October 21, 2011


By Cyrus D. Mehta

If you were born in India and are being sponsored for a green card through your employer under the employment-based third preference (EB-3), the wait is likely to be 70 years. If your employer filed the first step towards the green card, the labor certification, sometime in 2006, and you managed to file an adjustment of status application (Form I-485) when the EB-3 miraculously opened up for one month under the July 2007 Visa Bulletin and closed after that, the wait may be shaved off by a few decades, but it will still be very long. The only saving grace, besides being able to derive the benefits as a pending adjustment applicant, is that the filing of the I-485 application in July 2007 may have frozen the age of your child under the Child Status Protection Act (CSPA) even if your child is substantially over 21 today. If the green card comes through for you finally after 40 years, your child will still be protected under the CSPA, even if he or she is middle aged by then, and be able to derivatively obtain the green card with you as a child.

Many who are in the never ending pipeline for the green card under the EB-3, especially those born in India, may have upgraded their qualifications and obtained an advanced degree, or if they already possess an advanced degree or the equivalent, they may today qualify for a position that requires an advanced degree. Their employers could file new labor certifications with a view to obtaining classification under the employment-based second preference (EB-2), which applies to job positions requiring advanced degrees or their equivalent while the EB-3 is applicable to positions requiring bachelor’s degrees or 2 or more years of training or experience. The EB-2, while still backlogged for India, is moving substantially faster than the EB-3.

Take the example of a foreign national born in India whose employer originally filed a labor certification on November 1, 2006 for a position requiring only a bachelor’s degree and some experience. The next step in the process upon the approval of the labor certification, the I-140 immigrant visa petition, was filed on March 1, 2007 under the EB-3 and was subsequently approved. At the time of filing the I-140 petition, his daughter, who was born on March 1, 1988, had just turned 19. When the State Department opened up the EB-3 during July 2007, our foreign national from India rushed to file the I-485 applications for himself, his spouse and his daughter who was still 19. The filing of the I-485 application for his daughter, on say July 15, 2007, permanently froze her age under INA section 203(h)(1). Under Section 3 of the CSPA, which has been codified in INA section 203(h)(3), if the child’s age is below 21 when the visa petition is approved and the priority date becomes current, whichever happens later, the child’s age remains permanently frozen under 21 provided she also sought to apply for permanent residence within one year of visa availability. In our example, the daughter’s priority date became current on July 1, 2007, when the State Department announced that the EB-3 was current. Eligible people could file adjustment applications until August 17, 2007 as a result of a threatened law suit, which compelled the State Department to extend the filing period beyond July 30, 2007. After the July 2007 Visa Bulletin, the EB-3 severely retrogressed several years and has moved forward again at a snail’s pace, especially for India, since then. As of the time of writing, the cut-off date for India under the EB-3 is July 22, 2002. However, since the daughter filed her I-485 when the EB-3 date became current in July 2007, her age at that time, which was 19, permanently froze under the CSPA.

Today in 2011, even though the daughter is over 23, her CSPA age is technically still 19 and she can some day in the distant future, when the priority date of November 1, 2006 becomes current under the India EB-3, adjust with her father as a derivative (as if she’s still under 21) however old she may be.

While our Indian foreign national, his wife and his daughter can remain legally in the US as pending adjustment of status applicants, this is not of much solace for her father who is yearning to break free with a green card. He has been stuck with his job for many years, and even if he is provided some job mobility under INA section 204(j), he must work in a similar occupation under which he was sponsored through the labor certification. Thus, if he was sponsored as a Computer Programmer, and can now qualify for a position as a Controller of his new IT company after obtaining an MBA in Finance through an evening executive MBA program at an Ivy League business school, his adjustment application will get denied when ultimately adjudicated if he is unable to show that he has “ported” to a same or similar occupation. One way to resolve this is if his present employer can file a new labor certification presently under the EB-2 as a Controller requiring an MBA and experience in the peculiar financial aspects of an IT company. Once the labor certification is approved, the employer files a new I-140 petition but can magically capture the priority date of the old I-140 under EB-3, which is November 1, 2006. A USCIS rule, 8 CFR 204.5(e), allows you to do this provided that petition is not subsequently denied or revoked. Once the I-140 petition under the EB-2 is approved, it can be inter-filed with the pending I-485 application that was initially filed with the original I-140, and since the EB-2 cut-off date is well beyond November 1, 2006, he will suddenly get the green card.

