Cyrus Mehta

Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2020, the Department of State released the October 2020 Visa Bulletin. Importantly, the Filing Date for an EB-3 from India has advanced to January 1, 2015 from February 1, 2010 in the September 2020 Visa Bulletin, while the Filing Date for an EB-1 from India advanced to September 1, 2020 from July 1, 2018.  By contrast the Filing Date for EB-2 India advanced to only May 15, 2011 from August 15, 2009.

Significantly, however, the USCIS issued guidance on the same day  that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status applications. Historically, USCIS has been very reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The last time USCIS used the Filing Date for most visa categories was in March 2020. In 2019, USCIS used the Filing Date only four times – in January, October, November, and December. Otherwise, applicants must use the Final Action Date to determine when to submit their I-485. According to earlier guidance from USCIS, applicants may use the Filing Date to determine when to submit an I-485 when the USCIS determines that there are more immigrants visas available for the fiscal year than there are applicants. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.  USCIS’s decision to apply the Filing Date comes as a surprise under the October 2020 Visa Bulletin, albeit a pleasant one, given the agency’s previous unwillingness to allow applicants to use the Filing Date.

Since USCIS will accept I-485 filing, a new I-140 will need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3.  If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate “professional”, or “skilled worker” will need to be checked on the form. The individual may still rely on an old labor certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice. Some may be of the view,  and they have some support in the Neufeld Memo of June 1, 2007 that the new “downgraded” I-140 under EB-3 should be checked as an amendment rather than as a separate petition. The Neufeld Memo suggests that a new I-140 petition filed after a previously approved I-140 was filed within 180 days of the grant of the labor certification should be filed as an amendment where a  new visa classification is being sought.  But doing that would nullify the earlier EB-2 petition, and this may not be so desirable in case the EB-2 dates overtake the EB-3 at some point in the future. If that were to happen, then a new amendment of the EB-3 would need to be filed for upgrading to EB-2  On the other hand, 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. This regulation does not preclude the filing of an I-140 petition subsequent to the use of the labor certification through a previously approved labor certification  Therefore, the prevalent view is in favor of filing a standalone I-140 to downgrade to EB-3 is preferable to filing it as an amendment. See Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB-3 Anomaly, AILA Liason (Dec. 16, 2013), available at: https://www.aila.org/infonet/uscis-multiple-i-140s-priority-date-retention. However, this is not to assume  that USCIS will not insist that the I-140 should have been checked off as an amendment and may deny the EB-3 petition.

Although an I-485 filed pursuant to a current Filing Date does not confer permanent residence, the  I-485 filing confers a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Note, however, that USCIS’ use of the Filing Date will not help those who are waiting for a visa interview abroad, although the National Visa Center (NVC) will initiate the case and obtain documents before the Final Action Date becomes current.

Other complications arise under the Child Status Protection Act (CSPA), which “freezes” the age of applicants under the age 21 who would otherwise age out before being approved for LPR status due to lengthy USCIS backlogs. USCIS has made clear that only Final Action Dates, and not Filing Dates may be used to freeze a child’s age. Thus, an applicant who files an I-485 based on a Filing Date should be aware that their child will no longer be protected if the child ages out before the Final Action Date becomes available. The child’s I-485 application will be denied, and she can even be put into removal proceedings if she has no nonimmigrant status. We discussed this predicament at greater length, and argued that there is a significant legal basis to use the Filing Date to protect the age of a child under the CSPA in an earlier blog.

Additionally, a small group of EB-2 beneficiaries from India who already have pending I-485 applications (as they filed I-485s in 2012 and then the EB-2 India dates retrogressed) may decide to “downgrade” to an EB-3 from an EB-2, given the more advanced Filing and Final Action Dates for an EB-3. Individuals who find themselves in this situation will need to file a new I-140, which may not protect a child from aging out under the CSPA. CSPA applies only the “applicable” petition, which most likely means the old EB-2 I-140 petition. Individuals who want to downgrade from EB-2 to EB-3 because of the more favorable dates should be aware that their children who were protected under the CSPA under a prior I-140 may not longer receive that protection when a new I-140 is filed if the child is now over 21 years old. Please refer to our earlier blog post for a more in-depth discussion of the CSPA.

