REDEFINING “IMMEDIATELY AVAILABILE” TO ALLOW EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

By Gary Endelman and Cyrus D. Mehta

We continue to blog on the salient ideas in our article, Tyranny of Priority Dates, published in BIB Daily, http://scr.bi/i0Lqkz, on March 25, 2010.

Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability? It would only be more fair to allow someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140. Upon filing of an I-485 application, one can enjoy the benefits of occupational mobility or “portability” under INA § 204(j) and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization, which they otherwise would not be able to get on an H-4 dependent visa.

Unfortunately, INA § 245(a)(3) only allows the filing of an I-485 application when the visa is immediately available to the applicant, and this would need a Congressional fix. We know that Congress either NEVER makes any sensible fix or takes a very long time to do so. So, why not find a way for the immigration agency, USCIS, to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3)?

The only regulation that defines visa availability is 8 C.F.R. § 245(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted Legal Permanent Resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA 245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

The authors propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in bold, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), the authors propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. Since parole is not considered a legal admission, they will not be eligible for adjustment of status but will have to depart the United States and use the now-valid visa as a travel document to return when visa availability subsequently presents itself. The authors suggest the insertion of the following sentence, shown here in bold and deletion of an other sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Nothing could be simpler. The reason to seek Congressional modification of INA § 245(a) is not because it is the only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal.

(The authors thank Marcelo Zambonino, a law student at New York Law School for his assistance with this post.)

TWO H-1B SPOUSES AND ONE LABOR CERTIFICATION: BOTH SPOUSES SHOULD BE ABLE TO SEEK SEVENTH-YEAR H-1B EXTENSIONS UNDER AC21

By Gary Endelman and Cyrus D. Mehta

We post some of the ideas that we have proposed in the forthcoming article, The Tyranny of Priority Dates, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus20103925436, on this blog. This post advocates that an H-1B seeking an extension beyond the six years may do so even though the other spouse is the beneficiary of a labor certification.

There is a clear basis in § 106(a) of the American Competitiveness in the 21st Century Act (“AC21”) to allow an H-1B spouse to seek an extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification. There is no need for two spouses to have their own labor certifications, when only one will be required for both spouses to obtain permanent residence. USCIS must interpret existing ameliorative provisions that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), or

2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). Id. (Emphasis added).

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of an EB petition or an application for adjustment of status and 365 days or more had passed since the filing of a labor certification application or the Employment-based (EB) immigrant petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or EB immigrant petition and the H-1B nonimmigrant’s current employment. This broad reading was recently affirmed in the Memorandum of William R. Yates, Associate Director for Operations. See William Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), Memo # USCIS HQPRD 70/6.2.8-P, May 12, 2005 (“Yates Memo”).

If a labor certification was filed on behalf of one spouse, the other should be permitted to benefit from the labor certification application that was filed, and remains pending, on behalf of her husband, because under the liberalized provision of AC21, as amended by the 21st Century DOJ Appropriations Act, “365 days or more have passed since the filing of any application for labor certification.” See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The derivative spouse will use this application upon its approval to obtain status pursuant to INA § 203(b).

The Yates Memo unfortunately suggests that an H-1B spouse must meet all the requirements independently of the H-1B spouse’s eligibility for a seventh-year extension. See Yates Memo at 10. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC21 § 106(a), which is unnecessary and absurd. The statute itself has more flexibility and speaks of “any application for labor certification…in a case in which certification is required or used by the alien to obtain status under such § 203(b).” See Pub. L. No. 106-313, 114 Stat. 1251, § 106(a) (2000). This interpretation is very much in keeping with spirit of AC21, which is to soften the hardship caused by lengthy adjudications and we certainly have that now with respect to China and India, as well as worldwide EB-3. The current interpretation placed upon AC21 § 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China in the EB-2, as well as worldwide EB- 3, it is simply unrealistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain here to preserve their eligibility for adjustment of status.

