Gary Endelman and Cyrus D. Mehta

As we enter the second decade of the 21st century, the world seems to be getting far more flat than what Tom Friedman originally envisaged with people being able to deliver services and products to the US and other countries from anywhere via the internet. Also, coinciding with this flat world is the most severe US recession in living memory, which compels people, including immigrants, to find jobs in other parts of the world and yet remain firmly rooted with the US.

Gone are the days when immigrants came to the US in sailboats and steamships, destined never to return home. In today’s globalized flat world, with access to cheap direct flights across continents, broadband internet, Blackberries, Twitter, Facebook, LinkedIn and video conferencing, an immigrant can continue to maintain deep ties and bonds even if absent from the country. It is quite typical for a US company to assign its key employee, a freshly minted green card holder, working in the US to set up operations in Mumbai or Shanghai for a few years, with the intention of ultimately returning to the US. Yet, this person’s ability to become a US citizen can get jeopardized as a result of this overseas assignment. In our previous article on a related subject, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849 (July 1, 2008), we focused on strategies to preserve permanent residence. In this blog post, we examine the tension between our citizenship laws and the global economy, and the challenges it poses to those who desire to naturalize.

An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

This is the killer provision, which we focus on in this post, and which creates problem when a permanent resident is based overseas and wishes to naturalize after completing 3 or 5 years, but is not able to continuously reside in the US even though he or she still returns to the country frequently and maintains extensive ties. Naturalization is a most desired goal, since paradoxically, once the person successfully naturalizes, he or she is no longer required to maintain a residence in the US. However, in order to naturalize, the applicant must maintain continuity of residence, and this is often thwarted by the fact that he or she is working overseas. The spouse who is overseas because he or she is accompanying the other spouse and who is often caring for the children, also suffers as a result.

There appear to be two views of what constitutes residence. INA § 101(a)(33) states: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Note that the concept of domicile, which considers the applicant’s intent rather than the place where he or she actually lives, is not relevant in determining whether the applicant for naturalization has resided continuously in the US. Under this provision, an applicant may be deemed to not being a resident regardless of the number of days he or she is away from the US. An applicant who is getting nowhere during the naturalization interview because of the examiner’s invocation of § 101(a)(33) should remind the examiner that the statute requires not mere residence but continuous residence in the US, and must point him or her to 8 C.F.R. § 316.5(c)(1)(i), which provides that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back to back lengthy trips although each one was less than 180 days. Remember, if your client did not stay away one year, he or she must be considered a resident of the same state where they lived before leaving. 8 C.F.R. 316.5 (b)(5). See Accardi V. Shaugnessey, 347 US 260(1954); Morton v.Ruiz, 415 US 199, 235 (1974)(“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”).

What if the person was out of the US for more than six months and less than a year and has disrupted continuity of residence? Don’t lose hope. 8 C.F.R. § 316.5(c)(1)(i) provides examples of the types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence. Specifically, the regulation states that the evidence may include “but [is] not limited to” evidence that during an extended absence:

(A) The applicant did not terminate his or her employment in the US;
(B) The applicant’s immediate family remained in the US;
(C) The applicant retained full access to his or her US abode; or
(D) The applicant did not obtain employment while abroad.

In Li v. Chertoff, 490 F.Supp.2d 130 (D. Massachusetts 2007), a federal district court held that an applicant who had absences of more than six months but less than 1 year as a student in Canada did not disrupt the continuity of residence even though she had obtained permanent residence in Canada. The plaintiff, after being downsized from a US employer, went to Canada to pursue an opportunity to study in a dental program at the University of Alberta. Her husband accompanied her to Canada and took up a job with the same contractual term as the plaintiff’s course of study. The rest of the plaintiff’s family still lived in the US and she retained a home in Cambridge, Massachusetts, where mail was delivered and she also continued to file tax returns in the US. While rejecting the application of the generic definition of residence in § 101(a)(33) in favor of continuous residence, the court clarified that that the four criteria in 8 C.F.R. §316.5(c)(1) may establish that the applicant did not disrupt the continuity of her residence, but also noted that it may consider other relevant factors. Although the court did not accept her argument that she did not terminate her employment in the US under prong (A) since her employer forcibly terminated her, the court accepted the fact that her extended family remained in the US under prong (B), even though her most immediate family member, her husband, accompanied her to Canada, and it was undisputed that she retained access to her home in the US under (C) and she did had not obtained employment in Canada under (D).

Compare Li v. Chertoff with an earlier case In Re Bartkiw, 199 F.Supp. 762 (E.D. Pa. 1961), where the former INS granted naturalization based on incorrect information, not knowing about Bartkiw’s relocation to Canada. The district court in Pennsylvania in denying Bartkiw’s claim that she had not disrupted residence made an observation which was redolent of an era prior to feminism’s onset a few years later:

We find it impossible to conclude that this young woman, married, with her husband holding a responsible position in Canada where he was a citizen, and who thereafter maintained a home with him, did not intend to live in Canada as a resident. It may very well be, as stated in our findings of fact, that both she and her husband hoped that at some time in the future she would become a citizen of the United States; that he would obtain employment in the United States and that they would live here permanently as husband and wife. But, unfortunately for the position of the respondent, that hope for the future and not a present fact.

Bartkiw, 199 F.Supp. at 766.

Clearly, Li v. Chertoff is the better decision, and naturalization examiners ought to be taking into account other factors besides the four factors set forth in 8 C.F.R. § 316.5(c)(1). What if the accompanying spouse of the rotational executive is pregnant with complications and both are unable to return to the US within 180 days? Should this not be considered a relevant factor? After all, the regulation suggests that the evidence that may be used to rebut the disruption of continuity of residence need not be limited to these four factors. In analogous cases involving the abandonment of permanent residence, which can be avoided if the trip abroad was temporary, the term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

See Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Chavez- Ramirez v INS, 792 F.2d 932 (9th Cir. 1985).

The Second Circuit, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” See Ahmed v.Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002); see also Hana v. Gonzales, 400 F.3d 472 (LPR status not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize).

Practitioners should creatively argue on behalf of their clients that unforeseen events may have delayed a return back to the US in less than 180 days. Moreover, even if one’s intent is not relevant in determining disruption of residence, unlike the law on abandonment of permanent residency, these decisions can still be helpful to argue that there were relevant factors to assess whether or not residence had been abandoned for purposes of naturalization. We should also forcefully argue that working for a US corporation overseas on a temporary basis ought to be a relevant factor and not a negative. See Matter of Wu, 14 I&N Dec. 290 (R.C. 1973) (denial of reentry permit was erroneous since the LPR was employed for an American firm overseas and had successfully applied for preservation of continuity of residence for purposes of naturalization).

Finally, while beyond the scope of this post, always explore if there are other ways to naturalize that would obviate the perpetual anxiety of a permanent resident living outside the US. Under INA § 319(b), spouses of US citizens working overseas for US corporations or their subsidiaries, or in certain other capacities, can naturalize without meeting the residency requirements, Employees working abroad can preserve their residency by filing Form N-470 if, inter alia, they work for an American firm or corporation, or a subsidiary thereof, that is engaged in the development of foreign trade or commerce of the US. But in order to be eligible, the applicant must demonstrate one year of actual unbroken physical presence in the US after acquiring permanent residency. Matter of Graves, 19 I&N Dec. 337 (Comm’r. 1985); Matter of Copeland, 19 I&N Dec. 788 (Comm’r. 1988). Very few can meet this requirement as even a brief day trip to Canada during that one year period will disqualify the applicant from filing the N-470 application. Remember what an N-470 will do and what it will not do. If approved, the N-470 means that concerns over continuity of residence can be put aside. However, all other substantive requirements for naturalization, including satisfaction of physical presence requirements still must be satisfied. The N-470 may avoid disruption of continuity of residence but your client could still be deemed to have abandoned permanent resident status. That is where and why the re-entry permit can be a lifesaver especially since, if the issue of green card abandonment is raised when the person returns to the US, contrary to what you and your client might expect, there is some recent case authority for placing the burden of proof that abandonment did not occur squarely upon the unsuspecting shoulders of the soon to be surprised permanent resident. And if you are out for more than one year, you will need to accumulate another round of 4 years and 1 day to naturalize. 8 C.F.R. 316.5(c)(1)(ii). This could be true even if it was Uncle Sam that prevented your client from coming back sooner. In Gildernew v. Quarantillo, 594 F.3d 131, 133 (2d Cir. 2010) TSA put the permanent resident on a “No Fly” list for a year while he cooled his heels in Ireland. Ultimately concluding that there was no”derogatory information” against him , TSA let him come home but too late to save his ability to naturalize as he had been out of the US for more than one year.

