The American Dream Is For Everyone

By Cyrus D. Mehta & Sophia Genovese

The Trump Administration has announced an immigration proposal that pits the lives of Dreamers against other immigrant populations. Dreamers are young people who came to the United States prior to the age of 16, and fell out of status of status through no fault of their own. They were granted authorization to remain in the United States under an Obama-era program known as Consideration of Deferred Action for Childhood Arrivals (DACA). The Trump White House has stated that they are willing to provide a pathway to citizenship for Dreamers in exchange for fewer family-based immigration categories, the elimination of the Diversity Visa Program, and $25 million in funding for the infamous wall. President Trump had previously cancelled DACA on September 5, 2017.

DACA recipients have strongly opposed the White House’s proposal, arguing that they refuse to benefit from a bill that will disrupt the lives of millions. A pathway to citizenship for Dreamers is desperately needed, but even Dreamers realize that they’re not the only ones whose lives remain in the balance. H-4 spouses are set to lose their ability to work, and H-4 dependents could age out if their parent continues to be stuck in the employment-based backlogs. TPS recipients are being forced to return to countries where poverty and violence remain the norm. Foreign nationals of banned countries anxiously await the ability to come to the US and join their families or begin working in their fields. Foreign students nearing graduation fear the H-1B lottery cap and USCIS’s increased scrutiny of level one wages and IT-related positions. Skilled workers from India and China stuck in the backlogs recently feared being sent back home while they await their green cards. Although this proposal has been pulled back, the fact that it was made heightens the fragility of an immigration system that keeps skilled workers waiting for decades on end because of the unavailability of immigrant visas. Undocumented populations are increasingly fearful of the lack of ICE enforcement priorities and the increased number of non-criminal immigrants being arrested on buses, at schools, or courthouses. Although Dreamers stand to gain from the White House proposal, they do not, in good conscience, accept the trade-offs. At the same time, it would be perfectly understandable if a DACA recipient wanted to accept the Trump Administration’s deal so long as it would benefit her. It is natural for each group of immigrants to want to get their own benefit without regards to whether the enactment of legislation would improve the immigration system as a whole. However tempting this might be, it would clearly be in the interest of all immigrants, including Dreamers, if they united and steadfastly demand an immigration deal that fixes the immigration system to help everyone, which in turn benefits the national interest. Otherwise, what may seem to benefit you but hurt others, will come back to also ultimately hurt you.

The Trump Administration’s proposal is cruel and nothing short of xenophobic. While fixing DACA is urgently needed, such a fix will not resolve all the other problems in the immigration system. It is not worth getting a fix for DACA, without other urgently needed fixes, in exchange for immigration restrictions that would fulfill the wish list of a nativist. America has nothing to gain, and much to lose, from such a limited immigration policy. We have repeatedly argued that immigration is a net positive for the economy and society. Immigrants keep America competitive in STEM fields and other industries. Closing the doors to talented immigrants will undoubtedly make the US less competitive globally.

In stark contrast to the Trump Administration’s xenophobic wish-list is the Immigration Innovation (“I-Squared”) Act of 2018, introduced by two Republican Senators, Orrin Hatch (R-UT) and Jeff Flake (R-AZ). The bill would increase the H-1B visas from 65,000 to 85,000 a year and proposes lifting the existing cap of 20,000 additional H-1B visas reserved for those with master’s degrees if their employers agree to sponsor their green cards. The bill includes a “market-based escalator” so the supply can meet increased demand. That means granting up to 110,000 additional visas (a total of 195,000), and prioritizing visas for those with master’s degrees, foreign Ph.D.’s or U.S. STEM bachelor degrees. The bill would also eliminate per-country caps on employment-based green cards and allow H-4 visa holders the ability to work. It will also not count derivative family members, which if implemented upon enactment, will quickly drain the decades long backlogs in the employment-based preferences. The bill does not address Dreamers, but rather focuses on employment-based visas. Although imperfect, the bill serves as a proper starting point when discussing sensible immigration policy. Specifically, the bill acknowledges the utility and benefit of foreign skilled workers, especially in the IT field. Hatch and Flake have both realized that these workers not only benefit US industries, but also help create jobs for American workers. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The people who run immigration policy in the Trump administration care about American workers but do not effectively express such concern. Instead, they have created policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. I-Squared does provide the opening salvo. This bill has all the right ingredients – elimination of per country limits, not counting derivative family members that have till now clogged up the employment-based preferences and increasing the H-1B visa cap. We need I-Squared as much as a fix for DACA recipients.

