Significant Immigration Cases

Weiss & Kahn persuaded the government to waive an executive’s J-visa two-year home-country physical presence requirement—even though the US Agency for International Development (USAID) had given her $60,000 in educational grants. Immigration practitioners call USAID or Fulbright funding “the kiss of death” when seeking a J-visa waiver—meaning that waivers are out of the question. However, we successfully gained the waiver on the basis of “exceptional hardship” to the alien’s husband—allowing the wife to continue on her career trajectory in the United States and permitting her husband to remain with the US doctors he needed for his medical issues. Crucially, we also convinced the government that granting the waiver would actually advance USAID’s own program goal of third country economic development. In other words: making the wife go home for two years would reduce the value of USAID’s investment in her education. We used our contacts in academic and political circles to obtain helpful support letters from senior government officials in the J-visa holder’s home country and diplomatic corps, and from senior legislators in the US Congress.

Weiss & Kahn successfully obtains advisory opinions from the US Department of State (DOS). A favorable advisory opinion, in effect, reverses the denial of a visa at a US consulate overseas. In a typical case, the consulate denies a visa because it alleges that the applicant willfully misrepresented a material fact under INA § 212(a)(6)(C)—for example, denying that he or she intends to work in the United States without authorization. Favorable advisory opinions are notoriously difficult to win—and a formidable test of a lawyer’s ability to write persuasively—because of “consular absolutism.” This term underscores the fact that consuls have almost unchecked authority over decisions on granting visas, with no opportunity for meaningful review, and no right for counsel to appear at the consulate to advise and advocate for the client. And challenging visa denials in court is next to impossible. But you can seek an “advisory opinion” from DOS, arguing that its consulate mistakenly denied the visa. Advisory opinions are purely discretionary. And because there is no formal case law, lawyers lack guidance as to what sorts of argument carry weight. To make matters worse, DOS insists (and the courts agree) that visa records and the contents of a visa applicant’s file are statutorily exempt from release under the Freedom of Information Act (FOIA). So you don’t fully know—and cannot find out—what the consulate considered in reaching its decision.

To overcome “consular absolutism,” lawyers must be persistent, diplomatic, and creative with the law in making their best pitch to DOS’s Visa Office Advisory Opinions Division (AOD). Legal creativity is key because AOD reviews consular denials solely on matters of law. Factual findings, like the alien’s credibility, are not considered and should only be raised subtly, if at all. Weiss & Kahn operates comfortably, and successfully, in this mode—submitting elegantly argued and persuasive briefs that take the right tone for dealing with a bureaucracy that cannot be challenged in court.

The firm gained naturalization for an alien who had been convicted of “culpable homicide” in, let’s call it, country X. USCIS argued that this conviction made our client ineligible for US citizenship because he had been convicted of a “crime involving moral turpitude.” The issue: while the term “culpable homicide” suggests something evil and malicious, it actually covers a wide range of factual circumstances under country X’s law—including, as in our case, what was essentially an accidental death. We researched the law in country X, located and obtained carefully-crafted opinions from legal experts in country X, and affidavits from country X police (including a senior officer at the station that arrested our client). Blending these with our own analysis of US immigration law, we convinced USCIS that this unfortunate death was not a “crime involving moral turpitude.” Our client became a US citizen.

On a pro bono basis, the firm successfully represented two teenage sisters from Mexico who had been abused, neglected, and abandoned by their parents. Their father spent years in Mexican prisons and had left the family while the girls were infants, and their drug-addicted mother had long discarded them in Florida. But these two young ladies, without legal status, were determined to complete high school and to escape their deprived background. We petitioned for them to become permanent residents under “Special Immigrant Juvenile Status.” We first obtained an adjudication of dependency from the state court in Miami and an order declaring the sisters eligible for special juvenile status—proving that (i) they were eligible for foster care because family reunification was out of the question and (ii) it was in their best interest to remain in the United States and contrary to their interest to be returned to Mexico. Armed with these orders and supporting evidence, we applied to USCIS for special immigrant juvenile status. All this had to be done quickly as the older sister was about to turn 18, which threatened her eligibility for this particular immigration benefit. The sisters are now flourishing US permanent residents—one studying for her master’s degree in social work; the other thriving as a nursery school teacher.

