Employer Not Always Obligated To Pay Return Transportation Cost Of Terminated H-1B Worker

In Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

When filing a Labor Condition Application (LCA) – a necessary first step in the filing of an H-1B visa petition – the employer attests that it will pay the required wage to the H-1B nonimmigrant worker. See INA 212(n)(1)(A); 20 CFR 655.731(a). The required wage must be paid until there is a bona fide termination of the employment relationship. In order to demonstrate such a bona fide termination of the employment relationship, the ARB held in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii). First, the employer must expressly terminate the employment relationship with the H-1B worker. Second, the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11). Third, the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). If the employer otherwise explicitly terminates the employment relationship, but fails to follow the second and third steps, the employer may still be obligated to pay the required wage for failure to effectuate a bona fide termination. Although in the real world the employer must only undertake step one, in the case of an H-1B worker, the employer must also take steps two and three that have been mandated by the Department of Labor (DOL).

It is the third prong that has been the subject of much interpretation.  Must an employer still offer to pay the return transportation costs even if the worker chooses to remain in the US on his or her own volition? In Vinayagam v. Cronous Solutions, the terminated H-1B worker did not leave the United States on her own volition and unsuccessfully applied for H-1B status through another employer. Prior to this unsuccessful attempt, the worker sought to apply for B-2 visa status, which was also denied. The employer under this scenario was not required to pay the return transportation costs home, and thus was not liable to continue to pay the required wage after the employer fulfilled steps one and two. This decision follows a line of other ARB decisions where the employer was not obligated to pay the return transportation costs where the H-1B worker had married a US citizen and adjusted her status to permanent residence or where the worker found an employer to file another H-1B petition and thus extend H-1B status through that employer or where the H-1B worker outright rejected the reimbursement. If the H-1B worker voluntarily terminates employment prior to the expiration of the authorized H-1B stay or is dismissed when the authorized stay has ended, the employer is not liable for return transportation costs. See Toia v. Gardner Family Care Corp., 2007-LCA-6 (April 25, 2008).

It is intriguing that the Department of Labor has latched on to USCIS rules for requiring a bona fide termination of employment. The employer’s obligation to pay the wage is an obligation under DOL rules, but in determining the employer’s ending of that obligation, the DOL has relied on the rules of United States Citizenship and Immigration Services (USCIS), which includes notification to the USCIS that results in the revocation of the H-1B petition (8 CFR 214.2(h)(11) and payment of the return transportation home obligation (8 CFR 214.2(h)(4)(iii)(E). Naomi Schorr has astutely observed that when one agency engages in interpreting and enforcing the rules of another agency, courts will not defer to that agency’s interpretation. See Schorr, It Makes You Want To Scream: Overstepping Bounds: The Department of Labor and the Bona Fide Termination of H-1B Employees, Bender’s Immigration Bulletin, Oct. 15, 2014. Indeed, in a 1999 exchange of correspondence between a private attorney and the INS, the response was that the “Service views the return transportation provision as a private contractual issue between the petitioner and the beneficiary. As a result, the Service has not developed any policies with respect to the questions that you have raised.” See Letter from Thomas W. Simmons, Chief, INS Business and Trade Services Branch to Robert A. Klipstein (May 20, 1999), reprinted in 70 Interpreter Releases 1140 (July 26, 1999).

While the USCIS does not give this rule any teeth, the DOL has chosen to enforce it against an employer if the employer cannot demonstrate that the H-1B worker chose to stay in the US on his or her own volition. In fact, notwithstanding Vinayagam v. Cronous Solutions, unless it is clearly indicated that the worker chooses to remain in the US, it would be prudent for the employer to give the benefit of doubt to the H-1B worker and offer the return transportation costs home. These cases have shown that the employer must always go through protracted litigation to establish that the H-1B worker voluntarily stayed on in the US in order to escape back wage liability. Moreover, the burden is on the employer to demonstrate whether it had a duty to provide the return transportation costs and whether it had satisfied that requirement. See Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039 (ARB Mar. 30, 2007).

The High Skilled Worker Rule that took effect on January 18, 2017 provides for a 60 day grace period to H-1B as well as other nonimmigrant workers holding E-1, E-2, E-3, H-1B1, L-1 or TN status. See 8 CFR 214.1(2). The 60 day grace period is indeed a salutary feature. Up until the rule took effect, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

The new 60 day grace period may incentivize the H-1B worker to remain in the US, and thus enable an employer to escape paying the return transportation costs. On other hand, it should not be viewed as a green light to never offer the return transportation costs home. While the 60 day grace period does allow a terminated worker some cushion in finding another employer in the US, it also provides a cushion for the worker to leave the United States less abruptly if terminated prior . In the latter situation, the employer’s failure to offer return transportation costs home could still render the employer liable for back wages as a result of not effectuating a bona fide termination.

Is There A Hidden Agenda? Suspension of Premium Processing for All H-1B Petitions

In one move that we did not see coming, USCIS has announced that, starting April 3, 2017, it will temporarily suspend premium processing service for all H-1B petitions. Petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. This includes cap-subject H-1B petitions, petitions for H-1B extensions or amendments and petitions for change of H-1B employer. This suspension may last up to 6 months and USCIS will notify the public before resuming premium processing for H-1B petitions. The temporary suspension will not apply to other eligible nonimmigrant classifications filed on Form I-129.

As background, premium processing service provides expedited processing for a specific list of employment-based immigrant and nonimmigrant petitions. This list has always included the H-1B petition. The request is submitted on Form I-907 which carries a fee of $1,225. Upon receipt of this request, USCIS guarantees 15 calendar day processing or USCIS will refund the fee. Within the initial 15 days, USCIS will issue an approval or denial notice, a notice of intent to deny (NOID) or a request for evidence (RFE). If a NOID or RFE is issued, a new 15 calendar day period will begin upon USCIS’ receipt of a complete response. Premium processing service is also quite desirable because it allows petitioners and attorneys to communicate directly with USCIS officers via telephone or email. USCIS also issues an email notification when the case has been received and when it is approved.  Also, rather than having to wait for snail mail to arrive, petitioners receive RFE’s and denial notifications via fax.

Each year, thousands of petitioners request premium processing service for their H-1B petitions filed under the H-1B cap. The initial email notification and the 15 day adjudication period can go a long way toward providing peace of mind for anxious H-1B petitioners and beneficiaries. For petitions filed under regular processing, USCIS receipt notices are sometimes not received until May or even June and the petition can remain pending for months, even past the October 1 employment start date. Cap-subject H-1B petitions are accepted during the first five business days of April. This year, since April 1 falls on a Saturday, cap-subject H-1B petitions for the 2018 fiscal year (FY18) will be accepted from Monday, April 3 to Friday, April 7, 2017. The suspension will therefore apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). USCIS will reject any Form I-907 filed with an H-1B petition. Therefore, if the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.

