Cyrus Mehta

Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence

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By Cyrus Mehta and Kaitlyn Box*

In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. On March 16, 2022, the Department of Homeland Security also announced the designation of Afghanistan for TPS for a period of 18 months.

Generally, TPS provides a temporary immigration status to nationals of countries fraught with armed conflict or other disasters. In order to be eligible for TPS, an individual must be a national of a country designated for TPS, have been continuously present in the U.S. since the date of the designation, have continuously resided in the U.S. since a date specified by the Secretary of Homeland Security, and not be inadmissible to the United States. In the case of Ukraine, the requirement that applicants must have continuously resided in the United States since April 11, 2022 will render many  Ukrainian nationals ineligible for TPS, as many individuals fleeing the war would not have arrived in the United States by that date. Individuals who are granted TPS receive a stay of deportation and temporary authorization to work in the United States.

The Uniting for Ukraine program that would allow Ukrainians to enter the US under humanitarian parole was announced on April 21, 2022. Thus, those who will get paroled into the US under Uniting for Ukraine will not be eligible for TPS.  However, several thousand Ukrainians who came to Mexico  after the Russian invasion in February 20, 2022 and got paroled into the US from the Southern border prior to April 11, 2022 will be eligible for TPS.

On the other hand, Afghans have been applying for  humanitarian parole prior to and  after the US withdrew from Afghanistan on August 30, 2021. A recent New York Times report states that of the 43,000 humanitarian parole applications received by USCIS since July 2021, the agency has processed less than 2,000. Of those processed applications, 1,500 were denied and 170 were approved as of February 11, 2022. While the humanitarian parole program for Afghans has been a disappointment, those who have been paroled into the US already prior to March 16, 2022 can apply for TPS.

Though it provides an important temporary form of relief for some nationals of countries experiencing a crisis, TPS is, by its very nature, temporary and does not provide foreign nationals with a pathway to permanent residence or citizenship in the United States. Thus, one must look for other alternatives for individuals who wish to seek permanent residence in the United States. Foreign nationals who have a U.S. citizen or lawful permanent resident relative may be able to file a family-based adjustment of status application, but some family preference categories are extremely backlogged. Skilled TPS recipients who can find a U.S. employer to sponsor them may instead be eligible to file an employment-based adjustment of status application. There are no backlogs for most TPS-designated countries, and spouses and minor children of the primary applicant may also file adjustment of status applications. In addition, foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa, which does not require employer sponsorship or a Labor Certification.

However, complications arise when a TPS recipient who entered the U.S. without inspection wishes to apply for permanent residence. Pursuant to INA § 245(a), an individual must have been inspected and admitted  or paroled into the United States in order to be eligible to apply for adjustment of status. A foreign national who was inspected and paroled into the United States would be eligible for adjustment of status, but an individual who entered without inspection would not. In a previous blog, we analyzed the Supreme Court’s decision in Sanchez v. Mayorkas, which holds that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. However, the decision seems to leave open whether a grant of TPS could “cure” a short lapse in the status of an individual who was inspected and admitted to the U.S., but later fell out of status. In her opinion, Justice Kagan gives the example of an individual who was out of status for a few months before receiving TPS, potentially implying that receiving TPS ends an individual’s time out of status, if this duration would otherwise have exceeded 180 days and rendered the individual unable to adjust under INA § 245(k). Additionally, the decision could imply that a grant of TPS could qualify as a “lawful nonimmigrant status”, which could assist individuals who would otherwise have been ineligible to file and adjustment of status application under INA § 245(c)(7).

While TPS is no doubt an important tool for aiding individuals who have fled Ukraine or Afghanistan, not all nationals of these countries will be eligible and a grant of TPS does not provide a path to permanent residence in the U.S. Thus, some TPS recipients, or individuals from TPS-designated countries who are ineligible, may be able to utilize employment-based immigrant visa petitions as a path to permanent residence.  Thus, one who was initially paroled into the US and then was granted TPS would be able to apply for adjustment of status if he or she became the beneficiary of an employment based I-140 petition after an employer obtained labor certification. The parole would fulfill the requirement  under INA 245(a) that the applicant have been inspected and admitted or paroled into the US. The subsequent grant of TPS would then confer “lawful nonimmigrant status” to that applicant and thus render him or her eligible for adjustment of status under INA §245(c)(7).  However, TPS recipients who entered without inspection will be ineligible to apply for adjustment of status. For individuals who were inspected and admitted to the U.S., though, but later had a lapse in status, a grant of TPS could render them again eligible for permanent residence.

There will be large numbers who will enter the US on humanitarian parole under Uniting for Ukraine but will not be eligible to receive TPS as they would have entered the US well after the cut off date of April 11, 2022. If a parolee is sponsored by an employer through labor certification, he or she will not be eligible for adjustment of status as parole is not considered a lawful nonimmigrant status under INA  § 245(c)(7).  This person will have to process at a US Consulate overseas after the I-140 petition is approved. Fortunately, Ukrainian nationals can have their cases processed at the US Consulate in Frankfurt rather than in Kiev. On the other hand, a parolee would still be able to adjust status under 245(a) as an immediate relative. Similarly, a parolee who becomes the beneficiary of an I-130 petition under a family preference category will also be able to adjust status as the requirement to be in “lawful nonimmigrant status” under 245(c)(7) only applies to beneficiaries of employment-based petitions and not family-based petitions. Indeed, one in parole status would be considered  to be in a lawful status under 8 CFR 245.1 (d)(1)(v) for purposes of adjusting status under a family-based petition but not an employment-based petition.

There are pathways for people who have been paroled to become permanent residents, and even more  pathways for those who have subsequently received TPS. Given the low unemployment rate and shortage of workers in the US, employers should look to not just be hiring Ukrainians and Afghans as parolees or in TPS status, but must also endeavor to sponsor people with parole and TPS for permanent residence through a labor certification, an I-140 petition and the filing of an I-485 adjustment of status application. Those who may not be eligible for adjustment of status because they are parolees can still proceed to a US Consulate for an immigrant visa following the approval of the I-140 petition.

The sponsoring of  workers based on their true worth skills would allow them to pursue better jobs and careers. Presently, people on TPS or parole may have employment authorization, but many are in jobs that may not match their skills. How many times has one been driven by a taxi driver who was a doctor or engineer in their own country or received groceries from a delivery person who may have previously been an accountant?   An employer who commits to hiring and then sponsoring a foreign national worker on parole or TPS based on their real skills creates a win-win situation for both.

