December 31, 2012


Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs in 2012. We will continue to provide insightful commentary on contemporary immigration issues in 2013, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.











December 24, 2012


By Cyrus D. Mehta

At the time of writing this blog, more than 48,000 people have signed a petition on the White House website asking that CNN talk show host be deported for his comments on gun control in the wake of the mass shootings at Sandy Hook school. 
According to one of the two petitions, "We demand that Mr. Morgan be deported immediately for his effort to undermine the Bill of Rights and for exploiting his position as a national network television host to stage attacks against the rights of American citizens." 
The White House is obligated to respond if the petition gathers 25,000 signatures within 30 days. Mr. Morgan, a British citizen, is not a citizen of the United States. Non-citizens can be deported from the US for a number of immigration offenses, but can Mr. Morgan's strident comments favoring gun control truly lead to his deportation? 
Not really, based on a quick analysis of some of the relevant provisions in the Immigration and Nationality Act. 
Mr. Morgan certainly doesn't seem to be seeking "the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means," and so he is clearly not deportable under INA 237(a)(4)(A)(iii).  Nor is he one who "endorses or espouses terrorist activity", under INA 212(a)(3)(B)(i)(VII), and so he's not inadmissible under that broad provision.  And there's no reason to think that opposition to the Second Amendment would have serious adverse foreign policy consequences. Indeed, it is more likely the reverse given the international outrage against proponents of gun ownership, especially the ownership of automatic assault weapon, that led to the killings of 20 defenseless children and 6 others. So INA 212(a)(3)(C) does not apply. 
Mr. Morgan has nothing to fear, if he indeed fears being deported from the United States, and the petitioners are truly wasting their time and losing more and more credibility  in the wake of an increasing number of gun related deaths. While the United States is clearly not the envy of the world with regard to its obsession for gun ownership that results in more homicides than most other nations, it can at least boast of freedom of speech enshrined in the First Amendment in the Bill of Rights. Anyone, citizen or non-citizen, whether within or outside the US, has the right to peacefully advocate for a change to the US Constitution, including a re-evaluation of the Second Amendment that forms the basis for people to easily own guns, including assault weapons that lead to the tragic and senseless slaughter of innocents. 

December 21, 2012


by Cora-Ann V. Pestaina

Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  INA § 212(a)(5)(A)(i).The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith. 

Attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii). However, the DOL does not prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process.  The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

The DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. Yet, real world recruiting is at times impossible when the DOL sets forth “unreal” recruitment standards for employers! As an attorney who regularly counsels employers filing PERM labor certifications, I have found that one of the most difficult concepts for some employers to grasp is the resume review process and how it ought to be conducted in the PERM process.It’s hard for an employer to comprehend why they have to continue to assess an applicant who upon receipt of an e-mail from the employer, responded that he was “away” and would get back to the employer at some point in the following week; or an applicant who, when contacted, had no recollection that he had even applied for the job and needed to be informed of the job opportunity and the employer’s business; or an applicant who only listed “Software Engineer” as his experience leaving the employer unclear as to what skills he may possess. As reasons for rejection of applicants, employers sometimes state,“applicant is far too overqualified and I would never hire him for this position” or “these applicants went to foreign universities and I know they require sponsorship.” While these reasons may be acceptable in the employer’s normal consideration process, neither is a valid reason for rejection in the PERM process.Some employers become frustrated and push back. I find that I very often have to preface my comments with “We are not operating in the real world here…” 

Currently, and for some time now, every PERM audit letter requests verification of the unavailability of US workers. A request for resumes and applications for all US workers who applied for the job opportunity seems to have become the standard. The DOL specifically wants to review documentation of the employer’s contact with applicants and its assessment of the qualification of applicants.Yet, other than the expectation that the employer conduct “good faith” PERM recruitment, the DOL has not issued significant guidance with regard to resume review. But it is possible to glean some information from recent decisions by the Board of Alien Labor Certification Appeals (BALCA). In particular, two specific cases, involving Supervised Recruitment, shed some light on how the DOL expects employers to conduct resume reviews.

In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc). During Supervised Recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements. 

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials.

The takeaway from Goldman Sachs, and the concept that can be difficult to explain to employer clients, is that regardless of how convinced the employer may be that the U.S. worker applicant is unqualified for the position based only on his resume, if there is even a hint that the applicant may appear qualified to the untrained eye of a CO, it is worth the employer’s time to interview the applicant. During an interview, the employer can zero in on the specific requirements of the offered position and better assess the applicant’s qualifications. 

