Until Further Notice! Why PERM Applications Must Continue To Be Error-Free?

By:  Anand G. Sinha*

In a recent decision, Matter of Cisco Systems, Inc. 2012-PER-01179 (June 9, 2016), the Board of Alien Labor Certification Appeals (BALCA) reaffirmed its hardline stance that modifications cannot be made to filed labor certification applications under Program Electronic Review Management (PERM). Although this decision hardly comes as a surprise as the mandate that PERM applications must be “letter-perfect” is commonly accepted, it serves as an important reminder to employers and practitioners alike, that the ETA Form 9089 must always be prepared with tremendous care and diligence.

Matter of Cisco Systems, Inc. involved a denied PERM application filed by the employer for a “software engineer” position. The PERM was denied on the grounds that the employer failed to state the position’s actual requirements.  As a brief background on the case, the employer had attested on the ETA Form 9089 that its minimum requirements included twenty-four months of relevant work experience.  The employer failed to demonstrate in the description of the foreign national’s work experience that the he actually possessed the twenty-four months of relevant experience at the time of hire.  Subsequently, the Certifying Officer (CO) denied the application on the grounds that since the employer was willing to hire a foreign worker who did not possess the requisite twenty-four months of experience then this could not be the employer’s actual minimum requirement.  The employer had not presented any evidence of an applicable exception such as experience gained with the employer in a substantially different occupation or an infeasibility to train a worker for the position.

The employer appealed the denial on a number of grounds including an argument that a typo-graphical error had caused some of the foreign national’s pre-hire work experience to be omitted from the ETA Form 9089 and that the foreign national actually met the minimum requirements of the position, and therefore the CO should have allowed a modification to the application in light of procedural due process rights and fundamental fairness. Although BALCA upheld the CO’s denial and rejected the numerous arguments advanced by the employer, it was BALCA’s dismissal of the due process and fundamental fairness violations accompanied by an extensive discussion of its own litany of cases on this issue that was most troubling.  In fact, in a rather nonchalant manner, the Board held, “It is well settled that an employer may not modify its application post-filing.”

This blanket statement by BALCA denotes the relative inability for an employer to respond to the PERM audit or denial, including those denials arising from the “fatal” typographical error. A brief overview of the evolving nature of law on this topic may be appropriate at this stage.  One of the most seminal decisions in this realm is the very first decision rendered by BALCA.  Over ten years ago, BALCA issued its decision in HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006) which posited the concept of “harmless error.”  In this case, BALCA held that the denial of the PERM application based on a typographical error was unwarranted but warned that its holding was applicable to the particular facts at hand.  In 2007 however, the DOL’s Employment and Training Administration amended the PERM regulations and issued a final rule codified at 20 C.F.R. § 656.11(b) which as of July 16, 2007, prohibited any requests for modifications to an application once it had been submitted.  Since the issuance of the final rule in 2007, employment-based practitioners have tested the waters by attempting to save PERM applications that had been submitted with some type of error or discrepancy.

A review of the case law, as BALCA has delineated in Cisco Systems, would tend to support the proposition that harmless error has become less viable over time.  Two of my colleagues have written on the changing legal landscape with respect to post-filing modifications in PERM applications since the Final Rule was implemented in in past blogs.  In his 2010 blog, Cyrus Mehta explained how BALCA’s decision in Mater of Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) may allow for additional opportunities for an employer to provide supplemental evidence once the PERM has been denied.  In this case, and as the Board also referenced in Cisco Systems, there may be an opportunity to present additional evidence in response to a PERM denial.  If the employer received a denial without first receiving an audit, then the Board has held that employers may provide supplemental evidence that supports a correction of the error at issue.  As noted by the Board, this opportunity to present supplemental evidence is only applicable in a small set of circumstances.  The employer must have maintained the supplemental evidence as part of their regular record-keeping file for PERM applications, it must have existed at the time the PERM was filed, and the employer was not provided with prior opportunity to provide this evidence through an audit response.

In addition, Cora-Ann Pestaina’s 2013 blog expounded upon BALCA’s narrowed acceptance of attempts to make post-filing modifications to PERM applications as posited by the PERM denial in Matter of Sushi Shogun 2011-PER-02677 (May 28, 2013).  That case involved the denial of an application because of a 10-cent difference between the offered wage on the relevant prevailing wage determination and the corresponding ETA Form 9089.  BALCA enforced the doctrine of strict compliance in that PERM applications adhere to the regulations and essentially be error-free and letter perfect and held that its hands were tied as a result of the final rule.