While this may be manna from heaven for him and his spouse, the filing of the new I-140 will most likely not be able to protect the daughter under the CSPA at this point as it was filed much after her 21st birthday, even though the new I-140 petition will recapture the priority date of the old I-140 petition filed under EB-3. While this can be open to interpretation, the CSPA applies to the “applicable” petition only, and it will be difficult to bootstrap the new I-140 onto the “applicable” EB-3 I-140 petition, which is no longer being utilized but was filed before her 21st birthday. While there may be some room to interpret the term “applicable” petition to include the new I-140 petition under EB-2, especially since the new I-140 petition recaptured the priority date of the prior I-140 petition especially if it was filed by the same petitioning employer (See Li v. Renaud), it will be extremely risky to go ahead with this knowing that there is an aged out child who is otherwise protected under the CSPA. Thus, while dad and mom get the green card, their daughter may get left behind. Parents who thus wish to upgrade from EB-3 to EB-2 should beware about doing so if they have a child who is over 21 but who has been protected under the CSPA through the filing of an adjustment application under a prior I-140 petition.

We have already written extensively about the Fifth Circuit’s recent decision in Khalid v. Holder, which correctly interpreted INA section 203(h)(3) providing for the automatic conversion of the priority date of the earlier petition to the appropriate category. If the daughter is unable to seek the protection of the CSPA, after her parents got their LPR status under EB-2, she can use the November 1, 2006 priority date, if she resides in a jurisdiction where Khalid v. Holder is binding, to a family-based second preference petition for an adult child (F2B) that her father can potentially file on her behalf as a green card holder. But even Khalid v. Holder may not throw her an immediate life line since the current cut-off date under the F2B is much earlier than November 1, 2006 at this time.

The CSPA is an extremely complex statute subject to varying interpretations, which even Circuit courts cannot agree upon, and the thin protective cover that it provides can quickly unravel based upon even an inadvertent misstep. Of course, this blog assumes that the child of an EB-3 beneficiary has already been covered under the CSPA through an earlier adjustment application. If the EB-3 for India is truly expected to take 70 years before a green card materializes, a foreign national being sponsored today with a 1 year old child will have absolutely no hope of protecting the age of this child under the CSPA!

October 14, 2011


by Cora-Ann V. Pestaina

To practitioners who file numerous PERM applications, the Department of Labor’s (DOL) philosophy of solely protecting the U.S. labor market without regard to employers’ efforts, its constantly shifting goal posts, and its frightful game of “gotcha” which we involuntarily enter whenever we file a PERM application, have sadly all become par for the course. But, every so often, a valiant employer fights back and in recent times we have seen the Board of Alien Labor Certifications (BALCA) demonstrate more reason in its decisions. Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) reveals the most recent case of the DOL’s game of “gotcha.” In that case, BALCA held, reversing the Certifying Officer (CO), that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.”

In Emma Willard School, the employer, a boarding school, conducted a recruitment effort for the position of “Spanish Instructor” and timely filed an ETA Form 9089. The CO issued an audit notification requesting that the employer submit “a detailed explanation indicating the reason the foreign worker currently resides with the employer.” In its timely response, the employer submitted documentation of the school’s philosophy, which states that the school “offers housing as a resource that benefits the faculty, staff, and program” and that a “significant majority” of teachers and key administrators live in school owned housing. The school’s housing guidelines indicated that the school provided on-campus housing, off-campus housing and dormitory apartments to selected faculty and staff as a benefit of employment.

