Municipal Law Update - Summer 2004

Civil Rights

Denial of Qualified Immunity for Conditioning Return to Work
County officials were not entitled to qualified immunity in a suit brought by a police officer who was previously placed on administrative leave. The County officials attempted to get the police officer to sign a Plan of Assistance as a condition for returning to work. The Plan restricted the officer from making comments about his employment including comments on matters of public concern. The Fourth Circuit Court of Appeals noted that even if the County had a legitimate interest in restricting the officer's unprotected comments about his employment, that interest did not justify the Plan's restriction on the officer's prospective speech about matters of public concern as a private citizen. The case is Mansoor v. Trank, 319 F.3d 133 (4th Cir. 2003).

Denial of Qualified Immunity for Handcuffing
In a section 1983 suit alleging cruel and unusual punishment in violation of the Eighth Amendment, the United States Supreme Court denied prison guards qualified immunity for handcuffing a disruptive prisoner to a hitching post and leaving him in the sun for an extended period of time. The Court ruled that any safety concerns had subsided long before the prisoner was released. Despite the clear lack of an emergency, the prisoner was subjected to punishment that was totally without penalogical justification with a substantial risk of physical harm, unnecessary pain, unnecessary exposure to the sun, and substantial risk of discomfort and humiliation. A reasonable officer should have known that using the hitching post in such a manner was unlawful. The case is Hope v. Pelzer, 536 U.S. 730 (2002).

The Fourth Circuit addressed a similar case in which police officers handcuffed a man to a pole in the middle of the night and left him there alone. The officers admitted that their actions were not based on any legitimate law enforcement purpose. In fact, the purpose was to make a point to a neighboring county's police department with which the officers were feuding. Although the court found the actions to be more than de minimis and a violation of the man's constitutional rights, the Court held that the officers were not on notice that such acts would constitute violations and thus were entitled to qualified immunity. The case is Robles v. Prince George's County, Md., 302 F.3d 262 (4th Cir. 2002), cert. denied, 538 U.S. 945 (2003).

Qualified Immunity for Objectively Reasonable Use of Deadly Force
In a Fourth Amendment excessive force suit arising from a police pursuit, the United States District Court for the Eastern District of Virginia granted the officer qualified immunity. The Court ruled that the officer was objectively reasonable in using deadly force when he shot the decedent because he believed another officer's life was in danger. Likewise, the Court granted the City's motion for summary judgment based on the following: (1) the City's training on felony traffic stops at the police academy; (2) lack of support for requiring supplemental training on subjects taught at the academy; (3) lack of support for requiring a written policy; and (4) absence of evidence of deliberate indifference motivating the City's decision not to implement a policy on high risk traffic stops. The case is Reedy v. City of Hampton, No. 4:02cv56 (E.D.Va. Jan. 2, 2003), and was defended by Stanley G. Barr, Jr. and Shepherd D. Wainger of Kaufman & Canoles.

Denial of Immunity for Municipality in Qui Tam Action
The United States Supreme Court denied a municipality's claim of immunity in a qui tam action under the False Claims Act (FCA), 31 U.S.C. %uFFFD 3729 et seq. The Court held that the county was a person for purposes of the FCA, despite the fact that the damages available under the FCA are punitive in nature. The Court held that the 1986 amendments to the FCA were meant to modernize the FCA and that it is simply implausible that Congress intended to repeal municipal liability sub silentio. The case is Cook County, Ill. v. United States ex rel. Chandler, 538 U.S. 119 (2003).

Bystander & Supervisory Liability
In a civil rights suit arising from police searching and detaining multiple plaintiffs while investigating the murder of a police officer, the Fourth Circuit Court of Appeals found that there was insufficient evidence to support the jury verdict against the supervising officers on either a theory of bystander liability or supervisory liability. As part of its ruling, the Fourth Circuit adopted a standard to assess bystander liability law. Under this standard, an officer possesses an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers. Consequently, an officer may be liable under section 1983 on a theory of bystander liability if he knows that a fellow officer is violating an individual's constitutional rights, has a reasonable opportunity to prevent the harm, and chooses not to act. Knowledge is a key component in bystander liability analysis. The Court addressed the issue of supervisory liability by reiterating its prior holdings requiring conduct that poses a pervasive and unreasonable risk of constitutional injury, which equated to a showing that it was customary for the police to detain witnesses against their will in the absence of probable cause. The case is Randall v. Prince George's County, Md., 302 F.3d 188 (4th Cir. 2002).