EB-1 beneficiaries from India are also in luck, and so long as the EB-1 I-140 was filed on or before September 1, 2020, a concurrent I-485 may be filed. In this case too, legal advice should be taken since the I-485 with all its attendant benefits may not survive if the pending I-140 is denied.

While the movement in the Filing Dates will give relief to many, they are quixotic and ephemeral. The EB-3 India dates have overtaken the EB-2 dates. At one point, it was always assumed that EB-2 would be ahead of EB-3. But there might be a flipflop as more people are lured into filing under EB-3, and then both EB-2 and EB-3 will be hopelessly backlogged.  But those who managed to file I-485 applications will be permitted to apply for employment authorization and can port to new jobs in same or similar occupations. While the green card may still be far away, at least I-485 applicants will be better off than being on a 12th year H-1B extension as they will have more mobility and their spouses and children will also be able to work. Ideally, the immigration system ought to be reformed by eliminating per country limits, and better still, infusing the EB preferences with more visa numbers.  For that to happen, Congress has to aligned and in today’s polarized environment, this too seems unlikely to happen until at least after the elections.

(Kaitlyn Box graduated with a JD degree from Penn State Law School and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC)

Cyrus Mehta

In Honor of Justice Ginsburg: Disfavoring Piepowder Courts Against Permanent Residents in Vartelas v. Holder

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Saddened by the death of Justice Ginsburg, I searched through the blogs I have written on her opinions in immigration cases. I was again reminded not only about her brilliance but how forcefully she advanced the rights of immigrants that was consistent with the Constitution and the Immigration and Nationality Act. I wrote Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder in 2012 with Gary Endelman when he was in private practice and is now an Immigration Judge.  Upon re-reading  the blog  after  the  announcement  of  her  death last evening, it deeply resonated in me as this blog was inspired by the same passion as Justice Ginsburg’s forceful opinion in Vartelas v. Holder upholding the rights of permanent residents (LPR) as they existed before the 1996 Act. An LPR who was convicted of a crime prior to 1996 should not be found inadmissible if the trip outside the US was brief, casual and innocent.  Piepowder, or dusty feet courts, as Justice Ginsburg quaintly observed in a footnote, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe while the merchants’ feet were still dusty.  Since  the law  post- 1996  could  not  be  applied  retroactively,  a CBP  officer  may not  set  up  a  “dusty  feet” court  at  the  airport  to  determine  whether a returning  LPR committed  crimes in the past and then find  him or her inadmissible.  Vartelas  v. Holder  partially  restored  the  rights  of  LPRs  only  for  crimes  convicted  prior  to  the  1996  law. In 2017, the Second Circuit in Centurion v. Sessions expanded the retroactive application of the pre-1996 entry doctrine to the commission of crimes even if the conviction of that crime occurred after after 1996.   The  project  remains  unfinished.  The pre-1996 entry  doctrine  must  be  restored  completely  so  that  LPRs , who have due process rights long recognized by the Supreme Court,  are  not  placed  in  jeopardy at the airport  for inadmissible crimes  committed  even after 1996  if  their  trip  abroad  was  brief,  casual  and  innocent. A future  Justice  in  the  same  mold  as  Justice  Ginsburg  will  need  to  write  the next decision.

Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder

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By Gary Endelman and Cyrus D. Mehta 

In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority,   made an interesting reference to piepowder courts. For an explanation of the potential significance of Vartelas v. Holder, we refer readers to our previous blog entitled Fleuti Lives! Restoration of A Constitutional Decision.

Piepowder, or dusty feet courts, as Justice Ginsburg’s decision explains in footnote 12, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe. These courts were set up to resolve disputes while the merchants’ feet were still dusty.