The CO denied the PERM application citing six reasons for denial, all related to the employer’s failure to indicate, in its advertisements and Notice of Filing, the benefit of employer-subsidized housing. Four of the reasons for denial fell under 20 C.F.R. §656.17(f)(7). According to the CO, because the employer’s advertisements in the newspaper of general circulation, in a local or ethic paper, on the employer’s website and on job search websites did not indicate that the employer offered subsidized housing, the advertisements did not comply with 20 C.F.R. §656.17(f). Because the Notice of Filing also did not list this benefit, one denial reason fell under 20 C.F.R. §656.10(d)(4), which requires that the Notice of Filing contain the information required for advertisements. The final reason for denial fell under 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO held that because the employer did not list the benefit of subsidized housing in its recruitment, the recruitment contained terms and conditions of employment that were less favorable than those offered to the alien, thereby disaffirming the employer’s attestation that the job is open to any US worker.

The employer submitted a request for reconsideration of the denial arguing that the regulations do not mandate that benefits be listed in advertisements. The CO forwarded the case to BALCA. In its brief to BALCA, the employer made the obvious point that many advertisements do not list employment benefits such as health insurance and vacation.

BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. The choice not to list the offered wage would not lead to an assumption, on the part of the US worker, that the employer is offering no wage. Similarly, the employer’s choice not to list employment benefits would not lead a US worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

At every step of the persnickety PERM process the DOL claims it is only doing its job to protect US workers, but here it appears that BALCA is finally giving US workers the credit they deserve for being intelligent enough to recognize that a tiny advertisement could not possibly list ALL the terms and conditions of employment. Perhaps BALCA recognized that any US workers who were interested in the position with Emma Willard School would have naturally contemplated whether the boarding school provided boarding to its employees! Therefore, the employer’s decision not to list the subsidized housing benefit in the ad in no way deterred US workers from applying for the position.

Yet, careful not to paint with too broad a brush, BALCA made sure to limit its decision to the facts of the case and to state that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Despite BALCA’s timidity, this decision is significant and bears on other situations as well. For instance, an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment. While the DOL may argue that a “work from home” benefit is different from the subsidized housing benefit, the employer choosing to not list the “work from home” benefit should not serve to deter any US workers from applying for the position especially if the advertisement was placed in a national magazine. US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. A prospective applicant can also inquire about this, and the advertisement on its own, without the listing of a “work from home” benefit should not deter US workers from applying for the position.

When will the DOL come to realize that US workers are smart enough to discern job advertisements themselves, and do not need this kind of misguided protection resulting in the needless denial of a labor certification for a much needed foreign national worker?

October 7, 2011


The June 17, 2011 Memo calling for prosecutorial discretion by ICE Director John Morton is being applied in favor of low priority non-citizens who are threatened with removal. For instance, some who were brought to the US at an early age have been given a temporary reprieve, especially those who would qualify under proposed DREAM Act legislation, which thus far Congress has failed to pass. This is very commendable, and makes sense since the Administration cannot use its limited resources to deport the 10+ million undocumented immigrants in the US. It also makes sense to allow such immigrants with long ties in the US to somewhat regularize their status and obtain a work permit, while under a stay of removal or deferred action order, and thus be allowed to contribute to the US and its economy.

While the Administration showcases low priority non-citizens as model immigrants but for the fact that they violated the immigration law, the Administration is cracking down hard on what it calls the “worst of the worst,” generally characterized as “criminal aliens.” In a recent seven day sweep, called Operation Cross Check, the Administration arrested 2,901 immigrants with criminal records. While the ICE press release highlights some of these individuals with multiple criminal records, including attempted murder, armed robbery and sex crimes against minors, it is not clear whether all of the 2,901 immigrants that were subject to this sweep could be or ought to be characterized as the “worst of the worst.” It is also unclear as to how many of them were undocumented or had permanent resident status.