No Fee Award For Prevailing On Preliminary Injunction
Guided by the United States Supreme Court's decision in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001), the Fourth Circuit Court of Appeals recently held that a party who wins a preliminary injunction is not eligible for a fee award under 42 U.S.C. %uFFFD 1988. The plaintiffs challenged the constitutionality of a Virginia policy which required applicants for temporary assistance for needy families to identify the father of any child for whom aid was sought, or provide the names of all potential fathers if paternity was uncertain. The District Court granted a preliminary injunction, and the state agreed to make its policy prospective; therefore, plaintiffs' names became moot. Notwithstanding the state's agreement not to seek recoupment and plaintiffs' success in gaining a preliminary injunction, the Fourth Circuit reversed the District Court's award of approximately $195,000 in attorneys' fees. The Court held that the grant of a preliminary injunction was not sufficiently akin to an enforceable judgment on the merits to make the plaintiffs the prevailing parties. The case is Smyth v. Rivero, 282 F.3d 268 (4th Cir.), cert. denied, 537 U.S. 825 (2002).

Constructive Notice of Defect
In a personal injury action, the evidence was sufficient to establish constructive notice to a municipality of a defect in a municipal right-of-way adjoining a public street. The Supreme Court of Virginia acknowledged that a municipality is required to exercise reasonable care to maintain public ways in a safe condition. However, it noted that a municipality cannot be held liable for injuries resulting from a defect in the condition of the public way absent actual or constructive notice of the particular defect giving rise to the injury. Although it was conceded that the City did not have actual notice, the City was found to have constructive notice of the defect where it was shown that it existed over a length of time sufficient to establish that reasonable diligence would have led to its discovery. The case is City of Richmond v. Holt, 264 Va. 101, 563 S.E.2d 690 (2002).

Quantum Meruit Barred By Sovereign Immunity
Where a contractor brought suit against the County for breach of contract and recovery in quantum meruit in connection with a contract for the construction of a water treatment plant, sovereign immunity bars the quantum meruit claim. In Dr. William E.S. Flory Small Bus. Dev. Ctr. v. Commonwealth, 261 Va. 230, 541 S.E.2d 915 (2001), the Supreme Court of Virginia ruled that quantum meruit is not available against the Commonwealth. The contractor argued that Flory does not apply because the County is not the Commonwealth, but a quasi-corporate body engaged in a proprietary function and thus divested of its immunity. The Court rejected the contractor's argument, noting that a County in Virginia is an integral part of the Commonwealth and shares in its immunity. The case is MCI Constructors v. Spotsylvania County, 60 Va. Cir. 290 (Spotsylvania Oct. 28, 2002).

Sovereign Immunity For Intentional Torts
The Supreme Court of Virginia has resolved the issue of whether a municipality may claim sovereign immunity for the intentional torts of its employees. In this case, a plaintiff sued the City of Alexandria for sexual assault, intentional infliction of emotional distress and negligent retention for the intentional actions of an on-duty police officer. The City claimed entitlement to sovereign immunity for the intentional torts committed by the employee in the performance of a governmental function. The Supreme Court of Virginia agreed and also rejected plaintiff's argument to adopt an exception to the rule of sovereign immunity for the tort of negligent retention. The case is Niese v. City of Alexandria, 264 Va. 230, 564 S.E.2d 127 (2002).

State Versus Private Action
The plaintiff, a newspaper publisher, sued a group of sheriff's deputies after the deputies conspired to purchase all of the newspapers on the eve of an election for sheriff because the newspaper was critical of the police department. When the deputies committed this act, they were off duty, wearing plain clothes and driving private cars. Despite these uncontested facts, the Fourth Circuit held that they acted under color of state law because the deputies' private actions were linked to events which arose out of their official status. In addition, the court found that the deputies' status as police officers assisted them in carrying out the mass purchase, which violated state law. For example, when a convenience store clerk informed the deputies they were not permitted to purchase all of the papers, the deputies intimidated him by suggesting that they would make his life a living hell. Finally, the court found the deputies' behavior to be exactly the kind of censorship that the First Amendment had been designed to prevent. The Fourth Circuit stated that, censorship is equally virulent whether carried out by official representatives of the state or by private individuals acting out of a self-interested hope in receiving or maintaining benefits from the state. The case is Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir.), cert. denied, 124 S. Ct. 135 (2003).