In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16. 2012), the employer’s requirements included “Proficiency in Excel or Access,…understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines…” The CO denied the case after concluding that U.S. worker applicants had a combination of education, training and experience equivalent to the employer’s job requirements and could acquire Access and SharePoint skills while on the job.

Rather than focusing, as it did in Goldman Sachs, on whether or not the employer had a duty to interview the U.S. workers to better assess their qualifications, the key issue for BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. BALCA stated that the employer had submitted a business necessity explanation in its Recruitment Report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the CO did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, BALCA held that the CO cannot dismiss the employer’s stated requirements and substitute his judgment for the employer’s. 

Confused much? The JP Morgan case emphasizes the importance of submitting a compelling business necessity argument in response to PERM audits. That way, if and when the employer rejects U.S. workers, the reason will be clear to the CO. But does the employer have to interview when the applicant’s resume does not list all the requirements or not? I think the clear answer is that the employer should always err on the side of interviewing the applicants. If there is even a hint of a question as to whether the applicant may appear qualified, the employer should interview. If the applicant failed to list the one technology required for the position but listed 5 similar technologies, the employer should interview. If the employer has stated that it will accept any combination of education, training and experience and the applicant has broadly listed his experience as simply “Software Engineer,” the employer should interview. While the DOL claims that the employer’s consideration of these applicants should resemble its normal consideration process, it just cannot. In normal consideration processes, the employer may utilize its judgment to reject any applicant deemed unqualified.  When it comes to the PERM process, the employer must go out of its way to demonstrate to the DOL that it has, in good faith, tried it’s best to find a U.S. worker to fill the offered position. In addition, the employer should take pains to explain in great detail, if audited, specifically why each applicant was not qualified for the offered position, providing evidence of any interviews and other communication with the applicants.  

