Cyrus Mehta

Questions Arising from Foreign Entity Changes after an L-1 Petition is Approved

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By Cyrus D. Mehta & Rebekah Kim

An L-1 visa may be issued to a foreign national employee who has worked abroad for at least one continuous year within the last three years for a qualifying, related business entity (e.g., parent, subsidiary, or affiliate) in an executive, managerial, or specialized knowledge capacity, and who is being transferred to the U.S. to work for the same employer or a parent, subsidiary, or affiliate of the employer. See INA § 101(a)(15)(L).

An interesting question arises when, during the course of the employee’s valid L-1 employment in the United States, the foreign entity goes through a corporate reorganization, and thereby ceases operations, merges with another company, or undergoes some other change in its corporate structure or ownership.

Is a foreign national employee who earned his/her one year of qualifying work experience at a foreign entity that undergoes corporate reorganization eligible to maintain L-1 status? 

According to 8 CFR §214.2(l)(1)(ii)(G)(2), the employer must be doing business in the U.S. and at least one other country for the duration of the employee’s stay in the U.S. as an L-1 nonimmigrant. A foreign qualifying entity (i.e., affiliate, subsidiary, etc.), also, must be doing business the entire time the beneficiary is in L-1 status. However, it is less clear whether the foreign qualifying entity needs to be the same one that employed the L-1 while s/he was abroad.

Is an amended L-1 petition required when the foreign entity undergoes corporate reorganization?

There is scant guidance regarding the need to file an amendment when there is a change in the foreign entity, such as when the foreign entity goes out of existence but the U.S. employer has subsidiaries in other countries, or when the U.S. employer acquires another entity in the foreign country while it sells the former foreign entity where the beneficiary had previously worked. In the absence of clear authority, and in an abundance of caution, some employers may choose to file an amendment.

However, we may draw clues from at least two sources that strongly suggest that an amendment is not necessary.

In Matter of Chartier, 16 I&N Dec. 284 (BIA 1977), the L-1 employee was employed by a company in Canada, then transferred to work for the same employer in the U.S. The Service granted, then later revoked, the foreign national employee’s L-1 status because it found that the employer did not have a subsidiary or affiliate in Canada. The Service contended that without an established foreign branch, there was no place for the alien to return to, and his L-1 employment could not be deemed temporary. The Board rejected this argument, concluding in its Interim Decision that the L-1 employee could be sent back to Canada, or to the company’s affiliate in Belgium. The Board’s decision indicates that the L-1 remained valid so long as the company had a qualifying entity abroad, even if it was not the foreign entity where the L-1 employee gained his qualifying experience.

This conclusion may also be drawn from USCIS L-1 training materials, which were uncovered in response to a FOIA request, and can be found on AILA InfoNet at AILA Doc. No. 13042663 (posted April 26, 2013). The materials contain the following example: “An L-1A was a manager for Company A in Italy. L-1A transfers to the U.S. to work for affiliated Company B. After L-1A transfers, Company A ceases to do business and becomes a dormant company. Company B still has foreign affiliate, Company C, that is doing business in Japan. Therefore, the petition remains valid.” Although training materials are not as authoritative as case law, they still reflect the government’s view that an L-1 petition remains valid even when the foreign entity where the foreign national employee gained his qualifying employment becomes dormant, as long as the employer has another qualifying entity abroad.

In some instances, the change to the foreign entity’s organizational structure may affect the terms and conditions of the L-1 beneficiary’s employment in the United States – for example, if some of the job duties were dependent on the continued existence of the entity abroad. However, in the absence of such a material change to the L-1 employee’s position in the United States, a change in the foreign entity’s organization should not warrant the filing of an amendment so long as the petitioner continues to do business in at least one other country through a qualifying branch, parent, affiliate or subsidiary. However, the petitioning entity in the US may still want to file an amendment out of an abundance of caution.