As the immortal philosopher Will Rogers was fond of saying: “Even if you are on the right track, you’ll still get run over if you just sit there.”


by Cora-Ann V. Pestaina

We’ve pretty much gotten used to (but not accepted!) the vast inconsistencies that exist in degree-equivalency requirements with regard to filing an H-1B, a PERM or an I-140. We’ve been forced to cope with (though we will never understand!) the fact that the degree-equivalency regulations that govern EB-2 and EB-3 professionals are inconsistent with the degree-equivalency regulations that govern H-1B specialty occupations and that USCIS degree-equivalency regulations and the DOL’s SVP scheme applied to labor certifications widely differ. We’ve come to understand how vital it is that we map out the entire green card process prior to filing a PERM application and that we anticipate every potential pitfall and make early strategic decisions to prevent them. Yet, despite all our hard-earned knowledge and efforts, most of us will, at some point, be forced to deal with an unanticipated snag on an equivalency issue especially when the government changes its interpretation on an particular foreign degree.

Ronald Y. Wada, who many of us turn to for guidance through the frustratingly obscure law of degree-equivalency, has written a new article, The Nth Degree – Issues and Case Studies in Degree Equivalency: Crossing the Borderland Between DOL and USCIS Requirements, 15 Bender’s Immigr. Bull. 863 (June 15, 2010). The article addresses the differences between the reviewing practices of the DOL and USCIS. While we’ve always focused on degree-equivalency requirements, the article highlights a different issue – experience.

The PERM program established a “substantially comparable” standard when considering whether prior experience gained on-the-job with the same employer may be used to qualify a foreign national for the job offered. Specifically, under the PERM regulations, a sponsoring employer is permitted to consider experience gained with that employer in instances where it establishes that the position in which the alien gained the qualifying experience is not “substantially comparable” to the job for which labor certification is being sought. Substantially comparable is defined by the regulations as a job or position requiring performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). Then, there is the USCIS rule, established in Matter of Wing’s Tea House, 16 I&N Dec. 158 (Acting Reg’l Comm’r 1977), a precedent decision, which holds simply that the foreign national must possess the qualifications specified on the labor certification as of the priority date.

In his article, Mr. Wada writes, “Since the AAO has stated in numerous nonprecedent decisions (and federal courts have affirmed) that USCIS has the authority to determine whether the beneficiary meets the job requirements shown on the PERM application, once the labor certification is approved by the DOL the rule regarding what experience can be counted shifts to the USCIS rule.” This circumstance could provide the escape from the snare of a badly designed PERM, provide another option when the foreign national presents new information at the I-140 phase (“Sorry, I guess I can’t get all those experience letters after all!”) or even help in instances where the USCIS attempts to revoke a previously approved I-140.

The Wada article presents the case where a PERM was designed with a Master’s degree requirement and was certified. At the I-140 phase, the USCIS refuses to accept the foreign national’s Master’s degree deeming his credentials equivalent to only a U.S. Bachelor’s degree. A bachelor’s degree plus five years of post-baccalaureate progressive experience equates to a Master’s degree. If the foreign national is able to demonstrate five years of progressive, post-degree work experience prior to the priority date of the PERM application, then under the USCIS policy in Matter of Wing’s Tea House, the foreign national may yet qualify for the offered position and for EB-2. Importantly, the foreign national may even utilize experience gained on the job with the sponsoring employer – something he could not do during the labor certification phase especially if the two positions with the same employer were not more than 50% different! He may combine experience gained with a previous employer and experience gained with the sponsoring employer to arrive at the requisite 5 years of post-degree experience. It is only necessary that the foreign national meet the job requirements prior to the priority date, which is established when the labor certification is filed. USCIS does not set forth any “substantially comparable” standard à la the DOL.

Matter of Wing’s Tea House could also work in instances where, whether it’s an EB-2 or an EB-3 I-140, the foreign national belatedly discovers that her previous employer still harbors ill-will toward her and thus refuses to issue her an experience letter. If the foreign national is left short 1 year of experience and she had been employed with the sponsoring employer for at least 1 year before the labor certification was filed on her behalf, under Matter of Wing’s Tea House, the foreign national could combine experience gained with the sponsoring employer and her previous experience to qualify her for the offered position despite the fact that her on-the-job experience would not have qualified her for the offered position at the labor certification phase due to the DOL’s “substantially comparable” rule.

But will it actually work? Having said all that, we should bear in mind that the USCIS is afforded grounds in 20 C.F.R. §656.30(d) to invalidate a labor certification based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. While the scenarios outlined above would not compel such a finding, is there a chance that the USCIS could request that the DOL revoke the labor certification? Under 20 C.F.R. §656.32(a) the DOL may revoke an approved labor certification, based on a finding that the certification was not justified. If the foreign national is found not to possess the degree or the experience listed on the PERM, which is not being used consistently at the time of the I-140, could it be held that the certification was not justified? It is interesting food for thought. However, Matter of Wing’s Tea House indeed presents an innovative path that could possibly be used to save an I-140 in trouble.


By Gary Endelman and Cyrus D. Mehta

Facing the setting sun out beyond the vast confines of the Los Angeles coliseum, John Kennedy accepted the Democratic nomination for President in 1960 by proclaiming that “the only valid test of leadership is the ability to lead and lead vigorously.” Doubtless thinking how to respond to the challenges of his own time, President Kennedy has unwittingly showed the way to meaningful immigration reform for our era. While we fondly hope and fervently pray that the Congress will enact comprehensive immigration reform, we must not stand silent while waiting for Godot. There is enormous remedial potential in the current corpus of immigration law that can be realized through the dedicated application of executive initiative if the vision and will to do exists. It was for this purpose and with this intent that we wrote at length in The Tyranny of Priority Dates in BIB Daily, While our ideas there were audaciously incremental, we did not cite to past examples of innovative executive leadership that expressed profound policy changes through regulatory revision. It is our great good fortune to remedy this troubling omission with a large helping hand from Solicitor General Elena Kagan recently nominated by President Obama to replace retiring Justice John Paul Stevens on the United States Supreme Court. What a relief!

In 2001, then Harvard Law School Dean Kagan wrote her most widely cited foray into legal scholarship Presidential Administration in 114 Harvard Law Review 2245, We freely admit that Dean Kagan does not mention immigration even once in over a hundred pages. Most of the article analyzes the influence wielded by various Presidents over the federal regulatory process, presenting at length legal arguments for and against such a sweeping exercise of authority. However, deep within the bowels of this robust exegesis, one finds a golden nugget that we hope to polish for our own very different purposes. On pages 2281-2282, we take a deep breath and read the following:

President Clinton treated the sphere of regulation as his own and in doing so
made it his own, in a way no other modern President had done. Clinton came to
view administration as perhaps the single most critical-in part because the
single most available- vehicle to achieve his domestic policy goals ( emphasis

Dean Kagan offers several examples: a rule to curb underage smoking by restricting the marketing and advertising of tobacco products to children; a rule that allowed the states to offer paid family leave to new parents through the mechanism of unemployment insurance and regular issuance of executive memoranda that directed agency heads to take specified actions within the scope of those powers previously delegated to them by the Congress; making public lands off limits from private development as national monuments; prohibition of discrimination on the basis of sexual orientation; barring federal contracts with companies that used strikebreakers or child labor; mandating a minimum level of employment by federal agencies of welfare recipients and those with physical disabilities; compelling the adoption of workplace rules on expanded religious expression and making sure that regulatory agencies honored strict environmental codes. Doubtless, there are many others. See Presidential Administration at 2292. As it turns out, Dean Kagan reminds us that other Presidents had also changed the nation through the stroke of a pen:

Presidents, of course, discovered long ago that they could use executive orders
and similar vehicles(for example, proclamations) to take various unilateral
actions, sometimes of considerable importance. Consider, by no means as typical
examples but as historical highlights., Thomas Jefferson’s Louisiana Purchase,
Theodore Roosevelt’s reservation of public lands for a system of national parks,
Harry Truman’s desegregation of the armed forces, Lyndon Johnson’s
requirement that federal contractors adopt affirmative action policies, and…
initiation of OMB regulatory review. See Presidential Administration

There is no reason why Presidents cannot make immigration policy in precisely the same way. Doing so would be yet another reminder that the most long-lasting impact of Immigration Reform and Control Act of 1986 was to bring the whole issue of immigration out of the shadows and into the mainstream of national political conversation and public debate. Immigration as an issue has grown up; what Presidents have done in so many other aspects of governance can now be tried within the confines of the Immigration and Nationality Act. So, for example, until Congress acts to overthrow the tyranny of priority dates and reverse the implosion of the green card category system by revising INA § 245(a)(3) and removing the arbitrary and capricious burden of a current priority date as a condition precedent to application for adjustment of status, the President can give hope to untold thousands, especially from India and China, but also those with no graduate degree, through the simple stroke of a pen. How? By taking a new long look at what “immediate availability” of an immigrant visa number can or should mean, which is one of the central ideas in The Tyranny of Priority Dates.

Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability? It would only be more fair to allow someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140 immigrant visa petition. Upon filing of an I-485 application, one can enjoy the benefits of occupational mobility or “portability” under INA § 204(j) and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization, which they otherwise would not be able to get on an H-4 dependent visa.

Unfortunately, INA § 245(a)(3) only allows the filing of an I-485 application when the visa is immediately available to the applicant, and this would need a Congressional fix. We know that Congress either NEVER makes any sensible fix or takes a very long time to do so. So, why not find a way for the immigration agency, USCIS, to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3)?

The only regulation that defines visa availability is 8 C.F.R. § 245(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted Legal Permanent Resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA 245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

In The Tyranny of Priority Dates we propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in italics, that would expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), the authors propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. Since parole is not considered a legal admission, they will not be eligible for adjustment of status but will have to depart the United States and use the now-valid visa as a travel document to return when visa availability subsequently presents itself. The authors suggest the insertion of the following sentence, shown here in bold italics and deletion of an other sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Delete this sentence: [However, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.]

If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Similarly, those overseas, can also be paroled into the United States prior to a current priority date. Nothing could be simpler. The reason to seek Congressional modification of INA § 245(a) is not because it is the only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal. What we propose is not out of the ordinary and without precedent. For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US. Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine,

Given the obvious and not insignificant benefits of broad administrative solutions proposed in The Tyranny of Priority Dates, any transitional angst is surely worth the effort. If, as Antonio reminds Sebastian in Act II of Shakespeare’s The Tempest, “what’s past is prologue,” the rich history of executive initiative as a mechanism to achieve meaningful change that Solicitor General Kagan has so eloquently brought to our attention can serve as milestones along the march to comprehensive immigration reform so that, when Congress does decide to follow, they will know where to go and how to get there.

Indian Government Backs Down Over Passport Surrender Rule, But Will the New Guidance Lead to Further Confusion?

As a result of pressure from the overseas Indian, the Indian government has backed down. Here is the latest guidance from the Indian Consulate in New York website,

In supersession of the rules regarding Surrender/Renunciation Certificate the Government of India have decided as follows:-

Persons of Indian Origin (PIOs) who have already acquired foreign citizenship voluntarily till May 31, 2010 shall cease to be Indian citizens upon their acquiring foreign citizenship. However, such persons are required to surrender their Indian passports, whether valid or expired, to the Indian Consulate so that the passport is not misused. Such persons are not required to pay any fee under the Citizenship Act. They will have to pay US$ 20/- for Surrender/Cancellation of the passports.

Those Indian citizens, who intend to acquire foreign citizenship on or after 1st June 2010 will have to submit a declaration of renunciation of their Indian citizenship with payment of US$ 175/- as per fee structure under Rule 23 of the Citizenship Rules, 2009.

The issue of refund of any part of renunciation fee already paid by applicants till 31 May 2010, if applicable, has been taken up with the Government of India. The decision when received will be uniformly applied to those concerned and the information will be put on our website when available. Meanwhile no email/phone queries will be entertained.”

The first point is consistent with what I wrote in my prior blog. One ceases to be an Indian citizen upon taking up the citizenship of another country under Section 9 of the Indian Citizenship Act, 1955. A policy requiring renunciation after one automatically ceased to be an Indian citizen made no sense, and then retroactively penalizing the individual for failing to renounce Indian citizen was extremely unfair. On the other hand, those who have taken up US citizenship or a citizenship of another country will still need to surrender their passports, albeit for a lesser fee. This will still result in hardship if the person who got US citizenship decades ago has lost the Indian passport.

It is the second point in the new policy that is most puzzling. It says that those who intend to take up the citizenship of another country after June 1, 2010 must first submit a declaration of renunciation of citizenship under under Rule 23 of the Citizenship Rules, 2009, which stem from Section 8 of the Citizenship Act. Section 8 provides that a citizen of India may renounce Indian citizenship. Rule 23 is reproduced below:

23. Declaration of renunciation of citizenship.- (1) A declaration of renunciation of citizenship of India under sub-section (1) of section 8 shall be made in Form XXII, and shall state-
(a) under which provisions of law, the applicant is an Indian citizen; and
(b) the circumstances in which the applicant intends to acquire foreign citizenship.
(2) On receipt of the declaration of renunciation of citizenship of India under sub-rule (1), an acknowledgement in Form XXIII shall be issued by an officer designated under rule 38.
(3) The declaration shall be registered in the Ministry of Home Affairs, Government of India.
(4) The Central Government in the Ministry of Home Affairs shall maintain a register in Form XXIV containing the names of persons whose declaration of renunciation of citizenship are registered under this rule.

Rule 23 requires an Indian citizen to renounce Indian citizenship while intending to take up the citzienship of another country, and not after s/he becomes a citizen of another country. How will this play out? What if the US citizenship does not pan out for some reason or is delayed? It quite often happens that one may not become a US citizen, as expected, if a security check has not cleared or if additional evidence is requested. US citizenship may also be denied if an Indian disrupted continuity of residence by spending more than 180 days outside the US during the qualifying 5 year or 3 year period, and is unable to rebut the prsumption of abandonment. Will this person become stateless between the renunciation and the acquistion of the new citizenship? Will this person be deprived of using his or her Indian passport for travel during this period? What if the renuncation has been effectuated and the person is never granted US citizenshp? Strangely, the new policy has been differently announced on the Indian Consulate’s website in San Francisco, which does not incorporate the second point, So what is the correct new policy?

I applaud the Indian government for backing down and eliminating the potential hardship the prior misguided policy would have caused to thousands of overseas Indians who had become US citizens several years ago. Yet, the fact that people may have to surrender lost passports of many years, even decades ago, will still cause hardship. On the other hand, the new policy of requiring renunciation prior to an Indian becoming a citizen of the US or another country, if this is the case, requires immediate clarification as it will cause even more hardship and uncertainty than the withdrawn policy.

Update – 6/3/10

Since the publication of this post, the Indian Consulate in New York has added the following sentence after the first two points in its new guidance: “They may fill the Form and either send it by mail or bring personally to the Consulate. “A perusal through the form suggests that a person is required to renounce Indian citizenship after acquring the citizenship of the US or another country and not before. Thus, it does not seem that one has to renounce Indian citizenship before acquiring the ciitzenship of another country, and the second point in the new guidance is inartfully drafted on the website of the Indian consulate in New York. Although I still question how one can renounce Indian citizenship when it has ceased to exist (although it is perfectly justified to require the surrender of the Indian passport), it is at least better than requiring someone to renounce Indian citizenship before he or she acquires the citizenship of another country.


By Cyrus D. Mehta

The new rules requiring overseas Indians to renounce Indian citizenship and surrender the Indian passport after they have taken up the citizenship of another country misinterpret the provisions of the Indian Citizenship Act, 1955. The guidance, including Frequently Asked Questions, can be found on the website of the Indian Consulate in New York,

According to the guidance, the Indian passport must be surrendered within 90 days of US naturalization even if the US passport is obtained later. A fee of $175 has been imposed to surrender the Indian passport. Additional monetary penalties are imposed on those who failed to surrender the passport within three years of acquiring US citizenship or for travelling on the Indian passport or applying for its reissuance after US citizenship. The new rules are especially harsh on those who may have obtained US citizenship many decades ago and who may have lost their Indian passports. An applicant who has lost, damaged or surrendered his or her Indian passport to a foreign government must furnish certified copies of the following documents:

1. Details of last held Indian passport (Passport No., Date of Issue & Place of issue). The onus of providing details rest on the applicant.

2. Official documents submitted to authorities of new country at the time of obtaining citizenship/naturalization & documents used for entry such as US Form I -130.

3. Notarized letter explaining reasons for loss.

4. Police report.

Failure to comply with the surrender policy will likely deprive a person of Indian origin to obtain an Indian visa, an OCI/PIO card or other consular services.