Congresswomen and men need to similarly create a comprehensive bill that provides a pathway to citizenship for Dreamers without throwing other immigrant populations under the bus. Even requiring Dreamers – who only know America as their country – to wait 10-12 years on a probationary basis before they can apply for permanent residence and citizenship is unnecessary and cruel. Although Dreamers are under no obligation to prove their worth, as their humanity alone entitles them to respect, we nevertheless see DACA recipients thriving in the respective fields and substantially benefiting the United States. The proposed legislation should also not undermine family immigration since family unification has been the cornerstone of US immigration policy since its inception. Family members of the principal immigrant support each other, and thus create more stability and bring about more prosperity. It is also not necessarily the case that a skilled immigrant in a STEM field will only benefit the United States. The nation’s immigration history is replete with examples of immigrants from all walks of life succeeding in the country through their hard work, grit and determination. Objecting to family-based migration, including cutting off the ability of a US citizen to sponsor a parent, means that you are advocating a total shut-down of immigration and the cruel separation of families. It is also immoral to do so.

With the exception of descendants of indigenous peoples, every American is a descendant of immigrants. Everyone’s mother, grandmother, great-grandmother, etc. came to the United States from a foreign land in the hopes of creating a better life. The American Dream is for everyone, whether your family has been here for generations or if your family just arrived yesterday. It is senseless to close the doors to immigrants seeking opportunity in a nation whose identity is intimately intertwined with migration.

Potential Adjustment of Status Options After the Termination of TPS

As President Trump restricts immigration, it is incumbent upon immigration lawyers to assist their clients with creative solutions available under law. The most recent example of Trump’s attack on immigration is the cancellation of Temporary Protected Status for more than 200,000 Salvadorans. David Isaacson’s What Comes Next: Potential Relief Options After the Termination of TPS comprehensively provides tips on how to represent TPS recipients whose authorization will soon expire with respect to asylum, cancellation or removal and adjustment of status.

I focus specifically on how TPS recipients can potentially adjust their status within the United States through either a family-based I-130 petition or an I-140 employment-based petition for permanent residency. A September 2017 practice advisory from the American Immigration Council points to two decisions from the Ninth and Sixth Circuit, Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), holding that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a).

In both these cases, the plaintiffs previously entered the United States without inspection, and then became recipients of TPS grants and subsequently married US citizens. At issue in both those cases was whether they were eligible for adjustment of status under INA 245(a) as beneficiaries of immediate relative I-130 petitions filed by their US citizen spouses. Both the decisions answered this question in the affirmative.

A foreign national who enters the United States without inspection does not qualify for adjustment of status even if married to a US citizen since s/he does not meet the key requirement of INA 245(a), which is to “have been inspected and admitted or paroled into the United States.” However, both Ramirez and Flores held that as a matter of statutory interpretation, Congress intended TPS recipients to be considered “admitted” for purposes of INA 245(a). Thus, even if the foreign national entered without inspection, the grant of TPS constituted an admission thus rendering the TPS recipient eligible for adjustment of status. Of course, the other conditions of INA 245(a) must also be met, which is to be eligible to receive a visa and not be inadmissible as well as have a visa that is immediately available. The disqualifications to adjustment of status in INA 245(c)(2) such as working without authorization, being in unlawful status or failing to maintain lawful status since entry are not applicable to immediate relatives of US citizens, who are spouses, minor children and parents.

The courts in Ramirez and Flores relied on INA 244 (f)(4), which provides:

(f) Benefits and Status During Period of Protected Status – During a period in which an alien is granted temporary protected status under this section-

(4) for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant

Both courts read the above phrase, especially “for purposes of adjustment of status under section 245 and change of status under section 248” to be in harmony with being “admitted” for purposes of adjustment of status. As INA 244(f)(4) bestows nonimmigrant status on a TPS recipient, an alien who has obtained nonimmigrant status is deemed to be “admitted.” Thus, at least in places that fall under the jurisdiction of the Sixth and Ninth Circuits, TPS recipients who have been granted nonimmigrant status under INA 244(f)(4) could potentially adjust status to permanent residence as immediate relatives of US citizens.

The next question is whether a TPS recipient can also adjust status to permanent residence if s/he is the beneficiary of an approved I-140 petition under the employment-based first, second, third and fourth preferences. The answer arguably is “yes” provided the applicant resides in a place that falls under the jurisdiction of the Sixth and Ninth Circuits. INA 245(k) will come to their rescue, which applies to the employment-based first to fourth preferences.

