KAZARIAN V. USCIS: DISCREDITING THE CIRCULARITY ARGUMENT IN EB-1 PETITIONS

The recent decision in Kazarian v. USCIS, — F.3d —-, 2010 WL 725317 (C.A.9 (Cal.)), http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010327, goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the extraordinary ability category (EB-1). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers.

Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.

All credit goes to my friend and colleague, Bernie Wolfsdorf, AILA’s current President, who decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. This writer is proud to have been part of an informal group of lawyers who occasionally assisted with thoughts and ideas on the amicus brief, which Nadine Wettstein, so adroitly crafted on behalf of the American Immigration Council. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation. We believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability.

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

1. Receipt of lesser nationally or internationally recognized prizes or awards.

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.

3. Published material about the person in professional or major trade publications or other major media.

4. Participation as a judge of the work of others.

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

6. Authorship of scholarly articles in the field, in professional or major trade publications or other media.

7. Artistic exhibitions or showcases.

8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.

9. High salary or remuneration in relation to others in the field.

10. Commercial success in the performing arts.

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

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian 1 affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. “

It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles.. And if the USCIS does not relent, petitioners should continue to discredit the government’s circularity argument. In addition to Kazarian, other federal district courts have been critical. See Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)(criticizing the government’s circular argument requiring that “plaintiff must prove he is a doctor of extraordinary ability in order to prove that he is a doctor of extraordinary ability”); Gülen v. Chertoff, Civil Action No. 07-2148, 2008 WL 2779001 (E.D. Pa. July 16, 2008), at *4 (“Because Gülen has met the requirements of three of the subcategories of 8 C.F.R. § 204.5(h)(3), the AAO’s determination that he has not demonstrated extraordinary ability is contrary to applicable law and must be reversed”). Kazarian is a step in the right direction, following on the heels of equally critical lower federal court decisions on circularity, and will also benefit another important community so vital to this country, outstanding professors and researchers, who can also claim permanent residence through another provision of EB-1, INA § 203(b)(1))(B), where the evidentiary criteria with extraordinary ability overlap.

[i]

HALCYON DAYS IN H-1B VISA PROCESSING

Much has already been written to deservedly criticize the USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo), http://tiny.cc/z3ZU8, which suddenly undermines the ability of IT consulting firms to file H-1B visas, http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. The latest is an excellent blog post from my friend and colleague, Angelo Paparelli, http://blogs.ilw.com/angelopaparelli/2010/02/my-entry.html, who shows how the Neufeld Memo is a thinly veiled attempt to kill a successful business model that have benefited American businesses. Our firm is beginning to see Requests for Evidence that regurgitate the language of the Neufeld Memo regardless of the substantial evidence submitted that established the nexus between the IT consulting firm and its client. Winning the H-1B visa petition filed by an IT consulting company used to be tough, but it has never been more challenging since the issuance of the Neufeld Memo. We hark back at the days when interpretations from the prior Immigration and Naturalization Service, although not a piece of cake, were far more reasonable and commonsensical.

The H-1B worker likely to be most severely jeopardized by the sudden shift in policy brought by the Neufeld Memo is the beneficiary of an approved I-140 petition under the EB-2 from India or China, or EB-3 from any country (especially India which is more backlogged than other countries), who must file many extensions of H-1B status while waiting endlessly for immigrant visa availability. Suddenly, this time around while requesting for the H-1B extension well beyond six years under Sections 104 (c) or 106(a) of the American Competitiveness in the 21st Century Act, the petitioner must overcome the disqualifying example, cited in the Neufeld Memo, of a third party placement where “the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will likely fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee (even if the day to day assignments are overseen by the client), an adjudicator can rely on the Neufeld Memo, which will give him or her sufficient leeway to arbitrarily deny the H-1B extension request. In the recent past, it was necessary to show a link between the petitioner and the client company. Now the Neufeld Memo wants more – this esoteric right of control – which may be most difficult to establish in the context of an IT consulting firm if it does not have its own proprietary product or methodology.

We look back with dreamy eyed nostalgia at earlier guidance. A 1995 memo by the then Assistant Commissioner of legacy INS, Michael L. Aytes, Interpretations of Itinerary in H-1B Petitions, HQADN (1995), more sensibly recognized that a contractor who paid the H-1B worker at all times remained an employer. Mr. Aytes advised:

Since the purpose of the regulation is merely to insure [sic] that the alien has an actual job in the United States, the itinerary requirement…can be met in a number of ways…the regulation does not require that the employer provide the Service with the exact dates and places of employment. As long as the officer is convinced of the bona fide[s] of the petitioner’s intentions with respect to the alien’s employment, the itinerary requirement has been met. The itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States. Service officers are encouraged to use discretion in determining whether the petitioner has met the burden of establishing that it has an actual employment opportunity for the alien.

With respect to the employer-employee relationship, Mr. Aytes in the good old days of 1995 reasoned so differently from Mr. Neufeld in 2010:

In the case of an H-1B petition filed by an employment contractor, Service officers are reminded that all prospective H-1B employers have promised the Department of Labor through the labor condition application process that they will pay the alien by appropriate wage even during periods of time when the alien is on travel or between assignments. Since the contractor remains the employer and is paying the alien’s salary, this constitutes employment for purposes of H-1B classification.