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

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

 

 

 

Cyrus Mehta

I-485 Supplement J Should Not Be the Only Vehicle to Express Portability

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By Cyrus D. Mehta

It is well settled that noncitizens must have the requisite intent to work for their employers at the time of entry or adjustment of status under the employment second (EB-2) or employment third preferences (EB-3) unless they are exercising job portability under specific statutory provision. A noncitizen who does not have such a bona fide intent is potentially inadmissible under Section 212(a)(5) of the Immigration and Nationality Act (INA) or may be deportable after entry.

Noncitizens who never reported to the certified job after entering the US as a permanent resident have been found deportable. For instance, in Spyropoulos v. INS, 590 F.2d 1 (1st Cir. 1978), a Greek national with Canadian citizenship, was offered a job as a cabinet maker in Washington DC. and the prospective employer obtained labor certification, but was unable to obtain confirmation of the job offer prior to entering the US. Upon arrival in the US, the respondent worked instead in Massachusetts as a woodworker and shortly thereafter with yet another employer as a machinist. The court upheld the lower Board of Immigration Appeals (BIA) reasoning that the respondent should have known that there were problems regarding the offer of employment before he entered the US and further held that he was excludable under Section 212(a)(5) as he never had an intent to take up the certified job.

On the other hand, there are also a long line of decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso, 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoe lace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux, 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry).

Yet, INA Section 204(j), enacted by Congress in 2000 through the American Competitiveness in the 21st Century Act (“AC21”), provides job portability by leaving intact a labor certification or an employment-based I-140 petition when the I-485 adjustment of status application has been pending for 180 days or longer even if the noncitizen changes jobs provided it is in the “same or similar occupational classification” as the job described in the I-140 petition. AC21 turned the prior law topsy turvey in a positive way by allowing  noncitizens under special circumstances to change their intent even prior to obtaining permanent residence.

Section 204(j), thus, overrides prior law that required a noncitizen to have a bona fide intent to work for the employer who sponsored him or her. Section 204(j) is known as “portability” as it allows an I-485 applicant whose application has been pending for 180 days or more to change jobs within the same employer or even change employers provided it is in the same or similar occupation. 8 CFR Section 240.25(a), which was promulgated on January 17, 2017,  states that the applicant may affirmatively demonstrate to USCIS on Form I-485 Supplement J that  either the job offer by the petitioning employer is continuing or that the applicant has a new offer of employment through the same employer or a different employer, or through self-employment, in the same or similar occupational classification as the employment offered under the I-140 petition. Although 8 CFR Section 240.25(a) does not make it mandatory to submit an I-485J, the instructions on the form make it mandatory to submit the I-485J thus incorporating it  into the regulation (although incorporation of form instructions into a regulation without notice and comment make them vulnerable to court challenge under the Administrative Procedures Act).

Thus, if an applicant legitimately ports under a pending I-485 application, his or her intent to work for the sponsoring employer is no longer relevant. If on the other hand, the noncitizen did not have an offer to work in a same or similar job under Section 204(j), and the I-485 application is is approved, it does not appear that the applicant can exercise portability upon the acquisition of permanent residence. At this point, upon the approval of the I-485 application, the noncitizen must demonstrate that he or she had the intent to work for the employer. Not working for the employer, or reporting to work for that employer, if there was no porting prior to the adjudication is not an option. Section 204(j) portability thus seems to put those in a favorable situation prior to the successful adjudication of the I-485 application. If such persons did not have an offer of same or similar employment prior to the approval of the adjustment application, they must demonstrate they had an intent to work for the sponsoring employer. Portability’s paradox, as explained in a prior 2009 blog,  thus favors the person who was able to demonstrate a job offer in a same or similar job before adjudication of the I-485 application and not after. Of course, this is unfair for an applicant who has waited several years and worked for the same employer only to be required to work for the same employer after lawful permanent residency is granted.  Furthermore, Section 204(j) only benefits an I-485 applicant. If the individual is overseas waiting for a visa appointment at the US consulate instead of adjusting status in the US, he or she cannot avail of this benefit.

There are thousands of beneficiaries of EB-2 and EB-3 petitions whose I-485 applications have been pending even though the priority date of the I-140 petition under the Final Action Date in the State Department Visa Bulletin has become current. These applicants may also desire to change jobs either with the same employer or with a different employer in a same or similar occupational classification. If they are in the process of preparing and submitting I-485Js, and the USCIS approves the I-485 application, this applicant’s green card should not get jeopardized only because the I-485J was not received before the USCIS approved the I-485 application but they otherwise had job offers in a same or similar occupational classification. It does not make sense for this applicant to go back to the old job, which may not exist.  It is also  not good policy to rescind permanent residency only because the I-485J was not submitted before the I-485 application was approved. The USCIS should still be able to determine if the applicant ported under Section 204(j) based on other facts and circumstances even in the absence of the I-485J.

At this point, there is fortunately no anecdotal evidence that USCIS is initiating rescission proceedings if  permanent residency was granted prior to the receipt of the I-485J. However, naturalization examiners have been known to question applicants if they did not take up the position that was the subject of the I-140 petition. If there has been an allegation that the applicant did not properly receive permanent residency, it has been possible to convince a naturalization examiner that the applicant changed to a job in a same or similar occupational classification and thus was properly granted permanent residence. It has also been demonstrated that the I-485J was only issued on January 17, 2017 and so there was no notification requirement prior to that date. However, those who file for naturalization in 2022 will not be able to argue that there was no notification requirement in the 5 years preceding the filing of the application as the I-485J has been in existence for the past 5 years. If such a person did not file the I-485J, the naturalization application should not be denied on the ground that the applicant was not properly admitted as a permanent resident 5 years ago. This person should be  able to demonstrate on a case by case basis that the new job was in a same or similar occupational classification even if the I-485J was not submitted or acknowledged prior to the approval of the I-485 application.

A simple edit to the USCIS  policy manual would resolve this issue and put to bed any anxiety:

In any situation where a Supplement J was not approved or filed before the adjustment of status was granted, USCIS shall not rescind, nor shall it initiate removal proceedings to revoke, the legal permanent residence of any applicant who used section 204(j) so long as the new job was, in fact, in a same or similar occupation as the job for which USCIS approved the I-140. Where the requirement of a same or similar occupation is met, but no Form I-485 Supplement J was filed, USCIS shall consider an applicant for naturalization to have been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of law, for purposes of section 318 of the INA, notwithstanding the absence of the Supplement J.