Justice Ginsburg made this reference to piepowder courts in the immigration context in our modern era, stating that an immigration official at the border would not set up a piepowder court to determine whether an LPR committed an offense identified in INA § 212(a)(2) to determine whether he or she was inadmissible. This is what Justice Ginsburg said: “Ordinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.”

The Supreme Court’s observation on quaint “dusty feet” courts, although charming, is also extremely significant. Most lawyers who do not practice immigration law, and of course everyone else, will be surprised to know that a non-citizen, including an LPR, can be found inadmissible under INA § 212(a)(2) for being convicted or who admits having committed certain crimes, such as crimes involving moral turpitude or controlled substance offenses.  Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible, he or she can be equally snared for having admitted to the commission of a crime. Clearly, with respect to an LPR travelling from abroad, Justice Ginsburg’s observation appears to restrict a CBP officer’s ability at an airport from trying to obtain a confession regarding the commission of a CIMT. A CBP official cannot set up a piepowder court at the airport, like the merchants of a bygone era, to try an LPR who has travelled through many time zones, and who instead of having dusty feet may have bleary eyes, for the purposes of bludgeoning him or her into an admission for having committed a crime.

Admittedly, the observation on piepowder courts was obiter dictum. It  was made in the context of whether INA § 101(a)(13)(C), enacted by the Illegal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows the government to charge a long term LPR as an arriving alien for having committed an offense under 212(a)(2), could be applied retroactively.  The Supreme Court in Vartelas v. Holder held that the  doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that an LPR who made a brief, casual and innocent trip abroad should  not be charged as an arriving alien,  still applies to LPRs with pre- IIRIRA criminal conduct. Noting that there was a presumption against retroactive legislation under Landgraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court  in Vartelas concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Court criticized the Second Circuit in the same case below, which did not find INA §101(a)(13)(C)(v) retroactive since it did not reference a conviction but only the commission of a crime, which if pleaded to prior to 1996 in reliance of more favorable treatment under pre-1996 law, would have been impermissibly retroactive as in INS v. St. Cyr, 533 U.S. 289 (2001). It was at this point that Justice Ginsburg said that “[t]he practical difference (between a conviction and commission of a crime), so far as retroactivity is concerned, escapes our grasp” and then made her observation that an immigration official would in any event need to determine under the clear and convincing standard at the border by checking the record of conviction, rather than convene a piepowder court, to determine whether the alien committed the crime.

It is also significant that Justice Ginsburg in her observation on piepowder courts affirmed that the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. This burden applies to all LPRs regardless of whether they have pre-1996 or post-1996 criminal convictions. Thus, under a Woodby analysis too, since the government bears a heavy burden of proof, it would be turning the tables on the LPR if the government tried to extract a confession regarding the commission of a crime and thus be able to escape from the heavy burden it bears under the “clear, unequivocal and convincing” standard. This can potentially happen with an LPR who may have had the charges dismissed or reduced, but a nasty CBP official still wants to know the real story via a hypothetical piepowder court at the airport. Indeed, the Board of Immigration Appeals held many years ago in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the Woodby standard, in the absence of other evidence, to establish deportability. The following extract from Matter of Guevara is worth noting:

The legal concept of a “burden of proof” requires that the party upon whom the burden rests carry such burden by presenting evidence. If the only evidence necessary to satisfy this burden were the silence of the other party, then for all practical purposes, the burden would actually fall upon the silent party from the outset. Under this standard, every deportation proceeding would begin with an adverse inference which the respondent be required to rebut. We cannot rewrite the Act to reflect such a shift in the burden of proof. [citing Woodby v. INS, supra; other citations omitted]

Of course, an LPR can still voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

Justice Ginsburg’s piepowder observation in Vartelas v. Holder, together with Matter of K and Matter of Guevara, provide more arsenal to an LPR who is charged as an arriving alien based on the commission rather than the conviction of a crime under INA § 212(a)(2). Beyond this, the disinclination to sanction ad hoc investigation through a “dusty feet” court conducted without legal sanction or moral restraint reflects a commendable preference for the stability of the written record as the framework for informed decision.

