We Prevailed for Our Client

By Attorney Katherina B. Alznauer

Seven years ago, a client came into our office with a very complicated situation. He was in removal proceedings, commonly known as deportation. His employment-based green card was approved many years ago, but he never received it. When he tried to request that the card be reissued, he was placed in removal proceedings on the basis that he had allegedly misrepresented, and that his labor certification was missing.

A Labor certification is the first step for obtaining an immigrant visa in EB-2 or EB-3 category, depending on the job requirements. The purpose of a labor certification is to protect the U.S. labor market, so that any willing able and qualified U.S. workers can apply and fill the existing vacancy with the potential employer. If no one applies or qualifies then Department of Labor may certify the vacancy and permit the employer to file an EB-2 or EB-3 petition and a green card application, on behalf of the qualifying foreign national.

In this case, USCIS alleged that my client’s green card approval was a mistake because the underlying labor certification was never filed or approved. This was a very difficult situation, especially considering that he barely had any documents. His former attorney who represented him years before was disbarred for fraud and there was no way to obtain a copy of the file to figure out what went so wrong. One day his former attorney just stopped answering the phone, and when he visited the office, the place was gone – empty.

My law partner administratively closed the case until we figured out how to resolve the situation. We filed a Freedom of Information Act request; this is a common means of requesting a copy of administrative record that is accessible to the public. In fact, every single immigrant has one, and may request a copy of their file. There are some privacy limitations, but generally, so long as the person or legal entity consents to release the information, it may be accessible.

In this case, we were able to obtain a copy of the file, about 300-400 completely disorganized pages. It took me a while to make sense of it, but I found a copy of the missing labor certification! This became even more confusing because the immigration agency was saying that my client’s case was never certified, which was feasible because of the absconded attorney. We reached out to trial attorneys explaining that we have a copy of the labor certification, which looked unaltered and that this was an agency’s mistake and the removal case against our client will be lost. Shortly after, my client got his green card that he has been fighting to receive for over a decade.

Fast forwarding to the present, my client was just naturalized. I am so grateful that I was able to help him and finish this twenty-year long process. Talk about patience!