Policy To Combat Crime Not Unconstitutionally Overbroad
The United States Supreme Court reversed the Supreme Court of Virginia's ruling regarding a new policy implemented by the Richmond Redevelopment and Housing Authority (RRHA) at Whitcomb Court - a low-income housing development. The RRHA policy authorized police to serve notice on any person lacking a legitimate business or social purpose for being on the premises and to arrest for trespassing anyone who remains or returns after receiving such a notice. When a non-resident of the housing project was convicted for trespassing in violation of the RRHA policy, the Virginia Court of Appeals vacated his conviction holding that the policy was, among other things, unconstitutionally overbroad. The Supreme Court of Virginia affirmed. The United States Supreme Court reversed the Supreme Court of Virginia, holding that the policy was not facially invalid under the First Amendment's over breadth doctrine. The United States Supreme Court held that the plaintiff failed to show that the policy prohibited a substantial amount of protected speech and that neither the basis for the sanction (a prior trespass) nor the purpose of the policy (preventing future trespass) implicated the First Amendment. See Commonwealth of Virginia v. Hicks, 539 U.S. 113 (2003). On remand, the Supreme Court of Virginia held that Hicks could not complain of vagueness because he had twice been convicted of trespass on RRHA property and had received written notification that any return to RRHA property would result in further prosecution. Additionally, the policy did not violate Hick's right to freedom of intimate association with his mother and his children who lived at Whitcomb Court because he remains free to associate with his family anywhere he chooses except on private property owned by the RRHA. The case is Commonwealth of Virginia v. Hicks, 539 U.S. 113 (2003).

Title VII - Procedural Bar
A Title VII case alleging a hostile work environment was held to be procedurally barred where it was not filed within 300 days after the alleged unlawful practice occurred. The Court noted that it is possible for a plaintiff to sue on such a claim where the conduct occurs outside of the statutory period; however, at least one of the acts contributing to the hostile work environment must take place within the statutory time period. The plaintiff was unable to make such a showing where she worked only three weeks within the statutory time period and was supervised by someone other than the defendant during that time. Moreover, the only claim she made that occurred during that time period was legally insufficient to withstand summary judgment. The case is Reeves v. Virginia Dep't of Corr. Educ., No. 2:02cv00020, 2003 U.S. Dist. LEXIS 279 (W.D.Va. Jan. 9, 2003), aff'd, 2003 WL 21154295, 63 Fed. Appx. 165 (4th Cir. May 20, 2003).

Employment Discrimination
In an employment discrimination suit brought by a school guidance counselor, the Court held that the counselor had not met her burden of proof as to her claims of discrimination based on age and sex. The District Court rejected the Magistrate Judge's finding that the school board's actions were pretextual in transferring plaintiff from her higher paying administrative position back to a high school counselor position. The Court held that the school board's basis for the transfer was legitimate - she was the best qualified for the vacant position and the school needed her counseling skills more than her administrative skills. The Court indicated that the fact that the board did not agree with the superintendent's recommendation was not dispositive given the absence of evidence of the frequency with which the school superintendent's recommendations were not followed. Although the Court acknowledged that the board may have been wrong, the Court nevertheless noted the board's determination was not to be second-guessed so long as it was not based on an impermissible factor such as sex or age. The case is Gilliam v. Lee County Sch. Bd., No. 2:01cv00083, 2002 U.S. Dist. LEXIS 24858 (W.D.Va. Dec. 30, 2002).

Children's Internet Protection Act Held Constitutional
The United States Supreme Court rejected a constitutional challenge to the Children's Internet Protection Act, which conditions the receipt of federal assistance for Internet access on the libraries' utilization of filters that would block pornographic web-sites. The challenge claimed that the Act violates library patrons' First Amendment rights, oversteps Congress's spending powers and imposes unconstitutional restrictions upon the receipt of federal funds.

