Save The Children

By Gary Endelman and Cyrus D. Mehta

When Congress enacted the Child Status Protection Act, it wanted above all else to soften the harsh blows of long delays by the USCIS in the adjudication of “green card” cases. How? Congress did so by extending this generous benefit to protect vulnerable children who would otherwise be cavalierly abandoned to the tender mercies of an indifferent jurisprudence when their parents immigrated. The dread of watching their children “age out” and thereby lose their derivative status haunted the imagination of parents everywhere who felt helpless against Father Time. At last, Congress would save them, or so they thought. The Board of Immigration Appeals, in In re Avila-Perez, 24 I&N Dec. 78 at 83-84 (BIA 2007), faithfully captured this humane spirit:

The CSPA was created to remedy the problem of minor children of United States citizens losing their immediate relative status and being demoted to the family first-preference category as a result of the INS’s backlog in adjudicating visa petitions and applications for adjustment of status…To prevent these individuals from “aging out” because of INS processing delays, Congress decided that a child’s age should be determined by the date his visa petition was filed, not as of the date the INS reviewed his applications, as it would have been under the old law.

There was no way that Congress could have possibly anticipated the implosion of the EB-3 or EB-2 in the China and India categories. While the architects of the CSPA strove mightily to promote family unity, the restrictive formula they came up with reflects their wholly understandable failure to account for the entirely unanticipated possibility of visa retrogression greatly exceeding government processing delays. It is no exaggeration to conclude or contend that this adverse effect on “aging out” children ran directly contrary to what Congress thought it was doing. Given an EB-3 backlog of almost 7-8 years worldwide and over 30 years for India, you would have to start a labor certification now for someone who has a child turning 12 because that child’s age will only be frozen when the immigrant visa is available, many years later. For India, even if the labor certification is started around the time of the child’s birth, such strategic foresight may not suffice! If you get a quick labor certification followed by prompt USCIS approval of the I-140 petition, the child you think you are helping might not be so lucky down the road. When you have visa retrogression like we have right now, the CSPA formula is useless to protect children no matter how you interpret the CSPA formula. To the EB-3 preference child, especially if the parents are born in India, the promise of the CSPA has become a cruel joke.

Under INA § 203(h)(1)(A) & § 203(h)(1)(B), the age of a child is frozen at the point that a visa becomes available, based on the first day of the month of the relevant visa bulletin and the approval of the visa petition, provided the child sought to acquire permanent residency within one year of visa availability. The child can also subtract from his or her age (if over 21 years at the time of visa availability) the time the visa petition of the parent took to get approved from the time of filing. Based on this formula, the visa is likely to become available after many years, and in the case of an India EB-3, probably long after the child has turned 21.

What to do? There is an answer. Sua sponte, the USCIS could save the children by redefining the concept of visa availability in a provisional sense to include the derivative beneficiaries of approved I-130 or I-140 petitions even without the absence of a current priority date as we have proposed in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz. This would restore the relevance of the CSPA and honor the original intent of Congress by allowing a revised formula to freeze the child’s age despite visa backlogs! The child could not have his or her adjustment of status approved absent a current priority date but allowing them to remain children while waiting for this to happen also permitted them to remain in the queue. While we acknowledge that such an approach is, to say the least, openly unorthodox, we are warmed by the well-settled truth that a generous interpretation of any statute should be adopted where its “remedial purposes are most evident.” Sedima v. Imrex Co., 473 U.S. 479, 491, n. 10 (1985).

Moreover, USCIS has, in the past, expanded the meaning of visa availability. During the July 2007 Visa Bulletin period, when the dates for the EB-2 and EB-3 were made current, eligible applicants filed concurrent I-140 petitions and I-485 applications. The I-140 petitions were not approved at the time of visa availability, and after August 17, 2007, there was again retrogression. To the credit of the USCIS, the child’s age was still frozen at the time of filing the unadjudicated I-140 petitions and I-485 applications, even if the I-140 petitions were approved after August 17, 2007 and when there was no longer any visa availability. In this case, the government informally expanded the interpretation of visa availability to a point of time when the visa was available by virtue of the July 2007 Visa Bulletin, but the I-140 petition had not been approved even though the USCIS had insisted in insisted that there had to be an approved I-140 petition at the time of visa availability to freeze the age of the child, even if the priority date subsequent to this event regresses. See Johnny Williams, Office of Field Operations of Legacy INS, The Child Status Protection Act, Memo # 2, Feb. 14, 2003, AILA InfoNet Doc. No. 03031040.