The conceptual framework that governs any discussion of retroactivity is the traditional two-step formula announced in Landgraf v. USI Film Products, supra. Since Congress did not expressly instruct on how far back IIRIRA could go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor “reasonably relied.” When in doubt, retroactivity is disfavored. The Supreme Court got it right. “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 US at 265.

Justice Ginsburg’s admonition reflects a profound appreciation of the due process rights that returning LPR’s have traditionally enjoyed.   While Woodby may not have been a constitutional decision, the warning against piepowder courts can only be understood in a constitutional context.  Remember the returning LPR seaman in Kwong Hai Chew v Colding, 349 US 590(1953) that authorities sought to exclude without a hearing; the Supreme Court reminded us that he deserved full constitutional rights to a fair hearing with all the due process protection that would have been his had he never left. Remember what Rosenberg v Fleuti, 374 US 449, 460(1963) taught us: “A resident alien who leaves this country is to be regarded as retaining certain basic rights.” Remember the ringing injunction of Shaughnessy v. US ex rel Mezei, 345 US 206, 213(1953): “A lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.”  In essence, behind Justice Ginsburg’s distaste for piepowder courts when applied to returning resident aliens, regardless of when their conviction or admission took place, is nothing less than the right “ to stay in this land of freedom.” Landon v. Plasencia, 459 US 21, 36 (1982) quoting Bridges v. Wixon, 306 US 135, 154 (1945).

The refusal to sanction IIRIRA retroactivity in Vartelas v. Holder provides the kind of predictability that LPRs need and deserve before they leave the USA and seek to return.  This, after all, is why retroactivity is disfavored .This is precisely why a piepowder court is not allowed; an LPR should know what this status means, what his or her rights are and should be able to leave the US with the confidence that an uneventful return is not only possible but entirely to be expected. In this sense, the refusal to embrace IIRIRA retroactivity and the caution against a piepowder court spring from the same place and say the same thing- predictability is at the very essence of a lawful society.  After all, to borrow Einstein’s happy phrase, God does not play dice with the universe.

(The views expressed by guest author, Gary Endelman, are his own and not of his firm, FosterQuan, LLP)

Cyrus Mehta

The Future of Work and Visa Rules in the Age of COVID-19

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Since COVID-19 afflicted the world, people have learned to work remotely from home and the office seems to be less relevant. Most white collared work can be carried out remotely through Zoom Video or Microsoft Teams. Jack Dorsey, the head of Twitter, said that the company’s employees can work from home “forever.” This view may not be shared by all. 85% of French office workers are back at their desks. Reed Hastings, the founder of Netflix, said that working from home is a pure negative. Facebook recently leased an iconic building in Manhattan in the hope that New York’s business will spring back to life.

While the debate on the relevancy of the office will continue even after the pandemic, US visa rules have not been able to cope with remote work. As a result,  they can be used against remote workers, especially by the Trump administration that has been hostile to  foreign workers as they have been perceived, albeit erroneously,  as a threat to the US labor market. This has been more so during COVID-19.

President Trump has imposed a broad work visa ban under Proclamation 10052.    In the State Department’s National Interest Exceptions to President Trump’s  work visa ban under Proclamation 10052, one of the exceptions for banned H-1B visa entrants is if the employer can demonstrate that it has a continuing need for their services.  Even if the employer can demonstrate a continuing need for a specialized H-1B worker, the State Department guidance goes on to state that “if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.”

The  Trump administration ought not be allowed to negate  immigration to the US under the assumption that work can be carried out remotely. It is for the employer in the US to decide whether the services of a skilled worker is needed in the US. Even if the office is being used less or none at all since the pandemic, this does not mean that there will be no need for an office,  and  workers may still need to congregate  occasionally so that they can collaborate, share ideas, mentor and train. Even if the work is completely remote during the COVID-19 period, it makes sense to have people work during the same time zone in the US.

