Cyrus Mehta

The Fight for Immigration Justice Is Not Over: SCOTUS Rules Mandatory Detention of Certain Immigrants Seeking Safety in the United States

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By: Sophia Genovese*

In Johnson v. Guzman Chavez, 594 U.S. __ (2021), the Supreme Court held that noncitizens in withholding-only proceedings are not entitled to a custody redetermination, or bond, hearing before the Immigration Court. This holding effectively leaves thousands of asylum seekers at risk of prolonged and indefinite detention.

By way of background, individuals who return to the United States after having previously been removed are subject to reinstatement of removal. 8 U.S.C. § 1231(a)(5); 8 C.F.R. 241.8(a). However, if someone with a prior removal order expresses a fear of persecution, they are referred for a Reasonable Fear Interview (RFI) where they must demonstrate “a reasonable possibility that he or she would be persecuted on account of his or her race, religion, nationality, membership in a particular social group or political opinion, or a reasonable possibility that he or she would be tortured in the country of removal.” 8 C.F.R. §§ 241.8(e), 208.31(c). If an Asylum Officer determines that there is a reasonable possibility that the noncitizen will face persecution or torture, the noncitizen will be placed into withholding-only proceedings where they are only permitted to apply for withholding of removal or protection under the Convention Against Torture (CAT). 8 C.F.R. § 208.31(e). Neither withholding of removal nor protection under CAT grant lawful permanent residence, but both allow for the noncitizen to obtain work authorization and reside in the United States. An individual granted withholding of removal or protection under CAT can be removed to a third county (see 8 C.F.R. § 1208.16(f)); however, this rarely occurs.

Prior to Johnson v. Guzman Chavez, most individuals in withholding-only proceedings were held in immigration detention unless they resided in a jurisdiction where they were eligible for release on bond. Prior to June 29, 2021, according to the Second and Fourth Circuits, the detention of noncitizens in withholding-only proceedings is governed by 8 U.S.C. § 1226(a) and are thus entitled to a bond hearing before an immigration judge pursuant to 8 C.F.R. § 1236.1(d). Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016); Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. 2019). According to the Third, Sixth, and Ninth Circuits, the detention of noncitizens in withholding-only proceedings is governed by 8 U.S.C. § 1231(a) and are thus not entitled to a bond hearing under the §1226(a) provisions. Martinez v. LaRose, 968 F.3d 555 (6th Cir. 2020); Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018); Padilla-Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2017).

The Second Circuit was the first court of appeals to directly address the issue of whether individuals in withholding-only proceedings were entitled to a bond hearing. In Guerra, the Second Circuit explained that there are two statutory sections which authorize the detention of noncitizens:  8 U.S.C. § 1226(a), which governs detention “pending a decision on whether the [noncitizen] is to be removed from the United States,” and 8 U.S.C. § 1231(a), which governs detention of noncitizens subject to a final order of removal. 831 F.3d at 62. Under § 1226(a), noncitizens are eligible for a custody redetermination, or a bond, hearing before the immigration court, so long as they are not classified as arriving noncitizens on their Notices to Appear, nor subject to mandatory detention under §1226(c). Under §1231(a), detention is mandatory for the 90-day “removal period” after a removal order becomes “administratively final,” and thereafter, noncitizens are entitled to periodic review of their detention by ICE; however, ICE is permitted to continue detaining the individual and extend the removal period. The Second Circuit reasoned that §1226(a) does not contemplate whether the noncitizen is “theoretically removable but rather whether the [noncitizen] will actually be removed.” Guerra, 831 F.3d at 62. It follows that a noncitizen subject to reinstatement of removal is removable, “but the purpose of withholding only proceedings is to determine precisely whether ‘the [noncitizen] is to be removed from the United States.’” Id. The Second Circuit reasoned that §1226(a) contemplates detention of removal proceedings which are ongoing, whereas §1231(a) is primarily concerned with defining the 90-day removal period during which a noncitizen “shall” be removed, and thus, §1226(a) governed the detention of noncitizens in withholding-only proceedings. Id. In addressing finality of the reinstated removal order, the Second Circuit explained that the decision to remove the noncitizen from the country is not made until the proceedings are complete, and accordingly, the reinstated removal order cannot be administratively final. Id. at 64.

