New York State Bar v Avvo: Will the Uberization of Immigration Law Practice? Overcome Outdated Advertising Rules Governing Lawyers

Companies like Avvo are using their marketing platform to provide more opportunities for younger and solo lawyers to gain clients and thus level the playing field.  Avvo Legal Services seeks to disrupt the traditional legal model where a client seeks out a lawyer based on his or her reputation rather than on a web-based network, and the lawyer sets the fee. One of the immigration services Avvo offers is a “family based green card” for $2995 that involves preparing and filing the requisite forms, but no representation at an adjustment of status interview or to respond to a Request for Evidence.  The consumer pays $2995 to Avvo directly, but may choose the attorney in the Avvo network that they want to work with. That attorney has 24 hours to directly contact the consumer/client, and do the work as they would any other client. When the work is completed, Avvo releases the funds to the attorney, and in a separate transaction withdraws from the attorney’s account a $400 marketing fee.

Under this unique business model, which I have termed as the Uberization of immigration practice in a prior blog,  the immigration attorney is contracting with Avvo as a vendor to gain clients and business through its superior marketing reach. Avvo views this new service as benefitting both lawyers and clients. The lawyer will rely on Avvo to get business and also get paid easily, without keeping track of billable hours or worrying about trust accounts. It would also help lawyers build their practices as it would lead to further work by the same client, according to Avvo.  The client is also benefitted as s/he will get access to a legal service that is both affordable and fixed, and will also understand exactly what legal service is being purchased. Avvo Legal Service should be distinguished from the “Avvo rating” a lawyer may receive, which is ethically permissible.

The question is whether paying the marketing fee to Avvo is ethically impermissible when an attorney receives a matter through the Avvo legal services platform.  The New York State Bar issued Ethics Opinion 1132 holding that a lawyer may not pay the current marketing fee to participate in Avvo Legal Services because the fee includes an improper payment for a recommendation in violation of New York Rule 7.2(a). Under 7.2(a), “a lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client…” At issue for the NYSBA Committee on Professional Ethics was whether the lawyer is paying the fee to obtain marketing and advertising services from Avvo or whether it was giving Avvo something of value to recommend the lawyer to clients. The former scenario would not be a violation of Rule 7.2(a) while the latter would be. The NYSBA, in concluding that paying a marketing fee violated Rule 7.2(a),  analyzed Avvo’s business model in great detail. Avvo gives each lawyer a rating from a scale of 1 to 10. While Avvo never describes a rating as a recommendation, the NYSBA opined that the Avvo website extols the benefits of being able to work with highly-rated lawyers.  While a lawyer is not precluded from advertising bona fide professional ratings generated by third parties in advertisements, Avvo is not a third party, according to the NYSBA,  as it benefits financially if potential clients hire the lawyers rated by Avvo. The NYSBA’s conclusion was bolstered by Avvo’s satisfaction guarantee by which the client is guaranteed a refund of the full amount, even Avvo’s marketing fee, if the client is not satisfied. “This guarantee contributes to the impression that Avvo is ‘recommending’ the lawyers on its service because it stands behind them to the extent of refunding payment if the client is not satisfied,” according to the NYSBA.

While the NYSBA dwelt a lot on what constitutes a recommendation under Rule 7.2(a), it skirted discussing whether the Avvo service would in reality compromise the attorney’s ability to competently represent the client. That analysis is more relevant than whether there was a violation of an archaic advertising rule.  There is a growing recognition that the advertising rules governing lawyers are outdated and need an update in light of the use of social media by attorneys to both market and communicate with clients. Many immigration lawyers, firms, and non-profits providing legal services to indigent clients rely on social media such as LinkedIn, Twitter and Facebook. They use social media not just for advertising but also as part of advocacy efforts to raise awareness on immigration issues. If any message disseminated on social media constitutes an attorney advertisement, it triggers additional requirements that may be impossible to comply with in a social media post. Reform of the advertising rules should focus on should focus primarily on lawyer communications that are false or misleading. All other requirements in an advertisement such as requiring the words “Attorney Advertising” and requiring the name, principal law office address and telephone number of the law firm are outdated in an era dominated by tweets.

Rather than focus on the advertising rules that are outdated, including splitting hairs on what constituted a recommendation under Rule 7.2(a), the NYSBA could have opined on other aspects of the Avvo service that limits both the competence and independence of the attorney.

The NYSBA highlighted three salient issues, which it said it was not deciding on:

  • The fact that Avvo sets the amount of the legal fee for each service raises questions about whether a participating lawyer can deliver competent legal services for Avvo’s chosen price and whether a lawyer is allowing Avvo to interfere in the lawyer’s independent professional judgment regarding how much time to spend on a matter.
  • The marketing fee raises questions about whether lawyers who participate in Avvo Legal Services are improperly sharing legal fees with a nonlawyer.2
  • Avvo’s satisfaction guarantee raises questions about confidentiality. If clients call Avvo to complain, does the “documentation” that Avvo asks for or receives include “confidential information” within the meaning of Rule 1.6(a)?  How does Avvo avoid receiving confidential information when evaluating whether to refund the legal fee a client has paid through Avvo?

Even if we leave alone the concerns of fee splitting with a non-lawyer, a “family -based green card” is not like ordering a ride through Uber, where you know that any driver in a functioning vehicle and GPS, will take you to your destination.  But unlike an Uber car ride, there are many traps and pitfalls in family -based immigration practice, even when it appears relatively straight forward. One’s eligibility for adjustment of status based on a marriage to a US citizen spouse is also subject to variables. If the client’s arrival in the US was not through a straight forward inspection at a port of entry, then the case immediately becomes more complex. If the client is potentially inadmissible for a host of reasons, including claiming to be a US citizen when seeking employment many years ago, that too would throw the Avvo $2,995 family based green card package out of the window. The client will disappointingly realize that the Avvo family green card package and price is virtually meaningless, and would rather seek out an attorney who has the reputation and expertise to handle difficult family -based immigration cases. There are other variations even if the client appears prima facie eligible to adjust status. For example, the marriage may have been bona fide at its inception, but the spouses are quarreling and living separately, and still desire to cooperate on the green card for the sake of the children. This too requires the agile immigration attorney to appropriately advocate for the client by educating and allaying the suspicion of malevolent intent by a USCIS examiner that the marriage presently under consideration not be viable so long as it was bona fide at its inception. See Matter of Boromand, 17 I&N Dec. 450 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

There are other problematic aspects of immigration legal services provided by Avvo.  It offers a 15-minute immigration advice session for $39. After 15 minutes, the telephone line gets cut off. It is difficult to provide a comprehensive consultation on an immigration law issue in 15 minutes. While the client may have the option of following up with the attorney, the very fact that Avvo suggests that a 15-minute consultation can satisfy the client’s need in a complex area of the law may be misleading. Avvo also provides a service where an attorney will review immigration applications that the client has prepared pro se, but that is fraught with dangers and pitfalls as referenced in the marriage example preceding. 8 CFR 1003.102(t) provides for sanction of an immigration practitioner who fails to submit a Notice of Entry of Appearance as Attorney or Representative who has engaged in practice or preparation. Under the terms of the Avvo arrangement, since the client will be filing pro se after the attorney reviews it, the attorney will not be able to submit a Notice of Appearance if the attorney’s review of the form is considered to be “practice or preparation.” Presumably Avvo, as an intermediary in connecting a potential client to a lawyer and as a non -legal entity, would not be entering a Notice of Appearance.

The NYSBA opinion has been issued by a voluntary organization and is non-binding. To the best of this author’s knowledge, no New York lawyers have been disciplined because they paid a marketing fee to Avvo. Other state bars have also issued opinions,  here, here and here,  that raise concerns about fee splitting. Fee splitting is a concern if it undermines the independence of the lawyer. Avvo says it does not as it is made totally transparent to the consumer of legal services and could be a violation of the First Amendment. The key issue is that a client who uses Avvo Legal Services should be made completely aware of the scope of the services and its variation, which at least in the immigration context, may not be the case. Perhaps, one way to alleviate the concern of a bar association’s professional ethics committee is to make sure that the lawyer and prospective client have a phone call first to discuss the scope of the matter before the client purchases the service on the Avvo platform. If the issues presented by the prospective client are more complex than advertised, then Avvo should provide the ability for the lawyer to modify the fees based on the new scope of representation. As Avvo has pointed out, the NYSBA opinion “actively discourages lawyers from using technology to reach out to clients who see an increasing gap between them and meaningful access to the legal system.”     This may be true, but the consumer must also be made aware whether his or her case fits the service that Avvo markets on behalf of the law. A lawyer may undertake limited representation and unbundle legal services, which Avvo facilitates, but the limitation must be reasonable under the circumstances pursuant to New York Rule 1.2(c). Thus, the 15-minute consultation should probably be extended to at least 30 minutes or even longer. Perhaps, the service promoted by Avvo of reviewing a pro se client’s naturalization or I-130 petition should be halted unless some understanding is reached by the disciplinary counsel in the Department of Homeland Security and the Executive Office for Immigration Review regarding the scope of 8 CFR 1003.102(t).

NYSBA Formal Opinion 1132 against Avvo will not be the last word. The professional ethics committee of the NYSBA too acknowledges that the “lawyers and clients who are using Avvo Legal Services suggest that the company fills a need that more traditional methods of marketing and providing legal services are not meeting” and “[f]uture changes to Avvo’s mode of operations – or future changes to the Rules of Professional Conduct – could lead us to alter our conclusion.” For now, at least, lawyers who choose to pay a marketing fee to Avvo after they connect with a client through its platform do so at their own peril. Avvo, though, has promised to defend these lawyers if disciplinary action is taken against them.

 

Making Sense of the Acquittal in Kate Steinle’s Case: Why Anti-Immigrant Rhetoric Equating Immigrants with Criminals Must Stop

Kate Steinle’s death was a senseless tragedy. On July 1, 2015, as she was walking along San Francisco’s Pier 14, a gun goes off and cuts her life short. She died in her father’s arms.

