Immigration precedents

The respondent was found removable based on a California conviction for dissuading a witness under Penal Code section 136.1(b)(1); the Board applied the generic definition from Valenzuela Gallardo II and held that the offense is categorically an aggravated felony relating to obstruction of justice under INA section 101(a)(43)(S). Applying the Montgomery Ward five-factor test, the Board held that its new obstruction-of-justice standard may be applied retroactively to the respondent's pre-decision conviction, dismissed the appeal, and upheld the denial of cancellation of removal.

A U.S. citizen son filed an I-130 petition for his father, and USCIS denied it under INA 204(c), finding that the beneficiary's prior marriage was entered into to evade the immigration laws. The Board of Immigration Appeals dismissed the appeal and clarified that 'substantial and probative evidence' is a standard of proof higher than a preponderance but lower than clear and convincing evidence, requiring review of all direct and circumstantial evidence in its totality to determine whether it is more than probably true that the marriage was fraudulent.

The respondent, a Chinese lawful permanent resident, unlawfully purchased a Certificate of Naturalization from a former INS officer and used it to obtain a U.S. passport and reenter the United States; the Immigration Judge found him removable for falsely representing U.S. citizenship without deciding whether he acted knowingly. The Board of Immigration Appeals held that INA section 237(a)(3)(D)(i) contains no intent requirement, so a false claim to citizenship need not be knowing to render an alien deportable, and that a Certificate of Naturalization acquired unlawfully does not itself confer citizenship.

A Venezuelan husband and wife obtained permanent residence through a visa petition and adjustment application falsely claiming the husband worked as a minister at a Catholic church; the Immigration Judge found them not credible and found they knew of or authorized the false statements. The Board of Immigration Appeals dismissed their appeal, holding that an alien's signature on an immigration application creates a strong presumption that he or she knows and assents to its contents, rebuttable by evidence of fraud or other wrongful acts by another, and that deliberate avoidance of the application's contents is no defense.

A Cambodian K-1 fiancee visa holder married her U.S. citizen petitioner within 90 days and filed for adjustment with his Form I-864 affidavit of support; after the marriage broke down, the petitioner withdrew the affidavit before adjudication and the couple divorced, and the Immigration Judge found her inadmissible as likely to become a public charge. The Board of Immigration Appeals held that a K-1 visa holder who fulfilled the visa terms but later divorced must still submit an affidavit of support from the petitioner, because divorce is not a statutory or regulatory exception, and dismissed the appeal.

The Fifth Circuit reviewed the inadmissibility of a lawful permanent resident based on possession of AB-CHMINACA before it was added to the federal controlled-substance schedules. The court held that applying INA § 1182(a)(2)(A)(i)(II) was impermissibly retroactive because it attached a new legal consequence to conduct completed before the regulatory change, and it reversed the BIA's order and remanded.

A software development and consulting firm filed an H-1B petition for a beneficiary while a separate company, C- LLC, filed a petition for the same beneficiary for substantially the same job with the same end-client. USCIS found the two companies to be 'related entities' under 8 C.F.R. § 214.2(h)(2)(i)(G) without a legitimate business need and revoked the petition's approval. The AAO upheld the revocation, clarifying that 'related entities' is not limited to petitioners related through corporate ownership and control.

The beneficiary worked abroad for the petitioner's Indonesian affiliate for over one year, entered the United States in 2008 to work for the petitioner as a nonimmigrant, left in 2010 for nearly four years with an unrelated U.S. employer, and returned to the petitioner in 2014, after which the petitioner filed an EB-1 multinational manager or executive petition. The AAO held that a beneficiary who worked abroad for a qualifying multinational organization for at least one year but left its employ for more than two years does not satisfy the one-in-three foreign employment requirement, and would need an additional year of qualifying employment abroad to requalify; the appeal was dismissed.

An information technology company's approved EB-2 Form I-140 petition for an Indian software engineer was revoked after USCIS sent a notice of intent to revoke only to the original petitioner, which did not respond, even though the beneficiary had twice ported to new employers under INA section 204(j) while his adjustment application was pending. The AAO held that beneficiaries who are eligible to port and have properly requested to port under AC21 are 'affected parties' entitled to notice and an opportunity to participate in revocation proceedings, while other beneficiaries and subsequent employers are not.

A multinational technology product development corporation sought first-preference multinational manager classification for a beneficiary as a 'function manager'; the service center director denied the I-140 for failure to establish managerial capacity. On de novo review the Administrative Appeals Office sustained the appeal, holding that a function manager must show: (1) the function is a clearly defined activity; (2) it is essential, i.e., core to the organization; (3) the beneficiary will primarily manage rather than perform it; (4) the beneficiary acts at a senior level in the hierarchy or with respect to the function; and (5) the beneficiary exercises discretion over the function's day-to-day operations.

The petitioner sought to establish a sibling relationship with a Pakistani birth certificate registered two years after the beneficiary's birth, and the service center director denied the petition for lack of reliable proof of parentage. The Board of Immigration Appeals remanded, holding that a delayed birth certificate must be evaluated together with all other record evidence and the circumstances of the case, without any bright-line registration period, and set out relevant factors and acceptable secondary evidence.

Chung Hou Hsiao sought adjustment of status under the 8 U.S.C. § 1255(i) grandfathering provision, arguing that his 1998 and 2000 I-140 petitions, though denied, were approvable when filed and that USCIS had to reevaluate them in light of new evidence. The Ninth Circuit affirmed, holding that a merits-based denial not caused by post-filing changed circumstances may generally be treated as dispositive on whether a prior visa petition was meritorious in fact, and USCIS was not required to reconsider new evidence.