In Guzman Chavez v. Hott, 940 F.3d 867 (4th Cir. 2019), the Fourth Circuit reasoned along similar lines. The Court concluded that §1226 and §1231 “fit together to form a workable statutory framework,” where the §1226 applies “before the government has the actual authority to remove a noncitizen from the country,” and that §1231 applies “once the government has that authority.” 940 F.3d at 876. And thus, “because the government lacks the authority to actually execute orders of removal while withholding-only proceedings are ongoing the petitioners are detained under § 1226.” Id. (internal citations omitted).

The Ninth Circuit disagreed with the Second Circuit and held that noncitizens in withholding-only proceedings are detained pursuant to §1231(a). Padilla-Ramirez v. Bible, 882 F. 3d 826 (9th Cir. 2017). The noncitizen in this case, Mr. Raul Padilla-Ramirez, had previously been deported after his application for asylum was denied. Id. at 829. He re-entered the United States a few years later undetected and was transferred to ICE custody after dismissal of unrelated criminal charges in 2015. While in ICE custody, Mr. Padilla-Ramirez expressed a fear of return to his native El Salvador, passed his RFI, and was placed into withholding-only proceedings. Id. After being denied the opportunity to seek bond before the immigration court, Mr. Padilla-Ramirez filed a petition for writ of habeas corpus, which was dismissed by the district court, and he appealed to the Ninth Circuit.

The Ninth Circuit upheld the decision of the lower court, concluding that §1231(a) governed Mr. Padilla-Ramirez’s detention, and ruled that he was not entitled a bond hearing under §1226(a). But see Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (holding that prolonged detention under §1231(a)(6) is prohibited without an individualized hearing to determine whether the person is a flight risk or a danger to the community). In reaching their decision, the Ninth Circuit first analyzed the removal period and assessed whether Mr. Padilla-Ramirez’s reinstated removal order was “administratively final.” The Court concluded that under a plain reading of §1231(a)(5), a reinstated removal order is administratively final. Id. at 831. The Court reasoned that the removal order was final when it was first executed, and if reinstated, it is reinstated from its original date and thus retains the same administrative finality. Id. The Court also reasoned that since the reinstatement provision is in the same section in the Act entitled “Detention and removal of [noncitizen] ordered removed,” Congress intended for the detention of noncitizens subject to reinstatement to be governed by that section, which require that the order be administratively final. Id. The Court concluded that withholding-only proceedings do not affect the administrative finality of the removal order; but rather, only determine whether a noncitizen ought to be removed to a particular country, and thus §1231(a) governs their detention. Id. at 832.

The Third Circuit in Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018) agreed with the Ninth Circuit. Mr. Rafael Guerrero-Sanchez had reentered the United States after having previously been ordered removed, passed his RFI, and was placed into withholding-only proceedings. Having been denied a bond hearing, Mr. Guerrero-Sanchez filed a petition for writ of habeas corpus. The district court held that his detention was governed by §1226(a) and ordered his release after nearly two years in ICE custody. 905 F.3d at 210. On appeal, the government argued that Mr. Guerrero-Sanchez was detained pursuant to §1231(a), and not entitled to a bond hearing. In response, Mr. Guerrero-Sanchez argued that he was detained pursuant to §1226(a) and was entitled to a bond hearing; and also, even if detained pursuant to §1231(a), he was still entitled to a bond hearing given his prolonged detention. Id. at 211. The Court ultimately held that §1231(a) governed Mr. Guerrero-Sanchez’s detention, that his reinstated removal order was administratively final, and “that §1231(a)(6) affords a bond hearing after prolonged detention [after six months] to any [noncitizen] who falls within the ambit of that provision.” Id.

