Cyrus Mehta

The LCA in the Age of Telecommuting

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By Cyrus D. Mehta and Myriam Jaidi

An H-1B employee has a job with a company based in New Jersey. Her job can, however, be performed remotely from virtually anywhere in the United States or the world. So long as she has good internet access, she can sign in to her employer’s server and perform her work as if she were in the office. She usually works at her office, but has decided to work from home in Pennsylvania for two months. When her boyfriend’s mother, who lives in California, becomes ill, she and her boyfriend go out to care for her, staying for six weeks. She then goes on a cruise in US waters, still telecommuting to work. She has no work-related duties in Pennsylvania or California (or out in US waters during the cruise), such as working with clients there, and will be effectively telecommuting to the New Jersey office. What would her employer need to do in order to comply with the Department of Labor’s regulations for H-1B workers, specifically with regard to the Labor Condition Application (LCA) rules?

As a background, the LCA is to an H-1B worker like a leash is to a dog. The LCA ensures that notice is provided to US workers about the fact that an H-1B worker is being sought, the occupational classification, the wages offered, the period of employment, locations at which the H-1B worker will be employed, and that the LCA and accompanying documents are available for public inspection. See 20 CFR § 655.734.

Telecommuting (or “telework” as labeled by the US government) has become more and more prevalent. (See studies here, http://tinyurl.com/6jcc7ww.) Telecommuting employees raise important questions and issues in the immigration context, especially with regard to the Labor Condition Application required for H-1B nonimmigrant workers.

The first issue raised under the facts above is whether a new LCA is required for each location, and if so, whether the posting should be done in the employee’s home and in her boyfriend’s mother’s home.

These situations raise interesting concerns about how (and where) work is “actually” performed (as stated in the regulations) in a global economy increasingly characterized by telecommuting. Can it be argued that because the employee is logging into the employer’s system in New Jersey, the work is actually being performed in New Jersey? Not likely given the structure of the regulatory scheme, but it is something that should be considered in the global economy.

The laws governing the LCA and H-1B processes are out-dated. They do not recognize, and in fact guidance issued by USCIS in 2010, available at http://tiny.cc/z3ZU8, makes clear that some government agencies view with skepticism, the global economy and the increasing frequency of telecommuting.

The LCA and the attestations an employer makes when submitting one were developed as a means to protect wages and working conditions, and to ensure that US workers are made aware of the hiring of H-1B professionals (which makes the concept of posting an LCA in someone’s home or vacation hotel room somewhat absurd). The regulatory scheme is largely location-oriented. Violation of the regulatory framework may result in fines, debarment from participation in the LCA (and thus H-1B) process, and further investigations. Thus, even where a company pays the required wage for any location and has no intent of violating the procedures, a failure to comply with the specific technical requirements, even where compliance seems absurd, may result in penalties.

USCIS has become more location-oriented in its analysis of H-1B petitions. USCIS now examines worksite issues more closely and, with the recently issued Form I-129, has begun to request greater detail on worksites and itineraries for all H-1B petitions. The agency’s interest stems in part from its concern with the existence of a proper employer-employee relationship to support an H-1B petition. (For more information, see From Problem to Springboard: Tips on Using the Neufeld Memorandum in Support of H-1B Petitions, available at http://tinyurl.com/33t7fkz.) Such a relationship is defined in part by where an employee is working and whether the employer has control over the employee’s work at that location. The companies currently subjected to the highest scrutiny are those that place workers at end client sites (i.e., work locations not controlled by the petitioning employer) to perform services/work. But the concerns raised in that category may spread to other circumstances, such as the employee telecommuting from home.

The definitions addressing where an H-1B employee works were developed originally with a focus on the worker’s actual physical location, assuming that the job duties would need to be performed in a particular location. Gathering statistics and issuing prevailing wage determinations require pinpointing a particular city or geographic area. The entire prevailing wage framework is place-based. 20 CFR 655.715 provides the following definitions:

Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H–1B nonimmigrant is or will be employed. …

Place of employment means the worksite or physical location where the work actually is performed by the H–1B, H–1B1, or E–3 nonimmigrant.

