THE SECOND CIRCUIT AMENDS SHABAJ v. HOLDER: WHAT HAPPENED TO FOOTNOTE 4? HAS THE POTENTIAL AVAILABILITY OF JUDICIAL REVIEW OF USCIS DECISIONS BEEN ALTERED?

By David A. Isaacson

On April 25, 2013, the U.S. Court of Appeals for the Second Circuit released an amended opinion in Shabaj v. Holder, docket number 12-703.  The prior opinion in Shabaj was the subject of a previous post on this blog.  To summarize, Shabaj held that a claimed error by the USCIS Administrative Appeals Office (AAO) in analyzing whether an applicant for a waiver of inadmissibility under INA §212(i) had shown extreme hardship could not be reviewed by a district court, because the jurisdiction provided by 8 U.S.C. §1252(a)(2)(D) to review constitutional claims and questions of law is only available on a petition for review to a court of appeals.  (This is a very brief summary of a more complex issue; for additional details, readers are referred to the above-linked previous blog post.)
The only changes in the amended Shabaj opinion are in the footnotes, but one of those changes has particularly interesting implications.  Although the amended opinion adds a new footnote 3 addressing why a statutory reference to the Attorney General applies to the Secretary of Homeland Security (and makes a slight formatting change at footnote 2), the particularly interesting part is the change in what was formerly footnote 4 and is now footnote 5.
In the old footnote 4, the Court of Appeals sought to explain why Shabaj could not have simply filed a petition for review invoking its §1252(a)(2)(D) jurisdiction under his particular circumstances, but suggested that others under similar circumstances could do so:

Indeed, this Court denied Shabaj’s petition for review of his removal order over two years ago. See Shabaj, 602 F.3d at 106. Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.

As explained in my previous post on the original Shabaj opinion, the procedure for judicial review that this footnote seemed to point to would be interesting but not unprecedented:

The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order, to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

In its amended opinion, however, the Court of Appeals has removed the language that was previously in footnote 4.  In its place, the Court of Appeals wrote in the new footnote 5:

The government contends that a petitioner could never file a “petition for review” of a CIS hardship determination because petitions for review are only available for challenges to orders of removal, and CIS determinations are not made as part of removal proceedings. However, we need not decide whether a petitioner could file a “petition for review” of a CIS hardship determination directly with this court because, in this case, Shabaj filed his legal challenge in the district court, which indisputably lacked jurisdiction under § 1252.

The question that arises is whether this amendment of the Shabaj decision has any effect on the jurisdictional possibilities that may exist in the Second Circuit for judicial review of USCIS waiver determinations.

Certainly, the new Shabaj footnote 5 does not purport to preclude the sort of petition for review that the original Shabaj footnote 4 endorsed.  Rather, the Court of Appeals has explicitly chosen not to address the issue of whether such a petition for review is possible, while noting that the government, as one might expect, contends that it is not. Thus, it still remains possible for others, under appropriate circumstances as described in my previous blog post, to argue for judicial review of a USCIS determination that is in some sense either incorporated into an order of removal, as in Orquera, or constitutes a refusal to reopen an order of removal, such that the USCIS denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006). The Court of Appeals would then need to face the issue that it avoided as unnecessary in its amended Shabaj opinion.

Also interestingly, the new footnote 5 does not preclude the possibility that Mr. Shabaj or someone else in a similar position could have reopened his removal proceedings, in the way that the old footnote 4 seemed to assert such reopening was necessarily impossible.  Assume, for example, that Mr. Shabaj or someone else who had entered under the Visa Waiver Program had not actually waived his right to review in the way that the statute and regulations suggest he should have been required to.  Like the petitioner in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), whom the Second Circuit held could not simply be assumed to have waived his rights to removal proceedings, such a petitioner would properly be able to attack his removal order despite his Visa Waiver Program entry.  

Perhaps for this reason, the Second Circuit declined, in its amended opinion, to necessarily rule out the possibility of such judicial review; it said in the new footnote 5 merely that, regardless of whether or not Mr. Shabaj could have filed a petition for review directly with the Court of Appeals, he had not in fact done so.  While that might raise the question of whether Mr. Shabaj’s lawsuit in the district court should have been considered as a petition for review filed in the incorrect venue and transferable to the Court of Appeals in the interest of justice under 28 U.S.C. §1631, it is possible that such relief was not requested or considered, perhaps because the lawsuit evidently was not filed within 30 days of the final administrative order as a petition for review would need to have been (the original and amended opinions both indicate that Shabaj’s appeal to the USCIS AAO was dismissed on May 2, 2011, and his lawsuit filed on July 14, 2011).

