Assembly Line Injustice: How the Implementation of Immigration Case Completion Quotas will Eviscerate Due Process

The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the EOIR, formally announced these metrics, which require IJs to complete at least 700 cases per year, have a remand rate of less than fifteen percent, and meet half of the additional benchmarks listed in the evaluation plan, which can be found here. As pointed out by the Association of the Bar of the City of New York, “this quota translates into each judge hearing testimony and rendering decisions almost three cases per day, five days per week, 52 weeks per year.” According to several retired IJs and Former Board of Immigration Appeals (BIA) Members, such quotas raise serious due process concerns and will result in a system that is less focused on justice and appearing “more like an assembly line.”

There are a number of issues with the EOIR case completion quotas. First, these quotas may force IJs to breach their ethical obligations. Specifically, the new completion quotas are tied to the financial incentives of IJs, where the performance evaluations affect IJs’ job security and eligibility for raises. IJs are not given life appointments and can be easily removed from the bench by the Attorney General if he finds them to not be meeting these performance thresholds. Thus, IJs may be encouraged to render hasty decisions in order to satisfy these case completion quotas and receive a good review (and thus a raise) instead of making decisions based on what is proper for the cases in front of them. Having such a financial incentive in the completion of a case arguably forces an IJ to violate 5 C.F.R. §§ 2635.401 to 2635.403,[i] which prohibits IJs from participating in proceedings where he or she has a financial interest. Additionally, IJs must be impartial in their decision-making under 5 C.F.R. § 2635.101(b)(8). It is hard for an IJ to remain impartial when pressured with impossible case completion standards especially when a case is meritorious but an IJ may not grant a continuance for legitimate reasons.

The case completion quotas also violate 8 C.F.R. § 1003.10(b), which provides: “In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgement and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” For example, an attorney may have been only recently retained by an asylum-seeker, and may request a continuance in order to gather and assemble evidence that is vital for the asylum-seeker’s claim. Under ordinary circumstances, an IJ would likely grant such a continuance as it would be considered proper under INA § 240(b)(4)(B) which affords a “reasonable opportunity…to present evidence” on one’s behalf. However, under the quota system, an IJ may feel pressure to deny the motion for continuance and may ultimately deny the asylum claim because the asylum-seeker was not afforded sufficient time to present their case. Such an outcome clearly violates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B) where the IJ is stripped of their independent decision-making authority where they feel pressured to quickly close out a case despite compelling reasons to grant a continuance, and where the asylum-seeker is not afforded a reasonable opportunity to be heard.

Another example is an individual placed in removal proceedings who is the intending beneficiary of a pending I-130 with USCIS. Typically, USCIS takes several months to adjudicate an I-130, and thus, attorneys for respondents file motions for continuance with the IJ until the USCIS has rendered a decision which will determine the respondent’s eligibility for relief from removal. Under the new case quota system, IJs will be less inclined to grant such continuances. This hypothetical similarly implicates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B), as described above. Moreover, the IJ’s denial of the continuance here would violate Matter of Hashmi, 24 I&N Dec. 785, 793-94 (BIA 2009) where the Board held that compliance with a IJ’s case completion goals “is not a proper factor in deciding a continuance request” where there is an meritorious pending I-130. We’ve previously blogged about AG Sessions’ stripping of judicial independence through his self-referral of  Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018), which can be found here.

The case completion quotas will also lead to an unprecedented number of BIA and federal court appeals. This would needlessly increase the BIA’s backlog and indeed affect the dockets of the federal court systems, resulting in the tremendous waste of taxpayer’s dollars where a proper decision could have been rendered at the IJ level. In addition, the number of remanded cases may exceed fifteen percent, and thus, the IJ would again fail to meet the performance metrics in their performance evaluation.

There is no denying that the Immigration Courts face tremendous pressure to address the ballooning backlog of cases. As of this writing, there are 692,298 pending cases in Immigration Courts across the country, with only approximately 330 judges to hear them. Advocates during the Obama-era consistently advocated for the appointment of more IJs to address the backlog. However, in the Trump-era, advocate are now skeptical of such a move where it is clear that this Administration seeks to deport as many people as possible. Indeed, the Department of Justice, headed by Jeff Sessions, has celebrated deportations under the Trump Administration. Such an emphasis on deportation, as opposed to fair adjudication of claims, undermines the independence and impartiality of IJs. The implementation of the DOJ/EOIR case completion quotas will undoubtedly lead to a rise in unfair hearings and erroneous deportations, which is exactly what this Administration wants. The appointment of Trump-supporting IJs will only exacerbate the problem.

For many years, the NAIJ has advocated for the creation of an Article I Immigration Court that is independent of the political whims of the Department of Justice. Under the current Administration, and in light of the newly imposed DOJ/EOIR performance quota metrics, these calls have never been more relevant. The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws. The case completion quotas will undoubtedly undermine the integrity of our immigration system and should be vigorously challenged by IJs and practitioners.

[i] The author acknowledges that 5 CFR § 2635.402 directly implicates 18 U.S.C. 208(a), a criminal statute. This author suggests that the EOIR case completion quotas may jeopardize an IJ’s ethical obligations where their financial interests are directly and predictably impacted by blind adherence to such arbitrary quotas. Criminal liability for these actions, however, goes beyond the scope of this article.

Reinterpreting the 90 Day Misrepresentation Provision in the Foreign Affairs Manual

As we previously blogged, the State Department abruptly amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

To reiterate, the updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule ”, the FAM is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

    1. Engaging in unauthorized employment;
    2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
    3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
    4. Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

A literal reading of the four criteria seem to suggest that the inconsistent activity resulting in a presumption of misrepresentation must have occurred in the absence of filing an application for change of status or adjustment of status that would otherwise authorize such an activity.  The way the FAM provision literally reads is contrary to how this has previously been understood, which is that if a foreign national filed an adjustment or change of status application within 90 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions upon initial entry. Prior to the introduction of the new FAM provision, it was similarly understood that filing a change of status or adjustment of status application within 30 days created a rebuttable presumption of fraud or willful misrepresentation. If such an application was filed more than 60 days later, there would be no such presumption.

Let’s carefully start our analysis with the fourth criterion under 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv):

Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30th day, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the fourth criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. According to the way 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) literally reads, which a DOS official confirmed recently at a conference,  the 90 day guidance is not implicated if the foreign national files a change of status or adjustment of status application even within 90 days and then seeks to engage in conduct consistent with the new status. The guidance is implicated, rather, if the foreign national engages in conduct that is inconsistent with their present status such as working while in B-2 status without first filing and obtaining a change of status that would authorize such work activity. In other words, filing a change or adjustment of status application within 90 days of entry ought not create a presumption of willful misrepresentation for a consular officer especially if it was approved by the USCIS.

This interpretation, while at first blush appears not to square with the third criterion,  9 FAM 302.9-4(B)(3)(g)(2)(b)(iii) (“A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”)  may be harmonized if it is read in conjunction with the fourth criterion at 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv)(Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment”).

This nuanced reading may run contrary to the way the presumption of misrepresentation has always been understood, which has meant that a nonimmigrant who entered on a B-2 visa, married a US citizen and applied for adjustment of status within 90 days would presumptively be found to have made a misrepresentation at the time of entry. Such a reading may not be universally accepted and obviously should not be relied upon until it gains more acceptance by all the agencies. It may never gain acceptance since the same language in current 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) existed under the old version of the 30-60 day rule too and was never interpreted in this way previously.   The USCIS has questioned adjustment applicants regarding their intention at the time of admission when they filed soon after entry into the US. Also, when one files a change of status from B-2 to F-1, the USCIS often questions when the applicant contacted the school from the time of admission in order to gage the applicant’s true intention and whether it was contrary to the purpose under the B-2 visa. Still, the literal reading ought to be invoked as a defense to those who have been accused of misrepresentation, but never engaged in inconsistent activity prior to filing an application for change of status or adjustment of status.

This reading also makes perfect policy sense. It makes little sense to penalize a student who has been living lawfully for years in F-1 status, and who after travelling abroad on a brief vacation marries his fiancée and files an adjustment of status application within 90 days. Under a literal reading of the FAM guidance, the presumption of fraud or misrepresentation is not implicated, although under the way it has been traditionally understood, it would be because the student unfortunately took this vacation abroad prior to his marriage and the filing of the adjustment application within 90 days. Moreover, the literal reading does not totally eviscerate the presumption of fraud or misrepresentation. The 90 day guidance would still apply to those who violate immigration laws. Thus, a person who enters as a tourist and starts working within 90 days without filing for a change of status to a nonimmigrant work visa status would implicate the rule when she next visits the US Consulate for a new visa. The prior activity would have resulted in a rebuttable presumption of fraud or misrepresentation, and she may be found inadmissible under INA § 212(a)(6)(C)(i). However, if this same person, like the violinist in our prior example, followed the law and started working only after the O-1B request for a change of status was approved, the 90 day rule ought not be implicated.

Furthermore, a person would not be able to get away when there is obvious evidence of a misrepresentation at the time of applying for a visa or upon admission. For example, if a person applies for a business visa supported by documentation to further a business purpose in the US, and upon entry, does not conduct any business activities whatsoever but instead seeks admission at a school and applies for change of status to F-1, that person would most likely be found inadmissible for misrepresenting that there was a business purpose to visit the US when there was none. A literal reading would only likely eliminate a presumption of misrepresentation where the person otherwise came to the US pursuant to the stated purpose and then applied for a change of status to perform another activity within 90 days.

The literal reading of the 90-day provision in the FAM also supports the dual intent doctrine. Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States upon the occurrence of certain conditions is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1). Thus, persons should not be penalized if they wish to enter the US to engage in activities that may be inconsistent with their initial visa provided they pursued activities consistent with the initial purpose and then successfully file change of status or adjustment of status applications that would permit them to pursue those other activities.

While our blog by no means should serve as a green light for people to file applications to change status or adjust status within 90 days, its purpose is to at least create awareness of another way of reading the 90 day provision that makes perfect sense as it encourages lawful conduct and awareness of a potential defense to those who are found inadmissible when they filed applications within 90 days to seek permission to engage in activities that may have not been consistent with their original visa.