Even a so called “criminal alien” can in some cases be deserving of prosecutorial discretion. Actually, the definition of “criminal alien” is rather amorphous, and could include one who has either been convicted of a crime or one who has been charged with a crime. Under the Administration’s Secure Communities program, information about a non-citizen charged with a crime and who is fingerprinted, is provided to the DHS, which can then start removal proceedings against this person even if there is no ultimate conviction or the resulting conviction is based on a very minor offense, such as disorderly conduct. While the use of the word “alien” is itself a pejorative, which applies to anyone who is not a citizen, the additional use of “criminal” is like rubbing salt into the wound. Apart from such a person not being charged at all or the charges being dismissed, non-citizens can also be placed into removal proceedings for having admitted to committing the essential elements of certain offenses, such as crimes involving moral turpitude or minor controlled substance offenses, including smoking pot as a student.

Also, a non-citizen convicted of a crime, even while a misdemeanor under the relevant penal law, can be characterized as an aggravated felon under section 101(a)(43) of the Immigration and Nationality Act (INA). For example, minor assault with a one-year suspended sentence can be an aggravated felony under INA 101(a)(43)(F). Take for example the well publicized case of Mary Anne Gehris who lived in the US since she was around one year old . Because she had pulled the hair of another woman in a quarrel over a boyfriend, and had pled guilty upon the advice of her public defender, she suddenly faced removal for the aggravated felony of misdemeanor assault, because she had gotten a one-year suspended sentence. Also, theft or forgery with a one-year sentence can be an aggravated felony under 101(a)(43)(G) [theft], 101(a)(43)(R) [forgery]. Thus, one who was convicted of a forgery of a check for $19.83 could be deportable as an aggravated felon. Shoplifting with a one-year sentence, suspended or not, could also be an aggravated felony. Even a “sex offense” relating to a consensual relationship between a 21-year-old man and his 16-year-old girlfriend can potentially be sexual abuse of a minor under INA 101(a)(43)(A).

Such cases are also deserving of prosecutorial discretion, and the DHS can exercise this discretion especially over permanent residents who are “aggravated felons” by not even issuing a Notice to Appear, which starts a removal proceeding. A non-citizen permanent resident who is convicted of an aggravated felony is generally foreclosed from relief from removal, such as cancellation of removal under INA 240A (a) or by applying for a waiver of inadmissibility under INA 212(h). Fortunately, with respect to the 212(h) waiver, two circuit courts, the Third, and Fifth, have held that the bar against permanent residents only applies to those who were admitted to the United States as permanent residents at a border or port of entry as opposed to those who adjusted status in the US to permanent residence. See Martinez v. Mukasey, 519 F.3d 532 (5th Cir 2008); Lanier v. US, 631 F.3d 1363 (11th Cir. 2011). The Ninth Circuit has also implied in Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) that this may be the case. However, these decisions are only binding within the respective circuits, and the Board of Immigration appeals has further blunted these holdings in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) by barring a permanent resident from applying for a 212(h) waiver who entered the US without inspection but who adjusted to permanent residence since the adjustment of status is this individual’s only admission.

Even non-permanent residents who have been convicted of crimes that have been re-characterized as aggravated felonies are similarly deserving of prosecutorial discretion, on a case by case basis, if they can seek relief by virtue of say a potential marriage to a US citizen and by filing a 212(h) waiver. Similarly, such an individual who is convicted of an aggravated felony may have a US citizen child who may be turning 21 years in a few years who will be able to provide the basis for an adjustment application and a 212(h) waiver. Prior to the June 17, 2011 Morton Memo, a similar memo in 2000 by former INS Commissioner Doris Meissner contemplated prosecutorial discretion in cases involving non-citizens convicted of crimes and who would be unable to seek relief against removal despite the presence of US citizen qualifying relatives. The same spirit behind the Meissner memo (although it was rarely implemented) should guide ICE prosecutors under the new Morton Memo too, which is being taken more seriously, even though the focus of the latter is on low priority individuals, who ostensibly are not “criminal aliens.” After all, the hyped up notion that “criminal aliens” are dangerous and should be immediately removed from the US is generally misguided as most have actually served their sentences or paid their fines under the penal system. If a US citizen is allowed to get a second chance after serving his or her sentence, an immigrant could also be given that chance if he or she is otherwise deserving of prosecutorial discretion through family ties and the gravity and nature of the past criminal conduct.