Finally, the USCIS has also argued that the absence of INA § 203(d) in AC21 § 106(a) – “any application for labor certification that is a required or used by the alien to obtain status under § 203(b).” – suggests that only the principal spouse can immigrate under INA § 203(b) and the derivative needs INA § 203(d). See id. But INA § 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent.” See INA § 203(d) [8 U.S.C. § 1153(d) (2006)]. Thus, the derivative spouse still immigrates under INA § 203(b). INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

(The authors thank Marcelo Martinez Zambonino, a law student at New York Law School, for his assistance in editing the post.)

GEARING UP FOR FY2011 H-1B FILINGS: USCIS STOPS ALLOWING FILINGS WITH UNCERTIFIED LCAs AND AILA PROTESTS NEUFELD MEMO

In continuation of our previous article, H-1b Update: Filing Date Approaches; Scrutiny At POEs Increases; USCIS Issues H-1B Guidance Under Economic Stimulus, dated February 19, 2010, http://tinylink.com/?7h4K85wN87, USCIS has announced on March 10, 2010, that it will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified labor condition applications (LCAs). Earlier, USCIS explained that due to processing delays associated with the Department of Labor’s (DOL) “iCERT” online filing system, USCIS had responded to requests from the public by temporarily allowing H-1B petitions to be filed with uncertified LCAs. This temporary measure went into effect on November 5, 2009, and expired on March 9, 2010.

USCIS said that as of March 10, 2010, it is rejecting any H-1B petition filed without an LCA certified by the DOL. The announcement is available at http://tinylink.com/?C0bv7HtE1C.

On a separate note, the USCIS refused AILA’s request on March 5, 2010, to extend the “temporary acceptance” for submitting H-1B petitions without certified LCAs due to reports of ongoing delays in the new iCERT system of the DOL. Moreover, the new national prevailing wage determination process system of the DOL is also experiencing delays.

AILA has reminded its members that under the DOL regulations at 20 CFR § 655.731(a)(2), an employer is not required to obtain a prevailing wage determination for an H-1B and may rely on an independent authoritative wage source or other legitimate sources of wage data when filing an LCA. The independent authoritative source must meet all the criteria set forth in paragraph 20 CFR § 655.731(b)(3). H-1B petitioners may rely on DOL’s own prevailing wage data system at http://www.flcdatacenter.com/.

Please note that if an H-1B petition is filed with an uncertified LCA, the USCIS Service Center will reject it outright or issue a Request for Evidence asking for proof of an LCA that was certified prior to submission of the H-1b petition. Such a request will be impossible to comply with and the H-1B petition will likely be denied.

The general feeling is that there is not a big surge in H-1B cap cases to be filed from April 1, 2010, onwards. Note that there continues to exist a five-day filing window from April 1, 2010 – April 7, 2010 (which does not include April 4 & 5 as they fall on the weekend). If the USCIS receives more than 65,000 H-B petitions or more than 20,000 Master’s H-1Bs during the five-day filing period, they will be subject to a randomized lottery. If the USCIS receives less than 65,000 or 20,000 H-1B petitions during this five-day window, then the USCIS will continue to accept H-1B petitions until the H-1B caps are reached. If petitioners are unable to file H-1B petitions by April 1, 2010, they should not get worried so long as the petition reaches the USCIS by April 7, 2010. If by chance, USCIS receives more that the amount of H-1Bs mandated by the 65,000 and 20,000 Master’s H-1B cap, all H-1Bs received between April 1 and 7 will be all considered under the randomized lottery.

In another significant development, AILA on March 19, 2010 sent a Memo to USCIS Director Alejandro Mayorkas and Chief Counsel Roxana Bacon, expressing serious concerns over the Neufeld Memo of January 8, 2010, which re-defines the employer-employee relationship in H-1B petitions, http://tiny.cc/z3ZU8, pertaining to third party placements by emphasizing on the need of the petitioner to demonstrate a right of control of the H-1B at a third party site. The AILA Memo reminds that there already exists a definition of “employer” in 8 CFR § 214.2(h)(4)(ii), which provides as follows:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