In Cisco Systems, BALCA pointed to decisions that have sometimes been used by practitioners in a strategic attempt to respond to a PERM denial.  The Board distinguished them to further demonstrate that HealthAmerica is no longer viable. These cases have proven to be a source of hope in the past for those PERM applications that would otherwise appear to be doomed. Yet BALCA’s insistence on being letter-perfect has been the prevailing viewpoint as articulated in Cisco Systems.   For example, BALCA distinguished the decision in Matter of Pa’Lante, 2008 PER 00209 (May 7, 2009), a case that arguably dealt with an analogous fact pattern as Cisco Systems and in which BALCA forgave the error made by the employer.  For a detailed discussion of Matter of Pa’Lante, please see Cyrus Mehta’s blog here. The error omitted the foreign worker’s prior work experience but BALCA allowed the employer’s modification based on the fact that the underlying PERM application was filed prior to the effective date of the 2007 final rule.  Other BALCA decisions were also carefully written off as inapplicable to support a post-filing modification to a PERM application including Moreta & Associates, Int. 2009-PER-00008 (August 6, 2009), O’Connor Hospital, 2011-PER-76 (Mar. 5, 2012), and Subhashini Software Solutions 2007-PER-00043 (Dec. 18, 2007).  Through its holding in Cisco Systems BALCA has effectively maintained its hardline stance against modifications and this once again serves as a warning to employers and practitioners to be letter-perfect and error free in their preparation of the ETA Form 9089.

Nonetheless, employers and practitioners should not be utterly discouraged in the event that a typographical error was made on a submitted ETA Form 9089. For example, in Matter of Heso Electric, 2010-PER-00670 (April 21, 2011), BALCA vacated and remanded a PERM that was issued a denial by the CO.  In this particular case, the employer failed to make a selection for box M-1, which asked whether or not the application was completed by the employer.  However, BALCA reasoned that the employer did provide the name and signature of the preparer later on in the ETA Form 9089, and therefore asked the CO to reconsider the issue.

Moreover, this author has also anecdotally had a positive experience with a labor certification denial. A Request for Reconsideration was filed on a PERM denial issued without having been issued an audit. The underlying typographical error on the ETA 9089 concerned the wrong box checked off on question H.13 which asked if knowledge of a foreign language was required to perform the job duties of the position.  The employer inadvertently marked yes instead of no, and the CO denied the PERM on the grounds that it could not determine the actual minimum requirements of the position as there was no indication of the foreign national possessing knowledge of a foreign language.  In the Request for Reconsideration, the typographical error was acknowledged and the employer stated that a foreign language requirement was never an actual minimum requirement for the position.  The denial was clearly issued in error and fundamental fairness and good faith arguments won the day.  Despite the reality of strict compliance being the de-facto rule of law that particular PERM application was subsequently approved by the CO.  This experience demonstrates that fundamental fairness is not an argument that should ever be completely cast aside.  Although the nature of the error and the existence of relevant evidence to rebut the error are important factors to consider, there are limited circumstances through which HealthAmerica lives on.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice.)

* Anand G. Sinha has recently joined Cyrus D. Mehta & Partners PLLC as an Associate.

Who Should Get Notice When An I-140 Petition Is Revoked? It’s The Worker, Stupid!

The ability for a foreign national worker to move to a new job is crucial in an age of never ending backlogs in the employment-based (EB) immigrant visa preferences. If an I-485 application for adjustment of status has been filed and been pending for more than 180 days, under INA 204(j), the I-140 immigrant visa petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer.

There are many who filed I-485 applications when the July 2007 visa bulletin was current, and then retrogressed, who are still waiting in the never ending EB-3 India backlog. For them, 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice o the USCIS’s intent to revoke?

Courts seem to be agreeing that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-495 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

These were indeed the facts in the recent Seventh Circuit decision of Musunuru v. Lynch. Like the Second Circuit in Mantena v. Johnson, the Seventh Circuit agreed that the original employer should not be getting notice of the revocation despite the government asserting that under 8 CFR 103.3(a)(1)(iii)(B) only the petitioner is considered an “affected party.” While in Mantena, the Second Circuit left open whether the new employer or the beneficiary of the I-140 petition should get notice,  the Seventh circuit in Musunuru quite adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

We so hold because Congress intends for a nonimmigrant worker’s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress’s intention, the new employer must be treated as the de facto petitioner for the old employer’s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.

