Cyrus Mehta

Supreme Court Agrees to Hear Constitutionality of Smuggling Statute That Could Impact Immigration Lawyers

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The Supreme Court has agreed to review the constitutionality of a smuggling statute under the Immigration and Nationality Act. United States v. Sineneng-Smith, No. 19-67. The statutory provision in question, INA §274(a)(1)(A)(iv),  permits a felony prosecution of anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew or recklessly disregarded “the fact  that such coming to, entry, or residence is or will be in violation of the law.”

INA §274(a)(1)(A)(iv), which involves encourage a non-citizen to reside in the United States in violation of law, is a companion to other related smuggling provisions such as “brings to” or “smuggling” (INA §274(a)(1)(A)(i)), “transportation” (INA §274(a)(1)(A)(ii)), and “harboring” (§274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete, the “encouraging” provision is far broader and can potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. This provision could thus also potentially reach ethical lawyers who advise and represent undocumented clients.

The Ninth Circuit in United States v. Evelyn Sineneng-Smith ruled last year that INA §274(a)(1)(A)(iv) was so broad and vague that it could criminalize speech protected under the First Amendment. The following examples were provided in the Ninth Circuit’s decision that could potentially constitute criminal conduct under this provision:

  • A loving grandmother who urges her grandson to overstay his visa by telling him “I encourage you to stay”
  • A speech addressed to a gathered crowd or directed to undocumented individuals on social media in which the speaker says something such as “I encourage all you folks out there without legal status to stay in the US! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization”
  • An attorney tells her client that she should remain in the country while contesting removal – because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed.

The government, on the other hand, argued that INA §274(a)(1)(A)(iv) should be read narrowly to target unscrupulous lawyers and unauthorized practitioners who dupe migrants into staying in the United States in violation of the law.  Despite the broadness of INA §274(a)(1)(A)(iv), the government asserted that it was not its intention to prosecute people in the above examples who were exercising free speech. Indeed, United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sinseneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She also got convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits conduct and a narrow band of unprotected free speech. Because the provision was so overbroad, the Ninth Circuit refused to construe it narrowly as the Third Circuit in DelRio-Mocci v. Connolly Properties had done by holding that encouraging or inducing an alien to reside in the United States did not mean just general advice but some more substantial assurance that would make someone lacking lawful status more likely to enter or remain in the United States.

The Supreme Court granted the government’s petition for a writ of certiorari. According to the Crimigration blog, the “Supreme Court’s decision to hear this case is … fascinating” as there was not really a circuit split. Typically, the Court agrees to hear a case when there is a sharp conflict in the lower courts regarding the proper interpretation of a statute. Here there is hardly a split between the Ninth Circuit in United States v. Sinseneng-Smith and the Third Circuit in DelRio-Mocci as the latter does not involve First Amendment. Instead, the Third Circuit’s holding was based on a private lawsuit claiming that an apartment property management company violated the Racketeer Influenced and Corrupt Organizations Act by encouraging undocumented people to reside in the United States unlawfully in their property as tenants. Sinseneng-Smith  claimed in opposition to the government’s certiorari petition that the government asserting that the circuits are in conflict is nothing more than an “attempt to conjure a limited circuit split.” It will also be interesting to see how Justice Gorsuch rules in this case as he is averse to laws that are void for void for vagueness as he did in demolishing “crimes of violence” in  Sessions v. Dimaya. Although the Ninth Circuit did not have to deal with the void for vagueness challenge as it found the statutory provision unconstitutional under First Amendment overbreadth analysis, both sorts of challenges might be of interest to Justice Gorsuch that might potentially  align him with the four liberal justices.

Whatever may have been the motivations of the Supreme Court to take up the case, how the Supreme Court will rule carries important implications especially for immigration lawyers. If the Supreme Court reverses the Ninth Circuit and upholds the constitutionality of the provision, would an immigration attorney advising unauthorized individuals to remain in the United States to seek adjustment of status at a later point in time, whenever they become eligible, be within the scope of the prohibition against encouragement or inducement under INA §274(a)(1)(A)(iv)? Granted that the facts in Sineneng-Smith are bad as she advised clients as an unauthorized practitioner, but even if Sineneng-Smith was a lawyer, she would have still been convicted under the provision. Even if this lawyer had provided more appropriate advice when filing the labor certification such that the clients would have to return to their home country for consular processing, assuming an I-601A would be approved based on extreme hardship to a qualifying relative, the lawyer could have still been potentially implicated by advising the unauthorized person to remain in the US during the processing of the labor certification, I-140 petition and the I-601A waiver.

