Will the Disruption of the H-1B Lottery Force Change for the Better?

A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery recently overcame a motion to dismiss, and will move forward. There is a decent chance that the plaintiffs may prevail and employers will no longer be subject to the H-1B lottery. The annual H-1B visa cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely prospect of being rejected by an opaque randomized lottery.

The lawsuit asserts that the H-1B lottery contravenes the law, and points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” This suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. The parallel provision, INA § 203(e)(1), for immigrant visas reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B nonimmigrant visa petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

The government in Tenrec, Inc. v. USCIS filed a motion to dismiss for lack of subject matter jurisdiction. In its motion, the government argued that the individual plaintiffs did not have standing because only employers have standing to challenge the H-1B program. The employers too, according to the government, did not show sufficient injury and thus did not have standing.  In a September 22, 2016 decision, Judge Michael Simon rejected the government’s lack of standing claims on both counts. Judge Simon referenced other recent federal court decisions that have ruled that foreign workers who are beneficiaries of immigrant visa petitions have been allowed to challenge their denials, and be given notice of them. This trend has been discussed in my recent blog, Who Should Get Notice When the I-140 Petition Is Revoked? It’s The Worker, Stupid! What is interesting in Judge Simon’s decision is the notion that standing can also extend to nonimmigrant workers. As the recipient of an H-1B visa can become a permanent resident through subsequently filed applications following the grant of H-1B status, there is no distinction between the beneficiary of a nonimmigrant visa petition with an immigrant visa petition. Even if the individual H-1B visa plaintiffs cannot become permanent residents, Judge Simon noted that they are still “more than just a mere onlooker” because their status would be in jeopardy and would lose an opportunity to live and work in the United States, as well as enjoy life here. Judge Simon also held that the employers had standing notwithstanding that the H-1B lottery already occurred since it was likely that the employer could lose in next year’s lottery. This holding in itself is invaluable for providing standing to nonimmigrant visa holders in future challenges even if the plaintiffs are not victorious here.

Even if the plaintiffs succeeding in knocking out the H-1B lottery, they will not be able to readily access the H-1B program. The annual H-1B cap will still be limited to 65,000 per year for applicants with bachelor’s degree, and an additional 20,000 for those with master’s degrees. It will be somewhat similar to the priority date system for immigrant visas that face years of backlogs, and the EB-2 and EB-3 India backlogs is currently several decades long. Although the underlying labor condition application of an H-1B petition is valid for only three years, under a redesigned filing system devoid of the lottery, an LCA could potentially be submitted and activated once the priority date for that H-1B petition becomes current.

While the H-1B lottery benefits employers who file many petitions each year (as they can then at least hope to win some in the lottery), there is already a wait list for most, especially smaller employers who file for one employee.  If the employer loses two or three lotteries before getting a number for that prospective employee, this in any event becomes a de facto waiting list.   The fact that some lucky ones get in the first time does not mean that most will not be subject to a wait list. While a wait list system for all will be fairer than a randomized lottery for a lucky few, it will create pressure for the administration to tweak the system or for Congress to create more access to H-1B visas. Regarding tweaking the system, I have previously argued that beneficiaries of approved H-1B petitions on the wait list should on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

While U visa recipients already in the United States on a wait list can seek deferred action, the USCIS has also recently agreed to grant parole to U visa petitioners and family members based overseas when the 10,000 annual limitation has been reached.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on certain narrow criteria.    Critics of the H-1B program, and there are many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued by anti-H-1B interest groups, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as students who have received Optional Practical Training, be granted deferred action as wait listed H-1B beneficiaries. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf. One could also throw in a requirement that the employer register under E-Verify in order to qualify, and this would expand E-Verify to many more employers, which is one of the government’s  goals as part of broader immigration reform.

Of course, people have gotten comfortable with the status quo, but the H-1B lottery is problematic and thus not worthy of preservation. By turning the lottery on its head, it is hoped that there will be real change for the better. Ideally, Congress should bring about change by creating more H-1B visa numbers, although given that the H-1B visa program has already been poisoned due to the misconception that H-1B workers take away US jobs, other restrictions in exchange for more H-1B numbers will become inevitable, such as forcing employers to recruit before filing for an H-1B visa or by creating more restrictions on dependent H-1B employers. Still, disruption is the order of the day, and if we have witnessed seismic disruption in the taxi industry through Uber or the hotel industry through Airbnb, why not also disrupt the H-1B lottery through a lawsuit in hope for positive change? As Victor Hugo famously said – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be contributing to the United States today through their careers and tax dollars? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule?  Moreover, the new proposed parole entrepreneur parole rule is also worthy of emulation in place of  a disrupted H-1B lottery program. If deserving entrepreneurs can receive parole, so can deserving H-1B beneficiaries who are waiting in a queue that may be more fair than the lottery.  Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press this administration and the next with good ideas. The lawsuit to end the H-1B lottery is one such good idea. It should be embraced rather than feared in the hope that it will first dismantle and then resurrect a broken H-1B visa program.

