Each bar year the Executive Council is tasked with developing a CLE on behalf of TBA Litigation Section, sending out news to its section members, and responding to legislation.

Do you have an idea for a topic or speaker that you would like to see at our 2014-2015 CLE?  Do you have news that you think would be beneficial to section members or would be intereseted in contributing articles during the upcoming bar year?  Do you have concerns about legislation that may need to be reviewed during the upcoming bar year?  If so, send an email to cgibson@tnbar.org either now or anytime during the bar year and we will be happy to review your suggestions.  

It is important that our section members feel that they can contact us with concerns or suggestions.   

We look forward to hearing from you!

Each bar year the Executive Council is tasked with developing a CLE on behalf of TBA Litigation Section, sending out news to its section members, and responding to legislation.

Do you have an idea for a topic or speaker that you would like to see at our 2014-2015 CLE?  Do you have news that you think would be beneficial to section members or would be interested in contributing articles during the upcoming bar year?  Do you have concerns about legislation that may need to be reviewed during the upcoming bar year?  If so, send an email to cgibson@tnbar.org either now or anytime during the bar year and we will be happy to review your suggestions.  

It is important that our section members feel that they can contact us with concerns or suggestions.   

We look forward to hearing from you!

Letter from the Incoming Chair:

As we approach the 2014-2015 Bar Year, I look forward to the executive committee and the TBA’s continued hard work on behalf of the section.  I hope that as a section member you will let us know what you would like to see accomplished over the next year.  This might include legislation you would like to see reviewed or ideas for possible CLE topics or speakers.  Either way, the section would love to hear from you. 

It is important that as a section member you feel as though you are contributing to the TBA and our efforts.  Please feel free to contact either Christy Gibson, TBA Sections Coordinator, or myself with any comments or suggestions you have throughout the year.  Are we doing a good job on behalf of the section?  Are there things you would like to see us do better?  Your suggestions will help make our section better and will help us add more members to the section. 

Again, we are looking forward to another successful bar year and hope that you will renew your TBA Litigation Section membership for the upcoming year. 

Sincerely,

Sarah Akin

Have you registered for April 17, 2014 Immigration Law Seminar 2014: Awarding and Removal of Immigration Benefits yet?  If not, register today because this is one CLE you do not want to miss!
 
The CLE is designed for both lawyers who are experienced immigration lawyers, and for lawyers who may never practice immigration law during their career.

The  following federal immigration government agencies will be represented at the seminar:

1) The U.S. Citizenship & Immigration Services
2) The U.S. Immigration & Customs Enforcement’s Office of the Principal Legal Advisor
3) The U.S. Immigration & Customs Enforcement’s Enforcement and Removal Operations.

Don't miss this opportunity!  Click here to find out more information about the seminar and to register today!

*Cheryl Williams

In order to immigrate to the United States, a person must show he is not likely to become a “public charge.”   There are only limited exceptions to this rule.[i] Employment-based immigrants and their families usually demonstrate financial stability by providing evidence of a current job offer.  Family-based immigrants, however, may have no immediate offer of employment available; thus, these individuals are vulnerable to financial difficulty during the transition period. This makes them more likely to become dependent on government largesse for their day-to-day needs. The I-864 is designed to prevent this possibility.

Family-Based Immigration Cases. In family-based immigration cases, the U.S. citizen (USC), U.S. national, or Lawful Permanent Resident (LPR) sponsor must file an I-864 Affidavit of Support form in behalf of their immigrating family-member.  The form is designed to demonstrate the sponsor’s willingness and ability to support an immigrant relative.  The form acts to “deem” the U.S. sponsor’s income or assets onto the immigrant, thereby making the immigrant ineligible for public benefits. The Affidavit of Support binds the sponsor contractually, requiring the sponsor to repay the government for benefits obtained by the immigrant.  Only certain persons are eligible to execute an I-864 Affidavit of Support: USCs, US nationals, or LPRs, who are at least 18 years old, and who reside in the United States.