USCIS has stated that the suspension will help the agency to reduce its overall H-1B processing time and allow it to process long-pending petitions which it has been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years. USCIS also claims that the suspension will allow the agency to prioritize the adjudication of H-1B extension of status cases that are nearing the 240 day mark. Under 8 CFR § 274a.12(b)(20), an H-1B worker is authorized to continue working for the same employer for up to 240 days beyond the expiration of the current immigration status (i.e. beyond the date listed on their most recent Form I-94) if the employer files an H-1B extension request in a “timely” manner.  In recent times, the processing times for H-1B petitions have come close to or even moved beyond 240 days. This is probably attributable to increased filings as a result of the decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) which mandates the filing of H-1B petitions for amendment whenever there is a change in the H-1B work location. Once the 240 day period has passed, the employee may remain in the US awaiting the adjudication of the petition but will no longer be authorized to work. If the H-1B worker works past the 240 days, not only will he or she be in violation of status, but will lose the tolling exception to unlawful presence too. According to USCIS guidance, unlawful presence is tolled when a timely extension request is filed, but that tolling will be lost if the foreign national engages in unauthorized employment either before or after the timely extension has been filed. Thus, working beyond 240 days will result in the loss of the tolling protection to unlawful presence.

We hope that we can trust in USCIS’ stated intent and that there is nothing more sinister behind the suspension. It is no secret that some people in charge of immigration policy in the Trump administration do not like the H-1B visa as it is perceived, albeit erroneously, to be taking away jobs that should go to American workers. There are ongoing efforts within Congress to change how the H-1B system works. One bipartisan bill, H-1B and L-1 Visa Reform Act of 2017, proposes to reform the program by instructing officials to grant visas on merit, rather than through a lottery. Is the stoppage of premium processing for 6 months really just a way to slow down the H-1B program and thus make it more difficult for employers to retain skilled H-1B workers? Is this in keeping with Bannon’s goal for the endless deconstruction of the administrative state? Granted, this is not the first time that premium processing service has been suspended. Last year, USCIS announced that in order to prioritize data entry for cap-subject H-1B petitions, while they would still accept Forms I-907, they would actually begin any requested premium processing for H-1B cap-subject petitions by May 16, 2016. That suspension applied only to cab-subject H-1B petitions and was implemented for a very short-term with a firm end-date indicated. It was therefore not only understandable but moreover, believable, as a means to cope with an expected influx of petitions. This time, the timeline could be indefinite, as USCIS vaguely states that the suspension may last up to 6 months, and USCIS has applied the suspension across the board on all H-1B petitions, a move that will most likely lead to an increase in the very backlogs that they are allegedly seeking to eliminate.

The suspension of premium processing service could also result in very serious complications for H-1B employees. The inability to upgrade the petition to premium processing will mean that H-1B employees might be unable to travel outside the US. An H-1B worker with a pending petition whose immigration status has expired will need to apply for and obtain a new H-1B visa at a US Consulate abroad if he travels outside the US. Such an employee would be ill-advised to embark on an international trip when there is no indication as to when the pending H-1B will be adjudicated. Also, some states require an H-1B approval notice in order to extend driver’s licenses. If the H-1B worker needs to drive to work every day, the inability to obtain an expeditious H-1B approval could mean that he is unable to work.

An H-1B worker who is porting to a new employer may begin working for the new employer upon the filing of a nonfrivolous H-1B petition on his behalf provided, inter alia, that this petition was filed before the end of his period of authorized stay. It has always been advisable to obtain an approval of the new H-1B petition and the security that comes along with that before making the leap to new H-1B employment. The suspension of premium processing service means that more H-1B workers will be forced to take a chance and port to the new employer before the H-1B petition is approved. If the H-1B petition is ultimately denied, they do have the option to return to the first H-1B employer but, realistically, not only is it most likely that those bridges will have burnt but that initial H-1B employer is also obligated to notify USCIS when the H-1B worker is no longer employed. If USCIS has already been notified then that initial H-1B would no longer be viable even if the employer were willing to rehire the H-1B worker.

Also, where an H-1B worker has ported to new H-1B employment based on a pending petition timely filed by employer B, the worker may port again to employment with employer C while the petition filed by employer B is still pending but provided that the H-1B worker’s initial period of authorized stay, as indicated on his Form I-94, has not yet expired. The suspension of premium processing service will likely increase the processing time for all H-1B petitions and therefore significantly increase the likelihood that H-1B workers will no longer be able to take advantage of such privileges.

USCIS has indicated, however, that it will continue to accept requests for expedited processing during the suspension period. Petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, which include severe financial loss to company or person​; emergency situation; and humanitarian reasons. USCIS has stated that it will review all expedite requests on a case-by-case basis and that requests will be granted at the discretion of the office leadership.

If the H-1B visa system is gummed up in this manner, US employers will not be able to attract the best global talent. Some of the employers that will be hit the hardest will be technology companies seeking to attract the best talent before their competitors do. It is already difficult to do so given the H-1B annual cap of a measly 65,000 visas with an additional 20,000 for master’s degrees. The United States is no longer the only game in town. Frustrated workers will leave for more hospitable countries. The H-1B system is already a mess. Why the need to mess it up even more?

Destroying the Case In Order to Save It: Why Returning Asylum Applicants to Contiguous Territory Under INA §235(b)(2)(C) Would Often Violate Both Law and Common Sense

During the Vietnam War, an American official was once quoted as saying of the town of Ben Tre that “It became necessary to destroy the town to save it.”  This author was reminded of that quote recently when considering the approach to certain removal proceedings proposed in a recent Executive Order issued by Donald Trump and implementing memorandum issued by Secretary of Homeland Security John Kelly.  Depending on how one reads this guidance, it appears that the government may be proposing that certain asylum applicants should be returned to the country from which they fear persecution, or to a country from which they risk being returned to that country of persecution, pending a determination of whether their fear of harm upon such return is well-founded.  To force such a return in the course of adjudicating an asylum claim risks destruction of the claim and the claimant, in defiance of law and common sense.

Section 7 of the January 25, 2017, Executive Order entitled “Border Security and Immigration Improvements” provided as follows:

Sec. 7.  Return to Territory.  The Secretary shall take appropriate action, consistent with the requirements of section 1232 of title 8, United States Code, to ensure that aliens described in section 235(b)(2)(C) of the INA (8 U.S.C. 1225(b)(2)(C)) are returned to the territory from which they came pending a formal removal proceeding.

The cited section of the INA, §235(b)(2)(C), provides as follows:

Treatment of aliens arriving from contiguous territory.-In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240.

Subparagraph (A), in turn, refers to “an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,” and does not by its terms exclude those who are applying for asylum.

The February 20, 2017, implementing memorandum of Secretary Kelly, entitled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” expands further on this proposal:

Section 235(b)(2)(C) of the INA authorizes the Department to.return aliens arriving on land from a foreign territory contiguous to the United States, to the territory from which they arrived, pending a formal removal proceeding under section 240 of the INA. When aliens so apprehended do not pose a risk of a subsequent illegal entry or attempted illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings saves the Department’s detention and adjudication resources for other priority aliens.