It is indeed salutary that the government strenuously argued in United States v. Sineneng-Smith that it would not prosecute cases cited  in the above three examples or with respect to lawyers giving legitimate advice to clients. But there is no guarantee that if the statute remains intact an overzealous prosecutor cannot try to prosecute attorneys providing legitimate advice to their clients in other examples, as I have discussed with Alan Goldfarb in AILA’s practice advisory,  Executive Disorder: Ethical Challenges for Immigration Lawyers Under the Trump Administration. A lawyer may advise a client whose citizen child is turning 21 in two years to remain so that she can adjust status in the United States. Even if the client may not have a citizen child who is turning 21, there is a possibility that the client may marry a US citizen some day and likewise be eligible for adjustment of status. Alternatively, if this client entered without inspection and is not eligible for adjustment of status, he may be eligible to file an advance I-601A waiver application of the 3 or 10 year bar based on a qualifying relationship with the prospective citizen spouse, and return to the home country for consular processing upon the approval of the I-601A application. A lawyer who may competently advise the client to remain in the United States during the pendency of the I-601A application could get snared for encouraging the unauthorized client to remain in the United States in violation of the law. In yet another example, lawyers represent clients who have outstanding orders of removal and have not departed the United States. Failure to depart within 90 days after a removal order pursuant to INA §237(a) under INA §243 renders such conduct a criminal felony. However, even here, INA §243(a)(2) provides for an exception: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” The competent lawyer will advise the client with the removal order to remain in the United States while every effort is made to reopen the removal order. A person with a final order of removal may attempt to reopen a removal order after several years if the government consents to reopening and there is available relief against deportation. See 8 C.F.R. §1003.2(c)(iii); 8 C.F.R. §1003.23(b)(4)(iv). Yet, under INA §274(a)(1)(A)(iv) an ethical lawyer, who exercises great competence and diligence in representing a vulnerable client with a removal order, could get snared for encouraging the client to remain in the United States in violation of the law even if there is a game plan down the road to render the client’s stay lawful.

The most prudent approach is for a lawyer to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to clients if they to remain in the United States in violation of the law. Such an approach would also be prudent if the Supreme Court upholds the constitutionality of §274(a)(1)(A)(iv) even if the government has asserted in its pleadings that it will enforce the law in a limited manner. Regardless of whether §274(a)(1)(A)(iv) is upheld or not, a lawyer’s conduct should be guided by rules of professional responsibility. Significantly, ABA Model Rule 1.2(d) states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” Please note that this is only a Model Rule, and readers should check the analog to Rule 1.2(d) within the rules of professional responsibility within their own state.

In the immigration law context, a disciplinary authority would be hard pressed to conclude that a lawyer who advises an unauthorized client to remain in the United States due to the likelihood of benefiting at some point in the future would be engaging in conduct that is criminal or fraudulent. Still, there is still a possibility of criminal prosecution under the broad ambit of §274(a)(1)(A)(iv), and  a lawyer who practices within the confines of Model Rule 1.2(d) – such as presenting the legal consequences of remaining in the United States or not rather than explicitly advising the client to remain –  should be more insulated than a lawyer who does not.

 

 

 

Cyrus Mehta

Denial of H-1B Cases: The Occupational Outlook Handbook is Not the Holy Grail

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By Cyrus D. Mehta and Gianna Boccanfuso∗

The USCIS continues to strictly scrutinize H-1B petitions. According to an NFAP report, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 33% through the second quarter of FY 2019 for new H-1B petitions for initial employment. In recent times, seeking review of an H-1B denial in federal district court has led to successful outcomes such as in Relx v. Baran.  Often times, after filing a complaint in federal court under the Administrative Procedures Act alleging that the decision was arbitrary and capricious, the USCIS reopens the denial and approves the case, or issues another Request for Evidence (RFE). Upon responding to the RFE, as has been our experience in one matter, the USCIS approved the H-1B.

While many have experienced success, there have also been a spate of H-1B decisions mostly from federal district courts in California that have gone the other way. In these denials, the courts have upheld the USCIS’ interpretation of the description of the occupation in the Occupational Outlook Handbook. For example, in Xiaotong Liu v. Baran, 2018 U.S. Dist. LEXIS 222796, the Central District of California upheld the USCIS’ denial of an H-1B petition for an Event Manager to oversee the functions of business conference coordination and event gathering for the petitioning company, Innsight. The USCIS decision concluded that:

As shown in the OOH, although a baccalaureate level training is generally required, the position of Meeting, Convention or Event Planner is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no apparent standard for how one prepares for a career as a Meeting, Convention or Event Planner and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what a course of study might be appropriate or preferred.

As in most decisions, the District Court of the Central District of California analyzed whether the Plaintiff satisfied one of the four prongs of the following regulatory 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).

