Reviewing Major Immigration Law & Action Events in 2019 w/ Attorneys Nicholas Mireles and John Khosravi
Consular/Department of State
(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status
(1) (U) In General:
(a) (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit. Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
(b) (U) The fact that an alien's subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien's intentions were misrepresented at the time of either the visa application or application for admission to the United States. To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion and is akin to probable cause. See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013). If the activities happened within 90 days after the visa application and/or application for admission to the United States (typically you are looking at activities after entry into the United States), please see paragraph (2) below regarding the 90 day rule.
(2) (U) Inconsistent Conduct Within 90 Days of Admission to the United States:
(a) (U) If an alien engages in conduct inconsistent with his or her nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of his or her true intentions in seeking a visa or admission to the United States). You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe he is ineligible 6C1.
(b) (U) Inconsistent Conduct: For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:
(i) (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. (Note: Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's employment activities when make a 6C1 finding under the 90 day rule);
(ii) (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);
(iii) (U) A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States. (Note: to establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, post may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or
(iv) (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment. (Note: Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90 day rule; the alien must also engage in conduct inconsistent with authorized status without the benefit of such a change of status. Moreover, if an alien engages in the activities for which he/she was admitted, such as to study on a F1 visa, but also engages in unauthorized work without seeking an employment authorization document (EAD), then that is insufficient to justify a presumption of a misrepresentation.)
(c) (U) In cases where you are unsure whether a particular activity is inconsistent with nonimmigrant status or whether a violation occurred, you may request an AO from CA/VO/L/A.
(d) (U) A consular manager must review all 6C1 findings of ineligibility under the 90 day rule.
(3) (U) Inconsistent Conduct After 90 Days: If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises. If you determine that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission, you should apply a traditional 6C1 analysis. See 9 FAM 302.9-4(B).
(2) (U) If you are satisfied that the applicant did not make a material misrepresentation, and the alien is otherwise eligible, process the case to conclusion.
Episode 77 - Interview with Business Immigration Attorney Lorenz Wolffers. Discussing Current Immigration Trends and Practice.
RFEs, Politics & The Future of Immigration Practices
Free Kurzban 15th Ed. Raffle: email me: Info@jqklaw.com
Weekly Recap of Aug. 21 - Sept. 3, 2017 - DACA, Advance Parole, Immigration Court Decisions, ICE, EB-5 Suit, Humanitarian Reinstatement & Co-Counseling
Weekly Recap of July 10-16, 2017 - Travel Bans and Reversed Denials, TPS, F-1 Changes, CBP and the Cloud, Exit Biometrics, Parole, Stokes in Boston, Step-Child Petitions, Proxy Marriages, Growing Your Law Practice
Episode 48: Weekly Recap of July 3-9, 2017.
Travel Ban's Public Support, State Dept. Survey, TNs Regs., Prima Facie
Software, Healthcare for Immigration Lawyers, Pet Peeves, Book Review:
Turn a Negative Into a Positive, Pricing Your Practice Right,
ABA Journal Blawg & More
Weekly Update, Tips & News for June 26 - July 2, 2017: The Ban, Bills, DACA, ICE, I-485, Client Errors, EAD Delays, Education & Frustration
Weekly Update, Tips & News for June 19-25, 2017: Trump Ban, Supreme Court, Visa Denials, SEC EB-5 Suit, USCIS Issues, CBP, ELIS, AILA Conference, Ideas and More
Episode 45: New CA Regs & ICE Detainment, Iraqis, EB-5 Policy, Constitutional Immigration, ESTA, USCIS Delays, Reentry Permits, Special Law Degrees for Immigration Lawyers, Remembering Names & Active/Mindful Listening (Weekly Update for June 12-18, 2017)
Weekly Update, Tips & News for May 29- June 3, 2017: Why People Need Immigration Lawyers, Visa Scrutiny, Precedential Cases, Timetables, Pro Bono Work & Defending the Rule of Law
Weekly Update, Tips & News for May 23-28, 2017: New Investment Green Card Bill, Travel Ban, Suing Sanctuary Cities, Consular Processing Scrutiny, Mandamus Suits, H-2B Visa Increases, Visa Overstays, Haiti TPS Reprieve, Immigration Corruption, FOIA Request Documents, AAO Reentry Permit Denial, Cancelling INS Zoom, Practice Exhaustion, AILA New Orleans Conference, the Importance of Relationships, Tips & More (Weekly Update for May 23-28, 2017)
Weekly Update, Tips & News for May 15-22, 2017: Airport Denials, Gov’t v. Legal Clinics, Losing Clients, Valuing Time, Haves v. Have Nots, Marketing Tips & More
Interview with Immigrant Advocate, Attorney Peter Afrasiabi
Please Note: The initial release of this episode only had a portion of it. The complete episode is re-released here.
