As of July 2015, backlog of pending immigration cases in all Immigration Courts: see here. 


Average wait for an individual hearing in Immigration Courts in USA: see here.  


To see denial and approval rate by specific immigration judge, select an individual judge's name here.

On August 17 2015, USCIS published L-1B adjudications policy memorandum. New memo provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess "specialized knowledge" from their foreign operations to their operations in the United States. 

New memo provides consolidated guidance on the L-1B program, superseding and rescinding all prior L-1B memoranda. This memo applies only to L-1B visas/employees with specialized knowledge (not L-1A visas).

"Preponderance of the Evidence" Standard of Proof: a petitioner seeking approval of the L-1B visa, must establish that they meets each eligibility requirement of the L-1B classification by preponderance of evidence. This standard of proof is lower than that of "clear and convincing evidence" or "beyond a reasonable doubt" standards. 

Elements of the L-1B Classification:

In order to establish eligibility for approval, the L-1B petitioner must show: 
(1) that the beneficiary possesses “specialized knowledge”; 
(2) that the position offered involves the “specialized knowledge” held by the beneficiary; and 
(3) that the beneficiary has at least one continuous year of employment abroad in a managerial, executive, or specialized knowledge capacity with the petitioning employer and/or any qualifying organization (collectively referred to as the “petitioning organization”) within the preceding 3 years. 

If the beneficiary will be located primarily at the workplace of an unaffiliated company, the petitioner also must establish that the beneficiary is eligible for L-1B classification under the requirements of the L-1 Visa Reform Act, discussed below in section VI.

The new memo provides definition of "specialized knowledge".

A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: 
(1) a “special” knowledge of the company product and its application in international markets; or 
(2) an “advanced” level of knowledge of the processes and procedures of the company. 
INA 214(c)(2)(B). 

The corresponding regulation similarly defines specialized knowledge in terms of “special” or “advanced” knowledge:
[S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.
8 CFR 214.2(l)(1)(ii)(D).

Other important things to keep in mind:
>>Specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. 
>>Specialized knowledge need not be proprietary or unique to the petitioning organization. 
>>The L-1B classification does not involve a test of the U.S. labor market.
>>Specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.

The memo notes the following "non-exhaustive" list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:

• The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization's U.S. operations.
• The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer's productivity, competitiveness, image, or financial position.
• The beneficiary's claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization.
• The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
• The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization.
• The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization's competitiveness in the marketplace.

Other evidence that a petitioner may submit to demonstrate that an individual’s knowledge is special or advanced, includes, but is not limited to:
• Documentation of training, work experience, or education establishing the number of years the individual has been using or developing the claimed specialized knowledge as an employee of the petitioning organization or in the industry;
• Evidence of the impact, if any, the transfer of the individual would have on the petitioning organization’s U.S. operations;
• Evidence that the alien is qualified to contribute significantly to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the petitioning organization’s U.S. operations;
• Contracts, statements of work, or other documentation that shows that the beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace;
• Evidence, such as correspondence or reports, establishing that the beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the petitioning organization’s productivity, competitiveness, image, or financial position;
• Personnel or in-house training records that establish that the beneficiary’s claimed specialized knowledge normally can be gained only through prior experience or training with the petitioning organization;
• Curricula and training manuals for internal training courses, financial documents, or other evidence that may demonstrate that the beneficiary possesses knowledge of a product or process that cannot be transferred or taught to another individual without significant economic cost or inconvenience;
*Evidence of patents, trademarks, licenses, or contracts awarded to the petitioning organization based on the beneficiary’s work, or similar evidence that the beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily proprietary or unique to the petitioning organization; and
• Payroll documents, federal or state wage statements, documentation of other forms of compensation, resumes, organizational charts, or similar evidence documenting the positions held and the compensation provided to the beneficiary and parallel employees in the petitioning organization.

A petitioner may submit any other evidence it chooses. In all cases, USCIS will review the entire record to determine whether the petitioner has established by a preponderance of the evidence that the beneficiary has specialized knowledge under the totality of the circumstances. Merely stating that a beneficiary’s knowledge is somehow different from others or greatly developed does not, in and of itself, establish that he or she possesses specialized knowledge. Ultimately, it is the weight and type of evidence that establishes whether the beneficiary possesses specialized knowledge.

USCIS can issue a RFE (Request for Evidence) for various reasons to I-129 Petitioner. Denial rate is high, RFE rate is even higher for L-1B petition. The new memo is intended to help to solve many difficulties with obtaining a L-1B visa for qualifying applicants.

See August 17, 2015 memo at http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2015/L-1B_Memorandum_8_14_15_draft_for_FINAL_4pmAPPROVED.pdf

In Russian: 

Российская газета "Новые Известия" опубликовала дельную статью про опасность "бесплатных юридических консультаций". Журналисты проинтервьюировали некоторых моих московских партнеров и коллег. 

Как известно, бесплатный сыр бывает только в мышеловке. Ты получаешь то, за что заплатил.

Хороший компетентный и этический адвокат НЕ будет предоставлять консультацию (давать юридический совет) бесплатно. В оказании юридических услуг самое главное - это получить правильный совет и знать что делать и как поступить.  

Среди "юридических фирм" и "иммиграционных консультантов" попадается немало мошенников или недобросовестных и малограмотных "специалистов". Особенно много вебсайтов на интернете, которые в поисковике выходят в самом начале как реклама (так как вебсайт платит за такое выгодное размещение) и нелицензированных "иммиграционных консультантов" или "нотариусов", которые предлагают "первую" консультацию бесплатно и готовы перезвонить потенциальному клиенту в течение 5 минут. Что следует дальше, об этом люди не задумываются. А им навязывается контракт на завышенную сумму, с ненужными сервисами или предлагаются ненужные или вредные для дела действия (которые дорого стоят). После предоставления бесплатной консультации, такому специалисту ведь нужно как-то заработать на клиенте (на которого было потрачено время) -- если уж не брать оплату за консультацию, то ее используют как ловушку для доверчивых граждан, готовых повестись на обман.