Thus, while the amended Shabaj decision has deleted language which seemed to give the blessing of the Court of Appeals to a creative strategy for seeking judicial review of certain USCIS decisions, it has not precluded such a strategy.  In addition, it may implicitly have acknowledged that some Visa Waiver Program entrants, in circumstances similar to Mr. Shabaj’s, could in fact reopen their removal proceedings and seek relief in that way.


Some Preliminary Observations Regarding the Proposed “Border Security, Economic Opportunity, and Immigration Modernization Act”

As most readers of this blog are likely aware, earlier this week the U.S. Senate’s “Gang of 8” – that is, Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ) – introduced a proposed comprehensive immigration reform bill.  A copy of the bill as introduced is available on Senator Schumer’s website.  Its short title is the “Border Security, Economic Opportunity, and Immigration Modernization Act”, and so I will refer to it in this blog as BSEOIMA, although that acronym is somewhat more difficult to pronounce than previous well-known immigration bills such as 1986’s IRCA and 1996’s IIRIRA.  (Personally I would tend to pronounce it “B’soyma”, although Angelo Paparelli reports that Dan Kowalski, Editor-in-Chief of Bender’s Immigration Bulletin, has dubbed the bill “BESSIE MAE”.) Broadly speaking, it combines increased border security with a new “Registered Provisional Immigrant” (RPI) status available to much, but not all, of the current undocumented population – primarily those present in the United States since December 31, 2011 who lack any significant criminal record – and various provisions designed to handle the “future flow” of immigration somewhat differently than our current system, such as a merit-based system of awarding some immigrant visas to those who accumulate an appropriate number of “points” in a system reminiscent of that currently used in Canada.

The Immigration Impact blog of the American Immigration Council has already published some preliminary reactions to BSEOIMA, and AIC and the American Immigration Lawyers Association (AILA) have also released a detailed summary of the bill.  In this blog post, I do not claim to provide a comprehensive summary of the bill, which is after all 844 pages long, and which has already been summarized by AIC/AILA (and others as well).  Instead, I will simply highlight some of the portions of the bill that caught my attention on a first read-through, with citations to the page number of the introduced bill on which they appear.  Readers should keep in mind that this is a preliminary assessment of complex legislative language that may change in the future (assuming the bill passes at all), so it should not be taken as a precise description of the future final version of any provision; it is, so to speak, a first-draft reaction to the first draft of the bill.  Because this is an entirely subjective list of some provisions that happened to catch my attention, it is also naturally skewed to the sorts of provisions that were of interest to me as an attorney practicing immigration law; I do not mean to deprecate the significance of the substantial provisions for increased border security with which the bill begins, for example, but since I am not in the habit of advising people to enter the U.S. unlawfully or smuggle in others, they are of less direct relevance to my practice and thus attracted less of my initial attention.And this is not even a list of every single provision that caught my attention on a first read—such a list would be a bit too lengthy for a blog post. With those preliminaries out of the way, here are some of the provisions that were interesting to me and may be interesting to readers as well:

Nonimmigrants who are lawfully present according to DHS or DOS records will not be eligible for the new RPI status, even if they have violated status or been employed without authorization—apparently making the analysis under BSEOIMA different from the one that was used under IRCA to determine whether applicants were known to the government to be here unlawfully by the key date and thus eligible for legalization. Pages 64-65.  While nonimmigrants with a currently valid status as of the date of introduction of the bill are excluded from RPI status, however, if they have already been lawfully present for 10 years or finish accumulating that total period of consecutive lawful presence after the bill passes, they’ll be able to apply for LPR status under the new merit-based system, about which more below.

Expunged convictions don’t count for purposes of determining eligibility for RPI status, but otherwise any felony, an aggravated felony, or 3 misdemeanors will disqualify RPI applicants, except for convictions under state and local laws having immigration status/violations as essential elements—for example, some crimes created by Arizona’s recently infamous SB 1070.  Pages 61-66.

There is a limited discretionary waiver under which some people could be eligible for RPI status even after previous departure or removal, at pages 71-72.  While the language is complex, it appears that the waiver will be potentially available to certain “DREAMers” (those who would have been eligible for relief under the previously proposed DREAM Act that is in large part incorporated in BSEOIMA), spouses and children of U.S. citizens and LPRs, and parents of U.S. citizen or LPR children.