Expansion of the Provisional Waiver: Good News, But Could Be Better

On July 29, 2016, USCIS published in the Federal Register the final version of a previously-proposed rule expanding the provisional waiver program.  The new rule, Expansion of Provisional Unlawful Presence Waivers of Inadmissibility, 81 Fed. Reg. 50,244, was effective August 29, 2016, so the newly expanded program is now available.

The provisional waiver program, which first began in 2013 as discussed in a previous post by this author, pertains to certain applicants for an immigrant visa who will be inadmissible under INA §212(a)(9)(B) for three or ten years following their departure from the United States due to their previous unlawful presence in the United States of more than 180 days or at least one year—who face the so-called three-year bar or ten-year bar.  These applicants, under the provisional waiver program, can use Form I-601A to apply for and (provisionally) receive a waiver of inadmissibility under INA §212(a)(9)(B)(v), based on a showing of extreme hardship to a qualifying relative, before departing the United States to apply for an immigrant visa.  This is in contrast to the usual system of applying for a waiver on Form I-601, which in the immigrant-visa context is only possible after already leaving the United States and having one’s immigrant visa interview.

The most notable change effected by the new provisional waiver rule is a significant expansion of the set of those eligible to use the provisional waiver process.  Previously, the provisional waiver was only available to beneficiaries of a visa petition filed by an immediate relative, that is, a petition filed by a U.S. citizen spouse, son or daughter over age 21, or parent in the case of a beneficiary under 21.  It was also only available if the qualifying relative for the §212(a)(9)(B)(v) waiver was a U.S. citizen, even though the statute allows a §212(a)(9)(B)(v) waiver to be granted based on a showing of extreme hardship to a spouse or parent who is either a U.S. citizen or a Lawful Permanent Resident.

Under the new rule, on the other hand, the provisional waiver can be sought be anyone with a U.S. citizen or Lawful Permanent Resident spouse or parent to whom extreme hardship is sought to be shown, and this is so independent of the basis that qualifies the applicant to apply for an immigrant visa in the first place.  For applicants who meet the other requirements for a provisional waiver, the new rule only requires that the applicant

Has a case pending with the Department of State, based on:

(A) An approved immigrant visa petition, for which the Department of State immigrant visa processing fee has been paid; or

(B) Selection by the Department of State to participate in the Diversity Visa Program under section 203(c) of the Act for the fiscal year for which the alien registered.

8 C.F.R. §212.7(e)(3)(iv) (2016).  It no longer matters whether the petition is an immediate-relative petition, a family-based preference petition, or an employment-based preference petition, and even winners of the diversity-visa lottery can make use of the provisional waiver program if they have a qualifying relative.

While the main text of the new rule arguably does not make clear whether this expansion includes derivative beneficiaries of preference petitions (who have a case based on accompanying or following-to-join a petition beneficiary rather than based on their own petition), several clues in the preamble to the rule strongly imply that it does.  The preamble to the new rule describes the proposed rule as having “proposed to expand the class of individuals who may be eligible for provisional waivers beyond certain immediate relatives of U.S. citizens to all statutorily eligible individuals regardless of their immigrant visa classification.”  81 Fed. Reg. at 50,245.  The preamble also describes “inclusion of derivative spouses and children” as a topic on which DHS received no comments.  Id. at 50,248.  Finally, and most clearly, the preamble says of a redesign of the Form I-601A that “DHS agrees with the need to collect additional information, as suggested by the commenters, in light of this final rule’s extension of eligibility for the provisional waiver to spouses and children who accompany or follow to join principal immigrants.”  Id. at 50,272.  Thus, it strongly appears that the rule’s reference to having a “case pending with the Department of State, based on . . . An approved immigrant visa petition,” 8 C.F.R. §212.7(e)(3)(iv)(A), is not restricted to instances in which the case pending with the Department of State is based on an approved immigrant visa petition for the applicant him- or herself.  The pending case may, rather, be based on an approved immigrant visa petition for the applicant’s spouse or parent, as well.  (Children will relatively rarely need to make use of a provisional waiver, since they are exempt from accruing unlawful presence for §212(a)(9)(B) purposes until age 18 pursuant to INA §212(a)(9)(B)(iii)(I), but there will be some cases of unmarried derivative beneficiaries over the age of 18-and-a-half whose actual age or adjusted age under the Child Status Protection Act is under 21 and who therefore still qualify as children for purposes of accompanying or following-to-join their parent.)

