Highlights from the American Immigration Lawyers Association DC Chapter (AILA DC) Fall 2018 Conference

Highlights from the AILA DC Chapter Fall Conference

The American Immigration Lawyers Association (AILA) hosted their DC Chapter Fall 2018 Conference on Wednesday, November 7, 2018 at the University of Maryland Shady Grove Conference Center in Rockville, MD.[1] AILA is a national association of attorneys and law professors who teach and practice immigration law, providing legal education, information and expertise. The DC Chapter has approximately 1,400 members, while the national organization has close to 15,000.

This year’s annual conference featured three tracks with panels on the latest immigration topics. Below is a short overview of some panels on business, family and U.S. Citizenship and Immigration Services (USCIS) topics.

Panel 1) Family/USCIS Track: Consular Processing

This panel was presented by Jan Pederson, Lynn Lee and Rina Gandhi. This panel discussed trends in denials for public charge findings, DOS Day Memo, travel ban updates, procedures for 212(d)(3) Waivers, and filing an I-130 abroad.

Public Charge: This panel began by highlighting the Public Charge Memo on determining what it means to become a “public charge.” From health factors, age, to family status.[2]

DOS 90 Day Rule: The implementation of the DOS 90 Day Rule extends an act of misrepresentation or bad intent on a nonimmigrant visa from 30/60 days to 90 days. This “misrepresentation” could include getting married, working unauthorized or anything showing immigrant intent.[3]

Travel Ban and Waivers: This section of the panel discussed the issue of waivers for those impacted by the recent travel ban. Although some may be applicable such as those with a U.S. green card, dual nationals on a non-ban passport, some diplomats, or those whose entry would be a national benefit, the reality is that less than 2% of waivers have been granted since December 2017. [4]

Filing I-130 Abroad: There are 23 USCIS offices abroad for a U.S. Citizen to apply for the I-130 if they are legally living abroad. Some require both the beneficiary and the petitioner to be present, however not all will. For those living in countries where there is no USCIS office, they can apply through the consular post. [5]

Panel 2) Family/USCIS Track: Balancing Zealous Advocacy and Client Expectations

This panel was presented by Anna Gallagher, Elizabeth Keyes, and Matthew Archambeault. It highlighted the importance of zealous advocacy during this current administration, ethical implications of pursuing non-LPR cancellation through asylum and representation during USCIS interviews.

Zealous Advocacy: Lawyers must be diligent and zealous as there are greater consequences during this administration. It is important to work in coalition with others, to be prepared and thorough, read and reference the rules, and be careful when advising clients.

Non-LPR Cancellation through Asylum: If filing for asylum, there must be a basis for it. Frivolous affirmative applications should not be filed if the end goal is to be referred to immigration court, as this could put your client at risk.

Zealousness at USCIS Interviews: It is important to know when to end an interview. If an officer is asking inappropriate questions or is being hostile towards your client, you can speak to the supervisor and ask for a different officer. It is important that you client disclose all information to you that may come up during an interview. Ask officers for copies of criminal documents or end the interview if this information had not been previously disclosed to you by the client.

Panel 3) Business Track: PERM Hot Topics

This panel was presented by Jennifer Goodman Patterson, Jonelle Ocloo, and Lisa Locke. Highlights from this panel included prevailing wage determinations, BALCA trends and audits.

Prevailing Wage Determinations: Start as soon as you have a drafted advertisement ready and make sure it is comprehensive and complete. There have been some recent issues that USCIS made mistakes by using last year’s wages. Make sure you have the accurate wage of this year.

BALCA Trends: In 2017, there was a great deal of backlog with nearly 2,000 pending cases. For BALCA decisions on travel requirements refer to the Matter of Arbin.

Audits: Statistics do not show an increase in audits, however due to the shift in resources, cases are being adjudicated faster and it feels like there are more audits. Audits are mainly targeting jobs based on experience. [6]

Panel 4) Business Track: Ethics: Protecting Client Information

This panel was presented by Charity Anastasio, David Bridges, Edward Neufville II, and Montserrat Miller. This panel highlighted potential threats when protecting client data, cost of damage, and steps to secure confidential data.