Employers will be able to continue employing people who they know are, or will be, RPI applicants, pending adjudication of the application for RPI status, without violating the INA.  Page 78.  This will help avoid the specter of employers being reluctant to assist with the RPI applications of their employees because, having come to know that their employee lacks valid immigration status authorizing employment, they would otherwise be supposed to fire them.

RPIs will not be able to be absent from the United States either for a continuous period of more than 180 days, or for more than 180 days in any calendar year, without extenuating circumstances; otherwise they will lose their status and not be able to adjust status to permanent residence.  Pages 89-90, 94-95.

While there are limited exceptions based on age and disability, most RPIs will need to show that they have been continuously employed or had resources above 125% of the poverty line, or have been full-time students, in order to adjust to LPR.  Pages 96-99.

The DREAM Act is present in modified form as proposed INA section 245D: the DREAMers will only need to be RPIs for 5 years before they can become LPRs, instead of the usual 10.  There can be a “streamlined procedure” for those who have been granted Deferred Action for Childhood Arrivals (DACA).  The DREAMers (including the DACA grantees) will be able to apply for naturalization as soon as they complete their 5 years of RPI and adjust to LPR (but not sooner).  Pages 110-116.

The “AGJobs” bill benefiting certain agricultural workers, which like the DREAM Act has been floating around for a number of years, also makes an appearance in BSEOIMA. Like DREAMers, AGJobs “blue card” holders will be able to adjust after 5 years under certain circumstances, not 10 years like other RPIs. See pages 150-255.

We learn on page 262 of BSEOIMA that while siblings of U.S. citizens and married sons and daughters over 31 would no longer be separate family preference categories, they would get points in the new merit-based system that will make up a substantial portion of future immigrant visa numbers.  Although the diversity lottery in its current form would be abolished, the preference for diversity in the current lottery system also lives on somewhat in the form of an award of points to people from countries from which fewer than 50,000 nationals were admitted in the previous 5 years.  (Page 263.)  You will also be able to get points in the new system for things like speaking English, being between the ages of 18 and 37 (you get the most points for being between 18 and 24), having specific types of employment, or even civic involvement.  See pages 260-265.

Beginning on October 1, 2014, people whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis (although this eligibility will not be immediate for everyone affected, but will phase in over a 7-year period).  People who have been “lawfully present” for not less than 10 years will also be eligible for this non-points-based side of the merit-based visa system.  See pages 270-273.  RPIs will not be able to adjust status to LPR except under this second merit-based track, based on 10 years lawful presence—a provision which may hopefully be changed before the bill is finally enacted, since it seems unnecessarily cruel to prohibit, for example, an RPI who marries a U.S. citizen from becoming an LPR in the same way that any other lawful entrant who became a bona fide immediate relative of a U.S. citizen could adjust status under section 245(a) of the INA (even if they had, for example, overstayed a tourist admission).  Pages 108, 269-274.

Anyone, including RPIs and others, who was lawfully present and work-authorized for 10 years before becoming an LPR, will be able to naturalize 3 years after becoming an LPR instead of 5.  Pages 109-110.

BSEOIMA will recapture previously unused visa numbers from past fiscal years, so that should also reduce the backlog of people awaiting immigrant visa numbers. Pages 276-279.

Spouses and children of Lawful Permanent Residents (LPRs) will become “immediate relatives” not subject to a visa number limit. Pages 280-281.

The BIA’s highly dubious decision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), rejecting automatic conversion and retention of priority dates under the Child Status Protection Act, would be overturned legislatively by a provision of BSEOIMA making even clearer how automatic conversion is supposed to work.  Pages 287-288.

Priority dates from any approvable-when-filed immigrant visa petition will be transferable to any other petition, regardless of category.  Page 288.

The numerical per-country limitations will be raised to 15% for family-based cases and eliminated for employment-based cases, which is good news for Indian and Chinese nationals who currently face substantial employment-based backlogs, and also (to a somewhat lesser extent) good news for Mexican and Phillipine nationals who currently face substantial family-based backlogs. Pages 294-296.