December 16, 2012


Congress passed a noble law in 2009 to protect surviving family members who were the derivatives of employment-based and other categories of petitions and applications.  Specifically, the law provides that certain categories of individuals could continue to have petitions, adjustment applications and related applications adjudicated so long as they were residing (not necessarily present, but residing) in the United States at the time the qualifying relative died and continuing to reside in the United States.  The statute specifically states that the named categories of individuals “shall have” a “pending or approved” petition of the type listed in subsection 2 of the statute “and any related applications adjudicated notwithstanding the death of the qualifying relative . . . .”  INA § 204(l)(1)(emphasis added). 
This blog will focus on the problems arising in the context of surviving relatives of beneficiaries of employment-based petitions who have filed adjustment applications.  Given the backlogs in the EB-3 category for India for example making people wait decades before their priority dates become current, there may be more and more surviving relatives to deal with.  This blog seeks to help shed some light on surviving relative cases and highlight some of the overall problems with the lack of clear guidance from USCIS on what surviving relatives should do and how their requests will be handled. 
The statute is worth reviewing in its entirety to demonstrate how odd it is that USCIS treats surviving relatives differently based on whether an I-140 has been approved or remains pending: 
(1) IN GENERAL- An alien described in paragraph (2) who resided in the United States at the time of the death of the qualifying relative and who continues to reside in the United States shall have such petition described in paragraph (2), or an application for adjustment of status to that of a person admitted for lawful permanent residence based upon the family relationship described in paragraph (2), and any related applications, adjudicated notwithstanding the death of the qualifying relative, unless the Secretary of Homeland Security determines, in the unreviewable discretion of the Secretary, that approval would not be in the public interest.
(2) ALIEN DESCRIBED- An alien described in this paragraph is an alien who, immediately prior to the death of his or her qualifying relative, was--
(A) the beneficiary of a pending or approved petition for classification as an immediate relative (as described in section 201(b)(2)(A)(i) );
(B) the beneficiary of a pending or approved petition for classification under section 203 (a) or (d) ;
(C) a derivative beneficiary of a pending or approved petition for classification under section 203(b) (as described in section 203(d) );
(D) the beneficiary of a pending or approved refugee/asylee relative petition under section 207 or 208 ;
(E) an alien admitted in `T' nonimmigrant status as described in section 101(a)(15)(T)(ii) or in `U' nonimmigrant status as described in section 101(a)(15)(U)(ii) ; or
(F) an asylee (as described in section 208(b)(3) ). 
As you can see, the law helps a host of categories of individuals, but here we will use the example of families who suffered the loss of a member who had been sponsored by an employer, with the sole difference being that in one case the I-140 had been approved and in the other the I-140 remains pending.  In both cases, the families have been able to file their green card applications.  
Mahjouba and Karim came to the United States from Morocco, two young children in tow, when Mahjouba was sponsored by a company on an H-1B visa.  After two years, the company was so impressed with her work that they sponsored Mahjouba for an immigrant visa.  The immigrant petition on Form I-140 was filed premium processing on her behalf and quickly approved.  When her priority date became current, the family submitted their adjustment of status applications, along with advance parole and work authorization applications.  Karim used his EAD and started working.  When the family traveled, he used his advance parole. 
Henri and Helene came from France when Henri was sponsored for an H-1B, and they also brought their children.  After a few years of working with the company, he was sponsored for an immigrant visa.  The immigrant petition on Form I-140 was filed regular processing, and remains pending along with the adjustment applications, which were filed concurrently because Henri’s priority date was current at the time of filing.  Helene decided to use her EAD to work and her advance parole to travel, instead of depending on her H-4, while the immigrant petition for her husband and the families’ adjustment applications were pending.  
Tragedy strikes both families.  Mahjouba became very ill and died from a rare form of cancer.  Henri was hit by a drunk driver and killed.  
The families are in similar straits – the person sponsored by an employer has been killed.  Their dependents are residing in the United States, grieving and wondering what will happen to us now?  
It seems quite clear from the statute that Karim and his kids and Helene and her kids should be protected in the same way.  So long as they meet the requirements of the law – that is, at least one member of each family was residing in the United States at the time of death and will continue to reside in the United States, their “pending or approved” petitions and adjustment of status applications should continue to be adjudicated as if the death had not occurred, unless the Secretary of Homeland Security decides that approval would not be in the public interest.  Thus, they should be able to renew their EAD and AP documents, and continue to work and travel and ultimately get their green cards. 
Unfortunately, because USCIS took the position in Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative , PM-602-0017 (December 16, 2010) (“Policy Memo”) (and in the Adjudicator’s Field Manual sections it revised pursuant to that memorandum) issued December 16, 2010, that pursuant to 8 C.F.R. § 205.1(a)(3)(iii)(B), an approved I-140 is automatically revoked when the individual sponsored dies, Karim and his family will not have the same security of knowing their petitions will proceed and may be subject to a different, more intense standard, i.e. to request “humanitarian reinstatement.”  I say “may” be subject to the more exacting standard because the policy memorandum is not clear on the matter, and does give an adjudicating officer an “out” by stating “reinstatement is generally appropriate as a matter of discretion, if section 204(l) of the Act and Chapter 10.21 of the AFM [Adjudicator’s Field Manual] would support approval of the petition if it were still pending.”  Policy Memo at p. 15 (and AFM 10.21(7)). 