What if the Sponsor Cannot Demonstrate Financial Stability?  Sometimes, however, the petitioning relative is unable to meet the government’s requirements to demonstrate the necessary financial ability. In those cases, a joint sponsor can also file an Affidavit of Support.  Individuals residing in the same household, including the intending immigrant, or individuals with an interest in the success of the case who are otherwise unrelated to the parties, can file a joint Affidavit of Support. Each individual sponsor must meet the eligibility requirements above, and demonstrate their own financial ability to sponsor.  In those cases, the sponsoring relative, who must always file an I-864, is equally responsible for helping support the immigrant for as long as needed. The liability under the Affidavit of Support is therefore both joint and severable among the joint sponsors.

How Long Can It Last? The sponsor’s obligation to support the immigrating relative continues for an indefinite period, and ends only upon the satisfaction of certain requirements by the immigrant, as explained below.  Accordingly, the petitioning relative must show he/she has adequate income or assets so that their immigrating relative will not need to rely on the government for basic living requirements for an indefinite period.  As stated above, the executed I-864 Affidavit of Support is a contract that is binding upon the petitioning USC, national or LPR relative.  Thus, an attorney must carefully explain the form’s use and purposes to all parties in the immigration process.  Consents for the inherent conflict of interest should be obtained from all parties, and this is best done in writing.

The Affidavit of Support is enforceable until one of the following circumstances has occurred: the sponsored immigrant gains U.S. citizenship, the sponsored immigrant accrues 40 “qualifying quarters” of work credit according to the Social Security Administration rules, the immigrant departs the U.S. permanently, or the petitioning sponsor(s) dies.  It is notable that the Affidavit of Support transcends changed circumstances such as divorce.

Who Can Enforce the Affidavit of Support, and How?  Any aggrieved state or federal government agency can file suit to enforce the Affidavit of Support if a sponsored immigrant succeeds in obtaining means-tested public benefits.  In addition, the sponsored immigrant can also enforce the affidavit.  Third party service providers, such as hospitals, may also have standing to sue.

The law contemplates that suit will be brought in a court of competent federal jurisdiction.[ii] Cases have arisen in federal court[iii] and state domestic relations courts.[iv]  As you might imagine, most case law in this area arises in spousal support cases.  Enforcement is sought through statutory enforceability in the Immigration & Nationality Act and case law precedent.  Some courts have recognized a duty of the aggrieved immigrant spouse to mitigate their damages by obtaining suitable work. The only Federal Appeals Court to address the issue to date, however, found no duty to mitigate.[v]  If indeed, there is a duty by the immigrant to mitigate, why has neither the Congress nor the USCIS made this duty explicit through statute or rule making?

How Much Support is Required?  The sponsor is required to support the sponsored immigrant at a level equal to or exceeding 125% of the Federal Poverty Level for the duration of the required period.  If the immigrant has separated from the sponsor, they count as one person, and the support obligation is quite low.  The HHS poverty guidelines may be found at https://www.federalregister.gov/articles/2014/01/22/2014-01303/annual-update-of-the-hhs-poverty-guidelines.  In certain instances, assets can be used to satisfy the Affidavit of Support requirements.  A combination of income and assets can also be used.

Summary.  The I-864 Affidavit of Support is a complex area of immigration law, and this short article can only touch on its most important issues.

________________________

*Cheryl Williams is an attorney at the Nashville Office of Siskind Susser P.C. Ms. Williams graduated from Vanderbilt School of Law in 1995. She may be reached at cwilliams@visalaw.com or (615) 345-0266.

*Cheryl Williams

In order to immigrate to the United States, a person must show he is not likely to become a “public charge.”   There are only limited exceptions to this rule.[i] Employment-based immigrants and their families usually demonstrate financial stability by providing evidence of a current job offer.  Family-based immigrants, however, may have no immediate offer of employment available; thus, these individuals are vulnerable to financial difficulty during the transition period. This makes them more likely to become dependent on government largesse for their day-to-day needs. The I-864 is designed to prevent this possibility.

