Cora-Ann Pestaina

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

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by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.

Cyrus Mehta

EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT

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Section 6 of the Child Status Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been converted from the Family Second Preference (F2B) to the Family First Preference (F1), after the parent has naturalized, to opt out and remain in the F2B. The American Immigration Council’s February 2015 advisoryprovides a comprehensive overview of the CSPA.

While the wait in the F1 is generally less than in the F2A, in some instances, it is possible for the F1 to be more backlogged than the F2B.  The Philippines has been the prime example, and was the only country where the F1 was worse off than the F2B for several years. Thus, the issue of whether to opt out of the F1 mainly concerned people born in the Philippines for several years.  Since June 2014, this has changed. The Philippines F1 has been doing better than the F2B, and there has been no need for beneficiaries of I-130 petitions born in the Philippines to opt out.   On the other hand, since June 2014, with the sole exception of Mexico, beneficiaries born in all other countries are better off under the F2B than the F1. This changed too for Mexico as of October 1, 2014, when even Mexican born beneficiaries started doing better under F2B than F1. Under the latest State Department Visa Bulletin of March 1, 2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html, except for the Philippines, beneficiaries of I-130 petitions born in all other countries are better off under the F2B than the F1.

An quick analysis of how the F-1 has compared to the F2B since 1992 is provided below (courtesy David Isaacson):

According to the list of Family Worldwide priority dates for FY1992-2014 available at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_worldwide_online.pdf, F1 has always been ahead of F2B, with a brief exception in FY-2001 (when F1 but not F2B became briefly unavailable in August and September 2001), until June 2014, when F2B pulled ahead (at first it was just 01APR07 for F2B versus 22MAR07 for F1, then the gap widened).  F2B has also been ahead in the three Visa Bulletins so far of FY2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-december-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-february-2015.html , and http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html.

For the Philippines, according to the FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Philippines_online.pdf, F2B pulled ahead of F1 in August of 1992, and stayed ahead until July of 2014.  Beginning in August 2014, Philippines F1 pulled back ahead of Philippines F2B, and it too has stayed that way October 2014-March 2015.

As for Mexico, the Mexico FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Mexico_online.pdf  shows F1 generally ahead of F2B, but there have been more anomalies over the years.  At the end of FY1996 and in February-March of 2002, F1 was unavailable but F2B wasn’t.  There was an inversion in July 2001 right before both became unavailable for the remainder of FY2001.  In July-September of 2005, Mexico F1 retrogressed all the way to January 1, 1983, while F2B was at January 1, 1991.  In May of 2006, Mexico F2B again pulled slightly ahead of Mexico F1 before falling behind again in the remaining months of FY2006.  In FY2007, Mexico F2B was ahead of Mexico F1 in May 2007 through September 2007.  In FY2009, Mexico F2B pulled ahead, or rather F1 feel behind, during July-September 2009.  The next inversion after that was indeed October 2014, and then it has stayed inverted since.

Section 6 of the CSPA has been codified in Section 204(k) of the Immigration & Nationalization Act (INA) entitled “Procedures for unmarried sons and daughters of citizens,” which provides:

  • In general. – Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter’s classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter be­ing an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to clas­sify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
  • Exception. – Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter’s eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.
  • Priority date. – Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
  • Clarification. – This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.

What Section 204(k) means is that an F2B beneficiary of an I-130 petition is automatically converted into F1 upon the naturalization of the parent who was previously a lawful permanent resident (LPR).  However, such a beneficiary may opt-out, either prior to the conversion or after the conversion, by requesting such an election through a written statement.  If an election has been made, the son or daughter would be considered under the F2B as if such naturalization of the parent never took place.

At issue is the interpretation of the phrase “in the case of a petition under this Section initially filed for a alien’s unmarried son or daughter’s classification as family-sponsored immigrant under Section 203(a)(2)(B).”

In a previous USCIS Memo dated March 23, 2004 (March 23, 2004 Memo), the USCIS opined that the opt-out provision applied only to a beneficiary whose initial Form I-130 was filed after he or she turned 21 or over as  the unmarried son or daughter of an LPR.  If on the other hand, the I-130 petition was filed by an LPR on behalf of his or her child when the child was under 21 years of age, and the child attained the age of 21, and then the parent naturalized, the opt-out provision would no longer be applicable according to that Memo.

Fortunately, the USCIS reversed itself in a subsequent Memo from Michael Aytes, dated June 14, 2006 (June 14, 2006 Memo), and opined that the phrase “initially filed” would be applicable to the beneficiary who was sponsored as a minor.  The June 14, 2006 Memo generously notes that the prior policy had a perverse result of older siblings who were originally sponsored under F2B acquiring permanent residency more quickly than the younger siblings who had to wait longer under the F1.  The Memo also notes that it is reasonable to interpret “initially filed” as “initially filed for an alien who is now in the unmarried son or daughter classification.”

At present, beneficiaries born in all countries excepting the Philippines may opt out from F1 and remain in F2B, and thus the guidance provided in the March 23, 2004 Memo regarding contacting the USCIS Officer in Charge in Manila may no longer be relevant. According to a April 2008 Memo from Donald Neufeld (April 2008 Neufeld Memo), one must file a request in writing at the USCIS District Office with jurisdiction over the beneficiary’s residence. For example, one would have to make such a request with the New Delhi Field Office (which covers India, Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, Afghanistan, and the Maldives) if the beneficiary resides in any of these countries.   The question is whether all USCIS District offices are set up to accept unsolicited requests of this sort, and whether such a request would truly be effective.

In addition to writing to a USCIS District Office, one should not be prevented from also writing to either the Service Center that processed the I-130 petition or to the National Visa Center, if the approved I-130 petition is already residing there. It may also be well worth it to notify the USCIS at the time of filing an adjustment of status application if the beneficiary resides in the United States.  For instance, if the beneficiary has automatically converted to F1 and finds that F2B is more advantageous, he or she should still go ahead and file the adjustment of status application accompanied by a letter requesting that he or she be allowed to opt-out of F1. The adjustment-application option arguably complies with the April 2008 Neufeld Memo because a family-based adjustment filing with the lockbox is made with the expectation that it will likely be ultimately forwarded to the local District Office for an interview, by way of the National Benefits Center.

The timing of making such a request is also crucial. It is probably advisable to make the request to opt out just prior to the priority date becoming current or at the time when it has become current. While one may in principle be able to reverse an opt-out, it is preferable to   wait until the F-2B is current or almost current before opting out.  One would not want to be the test case for how many times you can opt out, and reverse, and reverse your reversal, if the relative positions of the F-1 and F-2B keep changing over time before the priority date is current.

Finally, the USCIS has always taken the position, affirmed by the Board of Immigration Appeals in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011) that it is the beneficiary’s biological age that is locked in when the petitioner naturalizes and not the protected CSPA age. Hence, if the beneficiary, who has already turned 21, has his or her age protected under the CSPA so as to remain in the Family Second Preference (2A), as the minor child of a permanent resident parent, then it may not be advisable for the parent to naturalize if the child would be disadvantaged under the F1, or if there is an opt out, under the F2B.  Zamora-Molina further held that the child could not opt out from F1 to F2A, only to F2B.  It is thus important to strategically consider whether naturalization by the parent would be worth it if it would disadvantage the child’s ability to more quickly receive the green card.

(The information contained in this blog is of a generalized nature and does not constitute legal advice).  

Cora-Ann Pestaina

The AAO on H-1B Visa Credential Evaluations and the ‘Three-For-One” Rule

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As immigration practitioners, we file H-1B visa petitions all the time. We know that in each petition, the employer must demonstrate that the position requires a professional in a specialty occupation and that the foreign national – the intended employee – has the required qualifications. It’s become common knowledge that progressively responsible work experience may substitute for any deficiency in the foreign national’s education and everyone is pretty comfortable with the equivalency ratio of three years of work to one year of college training (the “three-for-one” rule). Under this rule, a foreign national with twelve years of work experience could be deemed to possess the equivalent of a four-year US baccalaureate degree and therefore qualified to hold a specialty occupation.Going forward on new H-1B petitions and especially as we gear up for the upcoming H-1B cap season, a recent non-precedent decision by the Administrative Appeals Office (AAO) discussing USCIS’ recognition of any years of college-credit for a foreign national’s training and/or work experience is worthy of some careful review as it provides detailed analyses that can help us ward off nasty Requests for Evidence (RFE) from the USCIS upon the filing of H-1B petitions.

The case involved an H-1B visa petition filed by a software solutions provider to employ a foreign national in the position of Senior Associate, Solution Architect. The petitioner based its beneficiary-qualification claim upon a combination of the beneficiary’s foreign coursework (a three-year Bachelor of Commerce degree) and the beneficiary’s work experience and training. The USCIS Director denied the H-1B petition and the AAO subsequently dismissed an appeal of the denial, both on the grounds that the petitioner failed to demonstrate that the beneficiary was qualified to perform the duties of the specialty occupation-caliber Software Developer position.In its decision to dismiss the appeal and deny the petition, the AAO cited language at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Immigration and Nationality Act (INA). Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-lB nonimmigrant worker must possess:

(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(B) completion of the degree described in paragraph (1)(B) for the occupation, or

(C) (i) experience in the specialty equivalent to the completion of such degree,and(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

8 C.F.R. § 214.2(h)(4)(iii)(C), Beneficiary qualifications, provides for beneficiary qualification by satisfying one of four criteria. They require that the evidence of record establish that, at the time of the petition’s filing, the beneficiary was a person either:

(1) Hold(ing] a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold(ing] a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold[ing] an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Hav[ing] [(A)] education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and hav[ing] [(B)] recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The AAO pointed out that the clear, unambiguous language at both 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Act, stipulates that for classification as an H-1B nonimmigrant worker not qualifying by virtue of a license or qualifying degree, a beneficiary must possess TWO requirements – the experience in the specialty equivalent to the completion of such degree; AND recognition of expertise in the specialty through progressively responsible positions relating to the specialty.The petitioner submitted three sets of credentials evaluation documents, each an evaluation of a combination of the beneficiary’s foreign education and his work experience and training. Regarding the documentation of the beneficiary’s work experience, the evaluations relied heavily upon an experience letter which indicated that the beneficiary had been employed full-time “from June 2008 through the present” and that he “currently serves in the position of Sr. Associate, Solution Architect.” The letter provided a list of the beneficiary’s current job duties. The AAO found the experience letter deficient in that it did not establish any progression in the beneficiary’s duties and responsibilities or any progression through increasingly responsible positions that would meet the requirement, at 8 C.F.R. §214.2(h)(4)(iii)(C)(4), to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty in question. In other words, the AAO found that the experience letter did not indicate the position in which the beneficiary had initially been hired and whether the beneficiary still held that same position or whether the beneficiary’s current position represented a promotion or a series of promotions. The AAO found that the letter identified only the beneficiary’s current job duties in “relatively abstract terms of generalized functions” and did not state how long the beneficiary was performing in that current job. Because the letter failed to recount the beneficiary’s prior positions with the employer and the duties and responsibilities of those prior positions, it therefore did not establish that the beneficiary had achieved progressively responsible positions to indicate recognition of expertise in the pertinent specialty, as the provisions at 8 C.F.R. §214.2(h)( 4)(iii)(C)( 4) include as an essential element for establishing a beneficiary’s qualifications through a combination of education, training, and/or experience. The AAO held that the letter provided an insufficient basis for the evaluators to make any conclusions about the nature and level of college-course-equivalent knowledge that the beneficiary gained throughout his employment.