A four-justice plurality analyzed whether the conditions imposed by the Act would have been unconstitutional if the conditions had been imposed by the libraries themselves. In their analysis, the justices refused to apply forum analysis and heightened scrutiny to public libraries' discretionary decisions, holding that Internet access in public libraries did not constitute a public forum. The four justices compared the restrictions imposed by the Act to editorial judgments at public television stations or content-based funding decisions that the National Endowment for the Arts was forced to utilize. Based on this comparison, the Court ruled that the Act imposed appropriate content-based decisions about what private speech to make available to the public. The four justices also noted that library patrons were free to request that the filter be removed for specific web-sites they sought to visit. Accordingly, the four justices held that the Act neither violated library patron's First Amendment rights nor induced the libraries to violate the Constitution. The four-justice plurality similarly rejected the argument that the Act imposed an unconstitutional condition upon the receipt of federal funds, holding that the government could define the limits and purposes of programs for which it appropriated funds. The case is United States v. Am. Library Ass'n., 539 U.S. 194 (2003).


School Law

Prayer in Public Schools
On February 7, 2003, the United States Department of Edcuation issued a memorandum entitled Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools. The memorandum clarifies the legal protection extended to prayer in public schools. Notably, students may engage in prayer during non-instructional time, subject to the same rules designed to prevent material disruption of the educational program applicable to other privately initiated expressive activities. Moments of silence also are permitted. Likewise, organized prayer groups and activities are permitted to the same extent as other extracurricular student activities groups. Teachers, administrators and other school employees are prohibited from encouraging or discouraging prayer, and from actively participating in religious activities with students. However, they may take part in religious activities if the overall context makes clear they are not participating in their official capacities. School officials cannot discriminate based on religious content expressed in class assignments. Moreover, student speakers at school events, including graduation, must be selected on a neutral basis without regard to religious expression. Accommodation of prayer during instructional time is discretionary unless federal or state constitutional laws or state statutes require otherwise.

Limitations on the Enforcement of FERPA
In a section 1983 action, the United States Supreme Court held that a student may not sue a private university for damages to enforce provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA). Educational agencies and institutions only can only receive federal funds under FERPA by complying with rules relating to access and disclosure of student educational records. According to FERPA, the Secretary of Education is authorized to enforce these spending conditions by terminating funding if appropriate. However, the non-disclosure provision fails to confer enforceable rights, speaking only to the Secretary of Education and of institutional policy and practice, rather than to individual instances of disclosure. The case is Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).

Drug Testing Prerequisite to Extracurricular Activities
A public school policy of drug testing all middle and high school students who wish to participate in extracurricular activities has been found constitutional by the United States Supreme Court. A student brought a section 1983 action for equitable relief claiming the policy violated the Fourth Amendment's prohibition against unreasonable search and seizure. The Court rejected this claim, holding that the policy was a reasonable means of furthering the school district's important interest in preventing and deterring drug use among school children. The Court indicated that a finding of probable cause to drug test is unnecessary in the public school context because it would unduly interfere with the maintenance of the swift and informal disciplinary procedures that are needed. School children have a limited expectation of privacy and those who participate in extracurricular activities subject themselves to intrusions on their privacy. The invasion of the students' privacy interest is minimal, and the policy effectively serves the district's interest in protecting its students' safety and health. The case is Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie City v. Earls, 536 U.S. 822 (2002).

Admissions Policies Must be Narrowly Tailored
The United States Supreme Court upheld the constitutionality of the admissions policy at the University of Michigan Law School. The Court held that an admissions policy that considered race among other factors survived strict scrutiny following a challenge from an applicant who was denied admission. The Court held that the state had a compelling interest in securing the educational benefits of a diverse student body and that the policy was narrowly tailored to achieve that purpose. Importantly, the Court held that a quota system likely would not survive strict scrutiny as it would probably not be deemed to be narrowly tailored to achieve the compelling interest of diversity. The Court focused on the fact that the admissions program established a flexible approach to admissions decisions by considering many factors relevant to diversity.

Using the same strict scrutiny analysis, the Court held that the University of Michigan's undergraduate admissions policy was unconstitutional. The undergraduate admissions policy is based on a point system in which underrepresented minority applicants were automatically given twenty points based solely upon their racial classification. Although the Court found that the undergraduate admissions program furthered the same compelling interest as the law school admissions program, it was held unconstitutional. The undergraduate policy of ensuring the benefit of a diverse student body by automatically giving minority applicants additional points, without any other consideration, was not a narrowly tailored means to achieve that compelling interest. The case is Grutter v. Bollinger, 539 U.S. 306 (2003).