Accordingly, subject to the requirements of section 1232, Title 8, United States Code, related to unaccompanied alien children and to the extent otherwise consistent with the law and U.S. international treaty obligations, CBP and ICE personnel shall, to the extent appropriate and reasonably practicable, return aliens described in section 235(b)(2)(A) of the INA, who are placed in removal proceedings under section 240 of the INA-and who, consistent with the guidance of an ICE Field Office Director, CBP Chief Patrol Agent, or CBP Director of Field Operations, pose no risk of recidivism-to the territory of the foreign contiguous country from which they arrived pending such removal proceedings. To facilitate the completion of removal proceedings for aliens so returned to the contiguous country, ICE Field Office Directors, ICE Special Agents-in-Charge, CBP Chief Patrol Agent, and CBP Directors of Field Operations shall make available facilities for such aliens to appear via video teleconference. The Director of ICE and the Commissioner of CBP shall consult with the Director of EOIR to establish a functional, interoperable video teleconference system to ensure maximum capability to conduct video teleconference removal hearings for those aliens so returned to the contiguous country.

Since the Executive Order and border memorandum appear to be primarily (although not exclusively) focused on the Mexico/U.S. border, and the significant majority of those who seek to enter from Mexico and are placed in removal proceedings under INA §240, rather than being admitted into the U.S. or removed without §240 proceedings, will be those who have established a credible fear of persecution and seek to apply for asylum, one’s attention is naturally drawn to how these directives might operate with respect to such asylum applicants. It is true that there will be others who could be subjected to this §235(b)(2)(C) procedure, and indeed there have been “port courts” held on the Canadian border under this procedure for some time, but asylum applicants at the Mexican border seem likely to be among the principal groups affected by an expansion of §235(b)(2)(C) usage under the Executive Order and implementing memorandum.

When the U.S. government seeks to return an asylum applicant to Mexico pending further proceedings, there are three logical possibilities. First, the person may be a citizen of Mexico.  Second, the person may be a citizen of some third country, but have a valid immigration status in Mexico which would allow them to remain there.  Third, the person may be a citizen of some third country and lack valid immigration status in Mexico.  In the first and third cases, returning the person to Mexico under §235(b)(2)(C) pending removal proceedings would be deeply problematic.

If a Mexican national is claiming a well-founded fear of persecution in their home country of Mexico, then returning them to Mexico, pending a determination of whether that fear is indeed well-founded, would be nonsensical. One would hope it is obvious that a journalist at risk due to his reporting on abuses by members of the Mexican military, for example, should not be returned to the jurisdiction of that military, and so placed again at risk of persecution, pending a determination of the magnitude of that risk. A former police officer killed by a drug cartel will not be helped by a subsequent determination that yes, he had a well-founded fear of this occurring. If Mexico is the place where an asylum applicant fears persecution, then it would make no sense to return that applicant to Mexico before determining whether this fear is justified.

Returning a Mexican national to Mexico prior to determining the well-foundedness of that Mexican national’s fear of persecution would also violate the law. Section 241(b)(3) of the INA indicates that, with limited exceptions not at issue here, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (often referred to as “CAT” for short) similarly restricts the ability of the United States to return someone to a country in which that person will be tortured. While the issue has not previously been litigated, so far as this author is aware, because the United States has not been brazen enough to attempt to return someone to their country of claimed persecution or torture pending a decision on whether they will indeed be persecuted or tortured, there is a strong argument that these prohibitions would be violated by a §235(b)(2)(C) return to Mexico of a Mexican asylum applicant.

Returning to Mexico a non-Mexican asylum applicant who had passed through Mexico, but lacked any immigration status there, could create similar practical and legal problems, because of the possibility of such a person’s being deported from Mexico back to their home country. In that event, irreparable harm could befall the asylum applicant before their application was processed, and it could be difficult for them to get back to the U.S. border to have their application processed at all.  Moreover, by potentially causing the return of the asylum applicant to a country where they would be persecuted or tortured, such action would again be deeply problematic under INA §241(b)(3) and the CAT.

Another problem with returning non-Mexican nationals to Mexico pending a removal hearing is that Mexico has indicated it will not accept them. It is true that in Jama v. ICE, 543 U.S. 335 (2005), a case involving removal to Somalia, the Supreme Court indicated that the advance consent of a receiving government was not a necessary precondition for certain removals, but trying to return asylum applicants to Mexico without Mexico’s permission could create mind-boggling consequences. Does the Trump Administration envision pushing people out onto bridges across the international boundary, despite knowing that Mexico will not receive them on the other end of the bridge, thus creating a sort of impromptu refugee camp in the middle of each bridge which would lead to substantial human suffering as well as blocking traffic? I certainly hope not.

It may be that DHS will understand these problems, and recognize that, in the language of Secretary Kelly’s memo, it is not “appropriate and reasonably practicable” or “otherwise consistent with law and U.S. international treaty obligations” to return most asylum applicants to Mexico pending their removal proceedings. In that case, the proposed expansion of §235(b)(2)(C) will have comparatively little practical effect.  It is reasonable to be concerned, however, about whether the proposal to expand use of §235(b)(2)(C) will indeed be cabined by these bounds of law and practicality.

 

Resisting President Trump’s Visa Revocations

President Trump signed an Executive Order the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans” but had the effect of banning travel of certain persons into to the United States who are mainly nationals of mainly Muslim countries. Citing INA 212(f), which broadly authorizes the President to suspend “any aliens or class of aliens into the United States” that would be detrimental to its interest, the EO became effective as of the date of signing, though it is currently subject to a Temporary Restraining Order. Prior to the TRO, the issuance of the EO without notice caused a great deal of hardship to legitimate travelers who had already embarked on their journey to the United States and stranded others who had not yet commenced their journey. The EO has been subject to widespread condemnation, protests and lawsuits. Although there is much debate on the validity of the EO and whether the President has authority to impose a blanket ban on legitimate travelers from predominantly Muslim countries, which appeared to be consistent with his campaign statements to impose a “Muslim ban,” there has not been much discussion on the practical impact of revocations of the underlying nonimmigrant and immigrant visas that had been issued to at least 60,000 individuals when the EO took effect.

Among the EO’s key provisions are, although further details can be found on our firm’s FAQ:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

Although the EO is currently not in effect as a result of the TRO issued by the U.S. District Court for the Western District of Washington on February 3, 2017, this blog will focus on the impact of the revocation of a nonimmigrant visa of an individual who is already in the United States assuming the TRO is lifted. A panel in the Court of Appeals for the Ninth Circuit is currently considering the government’s appeal for an emergency stay of the Western District of Washington TRO. [Update: later in the day on February 9, after this blog post was published, the Ninth Circuit panel issued a published decision denying the government’s emergency motion for a stay pending appeal.] Even if the Ninth Circuit does not issue the stay, the government will most likely seek an emergency stay from the Supreme Court, and thus the fate of the EO, and of the hundreds of thousands impacted under it, still hang in balance at the time of writing.

In conjunction with the EO, the Department of State issued a notification provisionally revoking all valid immigrant and nonimmigrant visas, as follows:

Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(f) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of’ section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions discussed below.

The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.

The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Security pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest.

This document is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person.

What is the impact of the revocation of a visa of someone who is already lawfully in the United States? Take the example of a national from one of the banned countries who was issued an F-1 student visa, and has already been admitted into the United States in F-1 status when the visa is revoked. The revocation of the visa would not impact this student’s ability to maintain F-1 status so long as she is enrolled in the designated school and is complying with all the other terms of her status, such as not engaging in unauthorized employment. If the student leaves the United States, assuming the EO is in effect, she will not be able to come back to the United States. Hence, it is imperative to remain in the United States and continue to maintain status until such time that the ban has been lifted, and the revocation of the underlying visa has also been lifted. After the court issued the TRO, the State Department restored the visas and the above revocation notification is not in effect. However, the visas of the nationals of the 7 countries will again likely get provisionally revoked if the TRO is stayed.