Another expansion of the program relates to applicants who might conceivably face some other ground of inadmissibility.  The “reason to believe” standard regarding other potential grounds of inadmissibility, which had caused much confusion in the past, has been eliminated. 81 Fed. Reg. at 50,253-50,254, 50,262.  DHS will no longer deny a provisional waiver based on mere “reason to believe” that some other ground of inadmissibility besides INA §212(a)(9)(B) might apply.  However, 8 C.F.R. §212.7(e)(14)(i) will continue to provide that if some other ground of inadmissibility is found by DOS to exist at the time of the visa interview, the provisional waiver will automatically be revoked, and the applicant will need to seek a regular waiver of the unlawful-presence inadmissibility along a waiver of the other ground of inadmissibility (if a waiver of the other ground of inadmissibility is even available).  Thus, it will be crucial for applicants and their attorneys to ensure as best they can, before a provisional waiver applicant departs the United States for a visa interview, that no other grounds of inadmissibility will be found to exist.

Another expansion of the program relates to removal orders.  The bar on applications for provisional waiver by individuals in active removal proceedings that have not been administratively closed remains, but the bar on applications for those facing final removal, deportation, or exclusion orders has been modified.  81 Fed Reg. at 50,262.  Pursuant to new 8 C.F.R. §212.7(e)(4)(iv), such individuals with a final order can seek a provisional waiver if they have previously obtained permission to reapply for admission through an approved Form I-212 under 8 C.F.R. §212.2(j).  They cannot file the I-601A and I-212 concurrently, as DHS believes this would introduce procedural complications, related principally to the appealability of a denied I-212, that would undermine the efficiency gains sought from the provisional waiver.  Rather, individuals subject to a final order can only proceed with the I-601A application for provisional waiver after the Form I-212 has already been approved.  81 Fed. Reg. at 50,256, 50,259, 50,262.

Individuals subject to a voluntary departure period, however, still cannot apply for a provisional waiver while that voluntary departure period is in effect.  81 Fed Reg. at 50,256-50,257.  These individuals are considered by DHS as analogous to those still in removal proceedings, and then become ineligible at the conclusion of their voluntary departure period based on the alternative removal order which has taken effect.  However, it appears that one who overstays a voluntary departure period (and thus activates the alternative removal order) could theoretically apply for advance permission to reapply for admission under 8 C.F.R. §212.2(j), and then seek a provisional waiver if advance permission to reapply were granted—although there would be a significant risk that either or both of these applications would be denied in the exercise of discretion.  Strictly speaking, neither permission to reapply under INA §212(a)(9)(A)(iii) nor a waiver of inadmissibility under INA §212(a)(9)(B)(v) are covered by the ten-year bar on many discretionary benefits that results pursuant to INA §240B(d)(1)(B) when one fails to timely depart in compliance with a voluntary departure order, but it is unlikely that DHS would look favorably upon an overstay of voluntary departure followed soon thereafter by such applications.

The new rule also clarifies the circumstances under which reinstatement of a removal order will prevent application for a provisional waiver.  Mere eligibility for reinstatement is not sufficient.  Rather, a provisional waiver will be barred only if “CBP or ICE, after service of notice under 8 CFR 241.8, has reinstated a prior order of removal under section 241(a)(5) of the [INA], either before the filing of the provisional unlawful presence waiver application or while the provisional unlawful presence waiver application is pending.”  8 C.F.R. §212.7(e)(4)(v) (2016).  Of course, the fact that the bar extends to reinstatement while a provisional waiver application is pending does make it quite risky for one subject to reinstatement to file such an application.

Another way in which the new rule expands the pool of those eligible for a provisional waiver is by eliminating the previous prohibition on grants of provisional waivers to anyone for whom DOS had acted before January 2013 to schedule a visa interview.  81 Fed. Reg. at 50,254.  A pending immigrant visa case can qualify for a provisional waiver application regardless of when it commenced, so long as registration under the approved petition has not been terminated under INA 203(g).