The Virginia Freedom of Information Act
The Supreme Court of Virginia recently clarified a number of issues relating to the Virginia Freedom of Information Act (FOIA). Allegations were made that Fredericksburg officials were attempting to avoid public scrutiny by emailing or meeting informally, thereby avoiding the FOIA disclosure requirements for public meetings. The court held that FOIA does not apply to members-elect; therefore, the allegation of informal meetings between two councilmen and three members elect did not meet the FOIA threshold requirement of an assemblage of three members of a public body. Furthermore, because the email communication did not involve virtually simultaneous interaction, those communications could not be considered an assemblage for FOIA purposes. Finally, attendance of three council members at a citizens' gathering did not constitute a meeting under FOIA because no part of the purpose of the gathering was the discussion or transaction of any public business. The case is Beck v. Shelton, 267 Va. 482,593 S.E. 2d 195.

Sovereign Immunity For Slip And Fall Accidents
In a personal injury suit where a person slipped and fell on ice in a city owned parking lot, the Supreme Court of Virginia recently granted the City of Norfolk sovereign immunity. The plaintiff, a Bank of America employee, parked in a city owned lot where the Bank had leased 900 out of 1100 spaces. The plaintiff claimed that the City's lease of spaces in the parking lot for pecuniary benefit and the City's maintenance of the lot are proprietary functions which do not immunize the City from tort liability, but the Court disagreed. The Court held that the City's decision to restrict its snow removal operations to public streets rather than the lot, and its failure to place emergency warnings signs in the lot involved the City's exercise of a governmental function because it was in the context of a snow emergency and dealt with the determination of priorities directly related to the general health, safety and welfare of the citizens. The case is Gambrell v. City of Norfolk, 267 Va. 353,593 S.E. 2d 246.

Unconstitutionally Overbroad School Dress Code
A student at an Albemarle County middle school recently challenged the dress code when he was prohibited from wearing a NRA tee shirt depicting men holding firearms. The dress code prohibited messages on clothing relating to weapons, which the student challenged as constitutionally overbroad because it applies to nonviolent and nonthreatening messages relating to weapons and because there is a dearth of information demonstrating that the display of messages relating to weapons would substantially disrupt school operations or interfere with the rights of others. The Fourth Circuit Court of Appeals agreed and found that all factors favored imposition of a preliminary injunction in the student's favor. The case is Newsom v. Albemarle County Sch. Bd., 354 F.3d 249 (4th Cir. 2003).


Supreme Court Rules Section 1981 Claims Subject to Federal Four Year Statute of Limitations

The United States Supreme Court recently held that the federal catch all statute of limitations applies to claims brought under 42 U.S.C. section 1981 rather than any analogous state statute of limitations. Congress passed 28 U.S.C. section 1658 to create a catch all four year statute of limitations for federal statutes that do not contain any limitations period. Yet by its own terms section 1658 only applies to cases arising under an Act of Congress enacted after [December 1, 1990]. Cases arising under earlier Acts of Congress without limitations periods would still be governed by the most analogous state statute of limitations. (The Fourth Circuit had held that the analogous state statute of limitations for claims under 42 U.S.C. section 1981 in Virginia was two years.) This case involved this issue as to whether the post-December 1, 1990 amendments to 42 U.S.C. section 1981 triggered the four-year statute of limitations found in 28 U.S.C. section 1658.

The defendant in the case argued that section 1981 was passed long before 1990 and, thus, the catch all statute did not apply. The plaintiff, however, reasoned that because section 1981 was amended in 1991 to expand its universe of potential claims, it qualified as an Act of Congress enacted after December 1, 1990. The Supreme Court agreed, holding that section 1658 applies if the plaintiff's claim against the defendant was made possible by a post-1990 enactment. In response to the defendant's argument that its ruling would create headaches for courts attempting to determine whether a plaintiff's claim was made possible by a post-1990 enactment, the Court observed that, such hypothetical problems pale in comparison with the difficulties that federal courts faced for decades in trying to answer all the questions raised by borrowing appropriate limitations rules from state statutes. The case is Jones v. R.R. Donnelly & Sons Co., 124 S. Ct. 1836 (2004).