While the Seventh Circuit is yet one more court that has held that the original employer is not exclusively entitled to notice of the revocation, it is disappointing that the court insisted that the new employer must be treated as a de facto petitioner. There is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

While the USICS has yet to promulgate a rule implementing INA 204(j), the current policy of the USCIS is to transfer ownership of the pending green card application to the foreign worker who can demonstrate that s/he has moved to a job in a same or similar occupational classification under INA 204(j). Indeed, according to USCIS policy, such a worker can also port to self-employment. The most recent USCIS guidance on 204(j) portability in footnote 4 confirms long standing USCIS policy that allows a foreign worker to move to self-employment:

An alien may port to self -employment under section 204(j) of the INA as long as all eligibility requirements are satisfied. First, as with all other portability determinations, the employment must be in a “same or similar” occupational classification as the job for which the original I-140 petition was filed. Second, the adjustment applicant should provide sufficient evidence to confirm that the new employer and the job offer are legitimate. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must also have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 petition and supporting documents themselves as evidence of such intent, but in certain cases additional evidence or investigation may be appropriate. See Memorandum of Michael Aytes, Acting Director of Domestic Operations, USCIS, “Interim Guidance for Processing I-140 Employment-Based Immigrant Petitions and I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty -first Century Act of 2000 (AC21) (Public Law 106-313)” (Dec.27, 2005).

The holding in Musunuru does not square with USCIS policy that allows a worker to be self-employed under INA 204(j). In the context of self-employment, the worker can set up his or own company, but may also exercise 204(j) portability as a sole proprietor. Under these circumstances, there may not be a separate employer who has become the de facto new petitioner, unless the USCIS recognizes under these circumstances that the worker is the de facto petitioner. The Seventh Circuit’s holding is also not in line with the Sixth and the Eleventh Circuits. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b) makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Even older decisions have recognized standing for the beneficiary in a labor certification application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the beneficiary’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory,  it recognized the standing of the worker to seek review of the denial of a labor certification.  An even older case, Gladysz v. Donovan,  provided further basis for worker standing regarding a labor certification application. In Gladysz, the worker sought judicial review after the employer’s labor certification had been denied, rather than challenged his inability to seek administrative review under the applicable DOL regulations, and the court agreed that the worker had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The Seventh Circuit decision in Musunuru, while good in principle as it allows someone other than the original petitioner form exclusively getting notification, may create additional burdens on new employers, thus hindering job mobility for backlogged workers. There is a possibility that if the new employer is treated as the de facto I-140 petition, it may have to continue to demonstrate ability to pay the worker, and may be subject to filing a new I-140 petition on behalf of the alien beneficiary. All this would run counter to the spirit and intention behind INA 204(j), which is clearly alien centric in nature and focuses on the ability of the foreign worker to exercise job mobility, and for the worker to demonstrate that he or she has sought a new job in an occupational classification that is same or similar to the one that was the subject of the I-140 petition. Already in the proposed rule, Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers, there is an unnecessary imposition on the new employer at new 8 CFR 245.25(b)(12)(i) and (ii) when the worker exercises 204(j) portability. The proposed rule requires the new employer to sign a written attestation describing the new employment offer, stating that the employer intends the applicant to commence employment within a reasonable period upon adjustment of status, and that the employment offer and the employment offer under the approved petition are in the same occupational classification.

This imposition on the new employer is quite unnecessary as it is the foreign worker who has been making the 204(j) case till now, supported by a new job offer letter from the new employer. The new employer is not required to make a 204(j) argument on behalf of the worker. Still, the new employer is not recognized as the de facto petitioner in the proposed rule. The Seventh Circuit’s decision in Musunuru may change this, and possibly incentivize USCIS to impose further burdens on the de facto petitioner such as demonstrating the new employer’s financial ability to pay the proffered wage. It is thus important to ensure that other courts do not follow the precise holding of Musunuru, and insist that the worker as the beneficiary of the I-140 petition be primarily entitled to notification. As advocated in a prior blog, the proposed rule must include that the beneficiary of an I-140 petition has the right to receive and respond to any notice regarding potential revocation of the I-140 petition. The rule must specify that it is the beneficiary who should have this right, and not the new employer as the de facto petitioner. Such a regulatory change would once and for all settle the matter in favor of the worker who ought to be able to exercise job mobility unfettered under INA 204(j).