Some people who came into the United States while the ban was still in effect had their visas actually cancelled. This is different to the situation when the visa got provisionally revoked after the EO came into effect. They would have to seek new visas or will need to have their admissions without a visa waived if they arrive at a port of entry so long as the ban is not in effect. Unless there is an emergent circumstance for a person with a cancelled visa to attempt to come to the United States and seek a waiver, it is advisable that such a person apply for a new visa before entering the United States.

In the event that the President adds other countries in a future Executive Order, those nationals will also be subject to visa revocation, and if they are already in the United States, they must maintain status. For example, if the affected national is in H-1B status, he must continue to remain in the employment of the petitioning entity that applied for the H-1B visa classification on his behalf. This individual may also seek an extension of status or change of status while in the United States.  It is also likely that visas will get revoked of persons even if their countries are not on a banned list if there is basis or suspicion of future inadmissibility such as becoming a public charge. Even prior to President Trump, the DOS was provisionally revoking visas if a nonimmigrant in the US was convicted of a driving while intoxicated offense. A person caught in this situation besides maintaining status, and is unable to overcome the ground of inadmissibility at the US consulate (which is unlikely if there is a blanket ban on the person’s country) should remain in the United States and continue to maintain status. So long as the individual maintains status, and does not stay year beyond the expiration of the I-94, the revocation of the visa should also not trigger unlawful presence for purposes of triggering the 3 and 10 year bars under INA 212(a)(9)(B).  This individual must also make efforts to become a permanent resident as soon as possible either through a family-based or employment-based sponsorship. Adjusting to permanent resident status in the United States would be the solution to the problem.  The government has clarified that the travel ban under the EO does not apply to permanent residents. Still, permanent residents must also be careful to not be coerced in signing I-407 abandonment applications. Permanent residents have a right to seek a removal hearing, and the government has a heavy burden to provide that a permanent resident is not entitled to that status.

Note that a nonimmigrant whose visa has been revoked is technically subject to removal. INA 237(a)(1)(B) provides:

Present in violation of law. _ Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorization admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.

Thus, even if one is not in violation of the INA, but whose nonimmigrant visa has been revoked, is amenable to be placed in removal proceedings. If the sole basis of placing the individual in removal proceedings was due to the revocation, under INA 221(i), the revocation can be challenged in removal proceeding. There is an arguable basis to challenge such a revocation based on INA 212(f), which provides in part:

Suspension of entry of imposition of restriction by President. – 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 proclamations, and for such period as he shall deem necessary, suspend the entry of aliens any restrictions he may deem to be appropriate.

INA 212(f) applies to a suspension of an entry into the United States. An individual who was previously admitted in nonimmigrant status has already made such an “entry” into the United States and should therefore not be subject to a visa revocation under INA 212(f).

Finally, the revocation of an immigrant visa, once the individual has already been admitted as a permanent resident, should have no adverse impact. There would obviously be an adverse impact if the immigrant visa is revoked before the individual has proceeded to the United States. Even under these circumstances, if the immigrant visa is revoked unbeknownst to the person and could not have been ascertained through reasonable diligence, she can seek a waiver under 212(k) either at the port of entry or in removal proceedings, and if victorious, can be admitted as a permanent resident. If the EO takes effect, the DOS will revoke the visas en masse as was done the last time, and this individual is not likely to be aware of the revocation while on the journey to the United States and would thus be a good candidate for a waiver under INA 212(k).

Justifiable Outrage On Trump’s Muslim Travel Ban By A Client

By Farhad Wadia

Editor’s Note: On Friday evening, January 27, 2017, we sent out a notice to our clients relaying the details of President Trump’s executive order blocking the entry of visa-holders, refugees, and LPRs from seven predominantly-Muslim nations, namely Iran, Iraq, Syria, Somalia, Sudan, Libya, Yemen. Among other things, we strongly discouraged clients or the employees of corporate clients from these countries from travelling outside the United States.  Outraged by Trump’s actions, Farhad K. Wadia wrote to us this spontaneous, eloquent response. Mr. Wadia is the Chief Executive Officer of Samuels Jewelers, a multi-million dollar specialty jewelry chain. Under Mr. Wadia’s leadership, Samuels Jewelers has expanded to 123 stores across twenty-two states and now employs over 800 people. Mr. Wadia, who is a citizen of India, is also a proud lawful permanent resident. Note that there have been some clarifications to the EO since last Friday, the situation remains fluid as interpretations keep on changing.

This weekend, I was shocked to hear that President Trump had not only banned refugees and visitors from seven Muslim countries, but that Lawful Permanent Residents from these nations were also denied entry. Due to the uproar from protests this weekend, the White House has since rolled back on its policy denying entry to LPRs; however, many more people, including temporary workers and students, continue to suffer under this inhumane policy.

This Executive Action has already ripped apart families and shattered the dreams of professionals and students. Twice before in American history have such actions caused untold hardship and suffering to innocent people. The first of which was the U.S. refusal to admit Jews fleeing the Holocaust. Upon return to Nazi Germany, these people were violently persecuted and/or killed at concentration camps. The second was the internment of Japanese-Americans after the bombing of Pearl Harbor, causing immense trauma and untold misery. Trump’s recent actions join these events in the halls of infamy and serve as a degradation of American values.

Despite these spots on its history, America, has historically served as a beacon of hope and opportunity for citizens and immigrants alike. It has allowed me, an immigrant and now proud lawful permanent resident, the opportunity to grow a successful company, contribute to the American economy, and employ hundreds of workers. But I am no exception. America has given millions of people the opportunity to create new and better lives for themselves and become leaders in their communities. Immigrants to America have become influential politicians, doctors, teachers, business leaders, and scientists that have all made this country stronger.

Trump’s Executive Orders against immigrants and refugees stands in stark contrast to these cherished values. This is not the America that the world admires and respects, where the inscription on the Statue of Liberty reads: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!” Trump has instead shut America’s door to those most vulnerable by blocking the admission of Syrian refugees, and has disrupted the lives of hundreds of visa holders seeking to continue their studies or careers.

These executive orders, in addition to the recent order heightening the status of Steven Bannon within the National Security Council, lead me to worry about the fate of America. Specifically in regards to immigrant workers, Mr. Bannon has been exceptionally discriminatory against Asian (citizen and noncitizen) workers in Silicon Valley. Relying on made-up statistics, Mr. Bannon has implied that there are too many Asian CEOs and workers in the tech industry. Stephen Miller and Jeff Sessions have both suggested rolling back employment-based immigration, even for the most talented workers that are capable of bringing ingenuity and success to the economy. I fear that this weekend’s actions are only the beginning of what is to come.

The suspension of immigration will only serve to hurt America. This country was built upon the backs of immigrants. Immigrants have made this country better. They have made this country stronger. Trump’s discriminatory orders will only reverse progress and growth, both economically and socially. America is better than this, and now is the time for the American people to stand up and fight against this injustice. As Martin Niemöller once wrote,

“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.”