Family-Based Immigration Cases. In family-based immigration cases, the U.S. citizen (USC), U.S. national, or Lawful Permanent Resident (LPR) sponsor must file an I-864 Affidavit of Support form in behalf of their immigrating family-member.  The form is designed to demonstrate the sponsor’s willingness and ability to support an immigrant relative.  The form acts to “deem” the U.S. sponsor’s income or assets onto the immigrant, thereby making the immigrant ineligible for public benefits. The Affidavit of Support binds the sponsor contractually, requiring the sponsor to repay the government for benefits obtained by the immigrant.  Only certain persons are eligible to execute an I-864 Affidavit of Support: USCs, US nationals, or LPRs, who are at least 18 years old, and who reside in the United States.

What if the Sponsor Cannot Demonstrate Financial Stability?  Sometimes, however, the petitioning relative is unable to meet the government’s requirements to demonstrate the necessary financial ability. In those cases, a joint sponsor can also file an Affidavit of Support.  Individuals residing in the same household, including the intending immigrant, or individuals with an interest in the success of the case who are otherwise unrelated to the parties, can file a joint Affidavit of Support. Each individual sponsor must meet the eligibility requirements above, and demonstrate their own financial ability to sponsor.  In those cases, the sponsoring relative, who must always file an I-864, is equally responsible for helping support the immigrant for as long as needed. The liability under the Affidavit of Support is therefore both joint and severable among the joint sponsors.

How Long Can It Last? The sponsor’s obligation to support the immigrating relative continues for an indefinite period, and ends only upon the satisfaction of certain requirements by the immigrant, as explained below.  Accordingly, the petitioning relative must show he/she has adequate income or assets so that their immigrating relative will not need to rely on the government for basic living requirements for an indefinite period.  As stated above, the executed I-864 Affidavit of Support is a contract that is binding upon the petitioning USC, national or LPR relative.  Thus, an attorney must carefully explain the form’s use and purposes to all parties in the immigration process.  Consents for the inherent conflict of interest should be obtained from all parties, and this is best done in writing.

The Affidavit of Support is enforceable until one of the following circumstances has occurred: the sponsored immigrant gains U.S. citizenship, the sponsored immigrant accrues 40 “qualifying quarters” of work credit according to the Social Security Administration rules, the immigrant departs the U.S. permanently, or the petitioning sponsor(s) dies.  It is notable that the Affidavit of Support transcends changed circumstances such as divorce.

Who Can Enforce the Affidavit of Support, and How?  Any aggrieved state or federal government agency can file suit to enforce the Affidavit of Support if a sponsored immigrant succeeds in obtaining means-tested public benefits.  In addition, the sponsored immigrant can also enforce the affidavit.  Third party service providers, such as hospitals, may also have standing to sue.

The law contemplates that suit will be brought in a court of competent federal jurisdiction.[ii] Cases have arisen in federal court[iii] and state domestic relations courts.[iv]  As you might imagine, most case law in this area arises in spousal support cases.  Enforcement is sought through statutory enforceability in the Immigration & Nationality Act and case law precedent.  Some courts have recognized a duty of the aggrieved immigrant spouse to mitigate their damages by obtaining suitable work. The only Federal Appeals Court to address the issue to date, however, found no duty to mitigate.[v]  If indeed, there is a duty by the immigrant to mitigate, why has neither the Congress nor the USCIS made this duty explicit through statute or rule making?

How Much Support is Required?  The sponsor is required to support the sponsored immigrant at a level equal to or exceeding 125% of the Federal Poverty Level for the duration of the required period.  If the immigrant has separated from the sponsor, they count as one person, and the support obligation is quite low.  The HHS poverty guidelines may be found at https://www.federalregister.gov/articles/2014/01/22/2014-01303/annual-update-of-the-hhs-poverty-guidelines.  In certain instances, assets can be used to satisfy the Affidavit of Support requirements.  A combination of income and assets can also be used.

Summary.  The I-864 Affidavit of Support is a complex area of immigration law, and this short article can only touch on its most important issues.

________________________

*Cheryl Williams is an attorney at the Nashville Office of Siskind Susser P.C. Ms. Williams graduated from Vanderbilt School of Law in 1995. She may be reached at cwilliams@visalaw.com or (615) 345-0266.