There is, of course, a second part to the CSPA age formula, namely that the child must have “sought to acquire” the status of a lawful permanent resident within one year of visa availability. Now, as our colleague Quynh Nguyen so incisively reminds us, “sought to acquire” is a singularly novel term. The authors do not think it is used anywhere else in the INA. We do not seek to re-write the CSPA age formula; just the opposite. We seek to interpret it in a broadly humane way to achieve what Congress thought it was prescribing, a formula for the protection of children and the advancement of family unit. Our suggestion is advanced in furtherance of this intent by allowing a provisional submission to count as “sought to acquire.” Remember, dear friends, the CSPA language speaks of “sought to acquire” a “green card” within the one year period after the Visa Bulletin indicates availability. Ms. Nguyen correctly points out that nothing precludes the USCIS from interpreting this to mean that the child could not seek to acquire before this one year period commences; she just has to conclude the step of “sought to acquire” within the one year period after an immigrant visa is available. Our provisional filing approach would still require yet allow the child to seek to acquire green card status with final ratification firmly conditioned upon availability of an immigrant visa. This has been done before. That is precisely how the Department of State interpreted “sought to acquire” when it allowed the I-824 consular notification form to be used in exactly this same way. As the BIA reminded us in Avila-Perez, the precise moment when an adjustment of status is filed should command neither our rapt attention nor unquestioning obedience. It can be filed at any time; since the CSPA neither demands nor instructs the child to have “sought to acquire” in any particular way or time, why not allow a provisional submission to suffice?

If freezing the age of the child based on a re-interpretation of visa availability is too shocking for the faint of heart, we offer another, perhaps more soothing reason, why our provisional adjustment filing honors the spirit to the CSPA in a way that the traditional understanding of the age formula simply does not. We turn now to the automatic conversion mechanism under INA § 203(h)(3) that allows for seamless transfer of a child to the appropriate preference if that child cannot claim CSPA protection. While we acknowledge that the BIA, in In re Wang, 25 I&N Dec. 28 (BIA 2009) overturned its more generous interpretation in the unpublished decision of In re Maria T. Garcia, 2006 WL 2183654 (BIA June 16, 2006), In re Wang does not faithfully interpret INA § 203(h)(3), which rings loud and clear for the automatic conversion of the child to an appropriate preference category, and provides the government with ample running room to re-interpret the provision consistent with Garcia. See, David A. Isaacson, BIA Rejects Matter of Maria T. Garcia in Precedent Decision Interpreting the Child Status Protection Act, June 22, 2009.

Allowing the child to provisionally file her adjustment of status with the parent(s) means that the child still remains an adjustment applicant even after “aging out.” Then, when the parent gets the “green card,” the child shifts over to the Family 2-B category which, mirable dictu, might then be current. The parents need not file a new I-130 petition. Since the child’s adjustment of status was already filed under the provisional priority date, the “aged out” child will either get the “green card” simultaneously with the parent if F-2B is ready and waiting or, if not, the child can wait it out a bit longer, but still as an adjustment applicant under a provisional date under F-2B. The key is to allow the child to file their adjustment of status with the parents while minors under a provisional date so that, once they become adults, they will continue to be adjustable when they automatically convert to Family 2B after Mom and Dad are done.

Unless we look at the CSPA in a new light, it will be impossible for the law to do what Congress wanted it to do, namely preserve family unity in the face of external factors for which the affected children were not responsible. The nature of the delay has changed from administrative processing to systemic visa retrogression. Such a change, however, has not removed the need for remediation but, on the contrary, made it more pressing than ever. While Congress could calm the waters by revising the age fixing formula to save the children from the tyranny of priority dates, there is no reason why the USCIS has to wait for that to happen. It could save the children now as we suggest entirely through notice and comment rulemaking. Congress can, and doubtless will, bless it later.