The provision for termination of Indian citizenship is separate and distinct from the provision for making a declaration of renunciation. While renunciation of citizenship is covered in Section 8 of the Citizenship Act 1955 and has to be applied on a prescribed form by a citizen of India, automatic termination of citizenship, which occurs when one takes up the citizenship of another country, is covered under Section 9 and requires no formal application to the Indian government.

It is clear that a person cannot use the Indian passport to travel when he or she becomes a US citizen as Indian citizenship has automatically terminated under Section 9. There may also probably be a basis for establishing rules requiring surrender of the passport that has been rendered invalid under Section 9, although it is unfair to penalize a person for failing to surrender the passport when there was no established procedure to do so prior to the recent guidance. However, the Surrender Form,, requiring renunciation of Indian citizenship, does not make sense. One cannot renounce citizenship when it has ceased to exist. Under Section 9, Indian citizenship was automatically terminated when the person took up the citizenship of another country. On the other hand, Section 8 provides for a citizen of India to renounce Indian citizenship, and it should be noted that the words “who is also a citizen or national of another country” were deleted from Section 8 by Act 6 of 2004. Thus, a person who is no longer a citizen of India cannot renounce Indian citizenship.

Rule 13 of the Passport Rules, 1980 states that “[a] person holding a passport or travel document shall not be entitled to another passport or travel document unless he surrenders to the passport authority the passport or travel document already held by him.” Rule 13 further states, “Provided that separate passports or travel documents may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries.” Section 12 (3) of the Passport Act, 1967 states that “[w]hoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”

This rule, which the Indian government appears to be relying on, is ambiguous and appears to apply more readily to one who holds a valid Indian passport and is applying for another, rather than one who ceases to have a valid Indian passport by operation of Section 9 of the Citizenship Act and has been issued a US passport. In any event, the Indian consulates in the US never had a formal procedure for surrendering a passport until the recent guidance. Even when a person applied for the OCI card and handed in the Indian passport with the intention to surrender the document, the Indian Consulate merely cancelled it. We are now told that such a cancellation will not be considered a valid surrender of the Indian passport, and a person who in good faith handed in the Indian passport earlier will have to pay additional penalties above the $175 basic fee for surrender.

It is important that the Indian government continues to maintain goodwill with the overseas Indian community. The new rules merely antagonize the community and there is absolutely no need for this. There surely is a better way to implement a surrender policy of invalid Indian passports on a prospective basis, without also requiring renunciation, rather than the clumsy and arbitrary way it has been handled so far. The Global Organization of People of Indian Origin has launched a campaign requesting the government to reconsider the retroactive enforcement of the new rule,

(The author thanks Ramya Mahesh, associate at Little & Co., Advocates and Solicitors, Mumbai, India, for her invaluable assistance)


By Gary Endelman and Cyrus D. Mehta

After the foiling of the plot of would be Times Square bomber in New York on May 1, 2010, Faisal Shahzad, and the terrorism inspired through the preachings of Anwar al-Awlaki, an American citizen operating out of Yemen, there have been calls to strip Americans of their citizenship if suspected to have ties with terrorist organizations. The urge to strip citizenship is nothing new. Even shortly after the founding of the nation, there was concern about the status of those who had remained loyal to the British during the Revolution. And until the latter part of the 20th century, it was not uncommon for the State Department to strip Americans of their citizenship if they voted in a foreign election or took up the citizenship of a foreign country.

Shortly following the heels of the Times Square incident in New York, Senators Lieberman and Brown have proposed a bill, the Terrorist Expatriation Act, which would expand Section 349 of the Immigration and Nationality Act. Section 349 provides for loss of US nationality or citizenship for various expatriating acts. Under Section 349, a person can lose citizenship, among other things, for obtaining naturalization in a foreign state, entering the armed forces of a foreign state as an officer or if such armed forces are in hostilities against the United States, obtaining employment in the government of a foreign state after acquiring the nationality of that foreign state or making a formal renunciation of nationality before a consular officer. Section 349 also provides for loss of nationality if one is convicted of treason or related subversive acts. While Section 349 provides very broad grounds for expatriation, it requires that the individual voluntary perform these expatriating acts “with the intention of relinquishing United States nationality.”

Senators Liberman and Brown, in their proposed Terrorist Expatriation Act,, add expatriating acts such as providing material support or resources to a foreign terrorist organization (as designated by the State Department) or engaging in purposefully and materially supporting hostilities against the United States or purposefully and materially engaging in supporting hostilities against any country that is directly engaged with the United States in hostilities engaged by the United States. Since the Senators proposed their bill, most from the left and right of the political spectrum have been critical, including no less than conservative commentator David Frum,

Why should the Lieberman-Brown proposal trouble all of us even though polls show that it is supported by a majority of Americans? Some will argue that it adds an additional expatriating ground to a statute that has been on the books for a very long time. Moreover, this statute, Section 349, still requires that the government bears the burden through a preponderance of evidence that the expatriating act was committed with the intention of relinquishing United States nationality. So what’s the fuss about especially when the expansion of Section 349 is supposed to protect us against terrorists? Supporters of such proposals must constantly be reminded of a seminal Supreme Court decision, Afroyim v. Rusk, 387 U.S. 253 (1967), which involved a challenge by an American who had been expatriated because he voted in a foreign election. Justice Black who wrote the majority opinion held that Congress does not have any power, express or implied, to take away an American citizen’s citizenship without his assent. The majority essentially rested on the expansive protection in the Fourteenth Amendment:

We hold that Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color or race. Our holding does no more than to give this citizen that which is his own, a constitutional right to remain in a free country unless he voluntarily relinquishes that citizenship.

Id. at 268. Indeed, prior to Afroyim, and a subsequent decision, Vance v. Terrazas, 444 U.S. 253 (1980), Section 349 was broader, and it was only in 1986 that Congress amended the statute to include a demonstration by the government that the expatriating acts within were performed “with the intention of relinquishing United States nationality.” However, notwithstanding this limitation, Section 349 is still broad because it does not require any administrative or judicial action. An American citizen who applies for a renewal of his or her passport overseas at a consulate can be prevented from doing so if suspected of performing one of the enumerated expatriating acts under Section 349. Thus, if Senator Lieberman’s proposal took effect, one suspected of providing material support or resources to a foreign terrorist organization would be stripped of United States citizenship through a finding by a junior consular official. This might be the case even if a doctor gave emergency medical assistance to a dying terrorist or if a grandmother unwittingly provided food to a group of people who belonged to a terrorist organization after they knocked on her door. Indeed, someone like Dr. Samuel Mudd who treated John Wikes Booth’s broken leg after the assassination of President Lincoln and who was ultimately pardoned,, could potentially lose citizenship if he were to treat a terrorist today. Moreover, it could also snare a lawyer who provided legal advice to a terrorist organization on how to promote its political agenda through peaceful means. Of course, the person stripped of citizenship could still seek administrative review and have access to the courts, but the Lieberman-Brown proposals would give broad leeway to the government official to determine that there has been a loss of citizenship first before any recourse can be taken. Another constitutional objection, actually two of them , to the Lieberman-Brown proposal are : (1) one can lose citizenship status for taking action to the detriment not of the United States itself but to an ally of the United States. We know of no other instance where United States citizenship can be lost by action taken against another country;(2) the well-settled doctrine of void for vagueness. What is meant by “hostilities”? A “conflict subject to the laws of war” the concept of “conflict” is nowhere defined; which “laws of war” would apply and are there “conflicts” that would NOT be so subject?

We do not know how it would be possible for the United States government to prove that anyone provided material support to alleged terrorist activities with the intention of giving up United States citizenship as opposed to viewing such action as a protest against specific policies of the United States government. This is not, using the gloss to Afroyim that Justice White provided in Terrazas, a “fair inference from proven conduct” but goes way beyond it. It eliminates via the backdoor the intent requirement from INA 349 expatriation test and seeks to return the law of expatriation to where it was before Afroyim so that the decisions on loss of citizenship become an issue to be decided not by the intent of the citizen but by the government in its conduct of US foreign policy, a return, in other words, to proposition rightly criticized by Chief Justice Warren in Trop v. Dulles, 356 U.S. 86, namely that “citizenship is not a license that expires upon misbehavior.” Interestingly, the high water mark of the idea that loss of citizenship can be decided by the government without reference to the intent of the citizenship as an aspect of foreign policy, Perez v.Brownell, 356 U.S. 44, involved voting in a Mexican election – the very act that the Court in Afroyim found insufficient, which in that case involved voting in an Israeli election. What the Liebermann-Brown proposal does is to equate an expression of political opinion through material support of a terrorist organization, even if considered criminal conduct, into an intent to expatriate.

