Imagining The Improbable: Extraordinary Immigration Solutions For The Hapless And Hopeless

Article by

Angelo Paparelli and Janet

J.

Greathouse

Immigration lore includes a host of stories, some of which

may be factual. There once was a loving wife who was called to

the emergency room of an urban hospital. Her husband had

collapsed and needed a new heart. The cardiac specialist who

greeted her seemed unusually chipper. He let her know that the

patient was stable and that, fortunately, two hearts of

recently deceased men were available. She was given the choice:

a young triathlete who neither smoked nor imbibed, or an

overweight, three-pack-a-day couch potato who worked as an

immigration officer. She chose the heart of the immigration

officer. Incredulous and suspecting evil motives, the doctor

asked her to explain her choice. The wife responded:

"Because his heart's never been used!"

As this fictional story suggests, U.S. immigration officials

are not generally known for their kindness and compassion. When

it comes to considering requests to forgive immigration

violations, particularly in the post-9/11, era, the popular

perception is that immigration officers cold-heartedly go

"by the book." Empathy and understanding, it seems,

fall "by-the-wayside." As with much of life, however,

appearance is not always reality. Immigration law, and the

officers who administer it, as this article will show, review

well-documented applications carefully and, in deserving

situations, can be persuaded to provide humane relief.

Immigration's Complexity Causes Many to

Stumble

Immigration law has never been for the faint of heart or the

dilettante. Anyone even passingly familiar with this formerly

backwater, now front-burner subject knows that it is routinely

frustrating, confusing, illogical and dispiriting. Its

complexity and obscurity have been assailed by the courts,

Congressional researchers and even government officials charged

with granting immigration benefits. Immigration law, in short,

is "a mystery and a mastery of

obfuscation."1

Not surprisingly, compliance with the immigration law is

rarely easy. Innocent or unwitting violations frequently occur.

Regrettably, foreign citizens often fall out of immigration

status because of an oversight, a blunder, ineptitude, or

clearly fraudulent conduct by a third party. The fault may be

attributable to an employer, a school, an attorney, a business

partner, an immigration official who provides misguided advice,

or all too often, an unscrupulous immigration consultant or

notario.

When star-crossed foreign nationals lose lawful immigration

status because they are unschooled in the mysteries of

immigration law, make an innocent mistake or entrust their

cause to an errant third party, the legal consequences can be

just as harsh as for those who intentionally break the law.

Loss of employment, family separation, career disruption,

forced sales of businesses and property, removal from the

United States and ten-year bars on reentry all may befall the

well-intentioned and upright person who tried sincerely but

nonetheless failed to maintain lawful immigration status.

By the time a foreign citizen in this predicament finds

competent immigration counsel, the problems may appear

insoluble. The situation, however, is not necessarily hopeless.

Immigration law and regulation, agency discretion and judicial

decisions provide potential remedies to those who, as a result

of extraordinary circumstances, have failed to maintain lawful

immigration status. These cases require thorough investigation

of the facts, diligence in gathering documentation and zealous

legal advocacy.

Extraordinary Circumstances

Nonimmigrant status is of limited duration and contingent

upon very specific terms. Foreign citizens in temporary or

"nonimmigrant" status must always remain diligent in

complying with the immigration laws. Indeed, when a

nonimmigrant seeks to extend stay or change status, the

applicant must show that s/he has continuously maintained legal

status. Unfortunately, a nonimmigrant can fail to maintain

status for a variety of reasons, many of which involve

inadvertent actions or events that are entirely out of the

individual's control. In some cases, the individual may not

even be aware of a problem with status until beginning to

prepare the application requesting an extension of nonimmigrant

stay ("EOS") or change of status

("COS").

Fortunately, immigration regulations provide relief in

deserving cases. The failure to file the request for extension

of stay before the period of previously authorized status

expired may be excused at the discretion of the U.S.