DOL UPDATE ON PERM AND PREVAILING WAGE ISSUES

by Cora-Ann V. Pestaina

On April 5, 2010 AILA published the minutes of the DOL stakeholders teleconference held on March 25, 2010. See AILA InfoNet Doc. No. 10040533. These minutes presented some important/interesting information worth noting:

Employee Referral Programs:

The DOL now requires more from employers who utilize the Employee Referral Program in fulfillment of one of the three additional forms of recruitment required for professional positions under PERM. Specifically, the DOL now has new requirements as to what is considered “acceptable” evidence to demonstrate the “existence and use” of the Employee Referral Program. Thus far, employers have been able to utilize their existing Employee Referral Programs and to document its use by submitting a description of the program. In response to audits, the DOL has previously accepted photocopies of pages from the employer’s employee handbook describing the ongoing program.

Now, the DOL requires documentation that employees were made aware that they could refer applicants to the specific position sponsored for PERM. The DOL wants to see dated copies of correspondence to employees linking the Employee Referral Program to job openings within the company and to the PERM position in particular! The minutes suggest that employers execute a memo confirming the existence of an ongoing Employee Referral Program and addressing how the company’s employees were made aware that they could refer applicants to the PERM position.

While the PERM regulations do not require documentation that employees were made aware of the specific PERM position, to be on the safe side and prevent a possible PERM denial and then motion/appeal down the road, employers may want to consider adding an “available positions” section at the end of the Employee Referral Program description, including a copy of the specific PERM ad(s) and posting the program in a conspicuous location on the business premises for a specific number of days (and publishing via employer’s intranet, if any) as they do with the Posting Notice.

Processing Issues:

PERMs have recently been moving more quickly because the DOL assigned some PERMS to adjudicators in DC and Chicago. (Let’s hope they keep it that way!)

Sunday ads are still required despite changes in the newspaper industry resulting in some newspapers being eliminated or in a reduction in the number of publication days for certain newspapers.

DOL is looking into implementing PERM fees. (It was too good to last much longer.)

Expect an increase in the number of applications subjected to supervised recruitment.

DOL is frustrated, and rightly so in my opinion, with employers and attorneys who still insist on filing PERMs via mail which consumes substantial DOL resources.

HealthAmerica Issues:

Denials where the PWD issued by SWA was too short or too long: DOL agreed that it is possible that these will be HealthAmerica type issues.

It is not clear what this means since HealthAmerica refers to typos on the PERM. If the SWA issued the employer a PWD valid for less than 90 days then this validity period must be listed on the PERM. The DOL previously advised (AILA InfoNet Doc. No. 07060461) that certifying officers are trained to know that the PWD is never valid for less than 90 days.

Prevailing Wage Determinations:

DOL verified that the Form 9141 certifying officers can see the extra words typed into various fields on the Form 9141 even if these words do not show when we print the form for our records. But, the DOL pointed out that for PERM audit purposes, this will not help us and we have to find a way to prove what was on the form.

Form 9141 certifying officers are now trained to understand abbreviations like EE for Electrical Engineering and CS for Computer Science so we can save space here if needed.

IMPORTANT: On the Form 9141 put only the PRIMARY requirements that will be the PRIMARY requirements listed on the PERM. (So, it’s not which requirements we think are higher (e.g. a BS+5 might be considered higher than the alternative MS+2 requirement) but it’s what will be the PRIMARY requirements on the Form 9089!)

If there will be multiple unanticipated worksites (as with many IT professionals), still answer NO to the Form 9141 question about multiple worksites and in another field such as D.a.6 include the language about unanticipated work locations.

DOL is working on fixing the problem with the missing SOC codes on Form 9141. It will take a while.

If we neglect to include information on the Form 9141 it will be rejected but where the certifying officer just needs clarification on an issue, they will not reject but will e-mail the attorney or employer and allow 7 days for response. Once the response is received, the PWR will be promptly adjudicated.

DOL is getting ready to increase the number of officers which will help reduce the processing time on PWDs.

AAO SAYS “NO” TO JOB PORTABILITY WHEN LABOR CERTIFICATION HAS BEEN SUBSTITUTED

By Gary Endelman and Cyrus D. Mehta

Given the crushing backlogs in the EB-2 preference for India and China, and the EB-3 for India, where the wait can exceed 30 years, one would hope that the United States Citizenship and Immigration Service’s Appeals Administrative Office (AAO) would read INA § 204(j) more generously, which allows a foreign national to “port” to a new job in a same or similar occupation so long as the I-485 adjustment of status application has been pending for more than 180 days. This should happen even if the employer substituted another person on the labor certification after the original beneficiary left the employer.