Следует иметь в виду, что хороший опытный адвокат не будет и не имеет права давать "гарантии" успеха или гарантии выигрыша вашего дела. Опытный адвокат ценит свое и ваше время, и для того, чтобы проконсультировать клиента ей/ему нужно изучить ваши обстоятельства и проанализировать возможные варианты и осложнения перед тем как давать платный (ни в коем случае не бесплатный совет). 

Хорошая статья обо всем этом в Новых Известиях, с консультациями моих Московских партнеров и коллег.

On November 20, 2014, the President announced a series of executive actions. However, not all of these initiatives have been implemented, and USCIS is not accepting any DAPA or expanded DACA applications at this time. 

Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam. 

If you need legal advice on immigration matters, make sure that the person you rely on is an attorney who is authorized to give you legal advice. Only an attorney or an accredited representative working for a Board of Immigration Appeals-recognized organization can give you legal advice. An immigration attorney can be licensed in any state because immigration law is federal law. It's important to consult an experienced and knowledgeable attorney before submitting any immigration applications.

The Internet, newspapers, radio, community bulletin boards and local businesses storefronts are filled with advertisements offering immigration help. Not all of this information is from attorneys and accredited representatives. There is a lot of information that comes from organizations and individuals who are not authorized to give you legal advice, such as “notarios” and other unauthorized representatives. The wrong help can hurt. Here is some important information that can help you avoid common immigration scams.

Here are some examples of common immigration scams:

**Telephone Scams**.

Do not fall victim to telephone scammers posing as USCIS personnel or other government officials. In most instances, scammers will:

• request personal information (Social Security number, Passport number, or A-number);
• identify false problems with your immigration record; and
• ask for payment to correct the records.

If a scammer calls you, say “No, thank you” and hang up. These phone calls are being made by immigration scammers attempting to take your money and your credit card information. USCIS will not call you to ask for any form of payment over the phone. Don’t give payment over the phone to anyone who claims to be a USCIS official.

If you have been a victim of this telephone scam, please report it to the Federal Trade Commission (FTC). Learn more about telephone scams and telephone scammers’ techniques by visiting Federal Trade Commission-Telemarketing-Scams. 

**"Notario Publico"**.

In many Latin American countries, the term “notario publico” (for “notary public”) stands for something very different than what it means in the United States. In many Spanish-speaking nations, “notarios” are powerful attorneys with special legal credentials. In the U.S., however, notary publics are people appointed by state governments to witness the signing of important documents and administer oaths. "Notarios publico,” are not authorized to provide you with any legal services related to immigration.

Please see the National Notary Association website "What is a Notary Public" for more information.

**Local Businesses who are not law firms and not attorneys or lawyers**.

Some businesses in your community “guarantee” they can get you benefits such as a:

• Visa
• Green Card
• Employment Authorization Document

These businesses sometimes charge you a higher fee to file the application than even a licensed attorney (but will tell you that attorneys charge more "for the same work"). They claim they can do this faster than if you applied directly with USCIS. These claims are false. 

**Dot-com websites - operated by non-attorneys or people not authorized to give legal advice**.

Some websites offering step-by-step guidance on completing a USCIS application or petition will claim to be affiliated with USCIS. Many of these websites are scammers or fraudsters, often taking money for blank forms or minimal assistance without attorney supervision.

USCIS has its own official website: www.uscis.gov with:

• Free downloadable forms
• Form Instructions
• Information on filing fees and processing times

Do not pay for blank USCIS forms either in person or over the Internet. You can download forms for free at www.uscis.gov.

Do not pay to a non-attorney (not a lawyer) for help with immigration paperwork, applications, affidavit. Oftentimes, they give you wrong advice and can potentially damage your chances of ever becoming a permanent resident (getting a green card).

**Green Card Lottery or DV Lottery scams**.

Once a year in fall, the Department of State (DOS) makes 50,000 diversity visas (DVs) available via random selection to persons meeting strict eligibility requirements and who come from countries with low rates of immigration to the United States. During this time or often around the year, it is common for immigration scammers to advertise in emails or websites that reference either the:

• DV lottery
• Visa lottery
• Green Card lottery

These emails and websites often claim that they can make it easier to enter the annual Diversity Immigrant Visa Program. Some scammers even identify you as a DV lottery “winner” and ask for significant amount of money "helping get a visa". These emails and websites are fraudulent. 

The only way to apply for the DV lottery is through an official government application process (Department of State website, and only when it's open, during an application period which is usually in October-November only). DOS does not send emails to applicants. 

On or after May 1st, you can visit the Department of State website to verify if you are actually a winner in the DV lottery. 

If need help, consult a licensed attorney (not one of the "green card lottery" websites).

**INS doesn't exist. It's been replaced by DHS and USCIS**.

To this day, some local businesses, websites, "notarios"  and individuals make reference to the Immigration and Naturalization Service (INS). This agency no longer exists! 

If someone refers to USCIS as "INS", it's a sign that they are not an attorney, but rather someone unqualified with little knowledge in immigration matters.

INS was dismantled on March 1, 2003, and most of its functions were transferred from the Department of Justice to three new components within the newly formed Department of Homeland Security. U.S. Citizenship and Immigration Services (USCIS) is the component that grants immigration benefits. The other two components are U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection.

All official correspondence regarding your immigration case will come from USCIS. USCIS will communicate with you and your attorney by mail, by mailing you notices, approved work permit and green card through USPS (postal service).

If you need a legal assistance, we will be glad to help. Our contact information is here.

Read here. 

Applicants from all over the world who registered for the DV-2016 program were selected at random from 11,391,134 qualified entries (17,573,350 with derivatives) received during the application period that ran from noon, Eastern Daylight Time on Wednesday, October 1, 2014 until noon, Eastern Daylight Time on Monday, November 3, 2014. 

