We just got an approved I-140 for an Outstanding Researcher approved without any Request for Evidence (RFE) or Notice of Intent to Deny (NOID), which are fairly standard tools of USCIS in most researcher cases. Particularly when you file paying for Premium Processing, USCIS issues RFEs in most cases (at least according to anecdotal evidence), probably due to the quick turn-around required (15-business days). Years ago, I heard an attorney describe how they try to overwhelm USCIS with huge researcher filings, sometimes 1,000 pages or more of materials. I remember thinking that was a bad idea back then, and over the years, this has been proved to be the case.
The argument for over-inclusiveness comes from the standards involved - they have to show that they are recognized internationally as outstanding in the academic field specified, by submitting evidence of at least two of the following categories:
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.
They also have to submit evidence that the alien has at least three years of experience in teaching and/or research in the academic field. See 8 CFR 204.5(i).
What we try to do is to focus the material presented to only those that will highlight the importance of the researcher’s work, and the most important parts of their publications/citations - the categories above that they will actually be able to prove instead of trying to argue for each of them. By focusing the recommendation letters, employer letter, and our cover letter, as well as providing a detailed index, we can help the officer see why the case should be approved, instead of just overwhelming them with materials that make it harder for them to figure that out. The downside to be being focused and concise is that it takes longer. As Mark Twain once said: “I didn't have time to write a short letter, so I wrote a long one instead.” It may take longer, but it’s worth it to make the case tighter and clearer for the adjudicator.
By deciding to prioritize every single case, and refuing to grant prosecutorial discretion to anyone anymore, including those with no criminal history, family ties, and lengthy stays in the US, the Department of Homeland Security has essentially decided to not prioritize any cases resulting in huge backlogs. The Immigration Court backlog has grown to almost 600,000 cases, jumping up 100,000 in the last year. We had a number of trials scheduled for June and July this year, and so far almost all of them have been put off months or years due to the changes in DHS priorities. What that means is that cases are going to take years to get to trial. However, the Board of Immigration Appeals (BIA) has sped up its processing of appeals. We have received several single-member appeal decisions recently that took only 6 months or so to be decided, where in the past we have had appeals generally take a year or more, and some as many as 4 years to be decided.
Cancellation of Removal is a form of relief from deportation that requires someone to be in the US for 10 years before they are put in proceedings, and who have US citizen of Lawful Permanent Resident (green card holders) parents, spouse or children, who would suffer serious hardship - and you have no disqualifying criminal conviction (drugs, domestic violence, theft/fraud). Cancellation of Removal is very difficult to win for a lot of reasons, and another complicating factor is that only 10,000 cases can be granted each year, so we often see 1-2 year waits after trial before we get decisions in those cases where applicants are minimally qualified at least. Just in the last couple of weeks, new numbers have been released and so we have received a number of decisions in these cases, including two victories so far: based on hardship to a man’s elderly mother, and another to a father’s two US citizen girls. Congratulations to them both!
The Administration believes it can stem the tide of refugees coming from Central America by deporting those who have arrived in the last couple of years - but that only makes sense if those seeking refuge know about the deportations, and that such fear of deportation is more powerful than the fear causing them to leave.
The Administration apparently believes that those fleeing don’t have genuine fears either because some are denied asylum, or because of what they are hearing from the Customs and Border Patrol agents who do initial screening of those they apprehend. This Vox article gets it exactly right: “But there's a reason that Border Patrol agents aren't in charge of evaluating asylum claims; they can be too dismissive of legitimate danger.”
In fact, we repeatedly see people who have CBP forms completed in English where they allegedly said they had no fear of returning to their home country, but instead were coming to find work. These are forms signed by the refugee, but they claim the form and answers was not translated to them, they were told to sign it so they could be released to family. If that is what is happening, CBPs information can not be trusted.
The Administration is treating Central American refugees differently than those from other countries, it could be because this is the most immediate crisis on our borders, or it could be a continuation of the Administration’s high enforcement levels which resulted in Obama being called the Deporter in Chief. In any event, the people I am seeing in my office are young, generally single mothers and small children, who were fleeing domestic violence, drug and/or gang related violence, and sometimes religious persecution. While not all will ultimately win asylum, they certainly have legitimate fears of return and would not likely have been deterred from making an expensive and dangerous journey to this Country simply because some people had been deported before, which - after all - this Administration has been doing in a high volume for many years.
Political Asylum generally requires someone to show that they suffered past persecution on one of the enumerated grounds (race, religion, national origin, political opinion, or membership in a particular social group), or that they will be harmed on account of one of those grounds in the future. Sometimes, they can show they suffered past persecution, but conditions have changed in some regard rendering their future harm unlikely on the same ground that they were harmed in the past. As an alternative, they can argue that they will suffer "other serious harm" if they have to go back, even if that harm is not on account of one of the enumerated grounds. See 8 CFR 1208.13(b)(1)(iii). In a case we won today, we were able to argue that a Honduran woman, small business owner, would face other serious harm in the form of serious violence against women in that country, as well as gang violence related to extortion attempts against small business owners. Even though the Judge wouldn't have been willing to argue either of those groups fall under the enumerated grounds, he did find that the likeihood of her suffering this other serious harm was so great that she should be granted asylum under this alternative regulation. The Board of Immigration Appeals issued a decision which holds that judges can look to the general conditions of the country that "could severely affect the applicant, such as civil strife and extreme economic deprivation," and can also look to the "potential for new physical or psychological harm that the applicant might suffer." Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). This fairly open-ended inquiry is a great reprieve for those who have suffered past persecution, but for one reason or another may not be eligible for asylum otherwise.
While we generally post about cases to our Facebook and Twitter accounts, I felt a new blog post was in order as we have updated our website, and make a number of changes that will hopfully make getting information about the firm easier, as well as making it easier to find and contact us online.
Since the last blog post, I have begun co-teaching an Immigration Law class at my alma mater, the University of Missouri - Kansas City, School of Law. I am teaching this year and next with my immigration law professor, Jim Austin. After next year, I will take it over on my own and work to continue the great tradition of Howard Eisberg and Jim Austin at UMKC.
Additionally, we continue to see a lot of children coming through in removal (deportation) proceedings. So far, we have had a lot of success with both asylum for unaccompanied minors as well as the Special Immigration Juvenile Visa, which requires us to pair with a family-law attorney to get a guardianship or similar family-court order for the children. While these two programs will not help every child in removal proceedings, we have seen quite a few already filing for their permanent residence on account of one or both of these programs.
We have had a number of other recent victories in immigration court, including: asylum for a family of converts to Christianity from Egypt, and victims of domestic violence from Central America; a long-time permanent resident (green card holder) who had a recent criminal issue after many years without any; and quite a few cases which were administratively closed - effectively stopping the removal proceedings and allowing those who are not enforcement priorities to remain in the country with their families and with work authortization.
We continue to see a great deal of success in our many motions to reopen removal proceedings where someone failed to appear in court, received ineffective assistance of counsel, or otherwise did not get their day in court.
On the business side of things, we just won an appeal of a wrongfully denied labor certification (PERM) case, which was heartening in part because of how quickly it was decided. Sometimes those cases are sent through the full Department of Labor appeal process which can take more than year to decide. This case, however, was quickly redecided without having to go through the whole process. We also won a religious worker visa for a local Somali religious facility which desperatly needs teachers for their students.