Integrity Legal

4th Mar 2010

In some cases, it may be necessary to file a lawsuit against the United States Citizenship and Immigration Service (USCIS). These instances are viewed as aberrations by most US Immigration lawyers because, for the most part, USCIS follows the statutory scheme set out by the United States Congress. In some case, a Petitioner or Beneficiary must seek to have an agency compelled to perform a function that is required pursuant to their duties in office. In cases such as this, a writ of mandamus may be the proper remedy. However, when USCIS acts outside of the rules, it may be necessary for a petitioner or beneficiary to take legal action in the form of a lawsuit in order to remedy an injustice.

Recently, the United States Ninth Circuit Court of Appeals heard a case involving the adjudication of a petitioner for an EB-1 visa. To quote a recently promulgated email from the Immigration Policy Council:

“Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate ‘the research community’s reactions to his [scholarly] publications’ – an arbitrary requirement with no justification in the law.”

Many people are under the mistaken impression that agencies, such as, but not limited to, USCIS, involved in the United States visa process make make unilateral decisions regarding what will be required of the petitioner and beneficiary in a given case. This is not true as the requirements for petition approval are based upon the relevant law. No agency, be it USCIS, Immigration and Customs Enforcement (ICE), nor Customs and Border Protection (CBP) may unilaterally create requirements that do not exist under US law.  This point was driven home in the case itself when the court was quoted as saying that:

“neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].”

This case marks a positive step in the right direction away from governmental capriciousness. In an interesting comment about this case Mr. Benjamin Johnson, Executive Director of the American Immigration Council stated:

“Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren’t in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores.”

United States Immigration is a complex and often confusing area of the law. For more information on American visas, specifically those obtained in the Kingdom of Thailand, please see: US Visa Thailand.

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