Visa number usage calculations would no longer include employment-based derivatives, the employment-based first preference (all three subcategories), aliens with a doctorate, or former J nonimmigrant physicians who have completed their 2-year foreign residence requirement under section 212(e) of the INA or obtained a waiver thereof.  Pages 299-303.  STEM graduates with a master’s degree or higher (as a practical matter this just means masters since doctorates are separately exempt) would be able to be exempt from the visa number limits if they have a job offer from a US employer and earned their degree within the 5 years preceding the petition filed for them.  These STEM immigrants would not require labor certification.  Pages 304-312.

V visas will be extended to cover all family preference immigrants with approved petitions, but siblings and married children over 31 (whose family preferences are anyway being phased out under BSEOIMA) won’t get work authorization if they come on V visas, and will only be allowed to be present for 60 days per fiscal year.  The unmarried sons and daughters, and married ones under 31, will get work authorization with their V visas and will be able to stay on a longer-term basis.  Pages 313-317.  So for the family preferences that will continue to exist, this is like the old V visa; for siblings and over-31 married sons and daughters, it’s more like a dual-intent B-2 tourist visa.

The cutoff for stepchildren will be parental marriage by 21 years of age, consistent with the other “child” definitions of most of the rest of the INA, instead of the current age-18 cutoff.  Page 322.

The general cutoff age for adoptions valid under the INA will be extended from 16 to 18. Pages 322-323.

Immigration Judges and DHS would gain new discretionary authority to terminate removal proceedings or admit someone to the U.S. if removal or refusal of admission is against the public interest or would result in hardship to certain U.S. citizen or LPR immediate family members, although this new authority would not apply in the case of certain criminal removability grounds and certain other grounds of removability.  Pages 328-331.

H nonimmigrant petition beneficiaries who entered the US before age 16 and had a baccalaureate or higher degree from a US institution would be exempt from the unlawful presence bars (that is, the 3- and 10-year bars). The unlawful-presence waiver for others, under section 212(a)(9)(B)(v) of the INA, would be extended to cover hardship to a U.S. citizen or LPR spouse, son, daughter, or parent.  Pages 331-332.

J-2 spouses and children of J-1 exchange visitors would not be subject to the INA 212(e) foreign-residence requirement.  Also, physician training even under a status such as a J-1, which ordinarily requires a foreign residence which one has no intention of abandoning, would be dual-intent (that is, would not require such a foreign residence). Pages 367-370.

The exemptions from the English and civics testing requirements for naturalization in the case of certain older immigrants would be expanded somewhat.  Those who are over 65, and have lived in the US as an LPR for 5 years, would be exempt from the English/civics tests.  The limited exemption from the English language requirement, under which the applicant is still required to take the U.S. civics test but can do so in their native language, would apply with 50 years of age plus 20 years as an LPR, 55 years of age plus 15 years as an LPR, or 60 years of age plus 10 years as an LPR.  For those 60 years of age or older who had been LPRs for 10 years, the civics-test requirement could be waived on a case-by-case basis.  Pages 393-394.

The one-year filing deadline for asylum claims would be eliminated, and people who have been granted withholding of removal but denied asylum because of the one-year deadline would be allowed to reopen their cases. Page 552.

Over the next three fiscal years, there would be 75 new Immigration Judges appointed each fiscal year, for a total of 225, in an effort to reduce the backlog of immigration court cases.  Pages 566-567.

H-4 spouses will be employment authorized so long as they are from a country that grants reciprocal benefits to U.S. citizens. Pages 663-664.

H-1B nonimmigrants whose employment terminates will have a 60-day grace period, and will also be considered to be maintaining H-1B status during the pendency of “a petition to extend, change, or adjust their status” that is filed during such 60-day grace period. Some low-risk H-1B nonimmigrants, as well as A, E, G, (other) H, I, L, N, O, P, R, or W nonimmigrants, can have their visas renewed in the United States at the discretion of DOS.  Pages 664-667.

F-1 student status will be dual-intent for a bachelor’s degree or above: that is, students applying for visas to study in bachelor’s degree programs, doctoral programs and so on will not need to show intent to return to their home country afterwards, but can plan to remain in the United States and put their valuable knowledge to use here.  Pages 725-727.

E-4 nonimmigrant visas, which would function like the current E-3 visas available to Australian nationals working in a specialty occupation, will be created for South Korea and other countries with which we have free trade agreements as recognized by DHS with the concurrence of DOS and the US Trade Representative.  There is a limit of 5,000 E-4s per sending country, which does not include derivative spouses and children. Pages 732-733.