This would be consistent with Section 204(j) as well as USCIS’s own regulation at 8 CFR § 245.25(a) that does not make the I-485J mandatory. The failure to file an I-485J should not jeopardize permanent resident status if an applicant ports to a new job so long it can be determined that it is in a same or similar occupational classification. The I-485J should not be the only vehicle for an I-485 applicant to express portability as it would be absurd if USCIS approves the I-485 application one minute before the I-485J is received at USCIS and thwarts one’s ability to port under INA 204(j). The I-485J was designed to provide a way for the applicant to notify the USCIS about portability, but it should not be mandatory, and ought not create peril and anxiety for the applicant. Now USCIS has also decided that filing I-485J is required with an interfiling request and this affects portability eligibility by starting the 180 day clock even though the I-485 has been pending for over 180 days. This is a ghost filing that is not supported in the INA or 8 CFR!

Congress did not intend to put  an applicant in a worse off position as applicants who filed their I-485Js prior to the  adjudication of the I-485 application. Congress by enacting AC21 intended to ameliorate the plight of applicants who were waiting endlessly for their green card and it would be inequitable, bordering on involuntary servitude, for such a person to maintain an intent to work for the sponsoring employer for years on end. There are other provisions in AC21 that provide similar relief, such as extending the H-1B status beyond the six year limit, and thus the entire purpose of AC21 was to provide relief to professional and skilled workers who are in the US here but caught in the green card backlogs. While the example of the grant of permanent residency without the submission of the I-485J starkly demonstrates the absurdity of the disparity when the person clearly had a job offer in a same or similar occupational classification, the same benefit should broadly apply to persons who got the green card after an endless wait as I-485 applicants but changed their intention after receiving it. It makes no sense to allow portability while the applicant is the subject of an I-485 application that has been pending for 180 or more days, but then restrict this benefit to one who obtains permanent residency and receives a job offer in a same or similar occupation shortly thereafter.

 

 

 

 

 

 

 

Cyrus Mehta

Immigration Relief for Ukrainian Refugees: What the United States is Currently Offering

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I conducted  a  one hour presentation on immigration relief for Ukrainians under the aegis of the Practising Law Institute on March 29, 2022, and spoke about options for Ukrainians in the US as well as for those who have fled Ukraine or considering fleeing as a result of the unprovoked Russian invasion. This presentation  should assist attorneys who wish to represent Ukrainians impacted by the invasion.  One can download video recording through this link https://www.pli.edu/programs/immigration-relief-for-ukrainian-refugees-what-the-united-states-is-currently-offering?t=ondemand

Below is the PowerPoint presentation with useful links. Since there are new developments regarding Ukraine every day, the information is current as of March 29, 2022.

[embeddoc url=”http://blog.cyrusmehta.com/andromeda/wp-content/uploads/2022/04/PowerPoint-Ukraine.finalv2.pptx” height=”420px” viewer=”microsoft”]

Cyrus Mehta

Using U.S. Immigration Law to Undermine Putin

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By Cyrus D. Mehta and Kaitlyn Box*

Since Russia’s invasion of Ukraine in late February 2022, there has rightly been much discussion of how to assist the Ukraine and its citizens. The United States’ immigration laws can plainly be employed to assist Ukrainian nationals who wish to seek refuge in the United States, including extending Temporary Protected Status for them. However, immigration can serve another important function, as well. One can harness immigration avenues that are already open to Russian citizens to welcome Russia’s “best and brightest” to the United States, thereby undermining Putin’s tyrannical regime. While immigration attorneys and advocates may not be able help courageous Ukrainians in the battlefield, we can help their cause by using our immigration law expertise in creatively finding pathways for Russians opposing Putin to come to the US.

In recent weeks, Putin has cracked down on those within the country who object to the war, targeting journalists who even refer to the operations in Ukraine as a “war” or “conflict”.  Many educated Russians who impose the war have been forced to leave the country out of fear of arrest or worse. With more and more companies and institutions withdrawing from Russia, many also find themselves concerned about the future of their career and ability to earn a living. Along with journalists, bloggers, and activists, I.T. professionals and other creatives have been leaving Russia in droves since the onset of the war.

Offering Russian nationals who oppose the war a safe harbor is a worthy objective in and of itself, but attracting Russian talent to the United States can serve another goal as well – undermining the Kremlin’s power and influence. The United States would undoubtedly benefit from an influx of Russian scientists, researchers, I.T. professionals and other skilled workers, and the Russian military and economy would suffer from the loss of this talent. Offering Russian nationals a streamlined process for immigration to the United States, as well as connecting them to employers and universities in the country, would assist in attracting top talent.

In the current absence of targeted programs for fleeing Russians, however, existing immigration options can help fleeing Russian national who wish to relocate to the United States. Russian nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa. In order to obtain an EB-1 visa, one must provide evidence of a one-time achievement of major, internationally-recognized award on the level of an Oscar or Pulitzer Prize, or meet 3 of the following 10 criteria:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

A noncitizen of extraordinary ability must also be able to demonstrate that she intends to continue working in her area of expertise. Importantly, no offer of employment or labor certification is required for an EB-1 visa.

Similarly, highly talented Russian nationals could consider applying for an O-1 visa, the nonimmigrant parallel to an EB-1 visa, as the O-1 visa can be effectuated more rapidly. Individuals with an extraordinary ability in the sciences, education, business, or athletics may be eligible for an O-1A visa, while those with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry may be eligible for an O-1B visa. A U.S. employer must file an O-1 petition on behalf of a foreign national of extraordinary ability, and must demonstrate that the beneficiary meets the relevant criteria. There are other visa options under immigration law, such as the H-1B visas and permanent residency in the employment and family based categories, although we have highlighted two that would be applicable to the “best and brightest.”