The Sixth Circuit in Martinez v. LaRose, similarly held that noncitizens in withholding-only proceedings are detained pursuant to §1231(a). 968 F. 3d at 557. The petitioner in this case, Mr. Walter Martinez, had been previously deported in 2008. Upon return to El Salvador, he was brutally beaten by the MS-13 gang and the police who worked with the gang. He fled to the United States again, passed his RFI, and was held in immigration detention for two years. Mr. Martinez filed a petition for writ of habeas corpus, arguing that his prolonged detention had violated his due process rights and requesting that he be given an individualized bond hearing. Id. His habeas petition was dismissed, where the district court held that §1226(a) does not apply to his detention, and under § 1231(a), “his due process claims fail because his removal is reasonably foreseeable.” Id. at 558. The Sixth Circuit upheld the decision and declined to adopt a similar six-month test as had been done in Guerrero-Sanchez v. Warden York County Prison.

Johnson v. Guzman Chavez

The Supreme Court in Johnson v. Guzman Chavez addressed the circuit split and examined whether noncitizens in withholding-only proceedings are entitled to a bond hearing before the immigration court.

Justice Alito writing on behalf of the conservative majority ultimately agreed with the Third, Sixth, and Ninth Circuits, holding that the detention of noncitizens in withholding-only proceedings is governed by 8 U.S.C. § 1231(a), noncitizens in withholding-only proceedings are not entitled to a bond hearing, and that the reinstated removal orders are administratively final. Notably, the Court refers to noncitizens as “aliens” an astonishing 214 times in its decision, despite recent efforts to abolish the use of the dehumanizing term. The Court, in rejecting the arguments of counsel for the noncitizens, found that withholding-only proceedings only address whether the noncitizen is to be removed to a particular country, and not from the United States, concluding that the reinstated removal order remains final throughout these proceedings. Guzman Chavez, 594 U.S. at 11. The Court acknowledges that although very few individuals are ever removed to a third country, this reality does not negate the fact that withholding-only proceedings are country specific. Id.

The majority cites to §1231(a) in rendering its decision. The Court explained that the 90-day removal period in §1231(a)(1)(A) begins on the latest of three dates (1) the date the order of removal becomes “administratively final,” (2) the date of the final order of any court that entered a stay of removal, or (3) the date on which the alien is released from non-immigration detention or confinement. §1231(a)(1)(B). During the removal period, detention is mandatory. §1231(a)(2). The removal period may be extended in certain conditions, including: if the noncitizen takes actions which prevent their removal; if DHS stays the removal if it is not practicable or proper; or if the noncitizen is inadmissible, removable as a result of certain violations, or is a risk to the community. §§ 1231(a)(1)(C), 1231(c)(2)(A), 1231(a)(6). By taking a plain reading of the statute, the Court states, the reinstated removal orders have long been final, and “there is nothing left for the BIA to do with respect to the removal order other than to execute it.” 594 U.S. at 10. The majority sidesteps any analysis under Chevron or Auer, and resorts to a pseudo-textual interpretation of the INA, continuing a trend also observed in Sanchez v. Mayorkas, 593 U.S. ___ (2021), where the Supreme Court similarly refused to engage in a Chevron analysis. The majority seeks to justify its holding and prohibition of bond hearings for noncitizens in withholding-only proceedings by commenting “[noncitizens] who reentered the country illegally after removal have demonstrated a willingness to violate the terms of a removal order, and they therefore may be less likely to comply with the reinstated order.” Id. at 20.