A TPS recipient from El Salvador who is concerned that her TPS designation will terminate on September 9, 2019 may wish to request her employ to file a labor certification on her behalf. If the labor certification is approved, after an unsuccessful test of the US labor market for her experience and skills, the employer may file an I-140 petition and potentially a concurrent I-485 adjustment of status application. The EB-2 and EB-3 priority dates for a person born in El Salvador are current in the February 2018 visa bulletin, and likely to remain current over the foreseeable future.

INA 245(k) exempts applicants for adjustment who are otherwise subject to the INA 245(c)(2) bar based on unauthorized employment or for not maintaining lawful status provided they are present in the United States pursuant to a lawful admission and subsequent to such admission have not failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days. Thus, even if the TPS recipient may have not been in lawful status prior to the grant of TPS, the grant of TPS resulted in the individual being admitted into the US. If this person files within the TPS validity period, 245(k) should allow this person to adjust to permanent residence.

I would posit that this person would be eligible under 245(k) to apply for adjustment of status within 180 days from the expiration of the TPS status. This may well be the case if there is a delay in the processing of the labor certification or if there is a retrogression in the priority date.  Although INA 244(f)(4) bestows lawful nonimmigrant status to a current TPS recipient, that grant of nonimmigrant status also previously admitted her into the United States. The fact that she was once admitted through the TPS grant cannot vanish just because she is no longer a TPS recipient, and she ought to be eligible to adjust status under 245(k) so long as she has not stayed in the US greater than 180 days from the termination of TPS designation. Once a person has been admitted, the person is still considered to have been admitted for 245(a) purposes even if the period of stay under TPS expires. I would argue that this should apply to a INA 244(f)(4) implied admission as much as it does to any other kind of admission. If you are necessarily admitted because you have gone from having entered without inspection to being in nonimmigrant status, that does not cease to have been the case because your nonimmigrant status later goes away.

A person who was previously admitted in a nonimmigrant status, but who then fell out of status prior to the grant of TPS, may also arguably be considered admitted once again under 245(k) upon receiving a grant of TPS. One could argue that the TPS is the last admission for 245(k).  However, the argument is probably stronger for one who entered without inspection, since traditionally only the granting of status to someone previously not admitted is a new “admission”—going out of status and back in doesn’t have the same tradition of being characterized that way.

Note that 245(k) is only applicable to I-485 applications filed under the employment-based first, second, third and fourth preferences. With respect to family-based preference petitions, USCIS has taken the position that anyone who has ever failed to maintain continuously a lawful status will not be eligible for adjustment of status. Hence, the beneficiary of an I-130 filed by a permanent resident on behalf of his spouse will not be able to adjust status if he was not in status prior to the grant of TPS. The AIC practice advisory cites Figueroa v. Rodriguez, No. CV-16-8218 -PA, 2017 U.S. Dist. LEXIS 128120 (C.D. Cal. Aug. 10, 2017), which held to the contrary that TPS cures the prior lack of status for a family preference beneficiary, but since this is a decision from a district court it has no precedential value and should not be relied upon.  Of course, if his spouse becomes a US citizen, then he qualifies as an immediate relative and also eligible to adjust status if admissible despite having not maintained status prior to the TPS grant, or even if the TPS terminates, as immediate relatives are exempt from the 245(c)(2) bar.

Those who do not reside in the Sixth and Ninth Circuit can also adjust by availing of Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Under this decision, a departure under advance parole does not trigger the 3 and 10-year unlawful presence bars pursuant to INA 212(a)(9)(B). Thus, a TPS recipient may apply for advance parole, leave the United States and be paroled back into the United States (although beware that under the Trump administration, CBP could deny entry to one with advance parole). The departure would not trigger the unlawful presence bars and the parole would be recognized for purposes of adjusting under INA 245(a) as having been “inspected and admitted or paroled.” Note, though, that the entry into the United States under parole would only render one eligible for adjustment of status as an immediate relative, and not under an approved I-140 preference petition since INA 245(k) only applies to one who has been admitted rather than paroled into the United States. The parole entry would also not help a preference beneficiary under an approved I-130. Although parole could be considered a lawful status (as the INA 245(c)(7) bar only applies to employment-based I-140s that are not subject to the 245(k) exception) for purposes of adjustment of status based on a family preference I-130, the applicant must demonstrate that s/he never previously violated lawful status. Proceeding overseas for consular processing, where filing an adjustment of status application may not be possible, may trigger the 3 and 10-year bars if the TPS recipient previously accrued unlawful presence prior to the grant of TPS. Even if the TPS recipient departs the United States pursuant to a grant of advance parole, it is not clear whether the US Consulate will recognize Matter of Arrabelly and Yerrabelly in situations where the person departs under advance parole but intends to return on an immigrant visa. Thus, those who plan to proceed for consular processing who have accrued the requisite unlawful presence to trigger the 3 and 10-year bars should only proceed if they can obtain a provisional waiver of the bars based on extreme hardship to a qualifying relative.