Mr. Aytes’ guidance on determining the employer of an H-1B petition, based on who pays the alien’s salary, was so much simpler and consistent with real world economic reality and tax law. Take a look at this Op-Ed in last Sunday’s NY Times, http://www.nytimes.com/2010/02/21/opinion/21shulman.html?scp=5&sq=shulman&st=cse, drawing attention to Section 1706 (especially after the plane crash by a computer programmer pilot into the IRS building in Austin), which specifically requires people in the IT consulting industry to be treated as employees and not as independent contractors, and excludes computer programmers from the safe harbor Form 1099 requirement under Section 560 of the IRC. The Neufeld Memo assumes, in contradiction of Section 1706, that H-1B programmers are not considered employees of the IT staffing firm, when Congress specifically directed them to be treated as such, at least for tax purposes, under 1706. Moreover, in a letter dated October 23, 2003 to Lynn Shotwell, Efren Hernandez III, then Director, Business and Trade Branch of USCIS recognized that if a new LCA was obtained as a result of a change in work location after the H-1B petition was filed, an amendment to the H-1B petition was not required. It is noted that the Neufeld Memo also contradicts DOL regulations that allow an H-1B worker to be placed for 30 or 60 days without the need to obtain a new LCA. 20 C.F.R. § 655.735(c). All this points out to the fact that an employer who assigns employees at third party sites, contrary to the Neufeld Memo, need not determine the location of every job site when filing the H-1B petition.

When a management consulting firm that may either use employees in-house to work on various client projects, or station its employees at client sites for extended periods of time, files H-1B petitions on behalf of prospective employees, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved and every client site at which an H-1B employee may be stationed. Similarly, when a law firm that may use associates in-house to handle various client matters, or station associates at client corporations for extended periods of time, files an H-1B petition, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved, and every client site at which an H-1B employee may be stationed. The rules do not differ for IT consulting firms in this respect simply because its business is software development and consulting rather than management consulting or the practice of law. And in the event of a lag between work assignments, INA 212(n)(2)(C)(vii) and 20 C.F.R. §655.731(c)(7)(i) prohibit an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period.

We demand that USCIS immediately withdraw the Neufeld Memo and to revert back to the halcyon days of Mr. Aytes’ 1995 guidance. The Neufeld Memo not only hurts the competitiveness of U.S. business but also jeopardizes the status of H-1B workers who are waiting endlessly for the green card. If there were no backlogs in the EB quotas, they would be permanent residents by now and would not be needlessly harassed by the Neufeld Memo when applying for the next round of H-1B extensions.

WILL THE NOTICE OF ENTRY OF APPEARANCE REQUIREMENT BY AN ATTORNEY HINDER PRO BONO ASSISTANCE TO IMMIGRANTS?

By
Cyrus D. Mehta
* and Myriam Jaidi**

 

On February 2, 2010, the Department of Homeland Security (DHS) published an interim rule, (available at http://tiny.cc/GvK9A), which adopts the Executive Office for Immigration Review (EOIR) rule at 8 Code of Federal Regulations (CFR) § 1003.102 that provides grounds to discipline practitioners for ethical violations. One specific provision, § 1003.102(t), which is the focus of this article, sanctions practitioners for failing to file a Notice of Entry of Appearance or sign pleadings, applications, motions or other filings if they have been engaged in practice and preparation.

The Department of Justice (DOJ) rules at 8 CFR § 1003.102, which were revised on January 20, 2009, significantly expanded the grounds under which a practitioner who practices before the EOIR can be disciplined. These rules can be found on the USCIS website at http://tiny.cc/j1rrs and will become part of the new DHS rule on March 4, 2010, and will extend to practitioners who practice before all of the components of DHS in immigration matters. This article raises preliminary questions about the impact of the specific section, 8 CFR § 1003.102(t), on pro bono clinics and services and illustrates that practitioners need further clarification from DHS to ensure that the rule does not undermine the provision of quality pro bono services.

Immigration practitioners are encouraged, even challenged, to take on pro bono representation and to participate in pro bono clinics. These clinics do a yeoman’s job in providing desperately needed assistance to indigent individuals who are unable to afford counsel and often require assistance on applications that are relatively straight forward and tend to require a simple, though thorough, review by an immigration attorney to spot important issues. In some clinics, non-attorney volunteers also assist in the filling up of applications that are supervised by volunteer lawyers. Typical examples of such applications are the N-400 for naturalization and more recently in the wake of the devastating earthquake in Haiti, the I-829 for Temporary Protected Status applicable to Haitian nationals. The need is significant and has prompted Second Circuit Judge Robert Katzmann and Second Circuit judicial nominee Denny Chin (currently a Federal District Court judge in the Southern District of New York) to bring together judges, private practitioners from large firms and solo offices, academics, clinicians, legal aid providers, and grievance committee members to study what could be done to promote good legal representation for low income immigrants. The reports of the study group are available here, http://tiny.cc/t95Wm.

The rule DHS will adopt on March 4, 2010 and which concerns us here, 8 CFR § 1003.102 (t), sanctions a practitioner who:

t) Fails to submit a signed and completed Notice of Entry of Appearance as Attorney or Representative in compliance with applicable rules and regulations when the practitioner:

(1) Has engaged in practice or preparation as those terms are defined in §§1001.1(i) and (k), and

(2) Has been deemed to have engaged in a pattern or practice of failing to submit such forms, in compliance with applicable rules and regulations. Notwithstanding the foregoing, in each case where the respondent is represented, every pleading, application, motion, or other filing shall be signed by the practitioner of record in his or her individual name…

The terms “practice” and “preparation” are defined in new sections 8 CFR § 1.1 (i) and (k), as follows:

The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS.

The term preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and naturalization procedure.

As is quite evident, “practice” and especially “preparation” have been defined broadly to encompass pro bono assistance that an attorney may provide at a clinic where he or she may assist numerous individuals in understanding the requirements of and filling out particular applications. After these forms are completed, the applicant is responsible for submitting the application on his or her own to the appropriate filing address. Does this mean that a pro bono volunteer attorney needs to submit a notice of entry of appearance and sign his or her name on, for example, the I-829 or N-400 form? Given that these clinics often include a system whereby some volunteers check individuals in to determine whether they have the necessary documents with them, other volunteers may rove and answer questions raised by individuals as they complete the forms on their own, and another set of volunteers who do a final review of the application and documents, which of these volunteers would be required to sign as the preparer or put in the G-28?