Unfortunately, the AAO does not think so in an unpublished decision dated March 26, 2010, http://drop.io/aao_26mar10_substitution. Even though the Department of Labor got rid off labor substitutions on July 16, 2007, pursuant to 20 CFR § 656.30(c)(2), substitutions were permissible prior to that date, and many thousands of foreign nationals who are beneficiaries of labor certifications may have been substituted by their employers with other foreign nationals unbeknownst to them after they left the employer. If they have I-485 applications they can “port” to new jobs in a same or similar occupation without fear of the labor certification or the I-140 petition being invalidated, but after the recent AAO’s decision, they are now in a very difficult predicament. This decision would have a disproportionate impact on people born in India and China who are caught in the EB quota backlogs.

The crux of the AAO’s reasoning is that notwithstanding INA § 204(j), which was introduced by the American Competitiveness in the 21st Century Act of 2000 (AC 21) – legislation clearly intended by to ameliorate the hardships brought about by delays in processing and visa backlogs – the underlying labor certification must still remain valid for the foreign national beneficiary. INA § 212(a)(5)(A)(i) requires an alien who seeks to enter the US to perform skilled or unskilled labor to have a labor certification. Hence, if the labor certification has been now substituted for another beneficiary, as was permissible prior to July 16, 2007, under the AAO’s strained interpretation, there is no longer a valid labor certification and the requirements of INA § 212(a)(5)(A)(i) are no longer being fulfilled. According to the AAO, “USCIS cannot interpret sections 204(j) and 212(a)(5)(A)(iv) of the Act as allowing the adjustment of two aliens based on the same labor certification when section 212(a)(5)(A)(i) of the Act explicitly requires a labor certification as evidence of an individual alien’s admissibility.”

We disagree. INA § 204(j) is broad and sweeping. It says:

A petition under subsection (a)(1)(D) [since redesignated section 204(a)(1)(F)] for an individual whose application for adjustment of status remains unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or occupational classification as the job for which the petition was filed.

Without the assistance of INA § 204(j), a labor certification can get invalidated in many ways. If the beneficiary moves to a new employer and does not intend to take up the job with the employer who filed the labor certification, it is no longer valid. Similarly, if the beneficiary does not intend to work in the area of employment, where the labor market was tested and the prevailing wage was based, the labor certification will get invalidated even if the beneficiary works for the same employer. This may be true even where the beneficiary is compelled to move to another area other than where the market was tested when an employer relocates, say from New York, where the labor market was unsuccessfully tested for qualified US workers, to California. Under all of these disqualifying circumstances, INA § 204(j) comes to the beneficiary’s rescue notwithstanding the invalidation of the labor certification, so long as she or he is working in the same or similar occupation and an I-485 has been pending for more than 180 days. It thus strains logic when the AAO distinguishes these circumstances of labor certification invalidity from when the labor certification has been substituted by the employer with another foreign national beneficiary.

In our view, the AAO argument may be countered by explaining that once the adjustment has been on file for 180 days, the sponsoring employer lost any remaining right to the labor certification ownership of which passed to original beneficiary. This AAO decision is a significant restriction on adjustment of status portability and, by making the foreign national prove a negative, that no one else has been substituted in, is fundamentally unfair. The foreign national after the 180 days should be said to have a property interest in the labor certification. Moreover, the AAO agreed that even if the employer revoked the subsequently filed and approved I-140 petition, it would not undermine the ability of the beneficiary to “port” under INA § 204(j). This is illogical to the extreme. If the I-140 is revoked, portability is still permitted, but if the labor certification is withdrawn or substituted for another beneficiary, it undermines portability. It would be consistent with INA 204(j) to argue that regardless of whether the labor certification or the I-140 have been withdrawn, both invalidating events should still allow the beneficiary to allow him or her to “port” to a same or similar occupation.