The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. 

The Kentucky Consular Center registered and notified the winners of the DV-2016 diversity lottery. Approximately 91,563 applicants have been registered and notified and may now make an application for an immigrant visa (so called"selectees" or "winners"). Some of the first *50,000 persons registered will not pursue their cases to visa issuance, this larger number (91,563 selectees) should insure that all DV-2016 numbers will be used during fiscal year 2016 (October 1, 2015 until September 30, 2016).

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years. Those selected will need to act on their immigrant visa applications quickly. Applicants should follow the instructions in their notification letter and must fully complete the information requested. 

Registrants living legally in the United States who wish to apply for adjustment of status instead of consular processing of their visas, must apply through USCIS Department of Homeland Security (** Please note that you have to be eligible for adjustment of status. Therefore, if you were selected as a winner in the Green Card lottery and you live in the United States, it's advisable to consult an experienced attorney before applying for your green card). 

Once the total *50,000 visa numbers have been used, the program for fiscal year 2016 will end. Selected applicants (aka "selectees" or "winners") who do not receive visas by September 30, 2016 will derive no further benefit from their DV-2016 registration. Similarly, spouses and children accompanying or following to join DV-2016 principal applicants are only entitled to derivative diversity visa status until September 30, 2016.

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years. The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program. This resulted in reduction of the DV-2015 annual limit to 50,000. DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

P.S. Our office would be happy to assist you with your DV visa application or adjustment of status should you be selected as a winner. Please email us to schedule a phone or Skype consultation. Please remember that a visa must be issued prior to September 30th of the current fiscal year (09-30-2016 for DV-2016 winners). No visas will be issued after this date. If selected as a winner you should act fast and submit your applications and required documents in a timely matter. Assistance of a qualified and experienced immigration attorney would be of great help to many. 

The following is the statistical breakdown by foreign-state chargeability of those registered for the DV-2016 program: 