We further remind the supporters of the Lieberman-Brown bill that, when the loss of citizenship is at issue, “a statute which attaches such a penalty to certain conduct should be construed strictly to avoid an imposition which goes beyond the manifest intent of Congress.” In re Rego, 289 F.2d 174, 176 (3rd Cir. 1966) (citing United States v. Minker, 350 US 179 (1956)). The involuntary deprivation of citizenship deprives one of “all that makes life worth living.” Ng Fung Ho. v. White, 259 US 276, 284 (1922). When arising under, and protected by, the Fourteenth Amendment, US citizenship is a condition or status “which a citizen keeps unless he voluntarily relinquishes it.” Afroyim v. Rusk, 387 US 253, 262 (1967). The reason for such a rule derives from the fundamental truth that, as Mr.Justice Black so eloquently articulated it, “in our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.” Id. at 257, See also Nishikawa v. Dulles, 356 US 129, 138-139 (1958) (Black, J.). The whole point of Vance v. Terrazas is that, without more, the voluntary performance of a statutorily-designating expatriating act is not sufficient to cause or justify an involuntary loss of US citizenship. For Danny Terrazas to lose his US citizenship it was not enough for him to swear allegiance to Mexico to avoid conscription; Uncle Sam also had to prove that he “also intended to relinquish his citizenship.” Vance v. Terrazas, 444 US 252, 261 (1980) .While it is undeniably true, as made clear in INS Interpretation 349.4(b) that service in the armed forces of a foreign state then engaged in hostilities against the USA is “highly persuasive evidence of the intention to relinquish United States citizenship required for expatriation under the Afroyim principle,” how much less probative of such an intent is non-combatant support in the absence of any declaration of war and outside the context of formal military combatants.

None of the expatriating acts in the Liberman-Brown proposal first require a conviction. Indeed, a somewhat parallel expatriating provision, Section 349(a)(7), requires a conviction under 18 USC Sections 2383, 2384 and 2385 relating to acts of treason or attempting to overthrow the United States government by force or for bearing arms against the United States. And even after the conviction, the government must demonstrate that there was an intention on the part of the perpetrator of such subversive acts to relinquish United States nationality. There is no reported case of a person convicted under any of the above provisions being found to have expatriated himself or herself. Even a bill proposed in the Israeli Knesset will strip a person of Israeli citizenship after being convicted of terrorist activity or espionage on behalf of a terrorist organization although it does not require an intent to relinquish such citizenship, The proposed bill of Senators Lieberman and Brown, will make expatriation easier, thus violating the protection of the Fourteenth Amendment, as enunciated in Afroyim and many other Supreme Court decisions, which will only further erode the rights of American citizens. Our constitution protects the citizenship of law abiding and criminal alike. Other countries will also be tempted to pass similar measures to strip persons of citizenship on broad terrorism related grounds in a post 9/11 world, but the sponsors of such potential laws must be reminded that citizenship stripping provisions will not dissuade terrorism, and will instead, ultimately undermine the rights of their own citizens.

Finally, international law also rejects statelessness and there exists a UN Convention on the Reduction of Statelessness,, which sets forth narrow grounds under which a person can be stripped of citizenship as well as the ability to seek a hearing in case of such an eventuality. When a citizen is stripped of citizenship, it results in statelessness, if he or she does not have another nationality. As the nation state has become the primary vehicle for defining political identity, statelessness has come to mean a reduction to anonymity and a consequent inability to express or protect the personal freedoms basic to political life. It is the ultimate exile. Governments have universally abhorred the possibility of statelessness. Even Chief Justice Warren married this abhorrence with his theory that the Fourteenth Amendment deprived Congress of the power to denationalize in Trop v. Dulles, which was then rejected in several Supreme Court cases but ultimately became the majority view in the Afroyim case. In Justice Warren’s view, denationalization constituted cruel and unusual punishment in violation of the Eight Amendment because it resulted in statelessness.

Citizenship is the most precious right under United States law. What if the Lieberman bill becomes law? What then? These cases demand an attorney’s best effort. Learn the facts, know the law and work hard for your client. Do not necessarily accept the interpretation advanced by the State Department. Always remember the bottom line: citizenship is not lost by ambiguity or inaction. There are few victories you will savor more than preventing or reversing a loss of citizenship determination.


Here is a refreshing new study on H-1B wages. It is refreshing because unlike most other studies that take pains to show that H-1B workers are paid less than US workers and depress the labor market, this one by Professors Lucas and Mithas of the University of Maryland’s Business School demonstrates quite the opposite. H-1B and L visa workers in the IT Industry were paid 6.9% more than their American counterparts, and green card holders took home more than 12.9% than their American counterparts. This study confirms what we immigration lawyers have always known – that US employers seek out workers on H-1B and L visas because they are really good and not because they can get away by paying them cheaply. We also know that employers are not going to go through the hoops and hurdles of filing an H-1B or L visa petition, pay filing and attorney fees, take pains to comply with all of the complex regulatory requirements (including paying the prevailing wage for H-1B workers and those being sponsored for green cards through labor certification), and respond to burdensome requests for evidence, unless they believed in the worth of this foreign worker. Then, sponsoring this same person for a green card through the onerous labor certification process is even more difficult. Of course, opponents of the H-1B and L programs such as Ron Hira will continue to gripe and poke holes at the study, as the article in CIO suggests, but I am glad that our anecdotal experience has been backed up by a solid peer reviewed academic study. Hopefully, USCIS officials and Congressional folks will also read this study, and refrain from trying to restrict the H-1B program through burdensome memos, like the January 8, 2010 Neufeld Memo, or pass legislation to restrict these visas like Senators Grassley, Durbin and Sanders have been doing.

H-1B Visa Holders Earn More Than U.S.-Born IT Professionals, Study Claims
– Stephanie Overby, CIO
May 20, 2010