Let the American people take these words seriously, and refuse to allow Trump and his administration to degrade the values that this country was founded upon.

Is Trump’s Proposed Scrapping of the H-1B Lottery in Favor of the Highest Wage Such A Good Idea?

By Cyrus D. Mehta and Sophia Genovese-Halvorson

Employers have already begun preparing for the upcoming H-1B visa lottery season.  The annual H-1B cap is limited to 65,000 visas per year for applicants with bachelor’s degrees, and an additional 20,000 for those with master’s degrees from US universities. The filing period begins on April 1, 2017. H-1B petitions received during the first five business days of April – April 3 to April 7 – will be given consideration under the lottery. Based on last year’s filings, the odds of getting an H-1B visa in the lottery is approximately 33%.

The H-1B lottery has been viewed as benefitting larger employers, mainly Indian IT firms that file a large number of petitions, over smaller employers who wish to focus on employing a single or few employees. A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery as contravening the INA, seeks to disrupt the status quo by allowing all employers to file on a first come first served basis. Under this plan, those who are not among the first 85,000 H-1B petitions received would be placed in a queue or wait list instead of being denied due to the quota having already been met. If this lawsuit is successful, it will certainly produce a long queue for the coveted 85,000 H-1B visas, and so most will still not benefit even after the lottery is dismantled.

Now Trump seeks to also disrupt the H-1B visa lottery, according to an article in Reuters. Specifically, Stephen Miller, senior advisor to the Trump administration, has suggested that the USCIS should abolish the H-1B lottery as we know it and replace it with a system which favors those who file on behalf of prospective employees with the highest wages. This proposal is similar to the one made by IIEE-USA, which, in addition to giving priority to employers who are willing to pay higher wages, suggest that the USCIS should also give lower priority to H-1B dependent employers. Most H-1B dependent employers, who have more than 15% of their workforce on H-1B visas happen to be Indian IT companies. This is also similar to the proposed reordering of access to H-1B visas in the Grassley-Durbin bill, which seeks to curtail the H-1B visa program in many other counterintuitive ways, including imposing mandatory recruitment of US workers before an H-1B petition is filed. Although a preeminent commentator, Vivek Wadhwa,  has praised the proposal on the grounds that Indian IT companies have been abusing the H-1B visa, we have several concerns about the proposed restructuring.

First, this preferential system would exclude entry-level professionals, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. While employers using the H-1B visa program have been criticized for excessively relying on the Level 1 wage, paying such a wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision.

Second, by favoring foreign nationals with the highest wages, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer wishes to bid for a worker by offering a higher than market wage, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is a result of an H-1B auction due to an artificial limitation in the number of visas, it could also have the effect of artificially distorting wages. It may also result in the inequitable result where American workers may be paid less than foreign H-1B workers, resulting not just in H-1B violations but also in discrimination lawsuits against employers. Therefore, under this proposal, the H-1B program may be criticized for causing imbalances between foreign and American workers.

Third, entrepreneurs who wish to obtain H-1B visas through their own startup companies will also suffer under this proposal. Their startups may not be able to pay them a higher wage than necessary in order to compete for an H-1B visa. Still, these startups hold promise to become successful and create jobs if the founder is able to remain in the US on an H-1B visa. This is why the USCIS provides entrepreneurs to get sponsored through existing visas such as the H-1B in the Entrepreneur Pathways Portal.  Although the USCIS has finalized a special parole rule for entrepreneurs, the final rule’s preamble acknowledges that Entrepreneurs Pathways compliments the parole rule and the two can thus harmoniously exist.  Even Wadhwa has stated that we are not encouraging startups and thus shooting ourselves in the foot, noting that “Google and Facebook can buy all the talent they want — it’s the startups who are struggling… The good thing is we have a powerful innovation system, and there are good things happening in Silicon Valley anyway, but the bad news is there’s a lot happening in other countries that would’ve happened here if we had let people come here. America gave a gift to the world.”

Fourth, while it has become fashionable to throw IT companies under the bus these days, they have to also be part of the solution. The use of IT consulting companies is widespread in America (where even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors.  IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa even if they abide by H-1B rules regarding wages. However, it is this business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-tier talent quickly with flexibility, at affordable prices that benefit end consumers, and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the US promotes when it’s in their favor, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The solution instead lies in increasing H-1B caps in Congress rather than reordering who can have access to H-1B visas under an artificially small quota. As we have previously blogged, by continuing to limit the H-1B program US employers will remain less competitive in the world markets. By limiting the availability of H-1B visas, employers are missing out on much-needed innovation in US industries, especially in the STEM fields. This failure to innovate within the US domain may encourage employers to look to overseas markets in order to develop and expand their companies. This is bad news for the US economy. H-1B workers have historically helped to improve the US economy, which in turn helps to create more jobs for Americans.

It is also a fact that more H-1B workers are needed in the IT sector as the United States does not produce enough computer professionals of their own. Most American IT workers are self-taught, as opposed to being formally trained at an institution, according to one US-based IT worker who spoke to the authors for this blog. Moreover, the United States has more venture capital investments for new companies than most other countries, but lack the domestic labor force to reap the benefits of such investment, thereby making the need to bring in H-1B workers ever more necessary to grow startup companies.

Lastly, the United States is no longer the only player in the game. The “Silicon Valleys” in China and India are vastly more agile for quick development and production, largely due to the availability of skilled workers. Meanwhile, American innovative companies are hamstrung for lack of them and are thus forced to move more of their research and development facilities overseas. The most talented will go to countries where they are more welcomed, which may no longer be the United States.

Increasing quotas in the employment-based preferences, along with the H-1B visa quota,  is the best way to reform the H-1B visa program, rather than to further shackle it with reordered lotteries, stifling laws and regulations, labor attestations, and quotas. If there is a concern about IT companies displacing US workers, such as what happened at Disney, then increasing the wage of an exempt worker from $60,000 (which was set in the 1990 Act) to something higher might be palatable in exchange for more H-1B visas annually and no further restrictions. If an H-1B dependent employer does not hire an exempt worker, then it needs to undergo an additional recruitment and anti-displacement attestation. This has been proposed in the Protect and Grow American Jobs Act sponsored by Congressman Issa, which increases the wage for an exempt H-1B employee from $60,000 to $100,000. If at all Congress wishes to impose restrictions on the H-1B visa, the Issa bill is preferable to the Grassley-Durbin bill.

Still, artificially raising wages above market wages would hurt the ability of US businesses to use the expertise of IT consulting companies in becoming more efficient, and thus passing on the benefits to consumers and even creating new jobs. Perhaps, the $100,000 wage can be lowered for certain exempt workers, such as those who have been sponsored for permanent residence through the dependent employer or those who have graduated in certain STEM disciplines.