 

Beware The Gap: USCIS’s Policy Changes Cause Headaches and Confusion for F-1 Change of Status Applicants

There’s never any good news coming from USCIS these days.  The agency’s treatment of applicants changing status to F-1 is another prime example of a confusing policy change that has no basis in law and regulation, and which severely hurts the U.S.’s ability to hold on to talented students.  To fully grasp the ridiculousness of modern day USCIS, we should take a trip back through relevant policy interpretations dating back to legacy INS.  We can start in April 2012 when the administration under President George W. Bush, frightened by the September 11, 2001 terrorist attacks, published an interim rule in the Federal Register.  You can see from the preamble to the interim rule exactly the kind of xenophobic policy the administration was trying to implement, which has only gotten worse today:

The terrorist attacks of September 11, 2001 highlight the need of the Service to maintain greater control over the ability of an alien to change nonimmigrant status once the alien has been admitted to the United States. This interim rule will allow the Service to fully review any request from a B nonimmigrant to change nonimmigrant status to that of full-time student before allowing the alien to enroll in a Service-approved school. The elimination of the ability of a B nonimmigrant to begin classes before receiving the Service’s approval of the change of nonimmigrant status is also consistent with the Act’s requirement in section 101(a)(15)(B) that a B nonimmigrant not be a person coming to the United States for the purpose of study.

The interim rule was effective upon publication, and was announced in a Memo from Johnny N. Williams, the Executive Associate Commissioner of the Office of Field Operations (Williams, Ex. Assoc. Comm. Field Operations, Requiring Change of Status from B to F-1 or M-1 Nonimmigrant Prior to Pursuing a Course of Study, HQISD 70/6.2.2 (Apr. 12, 2002)).  The new rule required a B-1/B-2 visitor to first obtain a change of status to F or M status before starting school.  If a visitor had already started school, the change of status application would be denied.  The rule became effective April 12, 2002 and the policy was codified in 8 CFR §214.2(b)(7).  Going further, the change of status application needed to be timely filed before the B-1/B-2 status expires and within 30 days of the start of school.  The latter requirement seems to stem from USCIS’s interpretation of 8 CFR §214.2(f)(5)(i), part of which states:

An F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.  The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study.

Then, a case brought before the Maryland District Court in 2011 challenged USCIS’s interpretation of this regulation.  In Youseffi v. Renaud, 794 F.Supp.2d 585 (D. Md. Mar. 11, 2011), the Plaintiff Narges Youssefi entered the U.S. in B-2 status and was granted a B-2 extension through December 27, 2007.  After receiving a request from her employer back in Iran that she stay in the U.S. and take classes to improve her English language skills, Ms. Youssefi decided to apply to take English classes, acquired an I-20, and listed November 3, 2008 as the start date for her classes on the Form I-20.  She timely filed a change of status application from B-2 to F-1 on June 25, 2008.  USCIS denied her application, reasoning that she had failed to maintain her current nonimmigrant status up to 30 days before the start of classes and was therefore ineligible for a change of status.  The Plaintiff appealed the case all the way up to district court.  The court in Youseffi grappled with USCIS’s interpretation of 8 USC §1258, 8 CFR §248.1(b), and 8 CFR §214.2(f)(5)(i) that a B-2 to F-1 change of status applicant must maintain active B-2 status up to the 30 days before the school program start date, and not just until the change of status application is filed.  First and foremost, the court found that the statutory language at INA §248 is inherently ambiguous, as it “implies that the USCIS may not grant a change of status to someone who has failed to ‘maintain’ his or her nonimmigrant status, but it does not define what it means to ‘maintain’ status.  It is unclear from the statute whether a nonimmigrant must continue to maintain her status only until she petitions for a change in classification, or whether she must continue to maintain it until USCIS grants her new nonimmigrant status.”  Youseffi v. Renaud, 794 F.Supp.2d 585, at 593.  But then the court looked at 8 CFR §248.1(b) where it found language that clarified the ambiguity in favor of the applicant:

Section 248.1(b) states that “a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service ….” 8 C.F.R. § 248.1(b). Under the plain language of the regulation, an applicant may be eligible for a change of status even if she failed to file before her previously authorized status expired. The ultimate decision of whether to excuse the applicant’s lapse lies within “the discretion” of the USCIS.

Id.  (Emphasis added).  The court concluded that 8 CFR §248.1 allows USCIS to use its discretion to excuse applicants who apply for a change of status and whose prior status remained valid at the time of filing but later expired.  Id.  The court went on to review this same regulation against 8 CFR §214.2(f)(5)(i), and found that the latter regulation is silent on situations like in Youseffi where the applicant’s prior status expired more than 30 days prior to the program start date.  It then remanded the case to USCIS which the court found could excuse a change of status applicant who filed while the prior status is valid but which later expired.

Since Youseffi, however, no higher federal court has addressed USCIS’s interpretation of these regulations.  And in the last few years, USCIS’s views have moved further away from a reasonable plain meaning understanding of the statute and regulations.

Case in point, a few years ago, immigration attorneys began reporting USCIS denials of applications to change status from B-2 to F-1 where the applicant had timely filed while his prior status was valid, the program start date indicated on the Form I-20 was within 30 days of the expiration of the underlying status, but then because of lengthy processing times at USCIS service centers, the school’s Designated School Official (DSO) had to defer the program date in SEVIS.  The effective result was that although it was still within 30 days of the initial start date listed on the Form I-20, the applicant’s prior status had expired more than 30 days before the new program start date.  There were so many incidents of this that the American Immigration Lawyers Association (AILA) was prompted to send a letter to Leon Rodriguez, then-Director of USCIS and the agency’s Chief Counsel, Ur Mendoza Jaddou.  The letter, dated December 15, 2016 (and available here for AILA members), explained how USCIS was erroneously denying these applications by misinterpreting 8 CFR §248.1(b), 8 CFR §214.2(f)(5)(i), and Form I-539 instructions to require B-2 to F-1 change of status applicants to maintain their B-2 statuses up to 30 days before a new program start date even though the original start date was only deferred because of USCIS’s own extremely lengthy processing times.  AILA’s letter again reasoned that USCIS’s interpretation of these regulations went far beyond what they state, and that in fact nowhere in the regulations does it state that change of status applicants have to maintain their prior status so that they remain in that prior status until 30 days before the program start date.  AILA pointed to the fact that even the court in Youseffi cited Unification Church v. Attorney Gen. of the U.S., 581 F.2d 870, 877 (D.C. Cir. 1978) (stating, in dicta, that it “appears to be the position taken” in 8 CFR §248.1 that “an applicant nonimmigrant must continue to maintain his ‘status’ only until he petitions for a change in classification,” not “until his petition is granted”); and Salehpour v. INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“The plain regulatory language [of section 248.1] allows an applicant to file for change of classification up to the last day of his prior authorized stay.”).  Moreover, USCIS practice had been to routinely approve these types of change of status applications, and the I-539 instructions even stated that a change of status applicant “must maintain [his] current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or [the] requested change of status may not be granted.”  (Emphasis added).  The I-539 instructions clearly state that USICS is to rely on the date listed on the I-20 when adjudicating the application, and not a deferred start date that’s listed by the DSO on SEVIS.  AILA then argued that “bridge petitions” that the applicant would file to extend the B-2 even while the change of status to F-1 is pending are not only cost prohibitive, they cause confusion to applicants, force USCIS to adjudicate unnecessary applications, which in turn lengthen already long processing times, and additionally creates issues around the “intent” of the applicant who already filed to change a status from temporary visitor to temporary student and then has to file an extension of a temporary visitor status.  Moreover, at the time of the letter, AILA’s members found that USCIS’s bridge petition requirement for B-2 to F-1 change of status applicants was inconsistently applied, where some B-2 extension applications were denied because it went against B-2 intent, or returned because they were not required.

Seemingly in answer to all the complaints from stakeholders about the inconsistent application of the bridge application requirement, USCIS decided in April 2017 to formalize the new policy.  USCIS updated its website to formally require B-1/B-2 to F-1 or M-1 change of status applicants whose status will expire more than 30 days before the initial F-1 or M-1 program start date, or whose program start dates had to be deferred because of USCIS processing times, to file a second Form I539 requesting an extension of the B-1/B-2 status and pay a separate fee for that application.  By the way, if the change of status application takes so long that the first extension time runs out, the applicant must file another extension of status application with another fee, and keep going until the original change of status has been approved.

Then, to cause even more confusion, and in a completely unhinged and callous move, USCIS decided to apply this “new” policy to pending B-1/B-2 change of status applications that were filed before USCIS posted its guidance.  How do we know?  Because USCIS issued Requests for Evidence (RFEs) to these applicants!  In these RFEs, USCIS states that the applicant’s underlying B-1/B-2 statuses had expired and that the F-1/M-1 start date had been deferred to a date more than 30 days after the B-1/B-2 status expired.  And by virtue of the new policy, which again was posted after the change of status application had been filed, USCIS requests evidence through the RFE that either the applicant submitted the additional Form I-539 application to extend her B-1/B-2 status, or if the applicant had not (and let’s again recall that the policy was adopted after the application was filed, and there is no indication on the USCIS website that it would apply retroactively to pending applications), that the applicant file the new I-539 now and ask USCIS to excuse the late filing pursuant to 8 CFR §214.1(c)(4).

Let’s recap what we have so far.  USCIS decided in April 2017 that it will require B-1/B-2 extension of status applications filed even if an application to change status is already pending, and is applying this policy to already filed change of status applications, and all without issuing a formal policy memorandum or undergoing a normal notice and comment period.  USCIS merely posted new “guidance” on its website, provides no statutory or regulatory basis for this change, and does not explain what happens to the B-1/B-2 extension of status applications once they are filed.

The result of USCI’s failure (or perhaps refusal) to undergo a formal notice and comment period for a sweeping policy change is that applicants and other stakeholders are simply not well informed about USCIS’s requirements, usually to detrimental and often disastrous results.  What had started off as USCIS’s formalization of its policy toward B-1/B-2 to F-1/M-2 change of status applicants has recently expanded to affect all other nonimmigrants who want to change status in order to remain in the U.S. to study.  USCIS’s original website posting of the new “guidance” referred exclusively to B-1/B-2 status holders changing status to F-1 or M-1 (the original website post has been preserved by AILA, and can be viewed here by members).  A careful review of the most recent USCIS website discussing this policy, which was most recently updated in February 2018, shows that the policy has been extended to every nonimmigrant whose status will expire more than 30 days before the F-1 and M-1 program start date.  There is no specific mention of B-1/B-2 status holders.  The full relevant language from the website is pasted here:

What if I Have a Gap in Status?

If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”). For most people, you will need to file a separate Form I-539 to request to extend your current status or change to another nonimmigrant status, in addition to your other Form I-539 application to change to student status. If you do not file this separate request prior to the expiration of your status, USCIS will deny your Form I-539 request to change to F-1 or M-1 status. Please continue to check the USCIS processing times while your Form I-539 change of status request is pending to determine if you need to file a request to extend or change your nonimmigrant status.

  • Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before yournew program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.

Because extending or changing nonimmigrant status to bridge the gap and changing to F-1 or M-1 status are two distinct benefits, you must pay a separate filing fee for each request. See the User Fee Statute, 31 U.S.C. § 9701.

How does this expanded policy look in practice?  Let’s say that an H-4 child of an H-1B worker is going to age out because she is turning 21.  Meanwhile her parents intend to maintain their H-1B and H-4 statuses, extending them in 3-year increments, so that they can remain long-term in the U.S. until the H-1B parent’s I-140 priority date is current and they can adjust status to lawful permanent residents.  It bears noting that the reason why our H-4 applicant’s parents are still in H-1B and H-4 statuses and need to extend them in 3-year increments under §104(c) of the American Competitiveness in the 21st Century Act is because they are caught in the never-ending green card backlogs under the employment-based second (EB-2) or employment-based third (EB-3) preferences and by virtue of being born in India or China.  Otherwise, the parents, along with our H-4 applicant who was their minor child, would have long ago obtained their green cards and the H-4 student would not have had to go through this ordeal.  Our H-4 student has already been enrolled in college and has been otherwise maintaining her valid H-4 status.  Following prior USCIS guidance and the guidance of her DSO, she decides to timely file a change of status application to F-1 so that she does not have to interrupt her studies by applying for an F-1 abroad and then returning to the U.S.  As most stakeholders know, I-539 applications for a change of status notoriously take a long time for USCIS to process.  So she waits, even after her H-4 has expired, thinking that she is in a “period of stay authorized by the Attorney General” as she had timely filed her change of status application.  And then bam!  She is hit with a denial.  Why?  Because she did not maintain her status or seek a change of status to another nonimmigrant category so that she could be “in status” within 30 days of the program start date indicated on the I-20.  Yes, folks.  USCIS now requires even H-4 nonimmigrants applying to change status to F-1 to apply to change status to B-1/B-2 in order to stay “in status” until 30 days within the program start date.  And USCIS does not even bother with issuing RFEs requesting proof that the applicant has maintained status until within 30 days of the program start date.  The Service will simply issue a denial and it’s up to the applicant now to determine whether she can stay in the U.S. as her unlawful presence started tolling when the denial was issued, and whether it is even possible to appeal this nonsensical decision.

What is particularly irksome about USCIS’s policy changes is that the usual notice and comment period would have, even if brief, provided some notice to stakeholders.  But here, USCIS simply changed a bit of language on its website and everyone is expected to know the new requirements, abide by them, and live with harsh results for failing to follow them.  Empirically, we are aware that school DSOs were not given any notice or guidance by USCIS on this new policy and its expansion to other nonimmigrant categories.  Thus, our lowly applicant who relied on the advice of the DSO would not have known to request a change of status to B-2 to bridge the gap until her change of status to F-1 is approved.  She is instead punished with a harsh denial, the inability to continue her studies, and potentially having to leave the U.S. in order to apply for an F-1 abroad which comes with its own set of issues, not the least of which could be questions over the applicant’s nonimmigrant intent and problems with demonstrating ties to her home country if she has been living in the U.S in H-4 status since she was a young child.

There is already a brain drain occurring in the U.S. thanks to the Trump administration’s xenophobic policies combined with the EB-2 and EB-3 backlogs.  Fewer students want to come to study in the U.S.  It’s harder for companies to hire highly educated and skilled foreign workers.  The backlogs in the EB-2 and EB-3 preferences are also causing skilled immigrants from India to leave the U.S. for countries like Canada in total desperation.  Foreign born entrepreneurs are facing difficult challenges starting their businesses here in the U.S.  One prime reason that people have upended their lives to come to the U.S. is to pursue the “American dream” for their children – to give them a chance to obtain excellent education and take advantage of the economic, social, and cultural opportunities in the U.S.  This dream turns into a nightmare when the child on the H-4 visa ages out and is unable to seamlessly change status to F-1.  No immigrant parent wants his child to be in a worse off situation than him because of our Byzantine immigration system.  And now we will see even fewer nonimmigrants try to attend school because of USCIS’s new, cumbersome, and costly policy discussed in this blog.  Worse, if USCIS continues to issue new policy changes without a notice and comment period, we will likely see more confusion, more heartbreak, and more completely nonsensical and costly requirements all without the barest minimum in explanation from our government.  Beware the gap, indeed.

Making The Law Up As He Goes: Sessions Refers Another Case to Himself, This Time On Motions For Continuance

Attorney General Jeff Sessions has yet again referred an immigration case to himself for review in Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018). This time, AG Sessions asks:

An Immigration Judge is authorized to “grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017); see also id. § 1240.6 (2017) (authorizing an Immigration Judge to “grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application”). In these cases, Immigration Judges granted continuances to provide time for respondents to seek adjudications of collateral matters from other authorities. Under what circumstances does “good cause” exist for an Immigration Judge to grant a continuance for a collateral matter to be adjudicated?

As noted, 8 C.F.R. § 1003.29 empowers Immigration Judges (IJs) to grant motions for continuance “for good caution shown.” 8 C.F.R. § 1240.6, by contrast, allows IJs to grant reasonable adjournments either at their discretion, or “for good cause” upon request by one of the parties. Typically, these motions are filed by either the Respondent or the Department of Homeland Security (DHS) for a number of reasons. For example, the Respondent may motion for a continuance when they are awaiting adjudication of a case outside of Immigration Court, such as a pending I-130 or I-140 petition with USCIS or even an outside criminal or family law case that has bearing on the removal proceedings. Similarly, the government attorney for DHS may motion for a continuance when the attorney has an unexpected emergency, time conflict with the hearing date, or simply needs more time to prepare.

The BIA has sensibly addressed motions for continuance in several cases authorizing IJs to grant them when there is when there was a pending immigrant petition with the USCIS. In Matter of Hashimi, 24 I&N Dec. 785 (BIA 2009), for example, the IJ granted the respondent four continuances on his removal proceedings to allow for USCIS to adjudicate his family-based immigrant visa petition. The IJ denied the respondent’s fifth motion to continue because he was expected to meet the Department of Justice’s “case completion goals,” which required completing cases within a reasonable period of time. The Third Circuit determined that the IJ’s denial based on case-completion goals was arbitrary and an abuse of discretion. On remand, the BIA discussed relevant factors when “determining whether respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130” filed concurrently with an adjustment of status application, given the conflicting needs of finality of removal proceedings and allowing the opportunity for respondent to apply for relief. Citing to Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), the BIA stated that although the IJ should exercise favorable discretion when there is prima facie eligibility for a visa petition, this does not require that a continuance be granted in every case. The BIA held that in determining whether to continue proceedings where there is a pending visa petition, the IJ should consider a variety of factors, including, but not limited to: (1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. The focus is the apparent ultimate likelihood of success on the adjustment application. The IJ needs some basis to examine the viability of the underlying visa petition, the respondent’s statutory eligibility for adjustment, and the merits of the adjustment application. This may require the respondent to submit evidence, such as the visa petition, the adjustment application, any prior visa petitions denials, and any other supporting documentation. The BIA sustained the respondent’s appeal and remanded the record to the Immigration Judge to consider the factors and determine whether a continuance was warranted.

In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009), the respondent was placed in removal proceedings after his employer filed for labor certification on his behalf. Over the period of 18 months, the respondent was granted 10 continuances for a variety of reasons, including to obtain counsel and prepare the case and to determine the status of the labor certification. The IJ denied the final motion to continue based on the pending labor certification because he “concluded that the respondent had had ‘sufficient time’ to obtain an approved labor certification.” While the matter was pending before the Second Circuit, the labor certification was approved but then later expired due to the respondent’s employer not filing a visa petition. On remand, the issue before the BIA was to provide a “reasoned set of standards explicating when continuances for labor certification are within the ‘range of permissible decisions’ available to an [IJ], and when they are not.” Id. at 129. The BIA held that as a general rule in the employment context, discretion in granting a motion to continue ongoing removal proceedings should be favorably exercised where there is a prima facie approvable visa petition and adjustment application. Furthermore, in determining whether good cause exists for a continuance in removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an “Immigration Judge should first determine the alien’s place in the adjustment of status process and then consider and balance” the factors identified in Matter of Hashmi and any other relevant considerations. For example, a labor certification no longer being valid, and other similar types of evidence, might affect the case on remand or in the context of a motion to reopen. Furthermore, the BIA held that the pendency of a labor certification generally is not sufficient to grant a continuance in the absence of additional persuasive factors. Here, the BIA determined that remand was not warranted based on the new evidence that the labor certification, which was approved, had expired and there was no pending visa petition. While the respondent was a grandfathered alien who could have potentially been eligible for INA § 245(i) treatment, because there was no pending labor certification, the respondent could not establish prima facie eligibility for adjustment of status under INA § 245(i)(2)(A)-(B). The appeal was dismissed.

In Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the Board. In Avetisyan’s case, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

In Matter of Castro-Tum, 27 I&N Dec. 187 (A.G. 2018), AG Sessions referred Avetisyan to himself questioning whether there was any authority for IJs or the BIA to administratively close cases. Even if AG Sessions was able to overrule Ayetisyan and deny IJs the ability to administratively close cases, it was hoped that their ability to grant continuances would not be undermined. After all, there is explicit authority pursuant to 8 C.F.R. § 1003.29 for an IJ to grant a continuance for good cause. Depriving an IJ that ability, especially when there is an application pending that would allow the respondent to obtain permanent residency and moot the removal proceeding, would lead to a complete and total evisceration of Ayetisyan. Sessions can only achieve this if the basis to continue proceedings under Hashmi and Rajah are also overturned.

It is clear AG Session seeks to discourage motions for continuance as a way to maximize the deportations of noncitizens even if they have a meritorious pending applications for permanent residency that would otherwise thwart their deportations. In the Department of Justice’s Backgrounder on EOIR Strategic Caseload Reduction Plan, for example, Sessions blames IJs’ low productivity levels and rising backlogs on “representatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases” such as motions for continuance. Moreover, in the July 2017 EOIR Operating Policies and Procedures Memorandum 17-01: Continuances, IJs were urged to limit the grant of continuances, stating that “the delays caused by granting multiple and lengthy continuances, when multiplied across the entire immigration court system, exacerbate already crowded immigration dockets.”