We represented a 97-year old lady who was denied Medicare and Institutional Care benefits because she could not prove that she was a citizen or a permanent resident. Our client knew that she had come as a 10-year-old child on a ship from Europe, and then lived in the United States, without setting foot out of the country, for the next 87 years. We followed every imaginable clue to find something that would lead to official data on her immigration status, even searching for her name on ships’ manifests located in the National Archives. We got nowhere.

So we successfully applied for “registry”—a route for obtaining permanent residence for persons of good moral character who entered the United States prior to, and have lived here continuously since, January 1972. Our client beat the cut-off date by 60 years! And we proved her continuous residence with affidavits from family members, her marriage certificate from 1925, her children’s birth certificates from the 1920s and 30s, and other documents through the decades.

Our client was born and always lived in another country, where he was a citizen. He was also a US citizen by birth to a US citizen mother. Our client formally renounced his US citizenship on his 18th birthday, the very day he would have been subject to registration for the draft during the Vietnam War. He then continued his studies in his country of citizenship. Years later, he moved to the United States, married a US citizen, became a permanent resident, and had US citizen children. He now wanted to naturalize and become a US citizen himself. Should he apply? The issue: the law prohibits “draft evaders” from becoming US citizens; in particular, any person who has departed from or remained outside the United States to avoid or evade military training or service in time of war or national emergency is inadmissible to the United States. The Vietnam era was such a time.

We offered our best analysis to help the client decide, twenty years after renunciation, whether to become a US citizen once more. We figured that he had never been subject to US draft laws because at the age of eighteen he was neither a resident of the United States, nor (any longer) a US citizen. Further, he could not have departed from the United States to avoid military service because he was never resident in the United States to begin with. And his primary purpose in remaining outside the United States was not to avoid or evade military training, but to continue with his studies. Moreover, he had the right to renounce his US citizenship and did so properly. And he paid the penalty: by renouncing his citizenship he became an alien, and was thereafter treated like any other alien by the US government. The client followed our guidance and successfully naturalized.

In this curious case, USCIS denied our client’s application for naturalization because of “Poor Moral Character (False Testimony, Lying).” The client had submitted a document from his ex-wife, who lived overseas, stating that he had always paid child support. The document declared that the ex-wife had signed it under oath in the presence of a Florida notary on a particular date. But USCIS informed us that its arrival/departure records showed that the ex-wife was not actually in the United States on that date. This triggered the denial for poor moral character, based on false testimony and lying. We obtained a reversal on both factual and legal grounds.

First, we showed that if there were any moral failing, it belonged to the notary who falsely stated that the ex-wife personally appeared before her. We proved that our client did not know that the notary had done this, and also did not know that the law required that the person signing actually be in the notary’s presence. At worst, our client inadvertently—not willfully or intentionally—submitted an improperly notarized document to USCIS. Moreover, everything stated in the document itself was true. Poor moral character, we showed, cannot be established on these facts.

Second, we clarified to USCIS that our client could not have given false testimony or lied. The controlling US Supreme Court case holds that false testimony is limited to oral statements under oath. Our client gave no such statement having anything to do with the mishandled affidavit. And Supreme Court precedent holds that any lie must be made with the “subjective intent of obtaining immigration benefits.” Our client exhibited no such intent. He did not lie or resort to any form of dishonesty to obtain US citizenship.

Third, we submitted affidavits detailing our client’s honesty in all areas of his life and his many years of charitable work—showing that his true moral character was anything but poor. Our client was granted US citizenship.

The firm obtained US citizenship for a severely autistic child born overseas, whose father was a US citizen, but had never married—and wanted nothing to do with—the boy’s alien mother. The boy lived overseas with his maternal grandparents. They knew he would have access to treatment in the United States that was unavailable in his home country, where the severely handicapped end up institutionalized. The problem: you have to jump through hoops to get citizenship for a child born overseas when the parents are unmarried, the sole US citizen parent is the father (not the mother) who has not acknowledged paternity, and the child lives overseas with almost no contact with the father in the United States. To complicate matters, the father was hesitant to provide proof of his US citizenship and that he was physically present in the United States for the prescribed period of time prior to the child’s birth. Without proof of these circumstances, we could not reach first base.