Agreeing with the Fourth and Second Circuits, the dissent argues that §1226(a) governs the detention of noncitizens in withholding-only proceedings where there is a pending decision on whether the noncitizen is to be removed from the United States. The dissent also finds that the reinstated removal order is not final while withholding-only proceedings are pending. The dissent remarks that withholding-only proceedings involve a full hearing before the immigration court, may be appealed to the Board of Immigration Appeals (BIA) and seek judicial review thereafter, which can take well over two years before the case is resolved. Guzman Chavez, 594 U.S. at 5 (Breyer, J., dissenting). The dissent questions whether Congress intended to deny bond hearings “to individuals who reasonably fear persecution or torture, and who, as a result, face proceedings that may last for many months or years.” Id. at 6.

The dissent also finds that §1231(a)(1)(A)’s language, “except as otherwise provided in this section,” and the later restriction-on-removal provision indicate that §1231(a) is not the appropriate governing statute for the detention of withholding-only applicants. Id. The dissent reasons that the removal period for withholding-only applicants cannot begin until their proceedings have concluded – that is, “the order is not ‘final’ until the immigration judge and the BIA finally determine whether the restriction on removal applies and prohibits removal.” Id. at 7. By adopting the majority’s rationale that the reinstated removal order is final as of the date it was originally executed, it creates uncertainty around how, if it all, the removal period can apply to withholding-only applicants.

Who Is Affected By This Decision?

As examined in our previous articles (here, here, and here), the Trump administration eviscerated asylum protections in the United States. Under this and other flawed case law and policies, thousands of asylum seekers were deported despite having very real fears of violence in their countries of origin. Upon returning to their home countries, and facing the exact violence they anticipated, noncitizens return to the United States again seeking safety.

Although the Biden administration has taken important steps to undo some of the most egregious Trump-era policies (such as restoring asylum eligibility for survivors of domestic violence and family units, and empowering judges to manage their own dockets), the administration continues to follow the unlawful practice of expelling migrants and asylum seekers under the supposed authority of Title 42, resulting in thousands of asylum seekers being forcibly denied entry into the United States. Because asylum seekers still face the same dangers they fled, they are forced to seek irregular entry into the United States; and, depending on their individual situation and whether they have a prior removal order, may be subjected to withholding-only proceedings.

Now in the United States a second or third time after previously being unfairly removed, these individuals are only eligible for withholding of removal or protection under CAT, which do not lead to permanent lawful status. Withholding of removal and protection under CAT are also both extremely difficult protections to achieve – far more difficult than winning asylum. And in light of Johnson v. Guzman Chavez, noncitizens in withholding-only proceedings will have to fight for these narrow protections from the confines of immigration detention, where they are at high risk of contracting COVID-19, likely to experience difficulties in accessing evidence they need for their cases, as well as less likely to find competent counsel.

Strategies for Noncitizens in Withholding-Only Proceedings Seeking Release From Immigration Detention

Although Guzman Chavez prevents noncitizens in withholding-only proceedings from seeking bond under §1226(a) authority, there remain several avenues to advocate for release:

Advocates and attorneys may request that ICE exercise prosecutorial discretion in vacating reinstatement orders and issuing notices to appear, which will allow noncitizens to pursue all relief in ordinary removal proceedings. 8 U.S.C. § 1229(a); Villa-Anguiano v. Holder, 727 F.3d 873, 878-79 (9th Cir. 2013) (“ICE agents, to whom § 1231(a)(5) delegates the decision to reinstate a prior removal order, may exercise their discretion not to pursue streamlined reinstatement procedures.”)  It follows that the noncitizen would then be detained pursuant to §1226(a) and thus entitled to a bond hearing.

Individuals may also seek release from ICE custody as a matter of prosecutorial discretion. Noncitizens may be released on parole or on their own recognizance. In seeking release, noncitizens must establish that they are not a danger to the community nor a flight risk, and should submit evidence of strong equities which would convince ICE to exercise its discretion in releasing the noncitizen from ICE custody. (See CLINIC’s Guide to Obtaining Release From Immigration Detention for helpful tips on preparing these requests for release).

