Fearlessly Challenging H-1B Visa Denials Through Litigation

By Cyrus D. Mehta and Eleyteria Diakopoulos

As we have blogged about extensively in the past, President Trump’s “Buy American and Hire American” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year (FY) 2019 H-1B Cap filing season has been to rely on the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) to arbitrarily deny H-1B visa petitions for Information Technology (IT) positions, such as computer systems analysts. In RFEs and denial decisions, USCIS states that they recognize the OOH as an “authoritative source on the duties and educational requirements” of a variety of occupations, and has used the OOH’s general statements on such requirements to deny H-1B petitions for failing to establish that a bachelor’s degree in a specific specialty is the normal minimum requirement for entry into the position, despite statements in the OOH to the contrary. In addition, USCIS recently put out a statement entitled Combatting Fraud and Abuse in the H-1B Visa Program expressing an intent to continue to target H-1B dependent employers in the IT industry who assign H-1B workers at client sites.

One should expect the same sort of H-1B carnage like last year. No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court.

USCIS has typically based these types of denials on claims that the proffered positions fail to qualify under any of the specialty occupation criteria listed in 8 CFR § 214.2(h)(4)(iii)(A). The USCIS has also challenged H-1Bs based on allegedly inappropriate wage levels, but the main concern is the USCIS entirely reading out acknowledged specialty occupations from the law.

As background, in order for a petitioner to hire a foreign worker in a specialty occupation under the H-1B visa program, the proffered position must meet the regulatory definition as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 8 CFR § 214.2(h)(4)(ii). This definition is met by satisfying at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h)(4)(iii)(A) (emphasis added).

For a petition that has a proffered position of computer systems analyst, for example, USCIS has been selective in its reading of the OOH in order to justify a denial. A denial often focuses on the following language:

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.


Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Petitioners and their attorneys should closely review the OOH themselves rather than rely on the few sections USCIS provides in its denial. If attorneys do this, they will realize that USCIS chooses to leave out an important section of the educational requirements that “[m]ost computer systems analysts have a bachelor’s degree in a computer-related field.” (emphasis added). USCIS ignores this language in order to support its faulty determination that a bachelor’s degree in a specific specialty, or its equivalent, is not normally the minimum requirement for the position and that the degree requirement is not common to the industry under the first and second criteria of 8 CFR §214.2(h)(4)(iii)(A). However, where the regulation uses the words “normally” and “common” it would be erroneous to determine that a proffered position is not a specialty occupation merely because not all employers require a bachelor’s degree. If most employers require a bachelor’s degree, this should be sufficient to meet the statutory definition of a specialty occupation. If a petitioner receives a denial of an H-1B petition based on this same reasoning, which is contrary to the law, mounting a challenge in federal court may be worth considering. Petitioners are gun shy about suing the government in federal court out of fear that the government may retaliate against them on other cases. That may not be necessarily so as one has anecdotally heard that the USCIS is terrified of litigation as it creates more work and could also result in a precedent that may be unfavorable for the government’s position in future cases. This is not surprising, however, given the repeated failure of USCIS to appropriately interpret the law in accordance with the INA. In reality, due to the quota system on which USCIS operates, the vast majority of USCIS officials do not care and do not have time to retaliate against litigious petitioners. Indeed, USCIS may pay more attention to cases that may potentially be litigated and give the benefit of doubt to the petitioner over a close call.

Recently, attorney Michael E. Piston, a fearless litigator, on the behalf of petitioner Delta Information Systems, bypassed the AAO and filed a complaint in the U.S. District Court for the Central District of California with this argument pursuant to §10b of the Administrative Procedure Act (APA), 5 U.S.C. § 702. In the complaint, plaintiffs Delta Information Systems, Inc. (Delta) and Srinivasa Narasimhalu allege that the Director of the California Service Center (CSC) of the USCIS erred in denying Delta’s Form I-129, Petition for Nonimmigrant Worker as a temporary worker in a specialty occupation (H-1B) on behalf of Mr. Narasimhalu and in denying Mr. Narasimhalu’s application to extend his H-1B nonimmigrant status in the United States. Plaintiffs ask the court to hold unlawful and set aside these decisions of the CSC Director that were arbitrary, capricious, and not in accordance with the law. Mr. Narasimhalu is a native of India who Delta lawfully employed as a computer professional from November 1, 2011 to February 27, 2018 with the authorization of USCIS. His education and experience has been evaluated as the equivalent of a Bachelor’s Degree in Computer Information Systems.

The plaintiffs first argue that USCIS erroneously determined that no employer-employee relationship existed between Delta and Mr. Narasimhalu. In fact, Mr. Narasimhalu has been an employee of Delta, with USCIS authorization, for over six years, and it is undisputed that the sole right to control Mr. Narasimhalu’s work activities belongs to Delta. This ground is frequently invoked by the USCIS when the H-1B worker is placed at a third party site.  In its decision, USCIS concedes that for purposes of H-1B visa classification, the terms “employer,” “employed,” “employment,” or “employer-employee relationship” are undefined. The complaint notes that because these terms are undefined by the agency, it is necessary to look to the common law definition. Citing to Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003) and Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the complaint explains that in determining whether one is an employee, the consideration is the hiring party’s right to control. Citing to Chin v. United States, 57 F.3d 722, 725 (9th Cir. 1995), the complaint argues that the decision was not in accordance with the law to the extent that it was premised upon the assertion that Delta had to actually direct or control the work of Mr. Narasimhalu rather than merely having the right to control his work. In fact, USCIS in its decision observes that a “United States employer” is defined as one who “has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee …” (emphasis added). Consistent with Clackamas, Darden, and Chin, the fact that an employer “may” control the work of an employee, instead of “must,” proves that it is only the right to control rather than the actual exercise of the right that is determinative of an employer-employee relationship. In Mr. Narasimhalu’s case, his contract with Delta expressly provides that Delta has the complete right to control his work. Additionally, the entity controlling the location where Mr. Narasimhalu will perform his work, Nabco Entrances, Inc., disaffirms having any right to control Mr. Narasimhalu’s work and fully corroborates that Delta has the complete right to control Mr. Narasimhalu’s work and will control his work. Thus, it was arbitrary and capricious to decide that Delta lacks an employer-employee relationship with Mr. Narasimhalu.