The accused, Jose Ines Garcia Zarate, is an undocumented Mexican immigrant who had been deported five times before, and each time, has illegally come back into the United States. He was charged with murder and manslaughter, but the jury recently acquitted him of the charges. His acquittal has inflamed President Trump who calls the verdict a travesty of justice. He uses the acquittal as another reason to build the wall. If Mr. Garcia Zarate did not cross the border illegally, Kate would still be alive today, Trump and his supporters argue.

But Mr. Garcia Zarate’s immigration status was not relevant. In the criminal justice system, the twelve jurors were asked to look at the facts and deliberated hard for six days. The key issue was whether the defendant intentionally killed the victim? Immigration status was not part of the jury’s deliberations and should not have been, however much Trump and his supporters may insist. Evidence was presented in the trial that the bullet had ricocheted before killing Ms. Steinle. The jury determined that  Mr. Garcia Zarate did not intentionally kill her.  Mr. Garcia Zarate was nevertheless convicted for felony possession of a weapon and will face prison time. After he completes his sentence, Mr. Garcia Zarate will presumably be deported to Mexico for the sixth time.

In order to have a fair criminal trial, which the United States ensures for all defendants, immigration status should never be relevant and thus not admissible evidence. The only question in court was whether the defendant intentionally fired the gun. As the facts were presented, Mr. Garcia Zarate, a homeless immigrant living in the country illegally, unwrapped a cloth object under a bench on a San Francisco pier. Inside the cloth was a gun that had been stolen days before.  During the presidential campaign, Trump exploited Kate’s unfortunate death to conflate immigrants with criminals, foment hate, inspire a mass deportation program and to catapult him into the presidency. Trump continues to rage and exploit Ms. Steinle’s unfortunate death to further his anti-immigration policies. He says this in a recent tweet:

The Kate Steinle killer came back and back over the weakly protected Obama border, always committing crimes and being violent, and yet this info was not used in court. His exoneration is a complete travesty of justice. BUILD THE WALL!

Mr. Garcia Zarate may have been an undocumented person who illegally crossed the border many times. But that fact would not have changed the outcome as Mr. Garcia Zarate’s border crossings in violation of law were not the proximate cause of Ms. Steinle’s death. If Mr. Garcia Zarate had not picked up the gun at that fateful moment, and if another homeless person born in the United States picked up the same gun, Ms. Steinle may have still been killed. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. The criminal justice system can fairly deal with people accused of crimes, whether they may be immigrants or US citizens.

To be clear, Mr. Garcia Zarate is no model immigrant. He is not a Dreamer or a STEM graduate. Still, he got a fair trial in our criminal justice system even though he was unable to afford fancy lawyers. Most immigrants, however, are hardworking and honest, trying to make better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. It is irresponsible to use this tragic incident to scapegoat all immigrants or to drum up support for mass deportations of millions of people. It would also not be in keeping with Ms. Steinle’s memory if her death results in hate and misery fomented by white nationalist groups.

Ms. Steinle’s death was also used as a basis for the Trump administration to oppose sanctuary jurisdictions. Mr. Garcia Zarate had completed a nearly four-year federal prison sentence for illegally reentering the country. He was turned over to San Francisco law enforcement officials because of an outstanding warrant for a marijuana-related charge that was immediately dismissed. Local officials released him, despite a request from federal authorities to keep him in custody because of his immigration status, according to a wrongful-death lawsuit filed by Steinle’s family. The Trump administration issued an executive order in January 2017 to articulate its broadened enforcement policy against undocumented immigrants, which among other things sought to  block federal funds from “sanctuary jurisdictions.”

The January executive order stated, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.” The executive order said, among other things, that the policy of the executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The order further said that the Secretary of Homeland Security has the authority to designate a jurisdiction as a sanctuary jurisdiction, and that the Attorney General can take “appropriate enforcement action” against any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

Following lawsuits by the counties of San Francisco and Santa Clara, California, federal district Judge William H. Orrick ruled against a provision of the Trump administration’s executive order issued in January 2017 to block federal funds from “sanctuary jurisdictions.”  The counties challenging the executive order argued that the relevant provision of the Trump executive order violated the separation of powers doctrine in the Constitution because it improperly sought to wield congressional spending powers. The counties said it was so overbroad and coercive that even if the President had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions. Further, the counties argued that the provision was so vague that it violated the Fifth Amendment’s Due Process Clause and was void for vagueness. And because it sought to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violated the procedural due process requirements of the Fifth Amendment.

The federal government responded that the counties could not demonstrate that the executive order’s sanctuary provision was invalid under all circumstances. It also claimed, among other things, that the provision was consistent with the Constitution’s separation of powers and did not apply to funding in which the county might have a constitutionally protectable interest.

The court noted that the provision in question, by its plain language, attempted to reach all federal grants. The rest of the executive order was broader still, the court noted, addressing all federal funding. And if there was any doubt about the scope of the executive order, the court observed, the President and Attorney General “erased it with their public comments.” The court noted that the President has called the order “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded, the court noted.

The court said that the Constitution vests spending powers in Congress, not the President, so the executive order “cannot constitutionally place new conditions on federal funds.” Further, the court noted, the Tenth Amendment “requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive.” Federal funding that bears no meaningful relationship to immigration enforcement “cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves,” the court said. Because the executive order violates the separation of powers doctrine and deprives the counties of their Tenth and Fifth Amendment rights, the court granted the counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the executive order.

Despite the injunction, and following the acquittal verdict in the Stienle case, anti-immigrant rhetoric equating immigrants with criminals continues to intensify as the Administration ramps up its deportation force, doubles down on cruel deportation tactics, and attacks policies put in place by local police and sheriffs to keep their communities safe. The hateful rhetoric must stop. Entangling local law enforcement with deportations undermines trust and safety.  Local law enforcement has repeatedly come out in favor of so-called “sanctuary” policies, not the least because honoring detainers issued by ICE has led to counties being liable when courts have found that a person’s constitutional rights under the Fourth Amendment were abridged when someone was detained without a judicial warrant or court order. When immigrants come to view their local police and sheriffs with distrust because they fear deportation, it encourages criminals to prey upon victims and witnesses alike. Victims of domestic and other violence choose to suffer in silence rather than seek assistance; key witnesses of crime refuse to come forward out of fear that they themselves will be treated as a criminal; and a climate of fear grips entire neighborhoods. Regardless of the passions generated in the Steinle case, cities and localities need to make pragmatic, rational choices about how to best make and keep their city/locality safe. The decision to disentangle local policing from immigration enforcement promotes community trust and the federal government should not interfere with this local policy making. Indeed, such a disentanglement will be more effective in preventing crime.

America has been a nation of immigrants since its inception over 240 years ago, while it has been just over a year since ugly anti-immigration sentiment has been unleashed through Trump’s rise. Over these two centuries, there has also been a recognition that those who are accused of crimes face a fair trial in the United States regardless of where they come from or their immigration status. It is hoped that these bedrock principles grounded in the nation’s history and character will withstand the xenophobic stirrings of the moment.

Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked

The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3).  A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now  recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017.  We previously advocated for this outcome here, here and here, and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. Some I-485 applications have been pending for more than a decade, such as those in the class of July 2007, after the employment second (EB-2) and third preferences (EB-3) for India became current and then retrogressed. Even in the Trump era, I-485 applications  filed are likely to remain pending for over 180 days as the beneficiary will be scheduled for personal interviews at the local USCIS office.   This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer. INA 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice of the USCIS’s intent to revoke?

Matter of V-S-G-Inc. recognizes that a beneficiary who has ported is within the statute’s zone of interests following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects.    Courts have agreed that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. Beneficiaries who have ported to new employers fall within INA 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson and Kurupati v. USCIS.  The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-485 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

The AAO in Matter of V-S-G- while endorsing the holdings in Mantena v. Johnson and Kurupati v. USCIS, disagreed with the Seventh Circuit’s holding in in Musunuru v. Lynch. In Musunuru, while recognizing the beneficiary of an approved I-140 petition as an affected party,   adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

We so hold because Congress intends for a nonimmigrant worker’s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress’s intention, the new employer must be treated as the de facto petitioner for the old employer’s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.

In a prior blog, I had argued against the holding in Musumuru that there is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

I am glad that the AAO in Matter of V-S-G- agrees with this position. The AAO correctly noted, “The new employer did not pay for the filing, is not responsible for maintaining the petition, is not liable for the original petitioner’s compliance or malfeasance associated with it, and cannot withdraw the petition if it no longer requires the beneficiary’s services. Nor can the new employer prevent the beneficiary from porting to yet another employer (as happened here).” The fact that the new employer has to sign an I-485J Supplement J does not give it more interests in the original employer’s petition. The new employer would in any event need to provide a letter confirming the new job offer. Form I-485J merely captures the same information that the new employer would provide in a letter relating to the job offer.

While the outcome in Matter of V-S-G- is positive for beneficiaries who have ported and who are entitled to notification, it did not go far enough. Matter of V-S-G- only recognized the beneficiary as an affected party in cases where he or she has exercised portability under INA 204(j). The AAO disagreed with the Sixth Circuit’s holding in Patel v. USCIS, which held that the beneficiary of an I-140 petition even outside the porting context had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b), according to the Sixth Circuit in Patel, makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. While a pending I-485 may bolster the beneficiary’s interest in an I-140, it is not necessary. There exist old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, an even older 1984 case, Gladysz v. Donovan,  provides further basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The final Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Workers rule (“High Skilled Worker Rule”), which took effect on January 17, 2017, did not address notice and standing for I-140 beneficiaries under INA 204(j). Matter of V-S-G- now fills this gap. 8 CFR 205.1(b) and 205.2(b) and (c), which provide that automatic and notice-based revocations go solely to the petitioner, are no longer applicable when beneficiaries have pending I-485 applications under INA 204(j). The USCIS has instructed that revocation notices be sent to both the petitioner and beneficiary. The USCIS, however, does caution that when sending notification, certain non-public information cannot be shared with both parties such as the petitioner’s non-public financial information, including federal tax returns or information about I-140s being filed on behalf of multiple beneficiaries. Under these circumstances, the beneficiary is supposed to get more generalized information. Whether this will be advantageous to the beneficiary who is provided modified information for purposes of rebutting an intention to revoke an I-140 petition remains to be seen. However, it would be a ground for appeal to the beneficiary whose I-140 was denied because he or she did not get sufficient information in order to provide an effective rebuttal. Still, the examples given in the Policy Memorandum under which the USCIS can revoke an approved I-140 are broad and under the following headings: material error in approving the petition; fraud or willful misrepresentation of material fact; lack of a bona fide job offer; adverse new information (from a site visit or adjustment interview; and invalidation of a labor certification. One can see this as an invitation for USCIS examiners to issue more NOIRs of approved I-140 petitions especially under the Trump administration, which has sought to curb or slow down legal immigration by imposing mandatory adjustment interviews and increasing site visits.