The AAO also took issue with what it described as a “misinterpretation and misapplication of the so-called “three-for-one” rule” which evaluators use to recognize any three years of work experience in a relevant specialized field as equivalent to attainment of one year of college credit in that specialty. The AAO stated that only one segment of the H-lB beneficiary-qualification regulations provides for the application of the three-for-one ratio, and that is the provision at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), which reserves the application exclusively for USCIS agency-determinations and moreover, that portion of the regulations requires substantially more than simply equating any three years of work experience in a specific field to attainment of a year’s worth of college credit in that field or specialty. The AAO pointed out that evaluators seem to have adopted as their standard of measure only the numerical portion of the ratio segment of the regulation at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), that is, “three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks” and neglected to recognize the rest of the test which limits application of the “three-for-one” rule to only when USCIS finds that the evidence about the “the alien’s training and/or work experience” has (1) “clearly demonstrated” that it included the theoretical and practical application of specialized knowledge required by the specialty occupation; (2) “clearly demonstrated” that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; AND (3) “clearly demonstrated” that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

Finding that the beneficiary’s experience letter failed to meet these three criteria, the AAO held that such evidence did not qualify for recognition of any years of college-level credit.

The decision also points out that under 8 C.F.R. §214.2(h)(4)(iii)(D)(3), only a “reliable credentials evaluation service that specializes in evaluating foreign education credentials” can evaluate a foreign national’s education. In the instant case, the AAO therefore dismissed two evaluations prepared by individuals and not by credentials evaluation services as having no probative weight.

The AAO also found fault with one evaluation of the beneficiary’s experience/training since the proof of the evaluator’s own credentials qualifying him to provide the evaluation included an endorsement letter from the Chairman of the Department of Computer Science at the education institution where the evaluator was employed, dated four years prior to the evaluation and a letter from the Registrar which stated that the evaluator had the authority to “recommend college-level credit for training and experience” and did not state that he had the power to “grant” college-level credit or go into any detail as the specific extent of his authority in this regard. The letter from the Registrar was also dated a year prior to the evaluation.

The AAO decision also touched on the fact that two evaluations mentioned that the beneficiary had completed “professional development programs in a variety of computer technology and accounting-related subject[s]” and provided no concrete explanatory information about the substantive nature of those programs and what their completion may have contributed in terms of equivalent U.S. college-level coursework.

With regard to any use of a foreign national’s resume as evidence of his work experience, the AAO decision pointed out that  a resume represents a claim by the beneficiary, rather than evidence to support that claim.

This is one non-precedent decision and the AAO seems to be taking a very hard line in denying a case where the beneficiary provided evidence of his work experience. Immigration practitioners who file H-1B petitions may feel that USCIS has not been taking such an extreme stance in previous petitions. It is up to each practitioner to discuss the issue with the prospective H-1B employer and decide on whether to submit a wealth of documentation with the initial H-1B petition or take the chance that the USCIS could issue an RFE. So what can we take away from this AAO decision?

    • Most importantly, the “three-for-one” rule cannot be taken for granted. It is important that the foreign national obtain extremely detailed experience letters from former employers, which describe each position that the foreign national has held such that the progressively responsible nature of the positions is evident and indicates the foreign national’s level of expertise in the specialty. The description of the foreign national’s duties and responsibilities should make it clear that his work included the theoretical and practical application of specialized knowledge required by the specialty occupation. The letters should also mention the foreign national’s peers, supervisors and subordinates who have degrees in the specialty occupation. The H-1B petitioner must also demonstrate that the foreign national has recognition of expertise in the specialty evidenced by at least one type of a list of five types of documentation described above. This can be accomplished by submitting two expert opinion letters from two college professors along with contemporaneous evidence of their ability to grant college-level credit.
    • Only a foreign credentials evaluation service may evaluate a foreign national’s education. Accordingly, if the foreign national has a combination of education and work experience, the submission to the USCIS cannot contain only expert opinions from professors but must also include an evaluation from a foreign credentials evaluation service.
    • Any evidence of the foreign national’s training must be accompanied by transcripts and a discussion about the nature of the program and what each program is worth in equivalent U.S. college level coursework. Again, if relying on a college professor to do an equivalency, the evaluation must be corroborated with evidence from the college authorities that the professor has the authority to grant credits and must provide further details under what circumstances this professor is authorized to grant those credits.
    • The foreign national’s resume should never be used as documentation of his experience.
David Isaacson

IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA

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On February 16th, as the holiday weekend was coming to an end, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a Memorandum Opinion and Order in the case of State of Texas, et al., v. United States, et al.,  granting the motion of the plaintiff States for a preliminary injunction against the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program, known as DAPA, and the expansion of Deferred Action for Childhood Arrivals, known as DACA, that were set out in a November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson.  (The original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, was not challenged by the plaintiff States, and is not affected by the injunction.)  According to Judge Hanen, the plaintiff States have shown a likelihood of success on the merits of their claim that DAPA and the DACA expansion were authorized in violation of the Administrative Procedures Act (APA), as well as meeting the other requirements for a preliminary injunction.

The Memorandum Opinion and Order is more than 120 pages long, so a full analysis is not feasible in a blog post, especially one being published just two days after the Memorandum Opinion and Order itself.  In this blog post, however, I will focus on what I think is one of the most important conceptual flaws in the Memorandum Opinion and Order.  It appears to overlook key sources of statutory and regulatory authority for DAPA and expanded DACA, particularly the portions of DAPA and expanded DACA which relate to the grant of employment authorization and related benefits.

In the Memorandum Opinion and Order, Judge Hanen accepts that the Department of Homeland Security (DHS), and in particular the Secretary of Homeland Security, Jeh Johnson, has the authority to set priorities regarding whom to remove from the United States.  “The law is clear that the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.”  Memorandum Opinion and Order at p. 69.  “The States do not dispute that Secretary Johnson has the legal authority to set these priorities,” Judge Hanen writes, “and this Court finds nothing unlawful about the Secretary’s priorities.”  Memorandum Opinion and Order at 92.

Judge Hanen asserts in his Memorandum Opinion and Order, however, that DHS’s statutorily granted authority to set enforcement priorities does not go so far as to authorize DAPA because of the affirmative benefits which are to be granted under the program.  He similarly holds that the usual presumption against APA review of decisions not to enforce a statute, as set out by the Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), does not apply in this case because DAPA is not merely a determination not to enforce:

Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. 

Memorandum Opinion and Order at 85-86.  A similar theme is sounded later in the opinion when contrasting DHS’s statutory authority to set priorities, of which Judge Hanen approves, with the benefits conferred under DAPA:

The [Homeland Security Act]’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country.

Memorandum Opinion and Order at 92.

Setting aside for the moment the ability to travel internationally, which is offered only as part of a subsequent application by those already granted DAPA or DACA and is granted when appropriate pursuant to the discretionary parole authority of INA §212(d)(5)(A), 8 U.S.C. §1182(d)(5)(A), the core of Judge Hanen’s concern (or at least a key portion of it) appears to be with the grant of employment authorization and the related documentation, such as a Social Security number, for which one who is granted employment authorization becomes eligible.  It is certainly true that those who receive Employment Authorization Documents (EADs), and are thereby able to receive Social Security numbers, become in an important sense “documented” where they were previously “undocumented”.  But it is not true that DHS has acted without statutory authority in giving out these important benefits.

It is at this point in the analysis that Judge Hanen appears to have overlooked a very important part of the legal landscape, what one might term the elephant in the room.  The statutory authority for employment authorization under the INA is contained in section 274A of the INA, otherwise known as 8 U.S.C. §1324a.  That section lays out a variety of prohibitions on hiring and employing an “unauthorized alien”, and concludes by defining the term as follows:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.

8 U.S.C. §1324a(h)(3).

That is, the Attorney General – whose functions have now been in relevant part taken over by the Secretary of Homeland Security – is statutorily empowered to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  There are a few restrictions on this authority noted elsewhere in the INA: for example, 8 U.S.C. §1226(a)(3) states that an alien who is arrested and placed in removal proceedings may not be provided with work authorization when released from custody unless he or she is otherwise eligible for such work authorization “without regard to removal proceedings”.  But overall, the authority provided by 8 U.S.C. §1324a(h)(3) is quite broad.

Moreover, it is not as though this authority has gone unremarked upon in the context of DAPA and DACA expansion.  The November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson regarding DAPA and DACA (or “Johnson DAPA Memorandum” for short)  states that “Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act.”  Johnson DAPA Memorandum at 4-5.  Nonetheless, other than a quote from this section of the Johnson DAPA Memorandum at page 13 of the Memorandum Opinion and Order, Judge Hanen’s Memorandum Opinion and Order does not appear to address the authority provided by INA §274A(h)(3), 8 U.S.C. §1324a(h)(3).

Pursuant to the authority contained in 8 U.S.C. §1324a(h)(3), the Attorney General and then the Secretary of Homeland Security have promulgated regulations for many years listing various categories of people who are authorized to accept employment by virtue of their status, or who can apply (initially to the INS, and now to USCIS) for authorization to accept employment.  The list is currently contained in 8 C.F.R. §274a.12, and as noted in earlierversionsof that regulatory section, it has existed in substantively similar form since at least 1987, when it was put in place by 52 Fed Reg. 16221.  Included on the list are not only such obvious categories as Lawful Permanent Residents, asylees, and refugees, but also those with various sorts of pending applications for relief, certain nonimmigrants, and many other categories.

One subsection of the 8 C.F.R. §274a.12 list that is particularly relevant here is 8 C.F.R. §274a.12(c)(14), the existence of which is acknowledged in passing by the Memorandum Opinion and Order at page 15 and footnote 66 of page 86 but is not discussed elsewhere.  That provision has long included among the list of those who may apply for employment authorization: “An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.”

As noted in footnote 11 of the Office of Legal Counsel memorandum regarding the legal basis for DAPA, which also addresses much of the authority discussed in the foregoing paragraphs, a prior version of this regulation authorizing employment for deferred-action recipients actually dates back to 1981.  But for present purposes, it is sufficient to point out that the 1987 version of the employment-authorization regulations has continued in force, with various modifications not relevant here, for over 35 years.  The validity of 8 C.F.R. §274a.12(c)(14) as it has been in effect for over three decades does not appear to have been challenged by the plaintiff States or by Judge Hanen, nor is it clear how it could be, given the broad authority provided by 8 U.S.C. §1324a(h)(3).

This long-existing regulation, grounded firmly in explicit statutory authorization, clearly states that an alien beneficiary of “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), which is called “deferred action,” id., may be granted employment authorization upon a showing of economic necessity.  (Such a showing of economic necessity is, in fact, required when seeking employment authorization under DACA, the instructions for which require the filing of the Form I-765 Worksheet regarding economic necessity; the instructions for DAPA, when they are published, will presumably have the same requirement.)  Thus, the regulation at 8 C.F.R. §274a.12(c)(14) authorizes the very features of DAPA and DACA which so troubled Judge Hanen as explained in the Memorandum Opinion and Order: the jump from the setting of enforcement priorities to the granting of affirmative benefits.  The notion that those whose cases are given lower priority as a matter of administrative convenience to the government, should potentially be granted employment authorization as a consequence, is not some new idea created for DAPA and DACA without notice and comment, but has been set out in regulations for many years.