The analysis changes if the L-1 beneficiary is sponsored by the U.S. entity for lawful permanent residency under the employment-based first preference for multinational executives or managers pursuant to INA § 203(b)(C), and the foreign entity where the beneficiary worked no longer exists as a result of a reorganization. There is no parallel regulatory provision as 8 CFR § 214.2(l)(1)(ii)(G)(2), and the analogous provision at 8 CFR § 204.5(j)(3)(i)(C) provides the “prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the alien was employed overseas”. While an argument can still potentially be made that USCIS adopt the same reasoning as it does with L-1s, the Administrative Appeals Office (AAO) in a non-precedential decision has interpreted the section to mean that the foreign entity where the beneficiary worked at abroad has to continue to exist at the time of filing, because the language of regulation uses the word “is”, signifying present existence of the foreign entity. See Matter of ___, LIN 0800457652 (AAO Apr. 8, 2010). On the other hand, the door does not shut totally. If the employee worked in the foreign country for a branch of the petitioner as opposed to a distinct entity, which subsequently closes, the AAO in another non-precedential decision has reasoned that the beneficiary is working for the “same” employer and can thus be classified as a multinational executive or manager.  See Matter of ____, LIN 0618952335 (AAO Nov. 7, 2008). One can also potentially argue that if the distinct entity that hired the beneficiary closes, another foreign entity, either in the same or a different foreign country,  could serve as a successor in interest if it assumes substantially all assets and liabilities. In the immigration context, a  transfer of a particular business line and its employees to the new entity may suffice for purposes of establishing a successor in interest entity.

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

The authors thank Dagmar Butte, Bryan Funai, Hanah Little, Angelo Paparelli and Lynn Susser for their invaluable input. 

Cyrus Mehta

Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants?

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By Cyrus D. Mehta and Amani M. Abuhamra*

In a promising development for F, J, and M nonimmigrants battling unlawful presence policy, a federal district court in North Carolina has granted a preliminary injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The August 2018  Policy would render students in F, J and M status unlawfully present thus subjecting them to 3 and 10 year bars  from reentering the United States.

The May 3, 2019 Guilford College et al v. Mcaleenan et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction prohibiting USCIS and DHS from “enforcing the policy set forth in the August 2018 Policy Memorandum, in all its applications nationwide, pending resolution of this lawsuit.”

As previously discussed on our blog, the August 2018 Policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 Policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

Plaintiffs in the Guilford College case sued DHS and USCIS alleging, among other things, that 1) USCIS had issued the August 2018 Policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 Policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court held that for the purposes of granting the Preliminary Injunction, the Plaintiffs had demonstrated a likelihood to succeed on their challenges to the policy, and found that the Plaintiffs were “likely to suffer irreparable harm absent entry of a preliminary injunction.”

Promising decision for future litigation challenging USCIS policy memos

For immigration lawyers fighting harsh USCIS policies and denials of petitions on behalf of their clients, the possible ramifications of Judge Biggs Opinion and Order are promising.

The Court found the Plaintiffs likely to succeed in showing that the language, purpose, context, and effect of the USCIS policy rendered it a legislative rule. This is significant because “[f]or a legislative rule to be valid … it must have been promulgated in compliance with the APA’s notice and comment procedures [under U.S.C. § 553].” So, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy.

This may open the door for future litigation challenging other USCIS policy memos issued without proper APA notice and comment procedure. Attorneys can now look to challenge other USCIS changes to policy that have legislative rule characteristics, and similarly subject them to challenge for failing to follow proper APA rulemaking procedure. These could include, for example, USCIS’s  October 23, 2017“Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” and USCIS’s February 23, 2018 “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. Both these policies, see blogs here and here, contradict existing regulations.  In fact, the February 23, 2018 policy requiring petitioners who place H-1B workers at third party sites to impossibly rigid itinerary and documentary requirements is being challenged in federal court. At a recent hearing on plaintiff’s motion for summary judgement, the judge sharply questioned the high rate of denials under this USCIS policy that plaintiffs allege was designed to kill the IT consulting industry business model.

Perhaps even more promising is the effect Judge Biggs decision will have on curtailing USCIS power to alter statutory construction by way of policy changes and promulgating regulations. The decision noted that based on the statutory text of the INA, the Court found it likely that unlawful presence does not begin when one becomes out of status. Therefore, the August 2018 Policy, in altering unlawful presence accrual to commence when one becomes out of status, most likely conflicts with the existing law and is invalid.

