S Visa Eligibility - United States Attorney Manual - Criminal Resource Manual 1862

1862

S Visa Program—Eligibility


The number of alien witnesses and informants who may be admitted into the United States pursuant to the S Visa Program is limited by law, and is currently set by Congress at 200 per fiscal year for aliens who provide critical, reliable information necessary to the successful investigation or prosecution of a criminal organization, and an additional 50 per fiscal year for aliens who provide critical, reliable information concerning a terrorist organization and who qualify for a reward under the Department of State's rewards program. 8 U.S.C. § 1184(k)(1). See also 22 U.S.C. § 2708(a) (Department of State rewards program). There can be no carryover of allocated S visa slots into the next fiscal year. Certain family members of the alien providing the information—spouse, parents, and children—are also eligible for admission into the United States in an S nonimmigrant derivative status, 8 U.S.C. § 1101(a)(15)(S), and these persons do not count against the numerical limits.

The S nonimmigrant classification is generally available to aliens who would otherwise be inadmissible to or deportable from the United States (for example, due to criminal convictions or certain problems with immigration status). The statute authorizes the Secretary of Homeland Security to waive most grounds of inadmissibility. The program is particularly useful for witnesses or informants who would otherwise be in danger in their home countries. It is also a substantial benefit for many other witnesses and informants who might not otherwise be able legally to enter or remain in the United States.

Questions concerning the eligibility of cooperating aliens for S visa status should be directed to the Policy and Statutory Enforcement Unit in the Office of Enforcement Operations, Criminal Division, at (202) 305-4023.

ALIMORADI v. USCIS - 245(k) waiver - minor, non criminal immigration violations in the interest of national security and public safety

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ARZHANG ALIMORADI, )Case No. CV 08-02529 DDP (JCx)
)
Plaintiff, )ORDER DENYING MOTION TO DISMISS
)

v.
)[Motion filed on July 7, 2008]
)
U.S. CITIZENSHIP & )
IMMIGRATION SERVICES, A)
BUREAU OF THE DEPARTMENT OF )
HOMELAND SECURITY, )
)
Defendants. )
)
__________________________ )


In this matter, Arzhang Alimoradi challenges Defendant United

States Citizenship and Immigration Services’ (“USCIS”) decision to

deny him status as a lawful permanent resident. Before the Court

is Defendant’s motion to dismiss; the issue presented is whether

the regulation used to reject Mr. Alimoradi’s application - which

does not allow USCIS, in its discretion, to ignore minor, non


criminal immigration violations in the interest of national

security and public safety - is a permissible construction of its

authorizing statute. After reviewing the materials submitted by


the parties and considering the arguments therein, the Court finds
the regulation impermissible, and therefore DENIES the motion.

I. BACKGROUND1
Plaintiff Arzhang Alimoradi, Ph.D., is a native and citizen of
Iran and the subject of an approved I-140 visa petition certifying
him as an “Outstanding Professor or Researcher” pursuant to 8

U.S.C. § 1153(b)(1)(B). This qualifies him as a “priority
worker[]” who is at the top of the list (assuming other
prerequisites are met) to obtain legal permanent residency in the
United States. Id. § 1153(b)(1). Dr. Alimoradi is a senior
researcher who specializes in Earthquake Engineering. He completed
his Ph.D. in this area at the University of Memphis in December
2004. (A.R. 79.) Among his many accomplishments, Dr. Alimoradi
has been involved with earthquake research at several prestigious
universities, is a successful science and engineering professor,
and, perhaps most notably, has “been the southern California backup
person for a major northern California earthquake clearinghouse
procedure. A clearinghouse is the focal point of coordinating
post-earthquake investigations between researchers and
organizations from around the globe in the aftermath of a major
earthquake.” (A.R. 80.) He has published articles in numerous
academic journals, and his “state-of-the-art” research “helps civil
engineers to design an earthquake resistant building structure” to
a degree that other researchers had not to this point succeeded.
1 Unless otherwise noted, all facts are either undisputed ortaken from Dr. Alimoradi’s allegations, because, on a motion todismiss for failure to state a claim, this Court must assume aplaintiff’s allegations to be true.

2



(A.R. 107.) In other words, Dr. Alimoradi’s entire illustrious
career revolves around helping communities to build safely and to
prepare successfully for earthquakes, and he would like to live in
Southern California - an earthquake center.
This case arose because Dr. Alimoradi inadvertently let his
employment status lapse. Dr. Alimoradi joined the research and
development department of John A. Martin & Associates (“JAMA”) as a
senior research engineer on January 3, 2005. He was authorized to
work in the United States at this time on an Optional Practical
Training visa, which was valid until January 2, 2006. JAMA sent
Dr. Alimoradi to consult with its General Counsel, Dr. Farzad
Naeim, in order “to handle” his immigration matters and extend his
work visa. (A.R. 79.) To facilitate this process, on February 22,
2005, Dr. Naeim filed an I-140: Immigration Petition for Alien
Worker (outstanding professor/researcher), which was approved by
USCIS on August 18, 2005. The I-140 was the first step in
obtaining legal permanent residency (or, a “green card”) for Dr.
Alimoradi.

At the same time, Dr. Naeim filed an I-129: Petition for
Nonimmigrant Worker (H1B visa). The H1B visa grants temporary work
status (but not a green card) to certain individuals. As part of
preparing the I-129 petition, Dr. Naeim filed a Labor Condition
Application (ETA 9035E), which was certified by the Department of
Labor for the period August 1, 2005 through July 31, 2008. In
other words, Dr. Alimoradi, with the help of Dr. Naeim and JAMA,
applied for an H1B visa and his green card concurrently, as two
alternate means of obtaining legal work status.

3



Once the I-140 petition was approved in August 2005,
certifying that a permanent resident visa was available for him,
Dr. Alimoradi took the next step in the green card process by
filing an I-485 Application to Adjust Status from that of a nonimmigrant
to a lawful permanent resident of the United States.
Because the green card application seemed to be progressing quickly
and with success, Dr. Naeim did not pursue the H1B visa route any
further. (A.R. 86.) Dr. Naeim believed, and told Dr. Alimoradi,
that the combination of the approved Labor Condition Application
obtained through the H1B process, the approved I-140, and the
pending I-485 permitted him to work at JAMA until the expiration of
the approved Labor Condition Application in July 2008. (A.R. 86.)
Dr. Naeim believed “that the mere filing of I-485 would provide Dr.
Alimoradi yet one more source of authorization to work,” in
addition to the approved Labor Condition Application. (A.R. 86.
(emphasis added).) In fact, however, Dr. Alimoradi was required to
file a different application for employment in conjunction with his
I-485: the I-765 Application for Employment Authorization. See 8

C.F.R. § 274a.12(c)(9). According to Dr. Alimoradi, he relied on
Dr. Naeim’s explanation of the prerequisites for legal employment;
as a result, Dr. Alimoradi was unaware that the Labor Condition
Application was insufficient, and that he needed instead to file an
I-765 and to obtain a valid Employment Authorization Document
(“EAD”).
On August 1, 2007, USCIS sent Dr. Alimoradi a “Request For
Evidence” questioning whether he had been properly authorized to
work after February 2, 2006. Dr. Naeim, at that point, began to
conduct further research and discovered the need for an EAD. (A.R.

4



86.) He informed Dr. Alimoradi of this fact, explained how to file
the I-765, obtained the filing fee for Dr. Alimoradi from JAMA, and
urged Dr. Alimoradi to seek outside legal counsel. (A.R. 86-87.)
Dr. Alimoradi immediately filed the I-765, which was received by
USCIS on August 13, 2007. Dr. Naeim has submitted a declaration
attesting, inter alia, that “[n]either JAMA nor Dr. Alimoradi has
ever had any intention of employment without authorization for any
duration at all.” (A.R. 87.)

On October 10, 2007, USCIS sent Dr. Alimoradi an “Intent to
Deny” his I-485 application on the ground that he had worked in the
United States without authorization for more than 180 days. (A.R.
4-7.) Dr. Alimoradi challenges that determination in the instant
complaint, and Defendant USCIS has moved to dismiss.

II. ANALYSIS
A. Jurisdiction
Defendant first moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1), arguing that this Court lacks subject matter
jurisdiction because neither the Declaratory Judgment Act (“DJA”),
28 U.S.C. § 2201, nor the Administrative Procedure Act (“APA”), 5

U.S.C. § 701, “confer independent jurisdiction over this matter.”
(Mot. To Dismiss at 10.) The Court rejects this argument because
the Ninth Circuit has long held that district courts have
jurisdiction under 28 U.S.C. § 1331 over “challeng[es resulting
from the] . . . denial of . . . applications for adjustment of
status.” Chan v. Reno, 113 F.3d 1068, 1071 (9th Cir. 1997); see
5



also Tang v. Reno, 77 F.3d 1194, 1196 (9th Cir. 1996).
Accordingly, Defendant’s Rule 12(b)(1) motion is DENIED.2

B. Failure to State a Claim
Defendant also moves to dismiss under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. The
Court rejects this argument as well.