DHS has not, however, expanded the provisional-waiver program in all of the ways that one might have hoped.  One notable omission is the refusal to expand the program to encompass other grounds of inadmissibility for which a waiver can be sought on Form I-601, such as inadmissibility due to past fraud under INA §212(a)(6)(C)(i) that can be waived under INA §212(i), or inadmissibility due to past smuggling under INA §212(a)(6)(E) that can be waived under INA §212(d)(11) when only one’s spouse, parent, son or daughter was smuggled.  No matter how sympathetic the case, a visa applicant who smuggled his or her own child across the border, or came to the United States years ago on a false passport, will not be eligible for a provisional waiver.  The provisional waiver remains available only to one who “Upon departure, would be inadmissible only under section 212(a)(9)(B)(i) of the Act at the time of the immigrant visa interview.”  8 C.F.R. §212.7(e)(3)(iii) (2016).

The preamble to the final rule explains DHS’s reasons for refusing this sort of expansion with the following cryptic language:

Expanding the provisional waiver process to other grounds of inadmissibility would introduce additional complexity and inefficiencies into the immigrant visa process, create potential backlogs, and likely delay and adversely affect the processing of immigrant visas by DOS. Furthermore, USCIS generally assesses waiver applications for inadmissibility due to fraud, misrepresentation, or criminal history through an in-person interview at a USCIS field office. Because DOS already conducts a thorough in-person interview as part of the immigrant visa process, DHS believes that this type of review would be unnecessarily duplicative of DOS’s efforts.

81 Fed Reg. at 50,253.  At least in cases where inadmissibility is conceded and is straightforwardly subject to waiver – say, where a past entry had been with a photo-substituted foreign passport, or where one’s own child had been smuggled into the United States – it is not clear why waiving such inadmissibility would necessarily be more complex or duplicative than waiving inadmissibility due to past unlawful presence.

The genius of the provisional waiver, in its original form and its expanded form, is that it helps ensure family unity and avoid the perverse scenario in which U.S. citizens and LPRs must be separated from their relatives for an extended period of time and suffer the precise extreme hardship that an ultimately-granted waiver is designed to prevent.  This scenario is just as perverse when the inadmissibility being waived results from having smuggled one’s own spouse or child into the United States, or previously entered by fraud (but not in a provable way enabling adjustment of status as an immediate relative), as when it results from prior unlawful presence.

Unnecessary separation leading to extreme hardship could be reduced even further if consular officials of the Department of State, in connection with an approved provisional waiver, were willing to provide an indication of their views on any other potential grounds of inadmissibility before an applicant departed from the United States.  This is not consistent with current Department of State practice, but there seems no statutory bar to it if the governing regulations were amended appropriately.  Under the “pre-examination” procedure that was in place prior to the creation of adjustment of status, pursuant for example to 8 C.F.R. §142.9(b) (1943), consuls did provide written assurances regarding the sufficiency of an applicant’s documents, though a personal interview was still ultimately required.  The same sort of procedure could be put into place for provisional waivers: an applicant could submit a written record of conviction for a crime or written account of past actions thought to potentially constitute fraud or smuggling, and be advised in advance whether, if found to be credible, he or she would be denied a visa due to inadmissibility based on such a ground.  Any legal argument regarding the applicant’s potential inadmissibility on these bases could thus take place while the applicant was still in the United States, again avoiding the necessity of prolonged separation from qualifying relatives.

While the recent expansion of the provisional waiver is to be commended, including other waiveable grounds of inadmissibility, and allowing for definitive determinations regarding other grounds of inadmissibility before an applicant’s departure from the United States, would have made the program still better.  Perhaps these issues can be revisited in a future round of rulemaking.

Our Cool Bimonthly Immigration Update!

In addition to our blog, we also regularly post immigration updates twice a month on our website at www.cyrusmehta.com. The latest Mid-September 2016 Immigration Update is available at http://cyrusmehta.com/blog/2016/09/15/mid-september-2016-immigration-update/. While our blogs provide an interesting insight into an interesting contemporary immigration issue, our immigration updates comprehensively cover many significant developments twice a month. We extract, and adapt for the blog, the first two news items from the Mid-September 2016 Immigration Update regarding the State Department Visa Bulletin, which should be of interest to our readers.

State Dept. Announces Potential Visa Availability In The Coming Months

The Department of State’s Visa Bulletin for the month of October 2016 provided an overview of potential visa number availability in the coming months:

EB-1: Current

EB-2: Worldwide: Current China: Up to three months India: Up to four months

EB-3: Worldwide: The rapid forward movement of this final action date during the past year should generate a significant amount of demand for numbers. When such demand begins to materialize, the Visa Bulletin notes, it will be necessary to limit movement of this final action date.