We also credit Quynh Nguyen’s powerful observation that the AAO decision concludes by stating that the beneficiary who was taken out of the labor certification has not been able to show that the substituted beneficiary who ultimately adjusted status, based on the same underlying labor certification, did so illegitimately. This is after the AAO reasons that it is not possible for the original beneficiary to adjust once substitution occurs. A substituted beneficiary may legitimately substitute, but then may adjust status when actually inadmissible, but conceals the ground of inadmissibility. Even if the original beneficiary can now successfully point to the inadmissibility that was concealed, such as disqualifying criminal conduct or a false claim to citizenship, this in itself does not take away from the substitution, and Quynh correctly states that the AAO’s conclusion is circular. Moreover, it would create an unsavory situation where the original beneficiary would be gunning for anything to show that the substituted beneficiary obtained the green card illegitimately.

Beyond this, as Quynh Nguyen cogently reminds us, the AAO reasoning suffers from the same fundamental fallacy as the labor certification process itself, namely imposing the impossible burden of proving that a negative exists. Even though labor certification is employer-specific while INA § 204(j) is alien-centric, the flexibility that must infuse both processes to make them work is stifled by an agency predilection for requiring proof of the unseen as a precondition for approval. In each case, the proper functioning of INA 212(a)(5)(A) is primordial. DOL requires a sponsoring employer to show the absence of qualified, willing, and available US workers despite the fact that only the Secretary of Labor bears this burden of proof under INA Section 212(a)(5)(A). The AAO compels the foreign national who has ported under § 204(j) to become Sherlock Holmes and show that no one has used the labor certification to get the green card. In both instances, not only is such shifting of the burden of proof logically dubious, it is legally unjustified. The adjustment of status applicant who seeks the personal freedom and occupational mobility afforded by AC 21 has no way to find out what has happened to the labor certification he or she left behind; indeed, the notice of intent to revoke the I-140 petition only goes to the former employer who has no motive save honor to respond.

While the authors do not want the original beneficiary to get jeopardized when there is a substitution, it would likewise be fundamentally unfair for the legitimately substituted beneficiary to be robbed out of permanent residency and be similarly placed in jeopardy. There need not be a winner or a loser. Both can win. Thankfully, our good friend Angelo Paparelli and a colleague proposed the “cell mitosis” theory of labor certification. See Angelo A. Paparelli and Janet J. Lee, A Moveable Feast”: An Analysis of New and Old Portability Under AC21 § 105, 6 Bender’s Immigr. Bull. 111, 126 (Feb. 1, 2001) and available at http://www.ilw.com/articles/2001,1119-Paparelli.shtm.

In their refreshingly original article, this is how they articulate the “cell mitosis” theory of labor certification:

In fairness to all three parties, the labor certification should be treated as “divisible” under what can be called the “cell mitosis” theory.[citation omitted] Under this theory, the labor certification would remain valid with respect to the employee’s new job, [citation omitted] and the sponsoring employer would also be permitted to substitute another alien worker on the labor certification. From the sponsoring employer’s perspective, the conditions under which the labor certification was granted remain the same (other than the fact that the initial worker has resigned); there is still a demonstrated shortage of U.S. workers for the position. To require the employer to test the market again would be unfair and unduly burdensome. Thus, just as in the process of cell mitosis, each party (the sponsoring employer and initial beneficiary employee) should be able to retain the benefits flowing from the single approved labor certification.

Ironically, the AAO decision does precisely what the DOL did not like about the prior practice of alien substitution: “We acknowledge that after enactment of AC 21, DOL’s practice of substitution effectively created a race between the employer seeking to use the labor certification to fill the proffered position on a permanent basis and the alien beneficiary named on the labor certification…” Id. at 9. That is precisely the effect of the AAO decision. Ironic. We do not see why INA § 204(j) cannot be generously interpreted consistent with the “cell mitosis” theory to allow for one labor certification to provide the basis for two beneficiaries to adjust and obtain permanent residency and still be in harmony with both § 204(j) and § 212(a)(5)(a)(ii).