What is quite certain presently is the ability to adjust status as an immediate relative if the TPS recipient resides within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). It is also important to note that the Eleventh Circuit in Serrano v. Unites States Attorney General, 655 F.3d 1260 (11th Cir. 2011) held that TPS was not an admission for purposes of adjustment under INA 245(a).  As David pointed out in his blog, those who reside outside those two Circuits, except in the Eleventh Circuit,  might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials. An applicant can litigate by bringing an action under the Administrative Procedure Act, 5 U.S.C.  701 in federal district court. Alternatively, if the applicant is placed in removal proceedings, s/he can argue these theories before an Immigration Judge, and if unsuccessful to the Board of Immigration Appeals and subsequently in a Court of Appeals. Further details on various litigation strategies may be provided in a subsequent blog.  Even if a TPS recipient resides within the jurisdiction of the Sixth or Ninth Circuit, it is not clear whether the USCIS will accept an argument for adjustment of status through an I-140 employment-based petition under INA 245(k). This uncertainty gets exacerbated where the TPS grant has already expired and the I-485 is being filed within 180 days of its final expiration date.  Hence, the TPS recipient planning to deploy an adjustment of status strategy under 245(k) must also be prepared to litigate even if residing within the jurisdiction of the Sixth or Ninth Circuit. Under the Trump administration, when immigration benefits have suddenly been curtailed for long time TPS recipients, it may be worth adopting creating adjustment of status strategies, and if USCIS does not accept them, to consider litigating until there is success as was the case in the Ramirez and Flores decisions.

(This blog is for informational purposes only and should not be considered as a substitute for independent legal advice supplied by a lawyer familiar with a client’s case.)

What Comes Next: Potential Relief Options After the Termination of TPS

With the recent announcement that the Trump Administration will terminate Temporary Protected Status (TPS) for more than 200,000 citizens of El Salvador effective September 2019 after previously terminating TPS for Haiti, Nicaragua, and Sudan, it seems appropriate to examine alternate forms of immigration relief that may become available to those whose TPS is terminated. Of course, we may hope that Congress will provide some relief to TPS holders, but as things stand now, that appears to be an eventuality which should not be counted on at least in the short run.

One possibility for some TPS holders may be adjustment of status under INA §245.  As explained in a September 2017 practice advisory from the American Immigration Council, the Courts of Appeals for the Sixth and Ninth Circuits have held that TPS constitutes an admission for purposes of eligibility for adjustment under INA §245(a). TPS holders who are immediate relatives of U.S. citizens can take advantage of this holding most simply, if they reside within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). Those who reside outside those two Circuits might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials.  The situation with respect to applicants for adjustment based on other family relationships or employment is more complex, as explained in the linked American Immigration Council practice advisory, but that sort of adjustment of status will be potentially available to TPS recipients under at least some limited circumstances.

Another possibility for many TPS-holders, if they are placed in removal proceedings, might be seeking cancellation of removal for non-permanent residents under INA §240A(b). It has been reported that many TPS recipients from El Salvador have U.S. citizen children, for example: there are reported to be “nearly 200,000 US citizen children of Salvadoran parents with TPS.” Many TPS holders may be able to show that one or more of their U.S. citizen children (or Lawful Permanent Resident children or U.S. citizen or Lawful Permanent Resident spouses or parents) will suffer “exceptional and extremely unusual hardship” upon removal of the parent, although this is admittedly a very high bar.  If such TPS holders, with qualifying relatives who would suffer such hardship, have been continuously physically present in the United States for ten years before being placed in removal proceedings – which El Salvadoran TPS holders, for example, generally will have been, since TPS for El Salvador commenced in 2001 – then, if certain other criteria regarding good moral character and lack of disqualifying criminal convictions are met, they can seek cancellation of removal in Immigration Court under §240A(b), which would result in Lawful Permanent Resident status.

It is important to note, in this context, that time in TPS counts towards the ten-year minimum for cancellation under INA §240A(b). It is only in the distinct context of cancellation of removal for lawful permanent residents under INA §240A(a) that INA §244(e) excludes from continuous presence one’s time in TPS, and there only “unless the Attorney General determines that extreme hardship exists.” A footnote on the USCIS webpage reproduction of this INA section suggests that the restriction was actually meant to apply to §240A(b) cancellation, but besides being contrary to the text of the statute, this would have little practical impact even if it were true: any case in which “exceptional and extremely unusual hardship” exists for purposes of §240A(b) cancellation would presumably be a case in which extreme hardship exists for the purposes of the exception.