 Finally, Russian nationals who have publicly expressed opposition to the war, or even reported on it,  may also be eligible for asylum in the United States. Russia has already opened cases, both administrative and criminal, against people who have protested or written about the war.   As noted, on March 4, 2022 Russia enacted two laws, adopted and brought into force on March 4, that criminalize independent war reporting and protesting the war, with penalties of up to 15 years in prison. The laws make it illegal to spread “fake news” about the Russian armed forces, to call for an end to their deployment and to support sanctions against Russian targets. On March 23, 2022, Russia’s Parliament adopted amendments effectively expanding the ban on criticizing the armed forces to banning criticism of all Russian government actions abroad. Individuals who have a well-founded fear of persecution based on past persecution or a risk of future persecution due to their race, religion, nationality, membership in a particular social group, or political opinion may be eligible for asylum. They must be in the US or must be apply at a land border post or port of entry. If they come in through Mexico and apply at the Southern Border, they will be subject to Title 42 that has been used by both the Trump and Biden administrations to block asylum seekers out of fear that they will bring Covid-19 into the US. The Biden administration has exempted Ukrainians from Title 42 on a case by case basis, but Russians will be subject to Title 42.   Given the Putin regime’s recent increased sanctions on those who even discuss the war against Ukraine, Russian nationals who have openly opposed the invasion could potentially have a viable political opinion-based asylum claim.

The Biden administration has recently announced that the United States will accept up to 100,000 Ukrainian refugees, but U.S. immigration policy assist the victims of Russia’s invasion of the Ukraine in another way, also. By attracting highly skilled Russian nationals who oppose the war, the United States can both drain the Kremlin of key talent and shelter civilians who face danger in Russia through the effective deployment of US immigration policy. As the atrocities committed by Putin increase by the day, Russian nationals themselves, and the United States’ reception of these individuals, may be a key to achieving peace.

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

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

 

David Isaacson

Some Highlights of the EB-5 Reauthorization: CSPA Protection and How 245(k) and Concurrent Filing Combine to Create a New Option for Some Applicants Who Have Recently Dropped Out of Status

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The recently enacted Consolidated Appropriations Act of 2022, which was signed into law on March 15 after the House and Senate resolved their differences earlier in the month, reauthorized the EB-5 Regional Center program and made some other changes to the EB-5 program in the “EB-5 Reform and Integrity Act of 2022”, included as Division BB of the appropriations bill (at pages 1022 to 1061 of the PDF version of the bill).  Others have already produced summaries of the bill, such as one drafted shortly before the President signed the bill by Robert Divine of Baker Donelson and posted by Invest in the USA, and I will not here attempt an exhaustive list of all of the changes contained in almost 40 pages of statutory text, but there are a few highlights that seemed particularly worth mentioning.

Section 203(h)(5) of the Immigration and Nationality Act, as added by section 102(b) of Division BB (at pages 1026-1027 of the PDF version of the bill), provides additional protection under the Child Status Protection Act for some children of investors who would otherwise age out of their derivative status. If a child becomes a Lawful Permanent Resident (LPR) on a conditional basis through a parent’s investment, and the parent’s conditional resident status is later terminated because of, for example, failure to create the requisite number of U.S. jobs, there will be a one-year window after the termination during which the parent can file a new EB-5 petition and the child (if still unmarried) will continue to qualify as a child under the new petition even if then over age 21.

Likely of relevance to more people are two provisions of Division BB which can have a particularly powerful effect in combination: the addition of EB-5 petitions to those covered by INA § 245(k), and the addition of a new section § 245(n) allowing concurrent filing of an application for adjustment of status where approval of an EB-5 petition would make a visa number immediately available. Both of these are contained in section 102(d) of Division BB (at page 1027 of the PDF version of the bill).

Under previous law, EB-5 petitions and applications for adjustment of status could not be filed concurrently, and INA § 245(k) did not apply to EB-5 petitions. The former meant that it was necessary to file an EB-5 petition and wait for it to be approved before filing an I-485 application for adjustment of status, and the wait could be very long: current posted USCIS processing times indicate that an I-526 Petition by Alien Investor under the EB-5 program can take anywhere from 35 months to 71.5 months to adjudicate. During those three to six years, the investor/petitioner would have to either maintain status in the United States, or (if already here) leave the country. And when the time finally came to apply for adjustment of status, the inapplicability of section 245(k) meant that absent some rare exceptions, the investor/petitioner would have to prove that they had maintained status continuously, without even small gaps, and had never worked without authorization.  This is in contrast to most employment-based green card categories, where section 245(k) provides for limited forgiveness of up to 180 days of time out of status or employed without authorization since one’s last admission into the United States.

Under the former law, therefore, the EB-5 program was not a useful option for people who wanted to remain in the United States, but lacked access to a long-term nonimmigrant status or had briefly fallen out of status for whatever reason. With these amendments, on the other hand, it can be.

Imagine, for example, a well-off L-1A nonimmigrant manager or executive sent to open a new office in the United States who runs into trouble after a year because the sponsoring company’s business operation has not yet developed to the point that USCIS acknowledges it to be able to support his or her continued efforts as a manager or executive. If an L-1A extension is denied, and an EB-1C I-140 petition for a manager or executive is not a viable option because USCIS would deny it for the same reason, the previous law would not have allowed the nonimmigrant to remain in the United States while pursuing the EB-5 process after falling out of L-1 status.  An I-526 petition would have had no direct impact on the nonimmigrant’s status until years later.

Under the newly amended version of the law, however, assuming no previous time out of status or unauthorized employment since the last time that our hypothetical L-1 nonimmigrant was admitted to the United States, there would be a window of 180 days after the L-1 extension denial when the nonimmigrant could utilize the EB-5 process to remain in the United States. If the requisite investment were made and an I-526 petition were concurrently filed with an I-485 application for adjustment of status within that time, then the I-485 application would be protected by amended INA § 245(k).  (According to USCIS guidance, it would also be necessary for the applicant to refrain from unauthorized employment after filing and before receiving employment authorization; the legal correctness, or not, of that guidance is outside the scope of this blog post.) The applicant would then be protected from the accrual of unlawful presence by the pendency of the I-485 application for adjustment of status, and could be issued an employment authorization document (EAD) while the application was pending, pursuant to 8 C.F.R. 274a.12(c)(9).  Thus, while the I-526 and I-485 were pending, the applicant would effectively remain able to live and work in the United States, ultimately transitioning to LPR status if the petition and application were approved.