The plaintiffs also argue that USCIS erred in concluding that the job of computer systems analyst was not a specialty occupation where it is undisputed that most computer systems analysts have a bachelor’s degree in a computer related field. As a reminder, 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) provides that if a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position, then that position qualifies as a specialty occupation. Citing to Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531, at *30-31 (S.D.N.Y. Sep. 29, 2017), the complaint emphasizes that if “most” computer systems analysts have a bachelor’s degree in the appropriate field, as is provided in the OOH, then it follows that the degree is “normally” required for the position, and thus, the position qualifies as a specialty occupation. Furthermore, in its decision, USCIS pointed out, as a basis for its denial, that “computer system[s] analysts have degrees in a wide range of unrelated degrees including computer related degrees, business degrees and liberal arts degrees.” Citing to (Redacted Decision) 2012 WL 4713226 (AAO February 08, 2012), the complaint notes that consistent with the Next Generation Tech reasoning, the AAO has explained in at least 2,415 unpublished decisions that “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations.” For computer scientists, for example, the OOH provides that “[m]ost computer and information research scientists need a master’s degree in computer science or a related subject, such as computer engineering.” (emphasis added). This illustrates that, provided the specialties are closely related, a minimum of a bachelor’s degree or higher in more than one specialty satisfies the “degree in the specific specialty” requirement of INA § 214(i)(1)(8). In reversing the CSC’s denial of a petition, a U.S. District Court said that the “premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.” Residential Fin. Corp. v. United States Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). The complaint makes clear that both USCIS and the courts have repeatedly held that where most employers in an occupation require a bachelor’s degree in a narrow range of majors, or a related major, or its equivalent, it is a specialty occupation. Since it is undisputed that most computer systems analysts hold degrees in a computer related area, USCIS did not act in accordance with the law in deciding the position not to be a specialty occupation.

Attorneys who also face this obstacle should similarly challenge an H-1B denial directly in federal court in order to avoid wasting any time. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the AAO and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Some examples of recent successful litigation include Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531 (S.D.N.Y. Sep. 29, 2017) and Raj & Co. v. U.S. Citizenship & Immigration Servs., 85 F. Supp. 3d 1241 (2015). In Next Generation Tech., the court failed to see a rational connection between the evidence in the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS’s conclusion that “computer programmers are not normally required to have a bachelor’s degree.” 2017 U.S. Dist. LEXIS 165531 at *20-21.The Court found that USCIS did not present a fair reading of the OOH and failed to satisfactorily explain its determination that a computer programmer was not a specialty occupation. Id. at *21-22. In Raj & Co., the Court found that USCIS abused its discretion in determining that a position for a market research analyst did not come within the first criterion of the regulation of a specialty occupation. 85 F. Supp. 3d at 1246. The Court reasoned that USCIS impermissibly narrowed the plain language of the statute when it concluded that a bachelor’s degree being typical did not require the degree as a minimum for entry into the occupation. Id. at 1247. Even if the USCIS invokes the lack of an employer-employee relationship as a ground for denial when an H-1B worker is assigned to a client site, one should point out that the goal of USCIS’s latest policy memo concerning third party relationships is to exercise more scrutiny on contractual arrangements with third parties rather than deny the legitimacy of such an arrangement. The USCIS in its policy memo acknowledges that such arrangements may be a legitimate and frequently used business model under the H-1B visa program. These cases show that it is unjustified to deny highly qualified foreigners the opportunity to work in specialty occupations in the United States based on a narrowed reading of the OOH. Hopefully, with continued pushback, the federal courts will put an end to such arbitrary denials.

Another reason to sue is that advocacy is no longer effective with the Trump administration. Although there are good policy arguments to approve legitimate H-1B visa petitions in a full employment economy as it makes U.S. employers more competitive, resulting in further jobs, they make no difference if high level immigration officials are driven by another agenda based on white nationalism and xenophobia. The same officials who spend their time conjuring up restrictive policies for purposes of denying H-1B petitions will need to focus their efforts in defending litigation within an agency with a finite budget. Moreover, challenging a denial under the APA is not as time consuming as it seems as there is generally no discovery, depositions, or interrogatories, although there may be some exceptions. It requires drafting a complaint, researching and writing a motion for summary judgment, reviewing and opposing the government’s motion for summary judgment and drafting a reply brief. Business immigration lawyers and their clients have generally refrained from suing. This is understandable as litigation is time consuming and a federal court may still give deference to the government’s reasoning behind a denial. We can try to overcome denials by responding to RFEs and appealing to the AAO. But after that, if you still want to show that you are right and the government has gotten it completely wrong, then it may be time to sue the government. Federal judges may have a different reaction than the typical USCIS adjudicator. They may be shocked and viscerally angry at the way the USCIS is interpreting the law and may just about reverse the denial!

Update: After the blog was posted, it was noticed that the complaint in Delta Information Systems, Inc. v. USCIS had been voluntarily dismissed. Michael Piston has informed the authors that a new complaint will be refiled with the beneficiary as the plaintiff. Further Update: On April 3, 2018, the complaint was refiled on behalf of the Beneficiary, Mr. Narasimhalu, as the plaintiff. The complaint asserts that plaintiff has standing to bring an action where he suffered an injury in fact, there is a causal connection between the injury and the conduct complained of, and it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Eleyteria Diakopoulos  is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC. The authors also thank Sophia Genovese and David Isaacson for their assistance.

Making The Law Up As He Goes: Sessions Refers Another Case to Himself, This Time On Motions For Continuance

Attorney General Jeff Sessions has yet again referred an immigration case to himself for review in Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018). This time, AG Sessions asks:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

As noted, 8 C.F.R. § 1003.29 empowers Immigration Judges (IJs) to grant motions for continuance “for good caution shown.” 8 C.F.R. § 1240.6, by contrast, allows IJs to grant reasonable adjournments either at their discretion, or “for good cause” upon request by one of the parties. Typically, these motions are filed by either the Respondent or the Department of Homeland Security (DHS) for a number of reasons. For example, the Respondent may motion for a continuance when they are awaiting adjudication of a case outside of Immigration Court, such as a pending I-130 or I-140 petition with USCIS or even an outside criminal or family law case that has bearing on the removal proceedings. Similarly, the government attorney for DHS may motion for a continuance when the attorney has an unexpected emergency, time conflict with the hearing date, or simply needs more time to prepare.