One might say that DAPA and DACA are composed of two logically separable components: first, the designation of certain cases as lower priority, and second, the tangible benefits, principally employment authorization and related benefits, which flow from that designation.  Judge Hanen has found the designation of certain cases as lower priority to be unobjectionable, and has held the provision of tangible benefits in those cases to be in violation of the APA.  But according to a long-existing regulation which no one has challenged, the second component of DAPA and DACA may permissibly flow from the first.

It is therefore logically problematic to say, as Judge Hanen has done in his Memorandum Opinion and Order, that the provision of benefits under DAPA violates the APA even though the prioritization of cases would not.  The bridge from the first step to the second was, as it were, installed a long time ago.  Although Judge Hanen refers to “a new rule that substantially changes both the status and employability of millions,” Memorandum Opinion and Order at 112, it is in fact a very oldrule that has provided that those who are treated, as a matter of convenience, as being lower priority, should be made employable if they can demonstrate economic necessity.  Since the prioritization is concededly acceptable, it follows that the employment authorization and related benefits should be acceptable as well.

The only thing which Secretary Johnson’s November 2014 Memorandum really added to the pre-existing rules governing deferred action and its consequences was a set of criteria for DHS officers to use in determining whether to grant deferred action.  But since the grant of deferred action, as it has long been described in regulation, is merely “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), it can hardly be less permissible under the APA, or for that matter under the Constitution (the basis of another challenge which Judge Hanen did not reach), to grant deferred action than it is to give certain cases lower priority.  If DHS is indeed free to give certain cases lower priority, a proposition which is difficult to seriously dispute given basic background norms of prosecutorial discretion, then pursuant to 8 C.F.R. §274a.12(c)(14) as promulgated under the authority of 8 U.S.C. §1324a(h)(3), DHS is also free to grant employment authorization to those whose cases it has given lower priority and who can show economic necessity for employment.

In a world of finite resources, deciding which cases are worth pursuing necessarily implies deciding which cases are not worth pursuing.  Every dollar of funding or hour of officer time that DHS were to spend seeking to remove someone who meets the DAPA criteria would be a dollar of funding or hour of time that it could not spend seeking to remove a more worthy target.  The DAPA criteria are flexible by their nature, including a final criterion of “present[ing] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate,” Johnson Memorandum at 4.  But where no such negative factors exist, DHS has reasonably determined that parents of U.S. citizens and Lawful Permanent Residents who meet the other DAPA criteria are likely to be appropriate candidates for deferred action—which is, to repeat, simply “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14).  Having made that determination, DHS is authorized by both statute and regulation to confer employment authorization on those whose cases it has given this lower priority.  In ruling otherwise, without addressing either 8 C.F.R. §1324a(h)(3) or the implications of 8 C.F.R. §274a.12(c)(14) promulgated under its authority, Judge Hanen appears to have overlooked the proverbial elephant in the room.

Cyrus Mehta

Who is ‘lawfully Present’ Under the Affordable Care Act?

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By Gary Endelman and Cyrus D. Mehta

 

Had I been present at the creation, I would have given some useful hints for the better ordering of the universe.

Alphonse X the Wise of Castile

Many non-citizens will be subject to additional payment to the Internal Revenue Service if they do not maintain “minimum essential healthcare coverage” under the Patient Protection and Affordable Care Act (Affordable Care Act – ACA).  This is known as the “individual mandate” or the “individual shared responsibility provision.”  By the same token, eligible non-citizens can also access health plans on the health exchanges or Marketplace. The last day to enroll is February 15, 2015 for the current year.  Our first blog discussed the impact of the ACA on lawful permanent residents or green card holders who reside outside the United States.  This blog focuses on non-citizens who are lawfully present in the United States. Section 1411(a) (1) of the ACA renders non-citizens lawfully present in the United States subject to the individual mandate.

The ACA is linked to immigration issues, just as it is joined at the hip with tax law, and it behooves the careful practitioner to consider the commonality   of all these issues and how each of them can inform our understanding of the others when advising non-citizen clients. While an immigration practitioner need not be an expert in other disciplines, he or she must be aware of the eligible statuses for coverage under the ACA, the deadlines for enrollment, and the potential for the client to being subject to an additional payment to the IRS for failing to obtain coverage, unless the client can qualify for an exemption.

The definition of “lawfully present” in 45 CFR 155.2 tracks the prior definition, as it applied to pre-existing condition insurance plans, under 45 CFR 152.2.  A summary of the definitions of “lawfully present” is posted on healthcare.gov, which we reproduce below:

Immigrants with the following statuses qualify to use the Marketplace:

  • Lawful Permanent Resident (LPR/Green Card holder)
  • Asylee
  • Refugee
  • Cuban/Haitian Entrant
  • Paroled into the U.S.
  • Conditional Entrant Granted before 1980
  • Battered Spouse, Child and Parent
  • Victim of Trafficking and his/her Spouse, Child, Sibling or Parent
  • Granted Withholding of Deportation or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT)
  • Individual with Non-immigrant Status (includes worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
  • Temporary Protected Status (TPS)
  • Deferred Enforced Departure (DED)
  • Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) is not an eligible immigration status for applying for health insurance)
  • Lawful Temporary Resident
  • Administrative order staying removal issued by the Department of Homeland Security
  • Member of a federally-recognized Indian tribe or American Indian Born in Canada
  • Resident of American Samoa

Applicants for any of these statuses qualify to use the Marketplace:

  • Temporary Protected Status with Employment Authorization
  • Special Immigrant Juvenile Status
  • Victim of Trafficking Visa
  • Adjustment to LPR Status
  • Asylum (see note below)
  • Withholding of Deportation, or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT) (see note below)

Applicants for asylum are eligible for Marketplace coverage only if they’ve been granted employment authorization or are under the age of 14 and have had an application pending for at least 180 days.

People with the following statuses and who have employment authorization qualify for the Marketplace:

  • Registry Applicants
  • Order of Supervision
  • Applicant for Cancellation of Removal or Suspension of Deportation
  • Applicant for Legalization under Immigration Reform and Control Act (IRCA)
  • Legalization under the LIFE Act

Note that undocumented aliens are not included in the above definitions, including beneficiaries of the 2012 DACA program as well as future recipients of the November 20, 2014 Obama Executive Actions that expand DACA as well as the Deferred Action for Parents Accountability program (DAPA).

While the above list provides a comprehensive summary and quick reference, some analysis of the actual regulatory definitions is warranted under 45 CFR 152.2.

A nonimmigrant is only considered “lawfully present” if he or she “has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission.” See 45 CFR 152.2(2). This is unclear as a nonimmigrant may have technically violated his or her status unwittingly in many ways, but may  still have eventually cured it. For example, if a person on an H-1B visa was mistakenly admitted into the United States for a lesser period of time than the validity period in the H-1B approval notice, and does not realize this, he or she has potentially technically violated status. Still, this person can hope to correct it by filing a late extension of status in the US, or leaving the US and returning, or at times, asking the CBP to extend the date within the US.  An individual who is presently in lawful status should be considered “lawfully present” in order to access a health plan on the exchange. The larger point is that maintenance of status may now have a wider significance beyond the more modest confines of the INA. In turn, this commends the value of an inter-disciplinary approach to the whole question of ACA jurisprudence. Interestingly, while 45 C.F.R. 152.2 gives a precise definition of “lawfully present” it does not contemplate nor define “unlawful presence” thus reflecting a refreshing preference for inclusion as opposed to exclusion, something the INA would do well to emulate.

Under 45 CFR 152.2(4) (vii), only an applicant for adjustment of status whose visa petition has been approved is subject to the ACA. However, it is possible to file an adjustment of status application concurrently with an I-130 or I-140 immigrant visa petition, without the need for such a petition to be approved. Thus, one who has filed an adjustment of status application concurrently with an I-130 or I-140 petition cannot have access to a plan under the health exchange until the petition is approved. Still, once the person is issued employment authorization after filing an adjustment application pursuant to 8 CFR 274a.12(c) (9) he or she can access the ACA even if the I-130 or I-140 petition has not been approved. 45 CFR 152.2(4) (iii) renders one who has been granted employment authorization under 8 CFR 274a.12(c) (9), (10), (16), (18), (20), (22), or (24) as lawfully present. But 8 CFR 274a.12(b)(20) is conspicuous by its absence in the ACA rules determining lawful presence, which allows those in a nonimmigrant status to continue employment for 240 days during the pendency of a timely filed extension request.  It is thus unclear whether someone in a period of stay authorized by the Attorney General (POSABAG) while a timely extension request is pending could take advantage of the ACA. Even if a noncitizen is lawfully present, he or she has to also be a tax resident. IRS regulations at 26 CFR 1.5000A-3(c) exempt noncitizens who are nonresident tax aliens from the individual mandate. So while a non-citizen may be lawfully present and can access the health exchange, he or she will not be subject to the individual mandate under the IRS rules. It is also worth noting that one who is lawfully present may not be eligible to access health insurance who is here in the United States briefly. 45 CFR 155.305, which establishes eligibility criteria for enrolling exchange, requires the applicant to be a “citizen or national of the United States, or is a non-citizen who is lawfully present in the United States, and is reasonably expected to be a citizen, national, or a non-citizen who is lawfully present for the entire period for which enrollment is sought.” See 45 CFR 155.305(a) (1).This durational requirement reinforces our understanding that the ACA is not a new form of government welfare nor can we view such a durational requirement as denying or abridging a fundamental constitutional right. Compare this to the lesson taught by the Supreme Court in Shapiro v. Thompson, 394 U.S. 618 (1969) that struck down waiting periods for public assistance.

Being a “resident” for immigration purposes is not the same as being a “resident” for tax purposes. Tax law uses many of the same terms as immigration but the identical words or concepts can have dramatically different meaning. It is a measure of the ever-growing extent to which immigration has become inextricably interconnected to so many other areas of American life that we are increasingly prone to use immigration terms such as “lawfully present” when discussing non-immigration topics, sometimes with significantly different meanings. Definition therefore is inherently contextual and the relationship of the ACA to our immigration law is a fluid and dynamic one. 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 absent from this definition. Remember, in the naturalization context,  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. Shaughnessy, 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”).

Nonimmigrants are considered to be resident aliens for tax purposes if they meet the “substantial presence” test. Non-citizens are considered residents through the substantial presence test if they are physically present in the US for 31 days during the current year; and a total of 183 days during a 3-year period by counting all the days of the current calendar year, 1/3 days of the previous calendar year, and 1/6 days of the second previous calendar year. See IRC §7701(b) (1) and (3).

Even those who become tax residents under the substantial presence test may continue to remain non-residents if they meet a closer connection to a foreign country test. However, not all may be able to meet this test. A frequent tourist to the US in B-2 status can potentially become a tax resident under the substantial presence test, and thus subject to the ACA. If this tourist is the subject of an immigrant visa petition, such as an I-130 petition filed by a sibling, whose date has not become current, he or she can no longer meet the closer connection test. At the time of filing the 1040 return, this individual will be subject to the shared responsibility payment.