We eventually gained US citizenship for the child by persistently and persuasively appealing to the good nature of the father, who did eventually cooperate; by arranging for DNA testing of father and son to establish paternity; and by encouraging the dedicated grandparents to be patient.

The firm took this pro bono matter at the request of the Housing Authority of the City of Miami Beach—and gained permanent residence for an illegally present father and son from Venezuela. The father suffered from cancer, and his nine-year-old son was learning disabled. We filed for the father as a self-petitioning spouse of an abusive US citizen, and/or spouse whose child was battered or subjected to extreme cruelty by his US citizen parent. And we filed for the son as the self-petitioning child of an abusive US citizen. We showed that the US citizen wife and step-mother abandoned the family when the father was diagnosed with colon cancer; tried to alienate the son from his father and made false allegations of sexual abuse to gain custody of the boy—so as to get access to government benefits (like aid to families with dependent children, food stamps, and housing assistance); terrorized the child by falsely telling him that his father had AIDS; failed to provide food and shelter to the child while his father was in hospital; and withdrew her husband’s and step-son’s permanent residence petitions when her schemes to benefit herself failed. Critically, we proved that deportation would result in extreme hardship to father and son—because they would not have access to essential health and social services in Venezuela that remotely approached the quality of those available in the United States.

We supported the case with helpful affidavits from dedicated individuals and public servants: public school teachers, social workers, and guidance counselors; housing authority officials; doctors; family friends; and a clinical psychologist in Venezuela who used to work for that country’s national agency for child welfare. We also used US Government and academic data on social, economic, educational and medical conditions in Venezuela to clarify that deportation would make an intolerable situation even worse. This was a huge undertaking—that, thankfully, succeeded in getting permanent residence for deserving people who had suffered more than enough.

The firm regularly obtains visas for the highly talented: those with extraordinary ability (EB-1 and O-1) or exceptional ability (EB-2); outstanding professors and researchers (EB-1); and individuals whose work qualifies for a “national interest waiver” of the requirement to obtain a labor certification (under EB-2). Here are some areas in which our highly talented clients work:

  • cancer research
  • neuroscience
  • blast furnace (steel making) operation
  • ballroom dancing costume design
  • auto racing
  • scientific instrument design; e.g., scanning probe microscopy
  • economics
  • gymnastics
  • law
  • respiratory/pulmonary medicine
  • business management
  • meteorology
  • oceanography
  • computer/machine learning
  • biophysics
  • veterinary science
  • mechanical engineering
  • industrial engineering
  • electrical engineering
  • computer science
  • accounting
  • music (piano, percussion, marimba)
  • art
  • environmental science
  • chef

Representative appellate work in labor certification cases:

A New Jersey company sought to hire a bricklayer. DOL denied that case, saying that a bricklayer’s job in New Jersey cannot be a fulltime, permanent job because bricks cannot be laid in New Jersey’s winter weather. We had to prove that bricklaying in general is a year-round activity despite the cold northeast winters. In addition to documentation from the employer reflecting its constant workforce, we secured the support of various national construction and bricklaying organizations to confirm that, with today’s mortar and technology, there’s no need to slow down brick construction in freezing winter temperatures. Based on our response, DOL reversed its decision without sending the case to appeal.

A wealthy Miami Beach couple sought a fulltime nanny for their three young children. Their house had a pool that was fenced consistent with Florida law, but the couple wanted the nanny to be able to swim in case of emergency—while swimming with the children, or on the chance that a child might wander into the pool area. DOL denied the application, saying that requiring a successful applicant to be able to swim caused otherwise qualified US applicants to forebear from applying for the job; and that all that should have been required was knowledge of lifesaving techniques, not ability to swim. Weiss & Kahn secured documentation and letters of support from the National Red Cross and other safety organizations, as well as statistical data showing that drowning is the number one cause of death among children under the age of 5 in Florida. The Board of Alien Labor Certification Appeals (BALCA) issued a unanimous decision granting the labor certification application, and derided DOL’s claim that holding out a long stick to a drowning 5 year old would have been an adequate life-saving precaution.

Some cases—or types of case—discussed above are not, technically speaking, appeals. But they all illustrate Weiss & Kahn’s ability to persuade the huge, lumbering, opaque, and multi-faceted federal immigration bureaucracy to decide cases in our clients’ favor.