“A Rule 12(b)(6) motion tests the legal sufficiency of a
claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A
court can dismiss a claim only when no cognizable legal theory
exists to support the plaintiff’s claim, or when the plaintiff has
not alleged sufficient facts to support a cognizable legal theory.
See id. When considering a 12(b)(6) motion, the Court accepts all
material allegations in the complaint as true, and draws all
reasonable inferences in favor of the nonmoving party. See id. As
such, a claim will be dismissed under Rule 12(b)(6) “only if it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Id.
(internal quotation marks omitted).

1. Statutory Framework
Section 245 of the Immigration and Nationality Act (“INA”)
sets forth when an individual is eligible to apply for adjustment
of status. An individual is not, “subject to subsection (k) of
this section,” eligible to apply for adjustment of status if he, as

2 It is of no consequence that Plaintiff’s complaint invokesthe APA and DJA as jurisdiction, rather than specificallymentioning 28 U.S.C. § 1331. Subject matter jurisdiction eitherexists, or it does not. That Plaintiff failed to name preciselythe correct language does not divest this Court of the jurisdictionit rightfully holds. Moreover, the APA and DJA providejurisdiction under § 1331 because they are federal statutes.
Defendant’s argument to the contrary is without merit.

6



relevant here, “has failed (other than through no fault of his own
or for technical reasons) to maintain continuously a lawful status
since entry into the United States.” 8 U.S.C. § 1255(c)(2)
(emphasis added). Subsection (k) excuses an individual from the
requirements of § 1255(c)(2) if, as relevant here, he is “eligible
to receive an immigrant visa” as an outstanding professor or
researcher under § 1153(b), and if

(1) the alien, on the date of filing an application foradjustment of status, is present in the United States pursuantto a lawful admission;
(2) the alien, subsequent to such lawful admission has not,
for an aggregate period exceeding 180 days –
(A) failed to maintain, continuously, a lawful status;
(B) engaged in unauthorized employment; or
(C) otherwise violated the terms and conditions of thealien’s admission.
Id. § 1255(k). There is no dispute that Dr. Alimoradi would
qualify for the exemption in § 1255(k) except that, because of the
confusion over his I-765 application, he “engaged in unauthorized
employment” for “an aggregate period exceeding 180 days.”
Accordingly, in order to successfully challenge USCIS’s
determination that he is ineligible to apply for adjustment of
status, Dr. Alimoradi must show that his failure to maintain lawful
employment status was “through no fault of his own or for technical
reasons.”

2.
Application
a.
Applicability of the “No Fault of His Own orTechnical Reasons” Exception
The parties devote most of their briefing to debating whether
or not Dr. Naeim’s misinformation constituted ineffective
assistance of counsel such that Dr. Alimoradi’s unlawful employment
status came about “through no fault of his own.” The Court
emphasizes that, in light of the dire consequences for Dr.

7



Alimoradi, Dr. Naeim’s failure to conduct a thorough and accurate

investigation into the requirements for obtaining legal work status

is truly deplorable. However, the Court need not reach the

question of ineffective assistance of counsel, because it finds

that, assuming all allegations in the complaint are true, Dr.

Alimoradi’s mistake was “through no fault of his own or for

technical reasons” within the meaning of the INA, and that

therefore it did not render him ineligible to apply for adjustment

of status.3

The phrase, “no fault of his own or for technical reasons” is

not defined in the statute. It is, however, defined in the

implementing regulations, and those regulations “limit” its

application to four categories, which both parties agree do not fit

this case.4 Instead, Plaintiff Alimoradi argues that limiting the

3 Although Dr. Alimoradi’s briefing does not focus on the“technical reasons” clause, a fair reading of his argument revealshis contention that he falls into either exception - “no fault ofhis own” or “for technical reasons”; essentially, he argues thatthe mistake was minor and unintentional, and that he diligentlyattempted to comply with all immigration requirements. Moreover,
the implementing regulations define the clauses as a whole,
suggesting they should be analyzed as one.

4 The exceptions are:

(i) Inaction of another individual or organization designatedby regulation to act on behalf of an individual and over whoseactions the individual has no control . . .; or
(ii) A technical violation resulting from inaction of theService . . . [; or]
(iii) A technical violation caused by the physical inabilityof the applicant to request an extension of nonimmigrant stay. . . [; or]
(iv) A technical violation resulting from the Service’sapplication of the maximum five/six year period of stay forcertain H-1 nurses . . . .
8 C.F.R. § 1245.1(d)(2).

8



applicability of the exception to four narrow categories violates
the APA, which “commands reviewing courts to ‘hold unlawful and set
aside’ agency action that is ‘arbitrary, capricious, an abuse or
discretion, or otherwise not in accordance with law.” Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) (quoting 5 U.S.C. §
706(2)(A)). The Court agrees.

Under Chevron U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837, 844 (1984), courts must defer to
agency regulations as interpretations of their governing statutes
“unless they are arbitrary, capricious, or manifestly contrary to
the statute.” Here, the narrow construction imposed by the
regulation is manifestly contrary to the plain language of the
statute, which provides that any individual whose disqualifying
activity occurred “through no fault of his own or for technical
reasons” shall not be rendered ineligible for adjustment of status.
Nothing in the statute allows for the regulatory interpretation
that only certain individuals who fall into unlawful status through
no fault of their own or for technical reasons may qualify for this
exception.

The Court can find almost no case law interpreting this
provision. However, Mart v. Beebe, CIV. 99-1391, 2001 WL 13624 (D.
Or. Jan. 5, 2001) (unpublished), is instructive. There, the
plaintiff was admitted to the United States as a non-immigrant (B-2
visa), and then applied with her husband for political asylum. She
was “not aware” that she was required to apply to extend her B-2
visa while the asylum application was pending, and therefore fell
out of lawful status. Id. at *2. Her I-485 application was denied
on that basis, and she, along with her family, filed suit in

9



federal district court. Judge Jones found that the “lapse of
lawful status” was a “mere technical violation,” and that the
regulation requiring a determination to the contrary

defies Congress’ intent that individuals such as theplaintiffs, who have diligently endeavored to obey the law andhave contributed substantially to the United States . . .
since their arrival, not be precluded from adjustment becausethey were unaware of their duty to keep their non-immigrantvisas current while awaiting the INS’ decision on theirrequest for asylum.

Id at *5.

Similar logic applies in this case. Assuming all Dr.
Alimoradi’s allegations are true, he was not aware that he needed
to file a separate application for employment authorization.
Instead, he relied on Dr. Naeim, who told him that the approved
Labor Condition Application, in combination with an approved I-140
and the pending I-485, would suffice. It is not as if Dr.
Alimoradi failed to apply for any employment authorization; he
simply failed to apply for the right kind.5 As soon as he realized
his error, he filed the appropriate I-765 application. Because he
already had employment approval of some kind, his mistake, like
that at issue in Mart, amounts to a “mere technical violation.”
Essentially, Dr. Alimoradi mixed up the paperwork - not difficult
to do in this maze of statutes and regulations.

The Court further finds that the implementing regulation is
arbitrary and capricious because it fails to provide an exception
for individuals who are crucial to our national interest and
security, and it therefore presents a serious public safety risk.

5 Defendant asserts that Dr. Alimoradi was in fact aware of
the need to file a separate employment authorization application.
When considering a motion to dismiss for failure to state a claim,
however, the Court assumes that Plaintiff’s allegations are true.

10



Especially in California, the threat of a massive and destructive
earthquake is a constant. The 1994 Northridge earthquake in
Southern California left 57 people dead and more than 1,500 people
seriously injured, and damaged several major freeways. Days later,
9,000 homes and businesses were without electricity, 20,000 were
without gas, and more than 48,500 had little to no water.6 The
1989 Loma Prieta earthquake in Northern California killed 62,
injured 3,757, left more than 12,000 homeless, destroyed portions
of the Bay Bridge, and caused three billion dollars in damage.7
The 1906 San Francisco earthquake killed hundreds and left nearly
half of the city’s 450,000-person population homeless as miles
“burned and crumbled into a windswept desert of desolation.”8
Experts are seriously concerned about the devastation that a large
earthquake could cause in the near future, and the United States
Geological Survey has recently stressed the need for concerted
efforts “to avoid an earthquake catastrophe” because “[t]he
question is not if but when southern California will be hit by a
major earthquake - one so damaging that it will permanently change
lives and livelihoods in the region.”9

6 See http://www.lafire.com/famous_fires/940117_
NorthridgeEarthquake/quake/01_EQE_exsummary.htm (last accessedAugust 20, 2008).

