Cyrus Mehta

Recent Trends in Requests for Evidence on I-140 Petitions

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By Cyrus D. Mehta,  Sung-Min Baik* and Kaitlyn Box**

Employers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE).  These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India employment-based Second preference (EB-2) date.  Below are some examples of RFEs we have been seeing.  Although the USCIS is required to adjudicate over 100,000 pending I-485 adjustment cases by September 30, it is very likely that the USCIS will not be able to do so, and so we will continue to see these issues in the new 2022  fiscal year with respect to pending I-140 and I-485 cases.

Retention of the Priority Date, Ability to Pay

Under 8 C.F.R. § 204.5(g)(2), an employer filing an I-140 petition must demonstrate its ability to pay the proffered wage “at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.”  According to a policy memo dated May 4, 2004, by William R. Yates, the petitioning employer may receive a positive determination of this ability to pay with initial evidence establishing that its net income or net current assets are equal to or greater than the proffered wage or that it has paid or is paying the proffered wage to the beneficiary.

This seemingly unambiguous burden is often applied erroneously when an employer files an I-140 petition on behalf of a foreign national who is already the beneficiary of a previously approved I-140 petition and seeks to recapture the priority date associated with the earlier I-140.The new employer is required to obtain a new labor certification, but the new I-140 petition would ultimately receive the earlier priority date established by the former employer.

When this retention of the priority date is requested by a new employer under 8 C.F.R. § 204.5(e), the UCSIS interprets 8 C.F.R. § 204.5(g)(2) to insist that the new employer must show its ability to pay from a priority date that it seeks to retain, even though the labor certification establishing the earlier priority date was obtained with a job offer made by a former employer and is not claimed by the new employer as the legal basis for filing a new I-140 petition.

The relevant regulation does not support the USCIS’ interpretation. On ETA Form 9089, an employer attests in the context of a specific job offer that an offered wage “will equal or exceed the prevailing wage” and that it has “enough funds available to pay the wage.”  20 C.F.R. §§ 656.10(c)(1).  Accordingly, determining the employer’s ability to pay should not exceed the scope of the employer’s attestation made with respect to the specific job offer for which certification is sought and obtained.  Subjecting the employer to the conditions of a different job offer made by a former employer would violate 20 C.F.R. § 656.30(c)(2), which provides that “[a] permanent labor certification involving a specific job offer is valid only for the particular job opportunity.”  It would also be impossible for the current employer to obtain the financial documents from a prior employer. Furthermore, the current employer is also not required to provide financial records from the year when the prior employer filed the labor certification. Indeed, the current employer may not have existed when the prior employer filed the labor certification.

It should be argued that the USCIS should not confuse the current employer’s ability to retain a prior pririty date under 8 C.F.R. § 8 C.F.R. § 204.5(e) with its ability to pay pursuant to 8 C.F.R. § 204.5(g)(2). The current employer must be required to establish its ability to pay at the time when it filed the current labor certification based upon which the I-140 petition was filed, and not based on an earlier recaptured priority date.

Beneficiary’s Current Position v. Offered Position

With respect to an I-485 application, the USCIS sometimes questions the validity of a job offer if the beneficiary is currently employed by a petitioning employer but not in the offered position, even when the current position falls within the same SOC code as the offered position in the labor certification, with only minor distinctions such as a differe job title.  In such casse, the USCIS argues that the employer failed to establish that it would permanently employ the beneficiary in the offered position set forth in the labor certification.  But, there is no requirement that the employer must offer the  PERM position to the beneficiary prior to obtaining permanent residence.  8 C.F.R. § 204.5(c) provides only that “[a]ny United States employer desiring and intending to employ an alien may file a petition.”   The Board of Immigration Appeals has noted that “[a]n alien is not required to have been employed by the certified employer prior to adjustment of status.”  Matter of Rajah, 25 I&N Dec. 127, 132–33 (BIA 2009).  As long as the employer provides evidence demonstrating that the beneficiary would be employed as set forth on the labor certification, the employment of the beneficiary in a different capacity or position during the pendency of an I-485 application would not, despite the USCIS’ contention, necessarily be relevant to the validity of a job offer made to the beneficiary.