China: Up to three months India: Up to one week Mexico: Will remain at the worldwide date Philippines: Up to three weeks

EB-4: Current for most countries El Salvador, Guatemala, and Honduras: up to two months

EB-5: Current for most countries China-mainland born: Slow forward movement

The Visa Bulletin notes that the above projections indicate what is likely to happen on a monthly basis through January based on current applicant demand patterns. However, determinations of the actual monthly final action dates are subject to fluctuations in applicant demand and a number of other variables, so the Visa Bulletin warns that these dates are not guaranteed.

At this time, the USCIS has not yet announced whether the filing dates would be applicable for purposes of filing adjustment of status applications. It should be noted, though, that for some inexplicable reason, the EB-2 filing date for India moved back from July 1, 2009 to April 22, 2009, and the EB-2 filing date for China moved from June 1, 2013 to March 1, 2013, even though the USCIS has put on hold adjustment filings under the filing date start for several months.

The Visa Bulletin for October 2016 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-october-2016.html.

State Dept. Announces Expiration of Two Employment-Based Visa Categories

The Department of State’s Visa Bulletin for the month of October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers (SR)” category and the I-5 and R-5 employment fifth preference categories.

Employment fourth preference SR. The non-minister special immigrant program expires on September 30, 2016. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on September 29, 2016. Visas issued before that date will only be issued with a validity date of September 29, 2016, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight on September 29, 2016.

The final action date for this category has been listed as “Unavailable” for October. The Visa Bulletin notes that if there is legislative action extending this category for FY 2017, the final action date would immediately become “Current” for October for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a June 15, 2015, final action date.

Employment fifth preference I5 and R5. I5 and R5 visas may be issued until the “close of business” on September 30, 2016, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2016.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for October. If there is legislative action extending them for FY 2017, the final action dates would immediately become “Current” for October for all countries except China-mainland born I5 and R5, which would be subject to a February 22, 2014, final action date.

Congress is expected to extend the EB-4 special religious worker and EB-5 immigrant investor categories as part of a bill to fund the federal government temporarily past September 30. The temporary extension is likely to last until early December. Stay tuned.

Please continue to read the rest of the news stories in our Mid-September 2016 Immigration Update.

Fewer Rights in Pennsylvania than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security

On August 29, 2016, the Court of Appeals for the Third Circuit issued its decision in Castro v. Dept. of Homeland Security, a consolidated set of habeas corpus petitions brought by asylum-seekers subject to expedited removal orders and detained within the Eastern District of Pennsylvania (likely at the Berks County Residential Center).  The Third Circuit held that the petitioners, who had been detained by U.S. Customs and Border Protection shortly after crossing the border into the United States, did not have the constitutional right to challenge their detentions in federal court other than in a very limited way under 8 U.S.C. §1252(e).  Unlike the Guantanamo Bay detainees whose habeas petitions were found by the Supreme Court to be constitutionally protected in Boumediene v. Bush, 553 U.S. 723 (2008), the Third Circuit ruled, recent unlawful entrants such as the Castro petitioners were not protected by the Suspension Clause of the U.S. Constitution, and had been stripped by Congress of their right to seek judicial review except under extremely limited circumstances not applicable here.  Given that the petitioners had no claim to be U.S. citizens or to have already been granted a lawful immigration status, they could only seek review of whether they were the persons referred to in pieces of paper signed by immigration officers that purported to be expedited removal orders.  Since they did not dispute that, the case was at an end, and the Third Circuit affirmed the district court’s order dismissing the habeas petitions for lack of subject-matter jurisdiction.

  Professor Steve Vladeck of the University of Texas School of Law (who I note, in the interest of full disclosure, was a law-school classmate of the author of this blog post) has described the Third Circuit’s opinion as “breathtaking”.  Professor Vladeck writes that it was “simply nuts” for the Third Circuit to conclude that under Boumediene “non-citizens physically present within the United States are less entitled to Suspension Clause protections than enemy belligerents captured on foreign battlefields and detained outside the territorial United States.”  This author is inclined to agree with that sentiment.  Boumediene arose because the Bush Administration had tried to keep detainees in a sort of Constitution-free zone in Guantanamo Bay, Cuba, purportedly outside the jurisdiction of U.S. courts.  (Fortunately, the Supreme Court did not let the Bush Administration “switch the Constitution . . . off” in this way, Boumediene, 553 U.S. at 765, and the ultimate outcome of Boumediene is a testament to the crucial importance of habeas review: on remand, petitioner Lakhdar Boumediene was found by the District Court to be detained without sufficient basis, was released, and as of 2012 was living in France.)  Pennsylvania is a far cry from Guantanamo Bay, and it seems very peculiar to suggest that non-citizens detained in Pennsylvania, clearly within the jurisdiction of the United States, could have a lesser constitutional right to habeas corpus than non-citizens detained in Guantanamo.