Looking at only the first and second criteria of 8 C.F.R. §214.2(h) (4) (iii) (A) the court found that the USCIS’ denial of Innsight’s H-1B petition was not arbitrary and capricious and therefore granted Defendant’s motion for summary judgment.  The court  held that the  government’s denial was not arbitrary and capricious in regards to the first criterion, a bachelor’s degree as a minimum requirement, because there was a rational basis for the conclusion that the position of Event Manager did not require a degree in a specific field or its equivalent when the OOH demonstrates a preference for prerequisite course work that does not amount to a necessity when it states that “other common fields of study include communications, business, and business management” but does not mention particular course work as essential.

The court also acknowledged that “[d]istrict courts appear somewhat split on whether the fact that some positions do not require a bachelor’s degree is enough to provide a rational connection between the OOH language and a failure to prove that a position is a specialty occupation. Compare Ajit Healthcare Inc. v. United States Dep’t of Homeland Sec., No. CV131133GAFJPRX, 2014 U.S. Dist. LEXIS 186258, 2014 WL 11412671, at *4 (C.D. Cal. Feb. 7, 2014) (finding “a ‘rational  connection’ between the Handbook description of the job in question and the conclusion that a [position] would not normally require a baccalaureate degree or higher” when the OOH provided that “[a]lthough bachelor’s and master’s degrees are the most common educational pathways work in this field, some facilities may hire those with on the-job experience instead of formal education”) (internal citation omitted) with Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (“Even affording appropriate deference to the Government’s interpretation of the statutory and regulatory requirements, this Court is at a loss to see a ‘rational connection’ between the evidence indicating that ‘most computer programmers have a bachelor’s degree’ and USCIS’ determination that ‘computer programmers are not normally required to have a bachelor’s degree.'”).” In Xiaotong Liu v. Baran, unfortunately, the court sided with the USCIS’s interpretation of the OOH.

On the second criterion, the court found based on job postings from similar organizations submitted by the Plaintiff, that a reasonable fact finder could have concluded that job requirements vary based on employee when only two out of four listings required a bachelor’s degrees in hospitality or even management therefore making the USCIS decision, that a specific degree is not required in parallel positions among similar employers, not arbitrary or capricious.

In making its determination, the court distinguished Tapis Int’l v. I.N.S. 94 F. Supp. 2d 172, 176 (D. Mass. 2000) and Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). In Tapis the court determined that the INS abused its discretion when it found that a Showroom Manager position at an interior design firm was not a specialty occupation even when the record indicated that the position “required a bachelor’s degree from a limited number of academic fields in addition to design experience.” However, the court also held that “a generalized bachelor’s degree requirement, without more, is not enough to make the position a ‘specialty occupation.’” Tapis Int’l v.I.N.S., 94 F. Supp. 2d 172, 176 (D. Mass. 2000).The Xiaotong Liu court found that the reasoning in Tapis is not relevant or applicable since in Tapis no specific degree was available in the field of interior design showroom management but there is a specific degree in the field of event management. In Residential Finance, the court found USCIS’ denial of Plaintiff’s petition due to its failure to prove that the Market Research Analyst position was a specialty occupation was arbitrary, capricious and an abuse of power. USCIS had acknowledged several errors in the denial and the record in the case indicated that “a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields.” 839 F. Supp. 2d 996-97. The Xiaotong Liu court distinguished the finding in Residential Finance, finding that the OOH did not suggest that any particular course work is essential for the position of Event Manager, but rather it stated that “planners who have studied meeting and event management or hospitality management may start out with greater responsibilities than those from other academic disciplines.”  The court also used the First Circuit holding in Royal Siam Corp. v Chertoff, 484 F.3d 139 ((1st Cir 2007) against Plaintiff. In Royal Siam, the court rejected the argument that a restaurant manager required a degree in business administration, even though Plaintiff in Xia0tong Liu valiantly demonstrated that a bachelor’s degree is normally required for an Event Planner under the OOH and Liu in fact had a bachelor’s degree in business management with a degree in hospitality management. Additionally, the court held that while USCIS did not explicitly analyze the expert opinion letter under the complexity of the position prong, it did not abuse its discretion when finding that Innsight failed to meet its burden of proof because USCIS demonstrated review of the letter through its use of the content in its analysis of other prongs. Therefore the court found that the conclusion did not rise to the level of arbitrary and capricious. In regard to the prior use of the expert letter by USCIS, the court stated that USCIS should weigh the probative value of an expert opinion as one factor in determining whether an industry requires a degree even when it may conflict with the OOH since the OOH is also but one factor in making the determination. However, the court did find that USCIS had a rational basis for concluding that the expert letter did not explain how the expert opinion from a business professor “determined that a bachelor’s degree in hospitality management or a related field is a standard requirement within the industry for parallel positions among  similar organizations” when he stated that he “observed standard hiring practices as they pertain to a variety of positions in … event planning” but only indicated that he was familiar with the general related field and not practices  specifically among similar employers.