Most students lawfully present in the US in F, J, M or Q status, or their dependents, are exempt for 5 years from counting days of presence under the substantial presence test. Even after five years and having become subject to the substantial presence test, they can continue to be treated as nonresident aliens if they meet the closer connection to a foreign country test. Teachers or trainees present in the US in J or Q status (and their dependents) are exempt from counting days towards substantial presence only for the first two years in the United States. This includes all Js and Qs who are not students, such as research scholars, professors, short-term scholars, specialists, physicians, trainees, interns, au pairs, and camp counselors. Even if these students are not subject to the individual mandate, they can still qualify for coverage through the health exchanges in the event that the school does not provide equivalent coverage

It is hard today to harken back to a time when immigration was less central to the rhythm of American life than it is now. Yet, before the enactment of the Immigration Reform and Control Act of 1986 (IRCA), most employers did not need to worry about immigration nor was immigration policy a matter of white-hot national debate. The lasting importance of IRCA was to bring immigration and immigrants in from the shadows, a process that continues to the present day.   The ACA continues this process of inclusion and the extent to which the marriage of immigration with health care can be a lasting and meaningful one will go far towards assuring the success of both.

(Guest author Gary Endelman is the Senior Counsel at Foster)

Cyrus Mehta

MYTH OR REALITY: IS THE DHS TRULY SERIOUS ABOUT VISA MODERNIZATION FOR THE 21ST CENTURY?

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By Gary Endelman and Cyrus D. Mehta

We cannot teach people.  We can only help them discover it within themselves.  
Galileo Galilei

On November 21, 2014, as part of President Obama’s Executive Actions, the President issued a memorandum to modernize and streamline the U.S. immigrant and nonimmigrant visa systemfor the 21st century. The DHS followed up by publishing a notice in the Federal Register on December 30, 2014 inviting responses to 18 questions relating to visa modernization. We responded in great depth to 2 of the 18 questions as they relate to what we have been advocating for several years to administratively fix the immigration system though big picture and out of the box ideas. Our ideas are also included in the more expansive comments provided by the Alliance of Business Immigration Lawyers, and we salute all of the lawyers who were part of the comment team and who came up with the most innovative suggestions to modernize the visa system. We  hope not without reason that this is not an exercise in futility, and that the DHS will seriously consider our ideas and those of our colleagues, including the weighty comments from the American Immigration Lawyers Association and other stakeholders in the immigration advocacy community. There is no escaping the fact that our visa system designed decades ago to accommodate much less sustanined and far lower levels of migration  urgently needs to be brought into alignment with 21st century needs and challenges. If Congress is unable or unwilling to reform the system, it is incumbent upon the Administration to find ways to reinterpret provisions within the existing INA to ensure that we have an immigration system that can help US employers remain globally competitive and that can attract the best talent to our shores.  It remains to be seen whether all the wonderful ideas in the Supporting US High Skilled Business and Workers memo will ever see the light of the day.  One way for the Administration to demonstrate that it means what it says is to promptly promulgate the rule that would allow H-4 dependent spouses to work. This rule was proposed in May 2014, and it is about time for the rule to be finalized. If the H-4 rule is still pending approval from the powers that be within the governmental bureaucracy, one wonders how much longer would it take for the DHS to lengthen the time period for STEM Optional Practical Training or establish a parole policy to attract entrepreneurs into the US.

At the end of the day, immigration policy is not only, or even primarily, about the immigrants but about how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done. Immigration reform should not be viewed as only a Latino issue, it is an American issue. The view that reform is a Latino issue is not surprising due to two reasons. First, most Americans continue to think that immigration benefits the immigrants not themselves. Second, because of that, business immigration is not deemed to have the ethical legitimacy the same way that family migration has. For that to change, for sweeping CIR to become reality, all of us must realize that immigration is not a problem to be controlled but an asset to be maximized.
We reproduce, below, our comment:
January 28, 2015
Attn: Laura Dawkins
Chief of the Regulatory Coordination Division
USCIS Office of Policy and Strategy
20 Massachusetts Avenue NW
Washington, DC 20529-2140

Re:  Notice of Request for Information: Immigration Policy
79 Fed. Reg. 78,458 (December 30, 2014)
Docket ID: USCIS-2014-0014

Dear Ms. Dawkins:

Gary Endelman and Cyrus D. Mehta have advocated for administrative fixes to improve the immigration system for several years. In The Tyranny of Priority Dates[1]and Why We Can’t Wait: How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of a Pen,[2]we  advocated that the President had broad authority under the Immigration and Nationality Act to ameliorate the plight of many who were caught in the crushing immigrant immigrant visa backlogs, along with many widely disseminated blogs[3]that further fine-tuned and refined the proposals made in our original articles. We are thankful for the opportunity to respond to selected questions in the above referenced Request for Information relating to Visa Modernization which we believe will greatly improve our immigration system. We respond specifically to two of the questions based on arguments we have previously made in our articles and blogs.

5. What are the most important policy and operational changes that would streamline and improve the process of applying for adjustment of status to that of a lawful permanent resident while in the United States?

We propose that aliens caught in the employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing 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, Form I-130 or Form I-526. The EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose. The current priority date system has become a de facto national origin quota perpetrating a continuing injustice against China and India. Rather than regulating immigration, it now serves to prevent it, making the opportunity to migrate permanently to the United States a cruel joke and frustrating the objective of geographic neutrality that we all thought had been achieved by enactment of the Immigration Act of 1965.

Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences, 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. We acknowledge that 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. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed nor is there any indication that Congress preferred or mandated this intepretation. Therefore, we propose a way for 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. §245.1(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, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   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 lawful 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.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).

We propose the following amendments to 8 C.F.R. §245.1(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), we 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. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another 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.
We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S. It would be within the discretion of the USCIS to allow such submissions on a provisional basis in the absence of a current priority date under the current traditional definition of visa availability so that, in a strictly technical sense, actual “filing” and final approval would be deferred until the actual availability of an immigrant visa number did present itself. Allowing time for the perfection of such a provisional submission is based upon well-established patent law procedure which allows for a 12 month period following initial filing to finalize the skeletal patent application. Another proposal that has been suggested is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j) or protection under the CSPA. Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.
Allowing early adjustment of status with companion work authorization, travel permission, and AC 21-like adjustment portability  will make possible the green card on a provisional basis in all but name. However, this is not all. The most important benefit may be the freezing of children’s ages under the formula created by the Child Status Protection Act (CSPA). If the White House will only grant EAD and Parole to I-140 beneficiaries, but stop short of allowing adjustment, then, on a massive scale, their children will turn 21, thereby aging out, long before the magic time for I-485 submission ever arrives.  This is because Section 3 of the CSPA only speaks of freezing the child’s age when the petition has been approved and the visa number has become available. Also,  the child must seek to acquire lawful permanent resident status within one year following petition approval and visa availability. Since Matter of O.Vazquez,  25 I&N Dec. 817 (BIA 2012) absent extraordinary circumstances, only the filing of the I-485 can do that. Under the current definition of visa availability, joined at the hip to the Visa Bulletin, they have no hope. Only through a modified definition coupled with the notion of provisional adjustment can they retain the CSPA age. This is why invocation of early adjustments themselves, not merely EAD and Parole, to beneficiaries of I-140 petitions is so manifestly necessary. However, precisely as in the INA, the CSPA contains no definition of visa availability. A change in the applicable regulatory meaning along the lines we suggest will apply to CSPA and prevent the children of I-140 beneficiaries from aging out.  Granting the EAD and advance parole will sadly have no such effect.  Only early adjustment can do that. This is especially relevant now since the Supreme Court in Scialabba v. Cuellar De Osorio, 134 S. Ct. 2191, 573 US __, 189 L. Ed. 2d 98 substantially narrowed the utility of priority date retention. The redefinition of visa availability that we propose not only provides the legal underpinning for early adjustment of status but also allows the children of I-140 petition beneficiaries to derive a priceless immigration benefit through this family relationship that would otherwise be lost. Given the importance of preserving the age of a child under the CSPA, why only restrict early I-485 filings to beneficiaries of I-140 petitions? Our proposed redefinition of visa availability ought to also apply uniformly to beneficiaries of family based I-130 petitions too. Not only can children who age out not benefit from the CSPA, how many parents will want to remain in the United States if their children cannot?

15. What are the most important policy and operational changes, if any, available within the existing statutory framework to ensure that administrative policies, practices, and systems fully and fairly allocate all of the immigrant visa numbers that Congress provides for an intends to be issued each year going forward?

Unitary Counting of Derivatives

There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps.  That being so, President Obama tomorrow can issue an executive action providing that this long-established practice be stopped.  That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past. The issue is not whether family members should be exempt but rather how they should be counted.
We proposed this idea in  The Tyranny of Priority Dates, supra,  and How President Obama Can Erase Immigrant Visa Backlogs with the Stroke of a Pen, supra,  long before it achieved the intellectual acceptance in many quarters that it now enjoys.[4]We are pleased to now find that President Obama is considering this proposal as part of the package of administrative reform measures he announced on November 20, 2014. That this is so suggests the broad possibilities for change when the vigorous and disciplined exercise of executive initiative allows genuine progress to overcome the paralysis of political stalemate.
We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d). Let us examine what INA §203(d) says:

A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again.  Should only the principal become a permanent resident while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA §203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA §203(d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.” Viewed in this way, INA §203(d) operates in harmony with all other limits on permanent migration found in INA both on an overall and a per country basis.
There is no regulation in 8 Code of Federal Regulation (CFR) that truly interprets INA §203(d). Even the Department of State’s regulation at 22 CFR §42.32 fails to illuminate the scope or purpose of INA §203(d). It does nothing more than parrot INA § 203(d). The authors recall the Supreme Court’s decision in Gonzales v Oregon, 546 US 243, 257 (2006) reminding us that a parroting regulation does not deserve deference:

Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.

It is certainly true that family members are not exempted from being counted under INA § 201(b) as are immediate relatives of US citizens, special immigrants, or those fortunate enough to merit cancellation of their removal. Yet, we note that the title in INA §201(b) refers to “Aliens Not Subject to Direct Numerical Limitations.” What does this curious phrase mean? Each of the listed exemptions in INA §201(b) are outside the normal preference categories. That is why they are not subject to direct counting. By contrast, the INA § 203(d) derivatives are wholly within the preference system, bound fast by its stubborn limitations. They are not independent of all numerical constraints, only from direct ones. It is the principal alien through whom they derive their claim who is and has been counted. When viewed from this perspective, there is nothing inconsistent between saying in INA §203(d) that derivatives should not be independently assessed against the EB or FB cap despite their omission from INA §201(b) that lists only non-preference category exemptions.

We do not claim that derivative beneficiaries are exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all, for which we do not contend, and being counted as an integral family unit rather than as individuals. For this reason, INA §201(b) simply does not apply. We seek through the simple mechanism of an Executive Order not an exemption from numerical limits but a different way of counting them.