The BIA has sensibly addressed motions for continuance in several cases authorizing IJs to grant them when there is when there was a pending immigrant petition with the USCIS. In Matter of Hashimi, 24 I&N Dec. 785 (BIA 2009), for example, the IJ granted the respondent four continuances on his removal proceedings to allow for USCIS to adjudicate his family-based immigrant visa petition. The IJ denied the respondent’s fifth motion to continue because he was expected to meet the Department of Justice’s “case completion goals,” which required completing cases within a reasonable period of time. The Third Circuit determined that the IJ’s denial based on case-completion goals was arbitrary and an abuse of discretion. On remand, the BIA discussed relevant factors when “determining whether respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130” filed concurrently with an adjustment of status application, given the conflicting needs of finality of removal proceedings and allowing the opportunity for respondent to apply for relief. Citing to Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), the BIA stated that although the IJ should exercise favorable discretion when there is prima facie eligibility for a visa petition, this does not require that a continuance be granted in every case. The BIA held that in determining whether to continue proceedings where there is a pending visa petition, the IJ should consider a variety of factors, including, but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. The focus is the apparent ultimate likelihood of success on the adjustment application. The IJ needs some basis to examine the viability of the underlying visa petition, the respondent’s statutory eligibility for adjustment, and the merits of the adjustment application. This may require the respondent to submit evidence, such as the visa petition, the adjustment application, any prior visa petitions denials, and any other supporting documentation. The BIA sustained the respondent’s appeal and remanded the record to the Immigration Judge to consider the factors and determine whether a continuance was warranted.

In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the respondent was placed in removal proceedings after his employer filed for labor certification on his behalf. Over the period of 18 months, the respondent was granted 10 continuances for a variety of reasons, including to obtain counsel and prepare the case and to determine the status of the labor certification. The IJ denied the final motion to continue based on the pending labor certification because he “concluded that the respondent had had ‘sufficient time’ to obtain an approved labor certification.” While the matter was pending before the Second Circuit, the labor certification was approved but then later expired due to the respondent’s employer not filing a visa petition. On remand, the issue before the BIA was to provide a “reasoned set of standards explicating when continuances for labor certification are within the ‘range of permissible decisions’ available to an [IJ], and when they are not.” Id. at 129. The BIA held that as a general rule in the employment context, discretion in granting a motion to continue ongoing removal proceedings should be favorably exercised where there is a prima facie approvable visa petition and adjustment application. Furthermore, in determining whether good cause exists for a continuance in removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an “Immigration Judge should first determine the alien’s place in the adjustment of status process and then consider and balance” the factors identified in Matter of Hashmi and any other relevant considerations. For example, a labor certification no longer being valid, and other similar types of evidence, might affect the case on remand or in the context of a motion to reopen. Furthermore, the BIA held that the pendency of a labor certification generally is not sufficient to grant a continuance in the absence of additional persuasive factors. Here, the BIA determined that remand was not warranted based on the new evidence that the labor certification, which was approved, had expired and there was no pending visa petition. While the respondent was a grandfathered alien who could have potentially been eligible for INA § 245(i) treatment, because there was no pending labor certification, the respondent could not establish prima facie eligibility for adjustment of status under INA § 245(i)(2)(A)-(B). The appeal was dismissed.

In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the Board. In Avetisyan’s case, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

In Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018), AG Sessions referred Avetisyan to himself questioning whether there was any authority for IJs or the BIA to administratively close cases. Even if AG Sessions was able to overrule Ayetisyan and deny IJs the ability to administratively close cases, it was hoped that their ability to grant continuances would not be undermined. After all, there is explicit authority pursuant to 8 C.F.R. § 1003.29 for an IJ to grant a continuance for good cause. Depriving an IJ that ability, especially when there is an application pending that would allow the respondent to obtain permanent residency and moot the removal proceeding, would lead to a complete and total evisceration of Ayetisyan. Sessions can only achieve this if the basis to continue proceedings under Hashmi and Rajah are also overturned.

It is clear AG Session seeks to discourage motions for continuance as a way to maximize the deportations of noncitizens even if they have a meritorious pending applications for permanent residency that would otherwise thwart their deportations. In the Department of Justice’s Backgrounder on EOIR Strategic Caseload Reduction Plan, for example, Sessions blames IJs’ low productivity levels and rising backlogs on “representatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases” such as motions for continuance. Moreover, in the July 2017 EOIR Operating Policies and Procedures Memorandum 17-01: Continuances, IJs were urged to limit the grant of continuances, stating that “the delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court system, exacerbate already crowded immigration dockets.”

But limiting continuances in the name of efficiency is a smokescreen. Discouraging motions for continuances will not make delays go away in the immigration court system. Respondents will appeal the denial of continuances into the courts of appeal of each circuit, which will result in remands back to the immigration courts in addition to clogging the circuits. This used to be the case prior to Hashmi and Rajah, where remands from the circuit court resulted in the further clogging up of immigration dockets. Moreover, if the USCIS processes cases in a tardy manner, and respondents in removal are unable to legitimately seek a continuance, there will be an increasing number of mandamus lawsuits against the agency to compel USCIS to process the case more expeditiously. The BIA’s reasoning in Hashmi, Rajah and Avetisyan was based on common sense and fairness. If there was a reasonable basis for a respondents in removal proceeding to demonstrate that they would ultimately get permanent residency but for a delay in processing of the visa petition or the priority date not being current, why deprive respondents of permanent residency by deporting them?  The federal courts understood this too, and will continue to do so if we do so if respondents cannot get continuances for good cause in removal proceedings.