Unfortunately, every argument that Plaintiff made was shot down because it could not overcome the obstacle imposed on the event planner occupation in the OOH, or at least the faulty USCIS’ interpretation of it that a bachelor’s degree in a specific specialty was a normal requirement for entry into the event planning field. In that sense the court’s decision was also faulty. Hotel management, which is analogous to event management, has long been considered a professional position in Matter of Sun, Interim Dec. 1816 (1966). The reasoning in Matter of Sun justifying hotel management was far more elegant in 1966 than in Xiaotong Liu in 2019 as there was a recognition that occupations continue to expand from the traditional professions of law, medicine and theology. This sort of commonsensical and pragmatic reasoning was conspicuously absent for the occupation of Event Planner in Xiaotong Liu.

In Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, the District Court for the Northern District of California found that the Plaintiff’s (Innova) position of Programming Analyst, falling under the OOH’s Computer Programmer classification, did not satisfy the requirements of a specialty occupation when the OOH’s description for Computer Programmer did not describe the normal minimum educational requirement in a categorical  fashion instead stating that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree” Id at 17. The court then found that USCIS’ conclusion that Innova failed to show the position of Programmer Analyst normally required a bachelor’s degree was not arbitrary or capricious when the Plaintiff did not challenge the decision in their motion for summary judgment nor present any evidence showing a common degree requirement in the industry in parallel positions among similar organizations. Further, the court found that evidence provided by Innova to prove the position of Programmer Analyst is so complex or unique that it can only be performed by an individual with a degree, was not probative and therefore USCIS was not arbitrary and capricious in concluding that Innova failed to present sufficient evidence. The court found that Innova submitted a letter from their attorney describing the anticipated duties and a letter from the end client which incorrectly identified  the position and listed duties inconsistent with those in the attorney’s letter. The end client letter also described the beneficiary as leading and directing the work of others, although this contradicted with the duties described in the attorney letter and also because the beneficiary was being paid a Level 1 entry level wage.  The court also cast doubt whether an attorney could make representations on behalf of clients.  The court then turned to the third criterion under 8 CFR § 214.2(h)(4)(iii)(A), whether the employer normally requires a degree or its equivalent for the position, and found that since Innova did not challenge USCIS’ decision they did not have a basis to conclude whether the decision was arbitrary or capricious or constituted an abuse of discretion. With respect to the fourth criterion, whether 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, the court found that, in their respective briefs, the parties discussed it together with the second clause of the second criterion and therefore for the same reasons the court found that Innova had not shown the USCIS’ denial to be arbitrary and capricious or an abuse of discretion.

The facts were weak and contradictory in Innova, and thus it is hardly surprising that the court affirmed the USCIS’ denial, even though the court accepted USCIS’ interpretation of the OOH entry for Programmers  as not always requiring a bachelor’s degree. The other  arguments made by Plaintiffs under the second and fourth criteria were not strong enough to overcome the OOH description for Programmers.

Finally, in Altimetrik Corp. v. USCIS, 2019 U.S. Dist. LEXIS 141512, the District Court for the Eastern District of Michigan, Southern Division found that USCIS’ decision was not arbitrary or capricious, nor an abuse of its discretion when it determined that that Plaintiff actually sought the beneficiary as a Systems Analyst even though the position in the H-1B petition was for a Software Developer. The USCIS found that the duties matched those of a Systems Analyst, and according to the OOH entry for systems analysts, “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.” The court did not seem to disagree with the USCIS’s change of occupation.  This tactic of switching occupations is often used by USCIS as the description for Computer Systems Analyst in the OOH, with respect to educational requirements,  is not as favorable as Software Developers, thus providing more ammunition to USCIS to disagree that that it is a specialty occupation.  The court also  did not find that the duties were complex and unique under the second criterion or specialized and complex under the fourth criterion. With respect to the third criteria, although Plaintiff provided proof of educational and pay documents for 20 of the 70 employees whom it hired as software developers, the court agreed with the USCIS’s reliance on Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000) that the Plaintiff did not provide proof of the client entity’s requirement of a bachelor’s degree for the position. Plaintiff also  failed to establish by a preponderance of the evidence that the beneficiary would be preforming actual work that would qualify his job as a specialty occupation and therefore denied the petition. The court found that USCIS was correct in determining the evidence provided did not establish that beneficiary would be preforming actual duties requiring the skills of someone with a bachelor’s degree or higher when the only project the beneficiary was assigned to had ended, the description of the second project that the beneficiary would be working on did not align with the job duties listed by the Plaintiff, and that promotional material referenced by Altimetrik as proof of various projects that the company was engaged in did not indicate if the projects were ongoing, whether the specific office the beneficiary would be working in was involved or that there were positions on the projects for the beneficiary that involved qualifying specialty occupation work.