The above scenario is only possible when, at the time of filing, a visa number is immediately available in the EB-5 category without the need for an earlier priority date. However, as things now stand, the State Department’s Visa Bulletin indicates that this will be true in almost all scenarios, with only one exception. In the April 2022 Visa Bulletin, the non-regional-center EB-5 Final Action cutoff dates are Current for all countries, meaning that visa numbers are available for any priority date and so concurrent filing is possible. Although the regional-center EB-5 Final Action Dates were Unavailable at the time of Visa Bulletin publication because the Bulletin was first authored on March 10 before the Consolidated Appropriations Act reauthorized the regional center program (though there has since been an update referencing the reauthorization), the regional-center Dates for Filing were Current for all countries but China, and the same will likely be true of the Final Action cutoff dates next month.  For those born in mainland China and unable to exercise cross-chargeability based on birth of a spouse or (under certain rare circumstances) parents elsewhere, however, regional-center EB-5 numbers will not be available without a priority date much earlier than concurrent filing would produce: the Dates for Filing cutoff as of April 2022 is December 15, 2015. Thus, concurrent filing will not be possible for such investors born in China and pursuing a regional center investment.  It will, however, still be possible for them in connection with a direct investment.

The Act raises the minimum required investment thresholds, so taking advantage of this new opportunity will require a larger investment than was necessary in the past. For investments in Targeted Employment Areas (that is, either rural areas or areas of high unemployment) or particular infrastructure projects defined by a new provision in the bill, a minimum amount of $800,000 is now required, a significant increase over the previous $500,000 threshold for Targeted Employment Areas. For investments elsewhere, the requirement is $1,050,000, a more modest increase over the previous $1 million threshold. The amounts will be further adjusted for inflation in 2027 and every five years thereafter.  (See page 1024 of the PDF version of the bill.)

It is also important to note that only the Secretary of Homeland Security or “a designee of the Secretary who is an employee of the Department of Homeland Security” will be able to designate high unemployment areas for Targeted Employment Area purposes, while state or local officials will no longer be able to do so. (See page 1023 of the PDF version of the bill.)  This is presumably an effort to counter what current Senate Appropriations Committee chair Senator Patrick Leahy (D-VT) previously described as “gerrymandering” of purported high-unemployment areas by states. Thus, to take advantage of the lower $800,000 threshold, the investment projects of Regional Centers and others may need to be located in different kinds of places than they previously were.

The new law also indicates, at section 203(b)(5)(E)(ii)(I) of the INA as added by section 103(b)(1) of Division BB (at page 1027 of the PDF version of the bill) that in the regional-center context, DHS “shall prioritize the processing and adjudication of petitions for rural areas”.  Even true areas of high unemployment in an urban or suburban context, therefore, may be disfavored under the amended program relative to rural areas.

One other, more esoteric portion of the new law, which may be of interest primarily to attorneys (like this author) who practice federal litigation, is what one might call an anti-Darby provision. New section 203(b)(5)(P) of the INA, as added by section 103(b)(1) of Division BB (at pages 1049-1050 of the PDF version of the bill), provides for administrative appellate review of various USCIS decisions in the EB-5 context by the USCIS Administrative Appeals Office (AAO), and then states:

Subject to subparagraph (N)(v) and section 242(a)(2), and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a determination under this paragraph until the regional center, its associated entities, or the alien investor has exhausted all administrative appeals.

That is, one will be required to first appeal to the AAO before going to federal court. This is in contrast to the general rule set out by the Supreme Court’s decision in Darby v. Cisneros, 509 U.S. 137 (1993), which held that under 5 U.S.C. § 704, judicial review of an agency action ordinarily need not await an administrative appeal of that action unless the agency has both required an appeal and made the administrative action inoperative pending that appeal. However, Darby specifically recognized that an exception exists when an appeal is “expressly required by statute,” and Congress has chosen to create such an express requirement here in the new statute. In this context, therefore, unlike many other contexts, it will not be possible to bypass the AAO and seek review of a USCIS decision directly in federal court.  (The referenced exceptions in subparagraph (N)(v) and INA section 242(a)(2) relate to removal proceedings, where there would generally still be an administrative appeal required at least to the Board of Immigration Appeals, if not the AAO, before judicial review could be sought.)

As flagged by IIUSA, USCIS has indicated that it intends to provide “additional guidance” regarding the changes to the EB-5 program made by the Consolidated Appropriations Act, so we can expect that further details regarding the USCIS interpretation of the provisions mentioned above, and others, may become available in the future.  Even before such guidance comes out, however, it is already clear that things have changed in some interesting ways.

Cyrus Mehta

USCIS Contact Center is More a Source of Frustration than Assistance

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By Cyrus D. Mehta, Kaitlyn Box*, and Jessica Paszko**

The USCIS Contact Center purports to provide tools for checking case statuses online, correcting notices that contain mistakes or were never delivered, and connecting applicants to a representative for live support. However, the Contact Center is more often a source of frustration than assistance. We outline some of our firm’s experiences with the Contact Center, and provide suggestions for improving its services.

One common set of issues occurs when an attorney attempts to place a call or e-request on behalf of a client. USCIS refuses to speak with even the managing attorney of the firm if a different attorney has submitted a Form G-28. Difficulties arise when the attorney of record has departed the firm or is otherwise unavailable, and other attorneys are then unable to utilize the Contact Center to assist a client. Even when the alternate attorney on the case submits a Form G-28, the Contact Center often is unable to track the submission of  a new Form G-28 and refuses to speak with the alternate attorney.   In some instances, USCIS will speak with an alternate attorney if the client is also on the call. This arrangement, however, defeats the purpose of a Form G-28 by forcing the client verbally give permission for representation over the phone, and is highly inconvenient when an attorney cannot be physically in the room with a client or arrange a conference call.

Additionally, USCIS only allows certain interested parties to a case to utilize the Contact Center to make queries. Only the petitioner or an attorney/accredited representative can submit e-requests in connection with a Form I-129 or I-140 petition, for example. USCIS will not respond to requests placed by the beneficiary of such petitions, although the beneficiary may be more sensitive to delayed receipt notices or misspelling on approval notices, and in a better position to raise these issues to USCIS than the employer.

Further, the USCIS Contact Center is not always responsive to requests, even when they are placed by a recognized party. Our office has observed instances of receipt notices that contain errors failing to get corrected, even after multiples calls and e-requests from the attorney of record. When USCIS does not timely rectify errors of this kind and issues an approval notice still containing a misspelling, applicants are forced to file a Form I-824 and pay the considerable $465 filing fee to seek a correction. The processing time for an I-824 ranges from a few months to upwards of 24 months.