Determining Ability to Pay When There is a Financial Loss

Because 8 C.F.R. § 204.5(g)(2) requires the employer to be able to demonstrate its ability to pay from the date when the labor certification is filed to the date when the beneficiary obtains permanent residence, the employer must put forth evidence, at the time of filing and/or in response to a request for evidence, establishing its ability to pay for the entire period. However, due to unforeseen intervening factors, the employer may report a loss for some part of this period.  For example, many petitioners may have suffered financially in 2020 due to distruptions caused by the COVID-19 pandemic.  In these instances, the USCIS may argue that the employer has failed to maintain its ability to pay as required by the regulation, but the then Immigration and Naturalization Service took a broad approach and indicated that the important question is whether the loss would preclude the employer from establishing that she [petitioning employer] will be able to meet the conditions of the certification in the ‘Job Offer.’”  Matter of Sonegawa, 12 I&N Dec. 612, 615 (Reg. Comm. 1967).  To answer this question, the Board analyzed the factors that led the employer to report a substantially lower income in one year and accepted evidence indicating that the employer’s business was likely to grow and report profits.  Id. 614-15.  Accordingly, reporting a loss for one year would not automatically prevent an employer from establishing its ability to pay, but attention needs to be devoted to presenting a well-documented and plausible argument that the employer would be able to pay the proffered wage as set forth on the labor certification.

Work Experience

With respect to establishing that the beneficiary has qualifying experience, 8 C.F.R. § 204.5(g)(1) instructs that evidence be provided “in the form of letter(s) from current or former employer(s) … and shall include … a specific description of the duties performed.”  In general, an experience letter is prepared by a supervisor who has direct knowledge of duties performed by the beneficiary, but sometimes a former employer may have a policy of provides letters that include only the start and end date of the employment, the job title, and a very brief description of the duties. When the beneficiary cannot obtain a more detailed letter from the employer itself, a separate affidavit from a supervisor may provide a more complete description of the actual duties performed by the beneficiary that comports more closely with the description of the beneficiary’s experience in Section K of the ETA 9080 labor certifcation.  However, the USCIS sometimes asserts that the petitioning employer must first establish “the non-existence or other unavailability” of an expereince letter from the former employer before submitting an affidavit from a supervisor for consideration.

Because 8 C.F.R. § 204.5(l)(3)(ii)(A) states only that “[a]ny requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien”, one can argue that letters from supervisors are primary, rather than secondary evidence. Letters from trainers or employers must be authored by a person, such as a supervisor or a human resources professional, and are rarely signed by a corporation itself. 8 C.F.R. § 204.5(l)(3)(ii)(A) does not specify who must author an experience letter.  Indeed, the fact that Form ETA-9089 requests the contact information for an employee’s supervisor during the period of experience suggests that a supervisor and not human resources or some other officer within a company may actually be the preferred source of a letter from an employer.

Even if USCIS does not accept that letters from supervisors are primary evidence, a petitioning employer can argue that primary evidence is unavailable because the former employer has a policy of not providing detailed experience letters. When responding to an RFE that question’s the beneficiary’s work experience, the petitioning employer should instruct the beneficiary to reach out the the former empoyer(s) and request a new, detailed experience letter that includes all the necessary components. Ideally, the beneficiary will be able to obtain an updated experience letter that can be included with the RFE response. Even if the employee is unsuccessful, however, and the former employer’s policy prevents it from issuing a more detailed letter, copies of the emails or letter from the former employer can serve as proof that an experience letter is unavailable.

Other RFEs question the content, rather than the format, of the experience letters. For example, if the requirements in the labor certification state that candidates must have experience in a certain industry, such as IT or finance, USCIS may reject experience letters that do not specifically mention the field of experience. Petitioners should follow a similar process to respond to these RFEs, and ask the employee to attempt to obtain new experience letters. If more detailed letters are not available, publicly available information about the former employer, such as website printouts, can be submitted with the RFE response to demonstrate that the company operates within a certain industry and so the beneficiary gained the necessary experience.

Many of these RFEs emanate when an EB-3 I-140 petition is upgraded to premium processing, and are issued even when the prior EB-2 was approved based on the same supporting evidence. Therefore, care must be taken to properly address the RFEs, particularly because a denial of an EB-3 I-140 can potentially even jeopardize the underlying EB-2 I-140. Because many employment-based second and third preference green card backlogs, employers should also evaluate whether the job has drastically changed since the filing of the original labor certification before beneficiaries file a downgrade and concurrent adjustment. As outlined in our previous blog, however, employers may still rely on the old labor certification if the job duties remain largely the same and the beneficiary is merely using updated tools or technologies. Cases involving a slight change in the job are thankfully not being questioned by USCIS at this time.