The Court’s decision on invalidating policy which conflicts with existing statute may be even more crucial for future challenges to USCIS policies. This is because without the ruling on statutory construction, the USCIS could essentially overcome a future policy challenge by simply engaging in notice and comment procedures beforehand. Attorney H. Ronald Klasko, who serves as co-counsel and immigration subject matter expert in the Guilford College litigation, thinks the Court’s decision instead makes it harder for USCIS to get around policy challenges, because “if the interpretation of unlawful presence embodied in [a] Memorandum conflicts with the INA as a matter of law, that defect could not be addressed even by properly promulgated regulations. Rather, it would require a statutory change from Congress.”

So what does the preliminary injunction mean for current F, J and M nonimmigrants and the immigration lawyers who advise them?

Though certainly a victory, there now exists some doubt and uncertainty regarding how much reliance can be placed on the Guilford College preliminary injunction. The nationwide injunction, which will prohibit enforcement of the unlawful presence policy by USCIS until the Court issues its final order, has left many unsure as to what the preliminary injunction means for currently at-risk nonimmigrants. Should the Court rule in favor of USCIS and the August 2018 Policy is reinstated, what would that mean for the nonimmigrants who were at risk of triggering bars to admission prior to the preliminary injunction? The following scenarios highlight this uncertainty:

Scenario 1: A PhD student on an F-1 visa travels out of the country after the May 3rd preliminary injunction is issued. Prior to the preliminary injunction, the student was at risk of triggering a 3-year-bar of admission for having accrued over 180 days of unlawful presence without his knowledge. This was due to a reporting mistake the school made in regards to his course load which caused him to inadvertently fall out of status. If the student returns to the country on an O-1 visa while the preliminary injunction is still in effect, and the Court then issues a final ruling upholding the August 2018 Policy shortly afterwards, will the student be found to be inadmissible under 212(a)(9)(B)(i)(I)or(II)?

Scenario 2: A research scholar on a J-1 visa discovers she inadvertently violated her status months prior causing her to unknowingly accrue unlawful presence under the August 2018 Policy. Though she had not yet accrued 180 of unlawful presence when the preliminary injunction was ordered on May 3rd, she was close. Today the research scholar visits her attorney and informs him that tomorrow marks 180 days since she has fallen out of status. The Court has yet to issue its final ruling and the preliminary injunction is still in place. She is unsure whether she should leave the country tomorrow out of precaution of triggering a 3-year-bar of inadmissibility. She has a lot to lose if she were to travel today, and would like to remain in the country. She wants to know, should the Court lift the injunction in the near future, whether the days in which the government was enjoined from enforcing the policy are considered void from unlawful presence calculation, or whether the upheld 2018 August Policy is effective retroactively?

In scenarios like these, it is unclear how the government would rule. It may be difficult for attorneys to best advise their at-risk nonimmigrant clients due to this ambiguity. Leaving or not leaving the country during the period where the preliminary injunction is in effect should be carefully considered and discussed with clients, all options carefully weighed. It may be best to exercise abundant caution and leave not leave the US in Scenario 1 and leave the US in Scenario 2  Even if the Court lifts the preliminary injunction, it will at least order that the August 2018 Policy not be applicable while the preliminary injunction was in effect and takes effect prospectively. On the other hand, one can also be cautiously optimistic that the plaintiffs will prevail in their motion for summary judgment (expected in June 2019) and that the August 2018 Policy will effectively be rescinded by the Court. After all, a motion for preliminary injunction is only granted when there is a likelihood of success on the merits. There is also a risk that the Court of Appeals will overturn the lower court’s decision even if the plaintiffs prevail on the merits. Nevertheless, despite the risks, the Guilford College preliminary injunction is cause for celebration, and as Facebook’s founder Mark Zuckerberg once famously said, “The biggest risk is not taking any risk…”

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

* Amani Abuhamra is pursuing her JD degree at Brooklyn Law School and is  currently an Extern at Cyrus D. Mehta & Partners PLLC.

David Isaacson

Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal

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In 2011, I wrote an article on our firm’s website about how then-recent case law could provide an opportunity for some returning nonimmigrants to challenge, in federal court, the government’s efforts to subject them to expedited removal.  At the time, it seemed as though such a challenge might require a habeas corpus petition to be filed in federal court while the returning nonimmigrant was still detained at the airport by Customs and Border Protection (CBP).  A recent Second Circuit decision in a different context, however, suggests that this is not so.  Rather, even returning nonimmigrants who are only able to contact a lawyer after they have already been removed from the United States may have recourse in federal court.