There will be E-3 visas created for Irish nationals which only require a high school education or at least 2 years of work experience in an occupation requiring at least 2 years of training or experience (a la the current diversity visa standard).  Page 734.

O-1s will get portability between employers like what H-1Bs have now.  Pages 736-737.

Nonimmigrants with a pending application for extension of stay and related work authorization are authorized to continue employment until the application is adjudicated (as opposed to the current limited regulatory extension of employment authorization). Page 738.

Canadians over age 55 will be allowed to come as B-2 visitors for up to a 240-day period out of any 365 days, and maintain a home here, as long as they also have one in Canada.  Pages 742-744.

Retirees over 55 will be able to get a new Y visa, renewable in 3-year increments, if they use at least $500,000 to purchase one or more residences in the US which sold for more than 100% of the most recent appraised value (per their local property assessor), reside here for more than 180 days per year, and meet certain other financial requirements.  Pages 744-746.

A limited number of new W nonimmigrant visas will be available for workers in O*Net Job Zone 1, 2, and 3 occupations, but they will not be available for  higher job zones (requiring more than 2 years of preparation) or positions requiring a bachelor’s degree or involving “computer operation, computer programming, or computer repair”.  Pages 776-778, 803-804.

W status is for an initial term of 3 years, renewable for additional 3-year periods.  You have to first apply at a consular post abroad to be designated a “certified alien”.  If you are unemployed for more than 60 days, you have to leave. You can only work for a registered employer, and they have to first carry out recruitment for their desired registered position and fail to find a “qualified United States worker . . . who is ready, willing and able to fill such position”.  The recruitment is reminiscent of PERM recruitment for professional occupations, except that a “U.S. worker” would be defined more broadly than under PERM, to include anyone with unrestricted work authorization, rather than only U.S. citizens, LPRs, asylees, refugees, and temporary residents such as RPIs or their IRCA equivalent.  Pages 785-786, 789-804.

The registered W-visa position continues to be registered if the employer has filed an I-140 petition for the W worker by the end of the 3-year period.  It will cease being so if the petition is approved or denied, or the employment of the worker is terminated. Pages 805-806.  This raises the question of what happens if the petition is approved, but the priority date is not current—is the worker then stuck in limbo?  That may be an unintended flaw in the legislation that can be fixed as the bill moves forward.

W visas are, at least, dual-intent, page 828, so it isn’t a problem that the W worker is anticipating such a petition being filed for him or her.  But, W nonimmigrants will not be able to take advantage of the prong of the merits-based visa system that will allow others to become LPRs after being in lawful status for 10 years.  Page 271.  This, too, is an anomaly that may hopefully be fixed as the bill moves forward—why should W nonimmigrants be treated less favorably than absolutely everyone else who is lawfully present?

The W nonimmigrant may terminate his employment for any reason and take up employment with another registered employer in another registered position.  Page 819.

There will be new X nonimmigrant visas, and a new immigrant visa program, for qualified entrepeneurs.  The qualifications have to do with number of jobs created, financing devoted to your company by qualified venture capitalists etc., and/or your company’s revenue.  You will need to maintain nonimmigrant status for at least two years before you can petition as an entrepreneur immigrant (although not necessarily as an X nonimmigrant).  Pages 828-844.

And thus ends this first list of some highlightsof BSEOIMA.  Watch this space for additional blogging about BSEOIMA either from this author or from others at Cyrus D. Mehta and Associates, PLLC…

212(k) WAIVER VICTORY TEACHES THAT IT’S NOT WORTH MANIPULATING THE IMMIGRATION SYSTEM TO SETTLE PERSONAL DISPUTES

When two parties are in a personal dispute, and one of them is not a US citizen,  it is often tempting to use the immigration system to seek a remedy. For instance, the desire to see someone you are feuding with get deported from the United States may be tempting. However, the immigration system may not be the best forum to settle personal scores. If two spouses are in marital discord, the spouse who wishes to seek a remedy can resort to a family court to seek a separation rather than manipulate the immigration system to dump the foreign national spouse. The complaining spouse may also press criminal charges against the other spouse in the event that there are allegations of physical abuse.  But relying on the immigration system, when there  are clearly other avenues to seek redress, may likely backfire, especially if the claim is not found to be credible,  and the non-citizen you wish to see deported may still end up with a green card.