As the Citizenship and Immigration Services Ombudsman, and many others, have noted, in taking the position that an approved I-140 is automatically revoked by the death of the beneficiary, thus requiring humanitarian reinstatement, USCIS guidance “does not align with the purpose and plain language” of the statute.  The bifurcated approach is unfair, unnecessary and nonsensical.  Why would a pending I-140 petition be treated more favorably than an approved I-140 petition, as the approved petition has been vetted and completed and revoking it works a hardship on derivative beneficiaries that Congress intended to prevent by enacting INA § 204(l)?  At the very least, they should be treated the same – that is what the law in fact dictates.  The American Immigration Lawyers Association (AILA) made an interesting argument in comments it submitted on USCIS’s draft memorandum.  Specifically, AILA demonstrated that the automatic revocation provision does not apply where INA § 204(l) applies. 
The automatic revocation regulations purport to revoke an approved petition only “upon the death of the petitioner or the beneficiary,” so they can be seen as having no operation, because §204(l) preserves the petition the moment before death.  Therefore, the “immediately prior to the death” language of §204(l) trumps the “upon the death” language of the regulations on automatic revocation at 8 CFR §205.1. For the §204(l) eligible beneficiary, therefore, automatic termination has no effect on the already approved petition. This holds true for all §204(l) eligible beneficiaries, including those who cannot currently avail themselves of humanitarian reinstatement 
See AILA Comment on USCIS Draft Memorandum: “Approval of Petitions and Applications after the Death of the Qualifying Relative; New INA Section 204(l) updates the AFM with New Chapter 20.6 and an Amendment to Chapter 21.2(h)(1)(C)” (June 1, 2010) at p.6.  
Putting aside the unfairness (if we can bring ourselves to do that), what do Karim and Helene need to do, how can they embrace the protection Congress has provided for their families?  Unfortunately, as the Ombudsman determined, “no clear process is available for survivors to request benefits from USCIS under INA section 204(l).”  See Ombudsman Report at p. 2.  
Reviewing the policy memorandum and AFM section 10.21 gives no hint of what Helene should do.  There are no instructions for individuals whose qualifying relative’s petition was still pending at the time of death.  Presumably it and related application will continue to be processed and the family can use and renew their EAD and AP to work and travel, respectively, without issue.  Maybe.  More on that aspect below.  
Karim can get some direction from AFM 10.21(7).  That section, as noted above, dictates that Mahjouba’s I-140 petition was automatically revoked upon her death and that Karim needs to look to AFM 21.2(h)(1)(C) for guidance on reinstating Mahjouba’s petition and obtaining the protection of INA § 204(l).  Before going on to that, note that USCIS will not give effect to Mahjouba’s employer’s request to withdraw the I-140 approval after her death “since the employment-based petitioner no longer has any legal interest in the immigration of the principal beneficiary’s widow(er) or children.”  AFM 10.21(c)(3). 
So, what does Karim need to do?  AFM 21.2(h)(1)(C) directs someone in Karim’s position to “send a written request for reinstatement to the USCIS service center or field office that approved the petition except that, if the beneficiary has properly filed an application for adjustment of status with USCIS, the written request should be submitted to the USCIS office with jurisdiction over the adjustment application.”  This section also directs that the request must include a copy of the approval notice for the revoked petition and the death certificate of the qualifying relative.  
Although it is not stated in this section, to comply with the requirements of the statute, Karim would need to include proof of his residence in the United States at the time of his wife’s death and that he continues to reside in the United States.  In addition, it would be prudent for him to include a copy of each family member’s I-485 receipt notice, which should include each individual’s alien number, all of which could assist USCIS in matching up the request to each family member’s file.  
Once the request is submitted, USCIS takes the position that a request like Karim’s, because it involved an I-140 that was previously approved and in USCIS’s view automatically revoked, is a request for humanitarian reinstatement, is discretionary, and may be denied “if the director decides that humanitarian reinstatement is not warranted.”  AFM 21.2(h)(1)(C).  The section goes on to state: 
While there are no other rules or precedents on how to apply this discretionary authority, reinstatement may be appropriate when revocation is not consistent with “the furtherance of justice,” especially in light of the goal of family unity that is the underlying premise of our nation’s immigration system. In particular, reinstatement is generally appropriate as a matter of discretion, if section 204(l) of the Act and Chapter 10.21 of this AFM would support approval of the petition if it were still pending.
It is unclear what guidance, given the lack of “other rules and precedents”, terms like “may be appropriate” or “generally appropriate” provide to the adjudicating officer, but one would hope that given Congress’s intent to protect individuals in Karim’s position, and the fact that the statute clearly states it covers those with “pending or approved” petitions, that, barring other grounds of ineligibility, the I-140 should be reinstated and the adjustment applications and related applications should continue, as if his wife had not died.  