We are properly reminded that INA §§201(a)(1) and 201(a)(2) mandate that “family sponsored” and “employment based immigrants” are subject to worldwide limits. Does this not cover spouses and children? True enough but all is not lost. While the term “immigrant” under INA §101(a)(15) includes spouse and children, they were included because, in concert with their principal alien family member, they intended to stay permanently in this their adopted home. No one ever contended they were or are non-immigrants. However, this does not mean that such family derivatives are either “employment based” or “family sponsored” immigrants. No petitioner has filed either an I-140 or I-130 on their behalf. Their claim to immigrant status is wholly a creature of statute, deriving entirely from INA §203(d) which does not make them independently subject to any quota.
INA §203(d) must be understood to operate in harmony with other provisions of the INA. Surely, if Congress had meant to deduct derivative beneficiaries, it would have plainly said so somewhere in the INA. The Immigration Act of 1990 when modifying INA §§201(a)(1) and 201(a)(2) specifically only referred to family sponsored and employment-based immigrants in §203(a) and §203(b) respectively in the worldwide cap. This was a marked change from prior law when all immigrants save for immediate relatives and special immigrants, but including derivative family members, had been counted. In this sense, the interpretation of INA §203(d) for which we contend should be informed by the same broad, remedial spirit that characterizes IMMACT 90’s basic approach to numerical limitation of immigration to the United States As already noted, these immigrants ought to only be the principal beneficiaries of I-130 and I-140 petitions. Derivative family, of course, are not the beneficiaries of such sponsorship. At no point did Congress do so. Under the theory of expressio unius est exclusio alterius, it is entirely reasonable to conclude that Congress had not authorized such deduction.[5]Surely, if this was not the case, Congress would have made its intent part of the INA.  If the Executive Branch wanted to reinterpret §203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X can be used as a force for good. Thus, when a provision is ambiguous such as INA §203(d), the government agencies charged with its enforcement may reasonably interpret it in the manner that we suggest.
Skeptics who contend that the INA as written mandates individual counting of all family members point to two provisions of the INA, §§202(a)(2) and 202(b). Neither is the problem that supporters of the status quo imagine.  Let’s consider §202(a)(2) first. In relevant part, it teaches that not more than 7% of the total number of family and employment-based immigrant visas arising under INA §203(b) may be allocated to the natives of any single foreign state. Eagle eyed readers will readily notice that this does not apply to derivative family members whose entitlement comes from INA §203(d) with no mention of §203(b). Also, but no less importantly, INA §202(a)(2) is concerned solely with overall per country limits. There is no reason why the number of immigrant visas cannot stay within the 7% cap while all members of a family are counted as one unit. There is no reason why monitoring of the per country family or employment  cap should require individual counting of family members. The per country cap is, by its own terms, limited to the named beneficiaries of I-130 and  I-140 petitions and there is no express or implied authority for any executive interpretation that imposes a restriction that Congress has not seen fit to impose.
What about cross-chargeability under INA §202(b)? Even if §202(b) has language regarding preventing the separation of the family, it does not mean that the derivatives have to be counted separately. If an Indian-born beneficiary of an EB-2 I-140 is married to a Canadian born spouse, the Indian born beneficiary can cross charge to the EB-2 worldwide rather than EB-2 India. When the Indian cross charges, the entire family is counted as one unit under the EB-2 worldwide by virtue of being cross charged to Canada. Such an interpretation can be supported under Chevron and Brand X, especially the gloss given to Chevron by the Supreme Court in the recent Supreme Court decision in Scialabba v. de Osorio, supra,  involving an interpretation of the provision of the Child Status Protection Act.[6] Justice Kagan’s plurality opinion, though seeking to clarify the Child Status Protection Act, applies with no less force to our subject: “This is the kind of case that Chevron was built for. Whatever Congress might have meant… it failed to speak clearly.” Kagan slip op. at 33. Once again, as with the per country EB cap, the concept of cross-chargeability is a remedial mechanism that seeks to promote and preserve family unity, precisely the same policy goal for which we contend.

Expansion of Parole in Place

The very idea of “parole” in §212(d)(5) of the INA is linked to  allowing deserving aliens to come to the United States for “urgent humanitarian reasons or significant public benefit.” In most cases, we think this only applies to people who are not yet here. Not so. Digging a bit deeper into the INA, we find in §235(a)(1) this golden nugget: an applicant for admission is “an alien present in the United states who has not been admitted…” Putting all of this together, there is nothing in law or logic that prevents the full embrace and unfettered application of parole to those already in the United States outside the color of law. The invocation of ‘parole in place” is another example of using new interpretive techniques to mine the existing law for greater benefits. It is the antidote to the inability of Congress to enact comprehensive immigration reform. There should be no concern over a possible infringement of separation of powers for the authority of Congress over the legislative process is being fully respected.  Part of the responsibility of the President to enforce the laws is to adopt an understanding of them that best promotes what Congress had in mind when it passed the law in the first place. Parole in place does precisely that. This is not amnesty. The requirements for obtaining legal status on a permanent basis apply in full. It is merely an attempt to think of the law we have not purely or primarily as an instrument of enforcement but as a platform for remediation of the human condition. Indeed, is this not how law in the American tradition is meant to function? The expansion of parole in place would reduce the burden on American consular posts abroad so that their limited resources could be more properly deployed within more narrowly targered objcctives that would thus expedite visa issuance and promote national security by allowing more in-depth examination of visa applicants.
The creation of new solutions by federal agencies has become the norm rather than the exception in our system of governance if for no other reason that the sheer multiplicity of issues, as well as their dense complexity, defies traditional compromise or achievable consensus which are the hallmarks of Congressional deliberation. They require timely and directed executive action as a formula for keeping present problems from getting worse. This is exactly why Congress authorized the Attorney General to grant employment authorization without terms or limitations pursuant to INA §274A(h)(3)(B), a provision that should be linked with the robust exercise of the Executive’s parole power. The INA leaves the granting of parole completely up to the discretion of the Attorney General, now shifted to the DHS. It is hard to imagine a more open invitation to Executive rule- making to provide when parole can be extended, as there is absolutely nothing in the INA that would contradict a DHS regulation allowing parole in place. Not only is it appropriate for the DHS to formulate immigration policy on highly minute technical issues of surpassing moment such as parole in place, but the Constitution expects that to happen. Indeed, without this, who would do it? Far from crossing the line and infringing the authority of Congress, what we ask the DHS to do augments Congressional prerogative by providing a practical way for them to function.
In addition to not counting derivatives, the Obama Administration can extend parole in place (PIP) that has been granted to military families to all immediate relatives of US citizens, which would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility under §§212(a)(9)(B)(i)(I) and (II) of the INA. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.
The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates.However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA §245(c)(2) and the current USCIS memo granting PIP to military families states that “[p]arole does not erase any periods of unlawful status.”[7] There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA §245 where the applicant is required to have maintained lawful nonimmigrant status is under INA §245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. For purposes of §245(c) of the INA, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. §245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.
There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA §245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA §245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA §101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA §245(k)(2), it cannot substitute for the lawful admission demanded by section §245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA §245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of §245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.
Our proposal to grant PIP retroactively so that it erases unlawful presence can also assist people who face the permanent bar under §212(a)(9)(C) of the INA. If PIP can retroactively erase unlawful presence, then those who entered the country without inspection after accruing unlawful presence of more than 1 year will not trigger the bar under this provision if the unlawful presence has been erased.
One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 year, 10 year and permanent bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the bars.  Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation.

Achieving Something Close to Comprehensive Immigration Reform Under the INA

Not counting family members and expanding parole in place can be a potent combination for nearing comprehensive immigration reform administratively in the face of Congressional inaction. The waits in the EB and FB preferences will disappear, and family members waiting abroad can unite with their loved ones more quickly and need not be forced to take the perilous path across the Southwest border in desperation. The expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would allow them to obtain lawful permanent residence, rather than being stuck in permanent limbo due to the 3 and 10 year bars. After removing the obstacle of the bars, the grant of lawful permanent residence would be more rapid as there would be no backlogs in the FB and EB preferences, and loved ones from abroad can unite with newly minted immigrants in the United States through an orderly and legal process.
These proposals too fall squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. We acknowledge that immigration reform passed by Congress would solve more problems in a fundamental way. We seek less dramatic but no less meaningful advances through the disciplined invocation of executive initiative only because these are the ones that can be achieved sooner and with greater predictability. Our justifiable zeal for immigration reform must not blind us to the benefit of more moderate proposals. We are confident that future progress will follow in a way that minimizes disruption and maximizes acceptance. We hold fast to the distinction between prudence and absolutism, between incremental reform and revolutionary upheaval. In the long run, the American experience has been characterized more by the former than the latter and it has led to a fruitful stability that has been the envy of the world.

Yours truly,

Gary Endelman

Cyrus D. Mehta

 

[1]See 15 Bender’s Immigration Bulletin 469, April 1, 2010. Another version of The Tyranny of Priority Dates article is available online at https://www.scribd.com/doc/45650253/The-Tyranny-of-Priority-Dates-by-Gary-Endelman-and-Cyrus-D-Mehta-3-25-10
[2] See 17 Bender’s Immigration Bulletin 3, January 1, 2012.

[3] See e.g, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, https://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html;  The Family That Is Counter Together Stays Together:  How To Eliminate Immigrant Visa Backlogs, https://blog.cyrusmehta.com/2014/09/the-family-that-is-counted-together.html;  Do We Really Have To Wait For Godot?:  A Legal Basis For Early Filing Of An Adjustment Of An Adjustment of Status Application,             https://blog.cyrusmehta.com/2014/08/do-we-really-have-to-wait-for-godot.html

[4] See e.g. Stuart Anderson, Executive Action and Legal Immigration, National Foundation for American Policy, September 2014, available at http://nfap.com/wp-content/uploads/2014/09/NFAP-Policy-Brief.Executive-Action.Sept-2014.pdf
[5] In §1244(c) of the Defense Authorization Act of 2008, Pub. L. No. 110-181, Congress explicitly stated that only principal aliens would be charged against the 5,000 visas allocated to Iraqi translators. Even if Congress imposed a numerical limit on principal applicants and exempted derivative applicants in special emergency legislation, this provision does not dictate how derivative beneficiaries who are subject to the general family or employment-based caps should be counted under §203(d).
[6] See Mehta, Isaacson and Endelman, Scialabba v. de Osorio: Does the Dark Cloud Have a Silver Lining? 19 Bender’s Immigration Bulletin 1021, September 15, 2014.

[7] Policy Memorandum,  Parole of Spouses, Children and Parents of Active Duty Members of the U.S. Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act § 212(a)(6)(A)(i),  PM-602-0091, November 15, 2013. 

