AN EXAMPLE OF INCONSISTENT CONSULATE DECISIONS – THE CULTURE OF NO IN CURRENT IMMIGRATION PROCESS TO STOP EVEN THE LEGAL IMMIGRATION
By Jinhee Wilde, Esq.
On March 15, 2018, one EB-3 Other (EW) Visa applicant’s (GUZ20085xxxxx) (Applicant 1) Immigrant Visa was denied in Guangzhou. The Applicant had an approved I-140 petition based on the certified Labor Certification (LC) application. He also had a recently signed Employment verification letter stating that the employer, continues to have a permanent, full-time job offer for him once he obtains the IV and enters the U.S. The employer even gave a job offer to the Applicant’s spouse because they needed workers. Before being sponsored, he signed a Work Agreement with the Employer attesting that he is “willing and able” to work for the employer.
After the interview, he was simply given the 221g denial notice with a check mark on a pre-written paragraph that states, in part: “a determination has been made that the offer of employment was not valid, and that they are returning the petition to USCIS.” We, as legal practitioners, note that such check marked paragraph is merely a Conclusion of the Consulate and cannot be deemed to meet their own policy that Consular officers should provide in writing “full explanation … of the legal and factual basis for visa denial and petition return.” Cable, DOS, 04-State-41682 (Feb. 25, 2004) at 6-10, published on AILA InfoNet at DOC. No 04030364. Further, “[DOS] should not use the revocation request process as a means of disposing of problematic cases in which fraud, misrepresentation or ineligibility for status is only suspected but cannot be clearly established.” Cable, DOS, 01-State-121801 (July 13, 2001),
In most egregious example of Consulate’s inconsistency is that the same Consulate approved another EB-3 Other Visa applicant (GUZ20086xxxxx) (Applicant 2) who was interviewed just one day before on March 14, 2018 with the same Job offer letter from the same employer. So, the same employer’s job offer was valid one day, but it was not valid the next day? How could this kind of inconsistencies be justified with a straight face?
This is a prime example of arbitrary and inconsistent decisions by various consulates all over the world leading to an employer not getting more than 100 workers they have sponsored for the past 2 years. The victimized employer had suffered more than 20% reduction in their workforce and causing millions of business losses while hiring same thousands of U.S. workers as they always had done for years.
To make matters worse, when the cases go back to USCIS for re-adjudication, USCIS is under no processing time constraints on these “returned” cases and the cases sit without any action for more than 2 years – no revocation nor reapproval without any explanation as to why these cases are just being held. It is obvious that to USCIS, all these returned cases just add to their already stressed caseload and may not be their priority. However, to the Employers who followed all the rules under the immigration laws to sponsor these foreign workers because the hundreds of U.S. workers they hire every month quit after few weeks or some merely days after being hired, this kind of bureaucracy is a killing blow to their survival.
DOS and USCIS to simply ignore all the evidence, including the fact that more than hundred foreign workers came through the same sponsorship and worked diligently for the same company in 2015-2016 when their visas were being approved in various Asian posts, is doing a great disservice to the integrity of the immigration process and due process. All the evidence to prove more than “Preponderance of Evidence” that the employer has the ability to pay thousands of workers, and eligibility of workers by approved LC and approved I-140 are being ignored.
While DHS and DOL added 75,000 H2B (seasonal workers) so that resorts, such as Trump resorts in Bedminster and Mar Largo, could get their needed workers, they do not seem to care that many meat packing/processing companies are suffering and on the verge of failing due to the labor shortage. I am certain that the meatpacking industry is 100% committed to abide by the “Hire Americans First” rule but would ask that USCIS and DOS to process their immigration cases without undue delays and obstructions to help them get a steady flow minimum number of foreign workers to supplement (not displace) their workforce.
It is imperative to review the track record of any employer in the EB-3(other) category to assess the legitimacy of their sponsorships. Any employer whose LC cases keep getting withdrawn after an Audit is issued, for example, probably mean that they did not properly test the U.S. labor market before filing the PERM cases. Any recruiter/agent’s name that is associated with an extraordinary number of denials relative to the number of filed cases probably does not have the proper authority or cooperation of the employer who purportedly is sponsoring the workers, which is an indication of possible fraud.
I stress that the cases of exemplary employers offering bona fide jobs should not be swept up with some bad actors on a wholesale basis. Each sponsorship and each case should stand on its own merits and based on the evidence, not dismissed as “all EB-3 Other cases are bad” or “all EW cases are fraudulent,” based on rumors and suspicion. We should not throw the “baby out with the bath water” by highlighting only the miscreants that abuse any immigration programs. All the Employment-based immigration was designed to help our economy by providing needed workers to the U.S. employers or creating new jobs with foreign investment, thus, deserve priority attention by the government agencies who are tasked with helping our country and its citizens, particularly corporate citizens’ business efforts. Tax cuts for the corporate America alone will not help if the corporations cannot get enough needed workers and have to close the business.
About the Author
Jinhee Wilde, Esq.
Jinhee Wilde is the principal and managing partner of Wilde & Associates LLC, a boutique law firm focusing on business and investment immigration. Her 32 years of legal experience began first as a prosecutor for Chicago and then as the Inspector General designee, special counsel and attorney advisor for the U.S. Department of Agriculture. This extensive government experience still gives her a government lawyer’s perspective to help her clients, which may explain her stellar track record in both I-526 and I-829 filings with only 3 RFEs on Source of Fund on numerous cases since 2007. Jinhee only represents the investor side of EB-5 and stays independent from any regional centers. She is on the President’s Advisory Council of IIUSA and active in AILA and is a frequent speaker at EB-5 conferences. Jinhee received her BA from the University of Chicago and JD from Loyola University of Chicago School of Law.
Jinhee Wilde, Esq. is a founding partner of WA Law Group, LLC a boutique immigration law firm based in Maryland that focuses on business and investment immigration matters.
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