7 See http://www.sfmuseum.org/alm/quakes3.html (last accessedAugust 20, 2008).

8 See http://www.sfmuseum.org/1906_eq_quests/eq.htm (lastaccessed August 20, 2008).

9 See Suzanne Perry et al, The ShakeOut Earthquake Scenario A
Story that Southern Californians Are Writing, U.S. GeologicalSurvey Circular 1324, Cal. Geological Survey Special Report 207(2008), available at http://pubs.usgs.gov/circ/1324/.

11



Dr. Alimoradi is, by all accounts, a talented and innovative
researcher in the area of earthquake science. His work could save
the lives and livelihoods of thousands of Americans in the event of
a serious earthquake. The United States Government has not only
recently warned that we must do everything in our power to prepare
for such a quake, but has specifically certified Dr. Alimoradi as
one of the crucial individuals who will help accomplish this task.
As far as the Court can discern, the United States should be
jumping at the chance to offer Dr. Alimoradi lawful permanent
residency. It would be the very definition of arbitrary and
capricious to hold him ineligible to remain in the United States
because he inadvertently failed to file a second application for
employment authorization even though the approved Labor Condition
Application that he had already obtained was, as far as he knew,
still valid.

The Immigration and Nationality Act leaves ample room for the
Attorney General, in his discretion, to pass regulations that would
forgive minor, technical violations when it is in the interest of
national security or public safety. Instead, USCIS has interpreted
its governing statute in a manner that effectively leaves it
paralyzed. As a result, the agency has allowed itself no
flexibility to act in this country’s best interests. Such a
reading arbitrarily eschews common sense, and creates a fundamental
tension not only with the statute’s plain language, but with its
larger purpose in creating priority worker visas, which, by their
very definition, are designed to make it easier for those skilled
individuals for whom we have a great need to become permanent
residents. See 8 U.S.C. § 1153(b)(1). Congress’s goal of

12



encouraging priority workers to stay in the United States is
directly undermined if USCIS refuses to offer these special
individuals relief from innocent mistakes.10

This Court is mindful of the various roles our Constitution
designed for each branch of government. It in no way intends by
this ruling to intrude on the province of the executive branch.
USCIS may draft reasonable regulations that articulate how the “no
fault of his own or technical reasons” exception should be applied,
including how to account for serious public safety or national
security risks. Rather, the Court’s holding is limited to the
conclusion that the regulation as it stands does not work. Under
the circumstances in this case, the regulation as applied to
preclude Dr. Alimoradi - whose work is vital to public safety and
national security - from immigrating to the United States because
of an innocent mistake, is an impermissible construction of its
governing statute, and therefore cannot stand.

b. Applicability of 180-day Bar
Defendant argues that even if Dr. Alimoradi qualifies for the
“no fault of his own or for technical reasons” exception, he is
nevertheless not eligible to adjust his status to that of a lawful
permanent resident because he worked out-of-status for more than
180 days. The Court disagrees with this statutory construction.

10 Dr. Alimoradi provides an excellent example of theconsequences of this impermissibly narrow regulation, but imagineeven more dramatic examples. Under the current regulation, theUnited States would be forced to export, due to minor, noncriminal,
and unintentional immigration violations, the world’s leadingexperts on nuclear physics, biological terrorism, or chemicalwarfare. Such a result is beyond arbitrary and capricious; it isinimical to public safety.

13



8 U.S.C. § 1255(c)(2) reads, as relevant here, that “subject
to subsection (k) of this section, an alien . . . who has failed
(other than through no fault of his own or for technical reasons)
to maintain continuously a lawful status since entry into the
United States” is ineligible for adjustment of status. Subsection
(k), of course, provides an exception to ineligibility under
subsection (c)(2); those aliens with extraordinary ability, such as
outstanding researchers or professors, may adjust status even if
they worked unlawfully so long as, inter alia, they did not work
unlawfully for longer than 180 days.

Defendant urges the following construction: Section 1255(c)(2)
proscribes adjustment of status for individuals who work
unlawfully, except for those whose mistake was through no fault of
their own or for technical reasons. However, that exception is
subject to the requirements of subsection (k), and as such is
limited to those individuals whose mistakes lasted less than 180
days.

The Court rejects this construction because it turns
congressional intent on its head by imposing additional
requirements on immigrants with outstanding skills or talents that
are not imposed on individuals with no such ability. “It is a
fundamental canon of statutory construction that the words of a
statute must be read in their context and with a view to their
place in the overall statutory scheme.” Nat’l Ass’n of Home
Builders v. Def. of Wildlife, 127 S. Ct. 2518, 2534 (2007)
(internal quotation marks omitted). Through the plain language of
the Immigration and Nationality Act, it is clear that Congress
intended to grant immigrants such as Dr. Alimoradi special

14



treatment in obtaining legal immigrant status by labeling them
“priority workers.” See 8 U.S.C. § 1153(b)(1) ([Employment] “Visas
shall first be made available . . . to qualified immigrants,”
including outstanding professors or researchers (emphasis added)).
This intent is underscored by § 1255(k), which provides for these
individuals with special skills an escape from the sanctions
imposed for certain immigration violations that is not available to
the average individual seeking lawful permanent residency.

The following example well illustrates the backwardness of
Defendant’s argument: Assume that an individual fails to maintain
lawful status because he was ill and physically unable to request
an extension of non-immigrant stay. He would qualify for the “no
fault of his own or technical reasons” exception set forth in §
1255(c)(2), even under the narrow interpretation laid out in the
implementing regulations. See 8 C.F.R. § 1245.1(d)(2)(iii). Now
further assume that because of his illness, the individual was
unable to request an extension of his stay for 220 days. Under
Defendant’s construction, if this individual does not qualify as a
priority worker with outstanding ability under § 1153(b), he can
make use of the exception in § 1255(c)(2) no matter how long he
worked out of status because § 1255(k) does not apply to him.
However, if, like Dr. Alimoradi, he does qualify as a worker with
outstanding talents, he cannot make use of the exception in §
1255(c)(2), even if the circumstances that rendered the individuals
unlawful were identical. In short, under Defendant’s construction,
the statute is less forgiving for special applicants called
“priority workers,” whom Congress has explicitly placed at the
front of the line for obtaining visas, than for a random individual

15



with no special skills whatsoever. It is axiomatic that courts
“must avoid [statutory] interpretations that would produce absurd
results,” and Defendant’s argument clearly does just that. Azarte

v. Ashcroft, 394 F.3d 1278, 1288 (9th Cir. 2005).
Instead, the Court finds that, in the context of the entire
statutory framework, § 1255 provides more flexibility for priority
workers than for regular individuals. In context, the thrust of §
1255(c)(2) is that it prohibits adjustment of status for most
people whose legal status has lapsed. The thrust of § 1255(k) is
that it provides a special, unique exemption for priority workers,
so long as they were not out-of-status for more than 180 days.
Thus, § 1255(c)(2) is “subject to” § 1255(k) in that it offers an
extra exemption for priority workers not offered to regular
applicants.

In addition, § 1255(c)(2) provides an exemption for those
individuals whose status lapses through no fault of their own or
for technical reasons. Unlike § 1255(k), this exemption is not
limited to priority workers, and it does not impose a bar on
adjustment of status for those individuals who worked out of status
for more than 180 days, as long as the mistake came about “through
no fault of [their] own or for technical reasons.” In other words,
a priority worker whose status lapses receives an automatic 180-day
grace period. After the 180 days has passed, to obtain relief he
must demonstrate that he falls into the “no fault of his own or for
technical reasons” exception, which provides relief for any
eligible individual.

Accordingly, consistent with congressional intent to provide
priority workers with priority treatment, the Court finds that Dr.

16



Alimoradi’s invocation of the “no fault of his own or for technical
reasons” exception is not subject to a 180-day limit that would not
have been imposed on a non-priority worker. Having further
determined that the applicable regulation interprets the “no fault
of his own or for technical reasons” exception in an impermissibly
narrow fashion, the Court concludes that, construing the facts of
this case in the light most favorable to Dr. Alimoradi, he may
invoke this exception because his work is crucial to public safety
and the national security of the United States.

III. CONCLUSION
Based on the foregoing analysis, the motion to dismiss is
DENIED.

IT IS SO ORDERED.