Clearly, this rule was not intended to target pro bono lawyers who render assistance at a pro bono clinic for a deserving cause. The preamble to the proposed rule that sought to expand the grounds for disciplining practitioners in 8 CFR §1003.102, published in the Federal Register at page 44183 (http://tiny.cc/N3Jkt) states,

This provision is intended to address the growing problem of practitioners who seek to avoid the responsibilities of formal representation by routinely failing to submit the required notice of entry appearance forms. Furthermore, the difficulties in pursuing a practitioner for discipline for participating in the preparation of false or misleading documents are apparent when the practitioner fails to submit a completed notice of entry of appearance.

Nevertheless, without clarification, it appears that pro bono attorneys may need to submit a notice of appearance or to sign forms as preparers under 8 CFR § 1003.102(t).

While 8 CFR § 1003.102(t)(2) appears to make the failure to file a notice of entry of appearance a ground of discipline only applicable to one who is deemed to have “engaged in a pattern and practice of failing to submit such forms,” the signing of the form by the practitioner in his or her name is a separate requirement in the next sentence of § 1003.102(t)(2). That sentence indicates that the attorney would be required to sign the forms only where “the respondent is represented . . . by the practitioner of record.” However, considering that “the term representation . . . includes practice and preparation as defined in paragraphs (i) and (k),” 8 CFR § 1.1(m), what triggers the signature requirement is unclear. Overall, the rules do not provide clear guidance as to whether a pro bono attorney who is participating in a clinic to assist individuals who will submit forms pro se must sign as preparer.

The scope of acts that may fall under the rule must be clarified, given that the definition of “practice” includes not just a person appearing in a case, but also includes, through the added definition of “preparation” activities such as “the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers…” This definition is broad enough to include acts such as an attorney giving only brief advice through a consultation. Under those circumstances it is virtually impossible for such an attorney to submit a notice of entry of appearance if nothing is prepared or filed after the conclusion of such brief advice. On the other hand, if an attorney assists in the preparation of a motion, pleading or application, or reviews an application prepared pro se by the applicant, in addition to giving the brief advice, and even if the applicant will ultimately file pro se, it would trigger the requirement, at the very minimum, of the attorney signing his or her individual name on the application.

Although the regulations do not target pro bono attorneys, language in the preamble to the EOIR proposed rule indicates that pro bono attorneys are meant to be covered by the rule if their actions are found to fall within the definitions of “practice” and/or “preparation”:

11. Section 1003.102(t)–Notice of Entry of Appearance

Comment . One commenter thought that the proposed provision was too broad because it subjects practitioners who provide pro bono services to discipline if they do not sign pleadings or submit a Form EOIR-27 or EOIR-28. The commenter suggested that disciplinary sanctions only be imposed when filings demonstrate a lack of competence or preparation, or the practitioner has undertaken “full client services.” Another commenter approved of this change, but suggested that pro se aliens be provided notice of this requirement in their own language and that immigration judges inform all who appear before the court of the requirement.

Response. The Department believes that all practitioners should submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR, in cases where practitioners engage in “practice”’ or “preparation” as those words are defined in 8 CFR 1001.1(i) and (k). It is appropriate to require practitioners who engage in “practice” or “preparation,” whether it is for a fee or on a pro bono basis, to enter a notice of appearance and sign any filings submitted to EOIR. As stated in the supplemental information to the proposed rule, this provision is meant to advance the level of professional conduct in immigration matters and foster increased transparency in the client-practitioner relationship. Any practitioner who accepts responsibility for rendering immigration-related services to a client should be held accountable for his or her own actions, including the loss of the privilege of practice before EOIR, when such conduct fails to meet the minimum standards of professional conduct in 8 CFR 1003.102. It is difficult for EOIR to enforce those standards when practitioners fail to enter a notice of appearance or sign filings made with EOIR. However, in an effort to ensure clarity of this ground for discipline, a sentence will be added to this provision that makes it clear that a notice of appearance must be submitted and filings signed in all cases where practitioners engage in “practice” or “preparation.” If a practitioner provides pro bono services that do not meet these definitions, then a notice of appearance is not necessary.

As for the suggestions made by the second commenter, the Department declines to codify in the regulations a rule that requires notice to pro se aliens or anyone appearing before an immigration judge of an attorney’s obligation to enter a Notice of Appearance. The scope of this rule is to provide notice to attorneys of their responsibilities when engaging in practice and preparation before EOIR and to provide grounds for discipline when an attorney fails to carry through on his or her responsibilities.

73 Fed. Reg at 76914 (July 30, 2008). This fact makes clarification essential to the continued viability of pro bono clinics. In order to meet the challenges proclaimed by Judge Katzmann and the needs presented by human crises, such as the recent devastation caused by the earthquake in Haiti, pro bono attorneys need to know how to proceed when they assist indigent immigrants in preparing applications.

Clearly, 8 CFR § 1003.102 (t) appears to be in conflict with ABA Opinion 07-446 (May 5, 2007), http://tiny.cc/18eBI, which holds, “A lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosures of the nature or extent of such assistance.” Although the opinion is not binding and assumes a context in which no law regulates undisclosed advice, it raises the important issues, not contemplated in the preamble or the rule itself, of the right of an individual to proceed pro se without disclosing a lawyer’s involvement, the importance of “unbundling” legal services to allow assistance tailored to a specific need (and this is authorized under ABA Model Rule 1.2(c)), and the question of whether the fact of the assistance is material or the failure to disclose that assistance would constitute fraud in some way.

