“On April 29, 2021, the U.S. employers voluntarily dismissed the lawsuit after USCIS agreed to accept and adjudicate the H-1B petitions that the agency had previously rejected and the employers had received receipt notices for their refiled petitions.”
Read MoreNoelia Rodríguez-Quiñones, Nancy Marcia Vizer, Nancy M. Vizer, P.C., Chicago, IL, for Plaintiffs.
Plaintiffs' motion for summary judgment was granted and Defendants' motion for summary judgment denied.
“The initial burden is on the government to identify substantial and probative evidence of marriage fraud. "[T]he evidence of such attempt or conspiracy must be documented in the alien's file and must be substantial and probative." Matter of Tawfik , 20 I. & N. Dec. 166, 167 (B.I.A. 1990). Only if that is established does the burden shift to the couple to refute that finding. Matter of Kahy , 19 I. & N. Dec. 803, 807 (B.I.A. 1988).
“Indeed, the BIA did not explain how Ms. Garcia's failure to present "evidence of a shared life together (including lack of commingled financial assets)" showed that there was substantial and probative evidence of marriage fraud in the record.”
Read More“My clients aren’t about to break, so I can’t break, either,” Rodríguez says defiantly. “No, there’s too much at stake. I have to keep fighting.”
Read MoreShortly after same-sex marriage was legalized, Valdivia and Cheslerean were married in Las Vegas. The couple then applied for Cheslerean’s permanent residence, but the petition was denied because ten years after the fact, USCIS alleged for the first time that Cheslerean’s previous marriage was fraudulent.
“This is simply not true. Mr. Cheslerean’s 2005 application was denied on the basis that the couple provided insufficient evidence. Under USCIS’ own regulations and case law, this did not provide a foundation for the current denial. Congress’ stated intent in promulgating immigration laws is to promote family unity. Arbitrary and capricious denials, such as the one in this case, frustrate that intent. Mr. Valdivia and Mr. Cheslerean have chosen to come forward and demand that USCIS act in accordance with the law, but many applicants with similar cases do not have the resources, and/or do not wish to waive confidentiality in order to do so,” said Noelia Rodríguez, lead counsel for the plaintiffs.”
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“The United States government has reversed course on its opposition to a Chicago-area professor’s I-140 visa application, voluntarily recognizing the professor for his “outstanding research” in the computer sciences and mooting a federal court case over the allegedly impermissible denial, according to court records.”
“The Director, Nebraska Service Center, denied the petition, concluding that the Beneficiary was not internationally recognized as outstanding in his particular academic field of computer science. The matter is now before us on certification. The Petitioner provided a brief and copies of research articles that cite to the Beneficiary's scholarly works, and maintains that the record reflects that he is internationally recognized as outstanding in his field. Upon de novo review, we will withdraw the initial decision of the Director, and approve the petition.”
Read More“‘Over the past number of years, USCIS, as well as its Administrative Appeals Office, have treated the number of independent citations as a controlling factor in these types of cases, but citations, independent or otherwise, are not mentioned in the statutory or regulatory criteria,’ Noelia Rodríguez-Quiñones, an attorney for IIT, told Law360. ‘USCIS's own written policy, however, does state that the opinions of experts in the beneficiary's field should be considered. We believe that in this case such opinions along with the other cited factors should have resulted in a favorable decision on the petition at issue.’ Rodríguez-Quiñones said they are seeking review of the decision. ‘We hope that the outcome of this case will bring greater clarity to how these types of petitions should be handled, thereby benefiting researchers, the institutions they serve, and the scientific community as a whole,’ she added.”
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