This is what happened in a case our firm handled on behalf of a foreign national spouse who was in removal proceedings. The unpublished decision of Immigration Judge McManus in New York Immigration Court where he was ultimately vindicated and victorious,  Matter of X (November 2012), can be found on LexisNexis Immigration Communities.

The foreign national spouse, the Respondent in the removal proceeding,  had married a US citizen in India through an arranged marriage in late 2006, which based on the record and voluminous evidence was undoubtedly bona fide and celebrated with much pomp. After the Respondent received an immigrant visa at the US Embassy, based on the US citizen spouse filing an I-130 petition, they travelled back to the United States in July 2007. The Respondent was refused admission at the airport when his wife alerted Customs and Border Protection officials that he married her solely for the green card, and that he had physically abused her. After being detained by the CBP for one day in the airport, he was denied admission as a lawful permanent resident and further paroled into the country for deferred inspection. Three days later, his spouse withdrew the I-130 petition she had filed on behalf of the respondent. After over two years, Respondent was served with a Notice to Appear in 2009 charging him with removability under INA § 212(a)(7)(A)(I)(i) as an alien not in possession of a valid entry document.

The first  issue in this case was whether the Respondent who was issued an immigrant visa could be admitted even though his US citizen spouse indicated at the airport that she wished to withdraw the I-130 petition, which she did three days later. Alternatively, could the Respondent be eligible for a waiver under INA section 212(k)?

With respect to the first issue, the IJ denied our motion to terminate removal proceedings. Even though former INA § 205 required the revocation of the petition to be communicated to the beneficiary before he commenced his journey to the US, it was amended in 2004, and new §205 did not contain this limitation. Under new § INA 205, an I-130 petition can be revoked at any time for good and sufficient cause, and the revocation shall be effective as of the date of the approval of the petition. While we were aware of the change in the statute, we pointed out that the government had not amended the regulation at 8 CFR § 205.1, which still contained the limiting language of the old statute. We argued that by not rescinding the regulation, the government still intended to interpret new § 205 in accordance with the way it was interpreted prior to the amendment. The Court held that when there is a conflict between a statute and a regulation, the amended statute trumps the regulation by citing K Mart Corp v. Cartier, Inc., 486 U.S. 281, 291 (1988). The Court also rejected our related argument that the Respondent should have been found to be admissible, notwithstanding the withdrawal of the I-130 petition, as he still had a valid immigrant visa issued  by the State Department, which had not been revoked.

With respect to seeking a waiver under INA §212(k), the IJ found  the Respondent to be eligible for the  waiver as he  was unaware of the ground of inadmissibility before he embarked upon his journey to the US.

INA §212(k) provides, as follows:

Attorney General’s discretion to admit otherwise inadmissible aliens who possess immigrant visas – Any alien, inadmissible from the United States under paragraph (5)(A) or (&)(A)(i) of subsection (a), who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.

This case should be contrasted with Matter of Aurelio, 19 I&N Dec. 458 (BIA 1987), which is controlling. In Aurelio, the petitioner’s death resulting in the revocation of the I-130 petition did not entitle the respondent in that case to a 212(k) waiver  as the respondent should have known about the inadmissibility arising out of the  death of her father one year prior to her departure The IJ found in this case, unlike in Aurelio,  that Respondent could not have possibly known that his spouse would revoke the I-130 petition three days after his arrival in the US. Respondent was eager to embark on a new life in the US with his spouse and could not have known of the steps she was planning to take to withdraw the I-130 petition.

Although the DHS attorney vigorously sought to pretermit Respondent’s motion to seek a 212(k) waiver on the ground that he was not in possession of an immigrant visa, the IJ agreed with our contention that “the invalidity of the visa..is the reason a waiver is required, not a reason the waiver cannot be granted.” See also Kyong Ho Shin v. Holder, 607 F.3d 1213 (9th Cir. 2010) (“By definition, §212(k) refers to visas that are invalid in nature – otherwise, the applicant would not be seeking a waiver of inadmissibility in the first place”). The IJ also soundly rejected the government’s claim that Respondent ought to have foreseen his potential inadmissibility as he was experiencing difficulties in the marriage and could have expected his wife to level allegations against him upon his arrival in the US. The Court held, “[S]imply because there were some problems in the marriage, which is typical of most couples, does not mean that Respondent should have known that his wife would withdraw her  support for Respondent’s visa application immediately upon arrival in the United States.”