These definitions are vague and do seem to leave room to argue that an H-1B worker who can be anywhere but works through the employer’s location via the internet (thus the work arguably “actually is performed” at the employer’s location), is always within “normal commuting distance” so long as the employee has proper internet access. If all that the worker needs is a computer and an internet connection to perform the work, then it would be most logical to post the LCA where the employer’s server is located! To go back to our hypothetical and show how absurd it can be, imagine our H-1B telecommuter embarking on a voyage on a cruise ship for more than 30 days from San Francisco, CA to Anchorage, Alaska. Each time the ship enters a location, which is not within commuting distance from the original location posted on the LCA, a new LCA will need to be posted on the cruise ship. So, her employer, who is a stickler about compliance, posts an LCA with a San Francisco, CA location, which is where the ship starts its voyage. By the time, the cruise ship sails up the waters adjoining Oregon and Washington, new LCAs will need to be obtained and posted on the cruise ship. Once the cruise ship is in Canada, we can assume that the DOL’s LCA regulations do not apply in foreign territories, but with the DOL you can never tell as it passionately attempts to expansively interpret its rules. Once the ship reaches Alaska, more rounds of LCA’s will need to be posted (as Alaska is a huge territory) until its final destination in Anchorage, Alaska.

Nevertheless, using the employer’s address even where the employee telecommutes because the work is being done virtually at the employer’s location has not been tested. This problem does not arise in the PERM labor certification process with roving employees, because an employer can obviate the problem by using headquarters as the base from which to conduct recruitment. See Cora-Ann Pestaina’s article PERM and the Roving Employee, available at http://tinyurl.com/64dhcv5. A DOL auditor who reviews a company’s LCA public access files may not accept this 21st century application of the policies and definitions. Therefore, however absurd it may sound, it might still be advisable to file an LCA for the worker who telecommutes, and have the worker post the LCA in two conspicuous locations in his or her home or the location from which he or she is telecommuting. In the alternative, the LCA notice provision may be satisfied by an electronic posting directed to employees in the relevant occupation classification. Pursuant to 20 CFR 655.734(a)(ii)(B), such electronic posting may be accomplished:

by any means [the employer] ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board” to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer’s newsletter. Where affected employees at the place of employment are not on the “intranet” which provides direct access to the home page or other electronic site but do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as e-mail ( i.e., a single, personal e-mail message to each such employee) or by arranging to have the notice appear for 10 days on an intranet which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees).

The benefit of electronic posting is that it may protect an employer in situations where the employee is working remotely from various locations (not office sites, but locations such as a relative’s home or vacation spot) for more than 30 days per year, based on the argument that the electronic posting covers all potential locations. There are some general problems with electronic notification – it does not obviate the need to obtain a new LCA when the H-1B telecommutes, nor does it obviate the need to pick an address to indicate on the LCA. Electronic posting only obviates the absurd situation of having an employee post the LCA in his or her home. Furthermore, the rules governing electronic posting are quite vague and thus fraught with risk. The rules do not make clear who has to be notified – all employees everywhere and anywhere who fall within the same “occupational classification” (and the rules do not indicate how narrowly or broadly that should be interpreted) or only those in the “area of intended employment.” Where is that in an economy increasingly characterized by telecommuting?

The DOL’s framework is location-focused, and gives no clear guidance on whether the work a telecommuting employee does is “actually is performed” at the employer’s address as listed on the LCA, and not where the telecommuting employee is located. What is clear is that one who works remotely for less than 30 days (or in some limited circumstances, up to 60 days, see 20 CFR 655.735((c)) in a one year period need not have a new LCA to cover that employee’s new location.

Even if the DOL has not taken a position on the issue, it is hoped that the DOL auditor who wishes to rigidly apply this 20th century rule on work locations in the 21st century may exercise discretion in not imposing a penalty if the employer has complied in every other aspect. The DOL auditor may decide that given the lack of clarity in this area, the employer took a good faith position. However, to ensure against such risks, employers may wish to prepare a new LCA indicating the address from which the individual will be telecommuting, and have the individual post the LCA in two locations at that address. Until the regulations catch up with reality in the 21st century, this would be the appropriate course of action.