One might wonder whether the Third Circuit could have reached the same result by acknowledging the applicability of the Suspension Clause, but holding the petitioners in Castro to lack relevant constitutional rights which they could enforce through a habeas petition even if the courts had jurisdiction over such a petition.  Indeed, the government appears to have made such an argument in briefing quoted by the Third Circuit: “because Petitioners ‘have no underlying procedural due process rights to vindicate in habeas,’ Respondents’ Br. 49, the government argues that ‘the scope of habeas review is [] irrelevant.’”  Castro, slip op. at 65.   However, there would be a problem with this approach.  While applicants for admission to the United States may have limited due process rights under current Supreme Court case law, they do have some due process rights, and it appears to have been those rights which the Castro petitioners were seeking to assert.

The Supreme Court’s decision in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), cited by the Third Circuit to support its decision in Castro, held that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”  Knauff, 338 U.S. at 544.  Assuming for the sake of argument that the petitioners in Castro qualify for constitutional purposes as aliens denied entry into the United States, they would thus still be entitled, as a matter of due process, to “the procedure authorized by Congress”.  It appears that the Castro petitioners were attempting to assert that they did not receive the benefit of this Congressionally authorized procedure.

The Third Circuit’s decision in Castro describes two claims which were said to be “uniform across all Petitioners” in the case:

first, they claim that the asylum officers conducting the credible fear interviews failed to “prepare a written record” of their negative credible fear determinations that included the officers’ “analysis of why .. . the alien has not established a credible fear of persecution,” 8 U.S.C. § 1225(b)(1)(B)(iii)(II); and second, they claim that the officers and the IJs applied a higher standard for evaluating the credibility of their fear of persecution than is called for in the statute.

Castro, slip op. at 20 n.8.  These claims, grounded in the governing statute, assert that the petitioners did not receive “the procedure authorized by Congress,” Knauff, 338 U.S. at 544.  That statutory procedure includes a written record of a credible fear review, and determination according to a specified legal standard.  It is alleged by the Castro petitioners that, contrary to the statutory procedure, no such record was prepared and the specified standard was not used.  Thus, these claims would appear to be valid even under the limited degree of due process that applies under Knauff to “an alien denied entry”—even assuming for the sake of argument that this limited due process is appropriate to apply to an alien who has in fact effected an entry, albeit illegally.

Moreover, the Supreme Court in Boumediene, as acknowledged by the Third Circuit, had held that at a bare minimum any “constitutionally adequate habeas corpus proceeding” must “entitle[] the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” Boumediene, 553 U.S. at 773 (quoting INS v. St. Cyr, 533 U.S.289, 302 (2001)); Castro, slip op. at 48-49.  Thus, the constitutional habeas proceeding protected by Boumediene should, if available to the Castro petitioners, have entitled them to challenge whether their cases had been handled in accordance with 8 U.S.C. §1225(b)(1), as they were attempting to do.

To deny the Castro petitioners even the right to judicial oversight of whether they received “the procedure authorized by Congress”, therefore, the Third Circuit really did have to find them to lack Suspension Clause rights.  It was not merely a question of alternate analytic routes to the same result.  The outcome of Castro can only be justified on the basis that an applicant for asylum detained shortly after entry and held within the continental United States has less of a constitutional right to habeas corpus than an accused terrorist detained at Guantanamo Bay, and so cannot even enforce in court any constitutional or statutory rights which she may have.  This is a highly dubious proposition.

The Castro opinion’s rejection of jurisdiction over essentially statutory claims by the petitioners is particularly problematic because 8 U.S.C. §1252(e) itself can be read to permit such claims, implying that they should be allowed under the doctrine of constitutional doubt without the need to strike down the restrictions on habeas as unconstitutional.  Even the limited habeas review which §1252(e)(2) purports to allow with respect to “any determination made under section 1225(b)(1)” includes “determinations of . . . whether the petitioner was removed under such section.”  8 U.S.C. §1252(e)(2)(B).  The Third Circuit asserted in Castro that this means “review should only be for whether an immigration officer issued that piece of paper and whether the Petitioner is the same person referred to in that order.”  Castro, slip op. at 28 (quoting M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156, 1163-64 (D.N.M. 2014), vacated as moot, No. 14-769, 2015 WL 7454248 (D.N.M. Sept. 23, 2015)).  But just because an immigration officer has signed a piece of paper purporting to be an expedited removal order under section 1225(b)(1) does not necessarily mean that the order has been issued “under such section”.