(The information procided in this blog is for information purposes, and should not be viewed as a substitute for legal advice)

*Sung-Min Baik graduated with a JD from George Mason University School of Law in 2014, is an Associate at Cyrus D. Mehta & Partners PLLC.

** Kaitlyn Box graduated with a JD from Penn State Law in 2020, is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas

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By Cyrus D. Mehta & Isabel Rajabzadeh*

One of the many benefits of filing an Adjustment of Status Application (AOS) is the ability to concurrently apply for work authorization (Form I-765/EAD). In addition, the applicant can remain in the United States while the AOS is pending without maintaining status, although most opt to maintain their dual intent nonimmigrant status for as long as possible. One of the most popular dual intent visas are H-1Bs. By extending their nonimmigrant H-1B status, the individual would not start accruing unlawful presence if the AOS is denied for whatever reason. Extending nonimmigrant status while the AOS is pending is also beneficial in some nonimmigrant visa categories, including the H-1B visa, because it allows the individual to continue to work with the same employer without having to separately apply for an EAD.

As USCIS service centers continue to be severely backlogged, we are required to adjust legal strategy to combat these delays. One of the most affected is the processing of work authorization. Earlier this year, the USCIS updated its expedite request policy. Unfortunately, notwithstanding the broadening of the criteria, the requests seem to be met with high scrutiny and are successful in limited cases. Nonetheless, we recommend filing the request if one meets the criteria. Absent a successful expedite request, EADs based on pending AOS applications are taking 9+ months to process. As explained above, individuals therefore find themselves relying on their nonimmigrant status for work authorization while their AOS EADs are pending in the USCIS limbo.

For many nonimmigrant categories, the beneficiary must not have the intent to permanently immigrate to the U.S. As such, an important requirement for most nonimmigrant visas is having “a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” (INA 101(a)(15)(B)). Although the H-1B visa is a nonimmigrant visa, it allows for dual intent. This means that the H-1B visa holder can have the intention of immigrating to the U.S. while still maintaining his/her H-1B nonimmigrant status. The Immigration and Nationality Act carves out the dual intent doctrine by explicitly excluding H-1B visa beneficiaries from the requirement that “every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” (See INA 214(b)). Therefore, when an H-1B visa holder applies for adjustment of status, he/she is able to maintain both the nonimmigrant status and have the immigrant intent. Other visas permitted to have dual intent also include the L and V visa, under the carve out in INA 214(b). The O, P, and E visas are quasi dual intent visas established by regulations.  While they allow the nonimmigrant to be in the U.S. in that status without needing to have a foreign residence, they still do not permit them to intend to seek permanent residence in the U.S. As an illustration of quasi dual intent, under 8 CFR 214.2(o)(13), an intent to remain temporarily in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon.

As visa holders enjoy the benefits of dual intent, we honor the memory of Dale Schwartz, the late immigration attorney who was highly respected in the field and was a former President of the American Immigration Lawyers’ Association. Mr. Schwartz had faced criminal charges in the 1980s in the wake of federal officials investigating applications submitted on behalf of a British businessman who came to the United States in 1980 to work for an American aerospace company. The government charged Mr. Schwartz with eight counts of mail fraud and false statements and asserted that the British businessman intended to live in the U.S. permanently even though he was seeking a temporary visa. The officials ultimately dropped the criminal charges, and we remember him here as a zealous advocate for nonimmigrant dual intent. It is because Mr. Schwartz took the fall for everyone that Congress enacted the dual intent carve out in INA 214(b) in 1990.

Even before dual intent got recognized in the INA, the Board of Immigration Appeals in Matter of Hosseinpour recognized way back in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. There, the BIA was tasked with reviewing an F-1 visa holder’s eligibility for nonimmigrant status after filing an adjustment of status application. In that case, the BIA explicitly held that the filing of an adjustment of status application “is not necessarily inconsistent with the maintenance of lawful nonimmigrant status,” although F-1 visas are not dual intent visas. In its reasoning, the BIA referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)). Further, the BIA reasoned that the F-1 student who applied for adjustment of status kept his intention to remain a nonimmigrant student even though he had applied for adjustment of status. In that case, the student was willing to return home when his studies were completed if ordered to do so. However, the BIA ultimately dismissed the F-1 visa holder’s appeal because the individual did not timely extend his nonimmigrant stay and remained beyond the authorized length of his stay.