Although some may question the harm pro bono attorneys are concerned about in signing an application as a preparer, the signing requirement may dissuade volunteers from participating for fear of sanctions or potential litigation against them. Many clinics require individuals seeking assistance to sign a waiver or a limited scope of services agreement in order to protect the sponsoring organization and individuals volunteering from legal action. Most lawyers participating in pro bono clinics do not expect to be sanctioned as a result of reviewing a document or answering simple questions about a form that may be unclear to a non-lawyer. The new rule therefore jeopardizes the availability of pro bono services for the immigrant poor because it fails to clarify the scope of its reach.

The authors suggest that interested bar associations and organizations organizing pro bono clinics around a brief services model send in comments to the DHS rule on or before March 4, 2010 asking for modification of this requirement for pro bono volunteers providing pro se assistance to indigent immigrants.

(The views expressed in this article are solely of the authors and do not represent the views of any of the organizations they have any involvement with, presently or in the past.)

* Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is also an Adjunct Associate Professor of Law at Brooklyn Law School where he will teach a course on Immigration and Work. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International Who’s Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration related topics.
** Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters. Ms. Jaidi received her J.D. from the University of Michigan Law School where she served as Editor-in-Chief of the Michigan Journal of Race & Law and was awarded the Dores McCree Award for Service to the Law School Community. She received her M.A. from Stanford and her B.A. cum laude from Harvard University in History.

MORE ON H-1B ADMISSIONS AT NEWARK: EXPEDITED REMOVAL SHOULD BE USED WISELY

Customs and Border Protection (CBP) has extraordinary power under Section 235 of the Immigration and Nationality Act to summarily remove a nonimmigrant from the U.S. at a port of entry if they find him or her inadmissible either for fraud or for failure to possess the proper visa. Generally, there is no further hearing or review of such an order, unless the applicant for admission claims to be a U.S. citizen, lawful permanent resident, refugee or asylee, or claims to fear harm in his or her home country. The individual facing such an order also does not have the right to have an attorney present at secondary inspection at the port of entry.

The recent incidents involving H-1B entrants who were subjected to expedited removal orders at Newark airport, especially Indian computer programmers in the IT consulting industry, has caused a stir in the H-1B community, http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. CBP Headquarters appears to be standing behind the actions of CBP in Newark. CBP HQ informed AILA’s CBP Liaison Committee, according to a posting on the AILA InfoNet website on February 2, 2010, that “several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or U.S. Citizenship and Immigration Services (USCIS) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. ” The report goes onto state, “In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (FDNS) and the Department of Labor – Office of Investigations. CBP HQ stated that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.”

The AILA InfoNet posting also indicated that “on January 27, 2010, AILA members attending a CBP meeting in Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.”

On the other hand, CBP HQ did not specifically discuss the facts of specific cases with AILA. If someone believes that he or she was improperly determined inadmissible or improperly treated, he or she can inquire through the normal inquiry process with CBP in Newark, http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/cbp_psml.xml. Therefore, those who feel that they signed statements under duress or were properly maintaining H-1B status and wrongfully deported, should continue to pursue the matter with CBP Newark. Affected individuals should also ascertain whether CBP contacted their employer, as they claimed they did in their response to AILA, where clarification was needed. Even if an employer may have been investigated by the DOL or by CIS-FDNS, it still does not warrant the CBP to issue an expedited removal order unless the H-1B worker was not properly using the H-1B visa or was in collusion with the employer. The H-1B entrant could still have been in status despite an investigation of the employer.

It is also unfair, if the CBP is using the January 8, 2010 Nuefeld Memo on H-1B visas, http://tiny.cc/z3ZU8, to conclude that the H-1B entrant will not properly use the visa, or is engaging in fraud, solely because he or she is working at a client, whether direct or indirect, of the employer. While the Memo indicates that H-1B workers working at third party sites who report to managers there may no longer be eligible for an H-1B visa, it is a complex document, and may allow IT consulting companies to still demonstrate the right of control over their employees, even if working at client sites, See From Problem To Springboard: Tips On Using The Neufeld Memorandum in Support of H-1B Petitions, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201012455838. All this cannot be demonstrated or rebutted during a secondary inspection interrogation of an H-1B employee, and despite the CBP HQ response, we believe that the Newark actions were still arbitrary and unwarranted, See Why Is H-1B A Dirty Word? http://ailaleadership.blogspot.com/2010/02/why-is-h-1b-dirty-word.html. And assuming that there is a conclusive finding of fraud or improper prior approval of the H-1B petition, the DHS may issue a notice of intent to revoke the petition, and allow the employer to respond, rather than issue an ER at the airport to the H-1B employee after a cursory review of the situation. Assuming that the CBP believes that the employer perpetrated fraud, but the H-1B employee is innocent, it can still allow him or her to withdraw admission. A withdrawal of admission allows the individual to return to the U.S. upon applying for a new visa at a U.S. Consulate. Expedited removal, on the other hand, bars the H-1B employee for 5 years.

We acknowledge that the CBP has tremendous power over a nonimmigrant visa entrant under Section 235 at the POE, but we respectfully ask the CBP to use this power wisely and to reverse any erroneous decisions of its officers at Newark regarding H-1B visa entrants.

SHOULD HAITIANS APPLY FOR TEMPORARY PROTECTED STATUS?