Cyrus Mehta

GUIDANCE ON F-1 TRANSFERS FROM TRI-VALLEY UNIVERSITY

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In the wake of the closing down of the “sham” Tri-Valley University, http://indiatoday.intoday.in/site/Story/128946/india/visa-relief-in-sight-for-indian-students-conned-by-tri-valley-varsity.html and http://www.mercurynews.com/top-stories/ci_17151508?nclick_check=1, which has rendered many F-1 students out of status, ICE has issued guidance to universities that enroll F-1 students via SEVIS regarding how to facilitate the transfer. The document was posted in AILA InfoNet on February 8, 2011 (AILA InfoNet Doc. No. 11020863).
Many of the students who were enrolled at Tri-Valley were unwitting victims, and ought to be able to transfer their F-1 status to other schools, or be able to change to another noniommigrant visa status, such as H-4 or H-1B (if the individual is not subject to the current H-1B FY 2011 cap). The DHS gives discretion to its officers to approve applications for change of status even where the individual has failed to maintain status due to “extraordinary circumstances,” and a student who has been caught in this predicament ought to be invoke favorable discretion under 8 C.F.R. section 248.1(b).
It is good news that DHS has issued guidance that would facilitate the transfer of F-1 status to another legitimate school. Although the guidance is vaguely worded, it seems to suggest that if a new school accepts a student for admission from Tri-Valley, the designated school official must contact the SEVIS help desk before creating a SEVIS record and a determination may be made on a case by case basis. While the guidance could have been more clear, it appears to create a procedure for a student from Tri-Valley to transfer to another school in F-1 status.
To: All SEVIS Users
Date: February 7, 2011
Re: Consideration of Former F-1 Students from Tri-Valley University for Enrollment
Number: 1101-02
On January 18, 2011, the Student and Exchange Visitor Program (SEVP) either cancelled or terminated all initial, active and transfer-in student records associated with Tri-Valley University (TVU) in Pleasanton, California.
Students enrolled at TVU and those who entered the United States but have not enrolled at TVU are unable to maintain F-1 status.
RESPONSIBILITIES OF SCHOOL OFFICIALS
If a former TVU student applies for acceptance at a school, consider the following while following normal admissions procedures:
1. School officials must obtain an enrollment application and all subsidiary documents typically requested in order to make an admissions decision, including an assessment of the student’s finances, and they must maintain these documents in the F-1 student’s academic record.
2. If a student gains admission, a designated school official should contact the SEVP Help Desk at 800-892-4829 or SEVIShelpdesk@hp.com to manage the student record. Do not initiate a new SEVIS record for the student.
3. Employment authorization for F-1 students at TVU terminated January 19, 2011.
Update – 9 pm. ICE has posted an announcement on its website, http://www.ice.gov/sevis/tri-valley-110118.htm, asking TVU students to contact a number, 703-603-3400, and be prepared to provide first and last name, SEVIS ID#, address, telephone number and e mail address, dates of attendance at TVU and level and major of study at TVU. The notice goes on to state, “When you call, SEVP will provide you with your options including the options to depart from the United States without an otherwise possibly applicable bar to re-admission in the future.”
Update 2/9/2011. See NAFSA interpretation on the SEVP guidance regarding transfers of F-1 of former TVU students, http://www.nafsa.org/resourcelibrary/default.aspx?id=24805
Update 2/10/2011. Our office has called the SEVP number given by ICE in their release and has been advised that according to the script provided by ICE, former Tri-Valley students have three options.

One, they can file for reinstatement as students on Form I-539. The suggestion seems to be that this should be done electronically, since we were directed to the http://www.uscis.gov/e-filing website. Implicitly required, although this was not stated by the SEVP representative, is that the reinstatement be in connection with attendance at a different school, since Tri-Valley is no longer viable in the view of DHS.

Two, former Tri-Valley students can voluntarily depart without any action on the part of ICE.

Three, former Tri-Valley students can report to ICE to be processed for voluntary departure.

Cora-Ann Pestaina

BALCA ON EMPLOYEE REFERRAL PROGRAMS UNDER PERM

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Cora-Ann V. Pestaina

I first wrote on the subject of the employee referral program with incentives in April 2010 shortly after the Department of Labor announced at a stakeholders teleconference that it had established criteria about the employee referral program, http://cyrusmehta.blogspot.com/2010/04/dol-update-on-perm-and-prevailing-wage.html. The Board of Alien Labor Certification Appeals (BALCA) recently issued two decisions that mostly adopt the DOL’s new requirements regarding employee referral programs, which is the subject of this article. Indeed, BALCA has been very busy recently issuing many decisions, http://bit.ly/elYpsb, in various aspects of labor certification practice, and it is incumbent on all stakeholders to keep up with them to avoid the pitfalls resulting in the denial of the application.