Finally, the reliance by the AAO on two decisions to argue that the USCIS has been precluded from approving a visa petition when the labor certification has been used by someone else is completely misplaced. Neither is a substitution of alien case. Matter of Harry Bailen Builders, Inc., 19 I&N Dec. 412, 414 (Comm. 1986) is a case where the foreign national abandoned lawful permanent resident (LPR) status and then wanted to come back using the original labor certification approval. In Matter of Francisco Javier Villarreal-Zuniga, 23 I&N Dec. 886, 889-90 (BIA 2006), the foreign national wanted to re-use the I-130 petition his mother filed after he had already acquired LPR status on this basis before being placed in removal. This was not a labor certification case at all which is very relevant since the AAO focused repeatedly on the idea that the whole logic of its ruling rested on the validity of the labor certification. Also there was no substitution of beneficiaries and no application of portability under § 204(j) in those cases. They were both the same people attempting to use the original approvals after they lost LPR status through removal or abandonment. These people already got their green cards and wanted to use the earlier petitions without starting over again, which is very different from an individual legitimately relying on INA § 204(j) only to find that the USCIS does not grant LPR under certain circumstances involving labor certification invalidity but allows it under other circumstances.

Not even the wisdom of Solomon allows us to separate the validity of the I-140 petition from the validity of the labor certification on which it rests. The AAO relies on INA § 212(a)(5)(A)(i), together with the policy behind the regulation that removed substitutions, 20 CFR § 650.30(c)(2) (that a labor certification can only be used by one alien) to deprive the appellant in the case sub judice of the ability to adjust status once an unknown substituted beneficiary has won the race to the green card . This fundamentally misunderstands the scope and purpose of INA § 204(j), which allows the adjustment applicant to move to another job with another employer regardless of geographical location so long as the new job is in the same or similar occupational classification. Clearly, the DOL has not made any labor shortage determination with respect to this second role nor is this required. Such a foreign national therefore could not possibly rely upon the original labor certification filed by a different employer who might be located in a different city for a different job. That is why AC 21 allows the law itself to substitute for the original labor certification when the criteria for portability set forth in INA 204(j) have been satisfied. There is no conflict between AC 21 and DOL regulations if the AAO properly understood both.

The scope of this AAO ruling is difficult to determine but its implications for the future remain troubling. This is not the first time that the AAO has sought to curtail the flexibility afforded by INA 204(j). See for example, Herrera v. USCIS, which upheld AAO’s position that the revocation of the I-140 trumps portability under INA § 204(j), http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus200979113434&Month=&From=Menu&Page=12&Year=All. And the AAO conveniently forgets this earlier decision in now holding that the invalidation of the labor certification is more fundamental than the invalidation of the I-140 petition. The result-oriented reasoning that sustains this administrative assault on AC 21 adjustment portability will doubtless make itself felt in other cases with other facts, much as the contorted definition of “employer” that the infamous Neufeld Memorandum applied to the H-1B context is migrating to other visa categories with similarly baleful results, http://drop.io/daq8dgf. Just as the AAO since New York State Department of Transportation, http://www.justice.gov/eoir/vll/intdec/vol22/3363.pdf, has rewritten the national interest waiver, this current decision reminds us to our sorrow that the law changes when the AAO wants it to change; Congress can remain silent.

REDEFINING “IMMEDIATELY AVAILABILE” TO ALLOW EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

By Gary Endelman and Cyrus D. Mehta

We continue to blog on the salient ideas in our article, Tyranny of Priority Dates, published in BIB Daily, http://scr.bi/i0Lqkz, on March 25, 2010.

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. 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.

The authors propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in bold, 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 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. Nevertheless, 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. 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.

(The authors thank Marcelo Zambonino, a law student at New York Law School for his assistance with this post.)

TWO H-1B SPOUSES AND ONE LABOR CERTIFICATION: BOTH SPOUSES SHOULD BE ABLE TO SEEK SEVENTH-YEAR H-1B EXTENSIONS UNDER AC21

By Gary Endelman and Cyrus D. Mehta

We post some of the ideas that we have proposed in the forthcoming article, The Tyranny of Priority Dates, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus20103925436, on this blog. This post advocates that an H-1B seeking an extension beyond the six years may do so even though the other spouse is the beneficiary of a labor certification.

There is a clear basis in § 106(a) of the American Competitiveness in the 21st Century Act (“AC21”) to allow an H-1B spouse to seek an extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification. There is no need for two spouses to have their own labor certifications, when only one will be required for both spouses to obtain permanent residence. USCIS must interpret existing ameliorative provisions that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), or

2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). Id. (Emphasis added).

