Last year, the 9th Circuit Court of Appeals issued a decision that would have terrible repercussions down the road for anyone applying for an Extraordinary Ability Petition (“EB-1”) at the California Service Center (“CSC”). In Kazarian v. USCIS, 580 F.3d 1030 (9th Cir. 2009), a panel of the 9th Circuit Court of Appeals allowed the CSC and the Administrative Appeals Office (“AAO”) to basically “make up law” as it pertained to the EB-1 category, and set a precedent for the USCIS to do it in other areas (like the recent “Neufeld” H-1B Memo).
Bernie, who hates injustice anywhere, took this case on pro bono to seek a rehearing in the 9th Circuit. Together with the terrific lawyers in his office, colleagues around the United States, and a brilliant amicus brief from the American Immigration Council (the AIC’s brief in this case was exceptional–a key to this victory), a Petition for Rehearing was submitted late last year. The Petition was well done, well argued, and most importantly, the right thing to do at the right time.
Today, the 9th Circuit issued a new decision in Kazarian v. USCIS. While the decision did not reverse the denial of the EB-1 petition, it did vacate the language of the previous decision, and laid down the law to the USCIS. These words will live on in many future court decisions, and should be burned bright into the minds of every USCIS Adjudicator, Supervisor and Service Center Director:
. . . . neither USCIS nor an AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 C.F.R. § 204.5, [citing] Love Korean Church v. Chertoff, 549 F.3d 749, 758 (9th Cir. 2008).
WOW! Could this “rule” be spelled out more clearly? The message to USCIS is clear. FOLLOW THE LAW. DON”T MAKE THINGS UP! The challenge to each of us now, is to take this precedent and begin bringing all of the “made up” requirements that USCIS has been putting in RFE’s and denials over the last several years to the Federal Courts, and seek true justice for our clients. Even if that means doing it pro bono.
Every immigration lawyer and every prospective petitioner for immigration benefits owes our President, Bernie Wolfsdorf, a debt of gratitude for not only taking on injustice, pro bono, and fighting to correct a wrong, but for doing so in the midst of what I personally know to be the busiest year of his life.
Bernie. You are my Immigration Hero. There is a special place in heaven for people like you.