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. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. An employee referral program is one of the recommended recruitment steps under 20 C.F.R. §656.17(e)(4)(ii)(G) that an employer may undertake to establish that it made a bona fide effort to recruit qualified US workers.

Previously, employers had been allowed to utilize their existing employee referral program and to document its use by submitting a description of the program. In response to audits, the DOL had previously accepted photocopies of pages from employees’ handbooks describing the ongoing program. This clearly complied with 20 C.F.R. §656.17(e)(4)(ii)(G), which states, “The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” At the stakeholders teleconference, the DOL indicated for the first time that it would henceforth require more from employers who utilize the employee referral program in fulfillment of one of the three additional forms of recruitment required for professional positions under the current labor certification process known as PERM. In August 2010, the DOL published PERM FAQ 11 (available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Faqs_Round_11_08032010.pdf) wherein its new requirements were clearly imposed.

Although 20 C.F.R. §656.17(e)(1)(ii)(G) does not so require, PERM FAQ 11 set forth that the DOL now requires the employer to document its use of an employee referral program by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered and document that employees were made aware that they could refer applicants to the specific position sponsored under the PERM labor certification application. For example, employees may be notified via the employer’s internal website. But the DOL specifically, without explanation, excluded the Notice of Filing provided to satisfy 20 C.F.R. §656.10(d) as being sufficient for this purpose. In Clearstream Banking, S.A., 2009-PER-15 (Mar. 30, 2010), BALCA established that an ongoing intranet posting is acceptable to communicate the program provided it could be established that there was an employee referral program with incentives.

Throughout 2010, there continued to be various anecdotal reports of DOL audits focused on the use of the employee referral program. Now, two recent BALCA cases have shed some additional light on the use of employee referral programs.

In Matter of Sanmina-Sci Corporation, 2010-PER-00697, (Jan. 19. 2011), the DOL Certifying Officer (CO) found that the employer failed to provide adequate documentation of its employee referral program with incentives. The employer had provided the DOL with a flyer titled “Employee Referral Program” dated July 10, 2000 announcing the incentives and an Employee Referral Program Form dated “Rev. 10/31/03.” The CO cited 20 C.F.R. §656.17(e)(1)(ii) in support of the finding that these dates did not fall within the recruitment period of 30 to 180 days prior to the filing of the labor certification. The employer argued, in its request for review and appellate brief to BALCA, that it provided adequate documentation under the standard set forth for an employee referral program in 20 C.F.R. §656.17(e)(4)(ii)(G). The employer had clearly specified the incentives of the employee referral program, the dates of the program and the fact that the program was in effect as of the date of the recruitment report. The employer argued that the facts of its case were similar to Clearstream Banking, S.A., where BALCA stated, “…a generic employee referral program with incentives, the description of which is available to employees may be sufficient to be a step under section 656.17(e)(1)(ii)(G), even if the particular job for which labor certification is being sought is not individually promoted under the program.” The employer pointed out that although the regulations do not require that the PERM position be specifically promoted under the employee referral program, its advertisement of the job on its career web page was sufficient to make employees aware of the opening.

First, BALCA rejected the CO’s argument that the employee referral program was dated outside the recruitment period of 30 to 180 days prior to filing the PERM application. BALCA pointed out that 20 C.F.R. §656.17(e)(1)(ii)(G) only requires dates establishing that the program was in existence at the time of the recruitment for the PERM position and it cannot be reasonably interpreted to require that the dates on the program fall within the specified periods for other forms of recruitment, such as Sunday newspaper advertisements or a job order on the DOL’s own job bank website. Then, BALCA held that in order for an employer to adequately demonstrate its compliance with 20 C.F.R. §656.17(e)(1)(ii)(G), it must document that (1) its employee referral program offers incentives to employees for referral; (2) the program was in effect during the PERM recruitment period; and (3) the employees were on notice of the job opening.

BALCA soon spoke again on the subject of the employee referral program and held, in Matter of AQR Capital, 2010-PER-00323 (Jan. 26, 2011), that the employer had adequately provided evidence in support of each of the three elements set forth in Matter of Sanmina-Sci Corporation. The employer’s PERM application indicated that it utilized its employee referral program as one of the three additional recruitment steps to advertise for the professional PERM position. The PERM application indicated that the employer advertised with the employee referral program from July 10, 2007 to August 10, 2007. Upon audit, the employer documented its use of an employee referral program by submitting an undated notice of its program which described the incentives offered. The employer’s recruitment report also indicated that 45 (out of a total of 49) applicants for the PERM position had learned about the position through the employee referral program. The CO denied on the ground that the employer did not submit dated copies of the program.