AFRICA

ALGERIA  1,952

ETHIOPIA  4,000

NIGER  102

ANGOLA  108

GABON  32

RWANDA  412

BENIN  914

GAMBIA, THE  67

SAO TOME AND PRINCIPE  2

BOTSWANA  4

GHANA  3,179

SENEGAL  427

BURKINA FASO  199

GUINEA  1,818

SEYCHELLES  0

BURUNDI  208

GUINEA-BISSAU  4

SIERRA LEONE  2,141

CABO VERDE  6

KENYA  2,729

SOMALIA  272

CAMEROON  3,047

LESOTHO  5

SOUTH AFRICA  535

CENTRAL AFRICAN REP.  23

LIBERIA  4,430

SOUTH SUDAN  17

CHAD  40

LIBYA  240

SUDAN  3,216

COMOROS  3

MADAGASCAR  75

SWAZILAND  7

CONGO  124

MALAWI  17

TANZANIA  93

CONGO, DEMOCRATIC REPUBLIC OF THE  4,475

MALI  114

TOGO  1,241

COTE D’IVOIRE  1,129

MAURITANIA  15

TUNISIA  227

DJIBOUTI  92

MAURITIUS  41

UGANDA  453

EGYPT  4,024

MOROCCO  1,993

ZAMBIA  57

EQUATORIAL GUINEA  0

MOZAMBIQUE  11

ZIMBABWE  152

ERITREA  544

NAMIBIA  18

ASIA

AFGHANISTAN  406

JAPAN  302

QATAR  42

BAHRAIN  13

JORDAN  349

SAUDI ARABIA  267

BHUTAN  22

NORTH KOREA  0

SINGAPORE  39

BRUNEI  1 

KUWAIT  143

SRI LANKA  704

BURMA  236

LAOS  1

SYRIA  460

CAMBODIA  1,229

LEBANON  225

TAIWAN  297

HONG KONG SPECIAL
ADMIN. REGION  151

MALAYSIA  95

THAILAND  73

INDONESIA  126

MALDIVES  3

TIMOR-LESTE  0

IRAN  4,501

MONGOLIA  185

UNITED ARAB EMIRATES  103

IRAQ  330

NEPAL  3,801

YEMEN  724

ISRAEL  162

OMAN  12

EUROPE

ALBANIA  1,931

GREECE  93

NORWAY  35

ANDORRA  0

HUNGARY  186

POLAND  629

ARMENIA  1,277

ICELAND  3

PORTUGAL  58

AUSTRIA  50

IRELAND  89

  Macau  23

AZERBAIJAN  380

ITALY  410

ROMANIA  626 

BELARUS  811

KAZAKHSTAN  376

RUSSIA  2,200

BELGIUM  47

KOSOVO  244

SAN MARINO  0

BOSNIA & HERZEGOVINA  92

KYRGYZSTAN  209

SERBIA  283

BULGARIA  865

LATVIA  73

SLOVAKIA  70

CROATIA  67

LIECHTENSTEIN  0

SLOVENIA  33

CYPRUS  28

LITHUANIA  153

SPAIN  193

CZECH REPUBLIC  74

LUXEMBOURG  0

SWEDEN  108

DENMARK  35

MACEDONIA  258

SWITZERLAND  122

ESTONIA  40

MALTA  0

TAJIKISTAN  337

FINLAND  57

MOLDOVA  1,854

TURKEY  1,795

FRANCE  510

MONACO  0

TURKMENISTAN  124

  French Polynesia  1

MONTENEGRO  8

UKRAINE  4,507

  Saint Martin  1

NETHERLANDS  81

UZBEKISTAN  4,300

  Wallis and Futuna  1

  Aruba  4

VATICAN CITY  0

GEORGIA  571

  Curacao  2

GERMANY  678

NORTHERN IRELAND  9

NORTH AMERICA

BAHAMAS, THE  16

OCEANIA

AUSTRALIA  832

NAURU  12

SAMOA  5

  Cocos Islands  1

NEW ZEALAND  208

SOLOMON ISLANDS  0

FIJI  393

  Cook Islands  4

TONGA  26

KIRIBATI  4

PALAU  4

TUVALU  0

MARSHALL ISLANDS  0

PAPUA NEW GUINEA  3

VANUATU  5

MICRONESIA, FEDERATED STATES OF  3

SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN

ANTIGUA AND BARBUDA  0

DOMINICA  6

SAINT KITTS AND NEVIS  2

ARGENTINA  68

GRENADA  7

SAINT LUCIA  5

BARBADOS  0

GUATEMALA  31

SAINT VINCENT AND THE GRENADINES  7

BELIZE  0

GUYANA  14

SURINAME  3

BOLIVIA  49

HONDURAS  73

TRINIDAD AND TOBAGO  51

CHILE  17

NICARAGUA  58

URUGUAY  21

COSTA RICA  50

PANAMA  5

VENEZUELA  1,038

CUBA  1,488

PARAGUAY  7

P.S. Natives of the following countries were not eligible to participate in DV-2016: Bangladesh, Brazil, Canada, China (mainland-born, excluding Hong Kong S.A.R., Macau S.A.R., and Taiwan), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. 

Our office would be happy to assist you with your DV visa application or adjustment of status should you be selected as a winner. Please email us to schedule a phone or Skype consultation. Please remember that a visa must be issued prior to September 30th of the current fiscal year (09-30-2016 for DV-2016 winners). No visas will be issued after this date. If selected as a winner you should act fast and submit your applications and required documents in a timely matter. Assistance of a qualified and experienced immigration attorney would be of great help to many. 

Big news for Cuba: on May 29, 2015, U.S. Department of State rescinded Cuba's designation as a state sponsor of terrorism. 

Cuba’s removal from the list of countries – now confined only to Iran, Sudan and Syria – is an important step in Obama's administration effort to move past the Cold War era hostility. 

In December 2014, the President instructed the Secretary of State to immediately launch a review of Cuba’s designation as a State Sponsor of Terrorism, and provide a report to him within six months regarding Cuba’s support for international terrorism. On April 8, 2015, the Secretary of State completed that review and recommended to the President that Cuba no longer be designated as a State Sponsor of Terrorism.

Accordingly, on April 14, 2015, the President submitted to Congress the statutorily required report indicating the Administration’s intent to rescind Cuba’s State Sponsor of Terrorism designation, including the certification that Cuba has not provided any support for international terrorism during the previous six-months; and that Cuba has provided assurances that it will not support acts of international terrorism in the future. 

The 45-day Congressional pre-notification period has expired, and the Secretary of State has made the final decision to rescind Cuba’s designation as a State Sponsor of Terrorism, effective today, May 29, 2015.

The rescission of Cuba’s designation as a State Sponsor of Terrorism reflects our assessment that Cuba meets the statutory criteria for rescission. While the United States has significant concerns and disagreements with a wide range of Cuba’s policies and actions, these fall outside the criteria relevant to the rescission of a State Sponsor of Terrorism designation.


Read at: http://m.state.gov/md242986.htm

Nebraska will start issuing driver's licenses to DREAMers or young people who were granted deferred action under DACA  ("DACA grantees"). 

Nebraska is the last state to join the other 49 states who are already issuing driver's licenses to young people with approved DACA deferred action. This program has been in effect since 2012.

On Tuesday, Nebraska Legislature overrode Governor's veto on this bill by 34 to 10 vote.

Read here. 

Twenty-six states (the “states”) are challenging the government’s Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”) as violative of the Administrative Procedure Act (“APA”) and the Take Care Clause of the Constitution. 

The district court determined that the states are likely to succeed on their procedural APA claim, so it temporarily enjoined implementation of the program. Texas v. United States, Civ. No. B-14-254, 2015 WL 648579 (S.D. Tex. Feb. 16, 2015). 

The United States appealed the preliminary injunction and moved for a stay of the injunction pending resolution of the merits of that appeal. Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction. Read full text of the decision here. 

First, the Court of Appeals rejected the Obama administration's argument that the 26 states challenging DACA and DAPA lack standing. The panel found that the burden on Texas in having to issue drivers licenses to DAPA status immigrants was "real and concrete."

Second, the court rejected the Obama administration's main argument, which is that the actions are truly discretionary and thus "committed to agency discretion by law." The court said that the executive actions didn't allow for any real exercise of discretion by agency employees, rather they simply were blanket changes to the immigration laws.

There are other provisions in Obama’s executive action on immigration, which will be considered by a different panel of judges of the Fifth Circuit the week of July 6, 2015. That panel could decide to lift the injunction. 

The injunction could remain in place for the rest of President Obama’s term in office – unless it is lifted by the courts.

As a practical matter, the injunction prevents the government from processing DAPA and extended DACA applications. Only original 2012 DACA is still in effect.

It appears that DAPA and extended DACA may never become law.

Read the court opinion here.

Obama administration’s immigration policy faces a shake-up next week—and the court’s ruling could reverberate in the 2016 presidential campaign.

At issue is whether it’s legal to essentially lock up women and children who have crossed the border illegally, part of the administration’s response to summer 2014 unaccompanied-minors crisis. 

Lawyers for some of these families sued the government, and last month, a U.S. District judge in Los Angeles issued a tentative ruling, a summary of which was obtained by Newsweek, stating that the administration policy violates a settlement in a 1997 immigration case, Flores v. Meese.

Judge gave the two sides 30 days to negotiate an agreement that would lead the U.S. Immigration and Customs Enforcement (ICE) agency to release the minors and their parents from the family detention centers where they are being held. Those 30 days run out on Sunday, May 24, 2015.

The judge issued a gag order, so it’s quite difficult to know whether or not there will be a real settlement by May 25, 2015. 

Obama’s detention and deportation of hundreds of thousands of undocumented immigrants remains a sore spot for immigrant rights and Latino activists, even after the president granted a reprieve, via executive order and under DACA program, to millions of young people who came to the United States as children and to those who have children who were born here and thus are American citizens (DAPA, which is not effective yet, pending another court case). 