Dated: August 29, 2008


DEAN D. PREGERSON

United States District Judge

17

Do Not Be a Victim of Immigration Fraud

U.S. Department of Justice
Executive Office for Immigration Review
Office of the Director
5107 Leesburg Pike, Suite 2600
Falls Church, Virginia 22041 July 22, 2009

Do Not Be a Victim of Immigration Fraud

“Notarios,” Visa Consultants, and Immigration Consultants Are NOT Attorneys ––
They CANNOT Represent You in Immigration Court

If you need help with your immigration case, watch out for persons who pretend to be immigration attorneys or accredited representatives. They can take your money, involve you in immigration fraud, and get you deported or arrested. To protect yourself from immigration fraud, the Executive Office for Immigration Review (EOIR) wants you to know:

Only licensed attorneys, “accredited representatives,” and other qualified representatives can represent you in immigration court, can provide legal services, and can give legal advice.


EOIR’s Immigration Court Practice Manual, Chapter 2, explains who can represent you. You can ask to see the manual at the immigration court’s filing window, or find it on the Internet at www.usdoj.gov/eoir.


“Notarios,” visa consultants, and immigration consultants cannot represent you in immigration court, cannot provide legal services, and cannot give legal advice.


Be careful!
DO NOT sign applications or other papers that are blank.

DO NOT sign applications or other papers that you do not understand.

DO NOT sign applications or other papers that have false information.
DO NOT pay money without getting a receipt, and be careful when people ask you to pay a lot of money for immigration help.
DO get copies of all applications or other papers prepared or filed for you.
DO check that an attorney or “accredited representative” can represent you in immigration court. (See Immigration Court Practice Manual, Chapter 2.)
DO report complaints about “notarios,” visa consultants, and immigration consultants to your state Bar Association and/or your state Office of Attorney General.

Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children - Neufeld Memo June 15, 2009 - I-360 Widow

Washington, DC 20529

June 15, 2009


Memorandum
TO: Field Leadership
FROM: Donald Neufeld Acting Associate Director, 0
SUBJECT: Guidance Regarding Surviving Spouses of Deceased U.S. Citizens and their Children

I. Purpose
This memorandum provides guidance to U.S. Citizenship and Immigration Services (USCIS) field offices and service centers regarding the processing of surviving spouses of deceased U.S. citizens and qualifying children of the surviving spouses. It affords a new process by which they may apply for deferred action. This policy guidance will be in effect until further notice and may be revised as needed.
II. Background
Section 205. 1 (a)(3)(i)(C) of title 8 of the Code of Federal Regulations (8 CFR) requires that the approval of Form 1-130, Petition for Alien Relative, be automatically revoked upon the death of the petitioner if the beneficiary has not adjusted status in the United States or been inspected and admitted as an immigrant. In such instances, the beneficiary may request a reinstatement of the approval and USCIS, in its discretion, may grant such a request for humanitarian reasons. 8 CFR 20S.1(a)(3)(i)(C)(2).
However, no avenue of immigration relief exists for the surviving spouse of a deceased U.S. citizen if the surviving spouse and the U.S. citizen were married less than 2 years at the time of the citizen's death and (1) the immigrant petition filed by the citizen on behalf of the surviving spouse has not been adjudicated by USCIS at the time of the citizen's death, or (2) no petition was filed by the citizen before the citizen's death. This issue has caused a split among the circuit courts of appeal and is also the subject of proposed legislation in the U.S. Congress (bills S. 815 and H.R. 1870).
1 Depending on context, the term beneficiary in this guidance may include both actual and potential beneficiaries of Forms 1-130 filed on their behalf.
www.uscis.gov
III. Policy Guidance
This policy guidance covers only (1) surviving spouses of U.S. citizens who died before the second anniversary of the marriage, who have not remarried and were not legally separated from the citizen spouse at the time of the citizen’s death, and who are residing in the United States,2 and (2) such surviving spouses’ qualifying children. For purposes of this policy guidance, “qualifying children” are any children of the surviving spouse of the deceased U.S. citizen who remain unmarried and under 21 years of age (age determinations for beneficiaries of Forms I-130 should be made as provided in section 201(f) of the INA).
This guidance applies to the aforementioned beneficiaries without regard to their manner of entry into the United States. Such surviving spouses are covered without restrictions on how long the U.S. citizen spouse has been deceased as long as the surviving spouse has not remarried.3
This guidance does not cover surviving spouses or qualifying children of deceased U.S. citizens who are residing outside the United States or surviving spouses and children of a lawful permanent resident or other non-U.S. citizen. This guidance also does not cover surviving spouses or qualifying children of deceased U.S. citizens if the surviving spouse remarried at any time after the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated). This guidance does not cover any beneficiary who was legally separated from his or her U.S. citizen spouse at the time of the citizen’s death, or such beneficiary’s children.
Since current section 201(b)(2)(A)(i) of the Immigration and Nationality Act (INA) treats covered widow(er)s of U.S. citizens and their children as immediate relatives based upon a self-petition, they are not covered by this guidance. They may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, in accordance with the instructions on the Form.
In order to address humanitarian concerns arising from cases involving surviving spouses of U.S. citizens, USCIS is instituting the following policy guidance, which is effective immediately and until further notice.
A. Form I-130 Approved Prior to the Death of the U.S. Citizen Spouse (Petitioner)
Upon the death of the U.S. citizen petitioner, the approved Form I-130 is automatically revoked pursuant to 8 CFR 205.1(a)(3)(i)(C). The beneficiary, however, may request reinstatement of the revoked petition pursuant to 8 CFR 205.1(a)(3)(i)(C)(2). USCIS may then exercise discretion and grant the reinstatement after considering the facts and humanitarian considerations of the particular
2 Section III(A) of this memorandum, however, regarding humanitarian reinstatement, shall apply to surviving spouses outside the United States. 3 This guidance is also applicable to a beneficiary who entered the United States on a K-1 Nonimmigrant Visa and married a U.S. citizen other than the U.S. citizen petitioner who filed the I-129F. If the U.S. citizen spouse died before the second anniversary of the marriage, the widow(er) is eligible for deferred action or humanitarian reinstatement as described herein.
If the request for humanitarian reinstatement is approved, the beneficiary may proceed to the adjustment of status or consular processing stage.
This memorandum does not alter the process for reviewing a Form I-130 returned to USCIS by a U.S. Consular Officer overseas when the beneficiary is seeking a humanitarian reinstatement. If USCIS reinstates the Form I-130 returned by the consular officer, the I-130 should be forwarded to the National Visa Center to allow the beneficiary to resume consular processing. Section III(A) of this guidance, relating to humanitarian reinstatement, applies to beneficiaries who are within or outside the United States.
If a beneficiary covered by this guidance requests humanitarian reinstatement, adjudicators should presume that humanitarian reasons support a grant of the request. Absent extraordinary factors or a failure to meet the regulatory requirements of 8 CFR 205.1(a)(3)(i)(C)(2), adjudicators should favorably exercise discretion accordingly. If the request for reinstatement cannot be granted for any reason other than confirmed or suspected fraud or issues of criminality or national security, the beneficiary should be informed that he or she may request deferred action in the manner described in III(E) below.
In a case governed by First, Sixth or Ninth Circuit law, officers should consult with local USCIS counsel before treating an approved spousal immediate relative petition as “revoked” under 8 CFR 205.1(a)(3)(i)(C). Courts in those jurisdictions have held that the visa petitioner’s death does not end a surviving spouse’s eligibility for classification as an immediate relative. Taing v. Napolitano, ___ F.3d ___, 2009 WL 1395836 (1st Cir. 2009); Lockhart v. Napolitano, 561 F.3d 611 (6th Cir. 2009); Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006).
B. Form I-130 Pending at the Time of Death of the U.S. Citizen Spouse (Petitioner) – Married Less than 2 Years at Time of Death
Once USCIS has received a copy of the U.S. citizen petitioner’s death certificate, the pending, stand-alone Form I-130 should be held in abeyance at the pending location. Petitions may be transferred to the Vermont Service Center to be consolidated with the A-file housing a deferred action request, if such a request is made by the beneficiary (see further guidance below).
Any concurrently filed Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-130, should be held in abeyance at the National Benefits Center until further guidance. The beneficiary will remain eligible to receive the interim benefits of advance parole and employment authorization on the basis of the pending adjustment of status application.
If a Form I-485 was not concurrently filed, the beneficiary should be informed that he or she may request deferred action in the manner described in section III(E) below.
Note: In instances where the beneficiary and deceased U.S. citizen petitioner were married for at least two years at the time of the petitioner’s death, the Form I-130 should be denied under existing procedures. Instructions should be provided to the beneficiary regarding the availability of the Form I-360 as a special immigrant widow/widower. Any associated Form I-485 should also be denied.
C. Form I-130 Denied (Prior to the Issuance of this Guidance) due to the Death of the U.S. Citizen Spouse (Petitioner)
A beneficiary who is the surviving spouse of a U.S. citizen petitioner and whose petition was denied by USCIS (1) due to the death of the U.S. citizen petitioner, and (2) prior to the issuance of this guidance, may request deferred action in the manner described in section III(E) below.
D. Form I-130 Not Filed Prior to the Death of the U.S. Citizen Spouse
A beneficiary who was legally married to a now deceased U.S. citizen at the time of the U.S. citizen’s death, but for whom no Form I-130 was filed, may request deferred action in the manner described in section III(E) below.
If the beneficiary was not legally married to, or was legally separated from, the deceased U.S. citizen at the time of the U.S. citizen’s death, a qualifying relationship does not exist. The beneficiary is therefore not eligible to submit Form I-360 based on the specific policy guidance set forth in section III(E) below.
E. Required Documentation for Requests for Deferred Action
Beneficiaries may request deferred action by submitting the following:
1) A Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, with the appropriate, nonwaivable filing fee (currently $375), completed in the format explained below; and 2) All of the documents requested in the Form I-360 filing instructions for widow/widowers.
The beneficiary of the Form I-360 must check box “m. Other, explain:” in Part 2 of the petition and cite the basis for eligibility as “Deferred Action --Surviving spouse of a deceased U.S. citizen, married less than 2 years.” The Form I-360 must be submitted to the Vermont Service Center for deferred action consideration. Note that while USCIS is utilizing Form I-360 for these deferred action requests, such filings are NOT immigrant self-petitions under current law. They should be adjudicated as requests for deferred action only. In addition to the Part 2 information described above, the applicant must complete Parts 1, 3, 4, 7, 9, 10 and 11 of the Form I-360.
F. Decision on Requests for Deferred Action
Requests for deferred action based on the specific policy guidance set forth in this memorandum may only be considered for: 1) surviving spouses of U.S. citizens whose U.S. citizen spouse died before the second anniversary of the marriage and who are unmarried and residing in the United States; and 2) their qualifying children who are residing in the United States.
The following persons are ineligible for deferred action: 1) beneficiaries whose visa petition was denied or revoked for any reason other than or in addition to the death of the petitioning U.S. citizen spouse; 2) widow(er)s who have remarried or were legally separated from the U.S. citizen spouse at the time of the U.S. citizen’s death; and 3) beneficiaries with other serious adverse factors, such as national security concerns, significant immigration fraud, commission of other crimes, or public safety reasons. A grant of deferred action is a discretionary action on the part of USCIS. It is intended that this discretion should be liberally applied to provide a humanitarian benefit to eligible beneficiaries. However, deferred action may be denied for serious adverse factors, whether or not such factors are specifically identified in this guidance.
Requests for deferred action based on the specific policy guidance set forth in this memorandum will not be considered for beneficiaries who: 1) are surviving spouses or qualifying children of non-U.S. citizens; 2) are residing outside the United States; 3) meet the conditional marriage period set forth in INA 201(b)(2)(A)(i); or 4) have remarried subsequent to the U.S. citizen’s death (regardless of whether the subsequent marriage has been terminated).
Once a decision on the request for deferred action has been made, the decision must be communicated to the beneficiary via a decision letter. If the request has been granted, the deferred action grant letter must state that the beneficiary is eligible to file Form I-765, Application for Employment Authorization. If the request has been denied, the deferred action denial letter must cite the reasons for the denial. A decision on a request for deferred action falls within the discretion of the Secretary. A denial of a request for deferred action is not subject to administrative appeal or judicial review, see INA § 242(a)(2)(B), and (g).
G. Validity Period for Deferred Action
The validity period of deferred action based on the policy guidance set forth in this memorandum is two (2) years from the date of grant of the Form I-360 request for deferred action.
H. Eligibility for Employment Authorization
The appropriate classification for Form I-765 filed on the basis of a deferred action grant is (C)(14) pursuant to 8 CFR 274a.12(c)(14). Beneficiaries may submit Form I-765, with the appropriate filing fee (currently $340), using this classification at any time after the grant (but prior to the expiration) of deferred action. However, they must demonstrate an economic necessity. The validity period for an employment authorization document (EAD) under the classification (C)(14), based on the specific policy guidance set forth in this memorandum is two (2) years, not to exceed the expiration date of the grant of deferred action.
All requests for employment authorization based on the policy guidance set forth in this memorandum must contain the appropriate required supporting documentation. Applicants must follow currently established filing procedures for the Form I-765 in accordance with the instructions on the form. Fee waiver of the Form I-765 fee is available on a case-by-case basis for substantiated inability to pay as provided in 8 CFR 103.7(c)(1).
A beneficiary whose Form I-485 is being held in abeyance may also file a Form I-765, with the appropriate filing fee. The appropriate classification for employment authorization filed on such a basis is (C)(9) pursuant to 8 CFR 274a.12(c)(9). Evidence of an economic necessity is not required if using this classification. A beneficiary whose application is being held in abeyance may have been issued an employment authorization document valid for one year under category (C)(9). When such an applicant files a Form I-765 for renewal of his or her EAD under the classification (C)(9), based on the specific policy guidance set forth in this memorandum, the validity period will be two