As I explained in my 2011 post, Congress has sought to make expedited removal orders, which can be issued by CBP officers at the airport and carry with them a five-year bar on returning to the United States without advance permission, essentially unreviewable in court for most people who are not U.S. citizens, Lawful Permanent Residents, or refugees or asylees. This creates a significant risk of arbitrary and potentially unreviewable enforcement of immigration law.  Problems can arise, for example, when such enforcement is based on an arguably erroneous position taken by a CBP officer regarding the permissible scope of H-1B employment, as in the case of some expedited removal orders issued at Newark Airport that were discussed by Cyrus D. Mehta in January and February 2010.  Absent judicial review, CBP officers and supervisors may have the last word on such questions, whether legally correct or not.

However, the Supreme Court’s 2008 decision in Boumediene v. Bush, 553 U.S. 723 (2008), made clear that under the Suspension Clause of the U.S. Constitution, Congress cannot (unless exercising its authority to suspend the writ of habeas corpus in cases of rebellion or invasion) simply prevent people detained by the United States, even alleged enemy combatants at Guantanamo Bay, from seeking judicial review of their detention through a petition for a writ of habeas corpus.  Thus, even those subjected to expedited removal may be able to turn to habeas corpus to vindicate whatever other rights they have under statute or the Constitution.  The Court of Appeals for the Ninth Circuit recently recognized in its March 2019 decision in Thuraisiggiam v. Department of Homeland Security, for example, that habeas is an available mechanism for asylum-seekers to assert their rights to proper proceedings to determine whether they have a credible fear of persecution.  (The Court of Appeals for the Third Circuit has, in a decision I criticized in a prior blog post, limited the ability to use habeas as a vehicle to assert rights under immigration law in the context of recent entrants with no prior ties to the United States, but even the Third Circuit, in Osorio-Martinez v. Attorney General, recognized the habeas rights of those with somewhat greater ties to the United States, in that case juveniles with approved petitions for Special Immigrant Juvenile status.)

As I also explained in my 2011 post, previously admitted U.S. residents who are returning from a brief trip abroad would retain rights to due process of law under Landon v. Plasencia, 459 U.S. 21 (1982), and so could argue that they were entitled to greater procedural protection than expedited removal provides.  Moreover, residents in this sense need not be restricted to Lawful Permanent Residents, that is, people with “green cards”. The Second Circuit, in its January 2011 decision in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), recognized the due process rights of one who had been admitted as a visitor and overstayed the permitted period of admission, so returning resident nonimmigrants who did not overstay should be even more clearly entitled to due process rights.  While it would be difficult for certain categories of nonimmigrants, such as B-1 or B-2 visitors, who need to maintain a foreign residence, to claim returning-resident due process rights without fatally undercutting their own case for readmission, there are many types of nonimmigrants such as H-1B, L-1, E-1, E-2, and O-1 who are not required to maintain a residence abroad which they lack intention to abandon.  If returning to a U.S. residence from a brief trip abroad, such nonimmigrants would appear to have a strong argument that the abbreviated and potentially error-prone procedures of expedited removal did not afford them sufficient due process.

The problem, as a practical matter, was that the legally ideal time to file such a habeas petition seemed to be while one was detained at the airport, and that presents obvious practical difficulties.  As I explained in 2011:

The ideal time to file a habeas petition under the theory outlined in this article would be while the petitioner was detained by CBP pending execution of the expedited removal order.  Whether such a challenge might be possible following execution of an expedited removal order is a subject for further analysis, but it would at least be substantially more difficult.  Classically, a constitutionally protected habeas petition would as a general matter require the petitioner to be in custody at the time the petition was filed, and a petitioner who has already been removed is not in custody, at least in the simplest and most straightforward sense of that term.