Delays in processing applications have become endemic. Applicants do not get an employment authorization document issued in time and can lose their job. Also, obtaining advance parole to travel takes several months. One can use the USCIS Contact Center to make an expedite request under its articulated criteria. Unfortunately, most expedited requests get denied even though they fit the criteria

The problems with the USCIS Contact Center have widely been observed. On February 28, 2022, 47 members of Congress wrote a letter to DHS urging it to make improvements to the Contact Center. See AILA, Forty-Seven Members of Congress Urge DHS to Make Improvements to USCIS Contact Center, AILA Doc. No. 22030300 (Feb. 28, 2022),  https://www.aila.org/infonet/urging-dhs-to-make-improvements-to-uscis-contact. Among the improvements suggested by the members of Congress were providing accurate and accommodating callback windows for customers submitting requests through InfoMod, allowing law firm staff other than the attorney of record to make requests through the Contact Center, making the criteria used to grant appointments through InfoMod public, and offering walk-in availability for emergency requests at local USCIS offices.

Notwithstanding its shortcomings, the USCIS Contact Center has facilitated positive outcomes for some individuals. The USCIS 800 number has been helpful in getting corrected notices sent to applicants, or in this firm’s experience, ensuring that beneficiaries to an approved I-140 receive copies of Notices of Intent to Revoke under Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017).

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

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

** Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

Cyrus Mehta

In Addition to Granting TPS to Ukrainians, the US Must Do More to Help Ukrainians and Others Outside the US Who Are In Trouble

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On March 3, 2022, the Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. Also, U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. Highlights are below.

Temporary Protected Status for Ukraine

Individuals eligible for TPS under the Ukraine designation must have continuously resided in the United States since March 1, 2022. According to reports, up to an estimated 75,000 Ukrainians in the United States could be eligible for TPS.

Ukraine’s 18-month designation will take effect on the publication date of a forthcoming Federal Register notice, which will provide instructions for applying for TPS and a work permit. TPS applicants must meet all eligibility requirements and undergo security and background checks.

Case-by-Case Help in Special Situations

U.S. Citizenship and Immigration Services issued an alert on March 4, 2022, about immigration help available on a case-by-case basis to those affected by “special situations,” including the invasion of Ukraine. USCIS provided a list of measures that may be available on a case-by-case basis upon request:

  • Changing a nonimmigrant status or extending a nonimmigrant stay for an individual currently in the United States. USCIS said, “If you fail to apply for the extension or change before expiration of your authorized period of admission, we may excuse that if the delay was due to extraordinary circumstances beyond your control”;
  • Reparole of individuals previously granted parole by USCIS;
  • Expedited processing of advance parole requests;
  • Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of petitions or applications, including employment authorization applications, when appropriate;
  • Consideration of fee waiver requests due to an inability to pay;
  • Flexibility for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to submit evidence or otherwise respond in a timely manner;
  • Flexibility if you were unable to appear for a scheduled interview with USCIS;
  • Expedited replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (Green Card), Employment Authorization Document, or Form I-94, Arrival/Departure Record; and
  • Rescheduling a biometric services appointment.

At least an estimated 1.3 million Ukrainians have fled their country since Russia invaded Ukraine in late February, with more following. More than half are in Poland, with others in Hungary, Moldova, Romania, and Slovakia. The rapidly escalating situation on the ground in Ukraine remains fluid, chaotic, and extremely dangerous.

It is unclear whether the United States will be taking in new Ukrainian refugees or offering asylum in addition to providing TPS for those already in the country. The US must develop a policy for Ukrainians to apply for refugee status at US Embassies and Consulates overseas. Alternatively, the US must also develop a policy under which Ukrainians would be able to apply for Humanitarian Parole, and once they come to the US, be able to apply for asylum. If Humanitarian Parole is made available, it should be granted readily. The experience with Afghans who applied for Humanitarian Parole after the US withdrawal last year has not been good as many have been denied on very subjective grounds. The US must allow Ukrainians, Afghans and others fleeing troubled regions of the world to be able to apply for Humanitarian Parole and readily grant meritorious requests rather than arbitrarily deny them. If the US withdrew from Afghanistan or  is not willing or able to militarily intervene to help the Ukrainians, then the least it can do is to provide relief to those fleeing harm by developing a generous  Humanitarian Parole policy. The US has been the guarantor of a liberal world order that is now under threat since the Russian invasion. One way to preserve this order is for the US to use immigration policy to preserve this ideal by enabling those fleeing authoritarian regimes to live and flourish freely.

Details:

Cyrus Mehta

Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?

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*By Cyrus D. Mehta and Kaitlyn Box*

We follow up on our blog series on requesting a transfer of underlying basis. Previous blogs on this topic can be found here and here.  Due to the exceptionally high number of EB-1 and EB-2 visas available this fiscal year, USCIS is urging applicants to consider switching to these preference categories, which will no doubt encourage more applicants to file a transfer of underlying basis request. As a background, many India born beneficiaries are the subject of two I-140 petitions in both the EB-2 and EB-2 preferences. These beneficiaries had employers file I-140s under EB-3 along with concurrent I-485 applications when the Dates for Filing in the October 2020 Bulletin advanced further than the EB-2 to January 1, 2015, and this trend continued under the November 2020 and December 2020 Visa Bulletins.   There has been a switcheroo since then, and sadly many who could have gotten their green cards when the EB-3 Final Action Date was January 1, 2014 lost out when USCIS could not adjust these applicants by September 30, 2021. The India EB-2 has advanced much further than the India EB-3, which is why many wish to request that the I-485 application filed with the EB-3 I-140 in October 2020 be transferred to the previously approved I-140 under EB-2. Under the State Department March 2022 Visa Bulletin, the India EB-2 Final Action Date is May 1, 2013 while the India EB-3 Final Action Date has retrogressed to January 15, 2012.  The EB-3 Dates for Filing has retrogressed to January 22, 2012.

AILA’s Case Assistance Committee recently posted a practice pointer on February 9, 2022, which we further analyze for the benefit of our readers. See AILA Doc. No. 22012600. The practice pointer discusses USCIS’ guidance on requesting a transfer of underlying basis, which requires a written request along with an I-485 Supplement J to the following address:

Attn: I-485 Supp J
U. S. Department of Homeland Security
USCIS Western Forms Center
10 Application Way
Montclair, CA 91763-1350

The USCIS guidance further states that “if a request to transfer the underlying basis has previously been submitted to a USCIS office prior to the issuance of this new guidance, USCIS indicates on its website that a new request should not be submitted again to the above address”. However, anecdotal evidence indicates that many are resubmitting their request for a transfer of underlying basis following this new procedure, even though they may have previously sent a letter previously requesting a transfer of underlying basis. The submission of an I-485J at least results in the generation of a receipt and an approval. This evidence may allow the applicant to further follow up on the request to transfer underlying basis.