Admittedly, some TPS holders will presumably be unable to establish a sufficiently high level of hardship to their children—although given the atrocious violence and other country conditions in El Salvador, where the State Department has notably advised U.S. citizens not to travel, it is not clear what proportion of U.S. citizen children could relocate there without suffering exceptional and extremely unusual hardship. Even so, however, one wonders how the Trump Administration thinks the already-overburdened immigration court system is going to deal with determining which of the nearly-200,000 U.S. citizen children involved will suffer such exceptional and extremely unusual hardship.  Perhaps the answer is that they do not intend to place former TPS beneficiaries into removal proceedings.  But that could give rise to the peculiar spectacle of a large population seeking to be placed into removal proceedings, where they can have the hardship to their children taken into account under the statutes enacted by Congress, while the Administration insists that the members of that population should leave, but refuses to commence the proceedings that under INA §240(a)(3) are the “sole and exclusive procedure” for compelling them to do so.

Some TPS holders may also be eligible for asylum under INA §208. Asylum is typically thought of as a form of relief available to those who fear persecution on a protected ground in their home countries, and some citizens of El Salvador and the other countries whose TPS is being terminated may indeed meet that description.  However, while a fear of future persecution is the archetypical case for asylum, it is not the only one, under the governing regulations.  As the BIA explained in Matter of L-S-, 25 I&N Dec. 705 (BIA 2012), pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(B), asylum can be granted to one who has suffered persecution in the past and “has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”

While “other serious harm” must equal the severity of persecution, it may be wholly unrelated to the past harm. Moreover, pursuant to the regulation, the asylum applicant need only establish a “reasonable possibility” of such “other serious harm”; a showing of “compelling reasons” is not required under this provision. We also emphasize that no nexus between the “other serious harm” and an asylum ground protected under the Act need be shown.

Matter of L-S-, 25 I&N Dec. at 714. The BIA further explained that “adjudicators considering “other serious harm” should be cognizant of conditions in the applicant’s country of return and should pay particular attention to major problems that large segments of the population face or conditions that might not significantly harm others but that could severely affect the applicant.” Id. This may be particularly relevant to TPS recipients from countries like El Salvador which do, as discussed above, have major problems faced by large segments of the population, such as widespread violence.

It is important to note that this other-serious-harm asylum requires that an applicant have previously suffered qualifying past persecution on a protected ground.  The full definition of such past persecution is beyond the scope of this blog, but it is a difficult threshold to meet. The Second Circuit has explained in Baba v. Holder that to constitute persecution “conduct must rise above mere harassment” and that persecution includes “threats to life or freedom” and also extends to “non-life-threatening violence and physical abuse.” The Second Circuit has also, as explained in Baba with a quotation of Guan Shan Liao v. U.S. Dept. of Justice, “found that persecution may also take the form of non-physical harm, such as ‘the deliberate imposition of a substantial economic disadvantage.’” As for the protected grounds, there are many subtleties, but the basic statutory requirement under INA 208(b)(1)(B)(i) (largely restating INA §101(a)(42)(A) with some added stringency per the REAL ID Act of 2005) is that “the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”

However, such qualifying past persecution could have taken place many years ago, under very different political conditions than are now present. Moreover, the Court of Appeals for the Second Circuit has recognized that under some circumstances, children may suffer qualifying past persecution from actions primarily directed at other family or community members.  In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006), the Second Circuit explained that massacres in a child’s persecuted ethnic Mayan community could constitute persecution of the child even if not directed at the child specifically:

Jorge-Tzoc was a child at the time of the massacres and thus necessarily dependent on both his family and his community.   He also offered substantial evidence of a pervasive campaign carried out by the army against Mayans in the area in which he lived.   The CEH documented two 1982 army killings of persons named Tzoc in Jorge-Tzoc’s village.   Further, while the family remained in their village, Jorge-Tzoc’s mother was afraid to go out of their home to obtain needed groceries, and Jorge-Tzoc viewed the bullet-ridden body of his cousin lying on the ground.   The army’s campaign, according to Jorge-Tzoc’s testimony, resulted in his relocation, along with many family members to one room in Quiche where they struggled to survive.   In addition, Jorge-Tzoc’s father lost his land and his animals as a result of the move.   This combination of circumstances could well constitute persecution to a small child totally dependent on his family and community.