Thus, in Subhan v. Ashcroft, 383 F.3d 591 (2004), the Seventh Circuit found that an IJ had abused his discretion when the ground for the continuance was a pending labor certification.  The Court noted that the IJ’s denial was based simply on the fact that the labor authorities had not yet acted rather than issues particularized to the petitioner’s circumstances such as the lack of bona fides of the labor certification or other grounds pertaining to national security or criminal issues. In another Seventh Circuit decision, Ahmed v. Gonzales, 467 F.3d 669 (2006), the court went even further than Subhan in holding that the IJ’s denial of a continuance ignored the fact that the petitioner was the “grandfathered” beneficiary under INA 245(i) of an I-130 petition even though the petitioner had yet to have a labor certification filed on his behalf. Of course, some courts upheld an IJ’s decision to deny continuance if the respondent’s underlying applications were not meritorious, see e.g. Morgan v. Gonzales, 445 F.3d 549 (2006), but the frameworks established in Hashmi and Rajah for providing for a continuance based on the merits of the underlying applications for permanent residence are sound and should not be upset. They provide IJs with discretion to grant continuances, and at the same time, authorize IJs to deny continuances when the pending request for permanent residency lacks merit.

There is no need for Sessions to undermine a framework that is working, and also less need to further erode the independence of IJs to judiciously exercise discretion based on their own sense of fairness and efficiency. Decisions to not grant continuances of IJs have been upheld by federal courts post-Hashmi and Rajah when the priority date was a long way away or when an I-601 waiver supporting an adjustment was denied and its appeal was pending. See e.g. Luevano v. Holder, 660 F.3d 1207 (2011); Kwak v. Holder, 607 F.3d 1140 (2010). On the other hand, IJs’ decisions that did not follow the Hashmi and Rajah factors have been overturned. See e.g., Ferrera v. AG, No. 11-14074 (11th Cir. 2013); Simon v. Holder, 654 F.3d 440 (2011). This is clear evidence that the system is working and does not need Sessions’ interference.  Avetisyan along with Hashmi and Rajah also view the immigration system as a whole with all its warts and imperfections. These decisions take into account the inefficiencies resulting in delays of approving I-130s and I-140s, along with retrogression in priority dates. If the immigration system worked more efficiently, there would be less need to place people in removal proceedings. But if people are placed in removal proceedings as a result of these inefficiencies, why not continue their proceedings, or even temporarily close their proceedings, until such time that they can obtain the benefit and terminate proceedings – which should not have been started in the first place? If Sessions is unable to see it this way when he reconsiders BIA decisions to undermine Avetisyan, Hashmi and Rajah, he is not doing so to create efficiency but to further his animus and hostility against immigrants.

(The authors thank Eleyteria Diakopoulous for her assistance in providing research for this article. Ms. Diakopoulous is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

Sessions Likely to End Asylum Eligibility for Victims of Domestic Violence: How Courts Can Resist

Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

DHS conceded the nexus requirement by agreeing that the respondent had indeed suffered past persecution on account of her membership in a particular social group. The BIA noted that “the issue of nexus will depend on the facts and circumstances of an individual claim.” Id. at 395. The BIA then remanded to the Immigration Judge for determination of whether the Guatemalan government was “unable or unwilling” to stop the respondent’s abuser. On remand, the Immigration Judge granted asylum upon the stipulation of the parties (and thus did not provide a reasoned analysis as to the Guatemalan government’s inability or unwillingness to protect the respondent from her abuser).

Relying on the precedent in Matter of A-R-C-G-, the respondent in Matter of A-B- similarly contended that she was eligible for asylum based on her membership in a particular social group, namely “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Matter of A-B-, at 2. The Immigration Judge below found that the respondent had not met her burden in establishing eligibility for asylum, finding that her proposed particular social group was not cognizable, that even if the social group was cognizable, that she did not establish a nexus between the harm suffered and her membership in the social group, and finding that the respondent had not demonstrated that the El Salvadoran government was unable or unwilling to protect her from harm. Id. at 3. On appeal, the BIA found that the proposed social group was cognizable, where it was “substantially similar” to the proposed group in Matter of A-R-C-G- and further found that the respondent had met her burden in establishing particularly and social distinctness by way of a submitted country conditions report. Id. at 2. Moreover, the BIA found that the respondent had indeed shown a nexus between her abuse and her membership in the particular social group where the “record indicates that the ex-husband abused her from his position of perceived authority, as her ex-husband and the father of her children…” Id. at 3. The BIA also found that the respondent had sufficiently demonstrated that the El Salvadoran government was unable and unwilling to protect her from harm where although the respondent had previously obtained two orders of protection against her abuser, there were several occasions where local police authorities refused to intervene and afford the respondent protection. Moreover, the respondent’s brother-in-law, who also frequently threatened violence against her, was a police officer, and thus strengthened respondent’s claim that the government would not provide her with protection. The BIA held that the respondent had demonstrated past persecution on account of her membership in a cognizable particular social group, and sustained the respondent’s appeal, remanding for completion of background checks.

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution.  The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

Returning to the Acosta definition of Particular Social Group

Before Matter of M-E-V-G- and Matter of W-G-R-’s additional particularity and social distinction requirements, Matter of Acosta dictated the proper particular social group analysis. The BIA in Matter of Acosta held,

“Persecution on account of membership in a particular social group” refers to persecution that is directed toward an individual who is a member of a group of persons, all of whom share a common, immutable characteristic. i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed

The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership.

19 I&N Dec. at 212, 233.

Applying the doctrine of ejusdem generis, the BIA reasoned that the particular social group category, like the other four enumerated grounds (race, religion, nationality, and political opinion), should be defined by immutable characters that cannot, or ought not to, be changed. Id. at 233.

While nothing is perfect, the Acosta particular social group analysis worked well for the next two decades. However, after the 2003 BIA purge of liberal-leaning judges, the asylum system experienced a dramatic shift in particular social group analysis. The BIA in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), for example, added that in addition to demonstrating the shared immutable characteristic that defines the particular social group, an asylum applicant would also need to show that the group was “socially visible” in society. Matter of C-A-, 23 I&N Dec. at 951. Social visibility was later refined in Matter of M-E-V-G- and W-G-R-, which clarified that the group needs to be “socially distinct” as to be perceived by society, and not necessarily “ocularly” visible. Matter of W-G-R-, 26 I&N Dec. at 216.