*Bruce E. Buchanan

The first thing that stands out about 2013 decisions from the Office of Chief Administrative Hearing Officer (OCAHO) is that there was a major uptick in the number of substantive decisions – 30, up from 11 in 2012.  There were also eight decisions which involved Office of Special Counsel issues – such as citizenship or national origin discrimination and document abuse. (These decisions will not be discussed in this article.)

Substantial Reduction in Penalties through Litigation at OCAHO

Of the 30 substantive decisions concerning I-9 form violations, 29 of them involved the issue of the amount of penalties.  One of the most interesting points in these decisions was the reduction in penalties sought by Immigration and Customs Enforcement (ICE) increased in 2013 from 45% to 46.5% in 2012.

Examples of OCAHO Decisions and Penalties Sought and Assessed

Below is a chart setting forth some of the OCAHO decisions, the penalties sought by ICE and the amount assessed by OCAHO.

 Reasons for Reductions in Penalties

Of course, the question is what led to the reduction in the penalties by OCAHO.  The primary reasons for the reductions were the poor financial conditions of the companies (20 decisions) and the penalties were “unduly punitive” on small employers (13 decisions).  This was consistent with the 2012 OCAHO decisions, in which these were the two primary factors for reducing the penalties.  On a few occasions, employers were successful in prevailing on legal issues which caused OCAHO to dismiss these allegations.   

Interesting Legal Issues

There were also a few interesting legal issues that OCAHO tackled in 2013.  Two of the more significant ones were U.S. v. California Mantle and U.S. v. Occupational Resource Management, Inc.  In California Mantle, Inc., OCAHO faced the issue of whether the employer and Immigration & Customs Enforcement through their attorney reached a settlement whereby the employer paid $8000 in penalties and the case was dismissed.  ICE asserted no agreement had been reached because it was seeking a Consent Decree, not a settlement with dismissal of the allegations.  OCAHO explored the e-mail communications between the two parties and concluded the parties had agreed on such a settlement.

In Occupational Resource Management, OCAHO explored whether the employer had constructive knowledge of the employment of three unauthorized workers.  OCAHO decided the employer did have constructive knowledge.  The decision offers insight in determining constructive knowledge, which for many years has been difficult to determine. 

OCAHO’s decision in U.S. v. Monadnock Mountain Spring Water, Inc. is unusual in that it did not firmly decide the amount of the penalty owed by the employer.  Rather, OCAHO, using ICE’s previous offer as a guide, gave the employer an option – pay 100% of the $14,630 penalty over a three (3) year period or pay $10,500 immediately.

OCAHO’s Rejection of Defenses

Two common defenses that OCAHO rejected were: lack of awareness of the requirement for employers to complete an I-9 form for their employees, and the errors on the I-9 forms were technical, not substantive, errors and therefore the employer should have been given 10 days to correct the deficiencies.

Industries Affected by ICE Inspections

It is also interesting to see the type of employers, which received penalties, and litigated them before OCAHO.  There were 16 decisions which involved restaurants.  The next highest was retail/distribution companies – four decisions.  Even though construction and manufacturing are normally viewed as industries regularly audited by ICE, there were only three decisions in those industries.       

Conclusion

As this article reflects, it has been a busy year at OCAHO. Due to the fact, employers are getting so much relief – an average reduction in penalties of 46.5%, I anticipate more employers will be challenging ICE’s assessed penalties. Interestingly, an Office of Inspector General Report just issued reflecting employer received about a 40% reduction in penalties through negotiations with ICE before litigation. Remember, it is always best to get your I-9 forms and employees in order before ICE conducts an inspection so that you don’t face these heavy penalties and attorney fees to litigate the matter.

This article was adapted from my article written for LawLogix, which can be found at http://www.lawlogix.com/blog/what-are-formi9-penalty-trends-2013-ocaho-decisions.