In the second decade of the 21st century, in light of other pressing concerns and challenges, the draconian impact of the 1996 Immigration Act, especially pertaining to the retroactive re-characterization of minor criminal convictions as aggravated felonies, remains a distant memory and is taken for granted. Any movement for immigration reform of a broken immigration system must also press for a roll back on some of the harshest provisions of the 1996 law, especially the elimination of relief for persons convicted of aggravated felonies, despite evidence of reform, rehabilitation and close families ties in the US. While we continue to press ahead for reform in a Congress that is in a stalemate, including the DREAM Act for children who were brought into the US and are now out of status, the Administration has wisely used its powers to exercise prosecutorial discretion in favor of immigrants who clearly do not deserve to be deported from the US. Some of these people ought to also include those with criminal convictions.

October 2, 2011


By David A. Isaacson

Chief U.S. District Judge Sharon Blackburn of the U.S. District Court for the Northern District of Alabama recently issued a memorandum opinion preliminarily enjoining the enforcement of certain portions of Alabama's new immigration law but upholding other portions. This decision has already attracted substantial criticism, with the New York Times describing it as "dismal". Additional useful background regarding the decision is available from Immigration Impact. As a follow-up to my previous article on our firm's website regarding constitutional and practical problems with the Alabama law, it seemed appropriate to examine how Judge Blackburn's decision does and does not address some of these problems.

Some of the most absurd portions of the statute were struck down, so there is some good news. Judge Blackburn did enjoin the portion of the Alabama statute that barred lawfully admitted refugees, and others such as those with Temporary Protected Status, from attending public universities. She enjoined the portion of the statute that attempted to make it illegal to rent housing to the unlawfully present, by deeming it "harboring", and she also enjoined the portion of the statute that attempted to criminalize work and the solicitation of employment by an "unauthorized alien". In addition, she enjoined portions of the statute that would have forbidden companies from deducting wages paid to unauthorized workers as a business expense, and allowed other workers to sue those companies.

Some deeply problematic provisions of the statute were left standing, however. One provision, similar to a provision of Arizona's much-criticized SB 1070, criminalizes failure to register or carry an alien registration document, in violation of federal law, when committed by "an alien unlawfully present in the United States." As explained in this author's previous article on our firm's website regarding the Arizona law, the application forms used by certain battered women and crime victims to petition for relief under the Violence Against Women Act or for a "U-visa" do not constitute applications for alien registration under the governing regulations. Thus, certain such battered women and crime victims may arguably be in violation of the federal statutes regarding alien registration, but as a matter of prosecutorial discretion, it is exceedingly unlikely that the federal government would ever pursue such people for those technical violations. While Alabama may have somewhat reduced the set of truly absurd potential violations of its statute by covering only those who are "unlawfully present" rather than Arizona's reference to "a person who maintains authorization from the federal government to remain in the United States" -- since battered women actually granted deferred action will not qualify as unlawfully present even though they likely also do not qualify as maintaining authorization to remain in the United States -- the statute could still be applied by Alabama to applicants for VAWA or U-visa relief who have not yet been granted relief. This is merely an example of why it is a bad idea, as a matter of our constitutional structure, to allow a state to meddle in a field so comprehensively occupied by the federal government. Alabama's attempt to reserve the right to pursue such technical violations of the alien registration statutes, even in cases where the federal government does not wish to, should have been held pre-empted.