The practice of holding thousands of women and their children in detention for many months—it’s just mothers and their kids in these detention facilities (in Texas and Pennsylvania), most of them fleeing dire circumstances in Central America—has prompted a particularly strong backlash.

Immigrant rights groups have been very critical of this practice.

Read more at Newsweek. 

USCIS has published information to help eligible H-4 dependent spouses to apply for employment authorization (work permit) under the Employment Authorization for Certain H-4 Dependent Spouses final rule. 

Note: you can file application for a work permit only on or after May 26, 2015, and you must be eligible to apply.

Application form is USCIS form I-765, and the filing fee is US$380.

Note: it is applicant's burden of proof to provide evidence of your status, your H1B spouse's status and prove that you meet other eligibility requirements. Your application can be delayed or denied if it's incomplete.

Eligibility requirements: you are eligible to apply for a work permit if you are the H-4 dependent spouse of an H-1B nonimmigrant IF your H-1B nonimmigrant spouse:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Has been granted H-1B status under sections 106(a) and (b) of the AC21. The AC21 permits H-1B nonimmigrants seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.

Read here.

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. 

USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Read more at http://www.uscis.gov/news/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

As reported by Bloomberg Business News, birth tourism from China to the US is booming. Although it’s not illegal to travel to the U.S. to give birth, it’s illegal to lie about the purpose of a visit when interviewed by American Consul or by immigration or customs officers at the US airport—or coach someone to do so. 

If a woman says she’s traveling to the U.S. to give birth, the consular and customs officers may request proof that she can pay for her hospital stay. (The same would be asked of anybody seeking medical treatment in the U.S.) 

Department of Homeland Security and the IRS have been investigating the growing business of “birth tourism,” which operates in a legal gray area, since last June. The industry is totally unregulated and mostly hidden.

No one knows the exact number of Chinese birth tourists or services catering to them. Online ads and accounts in the Chinese-language press suggest there could be hundreds, maybe thousands, of operators. A California association of these services called All American Mother Service Management Center claims 20,000 women from China gave birth in the U.S. in 2012 and about the same number in 2013. These figures are often cited by Chinese state media, but the center didn’t reply to a request for comment. The Center for Immigration Studies, an American organization that advocates limiting the scope of the 14th Amendment, estimates there could have been as many as 36,000 birth tourists from around the world in 2012. Estimated fees paid by Chinese birth tourists to the agencies catering to them are around USD30,000 to USD60,000.

Department of Homeland Security declined to discuss the investigation because it is ongoing, but the agent in charge said: “Visa fraud is a huge vulnerability for the country. These women allegedly lied to come have a baby. Other people could come to do something bad. We have to maintain the integrity of the system.” 

Read the story here. 

Immigration Relief Measures for Nepali Nationals.

On May 5, 2015, USCIS had made the following announcement:

USCIS several immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015.

Measures that may be available to eligible Nepali nationals upon request include:

• Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
• A grant of re-parole;
• Expedited processing of advance parole requests;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited adjudication of employment authorization (work permit) applications, where appropriate;
• Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
• Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

To learn more, consult an attorney, or visit uscis.gov/humanitarian/special-situations or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).

See here. 
 

Did you apply for the 2016 DV lottery? It's time to find your DV-2016 confirmation number! 

Starting May 5, 2015, y ou can check your DV-2016 Green Card Lottery entry status at dvlottery.state.gov .

Please keep in mind that Entrant Status Check online is the ONLY means by which you will be notified of your selection for further processing in the Diversity Visa lottery. You will never be notified or requested to pay fees by mail, email, phone -- ONLY through online status check. 

If you have misplaced your DV lottery confirmation number, you can use the retrieval tool in Entrant Status Check to recover it at https://www.dvlottery.state.gov/

If you have been selected as a WINNER and need help with the visa application process (if you are outside of the United States and will apply at the US embassy or consulate in your country) or with adjustment of status (if you are residing in the United States and eligible for adjustment of status), you are welcome to contact our office for advice or legal assistance. We would be glad to help!

USCIS provided statistics on approval rate, denial rate, and RFE rate for Forms I-601 and Forms I-601A, for FY2010 through FY2015.

Information was provided in response to a FOIA request.

Since FY2010 thru January of FY2015, the average approval rate for I-601s is 79.6% and the average denial rate is 20.4%. 

The average RFE rate is 18.8%.

Since March of FY2013 thru January of FY2015, the average approval rate for I-601As is 70.2% and the average denial rate is 29.8%.

The average RFE rate is 26.2%.

The total number of I-601 decisions issued since FY2010 (over the course of 5 years and 4 months) = 64,826. 

The total number of I-601As issued since the program started in FY2013 (over the course of 1 year and 11 months) = 62,973. 

The highest approval rate for I-601s was 82.4% in FY2013 (the year the provisional waiver program started). At the same time, I-601A approvals were at their lowest in FY2013 at 63.9% -- This was pre-"reason to believe" guidance so this makes sense. Total receipts for I-601As since March of FY2013 = 74,439.

Read more stats at: https://drive.google.com/file/d/0B_6gbFPjVDoxRExvLW92eXhHUEU/edit

Information FAQs about AB 60 (new California law) in Spanish and English.












AB 60 FAQs in Spanish available here:
 http://www.ilrc.org/files/documents/ab_60_4_17_15_spanish.pdf

AB 60 FAQs in English are here:
http://www.ilrc.org/files/documents/ab_60_4_27_15.pdf

AB 60 is a new California state law which is applicable in the state of California only. Effective date is January 02 2015. This information could be useful for those residents of California who have no legal immigrant status. This new law authorizes issuance of a AB 60 driver's license to immigrants residing in California out of status or undocumented immigrants. This AB 60 driver's license is a valid state photo ID document and a valid driving permit. However, it's not a federal ID document and should not be used to board planes, etc.