Close, But No Cigar! Meaning Of Affiliation For Purposes Of H-1B Cap Exemption

By Anand G. Sinha*

The annual numeric limitation on the issuance of H-1B visas has been written about extensively in prior posts.  It is no secret that the H-1B cap, as it is commonly referred to, has crushed the dreams of both prospective foreign employees and disappointed employers trying to secure high-skilled labor.  In an attempt to relieve pressure from the cap, Congress carved out certain exemptions to the H-1B cap, including for institutions of higher education and “related or affiliated nonprofit” entities.  Interestingly enough, due to a lack of clear guidance and improper rulemaking by USCIS, the meaning of the word “affiliation” still lies in murky waters.

The origin of the H-1B cap exemption regulations traces its roots to the American Competitiveness in the Twenty-First Century Act (AC21) passed in October 2000. As a result, pursuant to § 214(g)(5)(A) of the Immigration and Nationality Act, the annual numerical limitations on issuance of H-1B visas do not apply to a non-immigrant alien who “is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity.” AC21 was meant to be and is virtually universally recognized as a “generous” or “remedial” provision.  Since Congress did not specifically define the terms “related or affiliated” in the context of H-1B cap exemption for nonprofits that demonstrated affiliation with an institution of higher education, USCIS took it upon itself to hunt for a definition of these terms.

Subsequently, on June 6, 2006, Michael Aytes, the Associate Director of Domestic Operations of USCIS at the time, issued an Interoffice Memorandum entitled, “Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).” In this memo, Aytes decided that the most obvious place to search for a definition of “related or affiliated” would be the H-1B regulations themselves.  Although this may seem to be a logical decision, its actual implementation has backfired.  This memo inexplicably instructed field offices to apply the definition of “related or affiliated” found in the American Competitiveness and Workforce Improvement Act (ACWIA).

ACWIA, in contrast to AC21 was a restrictive statute issued in November 1998 (more than two years prior to the issuance of AC21), implementing the ACWIA training fee. Following the statutory mandate of ACWIA, the regulation imposed a $500 fee on H-1B petitioners (which has since been increased through subsequent amendments), excluding institutions of higher education, their related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. ACWIA provided a definition of those nonprofit entities that are affiliated with or related to institutions of higher education for fee exemption purposes and the definition is now codified in the regulation found at 8.C.F.R. § 214.2(h)(19)(iii)(B), which provides: “A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative or subsidiary.” It appears that the affiliated non-profit entity has to truly be part of the institutional of higher education, such as a teaching hospital within a university. Demonstrating affiliation in other ways, such as joint programs between a university and a non-profit entity, have otherwise been scrutinized by the USCIS and not been readily approved, although this should not discourage petitioners from creatively trying to make a claim for affiliation especially when the H-1B cap has been reached.

Interestingly enough, at the time 8 C.F.R. § 214.2(h)(19)(iii)(B) was published the AC21 had not yet been enacted and hence, there were no exemptions from the H-1B cap at that time and this regulation was clearly not meant to govern H-1B cap exemptions. To date, there has been no regulation published to define which nonprofits are “affiliated” or “related” to an institution of higher education as it relates to AC21.  Moreover, the June 6, 2006 memo was issued without going through the rulemaking process required by the Administrative Procedures Act (APA), including publication of the proposed rule in the Federal Register and accepting and considering any submitted comments prior to issuing a final rule.

AC21 was a remedial statute enacted to fix problems that plagued employers and foreign nationals alike. In enacting AC21, Congress liberalized H-1B law, easing up on prior restrictions and roadblocks by substantially increasing the numerical cap. This begs the conclusion that when Congress wrote the H-1B cap provision, it meant the statute to have broad application and impact and that it meant what it plainly said: nonprofit entities related to or affiliated with institutions of higher education are exempt from the cap. Accordingly, USCIS ought to give the H-1B cap exemption provision the broad and liberal construction that Congress intended it to have.  Through the June 6, 2006 Memo as well as an Interim Policy Memorandum issued on April 28, 2011 entitled, “Additional Guidance to the Field on Giving Deference to Prior Determinations of H-1B Cap Exemption Based on Affiliation”, USCIS adopted a narrow, restrictive definition of “affiliated” and “related,” which runs counter to both the presumed liberal and broad definition Congress intended, as well as to the reality of the higher education system in the United States and their relationships with nonprofits.