(2) years. An applicant with a valid EAD under the classification (C)(9) may file for renewal no more than 90 days prior to the expiration date of the valid document. The employment authorization may then be granted for two (2) years based on the specific policy guidance set forth in this memorandum.

I. Effect of Grant of Deferred Action

The grant of deferred action by USCIS does not confer or alter any immigration status. It does not convey or imply any waivers of inadmissibility that may exist, regardless of whether that inadmissibility is known to DHS or other agencies at the time of the request for deferred action. A grant of deferred action also does not eliminate any period of prior unlawful presence. However, periods of time in deferred action do not count as unlawful presence for the purposes of sections 212(a)(9)(B) and (C) of the INA. Any period of time in deferred action qualifies as a period of stay authorized by the Secretary of Homeland Security for those purposes.
J. Eligibility for Advance Parole
Beneficiaries granted deferred action based on the policy guidance set forth in this memorandum or whose applications for adjustment of status are being held in abeyance may request advance parole. Such request may be made by filing Form I-131, Application for Travel Document, in accordance with the Form I-131 instructions and with the appropriate fee. Note, however, that departure from the United States and return, even under a grant of advance parole, may adversely affect eligibility for adjustment of status of aliens with past periods of unlawful presence.
K. Implementation
USCIS offices and centers are to begin implementing the instructions established in this memorandum immediately.
L. Contact Information
Questions regarding this memorandum should be directed to the Office of Domestic Operations through appropriate channels.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.
Distribution:
Regional Directors District Directors Field Office Directors National Benefits Center Director Service Center Directors

My Spouse Left the US to Avoid Paying Child Support - International Enforcement of Child Support

Failure to pay court-ordered child support carries criminal consequences under both the state and federal statutes. In addition, non-paying parent may encounter severe immigration ramifications for avoiding payment of child support obligations.


July 14, 2009 – Currently every state has an in-state child support enforcement mechanisms that allow a state to garnish income, hold non-paying spouse in contempt or revoke his/her license. Income withholding encompasses deduction of money from the income of the non-custodial parent (including wages, overtime pay, worker's compensation, unemployment compensation, retirement benefits, etc.) A person found in contempt may be ordered to pay a lump sum of money. The person also can be sent to jail (incarcerated) until a certain sum of money is paid. Finally, if a court finds the non-custodial parent failed to obey the court order, it may order his or her driver's license, professional, occupational license, or recreational license suspended after 30 days.

If the non-custodial parent moves out of state and the state Support Enforcement Services Unit is already enforcing the case, the Unit will take the steps to collect child support from the out-of-state parent. Some of the available interstate enforcement tools include:

* Direct income withholding (the filing of an income withholding with an out-of-state employer)
* Registering a custodial parent order in a new state to give the new state authority to enforce the order
* Interstate real property liens
* Seizure of financial assets
* Referral to the U.S. Attorney for federal prosecution under the Child Support Recovery Act and Deadbeat Parents Punishment Act, 18 U.S.C. Section 228.