Cyrus Mehta

IN PURSUIT OF “SPECIALIZED KNOWLEDGE”

/0 Comments/in /by
By Rachel Weissman
When one examines the many visa categories through which a foreign national may lawfully enter or remain in our country, certain values are immediately evident. Categories which allow foreign nationals entry through U.S. Citizen or Lawful Permanent Resident relatives bespeak the value our nation places on family unity. Categories which allow foreign nationals to stay due to persecution in their home country or domestic abuse in our own country, speak to our nation’s humanitarian values. And, of course, categories that allow foreign nationals to enter through employer sponsorship speaks to the value our nation places on capitalism within its own borders, and on its competitiveness in the global marketplace.
As a nation of immigrants, we recognize that foreign nationals have much to contribute to our marketplace. It is this recognition of foreign talent that lent itself to the creation of the L-1B “specialized knowledge” visa, a visa designed so that multinational business owners—business people with offices abroad and in the United States (or those who wish to open an office in the United States)—can bring foreign workers with “specialized knowledge” of the business’s product or process into the U.S. temporarily, so that its workers can perform the necessary specialized services in the U.S.
Unfortunately, however, for many businesses petitioning for the L-1B “specialized knowledge” visa, procuring the benefit has become a tedious battle. Petitioners are often required to provide evidence of facts that are irrelevant for the purposes of demonstrating specialized knowledge, or worse, denied visas for failing to demonstrate that specialized knowledge is required in cases where overwhelming evidence has demonstrated that such knowledge is necessary for the job.
For example, take one case where a petitioner was denied an L-1B “specialized knowledge” visa for its employee because it failed to demonstrate that working on its product required “specialized knowledge”. In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.  
One cannot entirely fault USCIS officers, however, for their sometimes absurd interpretations of “specialized knowledge”. The definition of “specialized knowledge” has long been the subject of contention in court cases due to its ambiguity in the regulations at 8 C.F.R. §214.2(l)(1)(ii)(D), which define specialized knowledge as “[S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures”.
Legacy INS attempted, multiple times, to provide guidance to the term “specialized knowledge” identifying knowledge of a proprietary product as an indicator that specialized knowledge exists (See Matter of Sandoz Crop Protection Corp, 19 I&N Dec. 666 [Comm. 1988], and Matter of Penner, 18 I&N Dec. 49 [Comm. 1982]), especially where the employee’s duties relating to the proprietary product are “necessary in order for the company to remain competitive.” (Matter of Colley, 18 I&N Dec. 117 [Comm. 1981]). However, the regulatory definition of “specialized knowledge” (born of the Immigration Act of 1990) did not require proprietary knowledge as a prerequisite for L-1B classification.  In 1994, James A. Puleo issued a memorandum attempting to delineate what it is that makes up “specialized knowledge”, and included such factors as “knowledge that is valuable to an employer’s competitiveness in the marketplace” and “knowledge of a product or process which (could not) be easily transferred or taught to another individual”. (Memorandum on Interpretation of Specialized Knowledge from James A. Puleo, Acting Executive Associate Commissioner, Office of Operations, CO 214L-P [March 9, 1994]). In 2002, a memorandum issued by Fujie Ohata gave a broad interpretation of the term, defining “specialized knowledge” as “a type of specialized or advanced knowledge that is different from that generally found in the particular industry.” (Memorandum on Interpretation of Specialized Knowledge from Fujie O. Ohata, Associate Commissioner, Service Center Operations, Immigration Services Division, HQSCOPS 70.6.1 (Dec. 20, 2002). In 2011, the Department of State again attempted to issue guidance as to how adjudicators of L-1B visa petitions should define specialized knowledge. Referencing the earlier INS cases, it identified proprietary knowledge of a product as an indicator that “specialized knowledge” exists, especially where knowledge “would be difficult to impart to another without significant economic inconvenience.” (U.S. Department of State, Cable, “Guidance on L Visas and Specialized Knowledge, Reference Document: STATE: 002106, 01/11” January 2011.)
Most recently, as this blog elaborated, in October 2014 the United States Court of Appeals for the District of Columbia Circuit came down hard on USCIS for its “wooden” application of the law in denying a chef an L-1B specialized knowledge visa. (See Fogo De Chao (Holdings) Inc. v. U.S. Dept. of Homeland Security, et al. No. 1:10-cv-01024 [Court of Appeals for the District of Columbia, Filed on 10/21/2014]). The Fogo court declined to give the USCIS decision “Chevron” deference as the regulations circularly parrot the statute, rather than provide a definition of “specialized knowledge”. It held that specialized knowledge could be obtained through deep immersion in a culture and also identified “economic hardship” as key in identifying where “specialized knowledge” exists. The Fogo decision, while helpful to practitioners seeking legislative support for a broader definition of specialized knowledge, also serves to highlight the desperate need for a more concrete definition of “specialized knowledge”.
United States Secretary of Homeland Security Jeh Johnson recognized the need for guidance in his November 20, 2014 Memo to USCIS Director Leon Rodriquez and USCIS Acting Director Thomas S. Winkowski, Policies Supporting U.S. High-Skilled Business and Workers. Specifically, Section D, “Bringing Greater Consistency to the L-1B Visa Program”, directs USCIS to “issue a policy memorandum that provides clear, consolidated guidance on the meaning of ‘specialized knowledge’,” and acknowledges the critical importance of the L-1B Visa Program for multinational companies as an “essential tool for managing a global workforce as companies choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy.” (emphasis added).
As USCIS drafts its guidance it should take care to note the capitalist values that inspired the creation of this visa category. This category was created, as noted by Secretary Johnson, “to benefit the U.S. economy”. To woodenly interpret this category so as to rule out many qualified workers, to create unnecessary limitations, all of this would only serve to hurt our own economy and to limit our own country’s competitiveness in the global marketplace. The Fogo de Chao decision, which allows for a broader interpretation of specialized knowledge, provides a good reference point as to how to interpret “specialized knowledge”. The guidance should be clear so that there can be no more ambiguity for USCIS officers attempting to interpret “specialized knowledge”.
“Specialized knowledge” should be found to exist where an employer would incur significant economic loss in training another individual to do the work required of an employee. “Specialized knowledge” should be found where the work requires knowledge of a proprietary product. Even if a company does not have a proprietary product, specialized knowledge should be found where an employee’s knowledge may be uncommon or advanced, and need not be narrowly drawn within the company and reserved for a select few. Specialized knowledge should also be found where a company may not have a product, but has developed a unique methodology for delivering services to customers.  The guidance should state unambiguously the long-standing USCIS rule that was reiterated in the aforementioned Ohata memo, that “there is no test of the U.S. Labor Market in determining whether an alien possesses specialized knowledge. Only an examination of knowledge possessed by the alien is necessary”. USCIS should be reminded that our country desires the services of qualified L-1B individuals and it should be encouraged to interpret “specialized knowledge” broadly, so as not to preclude workers who qualify to benefit our country under this category. Essentially, a foreign national should be found eligible for the L-1B visa where it can be shown that the person’s set of skills or knowledge is complex, and has contributed to the success of the foreign entity, and will be replicated in the United States on this person’s transfer.
The United States of America takes great pride in its capitalist ideals, and strives to be the most competitive nation on earth. The L-1B visa allows the United States to do just that.  USCIS should ensure that its guidance with relation to the L-1B “specialized knowledge” visa category comports with our nation’s values.
(Rachel Weissman is a Contract Associate at Cyrus D. Mehta & Associates, and is pending admission to the N.Y. State Bar after passing the bar examination. She graduated with a J.D. from Brooklyn Law School in 2014, where she focused her studies on Immigration Law and served as Treasurer of the Brooklyn Law Immigration Society. She looks forward to a day when the definition of “specialized knowledge” is interpreted to allow multinational business owners to easily transfer their “specialized knowledge” employees to the United States.)
Cyrus Mehta

SQUARING THE IMMIGRATION CIRCLE: NEW HOPE FOR AN OLD SYSTEM

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By Gary Endelman and Cyrus D. Mehta

The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by  Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed in the area of high-skilled immigration. Soon employers will be scrambling again on April 1, 2015 to file their H-1B petitions in the hope that they will be selected in the cap lottery. H-1B numbers will get exhausted six months before the start of the new fiscal year on October 1, 2015. The I-Squared Act will raise H-1B numbers so as to avoid these unnecessary scrambles for the H-1B visa. What is unique is that the H-1B numbers will not be the subject of an arbitrary cap just picked from a hat, but will fluctuate based on actual market demand. The cap will not go above 195, 000, but not below 115,000.

Among the bill’s provisions are the following, although we refer readers to Greg Siskind’s detailed summary:

  • Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.
  • Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
  • Authorizes employment for dependent spouses of H-1B visa holders.
  • Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.
  • Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.
  • Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.
  • Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.
  • Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will likely not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will surrender the high ground that America now occupies.

Until now, the ever-increasing fees and hyper-regulation imposed by Congress and the USCIS on H-1B employers have been justified by the simple but stubbornly held, if unstated, conviction that the hiring of foreign workers is contrary to the national interest and should be punished. Beyond that, the USCIS and DOL, not to mention the legacy INS, have always and continue to believe that the infliction of such punishment was the best, perhaps the only way, to shield US workers from such “illicit” activity. No government should have to apologize for trying to protect its own citizens. The true objection to what the USCIS and DOL have done is that their efforts, however well intentioned, have done precious little to help, but much to hurt, the very objects of their stated concern.

What is also remarkable about the I-Squared Act is that it raises the H-1B cap without undermining the H-1B visa program the way we know it. Unlike what S. 744 tried to do to muddy the H-1B visa, there are no provisions that would force employers to pay higher than market wages, or subject dependent employers to artificial and onerous recruitment requirements. The bill also incorporates ideas that have been floated in the context of bringing about administrative reform. Most notable is that I Squared exempts dependents from being counted in the employment-based preferences, which is something that we have advocated for several years. It is always preferable if Congress is able to bring about this change than to have the Administration find a justification for not counting family members under the current INA, and possibly even being sued for doing so. The bill also seeks to recapture unused visa numbers, and these have been estimated to be at least 200,000.

The bill would also allow for early adjustment filing by deeming an immigrant visa to be immediately available if the visa has not been used up during the fiscal year. This is precisely what we have also been advocating for facilitating early adjustment filings administratively. So long as there is even one visa that has gone unused, there should be a deeming of visa availability, thus allowing a foreign national to  be able to file an early adjustment of status application before the State Department’s Visa Bulletin announces them current. Of course, if Congress can bring about the innovation through the I Squared Act, so much the better. This redefinition of visa availability would also inject new and badly needed relevancy into the age-freezing formula of the Child Status Protection Act which, despite petition approval, does not operate where there are visa backlogs. Under the Child Status Protection Act, one needs an approved petition and a visa number to freeze the age of the child. If there is retrogression after such visa availability, the age remains frozen. However, if the visa availability is redefined, then the danger of aging out is removed. It will do little good to allow the parent(s) to apply for adjustment of status if their kids age out and have to leave. Interestingly enough, the I-Squared Bill will be the one and only definition of visa availability that Congress has ever authored.

The bill will also bring some respite to H-1B workers whose jobs get suddenly terminated. At present, there is no respite and an H-1B worker is in violation of his or her status upon termination. The bill will grant a 60 day grace period if the H-1B is terminated before the I-94 expires during which time a new employer can file a petition to extend or change status. This is the first step. We also urge that Congress passed a startup visa for entrepreneurs who wish to set up innovative businesses in the US. The H-1B visa is ill-suited for startups due to the need for the employer to establish control over the H-1B worker’s employment, which is difficult to demonstrate if the foreign national is the founder and owner of the entity.