Matter of V-S-G and the accompanying policy guidance only deal with notification to beneficiaries who have approved I-140 petitions, which the USCIS seeks to revoke. It does not deal with beneficiaries who are porting off unadjudicated I-140 petitions and concurrently filed pending I-485 applications. 8 CFR 245.25 of the High Skilled Worker Rule clarifies and codifies long standing policies regarding how a beneficiary may port under INA 204(j). With respect to porting off an unadjudicated I-140 petition, 8 CFR 245.25(a)(2)(ii)(B) clearly provides for this by stating that the I-140 must still ultimately be approved by demonstrating that it was approvable at the time of filing and until the I-485 was pending for 180 days. The rule insists that it must still be demonstrated that the original petitioner had the ability to pay the proffered wage at the time of filing the I-140 petition, but the original petitioner need not continue to show its ability to pay after filing and until the beneficiary obtains permanent residency. This makes sense since once the beneficiary has ported, the original petitioning employer should not be required to demonstrate its continued ability to pay the proffered wage after the filing of the I-140 petition and once the 180 days since the filing of the I-485 have passed.

Unfortunately, Matter of V-S-G- and the accompanying guidance fail to instruct USCIS on how to notify beneficiaries when the I-140 has not yet been approved, but the beneficiary has exercised portability under INA 204(j). Pursuant to Matter of V-S-G, the beneficiary has a legitimate interest in an unadjudicated I-140 too, and must be notified through a Request for Evidence (RFE) that is usually only sent to the employer.  Accordingly, beneficiaries who have ported off an unadjudicated I-140 must insist on being notified regarding any RFE that may be sent to the employer and to be given the opportunity to respond to the RFE. If the relationship has not become antagonistic, the original employer may still respond to the RFE, even if the employer does not intend to employ the beneficiary upon acquiring permanent residency, and notify the USCIS that the beneficiary has or may be porting under 204(j) but is seeing to have the I-140 approved pursuant to 8 CFR 245.25(a)(2)(ii)(B). If the original employer has decided to not respond to the RFE, the USCIS must still give the beneficiary an opportunity to respond to the RFE in the same was as it has been instructed to do under Matter of  V-S-G- with regards to an NOIR of an approved I-140 petition.

Beneficiaries have not been provided the same rights as employers in the I-140 petitioning process. Matter of V-S-G- following court decisions now recognize that an AC 21 beneficiary must be given an opportunity to be heard when the approved I-140 petition is in jeopardy. At the same time, the guidance accompanying Matter of V-S-G- could also incentivize USCIS officers to issue more NOIRs of approved I-140 petitions, although such notices would have to be provided to the original petitioner and to the beneficiary. While this is a significant first step, beneficiaries of employer-filed petitions must continue to advance their legitimate right to be heard even in other contexts, such as when the I-140 is still not yet approved or even when there is no pending I-485 application under INA 204(j).

 

Matter of G- Inc.: Clarifying the Role of the Function Manager Under the L-1 Visa

By: Cyrus D. Mehta and Sophia Genovese

The Administrative Appeals Office (AAO) recently adopted a decision, Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), providing important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. The L-1 visa allows a U.S. employer to transfer an executive or manager (L-1A) or a worker with specialized knowledge (L-1B) from a foreign subsidiary or affiliate.

As corporate structures are changing from hierarchical to flat in a globally interdependent world, the role of the function manager, who manages a function rather than people, has become increasingly relevant under L-A visa classification. A flat organization has few or no levels of management between management and staff level employees. The flat organization supervises employees less while promoting their increased involvement in the decision-making process. Building upon momentum gained from its decision in Matter of Z-A-, Adopted Decision 2016-02 (AAO Apr. 14, 2016), the AAO in Matter of G- held that:

(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.

(2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

Under its prior decision in Matter of Z-A-, the AAO held that an L-1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an international organization who perform the day to day administrative and operational duties. This is possible in the internet age where communications can take place online and through Skype rather than face to face in a physical location. The foreign national manager seeking an L-1A visa extension in Matter of Z-A-, was the President and Chief Operating Officer of the U.S. Petitioner whose parent company was in Japan. The USCIS Service Center denied on the ground that only a small number of employees who worked in the U.S. would support the manager and relieve him from performing the duties of the function. The key issue on appeal was whether the Petitioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA § 101(a)(44)(A). The AAO reversed the Service Center’s decision, noting that the Beneficiary would continue to rely on the support of eight staff abroad and two in the U.S. to relieve him of day-to-day operational and administrative activities. The AAO stated that despite the fact that the Beneficiary “may be required to perform some operational or administrative tasks from time to time, the Petitioner established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined staff of 10 employees of the Petitioner and its parent company, located in the United States and Japan, respectively.” Matter of Z-A-, at 7.

In its most recent decision in Matter of G-, the AAO further elaborates upon the contours of the “function manger.” Although Matter of G- was decided within the context of INA § 203(b)(1)(C) (where a U.S. employer can petition to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity), the AAO stated in its decision that the function manager analysis equally applies to L-1A function managers. Matter of G-, at 2, note 6.

The foreign manager seeking immigrant classification under INA § 203(b)(1)(C) in Matter of G- was the Director, Financial Planning and Analysis (FP&A) at a large multinational technology corporation. The company first transferred the Beneficiary to the U.S. on an L-1A visa to seek business opportunities and foster growth of the company in the U.S. markets. After a few years of success, the company decided to petition for the worker to permanently reside in the U.S. under INA § 203(b)(1)(C). The Petitioner explained in their I-140 petition that the Beneficiary would continue to direct and develop revenue forecasts and analysis for the entire company, lead mergers and acquisitions, and oversee strategic pricing analyses, among other managerial duties. However, the USCIS denied the Form I-140, finding that the Petitioner did not establish that the Beneficiary would be employed in a managerial role. It is not unusual for one Service Center of the USCIS to approve the L-1A visa and another Service Center to deny the I-140 petition.  Upon review, the AAO reversed, and sought to clarify the role of a function manager.

INA § 101(a)(44)(A) defines “managerial capacity” as:

[A]n assignment within an organization in which the employee primarily-

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day- to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

(emphasis added).

In its decision, the AAO noted that “essential function” is not defined anywhere in the INA. Instead, it relied on the Merriam-Webster Dictionary definitions of “essential” and “function” in proceeding with their analysis, concluding that an essential function must be a core activity of a petitioning organization. Relying on these definition, the AAO first found that the Petitioner must “(1) describe with specificity the activity to be manage, and (2) establish that the function is core to the organization.” Matter of G-, at 3. The AAO further recognized that an organization could have more than one core activity “such as the manufacture or provision of an end product or service, and research and development into other products or services.” Matter of G-, at 3, note 11.

Once the Petitioner can establish this essential function, it must then prove that the Beneficiary meets all of the four criteria of “managerial capacity” under INA § 101(a)(44)(A). The AAO held that in addition to defining with particularity the activity to be managed and establishing that it is a core function of the organization, the Petitioner must also show that the Beneficiary will primarily manage (and not perform) the function, that the Beneficiary will hold a senior level at the organization or with respect to the function managed, and that the Beneficiary will exercise discretion with the function’s daily operations. Matter of G-, at 4.

In applying their new function manager analysis to the case at bar, the AAO found that the FP&A Director was clearly a function manager under INA §101(a)(44)(A). First, it found that “financial planning and analysis” qualified as a function within the organization as it was clearly defined with specificity and indicated a clear goal of generating data to assess the company’s revenue. Second, the AAO found that the FP&A function was essential to the company, where the Beneficiary’s work would be relied upon by the company’s executives and board of directors in making strategic decisions in mergers and acquisitions. Third, the AAO found that the Beneficiary would primarily manage the function where he would “develop and direct revenue forecasts and analysis for the worldwide organization, lead mergers and acquisitions, and oversee strategic pricing analysis.” Matter of G-, at 5. The AAO continues that the Beneficiary will be supported by six direct and three indirect reports who will “perform the routine duties associated with the FP&A function.” Id. Critically, the AAO finds that even though the Beneficiary directly supervises some of his subordinates, he still primarily manages the function. Fourthly, the AAO found that the Beneficiary will act at a senior level within the organization and with respect to the function, where he reported only to the CFO and CEO and worked closely with other senior executives and managers. Finally, the AAO found that the Petitioner clearly established that the Beneficiary will have discretionary authority over day-to-day operations where the Beneficiary will establish policies, goals, and oversee mergers and acquisitions.