In the aftermath of the most devastating earthquake in Haiti, we lawyers are all trying to find ways to help. Assisting Haitians legalize their status in the United States is a good start, and there are pro bono clinics lined up already in New York. Haitians who can work legally can send more remittances to their loved ones in Haiti, which can be the most effective form of aid after this horrific tragedy. The AILA-NY Chapter and the New York City Bar Justice Center are holding a free clinic to assist Haitians on January 28, 2010, although the response from lawyers was so wonderfully overwhelming that it was closed in less than a day, http://www.aila.org/content/default.aspx?docid=31036

CUNY Citizenship Now!, the New York City Mayor’s Office of Immigrant Affairs, the Legal Aid Society, the New York Immigration Coalition, the CUNY School of Professional Studies, and other advocacy groups are planning two TPS application assistance events in Brooklyn, New York on Saturday, January 30 and Saturday, February 6, 2010. See link for details:
http://www.cuny.edu/about/citizenship/volunteer/HelpHaitiByVolunteering.html.

For now, all of these pro bono projects are a work in progress. We need to gauge the need from the Haitian community too. The question everyone is asking is whether Haitians will come forward in large numbers and apply for Temporary Protected Status, which was announced on January 21, 2010 and which will continue till July 22, 2011? http://edocket.access.gpo.gov/2010/2010-1169.htm . TPS is only temporary and will last for 18 months. An individual who was not in status prior to the grant of TPS will again fall out of status after July 22, 2011, unless TPS is extended. This individual might justifiably fear that after the 18 month period, will Immigration and Customs Enforcement (ICE) deport me since I am already in the system? While this concern may be legitimate, it must be weighed against continuing to be out of status. An undocumented individual, or one who is out of status, is still at risk of being apprehended and ultimately deported. So it might be better to legalize through TPS, which also gives one the benefit of work authorization. If the application is too expensive – the total filing fees with an Employment Authorization Document costs $470 – there is a fee waiver, which the USCIS has indicated that it will consider generously and with compassion.

It is likely that TPS for Haitians will be extended beyond 18 months given the havoc the earthquake has wrought on the country. TPS has been extended for many years to nationals of other countries. For example, TPS for Salvadorans was announced on March 9, 2001 and is continuing until the present. TPS for Somalians was announced on September 16, 2001 and still continues till today. TPS for Sudanese was announced on November 4, 1997 and continues till today. The same with nationals of Honduras and Nicaragua, which have benefited from TPS for more than a decade. Liberians too enjoyed TPS, and when TPS expired for them, they were granted Deferred Enforced Departure, which they still get. We have never heard of mass deportations after the TPS program for a country has expired. See Immigration Policy Center Report on TPS, http://www.immigrationpolicy.org/just-facts/granting-refuge-temporary-protected-status-tps-haitians-united-states

Hence, there is a great advantage for a Haitian to apply for TPS within the 180 day period. Getting in now, within the 180 day period, will allow the individual to extend if TPS is extended for Haiti after the 18 month period. Note that an eligible candidate must have continuously resided in the U.S. since January 12, 2010. Anyone who has come after that date is not eligible. Finally, TPS is not available to those who have been convicted of a felony or two or more misdemeanors. If anyone falls in this disqualifying category, the Immigrant Defense Project Advisory is essential reading, http://www.immigrantdefenseproject.org/webPages/practiceTips.htm.

NEW USCIS MEMO ON EMPLOYER-EMPLOYEE RELATIONSHIP FOR H-1B PETITIONS: IS IT A WAY TO KEEP CERTAIN WORKERS OUT?

The Requests For Evidence hurled against IT consulting firms after they filed H-1B visa, then the raves and rants of Senator Grassley against allegedly abusive IT firms, followed by the BusinessWeek article on job shops giving prime time to the rabidly anti-immigrant Programmers Guild, along with attacks on the H-1B program by even our own allies at labor organizations, where even sophisticated IT firms are pejoratively called “body shops,” have all been code for keeping the Indians out. See H-1B BIGOTRY, http://tiny.cc/KN180 .

And now the latest USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo), http://tiny.cc/z3ZU8 , which in one sudden swoop, and in violation of the public notice and comment procedures of the Administrative Procedure Act, guts the ability of IT consulting firms to file H-1B visas, is again a thinly veiled attempt to kill a successful Indian business model that American businesses have so readily embraced.

It is then no surprise that the outrageous singling out of Indians since the New Year waiting in the line at Newark and other airports by CBP officials is the result of the Neufeld Memo that may have filtered through CBP officialdom but not the public until January 13, 2010. On one fateful day, January 11, 2010, when Continental Airlines Flight 49 landed in Newark from Mumbai, India, we know that CBP officer Matt McGirr and his colleagues, hunted through the lines for Indian H-1B workers even before they showed up for primary inspection. Their minds were made up. No detailed questions were asked. The moment they found Indian H-1B workers who uttered that they were working at a client site in the IT field, their fates were sealed. They were subjected to expedited removal orders and sent back to India. Some were luckier and escaped the ER order, but still had to withdraw their applications for admission to the U.S. Nevertheless, they were all coerced into making statements under threat of being detained. CBP officials also made remarks as to why the H-1B workers, singled out for deportation, earned more than U.S. workers and should not be paid so much. The consequence of expedited removal is a 5 year bar from entering the U.S. It is hoped that higher and saner officials within CBP will realize that these ER orders were unwarranted and trampled upon the civil rights of Indian workers, erase them and allow them to continue to contribute their skills and expertise, which in turn benefit U.S. corporations.