On appeal, Matter of A-B- ought to advocate for the return of the pure Acosta particular social group analysis and rejection of the Matter of C-A- social visibility requirement. Indeed, some circuits have rejected this requirement. In Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), the Seventh Circuit declined Chevron deference to the BIA’s denial of an asylum case and rejected the social visibility requirement, finding that it “makes no sense.” Similarly in Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011), the Third Circuit found that the social visibility requirement had no place in particular social group analysis, reasoning that

[i]n the wake of Acosta, the BIA recognized a number of groups as “particular social groups” where there was no indication that the group’s members possessed “characteristics that were highly visible and recognizable by others in the country in question” or possessed characteristics that were otherwise “socially visible” or recognizable. Indeed, we are hard-pressed to understand how the “social visibility” requirement was satisfied in prior cases using the Acosta standard. By way of examples noted above, the BIA has found each of the following groups to constitute a “particular social group” for purposes of refugee status: women who are opposed to female genital mutilation (Matter of Kasinga), homosexuals required to register in Cuba, (Matter of Toboso-Alfonso), and former members of the El Salvador national police (Matter of Fuentes). Yet, neither anything in the Board’s opinions in those cases nor a general understanding of any of those groups, suggests that the members of the groups are “socially visible.” The members of each of these groups have characteristics which are completely internal to the individual and cannot be observed or known by other members of the society in question (or even other members of the group) unless and until the individual member chooses to make that characteristic known.

Although the BIA has since clarified in M-E-V-G- and W-G-R- that social distinction does not require ocular visibility, advocates have found this clarification disingenuous and that it often contradicts the particularity requirement.

Clarifying the Nexus Requirement

As explained above, DHS conceded the nexus requirement in Matter of A-R-C-G- by agreeing that the respondent had indeed suffered past persecution on account of her membership in a particular social group. 26 I&N Dec. at 395. The BIA noted that “the issue of nexus will depend on the facts and circumstances of an individual claim.” Id.

In the recent case, Matter of L-E-A–, 27 I&N Dec. 40 (BIA 2017), the BIA denied asylum to a respondent for failing to meet the nexus requirement. As we have previously blogged, the respondent here was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to grab him and put him in their car, but he was able to get away. The respondent left for the border and successfully crossed into the United States. The BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, the persecution would not have been due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The respondent in Matter of A-B- ought to distinguish the finding in Matter of L-E-A- preemptively on appeal, and seek to definitively establish what the nexus requirement ought to be in domestic violence cases. In particular, they will want to avoid an L-E-A-type finding which would reason that the persecution was not due to the woman’s membership in a particular social group, but rather because the persecutor was violent. This was the conclusion of the BIA in Matter of R-A-, 22 I&N 906 (BIA 1999), a decision pre-dating A-R-C-G-, which denied asylum to a victim of domestic violence. This erroneous finding continues to be encountered today, where Immigration Judges continue to find that it is an abuser’s jealousy or own violent behaviors that motivated the harm, not the victim’s membership in a particular social group. As pointed out by Blaine Bookey, “this rationale defies logic: an abuser’s ‘jealousy’ [or violence] is inherently linked to a woman’s gender and status in a relationship as the property of her partner.”

Clarification on this issue is imperative for uniform adjudication of domestic violence asylum cases. The Court handling the Matter of A-B- appeal may look at how other countries have interpreted the nexus requirement under international law. In New Zealand, for example, the Refugee Status Appeals Authority found,

[T]he words “for reasons of” require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reason of the person’s membership or perceived membership of the particular social group…

[T]he nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb.  This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (e.g. husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied.  Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied. In either case the persecution is for reason of the admitted Convention reason. This is because “persecution” is a construct of two separate but essential elements, namely risk of serious harm and failure of protection.

(emphasis added).

The United Kingdom came to a similar understanding of the nexus requirement in the seminal case, Islam and Shah v. Secretary of State for the Home Department, [1999] 2 A.C. 629 (H.L.), finding that the requirement is satisfied where the applicant can show that the harm was motivated by her membership in a particular social group, or by showing that the state failed to provide her with protection from that harm due to her membership in that particular social group. The US Courts have an opportunity to expand asylum eligibility for victims of domestic violence by adopting a similar understanding of the nexus requirement, where an applicant can satisfy the nexus requirement via the abuser’s conduct or by the state’s failure to provide protection from this conduct due to her membership in a particular social group.

Clarifying the State Protection Analysis

State protection, or the lack thereof, is critical in successfully arguing particular social group cases when the persecution is committed by private actors. However, Matter of A-R-C-G- did not provide definitive guidance for assessing the adequacy of state protection. As explained, the BIA remanded the case back to the Immigration Judge for determination of whether the Guatemalan government was “unable or unwilling” to stop the respondent’s abuser. On remand, the Immigration Judge granted asylum at stipulation of the parties and thus did not provide a reasoned analysis as to the Guatemalan government’s inability or unwillingness to protect the respondent from her abuser.

On appeal, Matter of A-B- can seek to clarify how adjudicators ought to analyze the lack of state protection for victims of domestic violence. Advocates have reported inconsistent adjudication in state protection analyses, where some Immigration Judges fail to take country conditions into consideration or fail to understand that although a woman obtained orders of protection against her abuser that the state nevertheless failed to protect her from future abuse when the partner violated the order. Accordingly, uniform guidance is warranted to allow for seamless and consistent adjudication, such as the consideration of country conditions evidence, testimony from the applicant about whether she reasonably could have sought protection in her home country, and evidence of lackluster implementation of domestic violence laws at the state and local levels.

AG Sessions will undoubtedly deny the applicant’s asylum in Matter of A-B- and seek to radically change the adjudication of asylum cases based on domestic violence, and perhaps all particular social group cases based on private criminal activity. However, Matter of A-B-, on appeal, can not only overcome Sessions’ erroneous reading of the law, but can help to expand the eligibility of asylum for victims of domestic violence and clarify those issues which were left untouched by Matter of A-R-C-G-. Critically, the respondent in Matter of A-B- can raise the question of where the Courts wish to fall morally. Do we want to be a country that denies asylum to victims of domestic violence whose countries do little to nothing to protect them? Do we want to stand in stark contrast to nations such as Canada, which has long recognized eligibility for victims of domestic violence, or the United Kingdom, which has similarly recognized such eligibility and does not impose stringent cohesive requirements in their particular social group analyses?  The eventual appeal of Matter of A-B- will grant the Courts another opportunity to resist the anti-immigrant policies of this administration that have undermined the notion of America as being the beacon of hope for the persecuted.