The Court of Appeals for the First and Ninth Circuits have similarly concluded that persecution of a child’s family can constitute persecution of that child, in Ordonez-Quino v. Holder and Hernandez-Ortiz v. Gonzales. The Second Circuit narrowed Jorge-Tzoc somewhat in Jiang v. Gonzales, requiring that the persecuted child “share – or [be] imputed to share – the characteristic that motivated the persecution.” (There is also additional discussion in Jiang, arguably nonbinding dicta, regarding how such persecution would “presumably” require that the child, as in Jorge-Tzoc, “was also within the zone of risk when the family member was harmed, and suffered some continuing hardship after the incident.”) Nonetheless, there may be TPS recipients who would have a reasonable past-persecution claim based on events that occurred many years ago when they were children, which could then ground an application for asylum based on the reasonable possibility of other serious harm due to current country conditions.

Another issue in regard to a possible asylum application by a TPS recipient would be the one-year filing deadline of INA §208(a)(2)(B). Ordinarily, one who wishes to apply for asylum must do so within a year of their last arrival in the United States.  However, INA §208(a)(2)(D) exempts from the one-year deadline cases in which an applicant can establish “extraordinary circumstances relating to the delay in filing the application within the period”, and the regulations at 8 C.F.R. §208.4(a)(5)(iv) clarify that such extraordinary circumstances may include maintenance of TPS or other lawful status “until a reasonable period before the filing of the asylum application”. As a recent AILA practice pointer has noted, this may not solve the one-year problem for those who were present in the United States for more than a year between the time the one-year deadline was created in 1997 and the onset of their TPS. However, the TPS exception it does mean that some TPS beneficiaries will not have a problem with the one-year deadline even if the events giving rise to an asylum claim occurred long ago.

Moreover, changed circumstances “materially affecting the applicant’s eligibility for asylum” can also excuse late filing under INA §208(a)(2)(D) and 8 C.F.R. §208.4(a)(4)(i) as long as the applicant files within a reasonable time given those changed circumstances. Where a claim is based on a combination of past persecution and a reasonable possibility of other serious harm in the future, there would be a strong argument that a change in circumstances materially affecting the other-serious-harm prong of eligibility would qualify under this exception even if the past persecution remained constant.  Thus, some TPS recipients who had suffered past persecution might be able to excuse an otherwise untimely asylum claim based on changed circumstances relating to the other serious harm they would suffer if returned to their home country.

In cases where a reasonable asylum claim could be made under one of these various theories, it could also have the incidental effect of solving the problem discussed above of TPS recipients being left in limbo by a refusal to place them in removal proceedings. By regulation, pursuant to 8 C.F.R. §208.14(c)(1), where an affirmatively-filed asylum application is not granted and the applicant is considered to be inadmissible or deportable, the application will generally be referred into removal proceedings, where the applicant can renew the asylum application and also apply for other available relief (such as, if applicable, cancellation of removal for non-permanent residents). Such placement in removal proceedings is of course a dangerous outcome, but for some people it may be preferred to indefinite limbo.

Another defense against removal that might be available to TPS beneficiaries placed in removal proceedings would be to challenge, in federal court, the de-designation of their countries for TPS.  This is difficult outside the context of removal proceedings, because INA §244(b)(5)(A) states that “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” There may be some argument that this jurisdictional bar should be interpreted to exclude bona fide constitutional claims as discussed in Calcano-Martinez v. INS, 533 U.S. 348 (2001) in the context of a different jurisdictional bar, although this is not completely clear. Once TPS becomes at issue in a removal order, however, the scope for federal court review would be broader, because a petition for judicial review of that order would fall under the protection of INA §242(a)(2)(D), which states that

Nothing in . . . any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

INA §242(a)(2)(D), 8 U.S.C. §1252(a)(2)(D) (referring to “this chapter” rather than “this Act”). Under this provision, a former TPS holder who was ordered removed ought to be able to challenge the de-designation of their country of nationality as legally inappropriate—perhaps, for example, on the basis that the de-designation, albeit nominally accomplished by DHS, had been inappropriately influenced by the views of the Chief Executive regarding people from “shithole countries.”

All of these potential courses of action are complex and fraught with risk, and TPS holders would be well advised to consult a qualified immigration attorney before proceeding with any of them.  It is important to know, however, that the termination of TPS may not equate to the termination of all ability to remain lawfully in the United States.


There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas while they wait legally in the United States. President Trump, in the name of protecting US workers, wants to send these skilled workers home to wait for their green cards. This is consistent with the Trump administration’s goal to destabilize the immigration system – from the travel ban aimed at Muslims to depriving skilled workers on H-1B visas to remain in their jobs and contribute to the United States.