But the damage will continue through this Neufeld Memo, which takes aim at mainly Indian H-1B IT workers at third-party client worksites. Essentially, the Neufeld Memo insists that there must be an employer-employee relationship at all times throughout the requested period of H-1B employment. The employer, according to the Neufeld Memo, must be able to establish the right to control over when, where, and how the H-1B worker performs the job, and the USCIS will consider the following in determining whether there is an employer-employee relationship, notwithstanding the fact that the IT consulting firm hired the individual and is on its payroll:

1) Does the petitioner supervise the beneficiary and is such supervision off-site or on-site?
2) If the supervision is off-site, how does the petitioner maintain such supervision, i.e. weekly calls, reporting back to main office routinely, or site visits by the petitioner?
3) Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
4) Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
5) Does the petitioner hire, pay, and have the ability to fire the beneficiary?
6) Does the petitioner evaluate the work-product of the beneficiary, i.e. progress/performance reviews?
7) Does the petitioner claim the beneficiary for tax purposes?
8) Does the petitioner provide the beneficiary any employee benefits?
9) Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
10) Does the beneficiary produce an end-product that is directly linked to the petitioner’s line of business?
11) Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

Under these criteria, an IT consulting firm, which does not have its own proprietary software, and which the H-1B worker will implement for a client under supervsion from the IT firm, will most likely be doomed when it files an H-1B visa. Indeed, the Neufeld Memo cites the example of a third party placement where “the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee (even if the day to day assignments are overseen by the client), the USCIS will rely on the Neufeld Memo, which will give it sufficient leeway to deny the H-1B petition. In the recent past, it was necessary to show a link between the petitioner and the client company. Now the Neufeld Memo wants more – this esoteric right of control, and this will be impossible in the context of an IT consulting firm, which may not have its own proprietary product or methodology.

The USCIS cannot make law through a memo, which CBP officials have also started relying upon at airports to deport Indian H-1B workers in the IT industry. Clearly, the free market economy, which the U.S. hopefully still espouses, has recognized the value that these Indian IT consulting firms bring to U.S. business, and in turn, to the U.S. consumer. There is already a vigorous process in place that scrutinizes H-1B requests, and a de facto re-adjudication procedure when the worker requests an H-1B visa at a U.S. consulate in India. We do not need another restrictive memo, which will kill the spirit of innovation and entrepreneurship, which also brings with it expertise, that the U.S. so vitally needs. Indeed, there is a lot more in the Neufeld Memo that is troubling, such as the inability of a petitioning entity that is owned by the beneficiary to sponsor him or her. This aspect of the Memo also contravenes long established principles that a corporate entity is a separate legal entity and can sponsor a beneficiary for an H-1B visa. See USCIS GRAPPLING WITH THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA, http://tiny.cc/OwSOX . This too will kill innovation and enterprise. Don’t we want more folks to come here to start another Google? I am not sure the officials at Department of Homeland Security get it. DHS‘ mission is to ensure national security and not to promote economic dynamism and make the U.S. the most attractive destination in the world for the hardworking, creative and innovative.

EXPEDITED REMOVAL OF H-1B WORKERS AT NEWARK AIRPORT

We have personally heard of H-1B workers from India employed by IT consulting firms being subject to expedited removal orders at Newark airport in New Jersey. The grounds seem to be rather spurious. Some H-1Bs have been removed because they were working at client work sites, and the position of the Customs and Border Protection officer was that the H-1B petition should have been filed by the client and not by the IT consulting company. Another affected H-1B worker reported that the CBP officer did not believe it was legitimate for the IT consulting firm to be making a profit by billing the client for the services of the H-1B employee. While we need to gather more facts, all of this makes no sense. It is legitimate for an employer to assign an H-1B worker to a client so long as it is indicated in the H-1B petition and that the underlying Labor Condition Application also covers the client location. In some cases, short term assignments may not be considered worksites and need not be covered in the LCA. There is no prohibition for an H-1B worker to make a profit through the services of an H-1B worker so long as he or she is being paid the higher of the prevailing or actual wage (the wage paid to similarly situated workers employed by the IT consulting firm). Moreover, the USCIS is pretty tough in its scrutiny of H-1B petitions filed by IT consulting companies before approving them. Also, the consul also further scrutinizes visa applicants before granting an H-1B visa.

Our colleague, Ron Gotcher, also reports similarly on his blog, http://imminfo.com/News/Newsletter/2010-1/newark_airport_beware.html, and notes one ridiculous instance of a CBP official telling an H-1B worker that only US citizens or permanent residents can work for state agencies.

Most H-1B workers report that they are forced to make their statements under threats of being detained. Furthermore, non-immigrants entrants who are subject to secondary inspection at an airport have no right to counsel. It is important for H-1B workers to stay calm and be truthful and not wilt to pressure. If there is a rogue element among CBP officials at Newark, everyone needs to protest and work with the highest echelons at CBP to correct the problem. Those who have been subject to erroneous expedited removal orders can informally work with the CBP to vacate the expedited removal order. Otherwise, such an order bars the individual from entering the US for a period of 5 years, and it is not fair to so harshly penalize an H-1B worker just because CBP at Newark decides that he or she is violating the terms of the visa.

CHRISTMAS BOMBER AND REVOCATION OF VISAS

It has now become acceptable wisdom that the State Department should have revoked the visa of the Nigerian, Mr. Abdulmutallab, who attempted to detonate a bomb on the flight to Detroit on Christmas Day. Here is an extract from a New York Times editorial, The System Failed (http://tiny.cc/FwCPz), dated December 29, 2009:

“What makes this so much worse is that officials had something they can’t always expect: fair warning. In mid-November, Mr. Abdulmutallab’s father, a prominent banker in Nigeria, went to the American Embassy in Abuja to ask for help and warn them of his son’s increasing “radicalization.” The State Department, working with other agencies, had the power to revoke the son’s visa or put a temporary hold on it. Officials say the warning was insufficient. That seems like a very bad judgment call.”