Most significantly, AILA’s practice pointer also states that USCIS has indicated that filing a transfer of underlying basis request with an I-485, Supplement J restarts the 180-day clock for adjustment applicants who wish to port to new employment. USCIS states that “for purposes of portability, you would restart the portability clock on the day we receive the transfer request”. We are perplexed by USCIS’ response, and analyze it further herein.

INA § 204(j) states that “for an individual whose application for adjustment of status…has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed”. Thus, if an applicant’s I-485 has been pending for more than 180 days, it makes little sense that the portability clock should restart upon submission of an I-485J when the applicant is also requesting a transfer of underlying basis from EB-3 to EB-2. It should also be noted that many applicants are filing an I-485J for the first time when requesting a transfer of basis as the I-485J was not required at the time the I-140 under EB-3 was filed concurrently with the I-485 under the October 2020, November 2020 and December 2020 Bulletins.

The purpose of the I-485J is two- fold: Part 1.a. requires the applicant to confirm that the employer is offering a bona fide job that the noncitizen intends to accept upon receiving permanent residence, while part 1.b. can instead be checked to indicate that the noncitizen is porting to a new position that they intend to accept when the I-485 is approved. Hence, I-485J is required to confirm the existence of the job offer that is the subject of the labor certification and the I-140, or, alternatively, it is required to request portability under INA § 204(j). If the applicant checks the first box, confirming the validity of the existing I-140 job offer, the 180 -day portability clock should not start.

Many adjustment applicants may find that their job duties have changed slightly since their I-140s were filed, such that they now involve, for example, the use of updated technologies. One can take the position that the job remains the same and the applicant is not porting, so the 180-day clock should not restart if Part 1.a. in the I-485J is checked. What happens, though, if an applicant checks Part 1.b. when the job duties have changed slightly, even though the essence of the job remains similar and s/he is with the same employer. It makes little sense for the portability clock to restart in this situation. Surely USCIS would not expect an applicant to go back to the old job with the current employer if it were to approve the I-485 application in less than 180 days from the time thee request to transfer the underlying basis was made.

Other applicants who are requesting a transfer of underlying basis may want to move to a new job at an entirely different employer. When one is changing jobs and files the I-485J, and the underlying basis is not being changed, there should not be an issue. The portability clock should not start again. The I-485 has been pending for 180 days already and INA § 204(j) should trigger.

The situation becomes somewhat more nuanced, however, when the applicant also wants to port to a new job and transfer the underlying basis from EB-3 to EB-2. USCIS seems to suggest that the portability clock would restart in this situation, but the results would be perverse. Imagine the absurd scenario where USCIS approves the I-485 within 180 days, and an applicant would have to go back to the old job as the 180-day clock did not complete when requesting the transfer of underlying basis. The safest course of action for applicants in this scenario is to refrain from requesting a transfer of underlying basis. Thus, if the I-485 is associated with the EB-3 I-140, then it is best to port and stay in EB-3 rather than requesting a transfer of underlying basis to be on the safe side.

Relevant case law also illustrates the absurdity of USCIS’ position. In Matter of VSG, Adopted Decision 2017-06 (AAO Nov. 11, 2017), the AAO recognized that a beneficiary who has ported under INA §204(j) is an affected party for purposes of revocation of an I-140 petition, and such a beneficiary must be afforded an opportunity to participate in such revocation proceeding.  If the 180 day porting clock were to start again upon an interfiling request, that could de-recognize the ability of a beneficiary to participate in revocation proceedings in contradiction of a growing number of court decisions, see e.g. Khedkar v USCIS, Mantena v. Johnson and Kurupati v USCIS,  that have recognized that the beneficiary of the I-140 petition is within the zone of interests that the statute or regulation seeks to protect. Such a result would be nonsensical.

All of these scenarios make little sense. There should be no restarting of the 180-day portability clock, as INA § 204(j) requires only that the I-485 be pending for 180 days. Even if requesting a transfer of underlying basis latches the I-485 to the EB-2 I-140, that should not restart the portability clock. The transfer of basis should not be intertwined with I-485 portability.

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

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

 

Cyrus Mehta

Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria

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By Cyrus D. Mehta and Jessica Paszko*

Establishing extraordinary ability under the employment-based first preference (EB-1) visa category is neither an easy nor straightforward feat. In 2010, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which we wrote a blog about, muddied the waters when it tacked onto the EB-1 determination, a vague, second step analysis known as the “final merits determination” as part of the USCIS Policy Manual.  While the Fifth Circuit’s recent Amin v. DHS, No. 21-20212 (5th Cir. 2022), decision has provided further guidance, it has also grounded the final merits determination even deeper into the EB-1 framework.

As background, an individual can obtain permanent residence in the U.S. under EB-1 by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Olympic Gold Medal). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 C.F.R. § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

Initially, applicants must submit the required “initial evidence” demonstrating that they meet at least three out of the ten criteria. However, successfully demonstrating that three criteria have been met is not commensurate with an EB-1 approval. It is only the first hurdle in establishing extraordinary ability. The USCIS subsequently conducts the final merits determination “to determine whether, as a whole, the evidence is sufficient to demonstrate that the applicant meets the required high level of expertise.” The Fifth Circuit provides a helpful analogy, even if depressing, to illustrate this two-step process­­­­­­––the first step is akin to the hopeful college applicant submitting all requisite application materials to a dream university, and the second step is where the applicant receives a rejection letter despite complying with all of the university’s admission criteria.

Before the Fifth Circuit, was the case of Bhaveshkumar Amin, a project manager in the field of chemical engineering who has worked for oil companies, and contributed to novel inventions, including a portable sulfur-forming unit, modularized well pads, and a high-efficiency drill rig. It was undisputed that Amin satisfied three criteria: judging the work of others, holding a leading role in industry organizations, and earning a high salary relative to peers. But that was not so initially. The USCIS, when first denying the petition, only agreed that he met the fourth criterion relating to judging the work of others. Amin bypassed the Appeals Administrative Office (AAO) and directly sought review of the denial in federal district court under the Administrative Procedures Act that allows challenges of final agency decisions that are arbitrary and capricious. After filing the lawsuit, USCIS agreed to reconsider the denial and determined that Amin had met three out of the ten criteria but still issued a denial because Amin did not meet the final merits determination. Amin continued with his lawsuit but the district court found that the USCIS’s reasoning behind the denial was insufficient to render it arbitrary and capricious.