A McClatchy press report  has sent shock waves within the backlogged H-1B community, as well as alarmed employers who sponsor skilled foreign workers for visas and green cards, attorneys and all people concerned about fairness. The report cites credible sources within the Department of Homeland Security who say that they are drafting a proposal to restrict H-1B visa extensions beyond the six-year limitation, which would result in the “self-deportation” of tech workers, thus opening up jobs for Americans in furtherance of President Trump’s Buy American Hire American Executive Order. Such a move is completely counter intuitive as these H-1B workers have all been beneficiaries of approved labor certification applications that resulted in unsuccessful attempts at locating qualified US workers to perform these specialized duties.

There are reportedly more than 1 million H-1B visa holders in the country, mainly from India, that have been waiting for green cards for more than a decade. Although the H-1B visa’s maximum duration is 6 years, those who are caught in the green card backlogs can apply for either a 3-year extension or a 1-year extension under the American Competitiveness in the 21st Century Act (AC21).

The DHS is specifically looking to reinterpret Section 104(c) of AC21, which provides for a 3-year extension of H-1B visas beyond the 6-year limitation. In order to be eligible for a 3-year extension under 104(c), the H-1B visa holder must be the beneficiary of an approved employment-based I-140 petition and must also demonstrate eligibility for adjustment of status but for the visa not being available as a result of the per country limitation. Section 104(c), however, states that the beneficiary of an I-140 petition “may apply” and the Attorney General (and by extension the DHS) “may grant” such an H-1B extension.

Since the enactment into law in 2000, prior administrations under Presidents Clinton, Bush and Obama have routinely granted 3-year H-1B extensions under 104(c). Even if the statute indicates that the government “may grant” the extension, such discretion cannot be used to arbitrarily deny H-1B visa extensions and thus eviscerate Congressional intent. The purpose of Section 104(c) was to provide relief to those in H-1B visa status who are caught in the employment-based backlogs as a result of the per-country limitation. India and China are the two countries where the per country limit within the employment-based second and third preferences have been oversubscribed. The extended H-1B visa has provided a lifeline to skilled workers who are otherwise eligible for green cards but for their priority dates not being current.

When a statutory provision bestows discretion through words such as “may grant,” such discretion cannot be exercised in an arbitrary and capricious manner. The Supreme Court’s opinion in Judulang v. Holder, 565 U. S. ____ (2011) has provided parameters under which a government agency may exercise discretion in the immigration context relating to a waiver under Section 212(c). The following interesting discussion is worth noting:

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).  The scope of our review under this standard is “narrow”; as we have often recog­nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency deci­sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency pro­vide reasoned explanation for its action”).  The BIA has flunked that test here. By hinging a de­portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner.

. . . .

The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi­gration laws or the appropriate operation of the immigra­tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The key in determining whether denying a 3-year H-1B extension is arbitrary is “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Is the DHS proposal to restrict 3-year H-1B extensions based on “relevant factors” or is it planning to disfavor a class of noncitizens through the mere flipping of a coin? The DHS’s proposal will likely fail under this test as 104(c)’s plain language requires the government to grant the extension so long as the prerequisites have been met. This means that so long as one who is in H-1B status is the beneficiary of an approved I-140, and the priority dates is not yet current, this person should be granted a 3-year extension.  Even justifying the “self-deportation” of hundreds of thousands to protect US workers under the BAHA Executive Order is no excuse. BAHA was not around when AC21 was enacted in 2000.  If the DHS seems to reinterpret 104(c) in light of BAHA, this decision can be challenged as it is contrary to the plain meaning of 104(c) as well as Congressional intent. The concern under INA § 212(a)(5) that US workers be protected was already met through the labor certification or by seeking an exemption of it through the national interest waiver. The imposition of BAHA should not upend the carefully crafted statutory structure enacted by Congress over the years.

Moreover, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared that federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if H-1B visa extensions are denied under President Trump’s interpretation of AC21 provisions pursuant to the BAHA Executive Order, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

The title to 104(c) “One-Time Protection Under Per Country Ceiling” does not mean that it empowers the Trump administration to restrict its application to a one-time 3-year extension. The title can clarify an ambiguous statute but shouldn’t be used to contradict the text of the statute. In this case, the text of 104(c) clearly states that three year extensions can be granted indefinitely until the “alien’s application for adjustment of status has been processed and a decision made thereon.” See  Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (the title of an Act cannot enlarge or confer powers); INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (the title of a statute or section can aid in resolving an ambiguity in the legislation’s text).