Matter of G- helps to further define the contours of the function manager, and can be used as a guide to U.S. petitioners seeking to establish that the foreign worker meets the criteria under INA § 101(a)(44)(A). While Matter of G- involved a function manager, the AAO’s interpretation of what constitutes a function within an organization could arguably also be deployed to executives under INA 101(a)(44)(B) who can qualify for an L-1A visa by directing a “major component or function of the organization.”  The Petitioner in the instant matter was a large multinational corporation with over 8000 employees worldwide. The USCIS has historically been less receptive to function manager claims of smaller corporations. It may be more challenging for a smaller entity to establish that a function is a clearly defined activity and is core to the organization as well as to demonstrate that the manager is performing at a senior level. Still, petitioners should not fear making the argument that function managers of smaller corporations also meet the criteria. In Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that although size is a relevant factor in assessing whether a company’s operations are substantial enough to support a manager, “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity.” See also INA § 101(a)(44)(C) (“[i]f staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.”). Notwithstanding this acknowledgement, the Ninth Circuit in Brazil Quality Stones affirmed the USCIS’s denial of the L-1A petition by agreeing that the petitioner did not meet its burden in primarily managing the essential function rather than performing the day to day duties, and the small size of the entity probably undermined the manager’s ability to meet this burden. Subsequent to Brazil Quality Stones, though, the AAO issued Matter of Z-A- as an adopted decision, which has also been acknowledged in Matter of G-. It is now possible to demonstrate that the function manager is being supported by personnel in the foreign organization who perform the duties of the function, and this could be particularly helpful in a small organization with few staff in the U.S. The AAO took pains to note that INA 101(a)(44)(A)(iii) is worded in the disjunctive, requiring a function manager to occupy “a senior level within the organizational hierarchy or with respect to the function managed.” Matter of G-, at 6, note 15.  In a small organization, the function manager may establish seniority with respect to the function managed rather than within the organizational hierarchy. So long as petitioners clearly define the function, establish that the function is essential to the organization, explain how the beneficiary will primarily manage this function at either a senior level at the organization or with respect to the function managed, and that the beneficiary will act with wide discretion, the L-1A petition could stand a chance of being approved under Matter of G-.

Despite the economic benefits that accrue in fostering global corporate activities, the L-1 visa has been heavily criticized over the past few years, with opponents arguing that it threatens domestic employment and “floods the U.S with cheap foreign workers.” The Trump Administration has taken aim at the L-1 visa and has begun to publicly release data about companies who utilize the L-1 visa, increase site visits to companies that employ foreign workers, and has rescinded guidance instructing USCIS officers to give deference to previously approved petitions upon renewal.  Under President Trump’s Buy American and Hire American Executive Order, there is an emphasis on hiring American workers over foreign workers and for corporations to have their operations in America. But the reality is quite the opposite.  U.S. businesses can thrive, compete, prosper, create new jobs and benefit the American consumer through international operations, made that much easier with rapidly evolving internet technology and innovative organizational structures. It is thus refreshing that the AAO has recognized this reality by adopting Matter of G- and Matter of Z-A-. An adopted decision establishes policy guidance that applies to and binds all USCIS employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases.

The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions

USCIS’ current ferocious attack on H-1B petitions has been discussed here, here and here. Backed by the Trump administration, USCIS has openly declared war on H-1Bs. What is most frustrating, in my opinion, is not only the fact that there appears to be a concerted effort to find some way to reject each and every logical, rational, legal argument presented in response to one of the USCIS’ Requests for Evidence (RFE) but that it appears that no argument is too baseless for USCIS to present when issuing a denial of an H-1B petition. Case in point is USCIS’ rejections of expert opinions presented to bolster an employer’s argument that an H-1B position is classifiable as a specialty occupation.

As a reminder, in order to hire a foreign worker in a specialty occupation under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR 214.2(h)(4)(iii)(A)

After USCIS issued its first wave of attack on H-1B petitions filed and selected under the FY 2018 H-1B visa lottery claiming that any position where the H-1B worker would be paid an entry-level (Level 1) wage did not appear to be a specialty occupation, previously blogged about here, this groundless claim was met with mass pushback. Without a legal leg to stand on, USCIS has largely circumvented the issue of the wage levels (although still denying some petitions on that basis) by finding ways to deny the H-1B petition on a claim that the proffered H-1B position simply fails to qualify under any of the specialty occupation prongs listed in 8 CFR 214.2(h)(4)(iii)(A). In doing so, USCIS has been rejecting expert opinion letters written by qualified experts expounding on how and why the proffered position qualifies as a specialty occupation. The arguments presented in USCIS’ rejection of these expert opinions are quite maddening.

In an effort to demonstrate that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position under prongs 1, 2 and/or 4 of 8 CFR 214.2(h)(4)(iii)(A), H-1B employers quite frequently solicit the opinion of an expert. This expert is usually a college professor with a rich background in the specific specialty area, who is well-experienced in reviewing and evaluating academic and experience qualifications; and who has had an opportunity to observe and compare the abilities of numerous talented students in the specialty fields, and to analyze the ways in which the educational backgrounds of these students have been applied in the professional industry. Typically, this expert has also offered opinions and analyses of the academic and professional credentials of candidates in connection with university admissions and employment positions. The expert is usually also someone who has been engaged in the preparation of equivalency evaluations and position evaluations, primarily for use with connection to immigration-related procedures, for many years, and has prepared hundreds, sometimes over 1,000 such evaluations. Accordingly, the expert is typically someone well positioned to opine on whether or not a proffered position, in his/her particular specialty field, is a specialty occupation. Pre-Trump, USCIS gave such expert opinions the respect they deserved.

However, USCIS now seeks to discredit these opinions and what’s most frustrating are the rejections reasons presented. Here are a few that this author has had the opportunity to review:

  • The professor did not base his opinion on any objective evidence but instead restated the proffered position as provided by the employer;
  • The professor’s opinion is not supported by citations of research material;
  • The professor did not rely on a specific study of the employer’s organization. There is no evidence that the professor knew more about the proffered position than what the employer provided. There is no indication that the professor visited the employer’s business, observed its employees, interviewed them about the nature of their work, or documented the knowledge that they apply to their jobs.
  • The professor’s opinion does not relate the professor’s conclusions to specific, concrete aspects of the employer’s business operations so as to demonstrate a sound factual basis for the professor’s conclusions about the educational requirements for the proffered position.
  • Given the professor’s limited review of the duties of the position, based largely on the job descriptions furnished by you, USCIS gives less weight to the professor’s opinion.
  • It was held in Matter of Caron International, Inc. 19 I&N Dec. 791 (Comm 1988) that legacy INS, now USCIS, may in its discretion use advisory opinion statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information, or is in any way questionable, USCIS is not required to accept or may give less weight to that evidence.

With some of the reasons for rejection of an expert opinion, USCIS doesn’t make it clear whether they’re expressing doubt as to whether the duties of the proffered position will actually be performed as stated, i.e. whether they think the expert is relying on facts they find not credible, or whether they’re challenging the professor’s overall credibility as an expert. In any event, whatever standard is presently being used to reject the expert opinions, it is not the preponderance of the evidence standard.

Except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See e.g. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings) . . .

The “preponderance of the evidence” standard requires that the evidence demonstrate that the applicant’s claim is “probably true,” where the determination of “truth” is made based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, Matter of E-M- also stated that “[t]ruth is to be determined not by the quantity of evidence alone but by its quality.” Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof.  See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

Matter of Chawathe, A74 254 994 (Admin. Appeals Ofc. / USCIS Adopted Decision, Jan. 11, 2006).

Under the preponderance of the evidence standard, the adjudicating USCIS officer is supposed to approve the petition as long as it is “more likely than not” that their claim is true. USCIS’ recent denials rejecting expert opinions show that this standard is surely not being applied. As an expert, a professor may review the job duties of the proffered position and formulate his opinion based on his expert knowledge of the specialty field, which knowledge would have been explained at length in his opinion letter. The expert need not conduct a specific study of an employer’s organization. He need not visit an employer’s business or observe its employees. His expertise is typically set forth in his opinion letter and he need not provide the USCIS with copies or citations of research material.

Under the Federal Rules of Evidence, which are not binding on H-1B adjudications but may be a useful analogy, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Federal Rules of Evidence (FRE) Rule 702, https://www.law.cornell.edu/rules/fre/rule_702. Moreover, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. FRE Rule 703 https://www.law.cornell.edu/rules/fre/rule_703. Thus, even under the Federal Rules of Evidence, first-hand knowledge is not necessarily required even if the expert were testifying in federal court!  An expert can legitimately have an opinion about “facts or data in the case that the expert has been made aware of”, (such as the job duties of a proffered H-1B petition) not merely those which he has “personally observed”.  Immigration proceedings don’t follow the Federal Rules of Evidence, but rather the rules of evidence ought to be more relaxed, not stricter!

So why is USCIS suddenly stretching to find fault with these expert opinions? The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the Administrative Appeals Office (AAO) held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue. In that case, the AAO specifically pointed out that the director did not question the credentials of the experts, take issue with their knowledge or otherwise find reason to doubt the veracity of their testimony.  But when it comes to the denials of H-1B petitions, it is all too easy to claim doubt, to take issue with the expert’s knowledge and to coolly dismiss the expert opinion.

So are expert opinions still worth it? I would argue that they are. First, H-1B adjudications are still haphazard. There is always a chance that the opinion may be accepted. With the submission of any expert opinion it might be beneficial to include an argument on why the opinion ought to be accepted reminding USCIS of the applicable standard. While in most cases it may not benefit the H-1B employer or beneficiary in the short run, H-1B practitioners must continue to fight back. We cannot go gentle into that good night. A rejection of the expert opinion would lead to a conclusion that USCIS is setting a standard for expert opinions that is even higher than the Federal Rules of Evidence and that would contravene the applicable preponderance of the evidence standard. These denials need to be appealed to the AAO. If the AAO denies, the denial can also be challenged in federal court. In Fred 26 Importers, Inc. v. DHS, 445 F.Supp.2d 1174, 1180-81 (C.D. Cal. 2006) the federal court reversed the Administrative Appeals Office (AAO) where it failed to address expert affidavits and other evidence that a human resource manager position was sufficiently complex and rejected the H-1B because it was a small company.  The court held that the AAO abused its discretion when it did not take into account the expert opinion evidence presented by the petitioner to prove that the position required a broad range of skills acquired through a four-year university degree. It is only through continued pushback that these erroneous denials will come to an end.

Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention

By Cyrus D. Mehta and Sophia Genovese-Halvorson

On November 7, 2017, voters in New York will get an opportunity to decide whether to hold a Constitutional Convention in order to improve New York’s Constitution. The next opportunity to engage in this unique democratic experiment will arise in 2037.