One of the biggest complaints about the federal government’s H-1B and L-1 visa programs is that they could be used by corporations to hire skilled workers born outside the U.S. at wages lower than the U.S. market rate. Indeed, anti-H-1B visa activists say the program depresses American IT workers’ salaries and robs them of jobs.
But new research from the University of Maryland seems to contradict anti-H-1B visa activists’ claims about the immigration program’s impact on American wages. In fact, the research suggests that foreign-born IT professionals with temporary skilled worker visas actually earn more than their American counterparts, not less.
Hank Lucas, professor of information systems at the University of Maryland’s Robert H. Smith School of Business, and assistant professor Sunil Mithas examined the effect of immigration policies on IT salaries using data from online salary surveys conducted from 2000 to 2005 by InformationWeek and management consultancy Hewitt Associates.
After adjusting for educational qualifications, work experience, and other individual characteristics, Lucas and Mithas found that IT professionals without U.S. citizenship earned 8.9 percent more than American citizens. Tech workers on temporary visas, such as the H-1B and L-1, were paid 6.8 percent more than those with U.S. citizenship, and green card holders took home 12.9 percent more than their American-born counterparts, according to Lucas’ and Mithas’ research, published this month by the Institute for Operations Research and the Management Sciences.
The professors say restrictive visa policies resulted in even higher salary premiums. In years when applications exceeded the annual caps for H-1B visas, salaries for all non-U.S. citizen IT workers—that is, visa or green card recipients—rose relative to the salaries of American-born IT professionals, say Lucas and Mithas.
Mithas says the study was driven by the lack of compelling data around claims that foreign-born IT professionals are taking away jobs from American workers. “Much of the immigration debate in this country ignores skill levels,” says Lucas, adding that the influx of non-U.S. citizens has a much different impact on job availability and wages for unskilled labor than it does for skilled workers. U.S.-born citizens and foreign workers can potentially benefit from an influx of skilled workers, Lucas says.
H-1B Salary Survey Ignites Controversy
The Lucas-Mithas research deviates from the findings of other studies investigating the effect of temporary visa programs on the salaries of U.S. IT professionals. According to Lucas and Mithas, H-1B visa holders earned an average of $75,358 from 2000 to 2003, compared with the average U.S. citizen’s salary of $66,836. (The InformationWeek survey did not ask about visa status in 2004 and 2005). But according to the U.S. Citizenship and Immigration Service (USCIS), the median salary for H-1B visa holders in computing professions during the 2000 to 2003 period was just over $50,000.
“It [seems]strange to me that the authors would depend on sampled data when we have the whole census of new H-1B recipients’ salaries reported [by] the USCIS, at least in aggregate terms,” says Ron Hira, associate professor of public policy at the Rochester Institute of Technology. “For computing occupations those data show low wages relative to Bureau of Labor Statistics wages for Americans. The median salary for new H-1Bs is comparable to the entry-level wages for freshly minted bachelors in computer science, as reported by the National Association of Colleges & Employers. So half the new H-1Bs are being paid at- or below entry-level wages.”
Lucas and Mithas say the USCIS and BLS numbers aren’t granular enough to make meaningful comparisons. “You don’t get a good sense of who these people are, what is their educational background, how long have they been in IT, what industry are they working in,” says Mithas. “If you don’t have data at an individual level, you don’t know if you’re comparing apples to apples.”
Hira suggests there may be a self-selection bias at play when using a sample population. The data Lucas and Mithas used comes from 50,000 IT professionals, including 809 temporary visa holders, who opted to participate in an online salary survey. The researchers say the overall sample and sample of non-U.S. citizen foreign-born IT professionals in their study is reasonably representative of the U.S. population.
While those numbers may line up, it’s unlikely that H-1B or L-1 grantees who depend on their employers for their visas and who earn lower than average wages would participate in such a survey, says Hira. “The [Lucas-Mithas] report may be able to control for some additional factors that affect wages, but there is no doubting the USCIS characteristics data ,” says Hira. “It is a census, not a sample.”
Lucas admits that selection bias could be a factor in any survey, but he remains confident in his data. “In situations like this, there’s always the possibility for the sample not to be truly random,” he says. “But I feel more comfortable with this survey with 50,000 respondents than I would if we did a random sample of a couple hundred IT professionals on our own.”
Why Corporations Pay More for H-1Bs
Lucas and Mithas say their research proves that corporations use foreign-born IT professionals as a complement to, not as a cheaper substitute for, their American workforce. But the data does not provide any explanations for why employers would pay non-citizen IT workers more.
Lucas and Mithas have their own theories. For one, they think companies recruit foreign IT professionals for skills or expertise that they can’t get from American workers, whether it’s a stronger work ethic, multi-cultural experience, or willingness to travel.
“We were searching for an explanation, and it wasn’t education or anything we could measure. So it had to be something intangible, like how aggressive you are or how much of a risk taker,” says Lucas. “I’d have to say it’s motivation. You have to be motivated to break out of the rut you’re in, get out of the city you were born in, go to another country and work in IT.”
Hira is not buying it. “There’s no doubt in my mind that, in general, H-1B workers are underpaid. That’s why the offshore outsourcing majors rely almost exclusively on H-1Bs rather than hiring Americans,” he says. “Plus they are beholden to their employer, making it more difficult for them to protest against poorer [wages and] working conditions.”
Hira notes that it’s possible the compensation among IT workers on temporary visas falls into two camps: “lots of low wage workers and a good portion of high wage workers.”
B. Lindsay Lowell, director of policy studies for Georgetown University’s Institute for the Study of International Migration, has been analyzing the salaries of H-1B visa holders in science and technology using data from the National Science Foundation’s National Survey of College Graduates. He has found that H-1Bs are paid lower average wages during the first three years of their permitted stay, but once they reapply for another three years or change employers, they may earn more than comparable U.S. citizens.
“The NSCG is an odd survey itself, but it’s the largest random survey of graduates in the United States,” says Lowell. “The reason we think there’s an increase in wages is due to a change in bargaining power on the part of the H-1B. Of course, the first three years still reflects a savings to the employer.”
Jacob Funk Kirkegaard, a research fellow at the Peterson Institute for International Economics, examined the Department of Labor’s database of labor condition applications (LCAs) and surmised that many large U.S. corporations and educational institutions frequently offer their H-1B recipients salaries substantially above the prevailing U.S. wage. However, he says, “offshoring/outsourcing type IT services providers” aggressively pursue all legally available paths to cut labor costs, including paying foreign workers only the legally mandated 95 percent of the prevailing wage.
“That suggests another point I’ve long argued, and which is supported in my and others’ research,” says Lowell, “which is that the H-1B labor market is softly segmented with different types of employers who pay less than the mainstream to the H-1Bs in their employ.”
Lucas and Mithas consider the LCA data unreliable because it does not provide actual salary data, and many approved LCAs don’t result in the granting of an actual visa.
“There are an awful lot of anecdotes of this or that company bringing in foreign workers and paying them less than the going wage, but you can’t take that and generalize it to thousands of people,” says Lucas. “We’d love to get inside of Infosys and Accenture and get detailed individual information, but privacy concerns enter into this, and they wouldn’t want to give us the information anyway. They’re afraid, no matter which way the research comes out, they’ll be criticized.”
More Research Into H-1B Wages Needed
There are as many as 700,000 temporary high-skill foreign professionals in the United States on visas today (approximately 500,000 in the H-1B category alone), and 60 percent of them work in IT, according to some estimates. More detailed data from USCIS or some other source would go a long way toward settling the debate over whether or not these visa programs depress the wages of IT professionals.
“This may be a good thing for the DHS or GAO to do,” says Hira.
© 2010 CXO Media Inc.

Why Lawyers and All Others Should Boycott Arizona

I was most proud when the American Immigration Lawyers Association (AILA) decided to pull its Fall conference out of Scottsdale, Arizona within minutes of the passage of Arizona’s SB 1070, which makes it a criminal offense for failing to carry alien registration documents, and authorizes law enforcement to determine the immigration status of a person “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States. ” In addition, the law mischievously allows any legal resident of Arizona to sue an official or agency within the state that restricts or puts limits on the enforcement of SB 1070.

On the other hand, I am surprised that the ABA plans to go ahead with the Equal Justice Conference in Phoenix, Arizona from May 13-15, despite pressure from participants and speakers, including the New York City Bar Justice Center,, to move the conference elsewhere. I too was a panelist and withdrew from the EJC, along with speakers from the City Bar, Legal Aid and the Fragomen Law Firm, that would showcase an innovative joint pro bono project between the City Bar Justice Center, AILA and Legal Aid to provide legal assistance to immigrant detainees at the Varick Street Detention Center. In its press release earlier today,, ABA’s President Carolyn Lamm acknowledged that SB 1070 “infringes on civil rights and belies our nation’s principles of justice to all,” but then went on to state that the EJC brings together various components of the legal community to deliver services to the poor and that “[w]e are not going to allow these efforts to be even temporarily derailed by an unjust law. Doing so would have a further detrimental effect and run contrary to ensuring the principles on which our nation was formed continue to thrive.”

Immigration lawyers were the first to realize the draconian consequences of SB 1070, which would ultimately diminish the civil liberties of all persons. Since then, others have also followed with boycotts including the 10,000 strong Alpha Phi Alpha last Friday, which said that it would relocate its convention in July from Phoenix to Las Vegas. Even ABA’s partner, National Legal Aid and Defenders Association (NALADA) pulled out of the EJC shortly before the ABA announced that it was forging ahead with the EJC, ttp:// While one can understand ABA’s concerns about losing money on breached contracts, my e mail that I sent to Mr. Scudder of the ABA and Mr. Saunders of NLADA (which has since pulled out) on April 26, 2010, still expresses my strong conviction that the ABA ought to boycott Arizona. Here is an excerpt:

The most powerful message that the ABA and NLADA can send to Arizona is to boycott the state so that it economically hurts and that they do not use our dollars to fund and implement SB 1070. The boycott will also powerfully reverberate all around the US and the world, and others too will follow your lead and boycott the state. Imagine if fewer or no tourists visit the Grand Canyon. This will truly bring the message home to those who support SB 1070. AILA set a great example by withdrawing its Fall conference from Scottsdale, AZ, and so must the EJC, which is much larger. This is the most powerful way to send a message to law makers and their supporters for enacting such misguided legislation that legalizes racial profiling and forces even US citizens, especially persons of color, to carry their passports out of fear being arrested when they visit the state.

You can negotiate with the Hilton hotel group to host the conference in another state a few weeks or months later. I think ABA also has enough clout to negotiate with airline carriers to grant a credit to those who have already booked their fares. While there will be a price to pay for shifting the conference, the message that it will send will be most powerful and will outweigh the losses from not holding the EJC in Arizona and will, I think, be viewed by historians as a heroic step that turned the tide. Participants can learn how to advocate against SB 1070 and similar measures when the EJC convenes in another state.