Potential threats: Important client information that must be kept secure include personal data such as social security numbers, applications and forms, health records, and biographical information. It is important to be mindful of phishing scans, security with technology and using public Wi-Fi.

Steps to Secure Data: Create password protected documents, train staff on what should be sent and know what to do if information is sent to the wrong person. You should also have protections on your cellphone and laptop. Once a law clerk or employee stops working on the case, make sure you revoke their access. Redact any information that is not needed and create deadlines for how long you will share or save information for. Be mindful of what documents and data you really need to collect.

Panel 5) H-1B Hot Topics and Alternatives

This panel was presented by Jennifer Minear, Kellie Lego, and Kevin J. Andrews. Topics of this panel included USCIS memos impacting H-1B adjudications, trends arising from these new policies and tips for preparing initial filings and responding to RFEs.

New Policies: Buy American Hire American (BAHA) executive order which reflects the growing conflict between globalism and nationalism. Other new policies impacting H-1B adjudications include No Deference Memo [7], Notice to Appear Memo [8], Third Party Placement Memo [9], and the Unlawful Presence Memo[10].

Trends: There has been a rise in RFE’s for specialty occupations, especially for software engineers. There has also been recent reinterpretation of OPT regulation and how much time is allowed on CPT and OPT.

Tips: Look at ads from other similar entities in the same industry for an understanding of the job description and review the requirements, fields of studies and duties. If submitting a W2, make sure that they were paid the correct amount. Give specific breakdown in percentages of job duties and explain in laymen what it means. Expert opinions may be helpful.

Panel 6) Advanced L-1 Issues

Mohammad A. Syed (“Mo”) presented the final panel of the day along with Brian Bumgardner, Sanjee R. Weliwitigoda and Meagan Dziura. This panel discussed recent guidance with USCIS, RFEs, preparing clients and trends at consulates.

Recent Trends in RFEs: There has been an increase of L-1 cases receiving an RFE, typically for vague job descriptions or for the statement of support not being corroborated with evidence. For Manager L-1’s the RFE’s are usually in response to insufficient evidence establishing the functional manager position. Another common trend is receiving RFE’s because the subordinates work in a different office than the manage. This can still qualify by including evidence such as email communication of tasks being assigned etc. Mr. Syed gave examples of several recent cases prepared and RFE’s received by USCIS, explaining that processing can be unpredictive.

Preparing Clients: Make sure your client can tell their story, have evidence such as performance evaluations, email communications, and clear organizational charts. Don’t provide everything upfront, you need to be prepared for an RFE.

Trends at consulates: Consulates are re-adjudicating approved L-1A/L-1B bases. It is important to prepare clients, as officers commonly ask about specialized knowledge. Prep clients to stick to the petition, understand their position and keep answers short. There has been an uptick in cases being stuck in administrative processing at consulates.

[1] https://www.aila.org/membership/communities/chapters/washington-dc/aila-dc-chapter-fall-conference

[2] https://fam.state.gov/fam/09fam/09fam030208.html

[3] https://fam.state.gov/FAM/09FAM/09FAM030209.html#M302_9_4

[4] https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/

[5] https://www.aila.org/infonet/uscis-filing-an-i-130-with-office-abroad

[6] https://www.aila.org/infonet/dol-etaoflc-audit-tiers-info

[7] https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-10-23Rescission-of-Deference-PM6020151.pdf

[8] https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-06-28-PM-602-0050.1-Guidance-for-Referral-of-Cases-and-Issuance-of-NTA.pdf

[9] https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-02-22-PM-602-0157-Contracts-and-Itineraries-Requirements-for-H-1B.pdf

[10] https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-08-09-PM-602-1060.1-Accrual-of-Unlawful-Presence-and-F-J-and-M-Nonimmigrants.pdf