_________________________

*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law.  Mr. Buchanan writes a blog on employer immigration compliance, located at http://blogs.ilw.com/blog.php?29223-I-9-E-Verify-Immigration-Compliance, and is a contributor to LawLogix’s I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

Raquel Bellamy*

One of the most difficult experiences of an intending immigrant is the process of waiting for an unlawful presence waiver. Until March 3, 2013, an applicant who did not qualify for adjustment of status here in the United States was forced to return to his/her home country before applying for an unlawful presence waiver.  This often resulted in the separation of U.S. citizens from their immediate relatives for one or more years. In an effort to “shorten [the] wait time,” U.S. Citizenship and Immigration Services (USCIS) introduced a new “provisional unlawful presence waiver program” for certain qualifying individuals.[i]

Under the provisional unlawful presence waiver program, qualifying immigrant visa applicants are permitted to apply for a waiver in the United States prior to traveling to the U.S. embassy or consulate in their home countries to attend immigrant visa interviews.

Eligibility Requirements

Eligibility requirements may be found in 8 CFR 212.7(e) and are also listed on the instructions document for Form I-601A.[ii] It is important to note that this waiver only applies to applicants whose only ground of inadmissibility is unlawful presence in the United States under section 212(a)(9)(B)(i)(I) and (II) of the Immigration and Nationality Act (INA). In short, applicants must be 17 years of age or older, be an immediate relative of a U.S. citizen, have an approved Form I-130, have a pending immigrant visa case with Department of State (DOS), and be able to prove that refusal of admission to the U.S. would cause extreme hardship to their U.S. citizen spouse or parent.[iii]  Applicants must also be physically present in the United States.

Those applicants who were scheduled for an immigrant visa interview by DOS before January 3, 2013 are disqualified.  Those applicants who are currently in removal proceedings or who have a final order of deportation are also disqualified.  Criminal history may also impact eligibility.

Field Guidance

On January 24, 2014, the USCIS issued field guidance pertaining to applicants for provisional unlawful presence waivers.[iv] This guidance was limited to adjudication of Form I-601A in cases involving applicants with criminal history. The memorandum addressed various circumstances in which an applicant would be deemed ineligible for a provisional unlawful presence waiver, some of which are discussed above.[v]

In practice, the USCIS has denied thousands of applications for the provisional unlawful presence waiver stating there was “reason to believe that an applicant may be subject to inadmissibility under INA section 212(a)(2)(A)(i)(i) at the time of the immigrant visa interview.  Immigration attorneys as well as pro se applicants have reported to the USCIS Ombudsman’s Office that in many of these cases, the criminal history involved fell under the exception for “petty offenses” and “youthful offenders.” It is arguable that many cases were denied routinely, without adjudication of whether or not the conduct involved was classified as a crime of moral turpitude (CIMT) under INA section 212(a)(A)(i)(I). The “reason to believe” standard for denial of I-601 petitions appeared to be the most controversial by far.

Though the Field Guidance affirmatively instructs USCIS officers to consider whether evidence in the record demonstrates a criminal offense falls within the “petty offense” or “youthful offender” exceptions, practitioners are left with more questions than answers. Instead of routinely denying petitions based on “reason to believe,” will USCIS actually adjudicate whether there are other grounds for inadmissibility? Will USCIS begin issuing Requests for Evidence (RFEs) in cases where the evidence in the record does not adequately address the question of moral turpitude?

Luckily, on March 18, 2014, the USCIS reopened cases, on its own motion, for all I-601A waiver requests that were denied before January 24, 2014, solely because of a prior criminal offense. Now, the USCIS will re-determine whether there is reason to believe the prior offense might make the applicant inadmissible. Hopefully, this development will lead to more provisional waivers being approved.

_________________________

*Raquel Bellamy is an attorney at Branstetter, Stranch & Jennings in Nashville, Tennessee. Ms. Bellamy is a graduate of Vanderbilt School of Law. She may be reached at raquelb@branstetterlaw.com or (615) 254-8801.

Even though Comprehensive Immigration Reform has not happened yet, it does not mean that the realm of U.S. immigration law is not comprised of many changing and evolving issues and policies.  Therefore, this current newsletter attempts to cover the ever changing issues and policies that face immigration lawyers today.  Furthermore, it is very important to note that immigration lawyers now must not rely upon their knowledge of what has always been government policy, but now must be visionaries of where government policy will go and where it is currently going. 

Terry Olsen