Beginning Friday, May 1, 2015 USCIS will accept only the new version (edition date: 10/23/14) of Form I-129, Petition for a Nonimmigrant Worker. The edition date is printed at the bottom of every page. 

On or after May 1st 2015, USCIS will reject all previous editions of this form.

Form I-129 is used to apply for many work visas (H1B, R-1, O, L, P, etc). 

A new form I-129 can be found at: http://www.uscis.gov/i-129 

USCIS launched a new interactive webportal myUSCIS. 

See at: https://my.uscis.gov/

USCIS recently introduced another useful webportal, where customers can submit e-request to ask questions about a pending case, report non-delivery of a document (work permit, green card, etc) or official letter (Receipt or Approval Notice, Form I-797), request certain accommodations. I found it to be a very useful tool.

See at: https://egov.uscis.gov/e-Request/Intro.do?locale=en_US

Almost daily, I hear from some of our callers: "I don't need legal consultation, I don't want to hire an attorney. I have only one or two very simple (or quick, or easy) questions, and I want an attorney to answer my questions right now and free of charge because my questions are so simple, quick, and easy!"

I will try to explain why this request doesn't make any sense and how to get proper legal advice.

U.S. immigration law is very complex and constantly changing. There have been no major immigration reforms or amnesties in the past few years (which requires a law to be approved by Congress and signed by the President). However, there have been significant changes introduced by our current and former administrations and the executive branch of the government: executive actions; executive orders of the President; USCIS and DHS memorandums and policy guidance; official and unofficial practice advisories; and changes through our judicial branch (federal and immigration courts), such as, the decisions by the BIA, AAO, Courts of Appeals, US Supreme Court, and even by federal district court judges (for example, an injunction by a federal judge can place on hold an executive order of the President of the United States).

U.S. immigration law is federal in nature and is the same in all states. However, it may apply differently to your situation depending on your background, your place of residence or domicile, US embassy in the country where you apply for a visa, etc.

An experienced immigration attorney may be able to guide you and advise you about specifics, loopholes, various options, and can spot possible problems before they happen, even if it seems to you that your case is pretty straightforward and you have only "one quick question". A seemingly simple or quick question not always can be answered with a simple "yes" or "no" answer. You may not realize it, but a situation may have a lot of hidden issues or variables depending on your venue, court jurisdiction, your factual circumstances, your arrest and criminal record, your family situation and status, prior legal assistance, prior legal actions and applications filed, or even timing, etc.

You can find a lot of useful immigration-related INFORMATION on our Blog. We compiled useful information and links: USCIS forms and fees, case status inquiry, processing times, AR-11 Change of Address, Department of State and NVC, and much more here. Hope you find this information helpful!

To ask basic questions about USCIS immigration forms, filing fees or to inquire about status of your pending case, you can contact USCIS, Department of Homeland Security, by calling their 800 Customer Service Hotline (number is on their website), or send an e-request via a webportal at USCIS website. Case status can be checked online, as well. Immigration courts, U.S. embassies and consulates and National Visa Center each have their own hotlines, call centers or other ways to contact them.

To receive a case-specific legal advice you should talk to a lawyer. Before a lawyer can advise you, we usually email you our confidential immigration questionnaire, and ask you to complete and return it to us. In some cases, we can ask you to email us copies of your immigration forms, paperwork, personal documents. When an attorney reviews your answers to our questionnaire and your documents, it helps her to get to know you, your situation, and decide what legal and/or visa options you shall consider, what are your best chances of obtaining certain visas and immigration benefits, how and when can you bring your family to USA, are you eligible for permanent residency or a green card in the United States, are you eligible to apply for U.S. citizenship, how can your children become U.S. citizens, etc.

It's important that you provide truthful, accurate and complete answers to our questions because an attorney's advice to you is based on information you provide to an attorney. It could be dangerous to give misleading, incomplete or incorrect answers to an attorney.

An attorney or a lawyer is often called "a counselor in law". It means that an attorney counsels and advises you, helps you to understand your situation better, anticipates any possible future issues or complications, offers guidance, and a long-term strategy and planning for yourself and your family.

Legal advice is never a simple "yes" or "no" answer, it's never "use this form"  or "this is the link where you can find all information and all answers you need". Legal advice or consultation is like going to see a doctor. A doctor will ask you questions, take your vitals and administer necessary tests, then she will be able to diagnose you and offer you an appropriate treatment plan. The same is true about work of a good and ethical attorney. An attorney will have to ask you a number of questions, review your documents and paperwork, and only then she will be able to advise you, and offer you guidance and counsel.

In order to avoid mistakes and future complications, it's smart to consult an attorney before starting any legal, immigrant or visa process. Consultation with knowledgeable and ethical attorney should serve as a preventative measure and a way to establish a roadmap and plan your future.

In over twelve years of practice as an immigration attorney in the United States, I have come across of many unfortunate individuals who got themselves into trouble after reading and following wrong advice on internet forums, listening to their friends, co-workers, relatives and neighbors advice, or paying to complete their "paperwork" to an unlicensed "immigration consultant", or "notario", or "tax preparer", or somebody else who speaks their native language in their immigrant community but has no proper training and is not a licensed attorney. In some of these cases, individual's chances of living in USA legally can be permanently destroyed. Some people can become permanently banned from the United States, no matter how many close family members (wife, kids, parents) and other ties they have in USA. Immigration law is very complex and unforgiving, and non-compliance, fraud or misrepresentation could bring consequences more severe than penalties in an average criminal case. Where a convicted criminal can usually expect to be released from prison after a number of months or years and be reunited with his family, a person who was deported and permanently banned from USA may never be able to reunite with his family and loved ones in the United States. Lack of knowledge or bad advice is not an excuse in immigration law. "Simple mistakes" in immigration law context could be costly and often irreversible.