The bill will also prohibit USCIS and DOS from denying subsequent petitions, visa or applications involving the same petitioner and beneficiary unless there was a material error relating to the approval of the prior petition, a material change in circumstances has occurred or new material has been discovered which adversely affects the eligibility of the employer or the worker. Although this bill has bipartisan support, it remains to be seen whether it will pass Congress. Republicans will want to introduce an amendment to abolish the Deferred Action for Parents Accountability (DAPA) program and Democrats may want to include provisions to make it more comprehensive such as legalizing undocumented persons. If both parties want to be able to demonstrate and can get something done, it would behoove them to pass this bill so as to avoid another H-1B cap quagmire looming ahead of us. Additionally, this bill will also help to further strengthen the American economy.

Section 102 of the I-Squared Bill would allow both H-4 and L-2 spouses to work, providing them with an “employment authorized endorsement of other appropriate work permit.” Does this mean a need to get an Employment Authorization Document? Who knows?  We welcome this development even though there is nothing in the INA right now that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. While the USCIS has proposed to allow H-4 employment in select instances, the I-Squared version of H-4 employment authorization is a distinct improvement. I-Squared improves the USCIS proposed rule as it would allow H-4s to obtain EADs without preconditions. The proposed USCIS rule imposes preconditions where the principal must either have to have an approved I-140 or be filing for an H-1B extension beyond the 6th year under the American Competitiveness in the 21st Century Act. Both versions unnecessarily limit H-4 employment to spouses rather than extending it to teen age children.

Much as with the notion of a flexible H-1B cap, this reframing of visa availability is not so much an attempt to create a new immigration law as to bring new depth and definition to the existing INA, thus indicating yet again that the value of incremental change is to function as an improvement upon existing legislation. While I-Squared does not overly challenge the tyranny of priority dates, it does so indirectly by updating our understanding of visa availability and exempting  EB-1 extraordinary ability and  outstanding researchers from being subject to the crushing weight of the numerical employment based  caps, as well as advanced degree holders with STEM degrees .  The concept of family unit is advanced by not counting family members against the employment-based immigrant visa caps but it would be even better if family members were similarly exempt as a factor in the family-based quota limits.

While I-Squared does not explicitly link H-1B allotments to domestic economic conditions, it does so on a de facto basis by allowing the H-1B cap to rise or fall in connection with increases or decreases in H-1B sponsorship which themselves are a direct function of business profitability. While I-Squared does not make the H-1B truly portable, it does grant a temporary 60 day basis for the H-1B worker to find a new job without falling out of status. While I-Squared does not explicitly sanction consular reviewability, it makes it unnecessary for E, H, L, O or P visa holders to go to a consulate in the first place in order to renew their existing visas by restoring the pre-9/11 practice of visa revalidation. While I-Squared retains the INA 214(b) presumption of intending residence or immigrant intent, it exempts F-1 students from the obligation to maintain an unabandoned foreign residence abroad. Dual intent is not eliminated but students now come within the protection of its sheltering arms. The concept of the per country cap is partially retained but only on the family based side of the ledger. Let’s take the next step and extend this reductive methodology to FB quotas. The priority date system remains in place but the INA now will define visa availability so long as any visa number allocated to employment-based preference immigrants has not yet been issued for that fiscal year.  Beyond that, US advanced degree STEM holders are no longer counted against the overall EB limits. In sum, I-Squared is a classic example of legislative remediation that retains the frame of what was not working while infusing it with new meaning and greater adaptability to meet and answer the challenges of the 21st century.

This is pre-eminently a time for innovation. Try something, if that does not work, well then, try something else. True and lasting change is what America needs. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The USCIS and DOL care about American workers but do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. For those who think a new way is too complex, do we not have complexity now and towards what end? For those who shrink from the demands of change, or doubt what they can do to chart a new course, let them listen to the wise words of Robert Frost in his immortal poem The Road Not Taken that can, if we have the will and wisdom to hear it, still speak to us today: ” Two roads diverged in a wood, and I – I took the one less traveled by, And that has made all the difference.”

Cyrus Mehta

THE LABORATORIES OF DEMOCRACY: STATE INITIATIVE AND PROMOTION OF IMMIGRATION REFORM

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By Gary Endelman and Cyrus D. Mehta

Although states have been experimenting with their own initiatives on immigration, they have been related to mainly punitive enforcement laws, the most notorious being Arizona’s SB 1070. Section 2(B) of the Arizona law, which was upheld by the Supreme Court in Arizona v. USA, requires police officers to determine the immigration status of anyone they stop if they have a “reasonable suspicion” that the person in “unlawfully present in the United States.” While such punitive laws have received the most media attention, other states have been experimenting with initiatives that attract immigrants. 
But state laws need not always be punitive. If we have the eyes to see them, examples of positive state actions on immigration are all around us, such as the issuance of driver’s licenses to undocumented immigrants in California and Connecticut.  Many of the progressive achievements in modern American history, such as progressive income taxation, women suffrage, popular election of senators, wage and hour laws, occupational safety, and most recently health care and same sex marriages, to name but a select few, first appeared on the state level. The many instances where federal intervention has been necessary to protect civil rights against state abuse should not blind us to the possibility that state action can also be a force for good. State action on immigration harkens back to salad days of our national existence. It is certainly true that, for the first century of American independence, there were no illegal aliens in a national sense for the simple reason that Congress had not yet placed any limits on immigration and would not do so until 1875. This incorrectly assumes that, prior to the Civil War, the states had no proper constitutional role to play in regulating immigration. A leading scholar has called this period of our history “ the lost century of American immigration law.” See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993). The federalization of US immigration policy is a relatively recent historical development, dating as it does from the late 19th century, largely in response to inadequate and ineffective state and local efforts. Not until the early years of the last century would the states cease to play an active role in shaping American immigration policy. What is happening now, therefore, is not a new approach but is a selective incorporation of what what is the original American approach on immigration. Long ago, Justice Brandeis recognized in that federalism offered a constitutional framework for experimentation and creativity: 

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…

New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandeis, J. dissent)

A case in point is Massachusetts’s launch of the Global Entrepreneur in Residence program. The GEIR is part of the 2014 Economic Development Bill, which facilitates partnerships with institutions of higher education such as universities to provide valuable, relevant part-time work opportunities to foreign graduates who are entrepreneurs and want to grow their companies, but cannot remain in the United States due to the H-1B visa annual cap. The university, as a cap exempt employer under INA section 214(g)(5)(A), can sponsor a foreign national who will not be counted towards the numerical limitations in INA section 214(g)(1).  Non-profit affiliates to institutions of higher education can also qualify as cap-exempt employers. 
So far so good, but there is a golden nugget by way of INA section 214(g)(6) that allows one who has been sponsored by a cap exempt  university employer to accept concurrent employment with an employer who is subject to the H-1B numerical limitation. INA section 214(g)(6) reads as follows:

Any alien who ceases to be employed by an employer described in paragraph (5)(A) shall, if employed as a nonimmigrant alien described in section 101(a)(15)(H)(i)(b) of this title, who has not previously been counted toward the numerical limitations contained in paragraph (1)(A), be counted toward those limitations the first time the alien is employed by an employer other than one described in paragraph (5). 

The magic word in section 214(g)(6) is “ceases.” In other words, so long as the foreign national has not ceased to be employed with an H-1B cap-exempt employer, he or she can be approved for an H-1B visa through a cap-subject employer without regard to the H-1B annual numerical limitation. Once the H-1B visa petition through the cap-subject employer is approved, according to a May 30, 2008 USCIS Policy Memo, even if the foreign national ceases employment at the cap exempt employer, he or she may continue to remain in H-1B status through the cap-subject employer, although a subsequent extension request will get denied unless there are new H-1B cap numbers available at the time of the new filing.  
Vivek Gupta is one such recipient of the GEIR program. The University of Massachusetts, according to the CNN news story, sponsored him in the university’s Venture Development Center as an “entrepreneur in residence,” where he will advise other founders of startup companies. This would allow Gupta’s own startup WealthVine, a cap subject employer, to sponsor him.  While we do not know whether Gupta’s H-1B visa petition through his company got approved, the GEIR would allow entrepreneurs like Gupta to work for their companies in H-1B visa status, which otherwise may not have been available to them due to the annual H-1B limitation. The USCIS Entrepreneurs Pathways portal provides a guide to how founders can use their startups to apply for H-1B visas. 
Michigan is another state that is actively innovating to attract top foreign talent. GOP Governor Snyder of Michigan will support those applying for the green card through the National Interest Waiver. While the specifics of Michigan’s plan have not yet been spelt out, it appears that Michigan will support applicants for the National Interest Waiver who reside in Michigan and who contribute to Detroit’s economic growth. There is ample scope for states to further develop the standards under the National Interest Waiver pursuant to President Obama’s November 20, 2014 Executive Action. Indeed, one of the Executive Action memos entitled Policies Supporting U.S. High Skilled Businesses and Workers acknowledges the under-utilization of the National Interest Waiver, and states can assist the DHS in establishing criteria for supporting applications from entrepreneurs and others that promote economic growth in the state. The same memo also indicates that DHS will use its “significant public benefit” parole authority under INA 212(d)(5) to develop criteria to bring in promising entrepreneurs who do not yet meet the National Interest Waiver cut. Here too states can provide input regarding developing criteria, and supporting entrepreneurs’ applications to the federal government when applying for parole to come to the United States. 
In the same vein, a state can designate certain occupations as shortage occupations, which may assist the Department of Labor in more easily certifying a labor certification  pursuant to INA § 212(a)(5) of an employer filed on behalf of a non-citizen resident in the state. A state can be a more effective judge of shortage occupations than the federal government, and if a labor certification is filed on behalf of a non-citizen in that particular state designated shortage occupation, the DOL may be more influenced in making a favorable determination on the labor certification. In fact, increased involvement by the states in identifying labor market shortages in their jurisdictions is precisely what Congress had in mind when in created the modern system of labor certification in 1965. Rather than a hyper-technical system of individualized recruitment, Congress thought it was setting up a structure in which the states would funnel information on job vacancies to their federal unemployment insurance colleagues that would then guide the Secretary of Labor:

The system set up by the DOL after 1965 was exactly what Sen. Edward M. Kennedy (D-Mass.) had promised Congress when he served as the floor leader for this legislation: a system based not on individual recruitment but on statistical calculation. That is also precisely why the DOL lost case after case in the federal courts: the willing requirement cannot be satisfied by statistics. Badly wanting an immigration bill that would abolish the national origin quotas and admit more immigrants, Sen. Kennedy agreed to the price set by organized labor-namely, a more stringent form of labor market control. Congress went along with Sen. Kennedy but did so in the belief that the Secretary of Labor would have access to the names of individual U.S. job seekers already on file with the state employment services, who were the human faces behind all these numbers..That is why the DOL placed the Foreign Labor Certification Program squarely within the Unemployment Insurance (UI) Division, now known as the Workforce Security Division. This was done so that the statistics would be readily available to the labor certification administrators at the DOL from the UI folks. Ultimately, the thought went, statistics represent people, and the states could funnel the names and addresses of such people to the Secretary of Labor who, in turn, would provide them to an employer so that labor certification would not be necessary.[footnotes omitted]. 

