/24/2010

    A City Ordinance that attempted to prohibit residential lease to undocumented foreign nationals was held invalid by the Northern District Court of Texas.

    The Supremacy Clause of the U.S. Constitution prohibits legislation by states or other agencies in the areas occupied by the Congress.  Only the Congress has authority to legislate over immigration.  The court held that the Ordinance created a new immigration classification impermissible under the Supremacy Clause. 

    Although the state laws prohibiting employment or grant of public benefits to illegal foreign nationals were upheld as promoting federal immigration laws, the Court held that the City Ordinance did not promote immigration laws in similar ways.  Instead, it was an invalid regulation of Immigration.





Family Immigration

K Visa Class Action

Filed on 6/24/10.  Demands implementation of the Ombudsman recommendation and in essence requires the Department of State to issue decision on the issuance of fiance visa within a reasonable period of time, to notify the petitioner that the petition is likely to be returned, offer an opportunity to rebut and give reason why the petition was returned to the USCIS.  

Automatic citizenship is not available to step-child

Matter of Andres Guzman-Gomaz, 24 I&N Dec. 824 (BIA 2009) 

        A step child acquiring permanent residence through the step parent does not automatically derive U.S. citizenship holds BIA. 

        The Board finding in this regard quotes legislative history of the Congress.  Although a step child is included within in the definition of "child" for most immigration benefits, the BIA holds that it is not so for the Naturalization.

Affidavit of Support obligation

Younis vs. Farooqi, 1:07-cv-01393-CCB (Dist. Ct Maryland 2009)

(Dist. Ct. Maryland 2009)

        A Petitioner/ sponsor spouse is required to maintain the foreign national beneficiary spouse at the 125% of federal poverty guidelines.  This obligation becomes a contractual duty under the Affidavit of Support which is a contract between the government and the sponsoring spouse and is not absolved by divorce. 

      A petitioner sponsoring his/her foreign national spouse is obligated to maintain the foreign national above poverty level as mentioned above even after divorce until the obligation legally expires.

       The obligation to maintain the ex-spouse above poverty level may not be reduced by the amount of child support.

Access the full decision here.

Widow Penalty

Texas and Maryland Federal courts strike down the rule. Read more . . .

Lockhart v Napolitano, U.S. Court of Appeals, 6th Cir., decided 7/20/09

        The sixth court held that "the surviving alien-spouse is a spouse" and eligible to pursue adjustment of status application pursuant to the petition filed by the deceased citizen-spouse.

Deferral against deportation

       Removal proceedings against the surviving spouse and eligible children of the U.S. citizens would be suspended using prosecutorial discretion. 

Director Napolitano announced a chage of policy on June 9th, 2009 that directs USCIS to suspend re/adjudication of surviving spouses' petitions based solely on the death of their U.S. citizen spouse.  The surviving spouse of the deceased U.S. citizen and their unmarried and under 18 yr old children are granted deferred action for two years.

The government release also notes that the Congress should change the legal definition of "immediate relatives," to include surviving spouse.

Taing v Napolitano, U.S. Court of Appeals, 1st Cir., decided 5/20/09  

        The First Circuit Court of Appeal strikes down the widow penalty.  Following the Sixth and the Ninth Circuit Courts of Appeal, the First Circuit upholds the surviving spouse's claim to permanent residence based on a spousal petition filed by the U.S. citizen husband who died shortly thereafter.  The Court maintains that a spouse does not lose her spousal status with the death of her husband and that the I-130 petition can not be automatically revoked if the petitioning spouse dies.

        The Sixth and the Ninth Circuits have earlier upheld the surviving spouse's claim to permanent residence.  But the third Circuit holds a different opinion in the following case:

Robinson vs. Nepolitano, U.S. Court of Appeals, 3rd Cir., decided 2/2/09

        The U.S. Courts of appeal, 3rd Circuit, overturns the New Jersey federal district court and held that the surviving spouse is no longer an immediate relative if the U.S. citizen spouse dies within two years of marriage and therefore could not claim the immigration benefit based on marriage that was dissolved by death of the spouse.

        The immigration law requires a foreign national spouse to be married to the US citizen for two years to be eligible for immigration benefits as a spouse.  