[i] It must be noted that men and boys are also severely affected by sexual violence. Women and girls, however, constitute the vast majority of victims worldwide and are the population of concern contemplated in Matter of A-R-C-G-, and are thus the population discussed in this article.

California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional

The Trump administration has ramped up its ire against California by filing a lawsuit against three different California laws that aims to protect immigrants from the harsh effects of federal enforcement. The three laws are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration law compliance; the California Values Act, which  limits communication from state and local law enforcement with federal immigration officials and prevents them from investigating people for immigration enforcement purposes; and  A.B. 103, which subjects local detention facilities to twice-yearly inspections by the Attorney General’s office.

The lawsuit, United States of America v. California, claims that the California laws render it impossible for the federal government to deport people not born in the United States who live in California. It alleges that California has obstructed the United States’ ability to enforce laws that Congress has created, and that the California protections violate the constitutional principle that federal immigration law is the supreme law of the land. All three laws were signed during the Trump administration. Governor Brown signed the Immigration Worker Protection Act and the California Values Act in October 2017, and A.B. 103 in June 2017.The lawsuit, which also names Governor Brown and AG Becerra as defendant, calls for a declaration that the provisions are invalid, as well as preliminary and permanent injunctions. Under the preemption doctrine, when a state law obstructs or conflicts with federal law, the state law is invalidated.

Remarkably the Trump administration has relied on Arizona v. United States, a 2012 Supreme Court decision that held that Arizona had overstepped its limits by enacting immigration laws that penalized non-citizens that undermined federal immigration law. When the Obama administration  launched this lawsuit against Arizona, it was criticized by Republicans as undermining state rights,  and it is thus ironic that the Trump administration is relying on Arizona v. United States to attack the laws of California that are the opposite of Arizona’s, which are friendly towards immigrants.

While advocates in favor of more friendly immigration laws, including yours truly, cheered when the Supreme Court found most of Arizona’s laws preempted by federal immigration law, this is not a case of double standards when the same advocates are critical of the Trump administration’s latest lawsuit against California. Arizona’s SB 1070 truly conflicted with federal immigration law, according to the Supreme Court, and were contrary to the federal immigration scheme that was enacted by Congress. Those laws literally usurped federal immigration law. For instance, Section 3 of SB 1070 penalized non-citizens for failure to carry registration documents even though there was a similar comprehensive federal requirement to carry registration documents. Section 5(c) criminalized unauthorized immigrants who applied for work. The federal scheme criminalized only employers, but not the individual for unauthorized work, and thus 5(c) stood as an obstacle to the objectives of Congress. Section 6 allowed Arizona police officers to make warrantless arrests based on probable cause that a non-citizen was removable from the United States. This too was preempted because under the federal scheme being removable is not a criminal offense. Still, Arizona was a mixed decision. Section 2(B), the most controversial provision of SB 1070 known as the “show me your papers” law, was upheld. The Supreme Court held that 2(B) was not creating a new state immigration law unlike the other provisions that were found unconstitutional; it only allowed Arizona police officers to determine if someone was unlawfully present by inquiring about person’s status with DHS, and such communication and exchange of information had not been foreclosed by Congress.

Would California’s laws, even if friendly towards immigrants, be preempted under Arizona v. US? The fact that a state may pass an immigrant friendly law rather than a punitive law is not determinative in analyzing whether the law has been preempted if those laws still pose an obstacle to the enforcement of federal law or are in conflict with it.

Under the doctrine of preemption, which is based on the Supremacy Clause in the US Constitution, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law. Notwithstanding the sweeping Constitutional mandate in favor federal laws being the supreme law of the country, states too possess sovereignty concurrent with the federal government. Therefore, the Intent of Congress is the key. When there is an express preemption provision in a federal statute, courts will identify the domain expressly preempted by that language.

When there is no express provision in a federal statute, a state law can also be impliedly preempted under field preemption or conflict preemption. Under field preemption, it must be demonstrated that the federal government has fully occupied the field it has chosen to regulate. In the case of conflict preemption, if there is a conflict between the state law and the federal law, it must be demonstrated that compliance with both federal and state law is a physical impossibility or that the state law stands as an obstacle to the purposes of Congress.

Relying on Arizona v. United States, the complaint in United States v. California claims that the United States has broad authority to establish immigration laws, the execution of which states cannot obstruct or discriminate against. The complaint further asserts that Congress has created laws that provide broad authority to the federal government to investigate, arrest, detain and remove non-citizens suspected to being or found to be unlawfully in the US. The complaint also states that consultation between the federal and state governments is an important feature of the immigration system, and thus a state may not prohibit its official from providing information to the DHS regarding the citizenship or immigration status of an individual. Finally, the complaint notes that Congress has enacted a comprehensive framework for combatting the employment of illegal aliens, and can penalize employers for not verifying the employment status of employees or for knowingly hiring unauthorized workers.

Although California will make extensive arguments in defending its laws, some preliminary observations can be made. The California laws have been enacted to protect the constitutional and civil rights of all people living in the state of California. While the federal government is authorized to enforce the immigration laws, there have been many instances of egregious abuses by ICE agents that violate the rights of California residents. California is not interfering in the enforcement federal immigration laws or usurping them like Arizona did, but is providing a constitutional baseline for federal agents when enforcing federal law. A state can pass laws with the objective of protecting its residents. Thus, in De Canas v. Bica, the Supreme Court held that a state law regulating non-citizens is not per se preempted as a regulation of federal immigration law, which is essentially a determination of who should or not be admitted in the country. States possess broad police powers to regulate the employment relationship and to protect workers within the state. Even if the California laws mildly frustrate federal authority, they only ensure that the civil rights of California residents subjected to heavy handed enforcement are protected. According to its website, the Civil Rights Enforcement Section in the California Attorney General’s office is committed to the strong and vigorous enforcement of federal and state civil rights laws.  Thus, the California laws have been enacted to protect a legitimate state interest – the constitutional and civil rights of its residents – rather than to oust the federal government from enforcing immigration laws. Federal ICE agents are still free to enter California to enforce the immigration law in order to apprehend, detain and deport non-citizens who are not lawfully in the US.