Noncitizens may also continue seeking bond hearings in the Third and Ninth Circuits, where these jurisdictions have ruled that noncitizens in withholding-only proceedings are permitted to seek custody review after their detention has become prolonged (usually at six months). Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208 (3d Cir. 2018); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). In other jurisdictions, noncitizens can seek release via a petition for writ of habeas corpus, arguing that their indefinite detention violates their due process rights. Zadvydas v. Davis, 533 U.S. 678 (2001). (See the American Bar Association’s Guide for Seeking Release from Indefinite Detention After Receiving A Final Order of Deportation for tips and sample petitions).

Johnson v. Guzman Chavez significantly restricts the ability to obtain release from ICE custody for noncitizens in withholding-only proceedings. Although practitioners have many other tools at their disposal to advocate for the release of their clients, what is ultimately needed are concrete legislative changes that make clear noncitizens in withholding-only proceedings are bond eligible, or more broadly, legislation which challenges the existence of immigration detention for all noncitizens.

*Guest author Sophia Genovese is a Pro Bono Supervising Attorney at Catholic Charities Community Services, Archdiocese of New York. Sophia trains and mentors pro bono volunteer attorneys in their representation of immigrants in removal proceedings. Sophia also represents detained and non-detained immigrants in seeking release and relief before the immigration courts. Sophia previously worked as an Associate at Cyrus D. Mehta & Partners PLLC, where she gained critical insights into immigration law.

Cyrus Mehta

No Longer in Use: How Changes in SOC Systems Affect Employment-based Immigration

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Cyrus D. Mehta and Isabel Rajabzadeh*

The Standard Occupation Classification (SOC) is a federal statistical standard used by federal agencies to classify workers into occupational categories. The Office of Management and Budget (OMB) coordinates the Federal statistical system, including the SOC. The SOC Policy Committee assists the OMB in the SOC revision process, and is comprised of Federal agencies including the Bureau of Labor Statistics, Department of Labor. Most notably, SOC codes are used to categorize nonimmigrant and immigrant workers on the Permanent Employment Certification (“PERM” or Form ETA 9089, used to file most I-140s),  the Labor Condition Application (“LCA”, necessary to file H-1Bs and other visas) and the ETA 9142B for H-2B workers. The SOC system was created in order to facilitate job classification. It therefore collects occupational data and enables comparison of occupations across data sets.

In assigning the correct SOC code for employment-based petitions, one must compare the proffered position’s job duties and its requirements against the system. In addition, the requirement to pay prevailing wages as a minimum salary is mandatory for some employment-based visas. In order to determine the prevailing wage of a geographic area, one must look up the SOC code in the Foreign Labor Certification Data Center Online Wage Library (“OWL”) which is run by the U.S. Department of Labor.

According to the Department of Labor, the SOC serves as the framework for information being gathered through the Department of Labor’s Occupational Information Network (O*NET). The O*NET database includes detailed information on tasks, skills, tools used, credentials, and other information associated with the occupations. Much like the OWL, the information found on O*NET is listed by the occupation’s SOC codes.

Many may not realize the SOC codes exist, however, its use is integral to some employment-based visas and therefore, can result in a denial if not used properly. These codes are based on statistics, however, what happens when the system is updated? The SOC has been revised four times: 1980, 2000, and then again ten years later in 2010. The most recent update is the 2018 SOC system, which was deemed to be a “multi-year process” by the U.S. Bureau of Labor Statistics. In November 2020, the O*NET 25.1 Database incorporated the O*NET-SOC 2019 Taxonomy, which aligned with the 2018 SOC system. It stated, “updates and added new and emerging occupations ensure that the O*NET-SOC taxonomy not only represents the SOC structure, but reflects changes occurring in the world of work due to advancing technologies, innovative business practices, and the new organization of work.” However, the OWL still has not caught up with all of the SOC codes listed in the 2018 SOC system. Although the OWL states it integrated O*NET 25.3 on July 1, 2021, (which is later than version 25.1) it still does not reflect all of the changed SOC codes in the 2018 SOC system.