The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers  that took effect on January 17, 2017 further restrains the government’s ability to restrict H-1B extensions under 104(c).  Current 8 CFR § 214.2(h)(13)(iii)(E)(i), which implements 104(c),  does not appear to give broad discretion and pertains more to granting discretion with respect to the validity period, as follows:

Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

 This suggests that if the priority date is likely to become current imminently, the USCIS may shorten the time period of the H-1B extension to less than 3 years. The USCIS may also shorten the validity period if it is planning to revoke an approved I-140 petition if it believes it was previously erroneously granted. These sorts of discretion would pass muster and could have been contemplated under 104(c) when Congress said that the DHS “may grant” the extension. On the other hand, a new rule that would wholesale preclude the granting of a 3-year H-1B extension would be a completely erroneous reading of 104(c) and should certainly invite a lawsuit to challenge the Trump administration’s capricious interpretation. Even an H-1B worker, rather than an employer, should be able to sue as plaintiff  following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, 134 S.Ct. 1377 (2014), which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects. See also Mantena v. Johnson, 809 F.3d 721 (2015) and Kurupati v. USCIS, 775 F.3d 1255 (2014). The proposal appears to be based on pure xenophobia by the Trump administration to curb legal immigration of legitimate skilled workers from India and China who have been waiting for years in the green card backlogs. It does not protect American workers as the labor market has already been tested. Trump’s animus towards immigrants can also be cited in a future court challenge, as was successfully done in court challenges against the travel ban where Trump’s utterances and tweets against Muslims were invoked. Trump’s animus was further evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy –  white nationalism, which can be used to show bad faith if the USCIS starts denying 3-year H-1B extensions.

The Trump administration will have less scope to play mischief with the ability to seek a 1-year H-1B extension under Section 106(a) and (b) of AC21.  Section 106(b) states that the Attorney General “shall” extend H-1B status in increments of 1 year provided a labor certification or I-140 was filed one year prior to the final year in H-1B status, and until the labor certification, I-140 or adjustment of status is denied.  It is not the case that 104(c) is surplusage, as contended by an activist  organization that supports backlogged H-1B visa holders, and so one who qualifies under 104(c) will also be eligible for the grant of a 1-year extension under section 106.  104(c) allows for longer extensions and removes the need to file for extensions every year, and so it is clearly providing an additional benefit. 8 CFR §§ 214.2(h)(13)(iii)(D)(2) and (10), the rules that implement 106(a) and (b), give further support to this position as they both contemplate an approved I-140 petition while an H-1B beneficiary seeks a 1-year extension beyond the sixth year.  The widely held view is that either section can be applicable when its own conditions are met.  There are some cases where only 104(c) is available (where the labor certification was filed in the sixth year or final year of H-1B status and the I-140 is approved in that year), some cases where only 106(a)-(b) is available (where the labor cert or I-140  filed one year before the 6th year is still pending or where the priority date is current), and some cases where both are available but 104(c) gives greater benefits. Even when both are available, at times, for strategic reasons, one may wish to still seek an H-1B extension for 1 year under 106(b) if the priority date will become current at the time of adjudication of the extension request.   Nothing in the text or logic of the statute indicates that 106(a)-(b) ceases to become available, when it otherwise would be, simply because 104(c) is also available.

While the need of the hour is to oppose any arbitrary changes in interpreting 104(c), the ultimate goal is to reduce the green card backlogs. AC21 is a mere band-aid that provides relief to H-1B workers in a hopelessly broken immigration system that keeps them from getting green cards for years on end. HR 392 is one vehicle through which the backlogs can get reduced through elimination of per country limits. Still, HR 392 is not the magical elixir as backlogs will likely remain, but they will be far less. In fact, all will likely face a few years of backlogs if the per country limits are eliminated. If we can also hope for the unitary counting of derivatives in addition to HR 392, that will completely drain the employment-based system of backlogs. While all this is wishful thinking under a Trump administration, it never hurts to strive for a sensible winning immigration reform for the good of the country. Until backlogs are completely eliminated, the ability of skilled workers to remain in the US and extend H-1B status should never be taken away through policies inspired by white nationalism and xenophobia under the Trump administration. This can be the only explanation for attacking immigration in a full employment economy and BAHA is only thinly veiled nativism. In conclusion, just because a statute says “may” does not mean that the Trump administration can capriciously defeat the will of Congress by denying H-1B extensions to hundreds of thousands of Indians so that they may self-deport – an action that is a no-win for the United States or the foreign national skilled worker. Fortunately, there is enough protection in the AC21 law that will make it very hard for the Trump administration to see the light of the day with such a loser immigration policy.