The ABA ought to also be more sensitive to conference participants who will soon, once the law takes effect, be vulnerable to arrest under SB 1070. Suppose I came to Arizona, and as a New Yorker is wont to do, crosses the road while the light is still red. I encounter Sheriff Joe Arpaio on the other end of the street who justifiably accuses me of jay walking, but also forms a reasonable suspicion that I am an alien who is unlawfully present in the United States. After all, the most venerable Sheriff Arpaio may have such a basis as I was not born in the United States and may have a foreign appearance, and while I think I speak English very well, may discern an accent that might sound foreign to him. He asks me for a registration document to prove that I am not in unlawful status in his state, which I do not have because I left my US passport at home in New York. He arrests me under SB 1070. And even if SB 1070 may not have taken effect, we all know that the Sheriff already thinks he has inherent authority to arrest me. While I may be able to ultimately sort out this mess, an arrest will traumatize me and my family (including my young children) and disrupt my ability to practice law for some time in New York. I see no need to go to Arizona and risk convulsing my routine existence. It is also ironic that a conference on equal justice is being held in a state that has completely trampled upon the notion of equal justice.

To come to think of it, SB 1070 can lead to absurd results. As David Isaacson points out, a battered spouse who has been granted “deferred action,” may technically incur criminal liability for being present in Arizona because ‘deferred action” is not really a status (resulting in a registration document), and it is more an exercise of prosecutorial discretion not to pursue her removal for a particular period of time. Similarly, an intracompany transferee of a foreign entity who is a manager of its subsidiary in Arizona may be in jeopardy when an L-1 visa extension has been filed in a timely manner prior to the expiration of the prior L status, and he is yet to receive a receipt notice of such a filing. Moreover, if he wishes to hike into the Grand Canyon, he will need to carry a registration document on him at all times, lest Sheriff Arpaio accosts him on one of the trails. Our manager won’t have it just after filing the L visa extension, and the poor fellow may have to carry a copy of the L-1 petition in the hot desert sun, with all 51 exhibits, along with a federal express receipt while on his hike down into the bottom of the Canyon! Even that might confuse the hell out of the Sheriff or one of his subordinates whether a humongous copy of an L visa filing constitutes lawful or unlawful presence in the State of Arizona.

There are many who will disagree. One can legitimately argue that bringing the EJC to Arizona at this juncture makes sense as it would bring advocates together to talk about how to deal with the unjust implementation of the law. Moreover, the virus is spreading and other states may also likely implement copycat laws. Do we move a lawyer’s conference each time a state is likely to implement a similar law? 19 groups have already withdrawn or cancelled events in Arizona,, and a travel trade group has called for an end to all boycotts. In my opinion, pouring money into Arizona’s coffers, which may be used to implement SB 1070, does not promote a solution. If one wants to mobilize advocates to deal with the law, the conference need not be in Arizona in this day and age. We hold conferences in certain places because they also provide an opportunity for people to combine it with a vacation, and Arizona undoubtedly fits the bill as one of the world’s best vacation spots. Attendees can have fun while learning and supporting the local economy. But Arizona has passed a law that undermines the essential objective of the conference, which is equal justice. Conferences are very different from a march or a protest or a sit in, or lawyers coming in to the state to litigate against SB 1070. This is a conference where people will be spending money and sitting in an air-conditioned posh conference center having discussions, NOT marching through the streets speaking truth to power. Fruitful discussions may be had elsewhere without supporting a state that has passed such an unjust law. The strongest message one can send is to withdraw a conference from the state, and when it affects pocketbooks, those who have passed SB 1070 and those thinking of passing similar laws in other states may give pause and wonder whether it is truly worth it.

(The views in this post are the author’s personal views and do not represent the views of any organization that he is associated with)


By Gary Endelman and Cyrus D. Mehta

In shock at the overtly racist profiling now sanctioned by the State of Arizona,, the Democratic Party has turned to comprehensive immigration reform to pay off its political debt to the vast and growing body of Hispanic voters whose allegiance may determine our national electoral map for decades to come. That is why Senators Reid, Durbin, Schumer, Leahy, Feinstein & Menendez this week introduced the aptly named REPAIR proposal otherwise known more completely as the Real Enforcement with Practical Answers for Immigration Reform Act, While the prospects for ultimate enactment remain highly uncertain, the commitment by the Democratic Party to moving on CIR is an event of singular importance and one that deserves serious consideration.

This proposal might also be called the “Indian and Chinese PhD Relief Act” because relief for these folks is precisely what it would provide. The per country cap would be lifted for those foreign-born scholars who earned advanced degrees from US universities in science, technology, engineering and mathematics, the now sacrosanct STEM cordon sanitaire. There is the slight matter of having a job offer from a US employer in a related field but that is mere detail. We do not know if these lucky few would be able to apply directly for adjustment of status to lawful permanent resident given the immediate availability of a green card number or whether they would still have to qualify under one of the existing employment categories such as national interest waiver, outstanding researcher, extraordinary ability or on the basis of labor certification. What is clear, however, and perhaps most importantly, is that the tyranny of priority dates under which the prospect of gaining green card status had become a cruel dream has now been overthrown. No longer does the priority date regime have legal relevance. Praise the Lord!

REPAIR also ends the unconscionable injustice of separating lawful permanent residents from their families for years on end by treating such dependents as immediate relatives free of quota restrictions which is precisely what they should and now will be. Bravo Congress! Before we get too excited, we would do well to remember that significant new burdens would cripple the H-1B and L-1 categories. L-1B specialized knowledge workers are limited to one year, though the statute is silent on the possibility of extensions. Numerical caps will be placed on both H and L sponsorship for large employers and all H employers must face both more investigations and more restrictive wage methodology so Wage Levels I and II are likely no longer to be available. The prospect of further government intrusion in the form of more and more frequent H and L investigations also clouds the happy horizon. It is ironic that Congress would select the REPAIR bill as the vehicle to deliver such punishment at the same time as they are making the H1B less relevant. Indeed, if STEM Master’s and PhD graduates from our top schools can apply right away for the green card, and since STEM F-1 visas will now enjoy dual intent, why would anyone in his or her right mind seek H-1B sponsorship at all? Most ominous is the Orwellian sounding “Commission on Employment-Based Immigration” which is invested with the awesome power to declare an immigration emergency and issue Olympian edicts to which a hapless Congress must say “yea” or “neigh”. A concept born in the brain of the AFL-CIO and former Carter Secretary of Labor Ray Marshall, this Commission places all of employment-based immigration on the chopping block, even the priority date relief noted above.

What of those who live in the shadows? For them, REPAIR offers “Lawful Prospective Immigrant” (LPI) status in two phases. First comes the right to live, work and travel for eight years. Then, once all current green card visa backlogs have been cleared out, one can apply for adjustment of status after learning English, mastering civics, paying back taxes with penalties, registering for Selective Service and passing security checks. Glad the rest of us don’t have to do all that! . How will the magic of backlog elimination weave its spell? Well, a massive infusion of new numbers on the family side of the ledger should help some. What about employment-based waiting lines? Ah, here, REPAIR is strangely silent. What are we to assume from this? Will LPI adjustments take precedence over EB-3 cases where the employer has demonstrated the absence of qualified, willing and available US workers? Will they come ahead of EB-2 applicants from China or India whose work has been found to be in the national interest? Congress should step up to the plate and provide the same green card relief on the employment side of the ledger. The fact that REPAIR does not do that once again illustrates the pervasive yet unspoken belief that family migration is worthy of our compassionate concern while employment migration has no claim on our conscience or our sense of national priorities.

If Congress does not do the right thing, what then? That is where executive fiat can help make CIR possible in two key ways. First, as we have discussed at length previously ( Tyranny of Priority Dates, the USCIS can largely eliminate EB backlogs by eliminating family members from the cap, an approach that can be supported by textual reinterpretation and legislative history. Second, the very notion of visa availability can be redefined to allow for provisional submissions that can be advanced in the absence of current priority dates following I-140 approval. If we allow those who have been here without color of law to apply for green cards as lawful prospective immigrants, which we strongly support, there is no reason in law or logic to prevent those who are in legal status from also prospectively seeking to get LPR status. Allowing adjustment of status applications for EB beneficiaries after I 140 approval but conditioning final approval of same upon a current priority date is the perfect book-end to the LPI program, . It is something that can be done entirely through Executive Fiat and the effect of which would be to wipe away the EB backlog which very presence could indefinitely delay the implementation of the LPI initiative. What’s not to like? Now that Congress has taken the first tentative steps on the road to real immigration reform, why not use all the weapons at our disposal to make it happen?