Another conundrum arises when H-1B workers have been forced to work remotely from their home during the pandemic. The DOL rules technically consider the home to also constitute  a place of employment (as that is where the work is being actually being performed), and thus there is a need to post the Labor Condition Application in two conspicuous locations, which in the home would likely be on the refrigerator and bathroom mirror (see LCA Posting Requirements at Home During the COVID-19 Pandemic: Should I Post on the Refrigerator and Bathroom Mirror)  This  is silly as the whole purpose of the LCA is to inform US workers about the H-1B position. There are no US workers at the home of an H-1B worker. It makes no sense to force an H-1B worker to post an LCA in the home, which might trigger a time consuming and costly amendment of the H-1B petition. If the LCA is not posted, it could result in penalties for the employer and maintenance of status issues for the H-1B worker.

A final observation applies to people who are in the United States as visitors for pleasure and have not been able to leave due  to the pandemic. This visitor could have a normal 8 hour work day in the US over Zoom video on behalf of an employer who has no connection with the US.  The tourist visa does not allow any sort of work to be performed in the US.  If one who is on B-2 visitor visa works remotely in the US for a job based outside the US, could remote work while in B-2 status be used against an unwitting visitor to find that she violated her status.  It should clearly not as the visitor is not working for an employer in the US or is even being paid from a US source. Even prior  to remote work becoming fashionable,  a visitor for pleasure could have attended to work e mails relating to a job outside the US  and would not be considered to be violating status.  It is common for visitors to another country to keep in touch with their work even when they visit another country.  Even before the age of smart phones,  nothing prevented a tourist in the United States from jotting notes on a yellow pad in preparation for a business meeting that would take place in her home country after he returned.

While working during the pandemic seems to be changing the paradigm about how we think about work, it is hoped that visa rules will be applied in a commonsensical fashion. People should not be penalized for engaging in unauthorized work if their  work has  no connection to the US. The same should be true for a US worker who is stranded in another country and engages in full time remote work for the US employer. That country’s visa laws should not penalize this person.  Similarly, an H-1B worker forced to work at home should not be required to post an LCA on the refrigerator, and then penalized along with the employer, for failure to do so. Finally, even if remote work has become more prevalent, this does not in any way justify the barring of people to the US on legitimate visas under the assumption that the work can be performed remotely.

Cyrus Mehta

Gomez v. Trump: Welcome to the Brave New World of Made Up Law Under INA 212(f)

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Before President Trump, one could hardly imagine that an American president would use INA § 212(f) to rewrite immigration law in a manner he saw fit and with whatever prejudices might be harboring in his mind. While INA § 212(f) does give extraordinary power to a president, Trump has exploited these powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

President Trump, in addition to various travel bans, sought to bar various immigrants and nonimmigrants from entering the US through Proclamations 10014 and 10052 under the pretext that they pose a threat to the US labor market during COVID-19. Several plaintiffs challenged the proclamations through by seeking a preliminary injunction, which resulted in Gomez v. Trump in the District Court of the District of Columbia. Judge Amit Mehta, who wrote the decision, upheld the validity of the proclamations under INA 212(f), but still ordered the State Department to process the visas of Diversity (DV) lottery winners before the Congressionally mandated deadline of September 30, 2020. The judge said that the government had “unreasonably delayed processing” of their visas.  Others subject to the proclamation did not suffer the same irreparable harm as their visas could be processed even after September 30, but DV lottery winners needed to be issued by the hard deadline of September 30 deadline. Judge Mehta drew a distinction between processing of the visas of DV lottery winners, which were not affected by the proclamations, and their ultimate entry into the US, which would still be prohibited under them.

Trump’s proclamations will still bar immigrants and nonimmigrants from entering the US, including DV winners. The only saving grace is that DV lottery winners may some day hope to enter the US once the proclamations expire as their visas got processed before September 30. If Trump gets reelected, the ban may continue and DV winners, along with all the other immigrants and nonimmigrants, would likely still be barred from entering the US.