But limiting continuances in the name of efficiency is a smokescreen. Discouraging motions for continuances will not make delays go away in the immigration court system. Respondents will appeal the denial of continuances into the courts of appeal of each circuit, which will result in remands back to the immigration courts in addition to clogging the circuits. This used to be the case prior to Hashmi and Rajah, where remands from the circuit court resulted in the further clogging up of immigration dockets. Moreover, if the USCIS processes cases in a tardy manner, and respondents in removal are unable to legitimately seek a continuance, there will be an increasing number of mandamus lawsuits against the agency to compel USCIS to process the case more expeditiously. The BIA’s reasoning in Hashmi, Rajah and Avetisyan was based on common sense and fairness. If there was a reasonable basis for a respondents in removal proceeding to demonstrate that they would ultimately get permanent residency but for a delay in processing of the visa petition or the priority date not being current, why deprive respondents of permanent residency by deporting them?  The federal courts understood this too, and will continue to do so if we do so if respondents cannot get continuances for good cause in removal proceedings.

Thus, in Subhan v. Ashcroft, 383 F.3d 591 (2004), the Seventh Circuit found that an IJ had abused his discretion when the ground for the continuance was a pending labor certification.  The Court noted that the IJ’s denial was based simply on the fact that the labor authorities had not yet acted rather than issues particularized to the petitioner’s circumstances such as the lack of bona fides of the labor certification or other grounds pertaining to national security or criminal issues. In another Seventh Circuit decision, Ahmed v. Gonzales, 467 F.3d 669 (2006), the court went even further than Subhan in holding that the IJ’s denial of a continuance ignored the fact that the petitioner was the “grandfathered” beneficiary under INA 245(i) of an I-130 petition even though the petitioner had yet to have a labor certification filed on his behalf. Of course, some courts upheld an IJ’s decision to deny continuance if the respondent’s underlying applications were not meritorious, see e.g. Morgan v. Gonzales, 445 F.3d 549 (2006), but the frameworks established in Hashmi and Rajah for providing for a continuance based on the merits of the underlying applications for permanent residence are sound and should not be upset. They provide IJs with discretion to grant continuances, and at the same time, authorize IJs to deny continuances when the pending request for permanent residency lacks merit.

There is no need for Sessions to undermine a framework that is working, and also less need to further erode the independence of IJs to judiciously exercise discretion based on their own sense of fairness and efficiency. Decisions to not grant continuances of IJs have been upheld by federal courts post-Hashmi and Rajah when the priority date was a long way away or when an I-601 waiver supporting an adjustment was denied and its appeal was pending. See e.g. Luevano v. Holder, 660 F.3d 1207 (2011); Kwak v. Holder, 607 F.3d 1140 (2010). On the other hand, IJs’ decisions that did not follow the Hashmi and Rajah factors have been overturned. See e.g., Ferrera v. AG, No. 11-14074 (11th Cir. 2013); Simon v. Holder, 654 F.3d 440 (2011). This is clear evidence that the system is working and does not need Sessions’ interference.  Avetisyan along with Hashmi and Rajah also view the immigration system as a whole with all its warts and imperfections. These decisions take into account the inefficiencies resulting in delays of approving I-130s and I-140s, along with retrogression in priority dates. If the immigration system worked more efficiently, there would be less need to place people in removal proceedings. But if people are placed in removal proceedings as a result of these inefficiencies, why not continue their proceedings, or even temporarily close their proceedings, until such time that they can obtain the benefit and terminate proceedings – which should not have been started in the first place? If Sessions is unable to see it this way when he reconsiders BIA decisions to undermine Avetisyan, Hashmi and Rajah, he is not doing so to create efficiency but to further his animus and hostility against immigrants.

(The authors thank Eleyteria Diakopoulous for her assistance in providing research for this article. Ms. Diakopoulous is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

Sessions Likely to End Asylum Eligibility for Victims of Domestic Violence: How Courts Can Resist

Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

DHS conceded the nexus requirement by agreeing that the respondent had indeed suffered past persecution on account of her membership in a particular social group. The BIA noted that “the issue of nexus will depend on the facts and circumstances of an individual claim.” Id. at 395. The BIA then remanded to the Immigration Judge for determination of whether the Guatemalan government was “unable or unwilling” to stop the respondent’s abuser. On remand, the Immigration Judge granted asylum upon the stipulation of the parties (and thus did not provide a reasoned analysis as to the Guatemalan government’s inability or unwillingness to protect the respondent from her abuser).

Relying on the precedent in Matter of A-R-C-G-, the respondent in Matter of A-B- similarly contended that she was eligible for asylum based on her membership in a particular social group, namely “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Matter of A-B-, at 2. The Immigration Judge below found that the respondent had not met her burden in establishing eligibility for asylum, finding that her proposed particular social group was not cognizable, that even if the social group was cognizable, that she did not establish a nexus between the harm suffered and her membership in the social group, and finding that the respondent had not demonstrated that the El Salvadoran government was unable or unwilling to protect her from harm. Id. at 3. On appeal, the BIA found that the proposed social group was cognizable, where it was “substantially similar” to the proposed group in Matter of A-R-C-G- and further found that the respondent had met her burden in establishing particularly and social distinctness by way of a submitted country conditions report. Id. at 2. Moreover, the BIA found that the respondent had indeed shown a nexus between her abuse and her membership in the particular social group where the “record indicates that the ex-husband abused her from his position of perceived authority, as her ex-husband and the father of her children…” Id. at 3. The BIA also found that the respondent had sufficiently demonstrated that the El Salvadoran government was unable and unwilling to protect her from harm where although the respondent had previously obtained two orders of protection against her abuser, there were several occasions where local police authorities refused to intervene and afford the respondent protection. Moreover, the respondent’s brother-in-law, who also frequently threatened violence against her, was a police officer, and thus strengthened respondent’s claim that the government would not provide her with protection. The BIA held that the respondent had demonstrated past persecution on account of her membership in a cognizable particular social group, and sustained the respondent’s appeal, remanding for completion of background checks.

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution.  The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

Returning to the Acosta definition of Particular Social Group

Before Matter of M-E-V-G- and Matter of W-G-R-’s additional particularity and social distinction requirements, Matter of Acosta dictated the proper particular social group analysis. The BIA in Matter of Acosta held,

“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. i.e., a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed

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.

19 I&N Dec. at 212, 233.

Applying the doctrine of ejusdem generis, the BIA reasoned that the particular social group category, like the other four enumerated grounds (race, religion, nationality, and political opinion), should be defined by immutable characters that cannot, or ought not to, be changed. Id. at 233.

While nothing is perfect, the Acosta particular social group analysis worked well for the next two decades. However, after the 2003 BIA purge of liberal-leaning judges, the asylum system experienced a dramatic shift in particular social group analysis. The BIA in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), for example, added that in addition to demonstrating the shared immutable characteristic that defines the particular social group, an asylum applicant would also need to show that the group was “socially visible” in society. Matter of C-A-, 23 I&N Dec. at 951. Social visibility was later refined in Matter of M-E-V-G- and W-G-R-, which clarified that the group needs to be “socially distinct” as to be perceived by society, and not necessarily “ocularly” visible. Matter of W-G-R-, 26 I&N Dec. at 216.

On appeal, Matter of A-B- ought to advocate for the return of the pure Acosta particular social group analysis and rejection of the Matter of C-A- social visibility requirement. Indeed, some circuits have rejected this requirement. In Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009), the Seventh Circuit declined Chevron deference to the BIA’s denial of an asylum case and rejected the social visibility requirement, finding that it “makes no sense.” Similarly in Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011), the Third Circuit found that the social visibility requirement had no place in particular social group analysis, reasoning that

[i]n the wake of Acosta, the BIA recognized a number of groups as “particular social groups” where there was no indication that the group’s members possessed “characteristics that were highly visible and recognizable by others in the country in question” or possessed characteristics that were otherwise “socially visible” or recognizable. Indeed, we are hard-pressed to understand how the “social visibility” requirement was satisfied in prior cases using the Acosta standard. By way of examples noted above, the BIA has found each of the following groups to constitute a “particular social group” for purposes of refugee status: women who are opposed to female genital mutilation (Matter of Kasinga), homosexuals required to register in Cuba, (Matter of Toboso-Alfonso), and former members of the El Salvador national police (Matter of Fuentes). Yet, neither anything in the Board’s opinions in those cases nor a general understanding of any of those groups, suggests that the members of the groups are “socially visible.” The members of each of these groups have characteristics which are completely internal to the individual and cannot be observed or known by other members of the society in question (or even other members of the group) unless and until the individual member chooses to make that characteristic known.

Although the BIA has since clarified in M-E-V-G- and W-G-R- that social distinction does not require ocular visibility, advocates have found this clarification disingenuous and that it often contradicts the particularity requirement.

Clarifying the Nexus Requirement

As explained above, DHS conceded the nexus requirement in Matter of A-R-C-G- by agreeing that the respondent had indeed suffered past persecution on account of her membership in a particular social group. 26 I&N Dec. at 395. The BIA noted that “the issue of nexus will depend on the facts and circumstances of an individual claim.” Id.

In the recent case, Matter of L-E-A–, 27 I&N Dec. 40 (BIA 2017), the BIA denied asylum to a respondent for failing to meet the nexus requirement. As we have previously blogged, the respondent here was a native and citizen of Mexico whose father owned a general store in Mexico City. 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 reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, the persecution would not have been due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The respondent in Matter of A-B- ought to distinguish the finding in Matter of L-E-A- preemptively on appeal, and seek to definitively establish what the nexus requirement ought to be in domestic violence cases. In particular, they will want to avoid an L-E-A-type finding which would reason that the persecution was not due to the woman’s membership in a particular social group, but rather because the persecutor was violent. This was the conclusion of the BIA in Matter of R-A-, 22 I&N 906 (BIA 1999), a decision pre-dating A-R-C-G-, which denied asylum to a victim of domestic violence. This erroneous finding continues to be encountered today, where Immigration Judges continue to find that it is an abuser’s jealousy or own violent behaviors that motivated the harm, not the victim’s membership in a particular social group. As pointed out by Blaine Bookey, “this rationale defies logic: an abuser’s ‘jealousy’ [or violence] is inherently linked to a woman’s gender and status in a relationship as the property of her partner.”