In Altimetrik Corp, it was problematic that the court agreed with the USICS’s characterization of the position being akin to that of a systems analyst even though the Plaintiff had designated it as a software developer. Also problematic was that the court relied on Defensor v. Meissner in shooting down Plaintiff’s contention that it has hired other employees with the similar educational qualifications because it was not able to prove the educational requirements of the client that would ultimately employ the beneficiary. Defensor v. Meissner involved a nurse staffing agency where the nurses were always assigned to hospitals that were clients of the staffing agency, and the Fifth Circuit considered the hospitals as the actual employers of the nurses. Unfortunately, Defensor v. Meissner  is used broadly to nix claims by employers that they hire others with the same educational credentials even where they can show they are the actual employers who control the employment. Indeed, in all H-1B petitions, it is the petitioner that must demonstrate an employer-employee relationship with the H-1B worker, and this has been affirmed by the Neufeld Memo. If the client is the actual employer and not the petitioner, then the H-1B petition can never be filed by the petitioning entity ever.  Defensor v. Meissner is thus a contradiction as it considered the client as the employer rather than the petitioner, which  is now liberally used by USCIS, and also affirmed by courts, to deny H-1B petitions even where the petitioner is the actual employer. Of course, the facts in Altimetrik regarding its inability to show continuing employment were less than ideal, and this was not the appropriate case to overcome objections under Defensor v. Meissner, leave alone challenge the USCIS’s reliance on the OOH with respect to systems analysts.

Though Xiaotong Liu, Innova and Altimetrik may paint a bleak picture for challenges to H-1B denials in federal court, with petitioners being defeated by the deference given to USCIS’ determinations, there have been recent cases which provide guidance and hope. In Next Generation Tech. Inc. v. Johnson the U.S. District Court for the Southern District of New York found that USCIS disregarded or failed to explain why it discounted substantial evidence in the record that could have supported a determination that petitioner had met the requirements for an H-1B visa and therefore its decision to revoke the initial petition and denial of petitioner’s second amended petition were arbitrary and capricious. Starting with the first criterion, the position’s requirement of theoretical and practical application of a body of specialized knowledge, the court found that USCIS failed to give adequate reasons as to why the position description did not require theoretical and practical application of a body of highly specialized knowledge by failing to articulate why the enumerated duties were incompatible with a specialty occupation  when petitioner provided a bulleted list of duties and subsequently a project description that described the roles and responsibilities for each position needed for the project, specifically stating that beneficiary’s role would be that of “ Sr. Programmer/Programmer” and would include “technical program coding; developing the functional program; algorithm development; and debugging the existing programs.” Id at 26. Turning to the second criterion, the position requirement of attainment of a bachelor’s or higher degree in the specific specialty, the court found that USCIS’ determination was arbitrary and capricious when the USCIS disregarded pertinent evidence in the record and failed to articulate a satisfactory explanation for its action when determining that the programmer position being offered was not a specialty occupation. The court stated that there was no rational connection between evidence from the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS determining that computer programmers are not normally required to have a bachelor’s degree.  Additionally, the court noted that USCIS acted in direct contradiction to an internal USCIS memorandum which stated that USCIS will “generally consider the position of programmer to qualify as a specialty occupation.”  The court additionally evaluated USCIS’ determination that petitioner and beneficiary would not be in a valid employer-employee relationship. In doing so, the court went through all eleven factors in the  Neufeld Memo to find that based on evidence provided by Next Generation Tech, many if not all of the factors weighed in their favor and USCIS seemingly did not gather all the evidence or consider all the relevant factors in analyzing it.  The decision in Next Generation helps to combat the decision in Innova specifically in regard to USCIS’ use of the OOH. While it is advisable to build a case on the other prongs of the statutory requirement and not simply on the OOH, the decision in Next Generation displays a common sense approach to the language used in OOH listings by recognizing the use of most when speaking to those who have bachelor’s degrees in a position can rationally constitute a normal requirement.