By Gary Endelman and Cyrus D. Mehta

While the Obama administration struggles to get votes to overhaul our dysfunctional immigration laws in Congress,, and Arizona passes its shameful immigration bill, SB 1070, which legalizes racial profiling,, there is a growing yearning for Congress to pass Comprehensive Immigration Reform (CIR) that would provide more pathways to visas and permanent residency and legalize the millions who remain undocumented. But do we need to wait endlessly for Congress to Act? We demonstrate in our article Tyranny of Priority Dates,, that it is possible for the Executive to legalize the status of non-citizens without Congressional intervention to achieve something close to CIR.

Work Authorization and Parole

For instance, there is nothing that would bar the USCIS from allowing the beneficiary of an approved employment based I-140 or family based I-130 petition, and derivative family members, to obtain an employment authorization document (EAD) and parole. The Executive, under INA § 212(d)(5), has the authority to grant parole for urgent humanitarian reasons or significant public benefits. The crisis in the priority dates where beneficiaries of petitions may need to wait for green cards in excess of 30 years may qualify for invoking § 212(d)(5) under “urgent humanitarian reasons or significant public benefits.” Similarly, the authors credit David Isaacson who pointed out that the Executive has the authority to grant EAD under INA §274A(h)(3), which defines the term “unauthorized alien” as one who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General” (emphasis added). Under sub paragraph (B), the USCIS may grant an EAD to people who are adversely impacted by the tyranny of priority dates.

Likewise, the beneficiary of an I-130 or I-140 petition who is outside the U.S. can also be paroled into the U.S. before the priority date becomes current. The principal and the applicable derivatives would enjoy permission to work and travel regardless of whether they remained in nonimmigrant visa status. Even those who are undocumented or out of status, but are beneficiaries of approved I-130 and I-140 petitions, can be granted employment authorization and parole. The retroactive grant of parole may also alleviate those who are subject to the three or ten year bars since INA § 212(a)(9)(B)(ii) defines “unlawful presence” as someone who is here “without being admitted or paroled.” Parole, therefore, eliminates the accrual of unlawful presence.

While parole does not constitute an admission, one conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection. On the other hand, it is possible for the Executive to rescind the grant of admission under INA §212(d)(5), and instead, replace it with the grant parole. As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to the Department of Homeland Security (DHS). who can retroactively rescind the grant of admission in B-2 status and instead be granted parole retroactively.

Historic Role Of Executive In Granting Immigration Benefits

While the authors have proposed the use of parole and EAD benefits to those who are beneficiaries of approved immigrant petitions and are on the path to permanent residency, but for the crushing backlogs in the employment and family quotas, parole and EAD can also be potentially granted to other non-citizens such as DREAM children or those who have paid taxes and are otherwise admissible. The Executive’s use of parole, sua sponte, in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict comes readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. Even those who are in removal proceedings or have already been ordered removed, and are beneficiaries of approved petitions, will need not wait an eternity for Congress to come to the rescue.

The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien. Like our proposal, Deferred Action is purely discretionary. They are both informal ways to allow continued presence in the United States. The INA never mentions deferred action. Neither does deferred action depends upon regulation. Deferred action is not mentioned in Title 8 of the Code of Federal Regulations (“8 C.F.R.”) but only in the old, and now inapplicable, Operations Instructions. Both, our proposals and deferred action, are the products of limitations. The exercise of prosecutorial discretion to grant deferred action status is an expression of limited enforcement resources in the administration of the immigration law. Our advocacy of EAD and Parole outside the adjustment context is an expression of limited EB quotas and the impact of visa retrogression. Since both are inherently discretionary, they are not proper subjects for judicial review since, in both cases, there is no law to apply.

Deferred Action has also been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. Mr. Neufeld’s memo, issued on June 15, 2009, provides extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries may request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute to allow, inter alia, a widow who was married less than two years at the time of the citizen’s death to apply for permanent residence. See Pub. L. No. 111-83, 123 Stat. 2142 (2009).

Even more recently, on November 30, 2009, USCIS announced in a press release that certain affected persons in the Commonwealth of the Northern Mariana Islands (CNMI) would be granted parole under INA § 212(d)(5). The Consolidated Natural Resource Act of 2008 (CNRA) extends most provisions of the United States immigration law to the CNMI beginning on November 28, 2009. As of this date, foreign nationals in the CNMI will be considered present in the United States and subject to U.S. law. In order to avoid their removal from the CNMI, the grant of parole will place individual members of CNMI groups in lawful status under the United States immigration law and permit employment authorization. Parole status will also allow for the issuance of advance parole when the individual seeks to depart the CNMI for a foreign destination.

In another display of Executive legerdemain, in March of 2000, a former INS official Mr. Cronin, in a Memo,, allowed nonimmigrants holding H-1B or L status to travel overseas while their adjustment of status applications were pending and be admitted on advance parole and still be able to work as if they were in H-1B or L status without first obtaining an EAD. The following Q&A extract in Mr. Cronin’s memo is worth noting:

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien’s employment authorization?

A Service memorandum dated August 5, 1997, stated that an ‘adjustment applicant’s otherwise valid and unexpired nonimmigrant employment authorization…is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii).’ The Service intends to clarify this issue in the final rule. Until then, if the alien’s H-1B or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant’s failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

A close examination of this astonishingly creative policy reveals that the Executive presumably allowed such an individual to continue working without any formal work document. Admitting an H-1B on advance parole (and thus presumably as a parolee rather than as an H-1B nonimmigrant), and allowing him or her to extend H-1B status subsequently, while permitting this individual to continue working for the employer without an EAD, required creative thinking on the part of the government. These are a few examples of how the Executive has creatively found ameliorative solutions within the four corners of the INA.

No Violation of Separation of Powers

While some may argue that there is no express Congressional authorization for the Executive to enact such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Executive under our proposal is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Under our proposal, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. We have shown that INA § 212(d)(5), which Congress enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.” Moreover, INA § 274A(h)(3)(B) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. Operating in Justice Jackson’s “twilight zone,” such constructive ambiguity creates the opportunity for reform through Executive initiative. From this, we must conclude that, had Congress not enacted INA § 212(d)(5), the President could not act by fiat to broaden or diversify its application beyond the adjustment context. In terms of EAD issuance, Congress has rarely spoken on this except via INA § 274A(h)(3)(B), so that many instances of EAD issuance are purely an act of executive discretion justified by that one statutory provision. Furthermore, INA § 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act.”

The President is not divorced from lawmaking; that is the very reason why the Framers provided an executive veto power. If the President was totally divorced from the making of laws, why give such a weapon to limit congressional prerogative? Once we accept the fact that the Executive is a junior partner in lawmaking, then the use of executive initiative to promulgate implementing and interpretative regulations, as we propose be done in the grant of parole and EAD benefits, becomes a valid extension of this well settled constitutional precept.

Chevron and Brand X Doctrine

We proffer yet another legal theory to support our proposal. When the Service extended Occupational Practical Training from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand X involved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

Brand X tells us that federal agencies and Congress have a commingled role to play in making new law: “Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.” Is there a more effective constitutional answer to the charge that our argument violates separation of powers? If the FCC can use its policy expertise to exempt broadband Internet carriers from mandatory regulation under the Communications Act, why can’t the USCIS use its policy expertise to extend Parole and broaden EAD issuance, especially since the latter is entirely a creature of regulation? The raison d’être for the Chevron defense that federal agencies are owed deference when they seek to execute the law through regulatory interpretation suggests, if not compels, the conclusion that, while only Congress can enact laws, the executive agencies charged with their enforcement can say what these laws mean, this in turn, determines how they are applied or enforced. Those who argue that we seek to violate the separation of powers doctrine take an artificially cramped view of what lawmaking involves and ignore the fact that, like the idea of judicial review itself, no law can live apart from interpretation that, by its very nature, inevitably changes the law itself.

Chevron and Brand X are more than just constitutional justifications of agency action but an invitation to action where the Congress has stayed its hand. Until now, Brand X has been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own.

While Arizona has restored the relevance of CIR and provided its advocates within the Democratic Party with a new political imperative, the prospects for ultimate passage remain as uncertain as ever. Spurred by their triumph in Arizona, advocates of state immigration laws are moving ahead on a broad front all across the land. We need action now. Set against such a turbulent backdrop, there is a clear and present need for moving forward through executive action to combat the Arizona law and the many copycat versions that are and will continue to appear in other states. Only through such agency initiative can the nativist surge be checked until CIR becomes a reality.