In instances where the beneficiary does not hold a dual intent nonimmigrant visa such as a TN or H-1B1 and applies for AOS, they must wait long months for their work authorization to be processed by the USCIS in order to work. If they apply for an extension of the underlying nonimmigrant status while the adjustment application is pending, they will likely receive push back from the USCIS on the ground that the nonimmigrant visa status does not allow for dual intent notwithstanding Matter of Hosseinpour. These nonimmigrants who face this sort of push back from the USCIS when extending their status should invoke the holding in Hosseinpour, which is still good law, that they should be entitled to the extension of nonimmigrant status even if they have expressed an intention to apply for permanent residence. Indeed, as in Hosseinpour, these nonimmigrants would be willing to depart the U.S. at the end of their nonimmigrant status in the event that their adjustment of status application gets denied.

Moreover, when nonimmigrants enter the U.S. in a B-2 visitor status, they are required to maintain an intention to return home to a foreign residence, although Hosseinpour also allows them to have a desire immigrate to the US. Thus, one who is the beneficiary of an I-130 petition can still legitimately enter the U.S. as a visitor if the objective is to process for the immigrant visa at the U.S. consulate. Furthermore, one with a desire to immigrate is also allowed to change one’s mind after being admitted and apply for adjustment of status in the US. During Covid-19, many nonimmigrants who came with the intention of returning home decided to stay in the U.S. and apply for adjustment of status as immediate relatives of U.S. citizen spouses or children when the Covid situation got exacerbated in their home countries.

The project to carve out dual intent in the INA for H-1B, L, and V visa holders is only half completed. Enshrining dual intent in the law will ensure that noncitizens will not be denied a visa or admission if they are able to extend, change or adjust status legally. They will also be able to maintain nonimmigrant status while their adjustment applications are pending. INA 214(b) should be amended to remove the presumption that every noncitizen is an immigrant unless proven otherwise.  The relevant concern to ensure compliance with a temporary visa should solely be focused on whether the noncitizen will violate status by overstaying or working in an unauthorized capacity, and not whether they will pursue other lawful visa options, including adjustment of status, once they enter the U.S. It is important to enact dual intent for all nonimmigrant visa categories to remove needless contradictions and complications in U.S. immigration law.

(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

Reflections of Two Immigration Lawyers on the 20th Anniversary of the September 11 Attacks

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By Cyrus D. Mehta and Kaitlyn Box*

It is hard to believe that 20 years have gone by since planes hijacked by terrorists crashed into the Twin Towers in New York, the Pentagon in DC  and into a field in Pennsylvania instead of Capitol Hill killing just under 3000 people. These cataclysmic events on September 11, 2001 forever changed the role of immigration lawyers. For the past 20 years, our mission has been to advocate that immigration is completely separate from terrorism.  This was our mission on the 10th anniversary of the 9/11 when Cyrus Mehta was inspired to write a deeply personal blog and it remains our mission even on the 20th anniversary. Although Kaitlyn Box was too young on September 11, 2001 to be practicing law, it was this event that inspired her to join the ranks of immigration lawyers in 2021 to  repeat the mantra that immigration is  not a threat to America.

A week before 9/11, Presidents Vicente Fox of Mexico and Bush were in serious negotiations on an immigration deal that would have granted benefits to undocumented immigrants. But after the terrorist attacks, the deal that was made between Presidents Bush and Vicente to legalize the status of millions of productive undocumented immigrants was put into cold storage. The immigration system has continued to break, and crash, but Congress has never been interested in fixing it, perhaps based on a subconscious fear that immigration equated to terrorism. The immigrant visa preferences remain hopelessly oversubscribed resulting in waits lasting more than a decade. Skilled workers are also trapped in never ending backlogs under the employment-based second and third preferences only because of the measly fixed supply of visas and the per country limits.  The H-1B cap limit of 65,000 has never been expanded, save for an additional measly 20,000 under a special advance degree cap. Several efforts to achieve comprehensive immigration reform in Congress have failed.