Moreover, Respondent also merited a favorable exercise of discretion as the IJ credited Respondent’s detailed testimony, along with the testimony of his sister and uncle,  that he did not abuse his spouse in India, and agreed that several allegations made against Respondent at the airport and elsewhere may not have been truthful. For instance, one of the allegations by the spouse was that Respondent beat her up on the plane, which the Court thought found “unlikely that such a physical altercation would have  gone unnoticed, especially in light of evidence in the record indicating that such behavior is taken extremely seriously by airlines.” We provided evidence of how in a post September 11 world, such incidents could not possibly go unnoticed.  Another allegation that Respondent was  carrying drugs on his person while entering the country was also proved to be false as there was no indication, especially since he had been searched by the CBP, upon his arrival in the country. The allegation that the wife was kept captive in India was also disproved with credible accounts that she went out to Bollywood movies, visited relatives (including relatives in other Indian cities), and religious places on a regular basis.

The decision concludes as follows, “While the Court cannot know why Ms. [redacted] took such dramatic steps to withdraw the I-130 petition that she filed on Respondent’s behalf, the Court is troubled by the seemingly false statements made by Ms. [redacted] to various immigration officials, and agrees with Respondent’s counsel that it was improper for her to attempt to manipulate the immigration process in the manner that she did.”

The government doggedly pursued the case for over five years. Responded was denied admission in 2007 upon his arrival in the US and paroled for two years. After unsuccessfully convincing the government to admit him, in 2009, the government instead initiated removal proceedings against Respondent,  and the case dragged on for another three and a half years in Immigration Court, which included several hearings and motions. After the IJ issued the decision granting the Respondent a waiver under §212(k) and admitting him as a lawful permanent resident in late November 2012, the government did not appeal the decision within the 30 day period. To top up the hard fought victory in Immigration Court,  Respondent very recently received his actual green card in the mail!

THE MANY PROBLEMS SURROUNDING THE H-1B VISA CAP

Everyone was rushing to file H-1B visa petitions between the April 1-5 window as there was a sinking feeling that the USCIS would receive more than the 65,000 cases allocated under the H-1B annual cap as well as more than the 20,000 cases under the additional Master’s cap. Just as we were emerging from the H-1B filing madness – as we were all underwater working desperately hard for our clients – USCIS announces on April 5 itself that both the caps have been reached.

This means that all H-1B cases properly filed between April 1-5, 2013 will be subject to a randomized lottery. It also means that those not selected, will need to wait to file next April 2014. If we do not get more H-1B visa numbers from Congress, people rejected this year could stand a chance of being rejected next year in 2014 too based on the randomized lottery. Those who will be selected, and the chances of being selected depend on how many more H-1B cases USCIS received over 85,000, can only start their H-1B employment on October 1, 2013.

If a company now wishes to hire a badly needed engineer from abroad, it will need to wait till October 1, 2013 before this person can come on board, and that too if this worker was lucky enough to be selected under the lottery. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers.

It is also ironic that the USCIS should announce the H-1B cap on the same day that the job report for March 2013 was announced. The US added a dismal 88,000 jobs in March, but US employers clearly filed more than 85,000 H-1B cases this week for jobs that they can only fill on October 1, 2013. It will be interesting to further understand why there has been this demand for H-1Bs when the job report was so anemic. The H-1B cap was reached much quicker this year, and the last time the cap was reached so quickly was in 2008. It’s clear that the economy has revived notwithstanding the March job report, and business immigration lawyers, who rush to file H-1B cases on behalf of US employers,  tend to see upticks and downturns in the economy faster than others! Some more analysis is needed on the latest job report.

Still, it makes absolutely no sense to impose an H-1B cap. Let the market do the job of determining how many H-1Bs can enter the US based on the fluctuating demands of employers. At one point, when the H-1B cap prior to 2003 was 195,000 for a few years, this quota was never filled. Therefore, H-1B quotas do not necessarily dictate how many H-1B visa cases will be filed. It is market conditions that determine H-1B usage. Based on the lessons from the H-1B cap, it does not make sense to impose arbitrary caps at all, especially with respect to other temporary visas. In the negotiations involving comprehensive immigration reform regarding low skilled workers, business and labor trumpeted that a deal had been reached on future flows. When times are good, according to the deal, employers would be able to benefit from 200,000 workers; and when times are not so good they would only be able to get 20,000 workers. While a flexible cap based on market conditions is still better than a fix cap, such as the H-1B cap, there is no way of knowing whether businesses may need more than 20,000 low skilled workers even when there is an economic downturn. And when times are good, there is no way of knowing whether 200,000 visas would be sufficient.