The latest polls have shown that large numbers of voters want changes in New York’s Constitution that the legislature has failed to enact – e.g. an entitlement to healthy air and clean water, strict limits on the outside employment of legislators, independent ethics enforcement, an end to gerrymandering, making it easier to register and vote, closing campaign finance loopholes, term limits, and the expansion of immigrants’ rights and protections. At the same time, a poll is showing that New Yorkers oppose calling for the Convention.  Many reasonable people oppose voting for a New York Constitutional Convention in the age of Trump, dark money and Brexit. But when we run away from democracy itself out of fear, we will never be able to improve the rights of New Yorkers even beyond the US Constitution, including immigrants.  We have this opportunity only once every 20 years.

Some say the path forward is to replace New York’s elected representatives with others who will make the needed reforms.  However, as the late Governor Mario Cuomo observed, our elected representatives live in a cocoon of unaccountability and incumbent protection.   The system is designed to secure their reelection.  That system needs to be changed, and it will take an outside force to do it. Short of calling a Constitutional Convention, the only way to amend the Constitution, or to pass any law, is with the approval of the legislature. But as just explained, elected officials are in favor of maintaining the status quo.

There is also an understandable, but misguided, fear that certain protections, such as the labor bill of rights, the duty of the legislature to care for the needy, the right to a free public education, and the preservation of the Adirondack Park will be at stake. However, these are indeed rights and protections that were created through the Constitutional Convention process. The New York Times, while unfortunately coming out against the Convention, has called these concerns “overwrought.” The history of the Convention has not been one of stripping rights; rather, it has a rich history of creating radical advancements in human rights for all New Yorkers. The 1938 Constitutional Convention affirmed the duty of the state to aid the needy, promote public health, educate its children, and care for the physically and mentally handicapped. It is not as if a vote in favor of a Constitutional Convention would give a carte blanche to delegates to adopt any reforms of their choosing. The last state Constitutional Convention was in 1967, where voters ultimately rejected the proposed changes created by the Convention Committee. Then there is the claim that reform minded delegates won’t get elected and that the Convention will be “hack filled.”  The strikes us as having too little trust in voters who having called for a Convention to effect reform would supposedly turn around and elect people opposed to reform.  Voters in a progressive state like New York are much smarter than how they are perceived by opponents to the Convention.

The 2017 Convention Vote will again provide New Yorkers with the opportunity to continue the tradition of expanding rights in the New York Constitution, including the expansion of rights and protections afforded to immigrants. Albany had not been able to bring about any meaningful reforms for immigrants. Our “gerrymandered” elected representatives are so entrenched that only a criminal conviction, rather than votes, can dislodge them.  If we can broaden equal rights for all New York residents, including immigrants regardless of status, we will not need to rely on Albany that is in a perpetual logjam and stalemate. For example, New York’s Department of Motor Vehicles will be compelled to issue drivers licenses to all New York residents, regardless of immigration status, based on the broader equal protection clause in the New York Constitution that can be developed through a Constitution Convention.

Cyrus Mehta’s Op-Ed in The New York Daily News forcefully and eloquently advocates for expanded equal rights for all New York residents, including immigrants. It is reproduced below:

“The N.Y. constitutional convention immigrants need”

As the federal government threatens undocumented immigrants, New Yorkers have an opportunity to provide vital protections to those immigrants living in the state. On Election Day, voters can choose to convene a constitutional convention where the rights of those immigrants could be strengthened in ways that the federal government cannot erase.

It’s an opportunity we must not miss.

New York has always been a magnet for immigrants. The Statue of Liberty is here — not in Washington, D.C. — for a reason. Yet the state Constitution has never addressed the discrimination immigrants face.

It addresses only discrimination based on race and religion, not on country of origin or immigration status. Notably, it does not even prevent discrimination based on gender.

That’s a misfit for the character of our state. In 2015, more than 4.5 million foreign-born individuals constituted 22.9% of New York’s population. Only California has a higher count.

More than 3 million foreign-born immigrants live in New York City, more than in any other city in the world. They represent over 37% of the city’s residents.

Among these immigrants are an estimated 817,000 in New York State, including 575,000 in New York City, without valid federal authorization. These undocumented immigrants — who pay taxes, otherwise observe our laws, and enrich our communities — contributed $40 billion to New York’s economy and $1.1 billion to state and local taxes in 2015.

While the equal protection clause of the U.S. Constitution covers all persons within the jurisdiction of any state, the U.S. Supreme Court has applied a relaxed standard of review to discrimination against undocumented immigrants. As a result, laws depriving those immigrants of basic civil rights have been upheld.

An amendment to the state Constitution could prohibit such discrimination — and finally reflect the values of New York, where over the decades governors and mayors, Republican and Democratic alike, have consistently defended the rights of undocumented residents.

While it’s federal laws that mandate that undocumented immigrants be removed — subject to the executive branch’s priorities, which are at least in theory supposed to be focused on threats to public safety — the likelihood is uncertain. Even if the federal government initiates removal, proceedings can take years.

More importantly, immigration status is often uncertain. Immigrants can gain authorization to remain by falling in love with and marrying an American. More than 800,000 young undocumented people who came into the United States before the age of 16 received authorization to remain under Deferred Action for Childhood Arrivals — an Obama-era program.

President Trump has canceled DACA, but suggested in a tweet that “Congress can legalize DACA,” and added that, if not, he “will revisit the issue.”

Basic rights should not hinge on such vagaries.

People are undocumented because the federal immigration system, desperately in need of sensible reform, has not provided meaningful pathways to legal status for many who have family or jobs in the United States. As New York will continue to be home to undocumented immigrants, it is only fair that the state Constitution provide equal civil rights to all, regardless of immigration status.

Once such equal rights are established, they will preclude discrimination against New York residents based on their immigration status.

For example, New York would have to grant driver’s licenses to undocumented immigrants. That would help ensure that our roads are safe and provide a boon to those who need to drive in order to work or take their children to school.

Such an expanded protection against discrimination in our state Constitution could not be erased by the federal government.

In specific areas, federal law may preempt the states — but, under our federal system, state law governs most civil rights, such as the right to contract, to an education, to buy a home, to drive and more.

At a time when the federal government seeks to force state and local law enforcement to punish undocumented immigrants in ways that go beyond valid federal preemption and financial incentives, asserting New York’s sovereign lawmaking and enforcement rights is vital.

The first step in getting from here to there is voting yes on a constitutional convention.

(This blog represents the personal views of the authors and not necessarily those of any organizations that they may be a part of)

The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests

The Trump administration is deriving great pleasure in causing pain to people who wish to lawfully come to the United States and remain here lawfully. It has caused H-1B carnage as more H-1B visa petitions are being denied than ever before on legally baseless grounds.

Continuing to rub salt in the wound, the USCIS issued a Policy Memorandum dated October 23, 2017 that rescinds its prior guidance of deferring to prior approvals when adjudicating extension requests involving the same parties and underlying facts as the initial determination. Despite the deference policy, there were broad exceptions under which it would not apply if it was 1) determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there was new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

The new Policy Memorandum in rescinding the prior policy instructs adjudicators with respect to extension requests to thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The Policy Memorandum further reminds that the burden of proof in establishing eligibility is, at all times, on the petitioner under INA § 291 and criticizes the former deference policy for “appear[ing] to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.” The Policy Memorandum also vaguely notes that “[the prior policy] was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

The Policy Memorandum also rescinds a similar deference policy that was set forth in the USCIS L-1B Policy Guidance of 2015 with respect to L-1B extensions.  Under that policy too, adjudicators were reminded to defer to prior L-1B adjudications, unless the exceptions applied. This aspect of the L-1B Guidance is no longer applicable. The Policy Memorandum does not affect the deference given to prior favorable adjudications in the EB-5 program, as described in the EB-5 Policy Memorandum of 2013.

On the one hand, the Policy Memorandum rescinding deference does not change much as the USCIS was in any event not giving deference to prior approvals. The exceptions in deferring to prior approvals were broad. It was routine for an adjudicator to invoke that there may have been a material error in approving the prior petition, or there was a substantial change in circumstances, or that there was new material information that substantially impacted eligibility. It has always been the practice of most petitioners filing extension petitions, and the attorneys who represent them, to not take for granted that the USCIS adjudicator would give deference to the prior approval. Therefore, it has always been a best practice to provide substantial supporting information and evidence at the time of filing an extension as if it was being filed for the first time.

Still, on the other hand, the Policy Memorandum will incentivize adjudicators to issue unnecessary Requests for Evidence (RFE) that will not just cause uncertainty to petitioning employers but will cause havoc in the lives of foreign nationals. Many of these RFEs will likely be preludes to denials of extension requests on behalf of foreign nationals who have been living in the United States for many years, and were used to getting approvals on extension requests. The USCIS has been reading out entire occupations from the H-1B law that would have otherwise been easily approvable. The USCIS relies on the description of the occupation in the Occupational Outlook Handbook (OOH) to justify its denials. For example, with respect to Computer Systems Analysts, the OOH states that a “bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.” The USCIS has often used this as a justification to deny an H-1B petition filed on behalf of a Computer Systems Analyst, and now that the deference policy no longer exits, will be used even if the USCIS had previously approved the H-1B petition on behalf of the Computer Systems Analyst.

There are foreign nationals who have been patiently waiting for permanent residency for several years due to backlogs in the employment second and third preferences. They may be applying for yet another H-1B extension beyond the sixth year (and in many instances, this may either be their 10th or 12th year in H-1B status), and they risk the prospect of the USCIS suddenly pulling out the rug from under their feet. In prior years, many entrepreneurs received H-1B or O-1A/1B approvals through their own startups based on guidance in what used to be a very informative Entrepreneur Pathways Portal.  To this author’s dismay, that portal has been replaced with  basic plain vanilla information about different visas. Gone out of existence is the thoughtful guidance for entrepreneurs on how they can legitimately use H-1B, L-1 or O visas. Since an adjudicator need not pay deference to the earlier approval, and since the guidance on entrepreneurs no longer exists, extensions requests of a startup on behalf of its founder may also be subject to additional scrutiny and thus greater peril.