Article VI of the U.S. Constitution provides that “treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” along with statutes.  No one would understand that to mean that a purported treaty, signed by the President but not ratified by the Senate, was the supreme law of the land.  This is because such a purported treaty would not truly have been made “under the authority of the United States” given the President’s failure to comply with governing procedures.  Similarly here, one could argue that a purported expedited removal order issued without compliance with the statutory requirements of a written record, a proper standard, and so on, is not actually issued “under” section 1225(b)(1), because it violates 8 U.S.C. §1225(b)(1)(B)(iii)(II) and other relevant statutory provisions.  At the least, this argument should have been enough for the Castro petitioners to invoke the doctrine of constitutional doubt.  The Third Circuit, however, held that in asserting constitutional doubt regarding the meaning of §1252(e)(5), the petitioners in Castro “were attempting to create ambiguity where none exists.”  Castro, slip op. at 26-27.

The courts may not be able, under the statute, to review “whether the alien is actually inadmissible or entitled to any relief from removal,” 8 U.S.C. §1252(e)(5), as the Third Circuit pointed out.  Castro, slip op. at 26.  However, “[i]n determining whether an alien has been ordered removed under section 1225(b)(1),” the courts are authorized by the statute to review whether “such an order in fact was issued and whether it relates to the petitioner.”  8 U.S.C. §1252(e)(5).  The reference to “such an order” relates back to another reference to removal “under section 1225(b)(1)”—and, once again, 8 U.S.C. § 1225(b)(1)(B)(iii)(II), relating to the necessity of a written record, is just as much a part of 1225(b)(1) as any other part, so that it is at least unclear whether an order issued in violation of 8 U.S.C. § 1225(b)(1)(B)(iii)(II) is issued “under section 1225(b)(1)”.  In its assertion that there is no relevant ambiguity in the statute, as in its constitutional analysis, the Castro panel opinion strikes this author as unpersuasive.

Depressing though the decision in Castro may be, however, it is important to note that even the Third Circuit’s decision in Castro does not foreclose all habeas corpus petitions brought to review expedited removal orders.  Beyond the restricted review that it saw as permitted by 8 U.S.C. §1252(e), the Castro opinion conceded that the statutory limitations on habeas corpus might be unconstitutional as applied to, for example, “an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1).”  Castro, slip op. at 34-35 n.13.  For reasons explained by this author in a previous article, some long-term nonimmigrant residents may have the sorts of constitutional rights to which the Third Circuit referred here even if returning from a brief trip abroad, along the lines of the rights possessed by the permanent resident who was placed in exclusion proceedings after returning from a brief trip abroad in Landon v. Plasencia, 459 U.S. 21 (1982).  Thus, even under Castro, there may be scope for habeas review of an expedited removal proceeding against a long-term nonimmigrant resident.  In that sense, for some potential habeas petitioners, all is not yet lost.

Asylum applicants who are not returning residents, however, should also have rights under the Suspension Clause, no less than the detainees at Guantanamo Bay who were held to have such rights in Boumediene.  And in exercising those rights, they should have resort to the courts to ensure that they have at least received “the procedure authorized by Congress”—as it appears the petitioners in Castro did not.

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child.  The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law.  We can hope, however, that the Third Circuit on rehearing en banc, or the Supreme Court on certiorari, may restore it to them.

Harmonious Coexistence: New Parole for International Entrepreneurs and Old Entrepreneur Pathways Portal

U.S. Citizenship and Immigration Services (USCIS)  proposed a rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States. This is not the first administrative initiative for entrepreneurs. In 2011 the USCIS provided guidance on how foreign entrepreneurs could use the existing nonimmigrant visa system to establish startups in the United States, which culminated in the Entrepreneur Pathways portal. Both the parole rule and the Entrepreneur Pathways should exist alongside each other. Neither is perfect, especially in the absence of a Congressionally mandated startup visa, but if an entrepreneur cannot qualify under the parole policy, every encouragement must be given for the entrepreneur to qualify for a visa through his or her startup under the existing visa system, such as through an H-1B visa.

First, we introduce the proposed parole rule for international entrepreneurs.

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

– Receiving significant investment of capital (at least $345,000) from certain qualified U.S.  investors with established records of successful investments;

– Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or

– Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.

USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the United States to be granted parole; they may not change to nonimmigrant status within the United States. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and approve or deny the application with no right of rehearing or appeal. Meanwhile, the notice of proposed rulemaking in the Federal Register invites public comment  on or before October 17, 2016, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when it is published in the Federal Register.

