Employment Based Immigration
Failure to Appeal to the AAO: Does it Bar all Federal Court Review of the Case?
This Practice Advisory discusses whether and how a person can get review of a U.S. Citizenship and Immigration Services decision in federal court if he or she did not appeal the decision to the Administrative Appeals Office (AAO). The Advisory addresses the Supreme Court case Darby v. Cisneros, holding that a plaintiff is not required to exhaust non-mandatory administrative remedies in certain situations, and how it may apply to cases involving appeals to the AAO. Read More
Federal Court Jurisdiction Over Discretionary Decisions After REAL ID
This Practice Advisory discusses the changes that the REAL ID Act made to INA § 242(a)(2)(B) and outlines an analysis for whether §242(a)(2)(B) applies to a particular case. It also discusses federal court jurisdiction over discretionary decisions after the REAL ID Act in the removal and non-removal contexts. The government has asserted this jurisdictional bar in employment-based, family-based, and humaritarian-based immigration cases. Read More
L-1B Adjudications FOIA
In May 2012, the American Immigration Council filed a FOIA request seeking records issued by USCIS and/or DHS, or used by USCIS and/or DHS, from January 2008 to the present, to instruct, train and/or guide (1) Immigration Service Officers or (2) employees of the Department of State, including… Read More
H-1B Fraud Investigations FOIA
On behalf of the American Immigration Lawyers Association (AILA), the Council, in cooperation with counsel at Steptoe & Johnson LLP, filed a FOIA lawsuit in July 2010 against DHS and USCIS seeking the public release of records concerning agency policies and procedures related to fraud investigations in the… Read More
Simply Soup Ltd. d/b/a NY Soup Exchange – BALCA
The Board of Alien Labor Certification Appeals (BALCA), the administrative body at the Department of Labor that reviews denials of PERM labor certifications, concluded that the Certifying Officer (CO) had the discretion, but not the obligation, to request missing documentation. BALCA failed to address arguments made by the Council and AILA in their amicus brief: that due process and fundamental fairness, as well as the PERM regulatory structure, require the CO to request supplemental documentation when the employer’s compliance with documentation requirements is evident from the record. Read More
Mantena v. Napolitano – Second Circuit
The Council, with AILA, filed an amicus brief arguing that a district court has jurisdiction to review procedures followed by USCIS to revoke an employment-based visa petition. Amici argue that INA § 242(a)(2)(B), which limits judicial review over certain discretionary decisions, does not preclude review over the question of whether USCIS was required to provide notice of the visa petition revocation proceedings to the beneficiary. This is particularly true where, as in this case, the beneficiary had utilized the “porting” provision of INA § 204(j) to change employers more than 2 ½ years earlier, but USCIS issued its notice of intent to revoke only to the former employer and revoked the petition when the former employer did not respond. Read More
Microsoft Corporation – BALCA
The Council and AILA filed an amicus brief in an en banc case pending before BALCA, an administrative body at the Department of Labor that reviews denials of PERM labor certifications. The case turned on the proper interpretation of a regulation which requires employers to notify certain laid-off U.S. employees about new job opportunities before the employers are permitted to hire foreign workers. The brief focused on the agency’s failure to provide fair warning before applying a new, more restrictive interpretation of the notification requirement. Read More
Employment Authorization Documents Adjudication Delays
Faced with increasing reports from immigration lawyers of Employment Authorization Documents adjudication delays, the Council and several partners filed this lawsuit against USCIS and DHS. Read More
Visa Programs for High-Skilled Workers
Valorem, an IT consulting company, petitioned to employ a software developer for three years in H-1B status as part of a project development team at its office. Initially, USCIS denied the petition, but later – after Valorem, represented by AILA member Susan Bond, filed suit – approved it for one year. Read More
Immigration Council Urges U.S. Department of Labor to Ensure Fairness
Washington, D.C. – Recently, the American Immigration Council and the American Immigration Lawyers Association (AILA) filed an amicus curiae brief in Simply Soup Ltd. d/b/a NY Soup Exchange, ETA Case No. A-08322-06241, 2012-PER-00940, urging the Board of Alien Labor Certification Appeals to reaffirm that due process and fundamental fairness… Read More
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