Clarification on this issue is imperative for uniform adjudication of domestic violence asylum cases. The Court handling the Matter of A-B- appeal may look at how other countries have interpreted the nexus requirement under international law. In New Zealand, for example, the Refugee Status Appeals Authority found,

[T]he words “for reasons of” require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared for reason of the person’s membership or perceived membership of the particular social group…

[T]he nexus between the Convention reason and the persecution can be provided either by the serious harm limb or by the failure of the state protection limb.  This means that if a refugee claimant is at real risk of serious harm at the hands of a non-state agent (e.g. husband, partner or other non-state agent) for reasons unrelated to any of the Convention grounds, but the failure of state protection is for reason of a Convention ground, the nexus requirement is satisfied.  Conversely, if the risk of harm by the non-state agent is Convention related, but the failure of state protection is not, the nexus requirement is still satisfied. In either case the persecution is for reason of the admitted Convention reason. This is because “persecution” is a construct of two separate but essential elements, namely risk of serious harm and failure of protection.

(emphasis added).

The United Kingdom came to a similar understanding of the nexus requirement in the seminal case, Islam and Shah v. Secretary of State for the Home Department, [1999] 2 A.C. 629 (H.L.), finding that the requirement is satisfied where the applicant can show that the harm was motivated by her membership in a particular social group, or by showing that the state failed to provide her with protection from that harm due to her membership in that particular social group. The US Courts have an opportunity to expand asylum eligibility for victims of domestic violence by adopting a similar understanding of the nexus requirement, where an applicant can satisfy the nexus requirement via the abuser’s conduct or by the state’s failure to provide protection from this conduct due to her membership in a particular social group.

Clarifying the State Protection Analysis

State protection, or the lack thereof, is critical in successfully arguing particular social group cases when the persecution is committed by private actors. However, Matter of A-R-C-G- did not provide definitive guidance for assessing the adequacy of state protection. As explained, the BIA remanded the case back to the Immigration Judge for determination of whether the Guatemalan government was “unable or unwilling” to stop the respondent’s abuser. On remand, the Immigration Judge granted asylum at stipulation of the parties and thus did not provide a reasoned analysis as to the Guatemalan government’s inability or unwillingness to protect the respondent from her abuser.

On appeal, Matter of A-B- can seek to clarify how adjudicators ought to analyze the lack of state protection for victims of domestic violence. Advocates have reported inconsistent adjudication in state protection analyses, where some Immigration Judges fail to take country conditions into consideration or fail to understand that although a woman obtained orders of protection against her abuser that the state nevertheless failed to protect her from future abuse when the partner violated the order. Accordingly, uniform guidance is warranted to allow for seamless and consistent adjudication, such as the consideration of country conditions evidence, testimony from the applicant about whether she reasonably could have sought protection in her home country, and evidence of lackluster implementation of domestic violence laws at the state and local levels.

AG Sessions will undoubtedly deny the applicant’s asylum in Matter of A-B- and seek to radically change the adjudication of asylum cases based on domestic violence, and perhaps all particular social group cases based on private criminal activity. However, Matter of A-B-, on appeal, can not only overcome Sessions’ erroneous reading of the law, but can help to expand the eligibility of asylum for victims of domestic violence and clarify those issues which were left untouched by Matter of A-R-C-G-. Critically, the respondent in Matter of A-B- can raise the question of where the Courts wish to fall morally. Do we want to be a country that denies asylum to victims of domestic violence whose countries do little to nothing to protect them? Do we want to stand in stark contrast to nations such as Canada, which has long recognized eligibility for victims of domestic violence, or the United Kingdom, which has similarly recognized such eligibility and does not impose stringent cohesive requirements in their particular social group analyses?  The eventual appeal of Matter of A-B- will grant the Courts another opportunity to resist the anti-immigrant policies of this administration that have undermined the notion of America as being the beacon of hope for the persecuted.

 

 

[i] It must be noted that men and boys are also severely affected by sexual violence. Women and girls, however, constitute the vast majority of victims worldwide and are the population of concern contemplated in Matter of A-R-C-G-, and are thus the population discussed in this article.

California’s New Laws Protecting the Rights of Immigrants Are Civil Rights and Should Never Be Found to Be Unconstitutional

The Trump administration has ramped up its ire against California by filing a lawsuit against three different California laws that aims to protect immigrants from the harsh effects of federal enforcement. The three laws are the Immigrant Worker Protection Act, which regulates the way private employers can respond to federal efforts to investigate workplace immigration law compliance; the California Values Act, which  limits communication from state and local law enforcement with federal immigration officials and prevents them from investigating people for immigration enforcement purposes; and  A.B. 103, which subjects local detention facilities to twice-yearly inspections by the Attorney General’s office.

The lawsuit, United States of America v. California, claims that the California laws render it impossible for the federal government to deport people not born in the United States who live in California. It alleges that California has obstructed the United States’ ability to enforce laws that Congress has created, and that the California protections violate the constitutional principle that federal immigration law is the supreme law of the land. All three laws were signed during the Trump administration. Governor Brown signed the Immigration Worker Protection Act and the California Values Act in October 2017, and A.B. 103 in June 2017.The lawsuit, which also names Governor Brown and AG Becerra as defendant, calls for a declaration that the provisions are invalid, as well as preliminary and permanent injunctions. Under the preemption doctrine, when a state law obstructs or conflicts with federal law, the state law is invalidated.

Remarkably the Trump administration has relied on Arizona v. United States, a 2012 Supreme Court decision that held that Arizona had overstepped its limits by enacting immigration laws that penalized non-citizens that undermined federal immigration law. When the Obama administration  launched this lawsuit against Arizona, it was criticized by Republicans as undermining state rights,  and it is thus ironic that the Trump administration is relying on Arizona v. United States to attack the laws of California that are the opposite of Arizona’s, which are friendly towards immigrants.

While advocates in favor of more friendly immigration laws, including yours truly, cheered when the Supreme Court found most of Arizona’s laws preempted by federal immigration law, this is not a case of double standards when the same advocates are critical of the Trump administration’s latest lawsuit against California. Arizona’s SB 1070 truly conflicted with federal immigration law, according to the Supreme Court, and were contrary to the federal immigration scheme that was enacted by Congress. Those laws literally usurped federal immigration law. For instance, Section 3 of SB 1070 penalized non-citizens for failure to carry registration documents even though there was a similar comprehensive federal requirement to carry registration documents. Section 5(c) criminalized unauthorized immigrants who applied for work. The federal scheme criminalized only employers, but not the individual for unauthorized work, and thus 5(c) stood as an obstacle to the objectives of Congress. Section 6 allowed Arizona police officers to make warrantless arrests based on probable cause that a non-citizen was removable from the United States. This too was preempted because under the federal scheme being removable is not a criminal offense. Still, Arizona was a mixed decision. Section 2(B), the most controversial provision of SB 1070 known as the “show me your papers” law, was upheld. The Supreme Court held that 2(B) was not creating a new state immigration law unlike the other provisions that were found unconstitutional; it only allowed Arizona police officers to determine if someone was unlawfully present by inquiring about person’s status with DHS, and such communication and exchange of information had not been foreclosed by Congress.

Would California’s laws, even if friendly towards immigrants, be preempted under Arizona v. US? The fact that a state may pass an immigrant friendly law rather than a punitive law is not determinative in analyzing whether the law has been preempted if those laws still pose an obstacle to the enforcement of federal law or are in conflict with it.

Under the doctrine of preemption, which is based on the Supremacy Clause in the US Constitution, federal law preempts state law, even when the laws conflict. Thus, a federal court may require a state to stop certain behavior it believes interferes with, or is in conflict with, federal law. Notwithstanding the sweeping Constitutional mandate in favor federal laws being the supreme law of the country, states too possess sovereignty concurrent with the federal government. Therefore, the Intent of Congress is the key. When there is an express preemption provision in a federal statute, courts will identify the domain expressly preempted by that language.

When there is no express provision in a federal statute, a state law can also be impliedly preempted under field preemption or conflict preemption. Under field preemption, it must be demonstrated that the federal government has fully occupied the field it has chosen to regulate. In the case of conflict preemption, if there is a conflict between the state law and the federal law, it must be demonstrated that compliance with both federal and state law is a physical impossibility or that the state law stands as an obstacle to the purposes of Congress.

Relying on Arizona v. United States, the complaint in United States v. California claims that the United States has broad authority to establish immigration laws, the execution of which states cannot obstruct or discriminate against. The complaint further asserts that Congress has created laws that provide broad authority to the federal government to investigate, arrest, detain and remove non-citizens suspected to being or found to be unlawfully in the US. The complaint also states that consultation between the federal and state governments is an important feature of the immigration system, and thus a state may not prohibit its official from providing information to the DHS regarding the citizenship or immigration status of an individual. Finally, the complaint notes that Congress has enacted a comprehensive framework for combatting the employment of illegal aliens, and can penalize employers for not verifying the employment status of employees or for knowingly hiring unauthorized workers.

Although California will make extensive arguments in defending its laws, some preliminary observations can be made. The California laws have been enacted to protect the constitutional and civil rights of all people living in the state of California. While the federal government is authorized to enforce the immigration laws, there have been many instances of egregious abuses by ICE agents that violate the rights of California residents. California is not interfering in the enforcement federal immigration laws or usurping them like Arizona did, but is providing a constitutional baseline for federal agents when enforcing federal law. A state can pass laws with the objective of protecting its residents. Thus, in De Canas v. Bica, the Supreme Court held that a state law regulating non-citizens is not per se preempted as a regulation of federal immigration law, which is essentially a determination of who should or not be admitted in the country. States possess broad police powers to regulate the employment relationship and to protect workers within the state. Even if the California laws mildly frustrate federal authority, they only ensure that the civil rights of California residents subjected to heavy handed enforcement are protected. According to its website, the Civil Rights Enforcement Section in the California Attorney General’s office is committed to the strong and vigorous enforcement of federal and state civil rights laws.  Thus, the California laws have been enacted to protect a legitimate state interest – the constitutional and civil rights of its residents – rather than to oust the federal government from enforcing immigration laws. Federal ICE agents are still free to enter California to enforce the immigration law in order to apprehend, detain and deport non-citizens who are not lawfully in the US.

The California Values Act prohibits state and local officials from providing information regarding a person’s release, unless there is a judicial warrant or a judicial probable cause determination or the individual has been convicted of certain felonies or other serious crimes. It is well within the constitutional rights of a state to refuse to provide such information.   Pursuant to Printz v. United States, 521 U.S. 898 (1997), the federal government cannot commandeer states to enact or administer a federal regulatory program under the Tenth Amendment.  In that case, sheriffs challenged the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. Justice Antonin Scalia, writing for the majority, held that the sheriffs, as well as states, cannot be commandeered under federal law enforcement schemes with which they disagreed. Moreover, the underpinning behind the California Values Act is to keep communities safe by ensuring that local police can function effectively within the community by not betraying the trust of immigrants who may cooperate as crime victims. If local police were required to provide information regarding non-citizens, they would not be able combat crimes effectively.