Based on the definition of an employer in the regulation, the AILA Memo points out that the Neufeld Memo adds additional requirements for determining the employer-employee relationship that are not found in the regulatory definition, which encompasses “hire, pay, fire, supervise, or otherwise control the work of any such employee.” Also, both the DOL in the context of H-1B dependent employers, 20 CFR 655.738, and Congress have recognized third-party placement, particularly when Congress restricted third party L-1B placements in 2004, it was the intent of Congress that such placements were more appropriate for the H-1B visa. The AILA Memo also highlights the unintended consequences of the Neufeld Memo, which affects industries other than IT consulting, most notably hospitals and physicians, who by law are not allowed to work for hospitals with non-physician ownership, and are petitioned for H-1B visas by separate subsidiaries of hospitals, whose sole purpose is to employ the physicians who work at the particular medical facility where the day-to-day duties are performed. These arrangements too, according to the AILA Memo, will not pass the test set forth in the Neufeld Memo. The AILA Memo also focuses on the economic harm that the Neufeld Memo would cause by pointedly stating: “The [Neufeld] Memo comes at a moment when government agencies should be implementing policies that encourage investment and innovation in the U.S., and creating conditions in which such businesses can flourish and increase employment here. Yet the Neufeld Memo creates serious roadblocks to such economic growth, in particular by increasing the burdens of small businesses and technology companies.” The AILA Memo correctly observes that IT staffing and consulting companies constitute a legitimate industry in the U.S., and “the way in which the Neufeld Memo addresses this industry betrays a lack of understanding of its business model, and as well as a total disregard for the realities of the employer-employee relationships within the business model.” The AILA Memo adds that U.S. businesses large and small, as well as government agencies, rely on IT firms for system development work as well as for staff augmentation. It is hoped that the USCIS will withdraw the Neufeld Memo. Finally, the AILA Memo cites examples of how the misguided “right of control” standard has adversely impacted adjudications in the L visa and EB-1-3 I-140 context where a President of a multinational corporation received a denial on the ground that the beneficiary owned the majority of the shares of a corporation and that no one supervised the beneficiary’s work. The full AILA Memo can be found here, http://www.aila.org/content/default.aspx?docid=31592

In the meantime, though, petitioners gearing up for filing H-1Bs on April 1, 2010 onwards, especially if their business model is based on third party placements, should continue to pay heed to the Neufeld Memo’s criteria establishing the employer-employee relationship, See From Problem To Springboard: Tips on Using the Neufeld Memorandum in Support of H-1B Petitions, http://tinylink.com/?zCbaXGsvHb

KAZARIAN V. USCIS: DISCREDITING THE CIRCULARITY ARGUMENT IN EB-1 PETITIONS

The recent decision in Kazarian v. USCIS, — F.3d —-, 2010 WL 725317 (C.A.9 (Cal.)), http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010327, goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the extraordinary ability category (EB-1). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers.

Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.

All credit goes to my friend and colleague, Bernie Wolfsdorf, AILA’s current President, who decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. This writer is proud to have been part of an informal group of lawyers who occasionally assisted with thoughts and ideas on the amicus brief, which Nadine Wettstein, so adroitly crafted on behalf of the American Immigration Council. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation. We believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability.

As background, an individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). No job offer is required. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards.

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.

3. Published material about the person in professional or major trade publications or other major media.

4. Participation as a judge of the work of others.

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

6. Authorship of scholarly articles in the field, in professional or major trade publications or other media.

7. Artistic exhibitions or showcases.

8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.

9. High salary or remuneration in relation to others in the field.

10. Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian 1 affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. “

It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles.. And if the USCIS does not relent, petitioners should continue to discredit the government’s circularity argument. In addition to Kazarian, other federal district courts have been critical. See Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)(criticizing the government’s circular argument requiring that “plaintiff must prove he is a doctor of extraordinary ability in order to prove that he is a doctor of extraordinary ability”); Gülen v. Chertoff, Civil Action No. 07-2148, 2008 WL 2779001 (E.D. Pa. July 16, 2008), at *4 (“Because Gülen has met the requirements of three of the subcategories of 8 C.F.R. § 204.5(h)(3), the AAO’s determination that he has not demonstrated extraordinary ability is contrary to applicable law and must be reversed”). Kazarian is a step in the right direction, following on the heels of equally critical lower federal court decisions on circularity, and will also benefit another important community so vital to this country, outstanding professors and researchers, who can also claim permanent residence through another provision of EB-1, INA § 203(b)(1))(B), where the evidentiary criteria with extraordinary ability overlap.

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