Citizenship and Immigration Services ("USCIS") if the

individual demonstrates, among other factors, that the delay

was attributable to extraordinary circumstances beyond the

control of the applicant or petitioner, and the delay is

commensurate with the circumstances.2 Interestingly,

this section forgives the failure to file on time, whereas

another regulatory forgiveness provision (pertaining to COS

applications) covers both the expiration of the period of

authorized stay and the failure to maintain the previous

status. The distinction may not necessarily be an obstacle;

however, if one considers that a failure to maintain status

causes the status to come to an end, hence to

"expire."3

A policy memorandum issued by the predecessor immigration

agency, the Immigration and Naturalization Service

("INS"), supports this interpretation. Specifically,

in its memorandum providing guidance for H-1B petition

processing under the American Competitiveness in the

Twenty-First Century Act, legacy-INS states "discretionary

excuse, in certain circumstances, of a nonimmigrant's

failure to timely file a request for an extension of stay or

change of status" is permitted.4 For example,

an H-1B worker who is terminated would fail to maintain status

at the moment the employment ends, even though the person's

period of authorized stay has not expired. The INS memorandum

thus confirms that even though the individual is not an

"overstay" s/he can benefit from the EOS forgiveness

provision which by its terms requires that the individual to

have remained longer than allowed.

More expansively than the EOS eligibility requirements, the

provision allows for the approval of a COS application on

behalf of a deserving out-of-status nonimmigrant, in cases

where either the applicant "failed to maintain

the previously accorded status" or his/her "status

expired before the application or petition was

filed."5 The immigration regulations further

provides comparable factors that must be satisfied if the

nonimmigrant asks to be excused for failing to file before the

expiration of the period of previously authorized status. One

of the factors that the USCIS will consider is whether the

failure to file a timely application was due to extraordinary

circumstances beyond the control of the applicant or

petitioner, and the delay is commensurate with the

circumstances."6

Eye of the Beholder

The determination of whether extraordinary circumstances

exist is very much in the "eye of the beholder." Each

case is assessed based on its own particular facts. By the

express terms of the rule, the inquiry should focus more on

facts rather than a detailed analysis of the law, given that

"extraordinary" circumstances suggest that the

factual situation is outside the usual. Moreover, when

evaluating these types of cases, the adjudicating officer is

authorized and expected to exercise "discretion" in

assessing whether a regulatory pardon is warranted.

While USCIS discretionary decisions on EOS and COS

applications cannot be administratively appealed, they can be

the subject of judicial review under the Administrative

Procedure Act ("APA")7 in those circuits

that have interpreted the jurisdiction-stripping provisions of

the Illegal Immigration Reform and Immigrant Responsibility Act

("IIRIRA") as applying only to removal

cases.8

Whether or not such review is possible, the attorney must

ensure that each application is thoughtfully and accurately

drafted and that persuasive evidence is compiled and submitted.

In other words, every detail must be as perfect as possible the

forms must be drafted carefully and accurately, there should be

no superfluous documentation, the evidence must be organized

and presented in a well developed and logical progression. At

the core of this presentation should be an honest and

sympathetic life story detailing the extraordinary

circumstances and explaining why the applicant deserves

clemency for his or her immigration transgression.

Flexibility Is the Mantra

The first step in building the client's case is, of

course, gathering all relevant facts. Communication with the

client is critically important. The attorney must elicit much

detailed information regarding the events leading to the loss

of status as well as the harm suffered as a result of these

events. By the end of this fact-finding mission, the attorney

should have a solid understanding of the extraordinary events

that led to the client's current situation and begin

formulating a strategy for presenting the case to the USCIS.

Based on the client's information, the attorney should be

able to determine the declarations needed and the most

appropriate supporting documentation.

When gathering information and supporting documents,

flexibility should be the lawyer's mantra. Since these

types of cases are driven by the facts, one should not even

consider developing templated documents but rather preparing

customized documents necessary to support the relevant facts.

The following real-life case studies (all of which proved

successful) demonstrate the impracticality of a

"checklist" approach.

Identity Theft

What happens when your client has hired a law firm that

doesn't exist? Consider an individual who retains a

"law firm" to file her extension of L-1 status. She

thinks she had a consultation with an attorney, signed a

retainer agreement and obtained a business card with the firm

and attorney's name. She later...