The Problem

In an effort to transition between the different SOC systems and SOC codes, “crosswalks” were developed to portray the changes of that year’s update. The crosswalks show which SOC code was replaced by a different title and/or SOC code number. The crosswalk from the 2000 SOC to the 2010 SOC can be found here. The crosswalk from the 2010 SOC to the 2018 SOC can be found here. As stated above, the OWL fails to keep up with the changes in the SOC codes. This causes huge discrepancies. Although not always detrimental to a case, it may cause unnecessary delays such a Request For Evidence (“RFE”).

For instance, “15-1031, Computer Software Engineers, Applications” is no longer in use and it was replaced by “15-1132 Software Developers, Applications” in the 2010 SOC system. Then, the 2018 SOC system changed the SOC code again to, “15-1252, Software Developers.” But what happens when a PERM was filed in 2011 which used the SOC code based on the 2010 SOC system? Then, 10 years later, the foreign national wants to downgrade their I-140 to take advantage of EB-3 priority dates? Which SOC code should be used on the I-140 form? Use of the 15-1031 SOC code would patch the previously filed PERM, however, it is no longer in use so that may raise flags. Use of the new SOC code may be effective, however, it may trigger a Request for Evidence. Even if there is an RFE, it could be overcome by explaining that 15-1132 (Software Developers, Applications) has replaced 15-1031 (Computer Software Engineers), which in turn has most recently been replaced by 15-1252 (Software Developers).

Not only are immigrant visas affected by this but the H-1B system also relies heavily on SOC codes. What happens when an SOC code like 15-1132 is used on an LCA because the new SOC code 15-1252 is not reflected in the OWL and thus, one cannot reference the most relevant information to determine the position? Although usage of the “older” SOC codes on LCAs seem to be permitted by the USCIS, there is significantly less detailed information on the OWL for each SOC code than O*NET. While the O*NET provides detailed explanations for each SOC code based on the 2018 SOC System, we are left using the 2010 SOC system to determine prevailing wage information. In responding to specialty occupation RFE’s, this system forces individuals to not only argue the specialized nature of the position, but that the O*NET also sees it as a specialty occupation in order to strengthen the argument. In some cases, this requires one to dig into the O*NET archives to find the older 2010 SOCs.

In an occupation like technology it is understandable that SOC codes require changes. However, the impact of these changes on petitions filed by employers for immigrant and nonimmigrant visa classifications are not formally addressed, and therefore, require us to connect the SOC code dots.

Finally, it should be noted that the Office of Foreign Labor Certification Data Center (“OFLC) has delayed the implementation of the 2018 SOCs to July 1, 2022. While O*NET has updated its system to the 2018 SOCs, the 2010 SOCs are archived in O*NET. Stakeholders can only use the 2010 SOCs until July 1, 2022, when the OFLC makes them go live in the Foreign Labor Application Gateway (FLAG), OWL, and in the PERM portal.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps

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By Cyrus D. Mehta and Kaitlyn Box*

On July 9, 2021, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap. The Plaintiffs in the case are a group of EB-5 investors who would have been able to adjust status long ago if not for the lengthy backlogs in the EB-5 China, and subsequently Vietnam, categories caused by counting derivative family members against the EB-5 cap.

In a previous blog, we discussed the case at the District Court Level, where Plaintiffs’ primary argument was that nothing in the language of INA § 203(d), which states that “[v]isas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers, requires derivative family members to be counted against the cap. Instead, spouses and children, under INA 203(d) are “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Plaintiffs also argued that Congress intended to exempt derivative family members from the numerical caps when it changed the relevant regulatory language in the Immigration Act of 1990. Prior to 1990, the “same status, and the same order of consideration” language as it pertains to derivative family members appeared in a section describing which immigrants “are subject to the numerical limitations”, but in 1990 this provision was shifted to a new section entitled “Treatment of Family Members”. Plaintiffs argued that this change indicated an intent on the part of Congress to subject only EB-5 investors, and not their spouses and children, to the numerical cap.