BALCA reiterated that the dated copies referred to in 20 C.F.R. §656.17(e)(1)(ii)(G) are solely for the purpose of establishing that the employee referral program existed at the time of recruitment for the PERM position and not to prove that the dates on the program fell within the same specified recruitment period applicable to other forms of recruitment. BALCA held that (1) the employer submitted a copy of its employee referral program that specified incentives offered; (2) although the program was not dated, the employer’s audit response contained sufficient evidence to demonstrate the existence of the program during the recruitment period; and (3) that the employer’s employees were on notice of the particular job opening. In light of the fact that more than 90% of the applicants for the PERM position learned about it through the employee referral program, BALCA determined it would be ludicrous to question the program’s existence and effectiveness.

BALCA is well aware that, with the exception of requiring dated copies of the employee referral program, it has basically adopted the requirements set forth in PERM FAQ 11, despite the DOL’s possible violation of the Administrative Procedure Act (APA), P.L. 79-404, which prohibits the imposition of new requirements without providing an opportunity for notice and comment. In Matter of Sanmina-Sci Corporation, BALCA specifically addressed this in a footnote but stated that the CO could not be assured that the recruitment step had any connection to an employer’s specific efforts to fill the PERM position and therefore it is implicitly required that the employer provide documentation to show that the employee referral program was in effect during the recruitment period and that employees were aware of the opening.

In light of these two recent cases, my previous advice on this issue still stands. Employers may want to consider adding an “available positions” section at the end of the employee referral program description, including a copy of the specific PERM ad(s) and posting the program in a conspicuous location on the business premises for a specific number of days (and publishing via employer’s intranet, if any) as they do with the Notice of Filing required under 20 C.F.R. §656.10(d). Interestingly, BALCA, in Matter of Sanmina-Sci Corporation, also expressed some bafflement over the fact that the employer’s Notice of Filing cannot be used to prove that employees were made aware of the specific PERM position. However, in that case, since the employer also had an internal web posting, BALCA declined to address the question of whether the Notice of Filing, standing alone, could serve as proof that employees were made aware of the position for which the PERM application was filed.

Posting the employee referral program with an “available positions” section will establish both that the program was in effect during the PERM recruitment period and that the employees were on notice of the job opening. It would also be a good idea to execute a brief memorandum confirming the existence of the employee referral program, describing how the company’s employees were made aware that they could refer applicants to the specific PERM position and listing how many applications, if any, were received. In this manner, employers can be certain that they have done enough to survive an audit. Well, at least until the next rule change.

Cyrus Mehta

FORM I-9 AND H-1B PORTABILITY

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US Citizenship and Immigration Services (USCIS) has revised its Handbook for Employers: Instructions for Completing Form I-9 (M-274). Revised as of January 5, 2011, http://www.uscis.gov/files/form/m-274.pdf., the handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in temporary protected status (TPS). An update on the most recent changes can be found here, http://blog.cyrusmehta.com/news.aspx?SubIdx=ocyrus2011123211626

The handbook now states that an employee in valid H-1B status who changes (ports) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior version of the handbook required the porting H-1B employee to obtain a Form I-797 (Receipt Notice) from USCIS before beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official I-797. The new requirement is more consistent with INA § 214(n), which requires only a “filing,” and this can be proved through an overnight courier delivery confirmation rather than waiting for the I-797 receipt notice.

The new version of the handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/I-94A (Arrival-Departure Record) issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write “AC21” on the I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the I-9, and attach documentation as specified in the handbook.

Unfortunately, there is another aspect of portability that still remains unresolved. INA § 214(n) is broad enough to allow an H-1B worker to exercise portability even though he or she changed to another status. Thus, one who originally entered in H-1B status and then changed to F-1 student status can still “port” to a new job if a new employer files a petition for H-1B status, along with a request for change of status from F-1 to H-1B. In Keeping Track: Select Isues In Employer Sanctions and Immigration Compliance by Gary Endelman and Cyrus D. Mehta, http://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus20101218204951&Month=&From=Menu&Page=2&Year=All#_ftn2, the authors make the following observation:

What does E-Verify have to say about work authorization during H-1B portability?