It is no coincidence that the Policy Memorandum was issued shortly after Francis Cissna was confirmed as USCIS Director on October 8, 2017. Although Mr. Cissna is highly experienced, having worked in various capacities within the DHS from 2005 until 2017, he was also detailed by the DHS to the Senate Judiciary Committee, specifically to the office of Chairman Chuck Grassley, R-Iowa, where he spent two years, from 2015 to 2017. It was during this time that Grassley wrote critical letters to the agency on immigration issues, many of which were authored by Mr. Cissna. Mr. Cissna also assisted the Trump presidential campaign on immigration issues. Trump’s stance against both legal and undocumented immigration as taking away American jobs is well known. This is now being translated into action on behalf of the president by people like Mr. Cissna and Steve Miller. The anti-immigrant movement, like the evil Galactic Empire in the Star War movie series, has struck back hard. The Policy Memorandum rescinding deference resembles one of those devastating attacks against good people ordered by Darth Vader on behalf of the Empire.

The prior deference policy was good policy as it was in harmony with regulations that clearly instruct that in extension H-1B, O-1, L-1 and P petitions, petitioners need not submit the same supporting evidence as they did when filing the new petition.

8 CFR § 214.2(h)(14), with respect to H-1B extensions, provides:

(14) Extension of visa petition validity. The petitioner shall file a request for a petition extension on Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. Supporting evidence is not required unless requested by the director. A request for a petition extension may be filed only if the validity of the original petition has not expired.

The same language indicating that supporting evidence is not required exists with respect to L visa extensions at 8 CFR 214.2(l)(14)(i); O extensions at 8 CFR 214.2(o)(11) and P extensions at 8 CFR 214.2(p)(13).

The Policy Memorandum acknowledges the existence of these regulations, and tries to clumsily skirt around them by instructing adjudicators as follows:

However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.

There is clearly tension between the Policy Memorandum and the regulations that do not require supporting evidence when filing extension petitions through the same employer. If a petitioner does not need to file any initial evidence, and the adjudicator is giving no deference to prior adjudications, how will adjudicators know what to do? Will they simply request an RFE in every case? Is that really consistent with a regulation explicitly stating that you do not need to file any evidence unless requested?  This could provide a legal basis to challenge the Policy Memorandum in federal court as violating the regulations that explicitly do not require supporting evidence. The regulations have more legal force than the Policy Memorandum, which appears to be rescinding the regulations. If petitioners who file routine extensions are faced with a blizzard of RFEs that ultimately lead to denials, they should challenge the Policy Memorandum in federal court.

The Policy Memorandum also states that it is consistent with the “agency’s current priorities and also advances policies that protect the interests of U.S. workers.” These priorities did not exist when the initial petition was approved. Like all the other restrictive polices implemented under the Trump administration, the rescission of the deference policy is to further Trump’s Buy American Hire American (BAHA) Executive Order. The BAHA Executive Order was also not in existence when Congress created the H-B, L, E, O or P visa provisions in the Immigration and Nationality Act. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a)(15)(L) that the purpose of the L visa  was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Even with respect to H-1B visas, Congress specifically required employers to make attestations with relating to wages with the Department of Labor, but they were not required to conduct recruitment of US workers unless they were H-1B dependent employers who did not have exempt workers. Therefore, if Congress desired the same purpose as enshrined in the BAHA Executive Order for the L, the H-1B (at least for non-dependent employers who do not have exempt employees), O or P visa, as it did for the H-2B visa, it would have said so. It is inconsistent not just with the regulations, but with the provisions in the INA to rescind deference because the USCIS wishes to adjudicate extension petitions consistent with BAHA.

This provides a further basis to challenge the Policy Memorandum in federal court, in addition to contradicting the above stated regulations, if it leads to denials of extension requests that were previously readily approved. The new Policy Memorandum appears to insist on deference to BAHA over a prior approval under the INA, which stems from Trump’s America First campaign slogan. BAHA deserves no deference as it is nativism in another name and has also been linked to Anti-Semitism in America’s not too distant past. Adjudicators must faithfully implement the plain meaning of the provisions in the INA without regard to Trump’s America First doctrine, which views immigrants as job stealers rather than recognizes their amazing contributions to the US. Immigration lawyers, like the Jedi Knights who ultimately prevail over Darth Vader and his evil empire, must be prepared to challenge adverse decisions stemming from the Policy Memorandum in order to restore fairness and balance in our immigration system.

Stopping H-1B Carnage

In his inaugural address, President Trump pledged to end what he referred to as “American carnage,” depicting the United States bleakly—as a “land of abandoned factories, economic angst, rising crime”—while pledging “a new era in American politics.”

To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program.  The H-1B visa has become the visible symbol of an immigration program that is thought to no longer protect American jobs and favors the foreign worker. Whether this is factually true is beside the point – it is good for optics and in furtherance of Trump’s campaign slogan of America First.   It does not matter that H-1B visas help American firms remain globally competitive, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. The H-1B visa is the low hanging fruit that the administration uses for target practice by shooting out a Request for Evidence (RFE), which is often a prelude to the denial.

Consistent with his view of American First, on April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order No. 13788. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

Although the administration has yet to influence any legislation in Congress or change rules, the impact of the EO has hit the H-1B visa program the hardest. It has been seen in the increased number of Requests for Evidence (RFEs) challenging the paying of Level 1 wages, even though employers have legitimately offered positions to entry-level workers under the H-1B visa program. Despite the wage challenges, a well-crafted response can overcome the suspicion that an entry-level 1 wage cannot be sustained under the H-1B visa. Anecdotal evidence suggests that the USCIS is approving cases after a level 1 wage challenge, although at the same time the USCIS challenges  whether the occupation qualifies for H-1B classification. Therefore, winning the level 1 wage challenge may be a pyrrhic victory if the USCIS reads out the occupation from the H-1B law. It is necessary to not just overcome the level 1 wage challenge, but also the challenge as to whether the occupation in question qualifies for H-1B visa classification.

At first, the Trump administration focused its attack on programmers. On  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references the relevant part on computer programmers in the DOL’s Occupational Outlook Handbook (OOH) that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questions whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.

It has now become evident that USCIS is not just challenging programmers, but relying on the OOH to attack other computer occupations, especially at the California Service Center. It does not matter whether the employer is paying a level 1 wage or higher.  For example, when challenging a Computer Systems Analyst, the USCIS uses the OOH as a basis to issue the RFE and then the denial. USCIS recognizes, in many unpublished AAO decisions, “OOH as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.” When justifying its challenge to an occupation, the USCIS cites the section in the OOH relating to education and training. For example, with respect to Computer Systems Analysts, it reproduces the following extract from the OOH (often underlining the parts USCIS thinks are relevant to support the decision):

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.

Education

Most computer systems analysts have a bachelor’s degree in a computer-related field. Because computer systems analysts are also heavily involved in the business side of a company, it may be helpful to take business courses or major in management information systems (MIS).

Some employers prefer applicants who have a Master of Business Administration (MBA) with a concentration in information systems. For more technically complex jobs, a master’s degree in computer science may be more appropriate.

Although many analysts have technical degrees, such a degree is not always a requirement. Many systems analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Some analysts have an associate’s degree and experience in a related occupation.

Many systems analysts continue to take classes throughout their careers so that they can learn about new and innovative technologies and keep their skills competitive. Technological advances come so rapidly in the computer field that continual study is necessary to remain competitive.

Systems analysts must also understand the business field they are working in. For example, a hospital may want an analyst with a background or coursework in health management. An analyst working for a bank may need to understand finance.

After citing the OOH section, the USCIS typically asserts that although a bachelor’s degree is often sufficient for computer systems analyst position, the OOH does not specify a specific educational background required for this occupation. USCIS then goes on to conclude that as the requirements appear to vary by employer as to what course of study might be appropriate or preferred, a Computer Systems Analyst cannot qualify for the H-1B visa.

A decision based on the OOH ought to be challenged. It is not appropriate to treat the OOH as the gospel truth, without regard to the evidence that was submitted by the petitioning employer, and to twist the meaning of the words in order to justify a denial.

The regulations define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations go onto provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation (and if the USCIS can underline what it believes is relevant, so will this author!):

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.  See 8 CFR §214.2(h)(4)(iii)(A).

It is clear from the plain meaning of these regulations that there is no requirement that a bachelor’s degree is always a requirement. Nowhere in the regulation does it require that a bachelor’s degree must “always” be a minimum requirement.  In fact, if the OOH uses terms such as “most” or “typically” or “common”, that should meet the requirement of the regulations.

USCIS also selectively cites portions from the OOH, and conveniently neglects to cite this concluding important paragraph in the education and training part of Computer Systems Analysts:

Systems analysts must understand the business field they are working in. For example, a hospital may want an analyst with a thorough understanding of health plans and programs such as Medicare and Medicaid, and an analyst working for a bank may need to understand finance. Having knowledge of their industry helps systems analysts communicate with managers to determine the role of the information technology (IT) systems in an organization.

The employer may rely on this section in the OOH to demonstrate that the computer professional is working in the niche business field, which could be health care or computer security. Therefore, the systems analyst would also need to have a thorough understanding of the business field, such as finance, besides being able to perform the generic duties of a systems analyst. By emphasizing the need for the computer systems analyst to be performing in a niche business area, the employer may have more of a legal justification for requiring a specialized degree in the field. When relying on prong 4 under 8 CFR §214.2(h)(4)(iii)(A), it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex. It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

The AAO in an unpublished decision in 2006 reversed a denial of an H-1B petition that was filed by an action film entertainment company on behalf of a foreign national who would be employed as a Film and Video Director. Although this is not a precedential decision, it can be used as a template to respond to a challenge when the USCIS relies on the OOH to deny that a specialty occupation is classifiable under the H-1B visa. In reversing the denial of the H-1B petition by the California Service Center, the AAO listed in great detail the foreign national’s proposed duties as Film and Video Director. The duties included interpreting the screenplay, communicating with actors and camera personnel, development of script with the producer, selecting locations, work out all camera angles, directing the actors and directing performance of all on-camera talent, to name a few.