The California Values Act prohibits state and local officials from providing information regarding a person’s release, unless there is a judicial warrant or a judicial probable cause determination or the individual has been convicted of certain felonies or other serious crimes. It is well within the constitutional rights of a state to refuse to provide such information.   Pursuant to Printz v. United States, 521 U.S. 898 (1997), the federal government cannot commandeer states to enact or administer a federal regulatory program under the Tenth Amendment.  In that case, sheriffs challenged the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. Justice Antonin Scalia, writing for the majority, held that the sheriffs, as well as states, cannot be commandeered under federal law enforcement schemes with which they disagreed. Moreover, the underpinning behind the California Values Act is to keep communities safe by ensuring that local police can function effectively within the community by not betraying the trust of immigrants who may cooperate as crime victims. If local police were required to provide information regarding non-citizens, they would not be able combat crimes effectively.

The Immigrant Worker Protection Act prevents employers from voluntarily consenting to an immigration enforcement agent form entering the workplace or providing access to the employer’s records, unless the agent has a judicial warrant or consent is otherwise required by federal law. The law also requires employers to notify employees within 72 hours off receiving a notice of inspection. While the Trump administration argues that preventing an employer from voluntarily consenting to an agent from entering the workplace or providing records undermines the ability of enforcement agents from enforcing the employer sanctions provisions under the Immigration and Nationality Act, what the California law does is to again set a baseline that would protect the constitutional and civil rights of California workers. The law does not prevent the federal government from enforcing federal law, it only insists that agents obtain a judicial warrant and workers be provided notice. It is well settled that ICE needs a judicial warrant under the Fourth Amendment in order to enter a private place without consent. Although the Immigrant Worker Protection Act precludes an employer from providing voluntary consent, which may be viewed as interfering with the federal scheme, a judicial warrant could still be justified as the workers may not have consented to a federal agent entering the work place even if the employer may have.

Similarly, California’s AB 103 requiring state officials to review county, local or private locked detention facilities in which noncitizens are being detained is to ensure that the detention facilities meet the constitutional standards. There have been far too many cases of non-citizens being detained for purposes of civil proceedings being abused and mistreated. Again, AB 103’s motivation is not to prevent the detention of non-citizens but to ensure that their detention meets minimum constitutional standards.

Although Attorney General Sessions on behalf of the Trump administration believes that California’s laws ought to be preempted based on Arizona v. United States, they are essentially civil rights laws. A state may enact laws ensuring the civil rights of its residents, including non-citizens, whether legal or not. Civil rights flow from the US Constitution, as well as California’s Constitution, and they ought not to be preempted, especially in light of egregious abuses by ICE agents in enforcing federal immigration law.  Ensuring civil rights to all is a bedrock American principle. Some believe that California may have gone too far, but it can be legitimately argued that a state law upholding civil rights should never be in conflict with a federal law or be an obstacle to federal immigration law enforcement. Civil rights must be adhered to by all government officials, including federal immigration authorities. The preemption doctrine cannot be invoked by federal authorities as an excuse for violating civil rights.








The Draconian Documentation Regime For Third Party Arrangements in H-1B Visa Petitions

The attacks on the H-1B visa program by the Trump administration continue unabated. On February 22, 2018,  U.S. Citizenship and Immigration Services (USCIS)  published a policy memorandum entitled Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Third-Party Memo) clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

USCIS said this clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. “This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location,” USCIS said. The guidance explains that for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

  • The beneficiary will be employed in a specialty occupation; and
  • The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition, the guidance states. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

In a related news release to the Third-Party Memo, USCIS said the updated policy guidance aligns with President Trump’s “Buy American and Hire American” Executive Order and directive to protect the interests of U.S. workers. “Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning,” the release stated.

Although the purpose of the Third-Party Memo is to exercise more scrutiny on contractual arrangements with third parties, the USCIS acknowledges that such arrangements may be a legitimate and frequently used business model under the H-1B visa program.  The arrangement typically involves a third-party client who solicits service providers to deliver a product or fill a position at their worksite. In some cases, the petitioner may place the H-1B worker directly with the client. In other cases, there may be one or more intermediaries between the petitioner and the end client, commonly referred to as vendors. As the relationship between the petitioner and the beneficiary becomes more attenuated through intermediaries such as contractors, vendors or brokers, there is a greater need for the petitioner to specifically trace how it will maintain an employer-employee relationship with the beneficiary. For the very first time, the Third-Party Memo drills further into vendor concepts and acknowledges the role of “primary vendors” who have an established or preferred relationship with a client, or “implementing vendors,” who bid on IT projects with a client and then implement the contract using their own staff. Primary and implementing vendors will turn to secondary vendors to fill staffing needs on individual projects. USCIS acknowledges that the ultimate client project may be staffed by a team of H-1B beneficiaries who were petitioned by different, unrelated employers.   USCIS will need corroborating evidence to substantiate a claim of actual work in a specialty occupation, such as contracts and work orders, including documentation to show the relationship between the petitioner, intervening vendors and the end client.

The need to document such third-party arrangements is not new. The USCIS has used Donald Neufeld’s January 2010 guidance (“Neufeld Memo”) to provide a framework for demonstrating that an employer-employee relationship exists.  According to the Neufeld Memo, “The petitioner will have met the relationship test, if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. In assessing the requisite degree of control, the officer should be mindful of the nature of the petitioner’s business and the type of work of the beneficiary.” The Neufeld Memo emphasized the need for the petitioner to demonstrate its right to control the employment of the H-1B worker. As the relationship got more attenuated through intermediaries, USCIS has questioned the petitioner’s right of control over the beneficiary’s employment through requests for evidence. The new policy guidance recognizes the existence of intermediaries such as vendors as legitimate under the H-1B visa program. However, the Third-Party Memo suggests that in addition to contracts and work orders, the petitioner may be able to demonstrate that the beneficiary has an actual work assignment in a specialty occupation by providing a combination of the following or similar types of following evidence:

  • Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
  • Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite.
  • Copies of detailed statements of work or work orders signed by an authorized official or the ultimate end-client companywhere the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked.
  • A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The lettershould provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.

(Emphasis added.)