Regardless of how one reorders access under the lottery, there will always be a shortage if the cap is limited to a mere 85,000 visas per year. For FY 2017, the USCIS received over 236,000 H-1B petitions, all vying for one of the 85,000 visas available. This means that some 151,000 or more people – highly qualified individuals with dreams and career aspirations – will likely be denied the ability to work in the US. This is not for lack of skill, this is not for lack of good moral character, but for an arbitrary cap system that limits their upward mobility and stifles US innovation in many fields. A system which seeks to provide preferential treatment to the highest paid foreign workers within the confines of an artificially low quota are unlikely to improve the position of US companies seeking to be competitive in global markets.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]

 

 

Matter of Dhanasar: The New National Interest Waiver Standard

Overturning nearly two decades of precedent on how an individual qualifies for the National Interest Waiver (NIW), the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) recently issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which vacated Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) on which USCIS routinely relied when adjudicating NIW petitions.

As background, the NIW is an immigrant petition for lawful permanent residence under the employment-based second preference (“EB-2”) category. In the ordinary course, a valid, permanent offer of employment in the U.S. and a labor certification application certified by the Department of Labor (DOL) are mandatory prerequisites to the filing of such an employment-based immigrant petition. However, the Immigration Act of 1990 (IMMACT90) provided that the labor certification requirement in the employment-based second category may be waived and foreign nationals may qualify for the NIW in the sciences, arts, professions or business if they are: (1) members of the professions holding advanced degrees; or (2) foreign nationals of “exceptional ability” who will “substantially benefit prospectively the national economy, cultural or educational interest, or welfare” of the United States, i.e. where the foreign national’s employment is deemed to be in the “national interest.” Yet, neither Congress nor USCIS have defined the “national interest.” Rather, it has been left intentionally undefined in an effort to leave the application of this test as flexible as possible.

In 1998, the threshold qualifications for a NIW were articulated in NYSDOT. NYSDOT restricted the use of the NIW as a way to bypass the labor certification process for foreign nationals qualifying for placement in the EB-2 category. In NYSDOT, the AAO defined a three-prong test as the legal standard for adjudicating NIW petitions. Under this test, the foreign national had to demonstrate that (1) the area in which the foreign national seeks employment is of substantial intrinsic merit; (2) the prospective benefit of the foreign national’s services is national in scope; and (3) the national interest would be adversely affected if a labor certification were required. That is, the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

The NYSDOT standard resulted in inconsistent adjudications, confusion and general frustration. It was impossible to devise a sure fire plan of attack or to predict the success of a NIW petition. Even if a petitioner could meet the first two prongs of the NYSDOT test, the third prong proved the most difficult to establish and was the sole subject of many USCIS Requests for Evidence. Under this prong, although a NIW is granted based on prospective national benefit, the foreign national’s past record had to justify projections of future benefit to the national interest. In other words, a NIW petitioner had to demonstrate that the prospective national interest was not entirely speculative, but based on demonstrable prior achievements. I previously blogged here providing a practical account of issues presented by the NYSDOT standard and how our firm was able to overcome that third prong and win a NIW petition for a marine biologist.

Acknowledging the existing confusion, in Matter of Dhanasar, the AAO stated that based on the agency’s experience with NYSDOT “we believe it is now time for a reassessment.” Matter of Dhanasar articulates a new NIW standard that the AAO believes provides greater clarity, applies more flexibly to circumstances of both petitioning employers and self-petitioning individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The decision noted that Dhanasar’s prong #1 – requiring substantial merit and national importance – focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s substantial merit may be demonstrated in a range of areas including business, entrepreneurialism, science, technology, culture, health, or education. It is possible to establish an endeavor’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable.  The AAO provided the examples of endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

To determine whether the proposed endeavor has national importance, the AAO stated that it considers its potential prospective impact. An endeavor may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. “But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance,” the AAO noted. “In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

Dhanasar’s prong #2 – requiring that the foreign national demonstrate that he or she is well positioned to advance the proposed endeavor – shifts the focus away from the proposed endeavor and onto the foreign national. The AAO stated that it will consider factors including, but not limited to, the petitioner’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. In recognition of the challenges presented in attempting to forecast feasibility or future success, the AAO stated that petitioners will not be required to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

Dhanasar’s prong #3 requires a demonstration that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification. The AAO recognized the intent of Congress to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. But, on the other hand, Congress also created the NIW in recognition of the fact that in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest. These two interests need be balanced within the context of individual NIW adjudications.

The AAO stated that this analysis requires an evaluation of factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. The AAO emphasized that, in each case, the factors considered “must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO noted that this new prong in Dhanasar, unlike the third prong in NYSDOT, “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” Under NYSDOT, the petitioner had to demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the foreign national by making the position sought by the foreign national available to U.S. workers. The petitioner, whether the U.S. employer or the foreign national, had to establish that the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Matter of Dhanasar indeed rovides much needed flexibility and a clearer understanding of the evidence required in order to qualify for a NIW. In particular, this decision more widely opens the door for entrepreneurs to qualify for NIW. Under Dhanasar’s prong #1, the entrepreneur will no longer have to provide evidence that the proposed benefit will be national in scope as it has always been difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. Instead, the entrepreneur could demonstrate that the proposed endeavor has significant potential to employ U.S. workers.

The AAO acknowledged that the third prong of NYSDOT was always especially problematic for entrepreneurs and other self-employed individuals. A self-employed consultant would never be able to sponsor oneself through a labor certification as there is no distinct employer. In fact, the DOL regulations prohibit one who is the owner of the corporation from filing a labor certification on his or her own behalf as this person might negatively influence the good faith effort to recruit US workers. Also, certain governmental agencies do not have a policy of filing labor certifications on behalf of foreign nationals even though they may be critically needed. Under the more flexible Matter of Dhanasar standard, getting rid of the comparison requirement and focusing on the foreign national’s own background, the entrepreneur can demonstrate that even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions.

Matter of Dhanasar still requires the subjective determinations of USCIS adjudicators and accordingly, great care still needs to go into assembling a NIW petition. But this precedent decision opens the door to lawful permanent residence for individuals involved in a wider range of endeavors who would have failed to qualify under the NYSDOT standard.

Top 10 Posts on The Insightful Immigration Blog in 2016

 Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2016. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. In 2016, we covered a wide range of topics, including the high skilled worker rule, STEM Optional Practical Training, decisions of the Board of Alien Labor Certification Appeals, ethics, and Trump’s many views on immigration.   We will continue to provide insightful commentary on contemporary immigration issues in 2017, and there will surely be much to cover under the new Trump administration! We wish all of our supporters and well-wishers a very happy New Year!

  1. A Closer Look At The Form I-983 – Training Plan for STEM OPT Students
  2. Perspectives On Immigration In 2016 Through My Crystal Ball
  3. Analysis of Key Provisions of the High Skilled Worker Final Rule
  4. Is Hillary Clinton’s Silence On H-1B Visas Golden?
  5. No Longer So Fast!  An Examination of EB-1 Retrogression For Indian And Chinese Born  Foreign Nationals
  6. Can a STEM OPT Student Be Employed At A Third Party Client Site?
  7. A Trap For The Unwary: Equivalent Degree And Alternate Requirements In Labor Certification Applications
  8. BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements
  9. The Role Of The Immigration Lawyer In The Age Of Trump
  10. Don’t Forget Skilled Workers Who May Have to Wait For  A  Few Centuries Before Getting the Green Card

 

 

The Ethical Role of a Lawyer Under a Trump Administration

Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it  contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.