Another problematic provision that was left standing by Judge Blackburn's opinion again closely resembles one of the provisions of Arizona's SB 1070. According to Section 12(e) of Alabama's law, police officers must attempt to ascertain the citizenship and immigration status of any person they detain, if "reasonable suspicion exists that a person is an alien who is unlawfully present in the United States" and unless "the determination may hinder or obstruct an investigation." Along the lines of Arizona's SB 1070, Alabama's statute prohibits law enforcement officers from considering "race, color, or national origin . . . except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901." As with the Arizona law, the logical implication is that to the extent consideration of race, color or national original may be constitutional under whichever of the United States Constitution or the state constitution is more permissive on the subject, the law enforcement officials and agencies of Arizona are invited to engage in it. In addition, the statute's list of documents which a person can present and thus be “presumed not to be an alien who is unlawfully present in the United States” includes a “foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States” but does not include any option for an expired visa and a document from DHS showing an unexpired period of authorized stay. If the “stamp or notation” indicates that the bearer’s period of admission and authorized stay is unexpired, it is not at all clear why it should matter if the bearer’s U.S. visa is expired or not. There is no logical reason to subject anyone who obtains an extension of stay or change of status with a validity period beyond the expiration date of their visa to more extensive detention while their status is electronically verified with DHS, if their DHS-issued Form I-94 clearly shows that their status is still valid. This legal illogic gives still more weight to the complaint made by the federal government that DHS may now be overwhelmed by requests for information and that substantial burdens may be placed by Arizona's law on lawfully present immigrants (and nonimmigrants). By meddling in areas which its legislators quite apparently did not fully understand, Alabama has created a system in which nonimmigrants who have been granted a change of status or extension of stay beyond the validity of their initial visa, as well as asylees and those having Temporary Protected Status, may be detained and an inquiry made to DHS because such persons lack "an unexpired United States Visa." This, too, should have been held preempted and was not.

Judge Blackburn's memorandum opinion also refused to preliminarily enjoin sections of the Alabama law that render unenforceable any contract entered into by an unlawfully present alien, with certain limited exceptions, and forbid unlawfully present aliens to enter into certain business transactions with the state and its subdivisions, such as obtaining a driver's license or business license. The difficulty with these sections is that, as explained in my previous article on our firm's website, unlawful presence, insofar as it is a defined term, does not correspond neatly to a set of people that it would have made any sense to subject to such prohibitions. Alabama appears to have forbidden from getting a driver's license, or entering into enforceable contracts, many people with pending applications for adjustment of status or cancellation of removal filed for the first time in removal proceedings, who are considered unlawfully present but who may become lawful permanent residents if their applications succeed. Moreover, Alabama has forbidden many people who are specifically authorized to be employed in the United States from getting driver's licenses or entering into binding contracts in connection with that employment (unless perhaps the employment contracts fall within the terms of the statute's exception for "a contract authorized by federal law", which seems a gray area at best), since an applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). (Indeed, even some people who have been ordered removed may be authorized to accept employment while challenging that order in various ways or awaiting removal, as explained in a previous blog piece by this author.) Once again, by meddling in an area of law that is the responsibility of the federal government and that its legislators apparently did not fully understand, Alabama has created the possibility for truly absurd outcomes.

Finally, Judge Blackburn refused to preliminarily enjoin the section of the Alabama law that attempts to require students enrolling in public school to provide documents regarding their citizenship and immigration status. While it is conceivable that the section's apparent lack of a penalty provision might save it from unconstitutionality, there is some tension, to the extent that the statute may be an effort to coerce unlawfully present children not to attend Alabama public schools, between this provision and the Supreme Court's decision in Plyler v. Doe, 457 U.S. 202 (1982), forbidding a state to prevent children from attending public schools based on their immigration status. It has been reported that upon the coming into effect of this portion of the statute after Judge Blackburn's decision, "Hispanic students have started vanishing from Alabama public schools" because fear has caused "scores of immigrant families" to withdraw their kids from school or keep them home. Alabama should not be permitted to do indirectly what the Supreme Court has forbidden it to do directly.

Judge Blackburn's memorandum opinion only addressed whether to grant a preliminary injunction, so it is still possible that she may reverse herself before the conclusion of the case at the district court level. If she does not, the Court of Appeals for the Eleventh Circuit or the Supreme Court may need to step in to reverse those portions of her recent decision that uphold particularly problematic portions of Alabama's law.