The need to submit detailed statements from the end-client company documentation regarding the specialized duties that the H-1B beneficiary will perform, as well as the qualifications that are required to perform those duties, would be extremely onerous. Since the end-client is not the ultimate employer of the beneficiary, most clients would be reluctant to provide such letters. Indeed, providing such letters would be tantamount to acknowledging an employment relationship with the beneficiary, which the end client has avoided by arranging to contract with the petitioner or intervening vendors for a project or to fill positions.

Requiring the end client to provide a detailed discussion of the assignment and its requirements would directly contradict the Neufeld Memo, which insists that the employer has the right of control over the H-1B beneficiary’s employment. If the end client sets the requirements for the position, then the end client would be acting as the employer and controlling the H-1B worker’s employment. This would have other implications for the end client under a joint employer liability theory, and it would not be surprising for an end client to be reluctant in providing a detailed statement about the position and its requirements, especially when its relationship with the petitioner is attenuated through layers of vendors. However, in Defensor v. Meissner, 201 F.3d 384 (5th Cir 2000), the Fifth Circuit held that if the H-1B worker is placed at a third-party client site, it is important to demonstrate that both the petitioning employer and the client require a bachelor’s degree in a specialized field. The USCIS frequently cites   Defensor v. Meissner in requests for evidence requiring further details about the position from the end client even while it requests evidence relating to the petitioning employer’s right of control over the H-1B worker’s employment at the client’s worksite. In some ways, Defensor v. Meissner contradicts the requirements under the Neufeld Memo, although immigration practitioners are not unfamiliar in playing the role of contortionist when making arguments on behalf of clients that are subject to the USCIS’s contradictory requirements! Perhaps the conflict between Defensor v. Meissner and the Neufeld Memo can be reconciled because the petitioner must demonstrate that it has the right of ultimate control over the H-1B worker’s employment in order to demonstrate the employer-employee relationship even though there could be more immediate control by the client at its worksite.

When the end client is reluctant to issue further details of the H-1B worker’s employment, the supplementary guidance to the Neufeld Memo issued in March 12 2012 (March 2012 Supplementary Guidance) could also come to the rescue.  USCIS noted that the Third-Party Memo is intended to be read together with the Neufeld Memo and as a complement to that policy. The March 2012 Supplementary Guidance further clarifies that a petition involving a third-party worksite may be approved if the petitioner can demonstrate that it will retain the right to control the beneficiary. A number of different forms of documentation may be provided to demonstrate that a right to control exists, such as a letter from the end-client, but such a letter is not an actual requirement.  Question 5 of the March 2012 Guidance states as follows:

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist. (Emphasis added.)

Furthermore, Question 13 of the March 2012 Guidance states as follows:

Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?

A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship. (Emphasis added.)

Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions, rev. March 2012.

Despite the issuance of the Third-Party Memo insisting on further details about the H-1B worker’s job duties and requirements from the end client, petitioners may also want to point to the March 2012 Supplementary Guidance to the Neufeld Memo, which has not been reversed. Thus, when a document may not be available, a petitioner can point to the March 2012 Supplementary Guidance and provide a combination of any documents to establish, by a preponderance of the evidence, that the employer-employee relationship will exist. The Third-Party Memo puts additional obstacles. It rescinds a prior 1995 policy guidance and insists that a precise itinerary be submitted that requires services to be performed in more than one location. The prior guidance only required general statements, but the Third-Party Memo requires exact dates of employment and the locations of the services to be performed. The itinerary should detail when and where the beneficiary will be performing the services, and the Third-Party Memo sternly asserts that there can be no exception from the regulatory requirement at 8 CFR 214.2(h)(2)(i)(B).

On the other hand, the itinerary should only be required when the services will be performed at more than one location. If the H-1B worker will only be placed at only one client location, then there should be no insistence on an itinerary by the USCIS.  If the work assignment should change later and cannot be anticipated at the time of filing the H-1B petition, resulting in a change of location, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AA0 2015), has already contemplated this and requires an employer to file an amended H-1B petition if the change of location requires a new Labor Condition Application. The USCIS should not be asking for an itinerary when the new job location cannot be anticipated, but the petitioner will file an amendment pursuant to Matter of Simeio Solutions. But under the Third-Party Memo, if the documentation does not clearly indicate that the work assignment will last for the duration of the proposed H-1B validity period, the petition may be approved for less than three years. At the time of filing an H-1B extension, if the petitioner cannot establish that the petitioner met the H-1B requirements when the worker was placed at the client site, including maintaining the right to control the beneficiary’s employment, the Third-Party Memo suggests that the extension may be denied even if it approved the new petition.

The H-1B visa has long been identified in the mind of its many critics with India, perhaps because of the vigorous use of this visa by Indian nationals, particularly in the IT industry. The Neufeld Memo, along with Matter of Simeio and now the Third-Party Memo, which was inspired by President Trump’s Buy American Hire American Executive Order,   is a direct attack on the business model whose consistent efficiency has promoted reliability and quality in the IT industry, a condition whose existence is directly due to the ability of major technology companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers,  promote diversity of product development and more jobs for Americans.  This is what the oft-criticized “job shop” readily provides, which has been recognized as a legitimate business model in the Third-Party Memo. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  While most would not want to openly admit it, one wonders whether this business model would be so maligned and attacked if it was developed in a Scandinavian country rather than India. Indian H-1B workers have been unfairly disparaged even in the media for displacing American workers as we saw in the Disney episode (see my prior blog, Putting Disney and H-1B Visas in Perspective) without any regard to the benefits these H-1B workers ultimately bring to the American economy.  The fact that the USCIS seeks to restrict this development, rather than to nurture it not only reflects the chronically insular character of U.S. immigration policy but the new siege mentality under the Trump administration that has deprived the nation and its economic system of the capacity for job creation and growth that would otherwise benefit us all. Nowhere is this fortress mentality more evident than in the draconian document regime that was first established under the Neufeld Memo and continues to build up under the Third-Party Memo, where the lines between rhetoric and reality have become blurred, if not totally erased. Yet, even here, the increasingly difficult to comply requirements through successive policy memoranda, including the latest Third-Party Memo, cannot shield American workers from the winds of change that will continue to blow. Far better would it be for the Trump administration and USCIS to welcome what must come by shedding the shibboleths of Buy American Hire American and thereby place such winds at our back.

(The author acknowledges the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)