On hindsight, when we have 20-20 vision, it may have been a bad judgment call on the part of the State Department for failing to revoke his visa. But is the State Department to bear the brunt of the blame? I don’t think so. Take for example the case of someone, say a national of Nigeria, who possesses an F-1 student visa and is studying at Harvard University. He has a personal feud with his spouse and her family while on vacation in Nigeria. Her spiteful father decides that the best way to nail him is to falsely report to the US Embassy that he has become increasingly radical by associating with extremist Muslim clerics. After the drubbing that the US Embassy got with the Christmas bomber, they will likely take no chances and revoke his visa. He gets stuck and cannot return to study at Harvard even though the report was false and baseless.

In a world that is increasingly fearful of that one individual who can cause mayhem and destruction, it is all too tempting to take away immigration benefits or to deport foreign nationals on mere suspicions. Clearly, there can be other layers of safeguards before revoking immigration benefits on mere suspicions. The New Times editorial goes on to add:

“The embassy did pass on the father’s information, as required, to the National Counterterrorism Center and the son’s name was added to a database of 550,000 people with some alleged terrorist connections. Officials decided that the warning wasn’t enough to put him on the list of 14,000 people subjected to more thorough airport searches or to the 4,000-person “no fly” list. That was clearly a very bad call.”

I agree that this was a very bad call. There was that one additional layer, the National Counterterrorism Center, which could have connected the dots and differentiated between the bomber and our hypothetical student at Harvard who got caught up in a family feud and became the victim of a false allegation. Even our hypthetical situation is an extreme case, and one fears that fearful consuls will refuse visas on very flimsy grounds. After all, our government had intelligence that Al Qaeda in Yemen was planning to use a Nigerian to attack the U.S. Clearly, the screening machines at the airports too failed when they could not pick up 80 grams of PETN on Mr. Abdulmutallab. We need smart intellegence to keep out terrorists, and not rely solely on immigration policy to do the job.

While we are all concerned about our safety and security, I urge our government to give pause, even after this incident, and not needlessly revoke visas, take away immigration benefits or refuse to grant immigration benefits on mere hunches and suspicions, and without probing further and connecting the dots.

BALCA DISREGARDS SEPARATE ENTITY IN MATTER OF PA’LANTE

This post is about a small bore issue. It is about a quibble that I have about a footnote in a decision of the Board of Alien Labor Certification Appeals (BALCA) in Matter of Pa’Lante, 2008 PER 00209 . But I think it is worth pointing out so that a future appellant can remind BALCA that it got it wrong.

I have no dispute with Matter of Pa’Lante in general. It resulted in a good outcome for the employer who was snared by PERM’s hyper-technical rules. The labor certification, filed in 2006, was for an executive pastry chef, and the position required a bachelor’s degree in culinary arts and one year of experience in the job offered. In the alternative, the position required a combination of education and experience, amounting to two years of experience. The sponsored employee had the requisite degree, and only needed to demonstrate one year of experience in the offered position. According to the decision, the labor certification did not list the employee’s prior experience, and the labor certification was denied as the pastry chef did not qualify for the job for which he had been sponsored. It only listed his experience with the employer who was sponsoring him. If one reads carefully, the decision states that “the only jobs listed in Section K. involved prior experience by the Alien in the job offered with the restaurant at which he currently works for the petitioning Employer, or what appears to be other restaurants owned by the Employer it only listed his experience with this employer or with restaurants owned by the same employer from 2002 to 2006.” With respect to experience gained with the same employer, 20 C.F.R. 656.17(i) clearly requires the employer to state its actual minimum requirements and that it has not hired people below these actual minimum requirements. So if the employer hired someone at an entry level, it cannot list one year as a minimum requirement as the sponsored employee was not hired with that experience.

But in Pa’Lante the pastry chef had substantial prior experience before 2002, which was introduced in response to the audit notification by way of a detailed evaluation of an educational consultant that was prepared in 2000. BALCA correctly applied HealthAmerica, 2006-PER-1, which held that a mere typographical error on the form should not result in a denial if there was actual evidence of compliance and reversed the CO’s denial. In HealthAmerica, an incorrect date on the application as to when the Sunday advertisement ran was not fatal when it could be proved that the actual advertisement ran on a Sunday. According to BALCA, Pa’Lante involved more than a typographical error as there was a wholesale omission of the required experience. On the other hand, BALCA reasoned that since the employer was able to introduce detailed evidence in its audit response and motion for reconsideration that was not fabricated or prepared after the filing, it would forgive the omission of experience and applied HealthAmerica.

Pa’Lante is essentially a good decision as it broadened the HealthAmerica doctrine beyond typographical errors. But in footnote 2 of its decision, BALCA stated:

“The record is not clear whether the restaurants listed in Section K of Form 9089 are all owned by he same business entity. They appear to be, possibly making that experience (from March 2002 to the date of filing of the PERM application) ineligible for consideration as experience gained prior to hire by the sponsoring employer. See generally Inmos Corp., 1988-INA-326 (June 1, 1990) (en banc). The Employer seems to acknowledge that it in its reply brief. Nonetheless, the audit documentation clearly establishes that the Alien had the requisite qualifications for the job as early as 2000 – well before he started work for one of the Employer’s restaurants.”

BALCA cited law that has been overturned. Current 20 C.F.R. 656.17(i)(5)(i) refers to “employer” as an entity with the same Federal Employer Identification Number (FEIN). Thus, if two entities, even if owned by the same person, or where one is a subsidiary and the other a parent, have two FEINs, then experience with one entity can be used as a job requirement by another entity. This change was brought about by the new Program Electronic Review Management (PERM) rule (see 69 Fed. Reg. at 77354 (Dec. 27, 2004)), which rejected the pre-PERM law that considered entities owned by identical shareholders or a parent-subsidiary as the same employer even if they had different FEINs. Pre-PERM, if the sponsored employee gained experience with one restaurant and was sponsored by another, and both had identical shareholders and corporate officers, that experience was considered on-the-job experience and could not be used as a job requirement in the labor certification. See e.g. Salad Bowl Restaurants, 90-INA-230 (BALCA June 12, 1990). BALCA in Salad Bowl Restaurants held that for the DOL to consider on-the-job experience gained with the other employer, the sponsoring employer “must demonstrate that its ownership and control are separate and distinct from the company where the employee gained his qualifying experience,” and if distinction can be shown, it must also show that the two employers have “distinct operational independence.”