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of an EB petition or an application for adjustment of status and 365 days or more had passed since the filing of a labor certification application or the Employment-based (EB) immigrant petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or EB immigrant petition and the H-1B nonimmigrant’s current employment. This broad reading was recently affirmed in the Memorandum of William R. Yates, Associate Director for Operations. See William Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), Memo # USCIS HQPRD 70/6.2.8-P, May 12, 2005 (“Yates Memo”).

If a labor certification was filed on behalf of one spouse, the other should be permitted to benefit from the labor certification application that was filed, and remains pending, on behalf of her husband, because under the liberalized provision of AC21, as amended by the 21st Century DOJ Appropriations Act, “365 days or more have passed since the filing of any application for labor certification.” See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The derivative spouse will use this application upon its approval to obtain status pursuant to INA § 203(b).

The Yates Memo unfortunately suggests that an H-1B spouse must meet all the requirements independently of the H-1B spouse’s eligibility for a seventh-year extension. See Yates Memo at 10. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC21 § 106(a), which is unnecessary and absurd. The statute itself has more flexibility and speaks of “any application for labor certification…in a case in which certification is required or used by the alien to obtain status under such § 203(b).” See Pub. L. No. 106-313, 114 Stat. 1251, § 106(a) (2000). This interpretation is very much in keeping with spirit of AC21, which is to soften the hardship caused by lengthy adjudications and we certainly have that now with respect to China and India, as well as worldwide EB-3. The current interpretation placed upon AC21 § 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China in the EB-2, as well as worldwide EB- 3, it is simply unrealistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain here to preserve their eligibility for adjustment of status.

Finally, the USCIS has also argued that the absence of INA § 203(d) in AC21 § 106(a) – “any application for labor certification that is a required or used by the alien to obtain status under § 203(b).” – suggests that only the principal spouse can immigrate under INA § 203(b) and the derivative needs INA § 203(d). See id. But INA § 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent.” See INA § 203(d) [8 U.S.C. § 1153(d) (2006)]. Thus, the derivative spouse still immigrates under INA § 203(b). INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

(The authors thank Marcelo Martinez Zambonino, a law student at New York Law School, for his assistance in editing the post.)

GEARING UP FOR FY2011 H-1B FILINGS: USCIS STOPS ALLOWING FILINGS WITH UNCERTIFIED LCAs AND AILA PROTESTS NEUFELD MEMO

In continuation of our previous article, H-1b Update: Filing Date Approaches; Scrutiny At POEs Increases; USCIS Issues H-1B Guidance Under Economic Stimulus, dated February 19, 2010, http://tinylink.com/?7h4K85wN87, USCIS has announced on March 10, 2010, that it will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified labor condition applications (LCAs). Earlier, USCIS explained that due to processing delays associated with the Department of Labor’s (DOL) “iCERT” online filing system, USCIS had responded to requests from the public by temporarily allowing H-1B petitions to be filed with uncertified LCAs. This temporary measure went into effect on November 5, 2009, and expired on March 9, 2010.

USCIS said that as of March 10, 2010, it is rejecting any H-1B petition filed without an LCA certified by the DOL. The announcement is available at http://tinylink.com/?C0bv7HtE1C.

On a separate note, the USCIS refused AILA’s request on March 5, 2010, to extend the “temporary acceptance” for submitting H-1B petitions without certified LCAs due to reports of ongoing delays in the new iCERT system of the DOL. Moreover, the new national prevailing wage determination process system of the DOL is also experiencing delays.

AILA has reminded its members that under the DOL regulations at 20 CFR § 655.731(a)(2), an employer is not required to obtain a prevailing wage determination for an H-1B and may rely on an independent authoritative wage source or other legitimate sources of wage data when filing an LCA. The independent authoritative source must meet all the criteria set forth in paragraph 20 CFR § 655.731(b)(3). H-1B petitioners may rely on DOL’s own prevailing wage data system at http://www.flcdatacenter.com/.

Please note that if an H-1B petition is filed with an uncertified LCA, the USCIS Service Center will reject it outright or issue a Request for Evidence asking for proof of an LCA that was certified prior to submission of the H-1b petition. Such a request will be impossible to comply with and the H-1B petition will likely be denied.