The Immigrant Worker Protection Act prevents employers from voluntarily consenting to an immigration enforcement agent form entering the workplace or providing access to the employer’s records, unless the agent has a judicial warrant or consent is otherwise required by federal law. The law also requires employers to notify employees within 72 hours off receiving a notice of inspection. While the Trump administration argues that preventing an employer from voluntarily consenting to an agent from entering the workplace or providing records undermines the ability of enforcement agents from enforcing the employer sanctions provisions under the Immigration and Nationality Act, what the California law does is to again set a baseline that would protect the constitutional and civil rights of California workers. The law does not prevent the federal government from enforcing federal law, it only insists that agents obtain a judicial warrant and workers be provided notice. It is well settled that ICE needs a judicial warrant under the Fourth Amendment in order to enter a private place without consent. Although the Immigrant Worker Protection Act precludes an employer from providing voluntary consent, which may be viewed as interfering with the federal scheme, a judicial warrant could still be justified as the workers may not have consented to a federal agent entering the work place even if the employer may have.

Similarly, California’s AB 103 requiring state officials to review county, local or private locked detention facilities in which noncitizens are being detained is to ensure that the detention facilities meet the constitutional standards. There have been far too many cases of non-citizens being detained for purposes of civil proceedings being abused and mistreated. Again, AB 103’s motivation is not to prevent the detention of non-citizens but to ensure that their detention meets minimum constitutional standards.

Although Attorney General Sessions on behalf of the Trump administration believes that California’s laws ought to be preempted based on Arizona v. United States, they are essentially civil rights laws. A state may enact laws ensuring the civil rights of its residents, including non-citizens, whether legal or not. Civil rights flow from the US Constitution, as well as California’s Constitution, and they ought not to be preempted, especially in light of egregious abuses by ICE agents in enforcing federal immigration law.  Ensuring civil rights to all is a bedrock American principle. Some believe that California may have gone too far, but it can be legitimately argued that a state law upholding civil rights should never be in conflict with a federal law or be an obstacle to federal immigration law enforcement. Civil rights must be adhered to by all government officials, including federal immigration authorities. The preemption doctrine cannot be invoked by federal authorities as an excuse for violating civil rights.

 

 

 

 

 

 

 

Rodriguez Tovar v. Sessions: The Ninth Circuit Holds That a Child Sponsored By a Lawful Permanent Resident Should Not Be Penalized For The LPR Parent’s Naturalization

Becoming a U.S. citizen is often thought of as an admirable act, something that our immigration and naturalization laws encourage qualified applicants to do.  According to the Board of Immigration Appeals (BIA), however, in at least one relatively common fact situation, our immigration laws actually discourage naturalization, by penalizing children of the naturalized parent.  The BIA held in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011), that an applicant for adjustment of status was ineligible for that relief essentially because of his mother’s naturalization, which the BIA believed led to less favorable treatment of his case under the Child Status Protection Act (CSPA) than would have occurred if his mother had remained a Lawful Permanent Resident (LPR). In Rodriguez Tovar v. Sessions, however, the Court of Appeals for the Ninth Circuit recently rejected Matter of Zamora-Molina and held that an otherwise CSPA-protected child did not lose that protection due to his LPR parent’s naturalization.

This author and Cyrus D. Mehta have frequently blogged in the past about the CSPA (see also here, here, and the tagged lists here and here), and I will not seek to describe here the entire statute and all of the provisions that it introduced into the Immigration and Nationality Act (INA). However, some brief background regarding the portions of the CSPA involved in Zamora-Molina and Rodriguez Tovar is necessary in order to appreciate the Ninth Circuit’s decision.

Certain categories of visa petition apply to a “child” as defined in INA §101(b)(1), that is, “an unmarried person under twenty-one years of age” who meets one of several other criteria with respect to the petitioning parent. Under INA §203(h)(1) as added by the CSPA, the age of a beneficiary of a Family 2A preference petition filed for a child of an LPR under INA §203(a)(2)(A), or the age of the derivative beneficiary child under INA §203(d) of other types of petitions, is determined by taking the child’s age on the date when a visa number became available (as long as the child seeks to acquire LPR status within one year of that date), and subtracting the number of days during which the petition was pending with USCIS. Another way to look at it is that it is as though the child stops getting older when the petition is filed, and only starts again after the petition is approved, and then stops getting older once again when a visa number becomes available.  If this adjusted age is under 21, then the child, as long as he or she is unmarried, can continue to be processed in the Family 2A preference (or as a derivative beneficiary), because he or she is still a “child” under the definition at INA §101(b)(1). The waiting time for an available visa number under the Family 2A preference for under-21-year-old children of LPRs is generally shorter than the waiting time for an available visa number under the Family 2B preference for over-21-year-old sons and daughters of LPRs, as shown in the State Department’s Visa Bulletin, so there is a significant advantage in that context to remaining a “child”.

The question is what happens to such a beneficiary of a Family 2A preference petition when the sponsoring parent becomes naturalized as a U.S. citizen. According to INA §201(f)(1) of the INA, also added by the CSPA, the age of a child who is the beneficiary of a petition as the immediate relative of a U.S. citizen (a category for which there are an unlimited number of visas available and thus no Visa Bulletin waiting line) is generally determined on the date the petition is filed. However, the next paragraph of the statute provides that

In the case of a petition . . . initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative . . . the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent’s naturalization.

INA §201(f)(2). That is, when an LPR parent who has filed a petition for their child later naturalizes, the child’s age is frozen as of the date of the parent’s naturalization.  But the question then arises, is the statute’s reference to “the age of the alien on the date of the parent’s naturalization” a reference to the child’s biological age, or to the child’s adjusted age under INA §203(h)(1)?

In Matter of Zamora-Molina, the BIA opted for the former answer, holding that the child’s biological age was the relevant age under INA §201(f)(2). Daniel Edgar Zamora-Molina had been biologically 22 when his mother naturalized, but it had previously taken more than two and a half years for the petition filed on his behalf to be approved.  Thus, his CSPA-adjusted age at the time of naturalization was less than 20, under INA §203(h)(1), but his biological age at that time was over 21. The BIA held that Mr. Zamora-Molina could not adjust status as an immediate relative of his mother, but would need to proceed under the Family 1st Preference category for sons and daughters, over age 21, of U.S. citizens.  The BIA also refused Mr. Zamora-Molina’s request to opt out of the conversion of his case to the Family 1st Preference under INA §204(k), which allows certain family preference beneficiaries to opt out of the effect of their parent’s naturalization, because the BIA held that §204(k) only allowed opting-out that resulted in becoming a beneficiary under the Family 2B category for sons and daughters over age 21 of LPRs. Since no visa numbers were available for Mr. Zamora-Molina’s priority date in either the Family 1st Preference category or the Family 2B preference category, given the length of the waiting lines under those categories, the BIA upheld the Immigration Judge’s decision that denied Mr. Zamora-Molina’s application for adjustment of status and instead granted him only permission to depart voluntarily rather than being removed.

Mr. Zamora-Molina argued to the BIA that it was “fundamentally unfair” to apply this law to him, because he would have been eligible for adjustment of status under the Family 2A preference category if his mother had not naturalized. In effect, he was being penalized for his mother’s naturalization.  The BIA, however, interpreted this as a constitutional argument, which it held that it lacked authority to address.

In the case that came before the Ninth Circuit in Rodriguez Tovar v. Sessions, Margarito Rodriguez Tovar faced a similar fact pattern to Daniel Edgar Zamora-Molina. Mr. Rodriguez Tovar’s father had filed a petition for Margarito in April 2001 when Margarito was 17 or 18 years old, which was not approved until more than four years later in 2005, and had then naturalized in July 2006.  At the time his father naturalized, Mr. Rodriguez Tovar’s biological age was 23, but his adjusted age was under 21 for purposes of his Family 2A petition according to the CSPA-adjusted age calculated under INA §203(h)(1), since subtracting more than four years from a biological age of 23 left him with an adjusted age of only 19. Moreover, had his father not become a citizen, Mr. Rodriguez Tovar would have become eligible for a visa number in the Family 2A category less than a year later, in July 2007, when his CSPA-adjusted age was still only 20.

The BIA, however, held in reliance on Matter of Zamora-Molina that because Mr. Rodriguez Tovar was biologically over 21 when his father naturalized, and his father had indeed naturalized, he was only eligible for a visa number in the Family 1st preference or the Family 2B preference, neither of which were available. As the Ninth Circuit summarized the resulting conundrum:

Everyone agrees that if Rodriguez Tovar’s father had remained an LPR instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A category on June 1, 2007, at which point his age under the statute would have been 20. Similarly, had he been afforded his statutory age when his father became a citizen, he would have been eligible for a visa immediately. However, the government’s position is that because his father decided to become a citizen when he did, Rodriguez Tovar was not eligible for either visa and may now be deported forthwith and must wait in the F1 line abroad.

Rodriguez Tovar, slip op. at 9.

The Ninth Circuit rejected the BIA’s interpretation of the statute which had led to this “irrational” result.  Rodriguez Tovar, slip op. at 12. Looking at the statute as a whole, the Ninth Circuit held that the reference to “the age of the alien on the date of the parent’s naturalization” in INA §201(f)(2) was unambiguously a reference to the age as calculated under INA §203(h)(1), that is, the CSPA-adjusted age. Although §203(h)(1) and §201(f)(2) do not explicitly cross-reference one another, the Ninth Circuit held, those two provisions are tied together by INA §203(a)(2)(A), which each of them does reference, and the three provisions together “form a cohesive whole.” Rodriguez Tovar, slip op. at 14-15. Moreover, the conversion provisions of the statute and regulations, and the absence of an opt-out under INA §204(k) for CSPA-protected F2A beneficiaries to remain in the F2A category, both make more sense if read with the background understanding that Congress expected CSPA-protected F2A petitions to convert to immediate relative cases upon the petitioner’s naturalization.