The Court, however, disagreed with this reasoning. Judge Walker, who authored the opinion, interpreted the key phrase “same status” to mean that because an EB-5 investor’s family members get the same type of visa as the principal, they must also be counted against the cap, and reasoned that “same order of consideration provided in the respective subsection,” which refers to the worldwide cap on employment-based visas, further indicates that spouses and children of EB-5 investors are subject to the cap.

The Court’s decision in Wang v. Blinken comes as a deep disappointment to the many immigration attorneys who had hoped that the Biden administration could reinterpret INA § 203(d) to support either not count derivatives at all or counting family units as one. We have long taken the position that not counting derivatives under the preference quotas would be consistent with INA § 203(d). See, for example, our blogs on The Tyranny of Priority Dates in 2010, How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, and The Way We Count in 2013. The Biden administration solicited recommendations on how to remove barriers and obstacles to legal immigration, and unitary counting of derivatives, an idea which our firm proposed,  would have done much to serve this goal by relieving the decade-long backlogs. If the Biden administration wanted to reform the immigration system through executive actions, reinterpreting the law to not count derivatives in the green card categories would have been a good first step, along with not opposing the plaintiffs in Wang v. Blinken. Sadly, though, the administration did not choose to go in this direction, and the Court’s decision in Wang v. Blinken is likely a death knell for other, future lawsuits that would make similar arguments under other employment or family-based visa categories.

While the Court’s decision in Wang v. Blinken can still be appealed to the Supreme Court, a positive outcome is not likely given the conservative majority on the Supreme Court, which has adopted a pseudo textualist approach to interpreting immigration statutes. For instance, the Supreme Court in Sanchez v. Mayorkas also recently strictly interpreted INA § 244(f)(4) to hold that the grant of Temporary Protected Status did not constitute an admission thus allowing recipients to adjust status in the US.   Even if different plaintiffs could get a favorable decision in another circuit, the Supreme Court would likely rule on the circuit split anyway. Particularly as it has Chevron deference on its side, the government is likely to prevail in any litigation scenario. And even if the Biden administration later changes its mind and decides to adopt a nationwide policy to not count derivatives, it would be precluded from implementing this policy for people living within the jurisdiction of the D.C Circuit.  Perhaps a better way forward would be convincing Congress to explicitly state that derivative family members will not be counted against the cap under INA § 203(d). Passing such an amendment would be extremely difficult in a divided Senate, but one idea is to pass a measure through the reconciliation procedure that requires only a simple majority, rather than a filibuster-proof majority in the Senate.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Requesting Premium Processing on a Downgraded I-140 Petition  

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By Cyrus D. Mehta and Kaitlyn Box*

In October 2020, USCIS’ decision to apply the Filing Dates, rather than the Final Action Dates, to employment-based I-485 adjustment of status applications, together with advancement in the Filing Dates in the State Department Visa Bulletin allowed many noncitizen workers who had been trapped in the green card backlogs for years to file I-485 adjustment of status applications. Since the EB-3 Filing Date for India significantly overtook the EB-2 Filing Date, some beneficiaries approved EB-2 petition opted to “downgrade” by filing a new I-140 under EB-3. Generally, beneficiaries may still rely on the original Labor Certification when filing a downgraded I-140 and retain the priority date of the EB-2 petition, unless the job has drastically changed.

In previous blogs, we have discussed the nuances of filing a downgrade petition, and addressed some common questions that arise in this situation. One frequent source of questions is whether Premium Processing is available for downgrade petitions given that these I-140 petitions filed since October 2020 are still pending and have yet to be approved. Generally, USCIS will  not accept a case for Premium Processing unless it is filed with an original Labor Certification. Thus, beneficiaries whose Labor Certifications were filed with the original EB-2 petition likely cannot file a downgrade I-140 together with a Premium Processing request. Although USCIS might, in rare instances, accept a Premium Processing request made with an I-140 downgrade petition, it is more likely that the Premium request, or even the entire petition, will be rejected.

