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The Chicago immigration attorneys at Zneimer & Zneimer reviewed today’s United States Supreme Court decision with regard to children born abroad to unwed parents.  Prior to today’s decision, the statute provided for different requirements how unwed mothers and unwed fathers can transmit citizenship to a child born abroad.  The United States Supreme Court struck down the different requirements on equal protection grounds.

Under the challenged statute, unwed mothers could transmit U.S. citizenship to a child born abroad if the mother has been physically present in the United States or one of the outlying possessions for a continuous period of one year.  On the other hand, an unwed father under the law at the time of the Respondent’s birth, could transmit citizenship if the father had been physically present in the United States for ten years, five of which over the age of 14.  The father had to meet additional requirements that were not at issue in the case.

The case involved Luis Ramón Morales-Santana, born in Jamaica, who had lived in the United States since he was 13 years old.  The U.S. government had placed him in the process of removal from the United States because he had committed certain crimes.  The Respondent asserted that the government could not remove him because he was a U.S. citizen at birth.  The Respondent claimed to be a U.S. citizen based on the U. S. citizenship of his biological father, José Morales.   His father had moved to the Dominican Republic only 20 days before he turned 19, and was 20 days short of the five years residence after the age of 14 requirement at the time, to transmit U.S. citizenship.  The father had met all other requirements to transmit citizenship to his son, except the residence requirement.  At the time the case made its way up the court system, the father had died and the Supreme Court found that the Respondent has the right to assert the equal protection claim on behalf of his father.

The Respondent moved to reopen the removal proceedings to assert the claim to U.S. citizenship.  The Immigration Judge denied the motion, and the Board of Immigration affirmed.  The immigration judge denied his claim and ordered the Respondent removed.  The Second Circuit Court of Appeals reversed, and held that the different treatment of unwed mothers and fathers violates equal protection.  The Second Circuit held that Luis Ramón Morales-Santana derived U.S. citizenship from his father using the requirement for unwed mothers of one year continuous physical residence, instead of ten years, five of which over the age of 14 applicable to unwed fathers.

The government petitioned the United States Supreme Court for certiorari. The U.S. Supreme Court agreed with the Second Circuit that the disparate treatment of unwed mothers and unwed fathers violates equal protection of the U.S. constitution.  However, the Supreme Court disagreed that the shorter period should apply.  Rather, the Court determined that the longer period should apply to both.

The Court stated: Continue reading →

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The Chicago law firm of Zneimer & Zneimer is tracking decisions under the new NIW framework and is providing a summary of decisions applying Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016)

In  a recent appeal from a national interest waiver denial issued by the Nebraska Service Center, the AAO determined that a physician and cardiology researcher did not meet the second and third prong of the National Interest Waiver framework that the AAO announced in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien was pursuing postgraduate medical training as a general cardiology fellow in a one year fellowship.  He claimed that his clinical work would have an effect “on the health care system of the United States as a whole” and that his “medical research is having a widespread impact on the quality of medical care across the United States.”  He treated and did research on a “wide range of heart conditions, including systolic heart failure.”  Proposed research endeavor was to understand unique heart conditions and identify proper methods of diagnosis and treatment.

Continue reading →

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The Chicago immigration lawyers of Zneimer & Zneimer is following  National Interest Waiver  decisions  under the new AAO network under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016) and is providing summaries of decisions applying the facts to the new framework.

In a recent appellate decision following a denial of a national interest waiver by the Texas Service Center, the AAO determined that a University Instructor and Multicultural Education Researcher failed to qualify for a National Interest Waiver as she did not all three prongs of the  National Interest Waiver framework that the AAO announced in Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We outlined in more detail the framework in our earlier blog.  The framework imposes three prongs on the petitioner:

  1. That the proposed endeavor has both substantial merit and national importance;
  2. That the foreign national is well positioned to advance the proposed endeavor; and
  3. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

Petitioner’s Claim: The alien is an expert in multicultural education who seeks to continue her research in “improving educational practices for minority populations,” focused “more on the application and teaching of the integration of culturally and linguistically appropriate approaches and implementations in pedagogy and classroom practices.”  She claimed that the work has “direct and tangible applications in both public schools and in educational methods and research.”