 In recent years, the American Immigration Lawyers Association (AILA) has advocated that USCIS look for definitions of “affiliation” and “affiliated” elsewhere and has suggested that instead of looking at ACWIA, which did not involve numerical limitations from the H-1B cap, USCIS could easily have found a definition of the term consistent with Congressional intent elsewhere in the Immigration and Nationality Act (INA). For instance, Congress has defined the term “affiliation” in INA § 101(e)(2), which provides: (e) For the purposes of this Act— (2) The giving, loaning, or promising of support or of money or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation.

AILA also referenced the fact that the term “affiliated” is broadly interpreted in other immigration regulations including those concerning student visas and permissible employment authorization as well as those governing special immigrant religious workers. For example under 8 C.F.R. § 214.2(f)(9)(i), on-campus employment may be performed at an off-campus location and still be deemed as on-campus employment if the off-campus location is shown to be “educationally affiliated” with the school. This is demonstrated only if the off-campus entity is “associated with the school’s established curriculum” or “related” to contractually funded research projects at the post-graduate level. Similarly, under INA § 1101(a)(27)(C)(ii)(III), an immigrant may qualify as a religious worker if he seeks entry to work for “a bona fide organization which is affiliated with the religious denomination.” Under 8 C.F.R. §204.5(m)(2)(5), the term bona fide organization which is affiliated with the religious denomination is defined as a nonprofit organization which is “closely associated with the religious denomination.” These two regulatory provisions do not even slightly suggest that the organization must be controlled by the same board or federation as the religious denomination, or be attached as a member, branch, cooperative, or subsidiary.

In an effort to address the lack of proper guidance on this issue, DHS issued a proposed rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” which suggest that a broader interpretation of the terms “related or affiliated nonprofit entity” be used as related to INA § 214(g)(5)(A).  In the preamble to the proposed rules, DHS emphatically acknowledges the lack of adequate guidance having been issued regarding the definition of “affiliated or related nonprofit entities.”

“DHS intends to improve on current policy, however, by proposing additional means by which nonprofit entities may establish a sufficient relation or affiliation with an institution of higher education….In particular, based on its experience in this area, DHS believes that the current definition for ‘affiliated or related nonprofit entities’ does not sufficiently account for the nature and scope of the common, bona fide affiliations between nonprofit entities and institutions of higher education. To better account for such relationships, DHS proposes to expand on the current definition by including nonprofit entities that have entered into formal written affiliation agreements with institutions of higher education and are able to meet two additional criteria.  First, such entities must establish an active working relationship with the institution of higher education.  Second, they must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education”

The proposed fourth prong to 8.C.F.R. § 214.2(h)(19)(iii)(B) would read as follows: “A nonprofit entity shall be considered to be related to or affiliated with an institution of higher education if: “(4) The nonprofit entity has, absent shared ownership or control, entered into a written affiliation agreement with institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research and/or education, and a primary purpose of the nonprofit entity is to directly contribute to the research or education mission of the institution of the institution of higher education.“ This proposed change casts a wider net on the nonprofit entities that would be entitled to cap exemption, and should be readily adopted.

If the true meaning and purpose behind AC21 and the advent of cap exemption is to be realized, USCIS should look to define affiliation in broader terms as the proposed rules aim to do. Only then will nonprofits that further the mission of the institutions of higher education to which they are affiliated with, be afforded the opportunity to hire the high-skilled labor they are in desperate need of.

(This blog is for informational purposes only and should not be considered as a substitute for legal advice.)

*Anand G. Sinha has recently joined Cyrus D. Mehta & Partners PLLC as an Associate.


Trump vs. Outstanding Immigrant Khizr Khan

It is poetic justice that Khizr Khan, a Muslim and an immigrant, has been able to take on Trump and trounce him. Trump has derided both Muslims and immigrants with the objective of pandering to his base of white male voters.  After Mr. Khan’s strong repudiation of Trump, he is no longer looking as invincible as he did before.

Mr. Khan, and his wife Ghazala Khan, are the parents of Captain Humayun Khan who was killed in combat in Iraq in 2004. After ordering his subordinates away from a suspicious vehicle, Captain Khan bravely ran forward 10–15 steps and was killed by a suicide car bomber. He was posthumously awarded the Bronze Star Medal and the Purple Heart, and is buried in Arlington National Cemetery.