A strategy more likely to meet with success is filing the downgrade I-140 via regular processing, waiting USCIS to issue a receipt notice, and then request Premium Processing of the pending I-140. USCIS may still reject the Premium Processing request if it cannot match the pending I-140 to the previous file or retrieve the original Labor Certification. Even in the case of a rejection, however, the pending I-140 will be safe and subsequent Premium Processing requests can be filed, if desired. There are an increased number of Premium Processing requests from beneficiaries of downgraded I-140 petitions given that the EB-3 India Final Action Date has rapidly advanced. Under the July 2021 State Department Visa Bulletin, the EB-3 India Final Action Date is January 1, 2013. If the I-140 petition is approved when the Final Action Date is current for the I-140 petition, the beneficiary and family members can hope to have their I-485 applications approved although the USCIS has been approving them at a snail’s pace and may alarmingly not be able to use up all EB visas for this fiscal year. It should also be noted that the swifter approval of the I-140 petition does not speed up the processing of the applications for employment authorization or advance parole when the I-485 application remains pending.

Recently, however, we have seen some requests to upgrade I-140s to Premium Processing being repeatedly rejected on the ground that an original Labor Certification was no provided, despite other, similar Premium Processing requests being accepted. In an email inquiry placed to the USCIS Premium Processing address in response to one such case, our firm received a helpful response. An Immigration Services Officer  advised that Petitioners resubmit rejected Premium Processing requests and indicate on a brightly colored sheet of paper that USCIS has the original labor certification.  A more guaranteed method, according to the USCIS response, is to submit a copy of the original Labor Certification. Submissions lacking at least one of these documents are vulnerable to immediate rejection since the reviewing officer will not see a Labor Certification included. Although this was not part of the guidance we received, it would also be advisable to indicate the receipt number of the prior approved EB-2 petition which contains the original Labor Certification, and direct the USCIS to look for it in that petition.

Even if the Premium Processing request is accepted, there is always a risk that the USCIS might issue a Request for Evidence (RFE) even if the prior I-140 under EB-2 was approved. Note, though, that such an RFE could also be issued even if there is no request for Premium Processing, although there might be an incentive to issue the RFE if the officer cannot complete the processing within the mandated 15 days. Although RFEs have been seldom, the most common reason for an RFE is to request submission of evidence that the employer still has the ability to pay the proffered wage from the establishment of the priority date until the present, and up to the point of time that the beneficiary receives permanent residency.  If the employer’s current tax returns show losses and the beneficiary is not being paid the proffered wage,  Premium Processing should not be considered, and the I-140 can continue to remain pending,  until the employer is able to potentially overcome such an RFE.  Another reason for an RFE is that the prior SOC code that was designated at the time of the granting of the Labor Certification does not match with the SOC code that was indicated in the downgrade I-140 petition. This is not a valid basis for the USCIS to issue an RFE as the SOC code available for the occupation at that time has become obsolete. For instance, SOC Code 15-1031 for Computer Software Engineers, Applications is no longer in existence. It has now changed to SOC Code 15-1132 for Software Developers, which has again most recently changed to SOC Code 15-1252. This sort of RFE can be more easily overcome.

All of these issues should be carefully considered when requesting Premium Processing of a downgrade I-140 petition. Despite the issues that can arise when making a Premium Processing request of this kind, petitioners can help prevent rejections by following USCIS’ guidance and including a highly visible reference to the original Labor Certification, or a copy of the Labor Certification itself with the request. Submitting timely and thorough responses to any RFEs too helps to ensure that the petition will ultimately be successful.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.