BALCA Update: Recent Notable Cases

While we have no idea what the labor certification process will look like under the Trump administration, it still behooves all PERM practitioners to keep up with the Board of Alien Labor Certification Appeals (BALCA) decisions as they continue to directly affect how we prepare and file PERM applications. To that end, this blog will provide a brief summary of recent notable BALCA decisions.

Listing non-quantified skill requirements on the ETA Form 9089

At a December 7, 2016 meeting between the Department of Labor (DOL) Liaison Committee of the American Immigration Lawyers Association (AILA) and the DOL’s Office of Foreign Labor Certification (OFLC), OFLC representatives stated that pending review of the BALCA decision,  Smartzip Analytics, 2016-PER-00695 (Nov. 9 2016), they have suspended the issuance of denials involving the issue presented in that case and are preparing an FAQ relating to unquantified experience in Section H.14.

As background, after issuing PERM approvals dating back more than a decade to the inception of the PERM program, the DOL suddenly started to deny PERM applications where the employer included a requirement for a specific amount of work experience in sections H.6 and H.10 of the ETA Form 9089 and also a non-quantified skill requirement in section H.14. For example, in addition to indicating a requirement of a Bachelor’s degree plus 5 years of experience, an employer might also indicate in section H.14 that qualified applicants “must have experience in C++, Java & COBOL.” The DOL started denying labor certifications where the foreign national’s work experience in Section K of the ETA Form 9089 indicated the required work experience (in this example 3 years) but not also a full 3 years of experience in the specific technologies listed in section H.14.

While an indication of the quantified experience required is requested in sections H.6 and H.10, which ask whether experience in the job offered or in an alternative occupation is required, and “if yes, number of months of experience required” the same is not required in section H.14. The ETA Form 9089 indicates that H.14 should be used to list “specific skills or other requirements.” The instructions to the ETA Form 9089 also state that, in this section, the employer should “Enter the job related requirements. Examples are shorthand and typing speeds, specific foreign language proficiency, and test results. The employer must be prepared to document business necessity for a foreign language requirement.” Nowhere does it state that a specific number of months or years must be indicated in H.14.

In recent denials, the DOL argued that a failure to quantify the experience in H.14. left the Certifying Officer (CO) unsure as to how much experience was actually being required and uncertain of how to review applicants’ qualifications.

Then, in Smartzip Analytics, the employer listed the minimum requirements on the ETA Form 9089 as a Bachelor’s degree in Computer Science, Engineering or a related field and 60 months of experience in the job offered with 60 months of experience in any related occupation also being acceptable. In section H.14, the employer listed the following:

Experience must include experience with: delivering native mobile products at scale; publishing iOS application; Objective-C, iOS SDK, Cocoa Touch, Xcode, Interface Builder, and Auto-Layout; knowledge of Apple Human Interface Guidelines; Java.

The CO denied the application because Section K of the ETA Form 9089 did not demonstrate that the foreign national had 60 months of experience in the specific skills listed in section H.14. In a request for reconsideration the employer argued that it did not require any specific amount of experience for the skills listed in H.14. The CO held his ground and argued that by not qualifying the skills experience the employer could require more experience or proficiency of US worker applicants than it required of the foreign national and that the CO had no way of determining whether the foreign national met the employer’s requirements for the position. The employer appealed to BALCA.

BALCA relied on reasoning employed in another case, Apple, Inc., 2011-PER-01669 (Jan. 20, 2015) where BALCA considered whether the information presented in Section K of the ETA Form 9089 established that the foreign national met the special skills requirements listed in section H.14 and held that the ETA Form 9089 only solicited information about the foreign national’s work experience and did not solicit information regarding his skills gained outside of employment. Following the same reasoning, the panel in Smartzip similarly held that, unlike sections H.6 and H.10, in section H.14 the ETA Form 9089 does not solicit a statement of a duration requirement for the special skills. BALCA held that failure to provide a duration requirement for the special skills cannot be the basis for a denial without legally sufficient notice of a requirement to do so.

Hopefully, the forthcoming FAQ will clearly specify how special skills ought to be listed and make a clear distinction between skills like Java versus skills like the ability to type 50 words per minute or to speak French. While it might make sense for an employer to require 6 months of experience in using Java, there really would be no point to a requirement that the employer also issue a duration requirement for the ability to speak a foreign language or type at a certain speed.

Use of terms like “Depends on Experience (DOE)”, “Competitive”, “Negotiable” or similar language in recruitment in lieu of listing the actual wage

In late 2015, the DOL started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years, the DOL started denying PERM applications where the employers, in their PERM recruitment, used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage in lieu of stating the offered salary. I previously blogged about this here. The DOL claimed that terms like “Depends on Experience” and “Negotiable” could be vague and could place a potential burden on the US worker to reasonably determine the wage rate for the position or could indicate that an applicant’s experience might potentially cause the employer to offer a salary which is lower than the salary offered to the foreign worker. According to the DOL, a term like a “Will Discuss With Applicant” could prevent a potentially qualified US applicant from making an informed decision on whether he/she would be interested in the actual job opportunity, and could deter a number of such applicants from applying. The denials claimed that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market. Numerous motions to reconsider were filed.

Recently, Matter of Tek Services LLC, 2016-PER-00332 (Nov. 17, 2016), the employer’s recruitment did not specify a particular salary but indicated that the employer was offering a “competitive salary.” For reasons similar to those described above and in my previous blog, the CO denied the application. BALCA reversed the denial finding that the CO did not cite a specific regulatory requirement that had been violated by the employer. BALCA was not convinced by the CO’s argument that reading the words “competitive salary” creates a burden on US workers to identify the competitive wage because these applicants are under no obligation to identify this wage before applying for the position. BALCA pointed out that reading “competitive salary” in an ad also does not prevent applicants from making an informed decision on their interest in the job because this is more informative than an advertisement that is totally silent regarding the wage, an approach perfectly permissible under the regulation.

OFLC representatives have informed that they are currently reviewing the BALCA decision in Matter of TekServices and they have suspended all denials involving this issue.

Rejecting an applicant based on salary expectations

It is completely lawful to reject a US worker who desires a salary that is higher than the offered wage. But, the case of Techorbits, Inc., 2015-PER-00214 (Dec, 9. 2016) serves as a cautionary tale.

The employer filed a PERM application for the position of Business Development Manager. The application was audited. After reviewing the audit response, the CO denied the application finding that the employer had unlawfully rejected two applicants without interview claiming that the applicants desired a higher salary than the salary offered for the position. The CO stated that the employer was required to follow up with the applicants to verify whether they would accept the position at the offered salary.

In a Request for Reconsideration the employer argued that both applicants had been interviewed through interview questionnaires and phone interviews. The employer submitted an affidavit from the interviewer as to what was discussed in his interview with Applicant S.T. The employer also argued that Applicant M.D. rejected the job opportunity stating that “he would have considered this salary a few years ago, but not now.”

The CO denied the Request for Reconsideration. Regarding Applicant M.D., the CO found that he was indeed lawfully rejected based on the minimum salary he stated on the interview pre-screening form. However, Applicant S.T.’s pre-screening form indicated that his minimum salary was “open to discussion” and his resume indicated a wide range as his desired salary. The CO held that the employer had ample opportunity to submit the affidavit from the interviewer of Applicant S.T. in the audit response but did not do so. Therefore, the CO refused to consider it in the Request for Reconsideration. Without considering this affidavit, there was nothing else in the record to demonstrate that wages were ever discussed in an interview with Applicant S.T. and a rejection based on his requested salary listed as “open to discussion” was unlawful.