While this paper presents a general overview of E-Verify, the importance of a recent development in the delicate relationship between E-Verify and H-1B portability compels us to mention it if only in passing. In late October 2010, the Verification & Documentation Liaison Committee of the American Immigration Lawyers Association (AILA) received confirmation from E-Verify that it would no longer verify work authorization for an employee who is working for an employer under H-1B portability where the employee previously held H-1B status but has since held an intervening status. See AILA InfoNet Doc. No. 10102268 (posted Oct. 22, 2010). This came as a stunning development. In the past, many AILA members had relied upon the text of Section 105(a) of the American Competiveness in the 21st Century Act (AC 21), now codified at INA § 214(n), to advise that such employees were work authorized based on the clear language of the statute. However, in an unannounced change of policy, AILA recently received reports that E-Verify had been issuing final nonconfirmations for employees working pursuant to H-1B portability who currently hold another status, such as H-4 or F-1. The Committee requested clarification from E-Verify, citing the language in the statute which permits a beneficiary to work if he or she “was previously issued” an H-1B visa or status and meets the other requirements for portability. INA §214(n).
In response to the Committee’s inquiry, E-Verify provided the following response:
The Office of Chief Counsel at USCIS has advised us that similarly situated individuals are not employment authorized. … The H-1B Portability Rule does not apply to a nonimmigrant who was in H-1B status at one time, but who is currently in another valid status and for whom a non-frivolous I-129 Petition to obtain H-1B status has been filed. … USCIS has interpreted Section 105 of AC21 (INA section 214(n)) as allowing those who are currently in H-1B status, or who are in a “period of authorized stay” as a result of a pending H-1B extension petition(s), to begin new employment upon the filing by the prospective employer of a new (H-1B) petition on the alien’s behalf. USCIS guidance dated December 27, 2005, states that “porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a ‘period of stay authorized by the Attorney General.'” That statement serves to clarify the earlier section specifically referring to an “H-1B alien” and should be read in the context of the particular example given: an alien who was in H-1B status and is now in an authorized period of stay based on a timely filed extension of H-1B status petition on the alien’s behalf, and who then seeks to start working for a different H-1B employer upon that employer’s filing of a petition. This interpretation is consistent with USCIS guidance to the public on its website (Nonimmigrant Services, H-1B FAQs, page 61) which states:
Changing employers – An H-1B worker can change employers, but first the new employer must file a labor condition application and then file a new H-1B petition. If the worker is already an H-1B, he or she can then begin the employment as described in the petition without waiting for USCIS to approve the petition. This is called a “portability provision,” and it only applies to someone already in valid H-1B status. Based on this guidance, E-Verify queries will continue to result in nonconfirmations in similar cases.”
The authors strongly believe that the USCIS interpretation underlying the E-Verify protocol is inconsistent with the clear language of AC 21.
Cyrus Mehta

THE ABSURDITY OF THE BIRTHRIGHT CITIZENSHIP ACT OF 2011

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By Cyrus D. Mehta

When I first glanced at he Birthright Citizenship Act of 2011, H.R. 140, introduced by Representative Stephen King (R-IA) on January 5, 2011, http://www.opencongress.org/bill/112-h140/show, I figured that it was not worth my time to even write about it. I read it once more, and it dawned upon me that I could have some fun commenting on it and highlighting its absurdity.

The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” A list of resources can be found on Bender’s Immigration Bulletin at http://bit.ly/f5pX7U. And here is a good policy policy piece from AILA, http://www.aila.org/content/default.aspx?docid=34106 and a great blog with more resources, http://ijjblog.org/blog-mt/dan/2010/11/birthright_citizenship_under_t_1.html.

Nobody is attempting the extremely arduous task to amend the hallowed Fourteenth Amendment, although opponents of birthright citizenship are proposing a reinterpretation of the phrase “subject to the jurisdiction thereof” by denying the children of illegal immigrants and temporary residents from claiming US citizenship. Well over a century ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held in no uncertain terms:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States.

H.R. 140 seeks to amend section 301 of the Immigration and Nationality Act, which replicates the 14th amendment, by not just depriving the children of illegal immigrants from automatically becoming citizens, but by narrowly limiting birthright citizenship to a person born in the US to parents, one of whom is –

1) a citizen or national of the United States;
2) an alien lawfully admitted for permanent residence in the United States whose residence is in the United States; or
3) an alien performing active service in the armed forces (as defined in section 101 of title 10, United States Code).