CBP often allows those subject to expedited removal proceedings to contact a friend while they are detained, but discourages or prevents them from contacting attorneys, presumably on the basis that an applicant for admission lacks the right to legal representation during initial inspection.  (The chain of logic between the lack of right to representation and a prohibition on speaking to an attorney strikes this author as a bit strained, but that is an issue for another day.)  Therefore, it may be wise for any nonimmigrant who anticipates potential difficulties upon arrival to ensure that the friend or friends whom they would likely attempt to call if detained is in possession of the contact information for an appropriate immigration attorney.  If concerned that CBP might not allow any communication, or that a single attempt to call while detained by CBP might not reach anyone, a more cautious alternative would be to make a plan to check in with such a friend by phone immediately after one’s flight lands, before proceeding into the immigration inspection area and the perhaps broader area in which cellphone use is prohibited, and advise that an appropriate immigration attorney should be contacted if the arriving nonimmigrant is not heard from again within a preset amount of time.

Given how logistically complicated it would be, particularly for someone who had not expected problems, to arrange the filing of a habeas petition in the brief interval before being detained and put on a return flight, it is perhaps not surprising that no such habeas challenge to an expedited removal order by a returning resident nonimmigrant seems to have made it into court, at least so far as this author is aware.  (There have been a few unsuccessful challenges by other types of nonimmigrants not able to claim returning-resident status.)

A recent decision of the Court of Appeals for the Second Circuit, however, has shed some light on what I referred to in 2011 as a subject for further analysis, namely, whether a habeas petition could be filed after an expedited removal order had already been executed.  The issue arose indirectly in the recent appeal of Ravidath (Ravi) Ragbir, an immigrant-rights activist who brought a habeas petition to prevent his removal on the basis that ICE, in refusing to extend his previously-granted stay of removal, was retaliating against his Constitutionally protected speech critical of ICE activities. In its April 25, 2019 decision in Ragbir v. Homan, the Second Circuit allowed this claim to go forward pursuant to the Suspension Clause of the Constitution.

Because Ragbir’s First Amendment claim regarding the execution of an order of removal would otherwise have been statutorily barred under 8 U.S.C. 1252(g), the Second Circuit needed to address whether it was protected by the Suspension Clause, as in Boumediene.  The government asserted that this was not so because, among other things, Ragbir was purportedly not in custody, having been released from detention after being granted judicial stays of removal.  The Second Circuit disagreed:

If Ragbir were currently in the Government’s physical confinement or had already been deported, that Ragbir would be in custody is obvious.[29] But that he has not been deported is not for a lack of effort on the part of the Government, which detained Ragbir without notice in January 2018 and sent him to Florida, where he was detained for weeks in anticipation of deporting him. Much like in Hensley [v. Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973)], that process was stopped only because Ragbir was released by a writ of habeas corpus issued by the district court in January 2018 (after which the Government told Ragbir to report again on February 10, 2018). Also like in Hensley, Ragbir must continue to report for ICE check-ins, and he remains in this country primarily due to judicial stays of removal, including the one entered by this Court. Moreover, the Government opposed a stay of removal in the district court pending this appeal, and at oral argument, the Government could not represent to this Court that—absent a stay entered by this Court and the stay previously entered in the District of New Jersey—ICE would not deport Ragbir pending resolution of this appeal.

Thus, that Ragbir faces imminent deportation, which necessarily involves a period of detention—and that he must comply, absent judicial intervention, with the Government’s orders “at any time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not in question. That effects a present, substantial curtailment of Ragbir’s liberty. See id.

The Second Circuit expanded on the first sentence of the above in footnote 29 to its decision:

As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239-40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted).

This discussion of the availability of habeas to a deported individual was a key portion of the Second Circuit’s reasoning, not merely dicta.  It was necessary to show that Ragbir would have access to habeas at what one might call both ends of the process, if he were in physical custody prior to deportation or if he had been already deported, in order to conclude that as a logical matter he ought not lose such access to habeas simply because the process had been, by court order, suspended in the middle.

Under the Second Circuit’s decision in Ragbir, then, individuals subjected to expedited-removal orders may pursue habeas petitions even following their removal.  Those returning nonimmigrants who arguably have due process rights, under Plasencia and Galluzzo, to a less summary process than expedited removal, should thus be able to vindicate those rights even if they are unable to contact an attorney until after they have already been removed.  As a practical matter, it may make sense to first reach out to CBP in an effort to get the expedited removal order set aside administratively, but the availability of litigation even after removal is an important development.  If CBP declines to administratively set aside an erroneous expedited removal order, that need not be the end of the story.  Rather, a long-term United States resident nonimmigrant who was refused permission to return to his or her home can seek redress in court.