        The couple were married in February 2003 and the U.S. citizen husband died in a ferry accident near New York in October 2003 as they were awaiting processing of the wife's immigrant petition and adjustment of status application.

         The rule was intended to control sham marriages entered by the parties solely to profit from conferring immigration eligibility.  However, the bonafide marriage partners are sometimes caught in the trap when one of the partner is lost to death within two years of marriage. 

Comment: Until the error is fixed by the Congress, the parties must seek the intervention of the courts and this federal appeals court has decided to confirm the USCIS interpretation of the Law. 



BIA on Travel

A trip abroad on Advance Parole alone does not make the foreign national inadmissible.

Haiti: Temporary Protected Status

Haitians, present in U.S. when Haiti was struck by the devastating earthquake in Jnauary 2010, can now apply for temporary protected status. 

Removal/ Deportation

BIA on travel with Advance Parole

The Arrabally case, 25 I&N Dec. 775 (BIA 2012)

Trip abroad upon grant of Advance parole by itself does not render the foreign national inadmissible that the adjustment of status should not be denied on this basis.  This case was decided on August 16, 2012.

ID Theft: Supreme Court

Flores-Figueroa v. U.S., 08-108, decided May 4, 2009

A federal statute prohibiting "aggravated identity theft" requires "proof of knowledge" that the identification information used by the offender was not just fake but in fact belonged to another person.  18 U.S.C. section 1028A(a)(1) 

       The 9th circuit vacated and dismissed on October 20, 2008, its earlier order that held that a foreign national who gains entry into the U.S. by misrepresentation is ineligible for adjustment of status because the person was not admitted. 

        The published opinion in the case earlier reported in 521 F.3d 1068 (9th Cir. 2008) stands vacated following a joint motion.

Fraudulent entry

Orozco vs. Mukasey. 

        The 9th circuit vacated and dismissed on October 20, 2008, its earlier order that held that a foreign national who gains entry into the U.S. by misrepresentation is ineligible for adjustment of status because the person was not admitted. 

        The published opinion in the case earlier reported in 521 F.3d 1068 (9th Cir. 2008) stands vacated following a joint motion.

Statements elicited at the Port of Entry can be used at the removal proceedings 

Montoya and Montoya Vs. Mukasey, 2nd Cir., August 2008.

       The federal court of appeal, second circuit, holds that questioning of the foreign nationals at the port of entry is not a seizure. 

        Although the foreign nationals arrived by the airplane and could not have left the country without proper arrangements nor were they allowed to cross the entry point and enter the U.S. without satisfactorily answering officer's questions because the officer was standing in front of them, the Circuit court held that such questioning was not seizure under the Fourth Amendment of the U.S. Constitution. 

        The Fourth Amendment prevents use of statements against the person making them if the statement was obtained during an unreasonable stop.  On appeal, the petitioners argued that their statements should be suppressed because it was obtained following an eggregious stop based solely on their race and nationality.

The Court said that there was no use of force or threat of force nor did the officials assert their authority and held that since there was no seizure, the statements obtained at the port of entry were admissible in the removal proceedings.

Attorney General revokes the prior AG's opinion in the "Matter of Compean"

Matter of Compean, 24 I&N Dec. 710 (AG 2009) (reposted 6/9/09)

The former Attorney General overruled the 1988 Board of Immigration Appeal's (BIA) decision in the case "Matter of Lozada" case and held that the foreign nationals in removal proceedings do not have the "Fifth Amendment" due process right to reopen the case for deficient performance of counsel.  The opinion stated that it is a privilege but not a right and an immigration judge or the BIA could have used its discretion to grant the request to reopen proceedings for ineffective assistance of counsel.

With the revocation of "Compean" the removal proceedings would follow procedures in existence before "Compean" and the decision in "Lozada" revives and so does the right to plead ineffective assistance of counsel for those facing removal proceedings.  The Deparment of Justice seeks to bring into effect new regulations governing "ineffective assistance of counsel."

Comment: The new Attorney General, Eric Holder had earlier stated that he would reexamine the above decision.  In a written statement to the Senate Judiciary Commettee, the Attorney General had reiterated that the Constitution guarantees fundamental fairness to all in the deportation proceedings implying that expediting the immigration court prooceedings is no justification to compromise the constitutional right.