Amin appealed to the Fifth Circuit. As a preliminary matter, the Fifth Circuit agreed that Amin could bypass the AAO and directly seek review in federal court under Darby v. Cisneros, 509 U.S. 137, 146-47 (1993). In Darby v. Cisneros, the Supreme Court held that when the statute or regulation does not require administrative appeal then the agency’s decision constitutes a final agency action. 8 C.F.R. § 204.5(n)(2) does not require administrative appeal, and thus Amin’s failure to appeal to the AAO did not deprive the court of jurisdiction under the APA. As an aside, it is good news that the Fifth Circuit did not invoke the jurisdiction stripping provision for discretionary determinations, INA 242(a)(2)(B), to deprive Amin of jurisdiction because of the discretionary nature of the final merits determination as the Ninth Circuit did in Poursina v. USCIS with a challenge to a denial of a national interest waiver denial under INA § 203(b)(2)(1)(A). Unlike INA § 203(b)(2)(1)(A) where discretion is clearly embedded, INA § 203(b)(1)(A) does not so explicitly state that the granting of EB-1 is discretionary.

The Fifth Circuit also disposed of Amin’s challenge to the USCIS Policy Manual that it was not consistent with the regulation and that it was issued without notice and comment. The Fifth Circuit held that the Policy Manual’s guidance regarding conducting a final merits determination was consistent with the regulation as the regulation did not presumptively state that meeting the three criteria guaranteed an extraordinary ability finding. 8 C.F.R. § 204.5(h)(3) referred to “initial evidence” and also stated that applicants must submit evidence of “at least three” criteria. Furthermore, the USCIS Policy Manual was an interpretive rather than a legislative rule, according to the Fifth Circuit, and so it could be issued without notice and comment. It is unfortunate that the Fifth Circuit gave short shrift to Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994). In Buletini, the court held that once an applicant met three out of the ten criteria, the regulation shifts the burden to the government to explain why the applicant has not demonstrated extraordinary ability. The USCIS Policy Manual, seizing on the Ninth Circuit’s “final merits determination” in Kazarian, shifted this burden onto the applicant in elaborating a highly subjective second step analysis. Kazarian’s curse has gone beyond the Ninth Circuit and has now afflicted the Fifth Circuit.  

The Fifth Circuit then reviewed Amin’s objection to the USCIS’s determination that he did not prove a fourth criterion: original scientific or business-related contributions of major significance in the field. It is interesting that Amin pushed for a finding recognizing that he had met this fourth criterion since 8 C.F.R. § 204.5(h)(3)(i)-(x) only requires a satisfaction of three criteria. Amin’s petition has been denied because he did not meet the final merits determination, and it appears that getting recognition that he met the fourth criterion would potentially be used to argue that he met the final merits determination if he met one more criterion. Indeed, the Fifth Circuit’s decision, namely footnote 7 states: “we review the agency’s step one analysis because if Amin satisfies a fourth regulatory criteria, he has a stronger overall case for extraordinary ability at the second step.” Amin pointed to his contributions in designing the world’s first portable sulfur-forming units, the first modularized well pads in the Alberta Oil Sands, and a high-efficiency “walking” drill rig capable of being moved from one well pad to another without being disassembled.

The USCIS determined, and the Fifth Circuit agreed, that Amin did not meet his burden of proving that his designs were of major significance to his field. According to the Fifth Circuit, a letter of support provided by Amin’s employer, calling his design a response to an industry need, did not demonstrate how Amin’s first design had any impact on the field, beyond merely benefiting his employer. The China National Offshore Oil Corporation also provided a letter of support describing how it utilized Amin’s second design and how it adopted similar strategies to build modules in China but had proved unsuccessful at achieving the same efficiency. The Fifth Circuit called this Amin’s “best evidence” because it addressed the impact of his work beyond his own employer, but it still proved insufficient because it failed to show “widespread replication of the design.” While the USCIS’s denial did not specifically address Amin’s contributions to the third design, the drill rig, it did acknowledge the letter of support provided on Amin’s behalf, and according to the Fifth Circuit, any error on this point was harmless because Amin’s evidence did not show that anyone beyond his company used, or even attempted to use, the rig design. Ultimately, although Amin provided great value to his employers, the record did not demonstrate that either the quality or quantity of his work is indicative of sustained national or international acclaim or that his achievements have been recognized in the field of expertise.

It is unfortunate that the Fifth Circuit likened the EB-1 to a “genius” or “Einstein” visa. Although the INA requires the petitioner to demonstrate sustained national or international acclaim, it does not mean that one needs to be an “Einstein” to win an EB-1 approval, which incidentally was granted to Melania Trump when she was a well-known model, although not in the same league as a super model. Indeed, even Einstein may not have been able to meet three out of the ten criteria when he published his papers on Special Relativity and General Relativity in 1905 and 1915. Still, both Einstein in 1915 and Trump were deserving of EB-1 classification.  It is thus disheartening that the Fifth Circuit wrote: “If the three criteria Amin proved—leadership in an industry organization, a high salary, and peer review experience—are enough to automatically show that acclaim, then the ‘extraordinary ability’ visa will look less like an Einstein visa and more like a Lake Wobegon one.” The Fifth Circuit assuming that the EB-1 is an Einstein visa is as fictional as Lake Wobegon.  In fact, DHS also updated and broadened its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability who have recently graduated in STEM fields. The legal standard under the O-1A visa for establishing extraordinary ability is identical to the EB-1. For the first time, this update provides examples of evidence that might satisfy the criteria by those who have recently graduated or formed startups.

Despite the grim fate this decision casts on EB-1 petitions, there may be a possible glimmer of hope in the Fifth Circuit’s decision because it suggests in footnote 7 that successfully satisfying more than three criteria can bolster one’s case for extraordinary ability at the final merits determination stage. Many petitioners who file under EB-1 may satisfy more than three out of the ten criteria, and they must make every effort to have USCIS recognize more than three so that they may get a better shot at passing the final merits determination.

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

*Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

 

 

 

Cyrus Mehta

Frequently Asked Questions on Transferring the Underlying Basis of an I-485 application from an I-140 petition under India EB-3 to an I-140 under India EB-2

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Update – January 21, 2022

On January 21, 2022, USCIS released new guidance on requests to transfer the underlying basis of an I-485 to a different employment-based immigrant category based on another Form I-140. The guidance states that USCIS may, in its discretion grant a transfer of underlying basis if the following criteria are met:

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