The Ninth Circuit also justified its interpretation of the interlocking CSPA provisions by reference to the canon of interpretation that statutes should be interpreted to avoid absurd results.  As it explained:

Our interpretation of 8 U.S.C. § 1151(f)(2) [INA §201(f)(2)] makes sense within the context of the whole CSPA. Anyone who is treated as a minor child of a lawful permanent resident for purposes of an F2A petition is treated as a minor child of a citizen when the parent naturalizes, and no one is penalized just because his parent became a citizen. The government’s interpretation leads to the absurd result that Rodriguez Tovar’s father’s naturalization causes the deportation of his son, who is then compelled to wait for decades in a foreign land before he can return—despite the fact that had his father simply remained an LPR, Rodriguez Tovar would have been eligible for a visa within a year. That can hardly have been Congress’s intent.

“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Accordingly, we conclude “that Congress had a clear intent on the question at issue,” The Wilderness Soc’y, 353 F.3d at 1059: children of LPRs may take advantage of the age calculation formula in 8 U.S.C. § 1153(h)(1) [INA §203(h)(1)] for purposes of converting to immediate relative status under § 1151(f)(2) [INA §201(f)(2)] when their parents naturalize.

Rodriguez Tovar, slip op. at 21.

Hopefully, the Ninth Circuit’s compelling arguments may convince other Courts of Appeals, and ultimately perhaps even the BIA or, if the issue is brought there, the Supreme Court.  In the meantime, only those who reside within the jurisdiction of the Ninth Circuit (that is, California, Nevada, Arizona, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam, and the Northern Mariana Islands), and perhaps others whose cases are being processed there such as at the California Service Center, are likely to be able to take advantage of Rodriguez Tovar without going to federal court themselves, and even in those cases there will be some uncertainty regarding the precise conditions under which USCIS will be willing to apply Rodriguez Tovar until we see how they behave in practice.  In cases in which the Zamora-Molina / Rodriguez Tovar issue arises, however, applicants for adjustment of status and their attorneys should consider whether litigation in federal court is an appropriate option.  Other Article III judges, like the Ninth Circuit panel in Rodriguez Tovar, may be less willing than the BIA to read the CSPA to produce the absurd result of penalizing children for the naturalization of their LPR parents.

 

BALCA Holds That Foreign Language Requirement Did Not Need To Be Listed In The Advertisements

Despite the fact that the PERM regulations took effect on March 28, 2005, almost 13 years ago, PERM practitioners continue to struggle with the Department of Labor (DOL) regarding what must be listed in PERM advertisements. Issues surrounding this ongoing battle were discussed in my blogs here, here, here and here. As they say, the struggle is real!

An employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. When a DOL Certifying Officer (CO) chooses to deny a PERM application due to lack of information in the advertisements, there are a few typical sources of authority that could be cited to justify that denial. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” Based on this authority, a CO could find that an employer failed to inform US workers of conditions of employment that might have made the position more attractive to them, such as a work from home benefit. Under 20 C.F.R. §656.24(b)(2), the CO must make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Based on this authority, the CO can hold that this decision is impossible to make since the employer failed to provide US workers with a sufficient understanding of the job opportunity thus rendering them incapable of making an informed decision as to whether they would qualify for the offered position. Accordingly, the CO cannot make a determination as to whether or not qualified US workers exist. Another favorite source of authority is 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO will cite this regulation to make the point that, since the employer neglected to sufficiently inform US workers about the job opportunity, then it was clearly not open to all US workers.

Most recently, in Matter of Unicolor, Inc. 2013-PER-00065 (Jan. 26, 2018) the Employer advertised for a permanent position classified under the occupational title of “Sales Representative, Wholesale and Manufacture.” The PERM was audited. The CO then denied the PERM under 20 C.F.R. §§656.24(b)(2)(ii) and 656.10(c)(8) and (9), finding that because the Employer failed to include “must be able to read, write, and speak the Korean language” in its Sunday print advertisements and in its job order, the Employer had not provided U.S. applicants with a sufficient understanding of the job opportunity to make an informed decision as to whether they would qualify for the position. The Employer’s newspaper advertisements had simply stated, “Sales Representative. Apply by mail only to Unicolors, Inc.” In its request for reconsideration the Employer argued that the Preamble to the Final Rule of 20 C.F.R. Parts 655 and 656 gives the Employer the flexibility to draft appropriate advertisements that comply and that lengthy, detailed advertisements are not required by the regulation. The Employer argued that its advertisements sufficiently apprised the potentially qualified applicants of the job. The case was appealed to the Board of Alien Labor Certification Appeals (BALCA).

In describing its responsibility in adjudicating the appeal, BALCA cited a prior case which states, “When the CO relies on §656.10(c)(8) as a basis for denying an application due to deficiencies in an employer’s recruitment advertising, the Board must determine whether any discrepancies between the job requirements listed in the Form 9089 and the Employer’s recruitment advertisements ‘so misinformed potential job applicants about the [position] that this aspect of recruitment undermines the attestation that the job opportunity is clearly open to any U.S. worker.’” Enterprise Software Solutions, Inc., 2012-PER-02118 (Nov. 16, 2016) (citing Cosmos Foundation, Inc., 2012-PER-01637, slip op. at 7 (Aug. 4, 2016)).

BALCA found that its recent panels, in applying this §656.10(c)(8) analysis, reversed PERM denials when the Employer’s advertisements merely omitted information. BALCA referred to Cosmos Foundation, Inc., where the Employer advertised for the position of Social Studies Department Chair asking simply for 24 months of experience. On the PERM application, the Employer indicated that it would accept 24 months experience in the offered position or as a “Teacher in Social Studies [or any subfield of social sciences] at the middle or high school levels.” The CO reasoned that the Employer had not provided U.S. workers with a sufficient understanding of the job opportunity to make an informed decision as to whether they would qualify for the position. However, BALCA pointed out that the Employer’s advertisements did not actually misinform US workers about the job opportunity or deter qualified candidates from applying. A US worker with relevant teaching experience would still apply for the position whether or not that worker had experience as a Social Studies Department Chair or as a “Teacher in Social Studies [or any subfield of social sciences] at the middle or high school levels.” BALCA found that the Employer’s omission of the acceptable alternate job experience in its advertisements did not “chill” potentially qualified candidates’ interest in the job opportunity.

BALCA also referred to DNG Technologies, Inc. 2012-PER-01647 (Feb. 25, 2016) where the CO denied the PERM application finding that the Employer’s advertisement on its website failed to apprise interested applicants of the geographic area of employment. The CO argued that §656.10(c)(8) requires website advertisements to comply with the criteria set forth in §656.17(f), including §656.17(f)(4), which mandates that advertisements must “[i]indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” But BALCA pointed out that the Board has ruled §656.17(f) applies only to advertisements placed in newspapers of general circulation or professional journals. Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) (which I previously blogged about here). Because §656.17(f)(4) does not govern the additional forms of professional recruitment, it does not necessarily follow that omitting the area of geographic employment from an employer’s website advertisement establishes that the job was not clearly open to US workers. BALCA stated that the relevant inquiry under §656.10(c)(8) is whether the Employer’s website advertisement so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker. BALCA found that interested applicants were not misinformed about the location of the offered position, they simply were not informed about the geographic area of employment and although a statement of the location of the employment might have been useful information for job seekers, its omission did not support a determination that the job opportunity was not clearly open to US workers.

Based on these two cases, BALCA found that the Employer in Unicolors merely omitted the information that the qualified candidate must be able to read, write, and speak the Korean language. The Employer, while it could have been more specific in its advertisements, did not overstate or mischaracterize the job requirements and the regulations do not require that the Employer enumerate every job requirement in its advertisements.  Killing any potential argument that Korean speakers who were out there just dying for a job where they could utilize their Korean were deterred from applying for the offered position simply because the Employer failed to inform them that applicants for the Sales Representative position needed to be fluent in Korean, BALCA pointed out that the regulations do not require that employers craft their advertisements to foreclose all possible reasons why a qualified applicant may not apply for a certain job. A US worker with the ability to read, write and speak Korean would still apply for the job if they were interested in a position as a Sales Representative!

It can become truly exhausting to always prepare PERM applications defensively; to always try to stay one step ahead of the DOL and to imagine new reasons for denial. It is therefore quite encouraging to read these types of BALCA decisions which reward employers for their good faith recruitment and where the US worker is not painted as so easily “deterred’, “confused” and “adversely affected.” Having said that, PERM practitioners know well that in trying to ensure a smooth PERM process, the best course of action is to include as much relevant information in the advertisements as possible and to endeavor to keep advertisements identical across the board. But for the times when that is not the case, these decisions provide some hope.

The Evolving Rights Of Deportable Immigrants As Seen In The Case Of Ravi Ragbir

By Cyrus D. Mehta and Sophia Genovese

Foreign nationals with removal orders are in an extremely vulnerable situation. Even if they are asked to report on a regular basis under an order of supervision, there is no guarantee that a whimsical ICE officer the next they show up to an interview may decide to apprehend this person with handcuffs and expel them from the country.  ICE may also decide to make a pre-dawn arrest of an undocumented person at home in front of family members including children, arrest  those who are attempting to regularize this status, or even victims of domestic violence seeking to escape their abusers.

Or if this person is an activist protesting against ICE’s tactics and fighting for the rights of immigrants, ICE could retaliate by arresting him or her with the goal of removing this so called “irritant” from the United States.  Indeed, no one appears to be beyond the reach of ICE’s heavy handedness in the Trump era.

At issue is whether a removable person has been allowed to stay in the US, and regularly report to ICE, can this person one day be suddenly apprehended without the chance to say goodbye to his family?

This was the very issue raised in Ragbir v. Sessions before Judge Katherine B. Forrest in a petition for habeas corpus in the United States District Court for the Southern District of New York. Ravi Ragbir has lived in the US for over 25 years, but in the last ten years was subject to a final order of removal based on a deportable criminal conviction. Because of his special contributions to the community as the Executive Director of New Sanctuary Coalition of New York City, ICE until recently allowed him to remain in the US with his citizen wife and daughter, granting him an order of supervision and four administrative stays of removal. On January 11, 2018, however, while the administrative stay was still in place, ICE suddenly and inexplicably detained him during a routine check in.

Mr. Ragbir’s petition for habeas corpus was granted. The decision in Ragbir v. Sessions is astounding as it acknowledged the right of a removable person to say goodbye to loved ones and leave in an orderly and dignified fashion, especially one who did not pose a flight risk, was not a danger to the community and who was routinely checking in with ICE. The Court wrote that “[i]t ought not to be – and it has never before been – that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust.”

Although the Court’s decision granting the habeas corpus petition was thin on legal authority, it broadly relied on the Fifth Amendment’s liberty and due process guarantees. “In such circumstances, the Fifth Amendment’s liberty and due process guarantees are North Stars that must guide our actions,” the Court eloquently stated. Although Mr. Ragbir had a final order of removal, “his interest in due process, required that we not pluck him out of his life without a moment’s notice, remove him form his family and community without a moment’s notice.” He should have at the very minimum been given to understand that he must organize his affairs and leave by a due date.