In Raj & Co. v. United States Citizenship & Immigration Servs., 85 F. Supp. 3d 1241, the court came down with another positive decision. The court in Raj found that USCIS had abused its discretion when it impermissibly narrowed the plain language of the statute by requiring a single specifically tailored and titled degree and therefore reading plain language out of the statue when determining, “although a baccalaureate level of training is typical, the position of a Market Research Analyst is an occupation that does not require a baccalaureate level of education is a specific specialty as a normal, minimum for entry into the occupation,” The court went on to say that there was evidence in the record which showed that the proffered position required a specialized degree in “market research” or an equivalent technical degree accompanied by relevant coursework in “statistics, research methods, and marketing” as a minimum for entry. Furthermore, the court noted that “While judicial review of agency decisions is highly deferential, it is not without teeth. Agency action cannot survive judicial review where the agency fails to ‘articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” Another positive outcome for H-1B petitioners came in Relx v. Baran, Case No. 19-cv-1993. In Relx the court found that USCIS was arbitrary and capricious in its determination that the offered position of Data Analyst under the occupational title of Business Intelligence Analysts was not a specialty occupation solely on the fact that the OOH did not contain a detailed profile for the position and the use of O*NET, therefore standing alone, failed to establish the occupation as a specialty occupation. The court pointed out that the OOH did in fact provide the information needed to classify the position as a specialty occupation, and contained the O*NET cross reference, therefore holding that USCIS’ conclusion to be “factually inaccurate and not supported by the record.” Furthermore, in response to USCIS’ claim that the position of Data Analyst would never be specialized because multiple fields of education appear to be acceptable for entry into the position, the court stated that, “there is no requirement in the statute that only one type of degree be accepted for a position to be specialized.” Both cases provide reassuring reminders on the limits of deference especially following the decisions in Xiaotong Liu, Innova and Altimetrik.

In conclusion, it is inappropriate for the USCIS to blindly defer to the OOH as a basis to deny an H-1B petition. We have blogged about this particular behavior previously, here, calling attention to the fact that there is no existing regulation designating the OOH as sole authority for classifying specialty occupations and that the OOH itself includes a disclaimer stating that, “the OOH, therefore, is not intended to, and should never, be used for any legal purpose.” Our previous post on the matter also details the way in which the OOH is a cumbersome tool. With the DOL having not amended its LCA to accept 8 digit SOC codes, it therefore forces petitioners to rely on more general occupational titles with 6 digit SOC codes, such as Computer Occupations, All Other , which results in inappropriate denials from USCIS, as we saw in Relx. Even the authors of the OOH, which is the DOL, did not intend for USCIS to use the OOH in this manner. A DOL FOIA response found at AILA Doc # 19101011 states: “In response to your request for ‘guidance,’ the BLS OOH program provides staff who receive inquires on this topic with the following guidance: we have known for several years that the U.S. Customs and Immigration Service (USCIS) occasionally uses education and training information in the OOH to establish strict education requirements for H-1B eligibility. This is an incorrect use of the OOH information and we discourage this practice.”  Additionally, in correspondence provided in the FOIA, BLS employees include the OOH disclaimer linked above in their responses to inquiries about OOH and even explicitly state that, “making legal decisions about whether a position qualifies as a specialty occupation is an erroneous use of the OOH. The purpose of the OOH is for use by students and adult jobseekers in the United States for career planning.”  It is unfortunately clear that USCIS’ reliance on the OOH as a basis to deny H-1B petitions, though inappropriate and contrary to the purpose of the OOH, will continue. While there are some cases which have correctly overturned USCIS due to this practice, it would be beneficial for more petitioners to challenge these denials in court – of course bring cases only with strong facts –  in hopes of obtaining more positive holdings overturning USCIS decisions that uphold its slavish reliance on the OOH.

∗Gianna Boccanfuso is a JD student at Brooklyn Law School and is currently an Extern at Cyrus D. Mehta & Partners PLLC

 

 

David Isaacson

Residence in the Twilight Zone: Are USCIS and the State Department Trying to Encourage Some U.S. Citizen Parents to Get Divorced?

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Under section 301(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1401(c), a child born outside the United States is a citizen when born “of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.”  Unlike some other provisions of the INA, no minimum required period of residence is specified.

Historically, this provision has been interpreted as applying whenever either parent had been present in the United States for any significant period of time, excluding only very brief presence in transit and the like.  (I believe this was set out in former section 1133.5 of volume 7 of the State Department’s Foreign Affairs Manual, but have so far been able to find on the Internet Archive only a reference to the February 2016 guidance that first sought to exclude the sorts of less-brief but still non-permanent stays discussed further below.)  This makes sense, because residence is defined in INA § 101(a)(33), as one’s “principal, actual dwelling place in fact, without regard to intent”, 8 U.S.C. § 1101(a)(33). Any time one dwells and sleeps in the United States for a period of time, whether this is days, weeks, or months, the dwelling place in the United States would seem to have become one’s residence under this definition for that period of time, since what distinguishes that dwelling place from any other more permanent residence one may have is primarily one’s intent to return abroad, and the definitional provision (as opposed to other parts of the INA) specifically deems intent irrelevant.