Do yourself a favor and consult a knowledgeable immigration attorney before filing any applications or petitions with the USCIS Department of Homeland Security, or before submitting any visa applications online. You can also schedule a consultation to seek a second opinion, if not sure that your current or former attorney's advice is correct as applies to you. When you have questions or need legal advice you can email us to schedule a consultation. We will be glad to help you.

On April 10, 2015, U.S. Department of State Visa Office had published a new update to 9 FAM 40.103 (international child abduction as a ground for inadmissibility). 

The new guidance can be found here. 

9 FAM 40.103 N2 INADMISSIBILITY UNDER INA 212(A)(10)(C)

Note: Under INA 212(a)(10)(C), an alien is ineligible for a visa if the conditions in the law are satisfied. Post does not have discretion to decide not to apply the ineligibility. See 9 FAM 40.103 N7.2 below for guidance on when Advisory Opinions are necessary. 

9 FAM 40.103 N2.1

Elements for INA 212(a)(10)(C)(i) 
An alien is ineligible under INA 212(a)(10)(C)(i) if: 
(1) The child is a U.S. citizen; 
(2) A court in the United States has issued an order granting custody of the child to someone other than the alien; 
(3) The alien is detaining or retaining the child, or withholding custody of the child, from the person granted custody by the U.S. court order; and 
(4) The child is outside of the United States and in a country that is NOT a U.S. partner to the Convention. 

NOTE: INA 212(a)(10)(C)(i) does not require the child to have been taken out of the United States. Nor does it require the alien to have been in the United States.

In May 2015 Visa Bulletin, the US Department of State had implemented a cutoff date for EB-5, immigrant investor visa category for China. 
In May 2015 Bulletin, it retrogresses to May 1, 2013 (two years).

How will it affect dependent children of a primary investor? How to protect dependents from ageing-out and becoming ineligible for a visa?

On April 13, 2015, Visa Office attended IIUSA 2015 EB-5 Regional Economic Advocacy Conference and provided some guidance on application of CSPA to those derivative children:

May 2015 visa bulletin can be found here. 

US Dept of State issued a new policy guidance for immigrant visa applicants who were unable to use an Immigrant Visa (IV) during its validity period. 

9 FAM 42.74 N1 ISSUING REPLACEMENT VISA DURING VALIDITY OF ORIGINAL VISA (CT:VISA-2270; 03-31-2015) 

a. If you are satisfied that an applicant will be or was unable to use an immigrant visa (IV) during its validity period because of reasons beyond the applicant’s control and for which the applicant is not responsible then you may issue a replacement visa with the originally allocated visa number within the same fiscal year even though the visa has not yet expired. 

b. You should recall and cancel the originally-issued visa and collect once again the appropriate IV application processing fee (including the Diversity Visa Lottery Fee for a DV applicant), unless the applicant was unable to use the visa as a result of action by the U.S. Government over which the alien had no control and for which the alien was not responsible. 

c. An applicant who will be or was unable to use an IV during its validity period because of reasons within the applicant's control can submit a new visa application if the petition has not been revoked and if the basis for immigration still exists (i.e., familial relationship). 
This also applies for new IV applications outside of the original IV's fiscal year of issuance. 

9 FAM 42.74 N1: 
http://www.state.gov/documents/organization/87915.pdf

Administrative Appeals Office (AAO) non-precedent decision approving EB-1 green card for a researcher applying Kazarian two-step test.

The Director of the USCIS Texas Service Center, denied the employment-based immigrant visa petition in EB-1 category. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.

The petitioner is a professor and researcher who primarily studies avian brood parasites, i.e., birds that lay their eggs in the nests of other bird species. The petitioner seeks classification as an alien of extraordinary ability (EB-1) pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1153(b)(1)(A). ... 

While this appeal was pending, the U.S. Court of Appeals for the Ninth Circuit issued a decision concluding that USCIS should reserve any evaluation of the record evidence that otherwise meets the plain language requirements of the regulatory criteria for a separate and subsequent "final merits determination." Kazarian v. USCIS, 596 F.3d 1115, 1121-22 (9th Cir. 2010). 

The two-step review articulated in Kazarian provides a reasonable interpretation and application of the existing regulatory standard. To promote consistency, USCIS has adopted this two-step review process for cases arising both within and outside the jurisdiction of the Ninth Circuit. Thus, the proper procedure for evaluating an extraordinary ability visa petition is twofold. First, we will analyze the record and count the number of evidentiary criteria met, without imposing novel substantive or evidentiary requirements beyond those set forth by regulation. Second, if the petitioner submits evidence that meets at least three of the criteria, we will then review the record in its totality in a final merits determination to determine if the alien is one of that small percentage of individuals who have risen to the very top of their field, has sustained national or international acclaim, and that his or her achievements have been recognized by others in the field of expertise.

At the second step, we consider not only the quantum of evidence, but also its quality (including relevance, probative value, and credibility). See Matter of Chawathe, 25 I&N Dec. at 376 (citing Matter of E-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). If the record establishes that it is more likely than not that the individual has sustained national or international acclaim and recognition in the field of expertise, and is one of that small percentage who has risen to the very top of their field ofendeavor, the petitioner has met his or her burden of proof. ... 

[T]he petitioner has established eligibility for the benefit sought under section 203(b )(1 )(A) of the Act. ... 

The decision of the director is withdrawn. The petition is approved." Read the full text of the AAO non-precedent decision here.

SEVP releases 2015 international student data, launches interactive mapping tool.

“SEVIS by the Numbers,” a quarterly report on international students studying in the United States, was released Wednesday by the Student and Exchange Visitor Program (SEVP), part of U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI). The report highlights February 2015 data from the Student and Exchange Visitor Information System (SEVIS), a Web-based system that includes information about international students, exchange visitors and their dependents while they are in the United States. New this edition, users can also visit the Study in the States website to review international student data from “SEVIS by the Numbers” via an interactive mapping tool.

Based on data extracted from SEVIS Feb. 6, 2015, 1.13 million international students, using an F (academic) or M (vocational) visa, were enrolled at nearly 8,979 U.S. schools. This marked a 14.18 percent increase in international students when compared to January 2014 data. The number of certified schools remained relatively static, increasing just more than one percent, during the same time period.  