As this victory was being celebrated, Mr. Ragbir was still required to report to ICE for removal on February 10, 2018. This would have possibly been in compliance with Judge Forrest’s order that he be asked to leave by a due date in an orderly fashion rather than suddenly arrested and separated from his family. However, Mr. Ragbir, together with New Sanctuary Coalition of New York City, CASA de Maryland, Detention Watch Network, the National Immigration Project of the National Lawyers Guild, and the New York Immigration Coalition filed suit on February 9, 2018, Ragbir v. Homan,  in the Southern District of New York to challenge the recent targeting of immigrant rights activists by federal immigration officials. The government has agreed to stay Mr. Ragbir’s deportation temporarily pending further briefing in this action. The lawsuit seeks, among other forms of relief, a preliminary and permanent injunction restraining the government from taking further action to effectuate a deportation order against Mr. Ragbir, while also seeking a preliminary and permanent injunction restraining the government from selectively enforcing immigration laws against individuals based on protected political speech.

It is hoped that Mr. Ragbir’s case will shine the torch on the draconian impact of deportation on the individual and the family that is left behind in the US. There have been far too many instances where removable persons have been suddenly and abruptly plucked from their families without giving them a chance to leave in an orderly and dignified fashion, or to consider allowing them to remain while they collaterally challenge their deportation orders or seek to reopen them. And as was done under the President Obama administration, allow such people to remain in the US if they have family members and have lived a life without incident apart from the ground that caused their deportation order. It is important for all of us to examine our collective morality when the government preys upon the most vulnerable populations among us.

As early as 1945, the Supreme Court in Bridges v. Wixon held:

Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual, and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times, a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.

Under our immigration system, people may be removed for a number of reasons. In Mr. Ragbir’s case, although he was a lawful permanent resident, his order of deportation was based upon a felony conviction for wire fraud in 2001. Mr. Ragbir paid his dues for that conviction under the criminal justice system. If Mr. Ragbir had been a citizen, he would not have been in this predicament. But because of his non-citizen status, he was also put in removal proceedings and thus was punished further for his criminal conviction even though as a citizen he would not be. A deportation proceeding is a civil proceeding, and the purpose is to remove the non-citizen rather than to punish, and yet it ironically results in a far greater punishment than the criminal proceeding.

Others are removed simply for not being in lawful status. It is a myth that undocumented immigration can be controlled or eliminated. Indeed, undocumented immigration is an inexorable outcome of restrictive immigration policy, a situation bound to worsen under the Trump Administration’s proposals to severely limit legal pathways. No matter how many more ICE agents that the Trump administration may add to enforce immigration law, there will always be undocumented immigrants who will desperately try to stay in the US to be with loved ones.

If ICE enforces the law harshly and egregiously, they will be even less effective as law suits like Mr. Ragbir has filed will push them back, as we have already begun to see in courts in Southern California and New Jersey. Judge André Birotte in Los Angeles, ruling on the unconstitutionality of ICE detainers (requests to local law enforcement to detain an individual for an additional 48 hours so ICE may decide whether or not to place the individual into removal proceedings), wrote “The LASD [Los Angeles County Sheriff’s Department] officers have no authority to arrest individuals for civil immigration offenses, and thus, detaining individuals beyond their date for release violated the individuals’ Fourth Amendment rights.”  Judge Esther Salas in New Jersey temporarily halted the deportation of Indonesian Christians with “administratively final orders of removal predating 2009 and were subject to an order of supervision,” pending further adjudication of their claims. As the ACLU has argued, “This case involves life-and-death stakes and we are simply asking that these longtime residents be given opportunity to show that they are entitled to remain here.”

No amount of cruel and egregious enforcement measures can eliminate undocumented immigration. Rather, having sensible immigration laws that allow foreign nationals to more easily legalize their status will be more effective in solving the undocumented immigration problem in America, and would be more consistent with its values. This would be a better way to deal with the issue rather than to cruelly pluck people away from their families in violation of their rights and liberties enshrined in the Constitution.

The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification

By Cyrus D. Mehta and Sophia Genovese

As we have previously blogged, many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

In Matter of B-C-, the Petitioner sought to temporarily employ the Beneficiary as a geotechnical engineer-in-training (EIT) under the H-1B classification. The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition. The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with DOL’s generic definition of a Level I wage. Id. at 3. According to the DOL’s Prevailing Wage Policy Guidance, referenced in the Matter of B-C- decision, Level I (entry) wage rates

…are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009).

The AAO, however, found that this was not the correct analysis for assessing whether or not an LCA properly corresponds with the petition. The Director, instead, should have compared the proffered job duties to those associated with the appropriate Occupational Information Network (O*NET) occupation.  On appeal, Petitioner asserted that an EIT is entry level by its very definition. The AAO acknowledged that by its plain terms, an EIT appeared to be entry-level, but a hasty review would be insufficient. In order to determine whether Petitioner properly selected a Level I wage, the AAO analyzed whether Petitioner selected the most relevant standard occupational classification (SOC) code, and then compared the experience, education, special skills required, and any other requirements provided in the petition and O*Net classification. Here, the description and tasks in O*NET for civil engineer generally coincided with the proffered job duties, concluding that the Petitioner selected the appropriate SOC code.  Next, the AAO analyzed whether the proffered position required experience, education, special skills, or supervisory duties beyond those listed in the related O*NET occupation. Here, the AAO found that the proffered position did not require more education, experience, special skills or supervisory duties beyond what was listed on O*Net, and, thus, was properly classified as a Level I wage.  The appeal was sustained.

In Matter of G-J-S-USA, Inc., the Petitioner sought to temporarily employ the Beneficiary as an investment banking analyst under the H-1B classification. Matter of G-J-S-USA, Inc.  The Director denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition where (s)he believed that the designated Level I wage was incorrect.  On appeal, the Petitioner asserted that an incorrect methodology was used. Id. Although the AAO found that USCIS erred in its methodology by comparing the job duties of the proffered position to the definition of a Level I wage given in the DOL’s guidance, the AAO ultimately held that the Level I wage assignment was indeed improper.

The AAO explained that the Director should have applied the five-step process outlined in the DOL’s prevailing wage guidance which required comparing the experience, education, special skills, and supervisory duties described in the O*NET description to those required by the employer for the proffered position. After employing the proper analysis, the AAO found that the assignment of a Level I wage was improper, and that the petition was thus not approvable. The Petitioner had specifically failed on step three, which involved a comparison of the education requirements. The Petitioner’s stated minimum education requirement was a master’s degree in finance or a related field. Appendix D of the DOL guidance, however, indicates that the usual education level for a financial analyst was a bachelor’s degree. According to the AAO, the master’s degree requirement warranted a one level increase in the wage and the appeal was dismissed. Id.

Critically, the AAO highlighted in both cases that there is no inherent inconsistency between an entry-level position and a specialty occupation. Most professionals begin their careers in entry-level positions; however, this does not preclude USCIS from classifying the entry-level position as a specialty occupation. Conversely, a Level IV wage does not inherently mean that an occupation qualifies as a specialty occupation if the position has not satisfied the requirements of a specialty occupation. As the AAO stated, while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation. On the other hand, according to the AAO, the key issue is whether the LCA corresponds to the H-1B petition. If the wage on the LCA does not correspond to duties and requirements described in the H-1B petition, then the H-1B petition can be denied.

It is indeed salutary that the AAO confirms that H-1B eligibility cannot be denied solely on the ground that a proffered position is classified as a Level I wage. There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. Still, the AAO substituting its purported expertise for the DOL’s expertise in determining wage levels on the LCA is of great concern. The AAO stated, “When assessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL’s responsibility with respect to wage determinations.” But the AAO did precisely just that in Matter of G-S-J-USA, Inc. by usurping what DOL knows how to do best, which is making a wage determination.

The AAO relied on Appendix D in the prevailing wage guidance that provides a list of professional occupations with their corresponding usual education. If an occupation requires only a bachelor’s degree in Appendix D, and the employer requires a Master’s degree, which was the case in Matter of G-S-J-USA, Inc., then according to the DOL guidance, the employer is required to increase the wage level by one notch even if there is no experience requirement. It is not clear from the AAO decision whether it selected the appropriate occupation under Appendix D, which again is in the realm of DOL’s expertise. Even assuming the AAO arrived at the correct comparable occupation under Appendix D and the employer did not bump up the wage level, this ought to be considered as an LCA violation, which the DOL to deal with in the event of an LCA audit, and should not undermine the employer’s ability to employer the worker in a specialty occupation, resulting in USCIS outright denying the H-1B petition.

The two new AAO decisions teach that it may be a best practice for an employer to request and obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center prior to filing an LCA. As a practical matter, though, obtaining such a prevailing wage determination can take several weeks, and employers must timely file H-1B petitions within the first five business days of April each year to be considered under the H-1B lottery, or in the case of an extension, before the current H-1B status expires, or before the H-1B worker wishes to port to a new employer. In the event the employer disagrees with the NPWC determination, an appeal to the Board of Alien Labor Certification can take several months.  It is thus important to check Appendix D before the employer decides to require a Master’s degree and still pay a Level 1 wage.  On occasion, a position may require, at a minimum, an advanced degree. For example, a law degree is required for minimum entry into legal profession. However, an employer seeking to employ a new graduate would still be allowed to pay an entry level wage to the prospective employee under the DOL guidance. For lawyers, the DOL acknowledges that prospective employees need a professional degree prior to entering the profession, and thus a Level I wage is appropriate for an entry-level attorney position. Similarly, Market Research Analysts, Economists, and Urban Planners, among others, typically require a Master’s degree, for entry into the field. Attention should also be paid to other factors that may cause a bump up in the wage level, such as special skills or language requirements that may not be consistent with the skills listed in O*Net for a specific occupation. Thus, if the employer requires a foreign language skill, it may or may not need to bump up the wage level depending on whether a foreign language is inherently required for the job but which does not increase the complexity or seniority of the position. All this further confirms the point we make that assessing whether there is an excessive educational requirement or a skill lies within DOL’s rather than USCIS’s expertise.

Still, until the AAO changes its position, employers must carefully review the DOL Wage Guidance and Appendix D when assigning a wage on the LCA in the brave new world of H-1B adjudications in order to stave off a needless denial!

(The authors acknowledge the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)