BALCA agreed with the CO. Without evidence to the contrary, it appeared that Applicant S.T. was rejected based on his responses to the employer’s pre-interview questionnaire. Even the employer’s email to Applicant S.T. stated, “Your minimum salary requirement you indicated on the questionnaire is higher than what is being offered for the position.” This did not help the employer in trying to prove that the applicant had been rejected based on his answers during an actual interview.  The employer also tried to argue that Applicant S.T. never responded to the employer’s rejection email to dispute the employer’s statements. BALCA shut down this argument stating that the onus is not on the applicant to correct an employer’s erroneous assumption.

BALCA also pointed out that an employer may reject an applicant as unwilling to accept the salary offered only after the position has been offered to the applicant at the salary listed and there is documentation of the offer and the applicant’s refusal. BALCA cited various cases that stand for the requirement that the position must first be offered to the applicant and the applicant must actually decline based on the low salary.

It’s interesting that BALCA did not comment about Applicant M.D. The CO found that he was lawfully rejected based only on his indication of a higher salary on his pre-interview questionnaire. But he did not actually receive and decline a job offer.

This case provides some helpful tips and reminders. An employer’s reliance on a US worker’s statements or demands as a lawful reason(s) for rejection must be very carefully documented. Pre-interview questionnaires are a great tool but employers need to carefully review them and follow up in an interview with the applicant on any statements that could potentially be used to reject the applicant. A statement indicating that the applicant will discuss wages with the employer is obvious but it might be best to also discuss an applicant’s indication of desired wage that is higher than the offered wage. This way the employer has a chance to actually inform the applicant of the offered wage and get his withdrawal of his application if he finds the wage too low.  And, as the employer learned in the instant case, an interviewer’s affidavit is an important part of the audit file and best practice dictates that it should be prepared and executed right after the interview and submitted as part of the employer’s audit response.

Is a PERM position really a “future” position if the Beneficiary is already employed in the position?

In Bally Gaming, Inc., 2012-PER-10729 (Sept. 2, 2016) the employer filed a PERM application for the position of Software Engineer located in Egg Harbor Township, NJ. The CO noted that the foreign national resided in Kennesaw, Georgia and in an audit notification requested documentation demonstrating the location of the offered position.

In the audit response, the employer explained that the foreign national currently performs the duties of the position at both locations based on the employer’s business needs but the offered permanent position will in fact be located in NJ. The employer’s application for a prevailing wage determination (PWD) indicated the New Jersey location and no travel requirement.

The CO denied the case finding that the employer had failed to obtain the proper PWD since the foreign national would also be working in Kennesaw, Georgia and failed to indicate a travel requirement on the ETA Form 9089. The employer filed a Request for Reconsideration and explained that the CO had actually misinterpreted its audit response. The employer explained that the foreign national holds H-1B status and is permitted under his H-1B to work in both locations but the permanent position does not entail any travel between the two locations.

The CO denied the reconsideration request based again on its incorrect interpretation of the PWD. The CO also stated that since the employer is permitting the foreign national to live in Georgia and travel to New Jersey to perform the job duties then the foreign national is receiving a benefit of travel or remote work that applicants for the job opportunity were not offered. The CO forwarded the case to BALCA.

The employer submitted a brief to BALCA arguing that the temporary H-1B position and the permanent position offered on the labor certification are different and that there is no legal requirement that the PERM application be for the same position in which the foreign national is employed in nonimmigrant status.  BALCA found that the employer’s PWD was indeed fully consistent with the ETA Form 9089 and also agreed with the employer that there is no requirement in the PERM regulations or in the Immigration and Nationality Act that both positions be identical. The case was remanded for certification.

What’s interesting about this case is contained in footnote 7 where BALCA suggests that there remains the question of whether the CO could deny certification on the basis of the employer’s failure to offer US workers the same benefit of travel or remote work that the foreign worker was already receiving. Due process concerns prevented BALCA from examining this issue. Since the CO initially asserted this basis for denial on a request for reconsideration, the employer was effectively denied any opportunity to address the new basis and, if appropriate, supplement the record in its request for reconsideration by the CO. BALCA also declined to address this question since it already made the determination that the CO had erred in requiring that the permanent position and the temporary position be identical.

At this point in time, we have the benefit of guidance which was not available to the employer in Bally Gaming. We know that the DOL has confirmed that the 1994 Barbara Farmer memo remains the controlling guidance on issues relating to employees who do not work at a fixed location. The DOL is still flagging cases where the foreign national’s residence is not within commuting distance of the work location. Inasmuch as a PERM position is an offer of “future” employment, if the foreign national already holds the position and is afforded a benefit in order to perform in the position, employers must be careful to offer that same benefit to US workers. I previously blogged here and here about employers’ obligation to list items or conditions of employment in its advertisements.

Other interesting cases

Micron Technology, Inc., 212-PER-02116 (Aug. 1, 2016) – BALCA held that an employer may not reject applicants for not having taken specific courses when the ad only required “knowledge of…” The employer was obligated to explore other ways in which the applicants may have gained the required knowledge.

Humetis Technologies, Inc., 2012-PER-02098 (Aug. 4 2016) – In response to an audit notification, the employer submitted email correspondence between the employer and the newspaper of general circulation. The correspondence indicated the title of two occupations to be advertised along with a description of the requirements for each position. The email confirmed that an ad would be placed online in the newspaper but did not verify the dates of publication or confirm the employer’s payment for the publication.

The regulations at 20 CFR 656.17 provide that an employer “can” document its placement of two Sunday ads by furnishing copies of the newspaper pages or proof of publication furnished by the newspaper. Various BALCA cases have established that other types of documentation could also be accepted but must be reasonably equivalent to the proof listed in the regulations. However, BALCA held that the employer’s failure to product tear sheets, a publisher’s affidavit or additional proof of publication deprived the CO of concrete evidence of the timing of the ads and the publication actually used.

Robert Bosch LLC, 2012-PER-01739 (Aug. 25, 2016) – The CO denied certification because of a discrepancy between the total number of resumes (62) stated in the recruitment report submitted with its audit response and the total number of job applicants (61) for which rejection reasons were cited in the recruitment report.  The Employer requested reconsideration, explaining that the discrepancy was the result of a typographical error in its “recruitment chart” and it offered a corrected version of the recruitment report.  BALCA held that the CO properly refused to accept and consider the employer’s corrected recruitment report which was prepared after the initial denial and thus barred by 20 C.F.R. §656.24(g)(2)(ii) which precludes an employer from submitting in an Request for Reconsideration, documentation that it previously had an opportunity to submit.

One tiny and unintentional mistake could bring a quick and unfortunate end to what is a costly and often lengthy process for an employer and foreign national. But reviewing only one BALCA case can make all the difference. Despite the fact that the DOL continues to constantly shift the goal posts in the PERM process, reviewing these cases can not only assist with avoid pitfalls but can also provide encouragement when considering appealing to BALCA.