Although the tragic events of 9/11 are now twenty years in the past, the scars of racism and xenophobia that they left behind continue to bleed today. President Trump and his administration’s four- year assault on immigration made devastatingly clear that some in the United States still view immigrants, particularly non-white immigrants and those from Muslim-majority countries, as a threat. Trump repeatedly equated immigrants, especially undocumented immigrants, to criminals, terrorists, and job stealers. These views were plainly reflected in the administration’s policies as well. Trump’s rationale for constructing a wall along the U.S. border with Mexico, among his earliest campaign promises, was to stop the flow of rapists and drug dealers into the United States from Mexico, despite abundant evidence that immigrants commit fewer crimes than native-born U.S. citizens. The various iterations of the travel ban, beginning with Executive Order 13769, “Protecting the Nation From Terrorist Attacks by Foreign Nationals” in 2017, blocked nationals from a number of primarily Muslim-majority countries from entering the United States under the guise of preventing terrorist attacks. A more watered down version of this policy motivated by a combustible mix of Islamophobia and xenophobia, which came to be known as the Muslim ban,  was upheld by the Supreme Court in Trump v Hawaii. After the Supreme Court upheld the Muslim ban, Trump got emboldened and used the immense power given under INA 212(f) to find other ways to restrict immigration and asylum.  The administration’s inhumane attitude towards immigrants was further illustrating by the policy of separating children from their parents at the border, as well as the Migrant Protection Protocols (MPP), which trapped asylum seekers in Mexico while their cases were adjudicated. Through a variety of Presidential Proclamations that limited green card applications and the issuance of employment based visas, the administration propagated the idea that even highly-skilled immigrants are a menace to the U.S. economy and push American employees out of the workforce.

Trump’s xenophobia as president of the United States was made possible by the hysteria caused by the  9/11 attacks. Less than ten days after September 11, President Bush’s Attorney General John Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation authorized immigration enforcement agents to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000 plus immigrants who were detained and deported in secret were not charged or convicted of terrorism. As if this were not enough, the Bush Administration implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. No one was convicted of terrorism under the now discredited Special Registration program.

Just as race and religion were being used as proxies for individualized suspicion and guilt post September 11, Trump also used race and religion to brand immigrants as dangerous and thus justifying travel bans, enhanced enforcement and the stripping away of the power of Immigration Judges to control their courtrooms and dockets.

Though Trump has now been replaced, his malignant policies live on in the courts and continue to perpetuate harmful and untrue narratives about immigrants. While President Biden had rescinded MPP, a federal judge in Texas ordered the administration to reinstate the program, finding that the administration “failed to show a likelihood of success on the claim that the memorandum rescinding the Migrant Protection Protocols was not arbitrary and capricious”. Even if the Biden administration is ultimately able to overcome this order, asylum seekers will be left vulnerable in Mexican border cities while it crafts a stronger justification for rescission of the program. The U.S. District Court for the Southern District of Texas recently found Biden’s immigration enforcement priorities to be a violation of the Administrative Procedure Act, at least as applied to detention cases. Biden’s priorities would have focused removal efforts on only those noncitizens who were a national security risk, entered the United States on or after November 1, 2020, or posed a threat to public safety. In July, the same federal court held that the DACA program, too, violated the APA and barred any new applications. It is the fear caused by 9/11 that precluded the full evacuation of Afghans after the messy withdrawal of the US twenty years after it invaded Afghanistan.

On the twentieth anniversary of the September 11th terrorist attacks, the United States finds itself weathering another crisis, that of the COVID-19 pandemic. Unfortunately, the pandemic has proved to another reason for exclusionary immigration policies. In the early stages of the pandemic, the Trump administration enacted numerous COVID-related travel bans under the authority of INA 212(f), which have since been extended by the Biden administration. Another Covid related ban under Title 42 Public Health Law overrides asylum laws and restricts people fleeing persecution from applying for asylum. This was imposed by the Trump administration but continues to be used by the Biden administration.

Downtown Manhattan revived and became a vibrant business district and residential neighborhood in the years after the September 11 attacks. As the area completely reinvented itself epitomized by One World Trade Center, the tallest tower in the western hemisphere,  the COVID-19 pandemic again caused havoc and people no longer come to the new office towers or shop and dine there. It is  too soon to write the obituary of Downtown Manhattan just as it was after the September 11 attacks, and  we are confident that it will again revive. Our offices continue to remain in Downtown Manhattan as we endeavor to help immigrants and advocate for more fair immigration laws and policies, whether it was in the aftermath of 9/11, during the Trump years or now while  the Covid-19 pandemic still rages. The fate of immigrants have been intertwined with the tragic events of September 11 and other events since who have withstood attacks against them and have instead helped build and heal America. The people who died on 9/11 also represented the immigrant fabric of the country. We stand in solidarity with them, and continue to broadcast today on the 20th anniversary of 9/11 and for all times that immigrants are not a threat to America.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, is an Associate at Cyrus D. Mehta & Partners PLLC.