IMMIGRATION “LOTTERY”

June 11, 2009 by Bradley Maged.

Having returned returned from Las Vegas, where AILA’s annual conference was held last week and the irony of holding the event in Vegas given the abysmal state of immigration-related laws and adjudications is not lost.  Below is a list of how immigration is analogous to games of chance in so many ways:

Diversity Lottery

The most obvious “game of chance” when it comes to US immigration policy is the DV lottery.  If you are eligible and you win, you may be on your way to a green card.

Adjudications

More than ever before, we now tell our immigration clients that the odds of success in a particular case depends on the adjudicator.  Inconsistent adjudications and questions raised by the USCIS on extensions of previously-approved petitions have become commonplace.  Cases that we tell clients may not fly are often approved without question and those that are considered straighforward become uphill battles. 

Although Appeals or Motions to Reconsider erroneous decisions may be available, the time it takes for such decisions to come down is often fruitless from a strategic point of view because even if the Appeal is sustained, the alien’s status is not preserved during the pendency of an Appeal and in the case of an employment-based petition, an employer may not be interested in waiting for a year or more to hire an individual that it needs today.

Hope of Immigration Reform

Another gamble some foreign-nationals are willing to take is to wait for some sort of immigration reform.  If a path to legalization is a component of such a law that actually passes both Houses and is signed by the President, then some individuals may choose to lay low and see what happens if their case is denied or they are at risk of being subject to the three or ten years bars to reentry that would be triggered if they left the US.    

One piece of advice that is more true now than ever is to retain competent immigration counsel to represent you.  As tough as it is for lawyers in this environment, it is often a nightmare for those who try to go it alone.  Potential clients regularly call on us to try to clear up issues that arise when the subtleties of the laws and regulations are ignored or the government simply denies a case because it can.  It is best to hire counsel at the outset of a case than to do so after problems have surfaced.

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