Presumably, Helene could submit a similar packet to ensure the protections of §204(l) are applied to her and her family.  In her case, she need not request reinstatement, but presumably she too would need to provide proof of her spouse’s death, and demonstrate residence in the United States at the time of his death and her intent to continue to reside in the United States.  Because her husband’s I-140 is still pending, the best guess is that she needs to send the information to the Service Center processing his I-140. 
As pointed out above, there is no clear system in place for how USCIS handles these requests, acknowledge these requests, process these requests, or give notice to family members about these requests.  Because there are no regulations, no form, and no guidelines other than what may be “appropriate”, there is little a family can do but contact USCIS or perhaps even the Ombudsman’s office to try to get acknowledgement that their applications are being adjudicated.  
A big question arises with regard to travel.  It would appear that the ability to travel after submission of the request by someone in Helene’s position might be a bit safer than someone in Karim’s position, given that Henri’s pending I-140 petition remains pending.  But what happens if the request is still pending or is denied while the family is out of the country, using their valid advance parole documents to travel?  Clearly if the request has been denied, the family should not travel and if they are outside the country they could get stranded, as this has happened to similarly situated individuals.  But if the request is still pending, should Karim and his family take the risk of traveling?  One would counsel probably not, because even though the advance parole document was valid when they left the country and remains, on its face, valid and no notice of its revocation has been given, CBP might not honor the documents at the border if they see that the underlying I-140, upon which all other applications depend, has been automatically revoked and not yet reinstated by USCIS. 
One last diversion: what about those individuals who have an approved or pending EB-3 I-140, are from countries with severely backlogged priority dates like India, and therefore have not yet been able to file an adjustment application?  What does an individual in H-4 status do when his or her H-1B spouse dies?  The statute clearly states that individuals in this category should be covered, see INA § 204(l)(2)(C), but for how long?  It is unclear whether the “continuing to reside” requirement applies only to getting the revoked I-140 reinstated or reaffirmed, or whether the individual would have to remain, waiting decades for the priority date to become current.  The Policy Memo provides little clear guidance: 
Because section 204(l) of the Act does not waive the standard eligibility requirements for applying for adjustment, an alien who did not already have an adjustment application pending when the qualifying relative died may not be able to seek adjustment in every case in which a pending petition was approved, or an approved petition was reinstated, under section 204(l) of the Act.  An alien whose petition has been approved or reinstated under new section 204(l) of the Act, but who is not eligible to adjust status, would not be precluded from applying for an immigrant visa at a consular post abroad.2  The approval of a visa petition under section 204(l) of the Act does not give an alien who is not eligible for adjustment of status, and who is not in some other lawful immigration status, a right to remain in the United States while awaiting the availability of an immigrant visa. 
Footnote 2 states: 
The alien must have been continuing to reside in the United States in order for the petition to have been approved.  Once it has been approved, however, the alien’s departure to obtain a visa would not change the fact that the alien met the residence requirements when the officer adjudicated the petition.  
One interpretation of this language from the Policy Memo is that the individual is only required to continue to reside in the United States until the I-140 has been reinstated or reaffirmed.  The implication therefore is that the person can then leave the United States to wait for the priority date to become current and apply for an immigrant visa via consular processing, although note that the Foreign Affairs Manual has not been updated to take the provisions of INA § 204(l) into account.  And after they have waited 20 or 30 years in India (one report has estimated that the EB-3 India wait is 70 years!), how will they get the National Visa Center to prompt their case into active status? 
Since the H-4 spouse can no longer maintain status once his or her H-1B spouse has died, he or she may be able to remain in the United States for 180 days past the death of his or her spouse and take harbor in INA 245(k).  Or he or she could arguably wait in the United States until 180 days after their valid I-94 expires and then leave to consular process.  But given the backlogs, 180 days could never be enough time, and INA § 204(l) does not protect against grounds of ineligibility not related to the death of the spouse (so, INA 245(c) could make an overstay spouse ineligible to adjust and if such spouse leaves to consular process, they might trigger the 3 or 10 year bar and would need a waiver – a waiver they could only get if they had some qualifying relative, as their deceased spouse could not serve as that qualifying relative in this example because he or she was not yet a lawful permanent resident or citizen).  
These individuals could try to change to another nonimmigrant status, but again the decades they might have to wait make this seem untenable – how long can one really remain a student?  If they do not have the appropriate qualifications for an H-1B, or keep getting unlucky under the H-1B cap, what to do?  One could perhaps try to request deferred action on humanitarian grounds given the humanitarian purpose behind INA § 204(l), from the Department of Homeland Security in order to avoid accruing unlawful presence while waiting for the priority date to become current to leave the country in order to consular process, but would DHS grant such a request?  There is no guidance as to that issue.  Clearly, the backlog of priority dates is a missing link in the protection that INA § 204(l) was meant to provide.  
USCIS should take up the Ombudsman’s November 26, 2012 recommendations as soon as possible and conduct notice-and-comment rulemaking to create or designate a standard form, establish a receipt protocol, and an adjudication process that is in compliance with the actual statute.  USCIS should stop regarding these requests as discretionary (“shall be adjudicated”), publish instructions for applicants and petitioners and track and monitor the processing of surviving relative requests.  The loss of a family member is enough of a burden, USCIS should not double down on that burden by failing to institute clear procedures to give families comfort and clarity as to their ability to have their applications adjudicated, and feel safe to travel and work.  Moreover, one would hope that the backlogs will be cleared up but in the interim, the problem posed by backlogs in the surviving spouse context should be taken up by USCIS or even by Congress.  

