Author: Jennifer Minear

There’s Always More to Learn

When I first began practicing law, I thought I knew everything I could ever need to know about immigration.  I’d been a business immigration paralegal for several years before law school and had learned a lot about nonimmigrant visas and employment-based green cards.  I’d assisted with processing the full alphabet soup of visa petitions as well as both family and employment-based immigrant petitions, adjustment of status applications, immigrant visa applications and naturalization applications. When I passed the bar and began what would be a (thankfully) short practice as a civil litigator, I took on as much pro bono work...

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In Search of Consistency

Ralph Waldo Emerson famously opined that “a foolish consistency is the hobgoblin of little minds…” I have often opined (less famously) that, if Emerson is correct, there must be very few small-minded adjudicators at U.S. Citizenship and Immigration Services (USCIS). Even in areas where USCIS has made an open effort to establish uniformity, it often seems that the only thing one can count on consistently is, well, inconsistency. For example, in 2010, USCIS began denying H-1B cap exempt petitions filed by nonprofits affiliated with institutions of higher education even though those same petitioners had repeatedly been approved as cap exempt for years. Particularly hard hit were nonprofit hospitals affiliated with medical schools that rely on cap exempt H-1B filings to sponsor international medical graduates who are completing their U.S. residency and fellowship training in accredited graduate medical education programs. These programs operate on an academic calendar that runs from July 1 – June 30, a time of year when there are no new H-1Bs available. Understandably, the hospitals and medical schools raised a stink with their Congressional representatives who in turn, and along with AILA, took the issue to USCIS. In response, USCIS announced that it would reconsider its policy on affiliation-based cap exemption. Brilliant! In the meantime, USCIS published interim guidance in April 2011 “to promote consistency in adjudications until new guidance is issued.” According to the guidance,...

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