However, there are circumstances when a non-custodial parent may attempt to leave the US in order to avoid payment of the child support. Luckily for a custodial parent, if a non-paying spouse left the US in hoping to avoid paying the child support, there might be a relief available. In 1996, the United States government joined international convention concerning enforcement of child support. If a non-paying spouse resides in a country where US has a bilateral agreement, the child support obligations are easier to enforce. At this moment, such countries are Australia, Canada. Czech Republic, El Salvador, Finland, Hungary, Ireland, Netherlands, Norway, Poland, Portugal, Slovak Republic, Switzerland, The United Kingdom of Great Britain and Northern Ireland.

In addition, State of Connecticut signed separate child support agreements with the following countries: Australia, Bermuda, Canadian Provinces: Alberta, Nova Scotia, British Columbia, Ontario, Manitoba, Saskatchewan, New Brunswick; Czech Republic, France, Germany, Hungary, Ireland, Mexico (the following 27 of 32 states): Aguascalientes, Nayarit, Baja California, Nuevo Leon, Campeche, Puebla, Chiapas, San Luis Potosi, Chihuahua, Queretaro, Coahuila, Quintana Roo, Colima, Sonora, Distrito Federal, Tabasco, Guanajuato, Tamaulipas, Guerrero, Tlaxcala, Hidalgo, Veracruz, Jalisco, Yucatan, Michoacan, Zacatecas, Morelos; Norway, Poland, Slovak Republic, United Kingdom: England, Wales, Scotland, Northern Ireland.

Immigration Consequences of Failure to Pay Child Support

A Legal Permanent Resident (green card holder), who is applying for the US citizenship must demonstrate good moral character. Fulfilling one's child support obligations is crucial to satisfy this requirement. Hence, failure to pay child support may prevent a non-paying non-US citizen parent from becoming a U.S. Citizen.
Changing country of residence may have dire immigration ramifications even on the U.S. Citizens. Although U.S. passports cannot be denied based on requests from private individuals, nonetheless the Secretary of State must deny issuance of a passport to a person who is in arrears of child support of more than $5,000 based upon a certification to that effect by the Secretary of Health and Human Services (HHS). (42 U.S.C. 652 (k)). Needless to say that the restoration of a U.S. passport or even obtaining the limited validity passport for the purpose of entering the U.S. is a complicated bureaucratic process.

Frequently, non-custodial parents fall behind their child support payments due to the change in their financial circumstances and assume that there is nothing can be done to fix the problem. They may decide to leave the country, work"under the table" to avoid have their wages garnished or undertake other ill-advised decisions. Fortunately, most of the child support issues could be avoided by a timely consultation with an attorney who has experience in child support modifications.

Alex Meyerovich - M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut.

To learn more, visit http://www.uslegalvisa.com

The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.

# # #

Full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & business law with particular attention to the consequences on our clients' immigration status.

Save Money by Filing Your Tax Return Jointly with Your Foreign Spouse!

Jul 14, 2009 – If you legally live and work in the U.S. and you have a foreign spouse who lives abroad, it is possible for you to file a joint income tax return and save large amounts of money every year.

For example, if you made $16,000 in 2008, and you filed as a single person with no dependents, you would have paid $2,000 in income tax. But if you had filed a joint income tax return with your foreign spouse, you would have only paid $1,600, saving $400.

All you have to do is get a Taxpayer Identification Number (ITIN) for your foreign spouse who is living abroad and attach the necessary documents to your income tax return.

In order to file this joint income tax return, your spouse must either have a Social Security Number (“SSN”) or an Individual Taxpayer Identification Number (“ITIN”). If your spouse does not fulfill the requirement to get a SSN, he or she can file Form W-7 with the Internal Revenue Service (IRS) to apply for an ITIN.

When you decide that you want to file a joint income tax return, attach a statement signed by both you and your spouse to the return for the first tax year for which your decision applies. In this statement, you must include a declaration that your foreign spouse lived abroad and you were legally living and working in the U.S. on the last day of your tax year. You must write that both of you choose to be treated as U.S. residents for that entire tax year. You must also include the name, address, and SSN or ITIN of both you and your spouse.

This law applies even if your spouse died in the tax year for which you are filing your tax return!

You can even demand a prior tax return and re-file it jointly with your foreign spouse and get a refund of past taxes paid. If you and your spouse choose to do this, you and your spouse will also have to amend any tax returns that you filed after the year for which you made the choice. You usually have to file the amended joint return within 3 year from when you filed the original tax return you want to amend or within 2 years from when you paid your income tax for that year, whichever is later.

After you make the decision to file jointly, your spouse will be treated as a U.S. resident, for tax purposes, for all future years. However, your spouse will no longer be treated as a U.S. resident if either you or your spouse decides that you do not want to file a joint income tax return any longer, if you or your spouse dies, if you and your spouse divorce or separate, or if you do not provide all of the necessary documents. If your spouse is no longer considered a U.S. resident for any of these reasons, neither you nor your spouse will be able to file a joint income tax return again for future years.

Alex Meyerovich - M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut. Elina Stelman co-authored this press release.

To learn more, visit http://www.uslegalvisa.com

The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.

# # #

About M.C. Law Group - Full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & tax law with particular attention to the consequences on our clients' immigration status.

Ngwanyia v. Gonzalez (Asylee Adjustment Case)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA


Venantius Ngwanyia et al., ) No. 02-502 (RHK)
)
Plaintiffs )
)
v. ) SETTLEMENT AGREEMENT
United States Attorney General; )
Department of Homeland Security; )
Secretary of the Department of )
Homeland Security; )
U.S. Citizen and Immigration Services; and )
Director, )
U.S. Citizen and Immigration Services, )
)
Defendants )
)
__________________________________________)


WHEREAS, Plaintiffs and Defendants consider it in their best interests to resolve all the issues raised in this action through a stipulated settlement agreement;

NOW THEREFORE, plaintiffs and defendants (hereinafter “the parties”) enter into and do hereby stipulate to a Settlement Agreement (hereinafter “Agreement”) that imposes binding obligations upon the parties and their successors to the extent stated below. Plaintiffs acknowledge that this Agreement is fully dispositive of all claims in the Second Amended Complaint both as they relate to themselves and to all members of the class, except as specified in Sections C and I herein, against defendants in their official and individual capacities. The parties acknowledge that this Agreement is fully binding upon the parties, and on each of their successors and successor agencies, as defined below.

SECTION A. DEFINITIONS

As used throughout this Agreement, the following definitions shall apply:

1. The term “party” or “parties” shall apply to plaintiff class members and defendants. All named plaintiffs are listed in the Addendum, attached. The defendants are the Attorney General; the Secretary of the Department of Homeland Security; the Department of Homeland Security; Director of the United States Citizenship and Immigration Services (USCIS); and USCIS. As the term applies to defendants, it shall include all of their departments, agencies, successor agencies, agents, employees, contractors, and/or successors in office, that or who have a role in asylee
adjustment and employment authorization issues.


2. The term "adjust" or “adjustment of status” is defined as the adjustment of an asylee’s status to that of a lawful permanent resident alien of the United States under section 209(b) of the Immigration and Nationality Act (“INA”) of 1952, 8 U.S.C. § 1159(b), as amended.

3. The terms “adjustment cap,” “asylum cap” or “cap” refer only to the subset of refugee admission numbers that may be made available annually for the adjustment of asylees in any fiscal year, pursuant to 8 U.S.C. § 1159(b).

4. The term “asylee” means any alien who has received a grant of asylum under section 208 of the INA, 8 U.S.C. § 1158, from either United States Citizenship and Immigration Services (“USCIS”), or its predecessor Immigration and Naturalization Service (“INS”), or the Executive Office of Immigration Review (“EOIR”) from either an Immigration Judge (“IJ”) or the Board of Immigration Appeals (“BIA”).

5. The term "Employment Authorization Document” or “EAD” is defined as a Form I-766, I-688B or successor versions.

6. The term “District Court” refers to the United States District Court for the District of Minnesota, Judge Richard Kyle presiding.

7. The term “Court of Appeals” refers to the United States Court of Appeals for the Eighth Circuit.

8. As certified by the District Court, the class and subclasses are defined as:

All asylees in the United States who have applied for adjustment of status to lawful permanent residence and whose applications for adjustment remain pending;

Subclass I
All asylees who filed their adjustment of status applications with the INS on or before January 16, 1998;

Subclass II
All asylees who filed their adjustment of status applications after January 16, 1998, and on or before June 9, 1998;

Subclass III
All asylees who filed their adjustment of status applications after June 9, 1998;

Subclass IV
All asylees who applied for or applied to renew an Employment Authorization Document.

9. The term “effective date” refers to the date on which the District Court approves this Agreement or such later date as the District Court may designate as the effective date.