See Endelman, The Lawyer’s Guide to INA 212(a)(5)(A): Labor Certification from 1952 to PERM,  www.ilw.com/articles/2004,1102-endelman.shtm

Similarly, even with regards to an undocumented immigrant, a state may be able to enact criteria for recommending that such a person, who has otherwise not been convicted of significant crimes and is say an essential farm worker, is deserving of prosecutorial discretion by the federal government under its new enforcement  priorities pursuant to President Obama’s executive actions to remain in the state and  prevent its farm produce from otherwise rotting away. There may already be such authority under INA section 287(g), which authorizes the federal government to enter into a written agreement with a state to perform the function of a qualified immigration officer in relation to the “investigation, apprehension and detention” of non-citizens. In the era where the government has implemented a broad prosecutorial discretion policy, a state can assist the federal government in the “investigation,” rather than the apprehension or detention, of an individual who may merit such discretion from the federal government.
The Tenth Amendment of the United States Constitution provides that “all powers not delegated to the United States by the Constitution, nor prohibited by it to [from] the States, are reserved to the States respectively, or to the people.” This is the constitutional foundation for the “laboratories of democracy” concept and is integral to the American federalist tradition.  Under the general rubric of the state police power, the idea was that different policies could be road tested on the state level without directly influencing anyone else. If any one or more of those policies worked in any one statehouse laboratory, they could then be expanded to the national level by act of Congress. For example, Massachusetts established a health care reform law in 2006 that became the model for the subsequent Affordable Care Act at the national level in 2010. As the Supreme Court has allowed a seemingly limitless expansion of the federal power to regulate interstate commerce since the  late 1930’s,  the relevance of the “laboratory of democracy” model has significantly faded. However, now that we know that the federal government cannot use the Commerce Clause to compel consumers to purchase health insurance, perhaps the Progressive-era invocation of the states as laboratories of democracy will witness a modest revival.
There are, however, undeniable limits that properly circumscribe what experiments the state laboratories can conduct when it comes to immigration . Only the Congress can determine who comes to the United States and under what terms or conditions. Any state-attempt to cross that line and set immigration policy on its own will find a less than friendly judicial reception. That is why after upholding Section 2B of SB 1070 the Supreme Court did not allow Arizona to criminalize unauthorized employment ( Section 5(c) of SB 1070) or failure to carry an alien registration document ( Section 3 of SB 1070). That is why Arizona was not allowed to sanction warrantless arrest of aliens concerning whom a police officer had probable cause to believe had committed a removable offense (Section 6 of SB 1070). That is why Utah has not implemented its guest worker law 3 years after enactment. That is why a federal district court in 2009 held the Illinois ban on employer enrollment in E-Verify to be violative of the Supremacy Clause. 
What then distinguishes what Michigan and Massachusetts have done from the constitutionally infirm policies attempted in other states? Does not encouragement of state immigration laws implicitly encourage infringement of the plenary federal power over immigration policy? The key difference is that Michigan and Massachusetts rely exclusively on what Congress has already done. They seek only new and improved ways to take advantage of existing law, to adapt national standards to state and local needs.  There is no attempt to create new visas or enforce new restrictions above and beyond what Congress felt was necessary and proper.  A state immigration law linked to the existing INA has nothing to fear. A state immigration law that substitutes its own judgment for that of Congress cannot be allowed to stand. That is the difference between what we advocate and what the federal courts will not accept. 
The Massachusetts and Michigan experiments are useful and relevant for another reason. It seems sadly obvious that Congress will not, in the absence of a national consensus, enact comprehensive immigration reform, though we devoutly wish this was not so.  In response, the President has and doubtless will continue to exercise his inherent discretionary power to partially remediate our dysfunctional immigration system.  The objections to such actions are grounded on a claimed violation of separation of powers. For those who hold such views, and we do not, the resort to constitututionally compatible state immigration laws, should be a more palpable alternative. Some states will be more hospitable while others will not be, although at the local level, immigrants will be able to bring about changes for themselves as has been witnessed in California from the inhospitable Proposition 187 in 1994 to the issuance of driver’s licenses to the undocumented today.  For those who endorse what the President has done, and we proudly count ourselves among them, such state immigration laws should be embraced as welcome companions in the campaign for a more just system.  That it seems a bit odd should be no reason to pull back from such a step.  As that noted American political philosopher Lawrence Peter Berra so aptly noted: “When you come to a fork in the road, take it!”

(Guest author Gary Endelman is the Senior Counsel at Foster)
David Isaacson

A QUICK KNOCKOUT: SHERIFF JOE ARPAIO’S LAWSUIT AGAINST PRESIDENT OBAMA’S EXECUTIVE ACTION DISMISSED FOR LACK OF STANDING

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By  David A. Isaacson

On November 20, 2013, the very same day that President Obama announced a series of executive actions aimed at “Fixing Our Broken Immigration System”, a lawsuit against the newly announced executive actions and against the existing Deferred Action for Childhood Arrivals program (DACA) was filed by Maricopa County Sheriff Joe Arpaio.  Sheriff Arpaio’s name may be familiar to readers of this blog: among other lowlights of a long and controversial career, he has been found by the Justice Department to have engaged in “unconstitutional policing” targeting Latinos, and was similarly found by a federal judge in the private class-action lawsuit Ortega Melendres v. Arpaio to have engaged in unconstitutional racial profiling.  Barely a month after Sheriff Arpaio’s lawsuit was filed, on December 23, 2013, the Arpaio v. Obama lawsuit was dismissed by a Memorandum Opinion and Order issued by Judge Beryl A. Howell of the U.S. District Court for the District of Columbia.  
In his lawsuit, Sheriff Arpaio sought to challenge DACA as originally implemented, DACA as revised by the November 20 announcement, and the new Deferred Action for Parental Accountability program that will provide deferred action similar to DACA to some parents of U.S. citizens and Lawful Permanent Residents.  Judge Howell’s Memorandum Opinion found that Sheriff Arpaio lacked standing to sue regarding any of these programs, for a number of reasons. 
As Judge Howell explained in her Memorandum Opinion, the Supreme Court has held that the power of federal courts under Article III of the U.S. Constitution to hear “Cases” and “Controversies” is restricted to instances in which the plaintiff meets certain requirements of standing to sue.  

The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” [Lujan v.] Defenders of Wildlife, 504 U.S. [555,] 560 [(1992)]. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be “likely” that the complained-of injury will be “redressed by a favorable decision” of the court. Id. at 561. In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014).

Sheriff Arpaio, Judge Howell found, failed to satisfy all three of these requirements.  First of all, he had not properly alleged any injury in fact to him resulting from the challenged deferred action programs.  To the extent that he sued in his personal capacity, and claimed only the interest of every citizen in governmental compliance with the law, Sheriff Arpaio was asserting a generalized grievance of the sort that the Supreme Court has consistently held not to confer standing.  His assertion of past threats against him by undocumented immigrants was not a basis for standing because those threats, besides being in the past, were not traceable to the challenged deferred action programs and would not be redressed by any action the court might take against those programs. As for Sheriff Arpaio’s claims in his official capacity as Sheriff of Maricopa County, the injuries he asserted there as well, having to do with alleged increases in workload, were generalized to the point of not being cognizable, and extremely speculative to boot: he alleged that the deferred action programs would attract new undocumented immigrants into Maricopa County, and yet the programs by their own terms applied only to those who had already been present in the United States prior to January 1, 2010.
Nor did Sheriff Arpaio’s complaint demonstrate causation and redressability, the other key requirements of standing.  As Judge Howell’s Memorandum Opinion explained, “it is the actions taken by undocumented immigrants—migrating to Maricopa County and committing crimes once there—that are purportedly the direct cause of the plaintiff’s injury.”  Arpaio v. Obama slip op. at 22.  But those actions would not be authorized by the challenged government programs.  Indeed, by enabling federal authorities to focus their resources on actual criminals, the challenged deferred action programs might help rather than harm Maricopa County:  

In the present case, the challenged agency action—the ability to exercise enforcement discretion to permit deferred action relating to certain undocumented immigrants—does not authorize the conduct about which the plaintiff complains. The challenged deferred action programs authorize immigration officials to exercise discretion on removal; they do not authorize new immigration into the United States (let alone Maricopa County); they do not authorize undocumented immigrants to commit crimes; and they do not provide permanent status to any undocumented immigrants eligible to apply for deferred action under any of the challenged programs. Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect. The deferred action programs are designed to incorporate DHS’s enforcement priorities and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes. Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.

Arpaio v. Obama slip op. at 24.  Sheriff Arpaio, the court found, had “submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.””  Id. at 25.
Moreover, given the limited resources available to the executive branch for removal of noncitizens from the United States, Sheriff Arpaio also could not establish that his alleged injuries would be redressed by the relief he requested, an injunction against the challenged deferred action programs.  Such an injunction, after all, 

w[ould] not grant additional resources to the executive branch allowing it to remove additional undocumented immigrants or to prevent undocumented immigrants from arriving. Thus, the plaintiff’s complaint regarding the large number of undocumented immigrants and the limited number of removals w[ould] not change as a result of any order by the Court in this litigation. 

Given Sheriff Arpaio’s lack of standing to bring the suit, Judge Howell found herself compelled to dismiss the suit for lack of jurisdiction.  She did, however, go on to detail, in the course of addressing Sheriff Arpaio’s request for a preliminary injunction, some of the other obstacles that his lawsuit faced as well.  Among those obstacles were the fact that “the challenged deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation’s immigration laws,” that they “still retain provisions for meaningful case-by-case review,” and that they “merely provide guidance to immigration officials in the exercise of their official duties.”  Arpaio v. Obama slip op. at 31-32.  For all of these reasons, and given the absence of irreparable harm to Sheriff Arpaio and the public interest weighing against a preliminary injunction Judge, Judge Howell denied the motion for a preliminary injunction and dismissed the suit.
For any readers who may be disturbed that a case of this nature would be dismissed before entirely reaching the merits, it is worth noting that the requirements of standing have played an important role in other controversial areas of law as well.  It was these requirements that led the Supreme Court to rule in Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), that proponents of a California initiative prohibiting the marriage of same-sex couples did not have standing to appeal a decision striking down the statute enacted by that initiative where the governor and Attorney General of California did not appeal.  It was also those same standing requirements that led the Supreme Court to order dismissal of a lawsuit by environmentalists seeking to overturn an administrative rule that limited application of the Endangered Species Act in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Whatever one thinks of modern standing doctrine, it has clearly gored the proverbial oxen of plaintiffs of all ideological persuasions, immunizing government actions across the political spectrum from judicial review at the behest of bystanders without a sufficient concrete stake in a particular matter.
Sheriff Arpaio’s lawsuit against the President’s executive actions may not be the last to founder for lack of standing.  As explained in a recent post on this blog by Gary Endelman and Cyrus D. Mehta, even the lawsuit filed in December 2013 by a group of states led by Texas to challenge President Obama’s immigration initiatives is likely to fail for lack of standing.  The United States’ Memorandum in Opposition to the states’ request for a preliminary injunction in that litigation also sets out in great detail why standing is lacking there.  The states’ lawsuit, like Sheriff Arpaio’s, is also deeply problematic on the merits, for the reasons explained in that same blog post and in the United States’ Memorandum in Opposition.  For both reasons, the Texas lawsuit may soon meet the same fate as Sheriff Arpaio’s.