December 9, 2012


By Gary Endelman and Cyrus D. Mehta

The title of this blog may seem odd as the H-1B visa is usually associated with an employee who earns a regular wage at the prevailing rate. Yet, entrepreneurs may benefit from the H-1B. Since the USCIS recently set up an Entrepreneur Pathways Portal inviting entrepreneurs to use existing nonimmigrant visas, including the H-1B visa, an analysis on how the H-1B visa can be legitimately exploited by entrepreneurs is worthy of further  exploration.
At the outset, it is worth noting that law is neither applied nor interpreted in a vacuum but is suffused with the attitudes and assumptions of the adjudicator. The same is true here. What does the USCIS want to achieve through its new embrace of foreign entrepreneurs? What is its end goal? Does it accept the legitimacy of the H-1B and does it believe that its proper application or deployment will be in the national interest? Unless we know these things first, no formula or set of legal guidelines can result in a proper, informed decision.  In the end, unless and until the moral and ethical legitimacy of employment based immigration is both embraced and appreciated, there will not be the intellectual flexibility necessary to help entrepreneurs reach their dreams.
Last week’s blog summarized the nonimmigrant options for entrepreneurs suggested in Entrepreneur Pathways, and it also speculated whether this new welcoming embrace of foreign entrepreneurs may possibly change the “Culture of No” within USCIS, whose officials generally places a small business under a fraud profile. A startup may be even more rudimentary than an established small business and thus more susceptible to being viewed as a fraudulent artifice. Startups may not yet be generating a revenue stream as they are developing new technologies that may lead to products and services later on. Many have received financing through venture capital, angel investors or through “Series A and B” rounds of shares. Startups may also operate in more informal spaces, such as the residences of the founders (with regular meetings at Starbucks) instead of a commercial premise. Some are also operating in “stealth mode” so as not to attract the attention of competitors and may not display the usual bells and whistles such as a website or other marketing material. Startups may also not have payroll records since founders may be compensated in stock options. Still, such startups are legitimate companies that should be able to support H-1B, L, O or other visa statuses. While, in the past, USCIS has often been accused by critics of harboring a systemic bias against small business, Entrepreneur Pathways holds out the promise of a new and more welcoming attitude. The degree to which this flexibility will operate in practice will depend, in large measure, on the extent to which emerging companies and inventive business strategists press their case for immigration benefits.
Regarding the H-1B visa, it is true that 8 CFR § 214.2(h)(4)(ii) requires the existence of an employer-employee relationship, which includes the employer’s ability to “hire, pay, fire, supervise, or otherwise control the work of such employee.” Can the startup owner be able to sponsor himself or herself on an H-1B through the startup? The USCIS portal is surprisingly receptive, but still limited by the rigid methodology and narrow assumptions of the Neufeld Memo that elevates the right of control over all the other factors set forth in the regulation, such as the right to hire, pay, fire or supervise the employee. Still, the USCIS suggests that a startup may be able to demonstrate this if the ownership and control of the company are different. This can be shown through a “board of directors, preferred shareholders, investors, or other factors that the organization has the right to control the terms and conditions of the beneficiary’s employment (such as the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment).” Some of the suggested evidence could include a term sheet, capitalization table, stock purchase agreement, investor rights agreement, voting agreement or organization documents and operating agreements. Not only can observance of corporate formalities serve legitimate business interests and avoid the “piercing of the corporate veil”, by providing the patina of control over individual initiative they may also serve to convey immigration benefits.
The ethos of any new business idea is change, an unwillingness to sacrifice creativity and growth on the alter of certainty.  It is the preference for certainty, however, most notably reflected in the Neufeld Memo that  may make it difficult for the 100% owner of a startup to successfully obtain an H-1B visa. If the beneficiary has not only conceptualized the business, but also invested only her own capital, it will be difficult for her to have a board of directors that can have the ability to discipline or fire her. Indeed, noted attorney David Ware asks a good question: “What entrepreneur in his or her right mind is going to invest blood, sweat and tears, not to mention money, in an entity holding this power?”  If we expect the entrepreneur to take a chance, must not the USCIS itself accept some measure of risk?  Concern over fraud, while totally legitimate, must be balanced against no less compelling concerns for allowing the honest expression of commercial imagination.