10. The term “notice to plaintiffs’ counsel” refers to actual delivery of notice to plaintiffs’ counsel of record by registered mail or to posting of such information on the USCIS website, unless the terms of this Agreement require notice to counsel prior to implementation, in which case actual delivery is required.

SECTION B. BACKGROUND

11. The United States District Court for the District of Minnesota issued a memorandum decision and order on February 12, 2004. The decision is reported at 302 F.Supp.2d 1076 (D. Minn 2004).

12. The District Court stayed enforcement of its order for 60 days after February 12, 2004, and directed the parties to negotiate a timely and expedient schedule for the enforcement of the District Court’s order.

13. Defendants appealed the District Court’s order to the United States Court of Appeals for the Eighth Circuit, and this appeal triggered the District Court’s stay of enforcement of its order pending appeal.

SECTION C. DISPOSITION AND RETAINED JURISDICTION

14. The parties agree to jointly move the Court of Appeals for an order:

a) effecting a limited remand of the case to the District Court with instructions that the District Court review the parties’ stipulated settlement Agreement, hold a fairness hearing pursuant to FRCP 23(e), and determine whether to approve the stipulated settlement Agreement;

b) holding defendants/appellants’ appeal in abeyance pending the District Court’s decision whether to approve the stipulated settlement Agreement.

A copy of this joint motion and proposed order are attached as Exhibits 1 and 2. This settlement Agreement will be appended to the proposed remand order.

15. If, upon the limited remand and following the fairness hearing, the District Court:

a) approves the parties’ stipulated settlement Agreement, the parties will jointly move the District Court to dismiss the case with prejudice, (except as to those matters that will remain the subject of the District Court’s retained jurisdiction under paragraphs 16 and 17 of this Agreement, but only for the life of this Agreement pursuant to Section H), and to enter an order vacating its decision and Order filed on February 12, 2004. Neither party shall seek to remove the February 12, 2004 District Court decision from publication, but any party may seek to ensure that record of the vacatur of the decision is published. Following the District Court’s entry of the
latest of an order or orders approving the settlement Agreement, dismissing the case with prejudice (except as to those matters that will remain the subject of the District Court’s retained jurisdiction under paragraphs 16 and 17 of this Agreement, but only for the life of this Agreement pursuant to Section H), and vacating its decision and Order filed on February 12, 2004, defendants will withdraw the appeal in the Court of Appeals within 30 days.

b) does not approve the stipulated settlement Agreement, does not dismiss the case with prejudice (except as to those matters that will remain the subject of the District Court’s retained jurisdiction under paragraphs 16 and 17 of this Agreement, but only for the life of this Agreement pursuant to Section H), or does not vacate its decision and Order filed on February 12, 2004, the settlement Agreement will be null and void and the defendants will have the right to make an appropriate motion with the Court of Appeals within 30 days of the District Court’s decision not to approve the settlement Agreement, not to dismiss the case with prejudice (except as to those matters that will remain the subject of the District Court’s retained jurisdiction under paragraphs 16 and 17 of this Agreement), or not to vacate its decision and Order filed on February 12, 2004, whichever comes last.

16. Retention of Jurisdiction by the District Court. Following final approval of this Agreement and dismissal by the District Court and until this Agreement is no longer in effect, the District Court will retain jurisdiction through this action over only the following matters:

a) claims by any party hereto that any other party has committed a significant violation of this Agreement;

b) the express repudiation of any of the terms of this Agreement by any party;

c) any applications for attorneys fees and costs under the Equal Access to Justice Act related to enforcement of this Agreement, including monitoring that results in an enforcement action, filed by or on behalf of a class member.

17. Exercise of retained jurisdiction by the District Court. The parties agree that, except as to paragraph 16(c), no party will seek to invoke the District Court's jurisdiction under this Section with respect to any violation unless and until the party has complied with the provisions of section D with respect to that violation.



SECTION D. DISPUTE RESOLUTION

18. A significant purpose of this Agreement is to eliminate or reduce the need for further complex litigation in court. In order to effectuate this purpose the parties agree to the following dispute resolution mechanism:

(a) Upon learning of any fact or facts that constitute the basis for asserting that a party has expressly repudiated or committed a significant violation of this
Agreement, the aggrieved party shall notify the other party hereto of that fact or facts and request a report on what remedial action has been taken with respect to such alleged facts prior to invoking the enforcement provisions of this Agreement.

(b) Within thirty (30) days after receipt of such notice, the other party shall notify the first party of the results of its investigation of the facts and any remedial action it has taken or intends to take in connection therewith.

(c) Thereafter the parties shall initiate negotiations in good faith within 30 days in an effort to resolve any disputes remaining after the undertaking set forth in subparagraphs (a) and (b) above have been completed.



SECTION E. PROCESSING OF APPLICATIONS FOR ADJUSTMENT OF STATUS


19. Unused Asylee Adjustment Numbers - Defendants agree that asylee adjustment cap numbers made available in a given fiscal year remain available to adjust an asylee's status beyond the end of the fiscal year. Defendants will make use of all past unused or misapplied numbers, as described in this section, within the time frame set out in this Agreement. Defendants further agree that, in the event any numbers made available for Fiscal Year 2005 and subsequent fiscal years are not utilized for asylee adjustments subject to the adjustment cap, they will continue to treat those numbers as available for use in subsequent fiscal years. This Agreement affects only the adjustment of status for asylees pursuant to section 209(b) of the INA, 8 U.S.C. 1159(b) and in no way affects the use or allocation of refugee admission numbers pursuant to section 207(a) of the INA, 8 U.S.C. 1157(a).

20. The parties agree that an accounting of unused asylee adjustment numbers is no longer necessary and will divert critical resources needed for the adjudication of applications. Instead, based upon a careful review of the evidence and findings of the District Court, the government statistics relating to the administration of asylee adjustment numbers since 1994, and the limited specific evidence relating to the use of asylee adjustment numbers from 1991 to 1994, the parties agree that a reasonable estimate of the asylee adjustment numbers made available in prior years that remain available for use at this time is 31,000. Thus, in lieu of specific accounting, the parties estimate and agree that defendants’ policies and practices have resulted in approximately 31,000 unused or misapplied asylee adjustment numbers. The parties agree to be bound by this estimate as if a full accounting had been made. These numbers are now available to adjust the status of asylees, in addition to any numbers made available for asylee adjustment by the President in this or any subsequent fiscal year.


21. Tracking of Asylee Adjustment Applications--Defendants shall maintain a database that identifies all pending asylee adjustment applications organized in chronological order by date of filing of the adjustment application. Defendants shall process asylee adjustments in the order of filing to the maximum degree possible. Defendants will treat all available asylee adjustment
numbers, including those additional numbers agreed to in this section, as one pool of numbers from which eligible applicants may be adjusted.

22. Distribution of Unused Asylee Adjustment Numbers - Defendants will increase the number of asylee adjustments processed in this and subsequent fiscal years in order to adjust the status of an additional 31,000 asylees within the next three fiscal years beginning with the fiscal year of the effective date of the Agreement. Defendants agree to implement this process as soon as possible following the signing of this Agreement by the parties. Any additional adjustments made during the time period between signature of the Agreement and approval by the District Court will be counted toward the 31,000 total. At a minimum, defendants will process and adjust at least 8,000 additional applications in the first fiscal year beginning with the fiscal year of the effective date of the Agreement; 8,000 additional adjustments during the second fiscal year following the effective date of the Agreement; and the remainder of the additional adjustments during the third fiscal year following the effective date of the Agreement. The processing of these additional 31,000 cases shall be in addition to the processing of the annual authorization of numbers under the asylum cap, as defined in Section A.

23. Quarterly and Annual Reports - Defendants agree to produce quarterly reports, and post them on the Internet website of defendant USCIS. The content of the quarterly reports shall reflect the filing date of asylee adjustment applications currently being processed and shall report on the number of asylee adjustment applications that were approved during the prior quarter. Defendants also shall produce annual reports and post them on the internet website of defendant USCIS. The annual reports shall set forth USCIS’ reasonable estimates of the dates by which groups of asylees are expected to be able to complete adjustment processing, based on date of filing of the application for adjustment in light of the effect of the annual cap. Such annual reports shall be provided only as a general planning tool and shall not bind any of the defendants in any way. The quarterly and annual reports shall not include information about any specific application for adjustment of status, other than that enumerated in this paragraph.

24. Adjustment Processing Contact Person - Defendants will identify a method of contact by which class members may direct inquiries concerning the adjudication of asylee adjustment applications filed before the processing date reflected in the most recent quarterly report. Defendants will determine the status of the application, and the cause for any delay in processing the application, including any delays due to security issues, and will take immediate steps to resolve any problems. Defendants will notify plaintiffs’ counsel of the method of contact and provide written contact information, upon approval of the settlement Agreement.