The AAO concluded that despite the fact that the USCIS made reference to the OOH not mentioning that a baccalaureate education in a specific specialty is normally the minimum for entry into such positions, this position was sufficiently complex to require a bachelor’s degree. The AAO, therefore, relied on the 4th prong of the regulation, 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), analyzing that the position was so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The relevant extract from the AAO’s decision is worth noting:

Much of the work performed by the petitioner involves the transformation of live-action (photographed “reality”) into special effect animated digital media. That process utilizes “motion-capture,” a process involving computerized capturing and digitizing of live-action for the purpose of integrating this information into video game development and Internet applications. Motion- capture is an area of expertise that requires the use of specialized equipment and personnel. Further, the beneficiary is involved in virtually all areas of project production and development, including the editing of the final project. Under these circumstances, the petitioner has established the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4)

The AAO’s rejection of the official job description in the OOH is salutary, and petitioners should continue to convince the USCIS, and the AAO if there an appeal, that completely relying on the OOH is inappropriate, and it is also necessary to consider the complexity of the duties described by the petitioner in the H-1B petition. The AAO decision is striking because the OOH entry for the occupation of film and video director was more equivocal than computer systems analyst with respect to employers requiring a bachelor’s degree in the occupation. Petitioning employers should take great pains in fleshing out the duties of the position when filing an H-1B petition in showing that they are different from the standardized duties in the OOH. In the event that the OOH does not state that the occupation in question always requires a bachelor’s degree, it is imperative that the employer be able to justify that the position is complex and specialized to require a bachelor’s degree. It would also be helpful for the employer to show that it has hired others in the past with the same degree requirements, provide industry articles and other information about the minimum entry requirements into these occupations as well as descriptions of US college programs leading to degrees in the specialty occupation.

If an industry or occupation does not always require a bachelor’s degree, as confirmed in the OOH, and the employer is unable to establish that the position is more specialized and complex than the industry standard, the H-1B petition may fail. For instance, an H-1B petition filed on behalf of a violinist by a symphony orchestra did not succeed as the employer was unable to establish that the position always, rather than usually, required a bachelor’s degree. See Louisiana Philharmonic Orchestra v. INS, 44 F.Supp, 2d 800 (E.D. Lou. 1999); denial upheld after remand 2000 U.S. Dist. LEXIS 3331 (Mar. 18, 2000). Therefore, it is important to demonstrate that the duties are more specialized and complex than the norm, while keeping in mind that the argument should also be consistent with the fact that an entry-level wage, if that is the case, can also justify such duties.  Also, a “specific specialty” does not mean a degree in only one field.  A specialty occupation may justify several common or related degree fields.  If the OOH adds a few degree fields to a description, that does not mean than the position no longer qualifies for H-1B classification. Even when the minimum requirements are in two disparate fields, such as philosophy and engineering, then, as stated in an unpublished AAO decision, the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the particular position such that the ‘body of highly specialized knowledge’ is essentially an amalgamation of these different specialties.”

In the event that the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office (AAO). Once the appeal is filed, the USCIS Service Center which denied the petition has 45 days within which to conduct an initial field review and decide whether to treat the appeal as a motion to reopen and/or reconsider and approve the petition; or forward the appeal and the related record of proceedings to the AAO. If the AAO denies, the denial can also be challenged in federal court. If USCIS seeks to reinterpret H-1B provisions in light of the Buy American Hire American EO resulting in denials, those decisions ought to be challenged as they are contrary to the plain meaning of the statute as well as Congressional intent. There is nothing in the law or the regulations that clearly indicate that the government can wholesale deny H-1B classification for an occupation just because the OOH indicates that most employers, rather than all employers, require a bachelor’s degree. Similarly, there is nothing in the INA that suggests that an H-1B visa petition cannot be approved solely because the prospective H-1B worker will be paid an entry level wage. Indeed, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. The Trump administration cannot read out entire occupations from the H-1B law based on slavish reliance of the OOH. If the AAO does not relent, then perhaps a federal court will be able to stop the H-1B carnage.

Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’

Attorney General Sessions who has been hostile towards increased immigration and views the asylum system as a loophole for unauthorized entry into the US said in recent remarks that “over the years, smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”  He got even more animated as he went on his diatribe about how the credible fear interview process is being gamed by those who would otherwise be expeditious removed.  “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to clients to make false claims to asylum providing them with the magic words needed to trigger the credible fear process,” he said.

Sure enough, there have been a few lawyers who have filed fraudulent asylum claims and have deservedly faced punishment through criminal convictions. However, the vast majority of these supposedly dirty immigration lawyers are some of the finest people I have known who work with passion to ensure due process, fairness and justice.  Mr. Sessions was appropriately rebuked by AILA President Annaluisa Padilla who said,  “Attorney General Sessions chose today to deride the American asylum system, the vulnerable populations who seek safety here, and the immigration attorneys who work tirelessly to ensure due process is afforded to everyone,”

The law surrounding political asylum is extremely complex, and one who fears persecution needs competent representation – and a lot of representation in the asylum arena is pro bono. An asylum applicant’s chances improve exponentially when he or she is represented by a good lawyer. Indeed, Judge Katzmann who spearheaded a study in 2010, and who is today the chief judge of the Court of Appeals of the Second Circuit, found that detained immigrants with attorneys were 500 percent more likely to win their cases than those without.  Judge Katzmann is more on the mark than Mr. Sessions. Representing asylum applicants with bona fide claims is one of the most honorable things that a lawyer can do. It is part of the ethical duty of a “dirty lawyer” to establish that the client has a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. This is especially true when the government is always represented by skilled counsel, and in order to level the playing field, an applicant also deserves equally skilled representation.

Mr. Sessions seemed to aim his ire against lawyers who attempt to broaden  asylum based on theories under the membership in a particular social group ground. Establishing that an applicant belongs to a social group is a legal minefield, and even if the persecution is based on the applicant being a family member of the one who is targeted, more has to be demonstrated in order to qualify for asylum. A case in point in the Board of Immigration Appeals recent decision in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017). Although persecution on account of membership is a family has been recognized as a basis for asylum, the BIA in Matter of L-E-A explicitly confirms this but also requires a nexus and further holds that applicants whose claims are based on membership in a particular social group composed of family members must “demonstrate that the family relationship is at least one central reason for the claimed harm to establish eligibility for asylum on that basis.” Id. at 40. As the BIA explains, “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” Id. at 43-44.

In L-E-A the respondent was a native and citizen of Mexico whose father owned a store in Mexico City that sold groceries and general merchandise. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to grab him and put him in their car, but he was able to get away. The respondent left for the border and successfully crossed into the United States.

The BIA in L-E-A acknowledged that members of an immediate family may constitute a social group. There is a long line of cases that have suggested this, but L-E-A held so explicitly. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic . . . such as . . .  kinship ties.” Matter of C-A-, 23 I. & N. Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

The BIA could have concluded at this point, but then went onto state that there must also be a showing of nexus. In other words, a persecution claim cannot be established if there is no proof that the applicant or other members of the family were targeted because of that family relationship. If the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established asylum on this ground. The BIA provided an example of clear nexus based on family membership where the persecutor is seeking to harm the family members because of an animus against the family itself. An example given was the assignation of Czar Nicholas II, his wife and their five children after he abdicated the throne in 1917. This, according to the BIA, was a classic example, of the persecution based on family membership as one of the central reasons for the persecution.

Unfortunately, despite affirming that family was a social group, it did not work out favorably for the respondent in L-E-A. The BIA held that even if the persecutor harmed the respondent, but if it was done so as a means to an end, that in itself was insufficient to establish a claim, especially if the end is not connected to another protected ground. In L-E-A, according to the BIA, the cartel’s objective was to sell drugs in the store owned by his father, which is why they approached the respondent and harmed him. The central reason for the persecutor to harm the respondent was because the cartel wanted to increase profits by selling drugs in the store and there was no evidence to indicate that the persecutors had any animus against the family. The cartel would have gone after any family who owned a business there.

Jeffrey Chase , an astute blogger on asylum law, observed that the BIA missed an opportunity in L-E-A to simply affirm that showing persecution based on family was a sufficient nexus in itself. There was no need to also include a “means to an end” requirement. “Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself.”

Mr. Sessions would also cynically welcome the outcome in L-E-A, although he would have been probably happier if the BIA had not acknowledged family as a social group!  L-E-A provides an ability for the adjudicator to deny asylum claims based on family under a means to an end analysis, especially those fleeing Central America based on gang based violence. The Trump administration, consistent with Mr. Session’s remarks, has proposed restricting asylum claims of young people from Central America in exchange  for preserving DACA, in addition to many other onerous demands. In any event, the lawyer representing the asylum applicant has an ethical obligation to convincingly demonstrate that the family relationship was the central reason for the persecution. That could have been the outcome in L-E-A too, as it was reasonable to infer that the cartel went after the respondent because his father owned the store, but the lawyer must now take pains to distinguish the facts of her case from L-E-A. Indeed, the lawyer must show like in the case of the Romanovs after the Russian revolution that there was an animus against the family that caused the persecution. 

Contrary to Mr. Session’s assertion, there is a great need for an ethical lawyer to advance the best possible argument on behalf of his client in the hope that the law could change that would be consistent with the definition of social group in the 1951 Refugee Convention and the 1967 Protocol. The term “particular social group” was added as an afterthought and was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of a refugee. See Matter of Acosta, supra. Consistent with this view, the BIA in Matter of Acosta interpreted the phrase “persecution on account of membership in a particular social group” to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. Over the years, the Acosta definition of “immutable characteristic” has been qualified to also require that the group is “defined with particularity” and is “socially distinct.”  See Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014) (“Society can consider persons to comprise a group without being able to identify the group’s members on sight”) and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Even then, some Circuit courts have rejected this new definition.