The H-1B cap also arbitrarily forces employers to make hiring decisions for positions that will only materialize after 6 months. In certain industries, such as IT consulting, employers may not yet have an assignment for a worker who may be placed at a third party client site. Yet, an H-1B petition filed without being able to specify with laser precision the work site will be less likely to be approved by the USCIS. Indeed, in recent times, an employer who designated its headquarters as the worksite, when the intention was to place the H-1B worker at client sites, have been criminally prosecuted for not stating its true intentions and for also not paying the workers the H-1B wage until they were assigned to a client.

While the allegations made in the indictment against this employer are particularly egregious, many bona fide IT consulting employers are unable to precisely locate the work assignment six months ahead of time even though they do have a legitimate roster of clients, ongoing work and have every intention to pay the H-1B worker the required wage as soon as  he or she arrives in the US on October 1, 2013. Such employers who genuinely indicate in their H-1B petitions that they may not have a current assignment but do have the ability to offer a position on October 1, 2013, should not be penalized by wholesale denying their H-1B petitions or to be perceived as engaging in fraudulent conduct. After all, the concept of a fixed worksite has become quite antiquated in the second decade of the 21st century as H-1B workers in certain industries can be mobile, work out of their laptops from remote locations, and visit the client location whenever necessary. It is hoped that future H-1B rules give way to the more contemporary notion of a workspace rather than a physical worksite.

Finally, IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. However, it is this very business model has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the US promotes vehemently to other countries, but seems to restrict when it applies to service industries located in countries such as India that desire to do business  in the US through their skilled personnel.

Negotiations in the Senate regarding high skilled  workers in a comprehensive immigration reform proposal suggest that a future H-1B visa for employers who rely on H-1B workers may be more restrictive or they be subject to a much higher fee. If there is so much opprobrium against  the use of H-1B visas by offshore IT consulting companies, why not create a whole new visa category that will be linked to free trade in services. This visa, which we can call a Service Visa,  can be somewhat more restrictive than the H-1B visa by requiring a lesser duration of time and perhaps require that the worker be employed at the foreign entity before such a visa can be used. It also need not allow “dual intent” and require the worker to have ties with the home country. If such a worker is to be sponsored for a green card, he or she may have to first switch to the H-1B visa.

In conclusion, H-1B caps are generally bad for US employers and for the economy, and this one on April 5, 2013 has been particularly nasty. They do not allow employers to function and compete in a more natural market for skilled workers. The H-1B cap has not been raised for a long time, and it is time that we creatively reform the system rather than  forcing employers to madly rush to file H-1B petitions in early April each year, only to find their fate being determined by a randomized lottery with respect to workers they so badly need to remain competitive.

H1B DITTY

By: Myriam Jaidi

[An LLMJ creation set loosely to an old “gangsta” tune.  A thank you to Elizabeta Markuci for a lyrical turn]

Here’s a little somethin’ bout the H-1B
Havin’ so much trouble as a legit visa category
Grass-ley would like to say
It’s a crazy visa status, should be thrown away

Since it was established, so much trouble
Cuz of the few employers pullin’ tricks on the double
Breakin a rule or two, that’s what a few of them do
Not caring how it affects the rest of you

With a fake job no pay fake work-site
Messing things up for employers who do everything right

Hope the Gang of 8 is getting with it.
H-1B numbers need to increase by a big bit
A few indictments of alleged fakers here and there
Shouldn’t hurt the legit employers everywhere

Why the IT business model being picked on?
Many companies place people off-site, why not Dibon?
If they are benching they aren’t the best role model at the moment
But ‘til they’re proven guilty, the H-1B shouldn’t foment.

Everywhere you look, people trifling
Blaming H-1Bs for job growth stifling.
Entrepreneurs had hope with EIR and all that,
Now shaking their heads as their petitions go splat.

The H-1B should be a status built to last
Just ask Bill Gates, he’ll tell you: you better move fast
He’s lucky.  He has options. Like Canada, where he can bail to.
What about everyone else, what should they do?

Lobby, lobby, just like Mark Z. do!
It’s not about mentality it’s about economic need and reality
Lobby, lobby

Hopin’ you sophisticated politicians hear what they have to say.

And yes, April Fools!