Apart from this narrow victory for DV winners, Judge Mehta’s decision was a disappointment.  Judge Mehta confirmed that  INA 212(f) exudes deference under Trump v. Hawaii. This was the decision of the Supreme Court that upheld what has come to be known as Trump’s Muslim ban since it fulfilled a campaign promise that he would ban Muslims if he became president. The watered down version of the proclamation that was upheld by the Supreme Court in Trump v. Hawaii banned nationals of Iran, Sudan, Somalia, Libya, Yemen, Chad and Syria, along with Venezuela and North Korea. Although the Ninth Circuit in Doe v. Trump distinguished the president’s authority under 212(f) in domestic matters – as that involved a ban on  immigrants who were unable to obtain specific health insurance – Judge Mehta gave short shrift to this distinction (see Trump is Not King, Cannot Rewrite Public Charge Law through Executive Fiat).  Judge Mehta also did not discuss the other Ninth Circuit decision in East Bay Sanctuary Covenant v. Trump, where the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. In that case Trump through INA 212(f) prohibited asylum seekers from applying for asylum who crossed outside a designated port of entry even though INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of the manner of entry and even though it was not through a designated  port of arrival. According to Judge Mehta, the plain language of INA 212(f) simply speaks in terms of restricting entry of aliens “detrimental to the United States”; and this  detriment is not limited to any  sphere, foreign or domestic. Since COVID-19 has resulted in changed economic circumstances, a court is not well equipped to evaluate the policy choices of the administration to restrict the entry of certain classes of aliens, according to Judge Mehta. Even if President Trump based these restrictions on false pretenses, Judge Mehta held that the court’s role in evaluating even this is constrained under INA 212(f). “Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed,” according to Judge Mehta.

Judge Mehta also disagreed that the proclamations overrode the INA, and the exceptions and waivers in the proclamations still allowed noncitizens to enter the US. Judge Mehta, unfortunately,  did not analyze that these exceptions, especially the State Department’s National Interest Exceptions,  imposed additional requirements that had no basis in the INA (see Trump’s Work Visa Ban Violates the Immigration and Nationality Act And So Do the Exceptions). Take, for example, the requirement that: “The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.” This additional wage requirement is entirely absent from the INA. Another example is a provision in the guidance which states that “L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.” The requirement that petitioners employ five or more U.S. workers also has no basis in the INA or in 8 Code of Federal Regulations. For L-1B applicants, the need to demonstrate significant and unique contributions to the petitioning company, that the specialized knowledge is specifically related to a critical infrastructure need and that the applicant has spent multiple years with the same company has no basis in the law or regulations. Under the existing INA and regulations, the L-1B applicant must demonstrate that he has had one year of qualifying experience in a managerial, executive or specialized knowledge capacity. Judge Mehta’s decision is devoid of any analysis on how these exceptions have no basis in the INA, and instead, he held that they did not  “expressly override” any “particular” provision of the INA and “[a]liens still may travel to the United States under the visa categories established by Congress. “

Welcome to the new world of INA 212(f) jurisprudence under which law can be simply be made up without going through the arduous process of proposing bills in Congress and having them voted in both the chambers. Indeed, this law can be invented through the stroke of a xenophobe’s pen. Arch xenophobe Stephen Miller has been the architect of Trump’s proclamations under 212(f). Either entire countries can be banned or entire visa categories pursuant to 212(f). The exceptions to these restrictions, based on national interest, can also be made up with no bearing on the actual visa category and subject to a consular officer’s caprice and whim.

If President Trump is reelected, one should expect that he will continue to wholesale rewrite the INA and restrict immigration.  If on the other hand Joe Biden is elected, the broad bans that Trump issued under 212(f) could be eliminated on January 21. In the meantime, even though Gomez v. Trump upheld Trump’s power to rewrite the law under 212(f), it remains to be seen how other courts will interpret 212(f) with respect to Proclamations 10014 and 10052. The hearing for the  preliminary injunction in NAM v. Trump is scheduled for a hearing on September 11 in the Norther District of California, which is in the Ninth Circuit where Doe v. Trump and East Bay Sanctuary Covenant v. Trump should still have sway. Let us hope that the court will rule differently in that case and the desired preliminary injunction will ensue.