Episode 39: Decentralizing Immigration, Winning Over Fear, INS Zoom Update, Client Worries & More. Weekly Update for May 8-14, 2017
Weekly Update, Tips & News May 1-7, 2017: Border Issues, EB-5, Bad Reviews, Future of Legal Marketing & Practice
Weekly Update, Tips & News April 24-39, 2017: Immigration Fight Continues, Processing Delays, Practice Management, Conditional Residency, and More
Presidential things affected
DACA Deported / Asylum for Material Support
F-1 School Accreditation Issues
USCIS SAVE and Drivers license
Naturalization Selective Service Draft
Law Students and Networking with other lawyers
Weekly Update, Tips & News April 10-16, 2017: Trump's Immigration World & Clients, ICE and CBP Crackdowns, L-1B Mess, Scanners and More
Childhood Alzheimer, Marian's Story: http://abcnews.go.com/Health/toddler-childhood-alzheimers-symptoms-experimental-treatment/story?id=46726381
New Youtube Page (URL may change): https://www.youtube.com/channel/UCeJCAgWW2bwZD2zFBjKEs3A
Weekly Update, Tips & News April 2 - April 9 2017, Getting Business and Entrepreneurial Ethos, Helping Clients Beyond the Law, Immigration Police State and More
Weekly Update, Tips & News March 26 - April 1 2017, about Youtube Stars & EB-1, Networking & Pro Support Groups, Immigration Practices & TPS Update
Review of several AAO Decisions regarding EB-1c Multinational Executive or Manager cases touching upon topics such as: Successors in Interest, Portability, Who is considered an "Employee", Functional Managers and Qualifying Relationships in Joint Ventures. Many of these same rules would apply in the L-1 Intracompany Transfer Context.
Successor-In-Interest & Portability in the EB-1c Context
Matter of N-Inc., ID# 129916 (AAO Jan. 13, 2017)
Adjudicators Field Manual (AFM) 22.2(b)(5)(D)
Neufeld Memo For Aug. 6 2009
CFR updated affective Jan. 17, 2017, affecting EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers
Who is an Employee in the EB-1c/L-1 Context?
Matter of A- Inc., ID# 96181 (AAO Jan.12, 20 17)
Nationwide life. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992)
Functional Manager in the EB-1c/L-1 Context
Matter of G- Inc., ID# 96255 (AAO Feb. 17, 2017)
Matter of Z-A-, Inc., Adopted Decision 2016-02 (AAO Apr. 14, 2016)
USCIS Adopted Decision of Matter of Z Link: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2016/Matter-of_Z-A-Inc_Adopted_Decision-2016-02.pdf
My review of Matter of Z
Joint Ventures in EB-1c/L-1 Context
Matter ofUSAM-W-A-D-M-, Inc., ID# 102803 (AAO Feb. 28, 2017)
Matter of M-A-B-W-, Inc., ID# 97882 (AAO Feb. 14, 2017)
Matter of Hughes, 18 I&N Dec. 289
8 CFR 214.2(l)(1)(ii)(K) Intracompany Transferees/Subsidiary
(K) Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.
Synopsis of L-1 AAO Decision Cases
Weekly Update, Tips & News March 19-25, 2017 about Trump Immigration Update, the Future of Immigration Practice & More
Tips and discussion about the Immigration Law Practice, Premium Processing, K-1s, Legislation, EO, Global Entry & More