While the proposed rule comes as a long needed respite to a foreign national entrepreneur in the absence of an actual startup visa, it may not meet the needs of all entrepreneurs who aspire to build great companies in the US. For example, a foreign student on F-1 OPT, who has developed an innovative mobile phone application, and who wants to market it and sell it through his or her own company, may not be able to attract investment capital of $345,000 or receive a governmental grant of $100,000. Many startups can be established for far less than $345,000.  In some situations, a family member may invest money in the enterprise on behalf of the foreign student, but under the proposed rule, investment from a family member does not count. Also, the parole rule will only allow a 5 year period in the United States with no pathway to permanent residence. The USCIS can revoke parole, and there will be no administrative or judicial review over a denial or a revocation. Of course, the final rule can be substantially improved based on comments from interested parties and stakeholders.

Still, if an entrepreneur cannot qualify under the parole rule,  it is vitally important for this individual to try his or her luck under the H-1B visa via the policy set forth in Entrepreneur Pathways. If a foreign student has a “Facebook” type of idea, he or she can start a business, according to Entrepreneur Pathways, while in F-1 Optional Practical Training provided the business is directly related to the student’s major area of study. After completing F-1 OPT, and note that the new STEM OPT rule requires the entrepreneur to be part of a training program, even through his or her own startup, this student can potentially switch to H-1B visa status (provided there are H-1B visa numbers at that time). Regarding the startup owner being able to sponsor himself or herself on an H-1B, the Entrepreneur Pathways  insists that there must be a valid employer-employee relationship  under the Neufeld Memo,  and that the entity has a right to control the employment. This can be a challenge if the founder exercises total control over the startup.  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, other 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. Further details on how an entrepreneur can successfully petition for an H-1B visa are provided in a prior blog entitled The Sweet Smell of Success: H-1B Visas for Entrepreneurs. Although there is a shortage of H-1B visas each year, certain H-1B visas would be cap-exempt if filed concurrently with employment through a cap-exempt university or non-profit affiliated with a university, or if the beneficiary works at cap-exempt university even though the petitioner is a cap-subject private H-1B employer. Many local governments have started programs to attract foreign entrepreneurs through cap-exempt H-1B collaborations with universities, the most recent being the initiative launched by New York City and the City University of New York.

We hope that H-1B petitions filed pursuant to Entrepreneur Pathways continue to be approved fairly despite the existence of the parole rule for entrepreneurs. USCIS adjudicators should not now be of the mindset that just because there is a parole rule for entrepreneurs, the H-1B visa program is no longer open for business to them. It should further be noted that Entrepreneur Pathways also provides guidance for entrepreneurs to use other existing visa classifications, such as the L-1, O, and E visas. Many of these visa categories could be more advantageous to the entrepreneur than the parole rule, and so adjudicators must continue to approve petitions in the spirit of the generous guidance set forth in Entrepreneur Pathways. The unique requirements under the parole rule, such as a set investment amount, should not be allowed to bleed into the adjudicatory process concerning visas that have been traditionally used by entrepreneurs.   Every effort must be made to encourage foreign entrepreneurs to establish their startups in the United States, and so it is important that the parole rule and the Entrepreneur Pathways coexist and complement each other like Siamese twins joined together at the hip.  Indeed, the Entrepreneurs Pathways is recognized in the preamble to the parole rule, as well as the acknowledgement that many will remain on a traditional visa “because the ability to be admitted to the United States as a nonimmigrant offers materially more benefits and protection than parole.” Moreover, there are ancillary conditions that must be fulfilled under the parole rule, such as maintaining a household income of greater than 400 percent of the poverty line and that the qualifying startup capital cannot come from family members. These limitations do not exist when entrepreneurs use the  L, O and E visas, although with respect to the H-1B visa, the entrepreneur must be paid at least the prevailing wage through the startup.

Finally, it will still not be a perfect world even if both the parole rule and Entrepreneur Pathways coexist harmoniously. There must also be a pathway for permanent residence. The parole rule has a maximum validity of only five years; the H-1B is for six years. The DOL does not encourage a labor certification to be filed if the beneficiary is also a substantial owner.  There must also be guidance to allow entrepreneurs to apply for permanent residence through the extraordinary ability and national interest waiver green card categories.   It is therefore encouraging that the While House blog indicates that the DHS will soon publish guidance as to when an entrepreneur can self-petition for a green card. While such administrative efforts are small steps in the right direction, it is important for Congress to ultimately pass legislation that would allow entrepreneurs of all stripes, so long as their enterprises hold out promise, to be able to easily enter on a visa and shortly thereafter apply for permanent residence.