Brian Schmitt served as lead counsel on Atanackovic v. Duke, in which plaintiffs sought review of a CBP decision to deny a Canadian physician’s admission into the United States in H-1B visa status. The physician was denied admission because he was subject to the two-year foreign residence requirement of INA § 212(e). The court found that CBP’s refusal to admit the Canadian national physician was an abuse of discretion and not in accordance with the law.
For the last 6-month period, the USCIS CSC turned very hostile towards I-612 hardship and persecution cases. We received many RFEs on both types of cases. In some such cases, we received denials, such as in the instant case. Given the permissive nature of AAO appeals, coupled with the hostility of the AAO towards I-612 hardship and persecution cases, we have opted to bypass the AAO and simply file lawsuits seeking judicial review of such denials. Specifically, in 2018 and including the instant case, the AAO only sustained and remanded two I-612 appeals. Since the filing of various lawsuits and this appeal, we have noticed the issuance of RFEs and denials on such cases decline.
In the instant case, we decided to file an AAO appeal because the AAO conducts a de novo review, permitting the introduction of new evidence. New material evidence arose in the instant case, necessitating the AAO appeal. In the instant case, the USCIS AAO sustained our appeal, finding that the U.S. citizen qualifying relative children would suffer exceptional hardship in all travel alternatives.
Read the full story at Law360.
Brian Schmitt filed a lawsuit against the USCIS in an I-612 hardship waiver case that was unreasonably delayed at the USCIS. This was a rock-solid hardship waiver application for an Indian physician. The case was originally filed on April 14, 2017. Mr. Schmitt made inquiry on the delayed case on February 9, 2018. The USCIS responded that the case was currently being adjudicated and that the applicant should expect a decision within 45 days. On March 23, 2018, Mr. Schmitt sent a draft mandamus lawsuit to the USCIS demanding they take action on the case by April 5, 2018 or a complaint would be filed. The lawsuit was filed in the United States District Court for the District of Columbia on April 5, 2018. The USCIS was served with a copy of the lawsuit on April 16, 2018. The USCIS immediately acquiesced and forwarded the I-612 hardship waiver application to the State Department Waiver Review Division (WRD). The WRD received the case on April 25, 2018. It issued the favorable recommendation on the waiver application on May 9, 2018. It is now 100% certain that the waiver application will be approved.