The general feeling is that there is not a big surge in H-1B cap cases to be filed from April 1, 2010, onwards. Note that there continues to exist a five-day filing window from April 1, 2010 – April 7, 2010 (which does not include April 4 & 5 as they fall on the weekend). If the USCIS receives more than 65,000 H-B petitions or more than 20,000 Master’s H-1Bs during the five-day filing period, they will be subject to a randomized lottery. If the USCIS receives less than 65,000 or 20,000 H-1B petitions during this five-day window, then the USCIS will continue to accept H-1B petitions until the H-1B caps are reached. If petitioners are unable to file H-1B petitions by April 1, 2010, they should not get worried so long as the petition reaches the USCIS by April 7, 2010. If by chance, USCIS receives more that the amount of H-1Bs mandated by the 65,000 and 20,000 Master’s H-1B cap, all H-1Bs received between April 1 and 7 will be all considered under the randomized lottery.

In another significant development, AILA on March 19, 2010 sent a Memo to USCIS Director Alejandro Mayorkas and Chief Counsel Roxana Bacon, expressing serious concerns over the Neufeld Memo of January 8, 2010, which re-defines the employer-employee relationship in H-1B petitions, http://tiny.cc/z3ZU8, pertaining to third party placements by emphasizing on the need of the petitioner to demonstrate a right of control of the H-1B at a third party site. The AILA Memo reminds that there already exists a definition of “employer” in 8 CFR § 214.2(h)(4)(ii), which provides as follows:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

Based on the definition of an employer in the regulation, the AILA Memo points out that the Neufeld Memo adds additional requirements for determining the employer-employee relationship that are not found in the regulatory definition, which encompasses “hire, pay, fire, supervise, or otherwise control the work of any such employee.” Also, both the DOL in the context of H-1B dependent employers, 20 CFR 655.738, and Congress have recognized third-party placement, particularly when Congress restricted third party L-1B placements in 2004, it was the intent of Congress that such placements were more appropriate for the H-1B visa. The AILA Memo also highlights the unintended consequences of the Neufeld Memo, which affects industries other than IT consulting, most notably hospitals and physicians, who by law are not allowed to work for hospitals with non-physician ownership, and are petitioned for H-1B visas by separate subsidiaries of hospitals, whose sole purpose is to employ the physicians who work at the particular medical facility where the day-to-day duties are performed. These arrangements too, according to the AILA Memo, will not pass the test set forth in the Neufeld Memo. The AILA Memo also focuses on the economic harm that the Neufeld Memo would cause by pointedly stating: “The [Neufeld] Memo comes at a moment when government agencies should be implementing policies that encourage investment and innovation in the U.S., and creating conditions in which such businesses can flourish and increase employment here. Yet the Neufeld Memo creates serious roadblocks to such economic growth, in particular by increasing the burdens of small businesses and technology companies.” The AILA Memo correctly observes that IT staffing and consulting companies constitute a legitimate industry in the U.S., and “the way in which the Neufeld Memo addresses this industry betrays a lack of understanding of its business model, and as well as a total disregard for the realities of the employer-employee relationships within the business model.” The AILA Memo adds that U.S. businesses large and small, as well as government agencies, rely on IT firms for system development work as well as for staff augmentation. It is hoped that the USCIS will withdraw the Neufeld Memo. Finally, the AILA Memo cites examples of how the misguided “right of control” standard has adversely impacted adjudications in the L visa and EB-1-3 I-140 context where a President of a multinational corporation received a denial on the ground that the beneficiary owned the majority of the shares of a corporation and that no one supervised the beneficiary’s work. The full AILA Memo can be found here, http://www.aila.org/content/default.aspx?docid=31592

In the meantime, though, petitioners gearing up for filing H-1Bs on April 1, 2010 onwards, especially if their business model is based on third party placements, should continue to pay heed to the Neufeld Memo’s criteria establishing the employer-employee relationship, See From Problem To Springboard: Tips on Using the Neufeld Memorandum in Support of H-1B Petitions, http://tinylink.com/?zCbaXGsvHb

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

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

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

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

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

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

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

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

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

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

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

7. Artistic exhibitions or showcases.

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

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

10. Commercial success in the performing arts.

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

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

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

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

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

[i]

HALCYON DAYS IN H-1B VISA PROCESSING

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

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

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

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

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

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

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

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

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

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

By
Cyrus D. Mehta
* and Myriam Jaidi**

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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