H-1B Visa: Past, Present and Future

The H-1B Visa is a non-immigrant visa well known and widely-used by U.S. employers seeking to employ educated and experienced foreign workers. The H-1B Visa is available for specialty occupations - generally viewed as occupations for which the entry-level educational standard is at least a bachelor degree in a related field. In addition to establishing that the job position itself qualifies for H-1B treatment, the Employer must establish that its candidate, the foreign national, also qualifies for H-1B treatment by possession of at least the equivalent1 of a U.S. bachelor's degree in a field related to the specialty occupation.

H-1B Cap
The federal government's fiscal year begins October 1st each year and ends the following September 30th. The Immigration and Nationality Act provides an allocation of 65,000 H-1B visas per fiscal year. As a result of The American Competitiveness in the Twenty-First Century Act of 2001 (AC21) and related legislation, Congress increased the number of H-1B visas available each year to 195,000. The increased allocation under AC21 was scheduled to sunset on October 1, 2003. Because Congress did not act to extend the AC21 allocation provision, the number of H-1B visas available did indeed drop to 65,000 per fiscal year effective October 1, 2003.

In addition to increasing the number of H-1B visas available, AC21 created certain categories of H-1B employers/beneficiaries exempt from the count toward the cap:

(a) beneficiaries who are in J-1 nonimmigrant status in order to receive graduate medical education or training pursuant to Immigration and Nationality Act (INA) 212(e)(iii), and who have obtained a waiver of the 2-year home residency requirement under the provisions of the INA first 214(1)(1)(B) (commonly referred to as the Conrad State 20 program); or

(b) beneficiaries who are employed at, or who have received an offer of employment at, an institution of higher education (as defined in the Higher Education Act of 1965 101(a), 20 USC 1001(a)), or a related or affiliated non-profit entity; or

(c) beneficiaries who are employed by, or who have received an offer of employment from, a non-profit research organization; or

(d) beneficiaries who are employed by, or who have received an offer of employment from, a governmental research organization; or

(e) beneficiaries who are currently maintaining, or who have held within the last 6 years, H-lB status, and are ineligible for another full six year stay as an H-lB; or

(f) beneficiaries who have been counted once toward the numerical limit, and are the beneficiary of multiple petitions.

While the AC21 numerical increase expired on October 1, 2003, the exempt categories created by AC21 remain in effect today.

On February 17, 2004, the CIS reported that for fiscal year 2004 (October 1, 2003 through September 30, 2004), the H-1B count had already reached the limit of 65,000. Immigration lawyers are now working closely with employers on fiscal year 2005 immigration plans.

H-1B Fee
The CIS filing fee for H-1B processing is now $185. In exchange for the increased number of H-1B visas available under AC21, Congress implemented an additional filing fee of $1,000 to be paid by most private employers. As such, the combined CIS filing fee for an H-1B visa under AC21 was $1,130. When the numerical increase expired on October 1, 2003, so too did the Petitioner Account Fee. As a result the current CIS filing fee for an H-1B visa reverted to the pre-AC21 amount of $130 (which was subsequently increased to $185 in April 2004).

I note that the CIS premium processing fee of $1,000 remains in effect for those that need or opt for fast-track processing.

H-1B Processing
As of the date of this writing, CIS processing time for an H-1B petition ranges between 60 and 150 days, generally approaching the longer end of the spectrum. Premium processing ensures that the CIS will issue a response in the case within 15 days of the CIS receipt date. The response may be an approval, a request for additional evidence or, in the rare case, an outright denial. Generally if the CIS intends to deny a petition, it will first issue a request for additional evidence stating the basis of its intent to deny and providing to the Petitioner an opportunity to submit evidence on the points of contention.

The days of the rare outright denial may be a thing of the past though. A May 4, 2004 memorandum issued by the CIS to its field offices essentially instructs the field offices to issue decisions instead of requests for additional evidence in many cases. This mindset is particularly disturbing considering that in the large majority of cases, an experienced immigration lawyer is able to respond to a request for additional evidence so as to generate a favorable result in the case.

1 Educational equivalency may be established by showing that the foreign national possesses foreign education and/or experience that equates to a U.S. four year bachelors degree.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.



The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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