If Mr. Sessions was not so blinded by his animus against asylum seekers, he may appreciate the lawyer’s role in interpreting and advancing the definition of a social group to protect people fearing persecution if they are unable to establish a nexus on account of race, religion, nationality or political opinion.  The challenge has become even greater after the Acosta definition was limited by also requiring that the social group is defined with particularity and is socially distinct.  This includes those who were unable to seek protection in their countries if they suffered domestic violence or because of their sexual orientation. The lawyers that Mr. Sessions derides are not exploiting loopholes but protecting people from harm, unjust imprisonment or death. If this is what Mr. Sessions means by a dirty immigration lawyer, then lawyers endeavoring to broaden protections for vulnerable people under our asylum system ought to feel extremely proud.

From Bad to Worse: Why We Should Not Let the Trump Administration’s Outrageous Immigration Demands Make the SUCCEED Act Seem Like a Reasonable Alternative

Following the Trump Administration’s decision in September to end the Deferred Action for Childhood Arrivals (DACA) program, President Trump suggested in a Tweet that Congress should “legalize DACA” within the next six months. There have been a number of proposals for how to address the status of the “Dreamers” who would otherwise be left by the termination of DACA without protection from removal, or work authorization, despite having lived in the United States since their childhood.

The Democratic Party’s leadership in Congress, including Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi, has supported passage of the bipartisan Dream Act of 2017, S.1615/H.R. 3440. The Senate version of the Dream Act is co-sponsored not only by leading Senate Democrats such as Minority Leader Schumer and Dick Durbin (D-IL), but also by several Republican Senators including Lindsey Graham (R-SC), Jeff Flake (R-AZ), and Cory Gardner (R-CO). The House version is co-sponsored by nearly all House Democrats as well as several Republicans: Ileana Ros-Lehtinen (R-FL-27), Mike Coffman (R-CO-6), Jeff Denham (R-CA-10), David Valadao (R-CA-21) and Joe Barton (R-TX-6).

The Dream Act of 2017 would allow conditional permanent residence for those who have been in the United States since before age 18, have been continuously present here for at least 4 years before the law is passed, lack any significant criminal record, and meet an educational criterion: applicants for conditional residence would need to be admitted to an institution of higher education, have obtained a high school diploma or GED, or be enrolled in an educational program leading to the attainment of such a diploma or GED. The conditions on permanent residence could then be removed following the attainment of a degree from an institution of higher education, at least two years of progress towards a bachelor’s degree, 2 years of honorable service in the U.S. Armed Forces, or at least 3 years of employment that comprised at least 75% of the time the applicant had a valid employment authorization, along with passage of the same civics and English tests required under section 312 of the INA for naturalization.

The Dream Act of 2017 is currently the subject of a discharge petition which could force a vote on it in the House of Representatives, if the signatures of a majority of the members of the House can be obtained. (The discharge petition technically applies to a rule that would allow the discharge of another bill from committee and its amendment with the text of the Dream Act of 2017, because of procedural issues relating to the required waiting period before a discharge petition can be filed.) Currently, 218 signatures would be needed to comprise a majority of the usually 435-member House because there is only one vacancy, although after the impending resignation of Representative Tim Murphy (R-PA) takes effect on October 21, there will be two vacancies, and 217 signatures will suffice for a majority until at least one of the vacancies is filled by a special election. So far, the discharge petition has 195 signatures. Of those, 194 signatures are from Democrats, and only one is from a Republican, Rep. Mike Coffman (R-CO).  Even the other four House Republican co-sponsors of the Dream Act have been thus far unwilling to buck their leadership and sign the discharge petition.

As the American Immigration Council has explained, various members of Congress have introduced variations on the Dream Act, some more restrictive and at least one more generous. Recently, the “SUCCEED Act”, S. 1852, sponsored by James Lankford (R-OK), Thom Tillis (R-NC), and Orrin Hatch (R-UT) attracted significant media attention. The SUCCEED Act was then overshadowed by the Trump Administration’s release Sunday night of a long list of extreme demands regarding other aspects of immigration law that the Administration wishes to see radically changed in conjunction with any resolution of the status of DACA recipients.

The Administration’s demands, which would do immense damage to the U.S. immigration system in a variety of ways, have already been condemned by, among others, immigrants’ rights groups and the Democratic leadership in the House and Senate. Minority Leaders Schumer and Pelosi were quoted by the New York Times as observing that “The administration can’t be serious about compromise or helping the Dreamers if they begin with a list that is anathema to the Dreamers, to the immigrant community and to the vast majority of Americans.” Former AILA President David Leopold aptly described the Administration’s demands as “read[ing] like a white supremacist wish list,” including as it does a crackdown on refugee children; gutting other aspects of asylum law; removing due process to allow people to be deported more quickly and detained indefinitely if their countries will not take them back; building Trump’s infamous border wall; penalizing local governments who decline to detain people at DHS’s request without probable cause; deporting purported “gang members” that US authorities have already shown a tendency to believe include anyone with a tattoo; and replacing the family-based immigration system with a purportedly “merit-based” one, among many other things.   There is a danger that compared to this list, virtually anything else might come to seem like a reasonable compromise position.

It is important, however, not to be lured by the aggressive atrociousness of the Administration’s recent wish list into mistaking the SUCCEED Act for a reasonable compromise. As the Center for American Progress and National Immigration Law Center have already observed, the SUCCEED Act, as well, contains deeply troubling features.

The most obvious problems with the SUCCEED Act relate to its treatment of the Dreamers themselves. Applicants would need to spend 10 years in conditional permanent resident status, and then another 5 as lawful permanent residents, before naturalizing—even if they qualified for what would otherwise be an exemption from the normal wait time before naturalization, such as that given to those in active military service during a time of hostilities under INA §329. Even upon becoming lawful permanent residents, they would be unable to sponsor family members.  And as conditional permanent residents, they would have to waive all rights to seek “any form of relief or immigration benefit under this Act or other immigration laws other than withholding of removal under [INA] section 241(b)(3), or relief from removal based on a claim under the Convention Against Torture” if they were found to have “violate[d] a term for conditional permanent resident status”.

The SUCCEED Act does not stop, however, at imposing onerous conditions on the Dreamers who are its ostensible subjects. It also provides that all future applicants for nonimmigrant visas (other than certain diplomatic visas and other very limited exceptions) will be required to waive all rights to contest removal, and all rights to seek common forms of immigration relief including adjustment of status, if the visa-holder “(1) violates a term or condition of his or her nonimmigrant status; or “(2) fails to depart the United States at the end of the alien’s authorized period of stay.”  That is, anyone who is thought to have exceeded the parameters of their work authorization, or overstayed their admission by a single day, could be removed without a hearing before a neutral adjudicator and without the right to apply for most forms of immigration relief.

Defenders of the SUCCEED Act might point out that similar restrictions, although not quite as onerous in regard to relief from removal, already apply to those admitted under the Visa Waiver Program. Visa Waiver admissions under INA §217, however, are only for visitors from certain qualifying countries who will be admitted to the United States for 90 days. Nonimmigrants admitted on visas, on the other hand, can legitimately stay in the United States for a much longer time, becoming integrated into American society in ways that it would be highly inappropriate to disrupt without even a hearing or the opportunity to apply for relief.

An H-1B nonimmigrant temporary worker can be authorized to remain in the United States for six years, and for substantially more time, pursuant to the American Competitiveness in the 21st Century Act (“AC21”) if an application for labor certification was filed more than one year before the expiration of H-1B status or an I-140 petition has been approved but adjustment of status is not yet possible. Given current immigrant visa number backlogs, many H-1B visa-holders, particularly those born in India or China, can remain in H-1B status for well over ten years pursuant to AC21.  O-1 aliens of extraordinary ability in the sciences or arts, E-1 treaty traders, or E-2 treaty investors are not subjected to any strict time limit, and can renew their nonimmigrant status for decades on end if they continue to qualify for it.

Such H-1B, O-1, E-1 or E-2 nonimmigrants may have lawfully resided in the United States for a decade or more, and perhaps had children here who are U.S. citizens. Under current immigration law, if there is an allegation that they have violated their status in some way, and the government seeks to remove them from the United States as a result, they can resist the charge before an Immigration Judge (unless they are stopped at an airport and subjected to expedited removal proceedings, although in the event this occurs after a brief trip abroad, federal court review may be available as I have previously discussed). In the event of minor, short-term overstays and status violations, such nonimmigrants may still be able to adjust their status under INA §245(k), which provides limited forgiveness for up to 180 days of unauthorized employment or status violation in the context of employment-based adjustment, or if they acquire an immediate relative who is a U.S. citizen. The SUCCEED Act would take away these options for future nonimmigrants, subjecting such long-term nonimmigrant residents to summary removal without eligibility for adjustment of status. By prohibiting such nonimmigrants from “contesting removal”, it could also prevent them from seeking cancellation of removal for nonpermanent residents under INA §240A(b) even if they have been in the United States for more than 10 straight years and have U.S. citizen children who would suffer exceptional and extremely unusual hardship if their parents were removed. (Although §240A(b) is not specifically listed among the forms of relief for which nonimmigrants would be ineligible, it would be impossible to seek it as a practical matter if one was removed without full removal proceedings pursuant to a forced waiver of the right to contest removal.)

It is one thing to say that a tourist or business visitor who comes to the United States for 90 days without a visa can be subjected to summary removal upon overstay or violation of that brief visit status. It is quite another thing to subject long-term legal residents to such treatment, and make them agree to it before they are permitted to come to the United States as a nonimmigrant worker or in some other long-term nonimmigrant status.  This lesser-known feature of the SUCCEED Act is another reason why it should not be enacted.

There is a saying that one should not let the best be the enemy of the good. Equally, though, one should not let the worst be the facilitator of the merely bad.  The SUCCEED Act may not be as horrible as the wish list recently published by the Trump Administration, but it is nonetheless bad enough that it should not be accepted as a supposed compromise.