Mr. Khan, with Mrs. Khan by his side, gave a stirring speech at the Democratic National Convention. He rebuked Trump for his proposed ban on Muslims, and he famously took out a copy of the US Constitution from his jacket pocket and asked Trump whether he had ever read the document. Following the speech, Trump insinuated that Mrs. Khan did not speak because she may have not been allowed to do so as a Muslim. Mrs. Khan, who taught Persian at a college in Pakistan before immigrating to the United States and was perfectly capable of speaking, later explained that she was too grief stricken to speak about her dead son, but she still stood nobly by Mr. Khan’s side while he spoke in his honor. After Mr. Khan’s speech and Trump’s criticism of the Khans having backfired, Trump’s standing in recent polls has slumped. Mr. Khan has been able to achieve what no one else has been able to do as effectively, including the unsuccessful efforts of several outstanding Republican candidates whom Trump trounced in the primaries. When Trump spoke at a rally in Portland, Maine, on Thursday night, he was met with at least 50 protestors, inspired by Mr. Khan, who held pocket-sized constitutions.

Mr. Khan is an outstanding immigrant who has done a great service to America by exposing how antithetical Trump’s values are to long cherished American values of freedom, liberty and equality.  We often extol about how foreign graduates in Science, Technology, Engineering and Math (STEM) fields benefit America, but Mr. Khan has shown that an immigrant lawyer can also make outstanding contributions. He has driven the point home with amazing courage, grace and conviction that anyone in America can stand up, make a point and be heard – be it in public life or other fields of endeavor.  Immigrants from all walks of life, whether they are scientists, journalists or chefs, make contributions and provide a different point of view, which ultimately benefit their adopted country. While on first brush, Trump can legally institute deportation proceedings against the 11 million who are here in an undocumented capacity, Mr. Khan pointed out in a CNN interview with Don Lemon on Monday night that this would cause a constitutional crisis. I first scratched my head, but then Mr. Khan added that Trump would have to rely on state enforcement – sheriffs and police – to apprehend all the millions of undocumented, and I realized that this would violate the Preemption Clause in the US Constitution. The enforcement will likely be uneven with Muslims being targeted more than others. There will be mistakes as US citizen children of undocumented parents will get picked up. Targeted immigrants will likely be sloppily served with notices to appear before an Immigration Judge, and may miss their hearing resulting in a deportation order in absentia.

Mr. Trump’s Muslim ban, which has now been replaced with a ban against people from countries that have been compromised by terrorism, will cripple the US immigration system. Mr. Khan blasted Trump by stating that if his ban were implemented, his son “never would have been in America.” The ban would cover many countries, including potentially countries in Europe such as France and Belgium. It would require a massive bureaucracy to interrogate would be applicants to America regarding their religious views and beliefs. In addition to being a bureaucratic nightmare, it would undermine America’s strongly held notion of religious freedom. The simple act of pulling out a US constitution from his jacket pocket during Mr. Khan’s speech in defiance of Trump’s blighted worldview resonated deeply in the hearts of millions of Americans.

I will continue to cheer Mr. Khan for his courage and audacity in exposing a presidential candidate who has made scapegoats of immigrants, and cast them in such a derogatory light. Trump has also branded refugees fleeing persecution as terrorists, even though America since its very inception has been the beacon of hope for people fleeing persecution. Trump’s idea of a wall on the Mexican border will do nothing to fix the broken immigration system, and the billions of dollars spent on the wall could be better spent on other public infrastructure projects, including high speed rail and other 21st century cutting edge transportation systems.  Such projects would also benefit through partnerships with innovative companies founded by immigrants.  Cheering for the Khans is no longer a partisan issue. Whether one is Democrat or Republican, all should be concerned about Trump’s undermining of the basic values of decency, compassion and the diminution of America’s exalted status as a nation of immigrants. While Trump’s poll numbers may be down, fair minded people who care for America should not become complacent. Mr. Khan started the movement against Trump with his speech, and we must continue to repudiate Trump. The only way America can restore its reputation, now sullied by the way Trump so ineptly and mean-spiritedly views the world, is to ensure that he is not just defeated on Election Day, but he loses so badly that future Trumps will have no chance of rising again.

Mr. Khan will be given many awards, but we immigration lawyers must also honor him. I therefore urge that the American Immigration Lawyers Association bestow Mr. Khan one of its highest awards at its next annual awards ceremony, and the American Immigration Council honor both Mr. and Mrs. Khan at its next gala event that honors immigrant achievement.