Evidence presented: PhD in curriculum and instruction; Two Masters Degree: in Sociology and in Anthropology.  Experience in teaching online anthropology courses as an associate faculty member;  Appointments in the department of chemistry and biochemistry teaching college classes (Chemistry, General Sociology, Race, Class, and Gender, Social Physiology, and Cross-Cultural Perspectives).  Research articles, evidence of participation in academic conferences, alumni and honor society membership, graduate assistantships,  teaching evaluations; Evidence of downloads  PhD research, profile page, a copy of a 2016 book, webpage showing that the book is available for purchase, an invoice that 5 books have been sold.  Evidence that she had drafted another book which has been submitted for publication; Letters from a professor emeritus, explaining that increasing diversity in US classrooms is “requiring teacher candidates to acquire competencies in addressing the needs of their student population;” A letter addressing how the research will develop new training methodologies to equip teachers with skills that make them “culturally competent to teach in diverse settings.”  Other letters discuss how the research concerning the learning needs of CLD students will help ensure that they have equitable access to quality education.  Some of the articles and the book were published after the I-140 was submitted. Continue reading →

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In Matter of C-K-D-, 2017 WL 2224919 (TSC May 2, 2017) a Teacher and Researcher in Autism Spectrum Disorders failed to qualify for a National Interest Waiver as the petitioner did not meet all three prongs of Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016).  We described the national interest waiver framework in an earlier blog.

Petitioner’s Claim: Alien is an innovative teacher and educational program developer for students with autism spectrum disorder.   The alien uses expertise for the development and expansion of novel teaching and assessment methods of ASD to increase the knowledge base and understanding of educational approaches and curricula that engender improvement in the verbal, cognitive, and behavioral skills of children along the autism spectrum.  Her research in mirror intervention and self-awareness in students with ASD is seminal and groundbreaking.

Evidence presented: Curriculum Vitae, showing M.S. in education; Experience as public school teacher, graduate assistant and internship coordinator; Pursuing a doctorate degree in exceptional education PhD program; Evidence of published work, conference presentations, and professional membership; Reference letters discussing educational background, teaching experience, and research projects; Part of a group that helped revise training program; Receipt of special education grant, invitation to publish and present research.  Journal articles, conference presentations, Letters from faculty discussing research concerning ASD students, and research’s potential benefits to the nation’s educational system as the results are disseminated to others in the field through education journals and conferences; Some of the evidence was not available until after the I-140 was filed and was submitted as a response to RFE.  Continue reading →

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We are tracking the development of the national interest waiver law since the seminal decision, Matter of Dhanasar.

  1. Introduction

Congress has made available a limited number of immigrant visas to skilled and unskilled foreign workers who want to take a job in the U.S. that local workers do not want or are unqualified to fill.  Such foreign workers are not admissible to the United States, unless their potential employer offers them a job at a wage commensurate with the location, occupation, and the duties of the position, and obtains a labor certification from the Department of Labor that the job is in a shortage occupation.[i]  Before the Department of Labor certifies the job as a shortage occupation for which there are not interested or qualified U.S. workers, the employer must prove that it had tested the U.S. market and that it could not find U.S. workers who are able, willing, qualified,[ii] or available to take the job.  As part of the process, the employer must prove that the employment of foreign workers “will not adversely affect the wages and working conditions of workers in the United States similarly employed.”[iii]

The labor certification process protects jobs for U.S. workers who have the same minimum qualifications, and is in the national interest.  The Attorney General can waive the job offer and the labor certification requirement only in a case where the Attorney General finds that such employment is in the national interest of the United States and outweighs the national interest of protecting U.S. jobs for U.S. workers.  The burden is on the foreign worker to show why granting such a waiver is more important for the national interest than protecting the jobs for U.S. workers who may be willing, able, qualified, and available.

The national interest waiver is only available to “members of the professions holding advanced degrees or their equivalent” or to “people who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States .” [iv]  Because the labor certification process requires a job offer to the foreign worker, a foreign worker cannot self-petition, unless the worker seeks a national interest waiver.  As a threshold matter before seeking a national interest waiver, the worker must show that he or she is a member of the professions holding advance degree or their equivalent, or has exceptional abilities.  The petitioner then must make a separate showing that a waiver of the job offer requirement is in the national interest.

Not every person qualified to engage in a profession or a person of exceptional abilities is exempt from the requirement of a job offer based on national interest.  Nor is the intent of Congress to grant national interest waiver based on the importance of a profession alone.  In a recent decision, Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the Administrative Appeals Office outlined a new framework to apply in deciding whether a petitioner merits a national interest waiver.   The AAO has decided several cases under the new framework.  Review of these cases gives an idea of what the AAO considers as good, better, and best arguments.

This and following articles will review the application of the new framework to the facts of the recent decisions.