25. Continued Use of Numbers Made Available in Current and Future Fiscal Years Defendants’ use of the unused and misapplied numbers described in paragraphs 20 and 22 above is to be in addition to the use of the ten thousand asylee adjustment numbers that have been made available in fiscal year 2005 and all asylee adjustment numbers that will be made available in subsequent fiscal years. Defendants will continue to use all asylee adjustment numbers made available in any fiscal year to the maximum extent.

SECTION F. ENDORSEMENT AND DURATION OF AUTHORIZATION TO WORK

26. Persons granted asylum in the United States are authorized to work incident to status. An asylee’s right to engage in employment does not terminate at the expiration of the asylee’s employment authorization document. Defendants agree to provide asylees with EADs as set forth in this section for so long as their asylee status has not been terminated. Defendants agree to provide plaintiffs’ counsel with copies of instructions to defendants’ staff regarding implementation of this Agreement.

27. Defendants have an interest in an EAD that has integrity and reliability, and withstands fraud by its holder or persons who are not authorized to hold the EAD. Plaintiffs have an interest in an EAD that is effective for immediate and continuous employment while they are in asylee status.

28. The parties agree that defendants will provide notice to plaintiffs’ counsel prior to the initial implementation of this Agreement and make reasonable efforts to provide notice to plaintiffs’ counsel of changes in the EAD process affecting the class members. Such changes may include, for example, the replacement of Form I-688B with Form I-766 for initial cards, the reduction or elimination of need for some or all asylum grantees or EAD renewal applicants to present themselves for further biometric processing, the availability of multi-year cards for initial grantees, or the reduction of fees for certain multi-year cards.


29. Within 3 months of the effective date of this Agreement, and at a minimum, throughout the duration of this Agreement, defendants will provide asylees seeking renewal of their EADs the option to obtain EADs valid for multiple year periods, up to 5 years. To exercise such option, asylees will prepay for the number of years requested. The fee for multiple years will be adjusted to reflect estimated costs of producing the EAD and savings to defendants resulting from not producing additional EADs, which will not be less than $20 per year.

30. Although regulations may apply future increases or decreases in fees for EADs to asylees, no change in fees for EADs will be applied to the detriment of class members within two years of the effective date of this Agreement. A request for an EAD of longer duration will not adversely affect the adjudication of fee waivers pursuant to 8 C.F.R. § 103.7(c).

31. The parties agree that class members wishing to renew their EADs shall submit a Form I-765, or other form required by defendants by regulation for EAD processing with any lawfully required fee. Upon receipt of a properly signed Form I-765 and appropriate fee, defendant USCIS will generate a notice that will be mailed to the class member’s address indicated on the Form I-765. The notice will be generated within 5 business days of receipt and will acknowledge receipt of the application and fee as of a specific date. The notice will provide further instructions, as necessary. If biometrics are necessary, such instructions will include an appointment time and place or how to schedule an appointment at a convenient time and place at a USCIS Application Support Center for the taking of the class member’s biometrics for the generation of a new card and/or the initiation of an FBI fingerprint check. Within 100 days of receipt of a completed application, CIS will issue an EAD to the class member, except in those
cases described in paragraph 34 and in cases where an applicant fails to comply with or delays complying with instructions for necessary biometric processing.

This procedure is in addition to and does not eliminate, replace or restrict an asylee’s rights under 8 C.F.R. § 274a.13(d), including the right to an interim EAD if defendants fail to adjudicate an EAD application within 90 days.

32. Defendants will provide asylees who follow the steps described in paragraph 31 above with a renewal EAD by mailing the new EAD to the address the asylee provided on the renewal form or to such other address as the asylee provides defendants for such purpose.

33. Defendants agree to provide a dedicated e-mail address by which class members may bring to the attention of the defendants cases in which an asylee who applied for a renewal of an EAD which has been pending for 80 days or longer has not received a new EAD in the mail within 80 days of application. In establishing such procedure, defendants shall establish a point of contact and will notify plaintiffs’ counsel of the name of the point of contact, and provide contact information, upon approval of this Agreement. Once such cases are brought to the attention of the point of contact, the point of contact will determine the cause for the delay in issuing the renewal EAD and take immediate steps to expedite and resolve any problems. If the problem cannot be resolved within ten days, the point of contact will so notify the complainant as soon as necessary to avoid any gap between the expiration of the old EAD and receipt of the renewal or an interim EAD.

34. The parties agree that the provisions of this section shall not apply to EAD renewal requests properly governed by 8 C.F.R. § 103.2(b)(18), including but not limited to situations in which USCIS is investigating an alien's inadmissibility under 8 U.S.C. 1182(a)(3) or deportability under 8 U.S.C. 1227(a)(4) and has invoked 8 C.F.R. § 103.2(b)(18).

35. Where an asylee applies for an EAD that is of longer duration than one year, and where 8 C.F.R. § 103.2(b)(18) is not properly invoked by defendants, defendants shall issue the EAD for the multiple year period for which the asylee applied. Where an asylee applies for an EAD of one-year duration, and the defendants issue an EAD for a shorter duration, defendants will not charge for renewals of the card that are occasioned by the shorter duration.

36. Defendants agree to use reasonable and good faith efforts to implement the procedures described in this Agreement in a manner that avoids interruption of asylees’ employment authorization endorsement throughout the duration of their asylum status, and that facilitates all asylees’ ability to comply with the requirements of 8 U.S.C. § 1324a(b) and 8 C.F.R. §274a.2.

SECTION G. NOTICE TO THE CLASS

37. This Agreement shall be binding upon the class certified by the District Court on October 17, 2003.

38. The parties will jointly seek approval from the District Court of a notice sufficient to satisfy Fed. Rule Civ. Proc. 23(e). Upon the District Court’s approval of the notice,
Defendants shall:

a. place the notice and the Agreement on the USCIS website and on the EOIR website;

b. distribute the notice and Agreement to the Community Relations Office located within each USCIS District Office; and

c. distribute the notice and Agreement to all immigration assistance providers listed on the Roster of Recognized Organizations and Accredited Representatives maintained by the Executive Office for Immigration Review pursuant to 8 C.F.R. §292.

SECTION H. DURATION AND SCOPE OF THIS AGREEMENT

39. This settlement Agreement shall remain in full force and effect for three years from its effective date or until the defendants complete the following, whichever period is longer:

a. Completion of the processing of the 31,000 adjustment applications as described in paragraph 21 above; and

b. Implementation of procedures to issue EADs valid for multiple years to all asylees, consistent with this Agreement.

40. No later than 30 days prior to the three-year anniversary of the effective date of this Agreement, defendants will report to the plaintiffs’ counsel and to the District Court in writing that the defendants have or have not met the obligations described in this Section. If defendants have not met the obligations, defendants will appear before the District Court to discuss the status of compliance and appropriate action.

41. The termination of this Agreement shall not extinguish or diminish the District Court’s authority to resolve claims pending during the effective period of the Agreement pursuant to the District Court’s retained jurisdiction under Section C regarding the violation of the terms of the Agreement; nor shall the termination of the Agreement extinguish or diminish the rights of any party with such pending claims to obtain relief based on the terms of the Agreement.

SECTION I. RESERVATION OF RIGHTS AND INTERESTS

42. By entering into this Agreement, the defendants do not waive, reduce or otherwise diminish their authority to enforce the laws of the United States against class members notwithstanding the terms of this Agreement, consistent with the Constitution and laws of the United States.

43. Nothing in this Agreement shall limit the right of a class member to preserve issues for judicial review in the appeal of an individual case pursuant to 8 U.S.C. § 1252; or to exercise any independent statutory or regulatory rights they may have, outside the scope of this Agreement,
under the Immigration and Nationality Act, including rights under 8 C.F.R. §274a.13(d).

44. By entering into this Agreement, defendants do not admit to any violations of, or failure to comply with, the Constitution, laws or regulations.


45. Defendants represent and warrant that they are fully authorized and empowered to enter into this Agreement on behalf of the named defendants and all defendants and successors as defined in Section A of this Agreement. The undersigned who sign on behalf of other defendants warrant and declare that they have all the required authorization to execute this Agreement and that upon execution of the Agreement in their representative capacities, their principals and the successors of such principals shall be bound hereunder to the full extent authorized by law.


THE PLAINTIFFS THE DEFENDANTS

BY: _____________________________ BY: ___________________ [ original signed by Nadine Wettstein [ original signed by Nancy Friedman
Dated: on January 31, 2005 Dated: on January 31, 2005