Although Mr. Ware’s point is well taken, we caution against being completely dismissive of the USCIS effort to welcome entrepreneurs, especially the H-1B visa, which one can have more access to over other visas such as the O-1, E-2 or L-1A. The agile practitioner should invoke old decisions that recognize the separate existence of the corporate entity. It is well established that a corporation is a separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if he or she has a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the US.  
There are other difficulties for an H-1B entrepreneur that may be beyond the USCIS’s control. Every H-1B petition must be accompanied by a certified Labor Condition Application from the DOL. Under an LCA, the employer attests that it must pay the beneficiary the higher of the prevailing or actual wage, and must also do so on a regular prorated basis. In a startup, there may be no revenue stream to pay the entrepreneur initially. Thus, unless the startup is sufficiently capitalized through venture capital or other forms of financing that can ensure a steady stream of income to the H-1B beneficiary at the required wage, the petitioning entity may be in violation of the DOL rules if it cannot guarantee a regular prevailing wage.
Also, a DOL rule at 20 CFR § 655.731(c)(9)(iii)(C) states that any attorney fees paid by the H-1B beneficiary will be viewed as a lowering of the required wage that the employer is required to pay the beneficiary. There is also a prohibition of the employee paying the training fee of $750 or $1,500. In the case of a startup, where the H-1B beneficiary has invested his own money into the enterprise, the fact that the petitioning entity makes these payments ought not to be viewed as a violation of the DOL rules regarding impermissible payments. Since it is the entity that is making these payments, which is considered separate from the beneficiary, and which also controls the beneficiary, it should not be viewed as impermissible. Otherwise, there is no way that the USCIS can promote the H-1B to entrepreneurs.
Even if an H-1B founder of a company successfully establishes that the entity can control her employment through a board of directors or through preferred shareholders, the USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Also, positions in innovative startups may not necessarily fit under the occupations listed in the Department of Labor’s Occupational Outlook Handbook but may yet require at least a bachelor’s degree. It is hoped that USCIS examiners are trained to be receptive to other evidence to demonstrate that the position requires a bachelor’s degree. Furthermore, an MBA degree should be considered a specialized degree in itself since many MBA programs at top business schools focus on entrepreneurship and other fields, such as technology or web analytics, which equip one to be a successful entrepreneur. The very notion of specialized occupations has and will continue to change as the pervasive impact of technology in the Internet Age makes itself felt at all levels of economic activity.
While there are insurmountable hurdles for H-1B entrepreneurs, it is hoped that the USCIS will make every effort for the program to work for them. The H-1B is the most accessible visa to a foreign student as the E-2 visa only applies to nationals of limited countries that have a treaty with the US, and none of the BRIC countries have such treaties. Very few entrepreneurs can qualify as extraordinary under the O-1 and the L-1A visa would only apply to an individual who has been employed overseas for one year in the past three years in an entity that has a parent, subsidiary, affiliate or branch in the US. It also raises a larger question: How can we use US immigration policy not merely to preserve the status quo but actually create wealth and jobs? For it to work successful, USCIS officials have to examine and approve cases consistent with this objective. The problem goes beyond the “Culture of No.” The USCIS should think of immigration in a strategic sense as a mechanism to create wealth and expand the economy. Presently, USCIS thinks in static terms so naturally the focus is on protecting what now is and judging people not by their potential but by their documented accomplishments. USCIS, on the other hand, should think like an entrepreneur so as to avoid a dissonance or disconnect between the regulators and those whom they regulate. The USCIS Entrepreneur in Residence program, from which the Entrepreneur Pathways portal has ensued, appears to be a step in the right direction. Only time will tell whether it will truly serve the needs of entrepreneurs. The willingness of the entrepreneur to take risks must be matched in full measure by an immigration system that also embraces the value of innovation. As T.S Elliot famously reminded us: “Only those who risk going too far can possibly find out how far it is possible to go.”