  1. The New Framework

Under Matter of DHANASAR, 26 I. & N. Dec. 884 (AAO 2016), the petitioner must meet the following three prongs to establish that the request deserves a national interest waiver:

  • Step 1, description of the endeavor. The foreign national’s proposed endeavor has both substantial merit and national importance.  The petitioner can demonstrate merit “a range of areas such as business, entrepreneurialism, science, technology, culture, health, or education”   An endeavor has a “national importance….because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances.”  The impact is not confined in geographic terms but points to broader implications.  Id.  The agency considers the endeavor’s prospective impact.
  • Step 2, qualifications of the alien. The foreign national is well positioned to advance the proposed endeavor.  This prong “shifts the focus from the proposed endeavor to the foreign national.”  The petitioner must establish that the alien is “well positioned to advance the proposed endeavor.”    The agency considers factors, including but not limited to the individual’s education, skills, knowledge, and record of success in related or similar efforts; a model or plan for future activities; progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
  • Step 3, needs of the United States. On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.  USCIS evaluates factors such as: whether, in light of the nature of the foreign national’s qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer, or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process.  In each case, the factors, taken together must indicate that on balance it would be beneficial to the United States to waive the requirements of the job offer and thus of labor certification.

If these three elements are satisfied, “USCIS may approve the national interest waiver as a matter of discretion. “ Id.

Application of the new framework

 This article is first in a series reviewing the application of the new framework to the facts of recent AAO decisions.  We will examine the endeavors, qualifications, and the evidence that each petitioner presented and whether or not the showing was sufficient to secure a national interest waiver.  We will then try to identify what arguments and evidence work and what does not work.   Currently, there have been 21 AAO decisions discussing Matter of Dhanasar.  Based on review of these decisions, here is a general list of arguments that work and that do not.  Cases mainly failed on the “national importance” part of the first prong, and the “well positioned” prong: Continue reading →

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On December 12, 2016, The U.S. Department of Education announced that it will derecognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.  On March 15, 2017, the Student and Exchange Visitor Program (SEVP) began issuing notices to SEVP-certified schools accredited by ACICS who had not reported the loss of accreditation to the Department of Education as required by regulations.   ICE states that all schools that were accredited by ACICS  must update their Form I-17 to update its status with a new accreditor, additional information regarding specific programs, or withdraw from SEVP.

According to USCIS and ICE, the loss of recognition will have immediate effect on foreign nationals that are enrolled in English language study programs or are seeking 24-month STEM OPT extension from a school that was accredited by ACICS.

SEVP will not take any action against international students for 18 months from December 12, 2016, if the school is either withdrawn or voluntarily withdraws.  After 18 months the students will have 3 options: Continue reading →

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On March 31, 2017, USCIS rescinded a memorandum from December 22, 2000, called “Guidance memo on H-1B computer related positions.”  According to USCIS rescinding this 2000 memorandum will prevent inconsistencies because it was based on outdated information about computer occupations.  This new policy will affect our clients in Chicago and in other cities and states.

USCIS will now zoom in on computer occupations to scrutinize H-1B petitions for jobs with entry level wages.  According to USCIS, “[t]hrough the wage level, the petitioner reflects the job requirements, experience, education, special skills/other requirements, and supervisory duties” citing to U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing wage Determination Policy Guidance (Nov. 2009).  An employer cannot offer an entry level wage and argue that the “proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”  Therefore, USCIS will review the Labor Condition Applications to check whether the wage level corresponds to the petitioner’s representation of the position.  An entry-level computer programmer position generally will not meet the “specialty occupation” requirement.

It will be more difficult to have H-1B approved for computer occupations even if the employer proffers a higher wage.  USCIS states that according to the most recent edition of U.S. Dept of Labor’s Occupational Outlook Handbook, an “individual with an associate’s degree may enter the occupation of computer programmer.”  This does not mean that all computer programming positions would automatically be ineligible for H-1B for failing the specialty occupation requirement.  However, the petitioner must submit “probative evidence from objective and authoritative sources” that the position qualifies as an H-1B specialty occupation.

USCIS also will target positions that require a general purpose bachelor degree such as a business administration degree.  Although such degree may be a prerequisite for a position, “requiring such a degree, without more, will not justify the granting of a petition for an H-1B specialty occupation visa.”  The burden is on the petitioner to prove that the position is in a specialty occupation.

Therefore, employers that wish to file H-1B petitions for computer occupations will have to provide detailed information about: Continue reading →

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President Trump today signed a new Executive Order, explaining the reasons to suspend admission of foreign nationals from certain countries.  The Order, entitled Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States  restricts admissions of foreign nationals from six countries: Iran, Somalia, Yemen, Syria, Libya, and Sudan.  It removes the prior restrictions for citizens of Iran, and exempts permanent residents of the United States.    The Order states that Iraq represents a “special case”.  While [p]ortions of Iraq remain active combat zones”….”the close cooperative relationship between the United States and the democratically elected Iraqi government, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combat ISIS justify different treatment for Iraq.”