On August 28, 2019, however, USCIS issued new guidance in the form of a Policy Alert, PA-2019-05, effective October 29, 2019, which will update the USCIS Policy Manual to impose a stricter interpretation of “residence” for purposes of INA § 301(c) and other provisions of the INA which use the term.  According to the new guidance in PA-2019-05, even spending two months at a time in the United States may not qualify as having ever had a “residence” there, if one lived outside the United States for the rest of the year and came to the United States to attend a summer camp or stay for a couple of weeks at a time with different relatives.  There is a specific example given where “As a child, U.S. citizen parent came to the United States for 3 consecutive summers to attend a 2-month long camp. The parent lived and went to school in a foreign country for the rest of the year.”  PA-2019-05 at 3.  It is said that this parent did not show past residence in the United States to enable transmission of citizenship under INA 301(c).

This follows on the heels of similar guidance from the State Department, which amended the Foreign Affairs Manual, specifically 8 FAM 301.7-4(B) (last amended June 27, 2018), to describe residence as a “very fact-specific test” that “takes into account the nature and quality of the person’s connection to the place.”  According to the current version of 8 FAM 301.7-4(B), “Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c).”  8 FAM 301.7-4(B)(h.) elaborates: “While the definition of residence is not dependent on a specific time period in the United States, the longer the duration of a person’s stay in a particular place in the United States (e.g., six months or more), the more likely it is that that place can be characterized as the person’s residence.  On the other hand, if the stay at a place in the United States was relatively brief (e.g., a few months or less), then in order for that place to be considered a “residence” additional evidence may be required to show why the stay, though brief, was other than a temporary visit.” The U.S. District Court for the District of Columbia recently upheld some State Department findings of lack of citizenship under this policy in Chacoty v. Pompeo.

This stricter interpretation of INA § 301(c), however, has some truly bizarre implications when it is read in the context of the rules governing transmission of citizenship to children born to one U.S. citizen parent and one non-citizen parent, and the rules governing citizenship to children born out of wedlock.  Counting periods of presence of “a few months or less” as not establishing residence even if repeated, as PA-2019-05 and the current version of 8 FAM 301.7-4(B) do, implies that certain U.S. citizen women who are contemplating giving birth to a child outside the United States ought to divorce their spouses, and leave them, in order to ensure that their children will be U.S. citizens.  It also implies that certain U.S. citizens contemplating starting families outside the United States should reject some U.S. citizen spouses in favor of non-citizen spouses, again to ensure that their future children will be U.S. citizens.

To see why, we need to turn first to INA § 301(g), 8 U.S.C. § 1401(g), which confers U.S. citizenship at birth on

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph.

That is, when a U.S. citizen parent has a child with someone who is not a U.S. citizen or national (what the statute calls an “alien”, although some immigration lawyers try to avoid using a word that makes noncitizens sound like they are from another planet), the basic rule is that the U.S. citizen can transmit citizenship if he or she has been actually or constructively physically present in the United States for a total of five years, at least two of which are after the age of 14.  This physical presence, even USCIS and the State Department recognize, is not limited to periods of time qualifying as “residence”; it covers any time spent in the United States (or spent abroad serving in the armed forces, or employed by the U.S. government or a qualifying international organization, or as the dependent unmarried son or daughter and household member of someone so serving or employed).  Indeed, the chart on page 3 of PA-2019-05 specifically credits its hypothetical purportedly non-resident U.S. citizen parents with the amount of physical presence they had accrued during their trips to the United States.

The next piece of the puzzle is INA § 309(a), 8 U.S.C. § 1409(a), which describes the circumstances under which fathers of a child born out of wedlock are considered for purposes of transmission of U.S. citizenship.  According to the statute:

The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if-

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person’s birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years-

(A) the person is legitimated under the law of the person’s residence or domicile,

(B) the father acknowledges paternity of ‘the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.

Children born out-of-wedlock to U.S. citizen mothers were formerly treated differently under INA § 309(c), 8 U.S.C. § 1409(c), which required a single year of continuous physical presence in the United States by the mother, but the Supreme Court declared this different treatment of mothers and fathers unconstitutional in its June 12, 2017 decision in Sessions v. Morales-Santana, and prospectively struck it down for children born after the Court’s decision.

With these legal background rules in mind, consider the situation of a U.S. citizen prospective parent who was born abroad and grew up primarily in a foreign country, but has come to the United States for two months every year—to visit relatives, to attend summer camp as a child, to serve as a counselor at that same summer camp as an adult, and so on.  By the time he or she is over age 30, he or she will have more than 60 months of combined physical presence, that is to say, five years, and more than two of those years of physical presence will have been after the age of 14.  According to PA-2019-05 and the current version of 8 FAM 301.7-4(B), however, it appears that USCIS and the State Department will consider such a U.S. citizen never to have had a “residence” in the United States.  The perverse effect of disregarding, as “residence”, periods of physical presence sufficiently substantial to add up to more than 5 years, is to leave such a U.S. citizen parent worse off under INA § 301(c) than under INA § 301(g), even though § 301(c) was apparently intended to be more lenient than §301(g).

