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.