Pa’Lante involved a filing after the PERM rule took effect, and any experience gained at a different entity may have still qualified. It appears that the experience of the pastry chef listed from March 2002 may have been eligible for consideration as experience gained prior to hire by the sponsoring employer, contrary to BALCA’s assertion in footnote 2. BALCA itself acknowledged that some of the experience may have been gained by other restaurants owned by the same entity. To be fair, nothing in the BALCA decision indicates whether these restaurants had different FEINs. They may not have been separate entities and may have been branches or divisions of one entity. Yet, BALCA did not analyze it this way by distinguishing between the rule prior to PERM and after. BALCA instead cited Immos Corp, supra, which held along the same lines as Salad Bowl Restaurants that experience gained by an employee at a parent corporation was counted as on-the-job experience when it’s wholly owned US subsidiary filed the labor certification. Immos along with Salad Bowl Restaurants have been overturned after PERM and should not have been relied upon by BALCA.

While many of the rules under PERM have complicated the labor certification process further, one exception was 20 C.F.R. 656.17(i)(5)(i), which elegantly and simply suggests that two entities with different FEINs are not the same employer for purposes of on-the-job experience prohibition. With this rule, there is no longer any need to analyze whether two entities owned by the same shareholder or shareholders had “distinct operational independence.” The rule also reflects modern day realities involving corporate reorganizations. To illustrate, if the worker was working for an employer with a different FEIN number that was acquired or merged into the sponsoring employer, the experience gained by this worker for the predecessor entity would not be considered prohibited “on-the-job” experience, as the experience was gained with an entity with a different FEIN. There was no need for BALCA in Pa’Lante to resurrect old ghosts that have long since been exorcised.

IS AN IMMIGRATION AGENCY A TRIBUNAL UNDER NEW YORK’S ETHICAL RULES?

In preparing for the ethics panel for the AILA 2009 New York Chapter Immigration Symposium on December 1, 2009, I came across an interesting connundrum with my co-panelists. Are the offices within the Department of Homeland Security, such as United States Citizenship and Immigration Services (USCIS), or other governmental agencies that deal with immigration matters, such as the Department of Labor or Department of State considered tribunals?

A lawyer has a duty of candor before a tribunal. New Rule 3.3 of the New York Rules of Professional Condcut prohibits a lawyer from making a false statement to a tribunal or to knowingly assist a client in making a false statement on an application that if submitted to a tribunal. This rule is similar to the same ABA Model Rule, which has been adopted by most states.

Rule 3.3 also requires that a lawyer who comes to learn of the false statement after submission take reasonable remedial measures, including if necessary, disclosure to the tribunal. The proper course is to first remonstrate with a client confidentially, and seek the client’s cooperation with respect to the withdrawal or correction of the false statement. Most clients will hopefully understand that taking such a measure is also in their best interests, and that a lawyer is likely to take steps that is least damaging to the client. For instance,if an asylum claim otherwise includes truthful elements, the withdrawal of the damaging evidence may be presented at the same time as part of a packet of evidence that is otherwise truthful and supportive of the client’s claim. If the client is uncooperative and withdrawal from the representation cannot remedy the false statement, the lawyer, under Rule 3.3(b), must make disclosure to the tribunal as is reasonably necessary to remedy the situation, even if such disclosure if protected under the attorney client rule of confidentiality.

The term “tribunal” is broadly defined in Rule 1.0(w) to encompass not just a court but even an “administrative agency or other body acting in an adjudicative capacity.” But the definition of “tribunal,” and its reference in Rule 3.3 with respect to an administrative agency still connotes a court-like adversarial proceeding involving two parties. At issue is whether the USCIS, along with the Department of Labor and Department of State, would be considered “tribunals” under this definition. The definition of tribunal goes on to state: “A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting the party’s interests in a particular matter.” There is no question that a proceeding before an Immigration Judge or the Board of Immigration Appeals would be before a “tribunal,” but there is ambiguity as to whether it would extend to the above governmental agencies too as it is unclear whether there is a neutral official who will render a legal judgment “after the presentation of evidence or legal argument by a party or parties” when one files an application with the USCIS or with a U.S. Consulate.

As a practical matter, though, whether an immigration-related agency is a tribunal or not should not matter. If an attorney knowingly assists a client in filing a false application, such conduct may trigger criminal liability regardless of whether the application was made to a tribunal or not. An attorney is also required to be truthful to third persons, governmental or otherwise, under Rule 4.1. Moreover, Rule 1.6(b)(3), while not mandating it, allows a lawyer to withdraw a written or oral opinion or representation relied upon by a third person (even if not with a tribunal), where the lawyer belatedly learns of its falsity. Finally, a similar duty of candor applies to immigration agencies under parallel ethical rules in 8 C.F.R. §1003.102(c) and 8 C.F.R. 292.3(b), governing the conduct of private immigration attorneys, although the requirement is to “take appropriate remedial measures” without a specific requirement to disclose to the tribunal.

Regardless of the ambiguity in the definition of tribunal, it behooves a lawyer to ensure at the outset of the representation, and prior to filing an immigraiton application, that there is no false, misleading or inaccurate statement. For example, it always makes sense to meet with both the spouses, and run some typical questions by them, to ascertain that the marriage is bona fide prior to taking on the case and filing the applications.