Assume that such a U.S. citizen is contemplating marriage, and that one potential suitor is a U.S. citizen who does not meet the residence requirement (either because he or she has never been to the United States or because he or she fails the new stricter residence test), while another is not a U.S. citizen or national.  A child born outside the United States to this purportedly “non-resident” U.S. citizen and another non-resident U.S. citizen will not be a U.S. citizen, under the PA-2019-05 / 8 FAM 301.7-4(B) interpretation of INA § 301(c).  A child born in wedlock to this same U.S. citizen parent and a foreign parent, on the other hand, will be a U.S. citizen under INA § 301(g), because the U.S. citizen parent has accumulated at least five years of physical presence, at least two of which were after the age of 14.  So it appears that USCIS and the Department of State would suggest, at least implicitly, that our hypothetical U.S. citizen parent should make sure to marry the foreign prospective spouse and not the non-resident U.S. citizen prospective spouse.

This is bizarre enough, but it gets worse.  Assume that our hypothetical U.S. citizen prospective parent, with more than 60 months of physical presence accrued in two-month increments, is a woman who has already married a never-resident U.S. husband, presumably not having done the above analysis, and has become pregnant.  She would like to give birth to her child outside the United States, perhaps because that is where more of her relatives live, but she would like the child to be a U.S. citizen.  It appears that what she needs to do is divorce her U.S. citizen husband before the child is born, and make sure that the father does not take the steps prescribed by INA § 309(a), such as promising in writing to support the child as required by INA § 309(a)(3).

As a single parent, our hypothetical U.S. citizen mother presumably ought to again be subject to the rules of INA § 301(g), under which she qualifies to transmit citizenship.  As the Supreme Court put it in Sessions v. Morales-Santana, the “five- year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.”  Morales-Santana, slip op. at 28.  State Department guidance asks a consular officer encountering the situation of an out-of-wedlock child born to U.S. citizen parents after June 2017, where the father has not satisfied the requirements of INA § 309(a), to “please refer to AskPPTAdjudication@state.gov”, but it is difficult to see how that office could reject a claim valid under INA § 301(g) on the basis that the existence of the father, who could not be counted as relevant under the statute, should leave the mother and her child worse off than if the father was a non-citizen or was simply unknown (or was claimed to be unknown).  Indeed, the Foreign Affairs Manual specifically states at 8 FAM 301.7-4(E)(3)(g.) that

An individual born abroad out of wedlock on or after June 12, 2017 to a U.S. citizen mother and alien father acquires U.S. citizenship at birth if the U.S. citizen mother has been physically present in the United States for five years, two of which are after the age of 14, prior to the child’s birth.

Regardless of what AskPPTAdjudication@state.gov would say if confronted with affirmative documentation of a known U.S. citizen father who did not satisfy INA § 309(a), it is difficult to picture an interrogation regarding the identity of the father followed by a denial of U.S. citizenship because the suspected father was thought to be a U.S. citizen himself.

Nor is this the end of the absurdities created by the current interpretation.  There is the concept in immigration law of a sham divorce, if the parties to a former marriage do not actually separate but continue to reside together and have divorced only for immigration purposes, as described in Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983).  Such a divorce is not considered valid for immigration purposes.  Thus, it appears that our hypothetical U.S. citizen mother should not merely divorce her husband, but also actually leave him, if she wishes to be able to transmit U.S. citizenship, lest her divorce be deemed a sham under Matter of Aldecoaotalora.

There is a certain amount of déjà vu in all of this for the author of this blog, who wrote a law journal article more than a decade ago that discussed a similar anomaly formerly applicable to a mother born in the United States who left after the age of one year and before the age of sixteen, due to the separate provision of INA § 309(c), 8 U.S.C. § 1409(c), for children born out of wedlock to U.S. citizen mothers.  With its 2017 decision in Sessions v. Morales-Santana striking the separate rule of INA § 309(c) as unconstitutional, however, the Supreme Court has eliminated that anomaly for children born on or after June 12, 2017.  USCIS and the State Department appear determined to create another one.

If the U.S. government does not really mean to be encouraging some prospective mothers to divorce and leave their husbands, and encouraging other prospective U.S. citizen parents to make sure to marry foreigners rather than U.S. citizens, it should reconsider the guidance contained in as PA-2019-05 and the current version of 8 FAM 301.7-4(B), and return to the earlier, more liberal construction of “residence”.  Indeed, the bizarre result produced by the current guidance suggest that it may be incompatible with the legislative intent behind the statute, since one doubts that the Congresses that enacted the relevant sections of the INA intended to encourage divorce or the favoring of foreign spouses over U.S. citizen spouses.  Courts adjudicating future litigation regarding INA § 301(c), and lawyers litigating cases regarding INA § 301(c), would be well advised to consider this.