Immigration Law

Sept. 1, 2011, Bender's Immigration Bulletin: AAO Solicits Amicus Briefs

On August 18th, the Administrative Appeals Office posted a Request for Amicus Curiae Briefs addressing the following:

In 2010, the U.S. Court of Appeals for the Ninth Circuit reviewed an AAO decision that dismissed the appeal of an extraordinary ability petition. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). The court concluded that while the AAO raised legitimate reservations about the significance of the submitted evidence, the AAO should have analyzed the concerns in a subsequent "final merits determination." Id. at 1121-22. The AAO seeks amicus curiae briefs on the nature of the "final merits determination" and how the AAO should apply this analysis to extraordinary ability visa petitions filed pursuant to section 203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. §1153(b)(1)(A).

Briefs must be submitted by September 19, 2011. Please refer to Appendix A concerning format and delivery.

The AAO intends to initiate similar stakeholder involvement in other cases with complex or novel issues where the petitioner or applicant consents.

Secure Communities MOAs Terminated; Program Proceeds Nationally

U.S. Immigration and Customs Enforcement Director John Morton sent the governors of the thirty-nine states that had opted into the Secure Communities program a letter notifying them that ICE is terminating all existing Secure Communities memoranda of agreement.

Mr. Morton wrote that there has been substantial on whether a MOA between ICE and a state is necessary to operate the program in that state. "ICE has determined that an MOA is not required to activate or operate Secure Communities for any jurisdiction," according to Mr. Morton's August 5 letter (see Appendix B for an example of the letter and Appendix C for the FAQ also sent to the governors).

Since the program's launch in 2008, ICE has signed agreements with forty-two states. But three states and several other jurisdictions have tried to opt out of the program, prompting confusing responses from ICE. ICE sometimes called the program voluntary, but ultimately acknowledged that local jurisdictions could not, in fact, opt out. ICE will proceed with its plans to have all jurisdictions activated by 2013.

CBP Issues New Cards for Global Entry Members

Customs and Border Protection announced that Global Entry members will now be issued a Global Entry version of the SENTRI card, which allows expedited entry into the United Stated from Canada and Mexico using the NEXUS, SENTRI, and Ready Lanes at land ports of entry.

The new card operates as a SENTRI card for Global Entry members. It is a Western Hemisphere Travel Initiative-compliant, radio frequency identification (RFID) technology-enabled document that may used by U.S. citizens when entering the United States through a land or sea port of entry from Canada, Mexico, or the Caribbean. Global Entry cardholders must follow all program rules for SENTRI, including having their vehicle registered and inspected prior to driving it in the SENTRI lane. The cards do not allow access to NEXUS lanes for entry into Canada or NEXUS kiosks at Canadian preclearance airports.

Current Global Entry members who do not have a NEXUS or SENTRI card may request a new Global Entry version of the SENTRI card online by logging into their Global Online Enrollment Systems account and paying a $15 fee.

To access Global Entry kiosks at U.S. airports and preclearance facilities, members will continue using their passports or Lawful Permanent Resident cards.

DHS Secretary Napolitano: Initiatives Promoting Startups

On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy and operational initiatives aimed at attracting foreign entrepreneurial talent.

"The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs," said Secretary Napolitano.

"USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward," Director Mayorkas said.

The initiatives include a new set of "Frequently Asked Questions" clarifying that an entrepreneur may obtain an employment-based second preference (EB-2) immigrant visa if he or she satisfys the existing requirements, and also may qualify for a National Interest Waiver if he or she can demonstrate that the business endeavors will be in the interest of the United States. USCIS plans to complement the FAQ with internal training on the unique characteristics of entrepreneurial enterprises and startup companies. The FAQ is reprinted at Appendix D.

USCIS has also updated existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa.

The intake and review process for the EB-5 immigrant investor program is being transformed. USCIS has proposed to streamline the EB-5 process to include extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.

USCIS also expanded its premium processing service to immigrant petitions for multinational executives and managers.

N-400 Priority Processing for Certain Noncitizen SSI Recipients

USCIS announced it will prioritize the processing of naturalization applications (Forms N-400) for certain SSI recipients when the SSI benefits will be terminated within one year from the date listed on a recipient's SSI notice and the naturalization application had been pending for four months or more from the date of receipt. Instructions for requesting priority processing are reprinted at Appendix E.

EOIR Disciplines Four Attorneys

EOIR recently took disciplinary action against four attorneys for violations of the rules of professional conduct for immigration practitioners. Final orders of discipline were issued to: James D. Christo, expelled from practice based on his conviction in the United States District Court for the Southern District of New York; Michael Primont, expelled from practice based on his consent to disbarment in Washington State; Terry W. Rombough, suspended from practice for five years based on his disbarment in Texas; and Frank P. Sprouls, suspended from practice for ninety days based on his ninety-day suspension in California. 




Department of State Issues Scam Alert

The Office of Visa Services recently sent out a "scam alert!" addressing the increase in fraudulent e-mails and letters sent to visa lottery applicants. Applicants are reminded that they will not receive a notification letter from the U.S. government, but must check their status online. Official information on the Diversity Visa lottery program is available at The scam alert is available at The Federal Trade Commission released a Consumer Alert titled "Diversity Visa Lottery: Read the Rules, Avoid the Rip-Offs." That alert is found at

Salt Lake City Immigration Court Moves

The Salt Lake City Immigration Court moved to a new location and will be open at 8:00 a.m. on Tuesday, September 13. The court's new address (physical and mailing) is: 2975 South Decker Lake Drive, Suite 200, West Valley City, UT 84119-6094. The court will be co-located with the Department of Homeland Security-U.S. Immigration and Customs Enforcement and the Department of Homeland Security-Office of the Chief Counsel.

USCIS Ombudsman EAD Recommendations

The Citizenship and Immigration Services Ombudsman recently released recommendations on meeting the ninety-day processing mandate for Employment Authorization Documents. Although the majority of EADs are processed within the ninety-day timeline, the Ombudsman recommends that for those pending more than ninety days local offices should have methods in place to facilitate immediate resolution. In addition, USCIS should establish a uniform procession time goal of forty-five days for adjudication and sixty days for issuance of an EAD; improve monitoring of applications through an automated system for tracking processing times; and issue replacement EADs with validity dates beginning on the date the old EAD expires. All of the recommendations and the report can be found at assets/cisomb-employment-authorization-documents-07182011.pdf

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Bender's Immigration Bulletin