The Order applies to foreign nationals from these countries who are:

Continue reading →

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On February 20, 2017, John Kelly, the Homeland Security Secretary issued two Memoranda implementing President Trump’s Executive Orders.  The first Memorandum is entitled “Enforcement of the Immigration Laws to Serve the National Interest.”  It implements the Executive Order entitled “Enhancing um Public Safety in the Interior of the United States” that President Trump issued on January 25, 2017. The second Memorandum is entitled “Implementing the President’s Border Security and Immigration Enforcement Improvement Policies,” and implements President Trump’s Executive Order “Border Security and Immigration Enforcement Improvements,” issued by President Trump also on January 25, 2017.

The subject of this blog is the first Memorandum, “Enforcement of the Immigration Laws to Serve the National Interest.”

This Memorandum rescinds all prior directives, memoranda, or field guidance, to the extent that they conflict with this Memorandum (“Kelly Internal Enforcement Memorandum”).  There are two exceptions that Secretary Kelly informs will be subject to future memoranda.  The first exception is the June 15, 2012 Memorandum that established DACA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”), and second is the November 20, 2014 Memorandum that tried to establish DAPA (“Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents”), to the extent that these do not conflict with the Kelly Internal Enforcement Memorandum ((because of crimes, gang activities, drug trafficking, or security risk),

The following people then should be exempted from the Kelly Internal Enforcement Memorandum for now.  The June 15, 2012 Memorandum establishing DACA covers the following people:

  • An undocumented person who was under the age of 31 as of June 15, 2012;
  • Who came to the United States before reaching 16th birthday;
  • Who continuously resided in the United States since June 15, 2007, and up to the present time;
  • Was physically present in the United States on June 15, 2012, and at the time of applying for DACA;
  • Entered without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012;
  • Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or was an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.
  • Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.

The following people should also be exempted for now under the November 20, 2014 Memorandum.  That Memorandum tried to establish DAPA.  It also removed the requirement that limited DACA only to people who were under 31 as of June 15, 2012 (born  since June 15, 1981).  The November 20, 2014 Memorandum added the following persons yhsy should be currently exempt but subject to future memoranda and to the extent they do not conflict with the Kelly Internal Enforcement Memorandum:

  • An undocumented individual living in the United States who is the parent of a U.S. citizen or lawful permanent resident;
  • Who has lived in the United States continuously since January 1, 2010;
  • Had, on November 20, 2014, a son or daughter who is a U.S. citizen or lawful permanent resident; and
  • Is not an enforcement priority for removal from the United States under the Kelly Internal Enforcement Memorandum.

The Kelly Internal Enforcement Memorandum Except directs ICE to hire 10,000 officer and agents “subject to available resources” and to take actions “consistent with available resources.” While rescinding any prior memoranda regarding enforcement priorities, the Kelly Internal Enforcement Memorandum sets its own priorities, which includes aliens that are inadmissible or deportable for crimes, are security threat, or who have committed fraud or material misrepresentation for immigration benefits.  The Memorandum also priorities removal of applicants for admission, including people who have been physically present in the United States for less than two years.

The Memorandum further prioritizes removal aliens who:

  1. have been convicted of any criminal offense;
  2. have been charged with any criminal offense that has not been resolved;
  3. have committed acts which constitute a chargeable criminal offense;
  4. have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency;
  5. have abused any program related to receipt of public benefits;
  6. are subject to a final order of removal but have not complied with their legal obligation to depart the United States; or
  7. in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

Continue reading →

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President Trump’s  Executive Order signed on January 27, 2017, “Protecting the Nation from Foreign Terrorist Entry into the United States”, also affects  Legal Permanent Residents from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.  The Executive Order cites to 8 U.S.C. Sec. 1182(f), which permits the President “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”  The Immigration and Nationality Act defines an “alien” as “any person not a citizen or national of the United States.”  8 U.S.C. Sec. 1101(a)(3).  Legal Permanent Residents fall under this definition.  Even though Legal Permanent Residents are not “applicants for admission” unless they have committed certain acts, the broad language of 8 U.S.C. Sec. 1182(f) references “entry” and not “admission” and therefore, the Executive Order will affect Legal Permanent Residents’ entry in the United States.

The Order provides DHS with limited discretion to permit entry to certain aliens on a case-by-case basis.  Sections 3(g) and 5(e) provide for discretion on a “case by case basis” but only if they determine that admission of such person is in the national interest.  Continue reading →