Seventy-six percent of all international students were from Asia. The top 10 countries of citizenship for international students included: China, India, South Korea, Saudi Arabia, Canada, Japan, Vietnam, Taiwan, Mexico and Brazil.

In February 2015, only 30 SEVP-certified schools had more than 5,000 international students enrolled. The University of Southern California, Purdue University, Columbia University, the University of Illinois and New York University ranked one through five among U.S. schools with the most international students. More than 10,000 international students were enrolled at each of these schools.

Thirty-seven percent of international students studying in the United States, equating to more than 400,000 individuals, were enrolled in STEM (science, technology, engineering and mathematics) coursework in February. Eighty-six percent of international students pursuing STEM studies were from Asia.

The February 2015 report includes a special section about women pursuing STEM studies. In the past five years, the total number of female international students studying STEM fields increased more than 68 percent, from 76,638 in February 2010 to 128,807 in February 2015. Sixty-two percent of these female international students were from China and India. Also since 2010, the number of female international students pursuing STEM-focused master’s degrees increased 114 percent. Thirty-four percent of all female students pursuing STEM studies were enrolled at schools in California, New York and Texas.

Other key points from the report include: 76 percent of SEVP-certified schools had between zero and 50 international students; 73 percent of international students were enrolled in bachelor’s, master’s or doctoral programs; and California, New York and Florida had the most SEVP-certified schools. A school must be SEVP-certified before it can enroll international students who are in the United States on a student visa.
The full report can be viewed here. Report data was extracted from SEVIS Feb. 6, 2015. It provides a point in time snapshot of data related to international students studying in the United States. Data for the previous “SEVIS by the Numbers” was extracted from SEVIS Oct. 7, 2014.

In addition to the report, on Wednesday, SEVP launched an interactive mapping tool where users can explore and drill down international student data from “SEVIS by the Numbers.” This information is viewable at the continent, region and country level and includes information on gender and education levels for international students from geographical areas across the globe.

SEVP monitors approximately one million international students pursuing academic or vocational studies (F and M visa holders) in the United States and their dependents. It also certifies schools and programs that enroll these students. The U.S. Department of State monitors exchange visitors (J visa holders) and their dependents, and oversees exchange visitor programs.

Learn more about SEVP at www.ICE.gov/SEVP. 
You can read the complete report here.

This case proves once again that O visas (visas for individuals with Extraordinary Ability or Achievement) could be tricky and sometimes unpredictable. This O-1B (extraordinary ability visa in arts) was approved and extended two times prior to subsequent denial of another extension.

A popular thoroughbred racehorse trainer has accused the USCIS in a D.C. federal court of engaging in “capricious” and “arbitrary” behavior by denying an assistant trainer an extension of his nonimmigrant worker status after previously granting it without incident.

Mott Thoroughbred Stables Inc. said in its Friday complaint that by surprisingly and abruptly denying an O-1B petition extension to an “indispensable employee” on which the famed stables has relied since he began working there in 2010, the USCIS has caused irreparable harm to Mott Stables’ multimillion-dollar horse-training business.

The complaint asks the court to compel the USCIS to set aside the petition denial and promptly re-adjudicate the petition with deference to the prior approvals. It also asks the court to order the agency to postpone the effective date of its denial of the petition for assistant horse trainer Rodolphe Brisset and grant a temporary visa status pending the outcome of the instant suit.

“The USCIS failed to provide a reasonable explanation for the denial, failed to cite relevant authority for its decision and failed to clearly articulate the reasons for its abrupt departure from past and ongoing practice of approving O-1B petitions for horse trainers,” the complaint says.

The lawsuit says the unsuccessful petition is virtually the same as the ones USCIS previously approved, and that the agency only now has decided that its past approvals were a “material error” on the part of the agency, “in contravention of internal agency guidance on deference to prior approvals.”

Petitioner also asked the court to open up limited discovery to ascertain the agency’s grounds for denying the company’s petition in light of the two previous approvals of the same petition.

Mott Stables is challenging an October 2014 decision by the USCIS Administrative Appeals Office to uphold the denial of an O-1B extension to the trainer.

After two successful approvals, in 2013 the USCIS sent Mott Stables a request for evidence ( RFE )regarding the international acclaim and recognition Brisset has received a horse trainer, according to the complaint.

Among the types of evidence Mott Stables could hand over was “comparable evidence” of Brisset’s distinction as a prominent horse trainer, and in February 2014 the company sent to the USCIS a letter signed by six expert member of the equine community attesting to Brisset’s skills, according to the complaint. Mott Stables also explained the “unique nature” of the thoroughbred racing industry and why the trainer plays “an essential and critical role” in successful training operations, the complaint says.

In March 2014, the USCIS denied the petition, saying Mott Stables hadn’t demonstrated that Brisset had extraordinary ability in the field of endeavor nor that he had sustained national or international acclaim, according to the complaint.

On appeal, Mott Stables argued that a Department of Homeland Security memo says that deference must be given to a prior determination that an individual is eligible for a particular nonimmigrant classification, where extension of that nonimmigrant petition’s validity “involves the same parties and the same underlying facts,” the complaint says.

Mott Stables argued that the USCIS had not explicitly said why it refused the petition and that changed circumstances and new material information — possibly dispositive developments — did not form the basis of the agency’s decision.

When the USCIS’ appellate body AAO upheld the denial, it ruled that the memo's deference order didn’t apply when there was a "material error," which in this case was that since 2010 the agency had incorrectly found that Brisset’s occupation fell within the O-1B classification, according to the complaint.

Mott Stables said in its Friday complaint that this was the first time the USCIS had ever ruled that Brisset’s horse-trainer position did not qualify as a creative activity or endeavor, such that he could have been classified as an alien of extraordinary ability in the arts.

- Law360, Mar. 10, 2015.