This bill, if enacted into law, would even deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child? H.R. 140 is silent. Would this poor child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Or would the child be given a dependent H-4 status? What if the parents of the child have two different statuses – one on an H-1B visa and the other on a B-1 business visa? Will the child get the more solid H-4 status or the more transient B-2 status as a visitor for pleasure?

It is true that a diplomat, in accordance with Wong Kim Ark, is not subject to the jurisdiction of the US as a diplomat enjoys immunity from US law, but a child of such a diplomat born in the US is at least deemed to be a permanent resident. See Matter of Huang, Interim Decision #1472 (BIA May 27, 1965). On the other hand, it is not so apparent that conferring some kind of legal status short of citizenship is the intent of H.R. 140, which seeks to keep children in the same illegal status as their parents if born in the US.

The only historic exceptions to those subject to the jurisdiction of the US are diplomats and enemies during the hostile occupation of a part of US territory. Congress even passed legislation to ensure that children of all Native Americans are US citizens. See INA section 301(b). An illegal immigrant is undoubtedly subject to the jurisdiction of the US. If he commits a crime, he will surely be prosecuted. He can sue and be sued in US courts, and Uncle Sam gleefully collects his taxes and his contributions to social security (even if he is unable to claim it later on). You cannot liken an immigrant who has entered the US without inspection with the objective of finding work to a member of a hostile force occupying a part of the US. When a hostile force occupies any part of the US, the laws of the US are no longer applicable in the occupied territory. Even a terrorist who enters the US in a nonimmigrant status, such as on an F-1 student visa with an ulterior motive to commit an act of terrorism, unlike a member of a hostile occupying force, is subject to the jurisdiction of the US as she can be convicted or treated as an enemy noncombatant, and if she gives birth to child here, the child ought to be a US citizen under the Fourteenth Amendment.

Moreover, often times being legal or illegal is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria and become a permanent resident. Such a person whose visa has long since expired could get wrapped up in a romantic encounter with a US citizen, marry, and dramatically convert from illegal to permanent resident within a few months. At times, Congress bestows such permanent residency through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status if a calamity were to befall her country. The following extract from the Supreme Court’s decision in Plyler v. Doe, 457 US 202 (1982), which held that undocumented children could not be deprived of a public education:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

Under H.R. 140, one who is so unlucky to have been born a day before his parent adjusted to permanent resident status would be in some kind of immigration purgatory. The Birthright Citizenship Act of 2011, along with similar proposals from states to issue two types of birth certificates, is not just unconstitutional but is also shockingly absurd!

Cyrus Mehta

ONE YEAR AFTER THE NEUFELD MEMO: CAN THE BEAST EVER BE TAMED?

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By Cyrus D. Mehta

It has been one year since the issuance of the memo by Donald Neufeld of the USCIS, http://tiny.cc/z3ZU8 which sought to define the employer-employee relationship, especially when an employer places an H-1B worker at a third party client site. The Neufeld Memo is like a wild beast that can never be tamed, but can be kept content in captivity so long as it is well fed. Employers, especially in the IT consulting business, have been forced to change their business practices to ensure that they can establish control over the H-1B employee who is placed at a client site, and immigration attorneys have also learned to address and satisfy on the criteria in order to establish the employer-employee relationship. But there are instances where the wild beast can still try to escape and go on a rampage, and this has been demonstrated by Myriam Jaidi in her article on www.cyrusmehta.com regarding the recent problems faced by H-1B applicants when they apply for an H-1B visa stamp at a US Consulate during their vacation, http://bit.ly/hW7KwO. She writes, “it is not much of a surprise that the scrutiny for such companies has increased at consular posts as well. Consulates request tax returns, notarized employee lists, State Unemployment wage reports, etc., to verify that the employer exists and has the right to control the beneficiary’s work.”

In January 2009, a few days after the issuance of the Neufeld Memo, it appears that even the CBP got the virus and began questioning H-1B visa entrants arriving in the US, especially at Newark airport, http://bit.ly/iefgsy, and even subjected some of them to expedited removal. Even here, we have not heard of the same kind of summary removals after the incidents in January 2009 and this problems seems to have been contained. We are also pleased to report that CBP in Newark did indeed rescind an expedited removal order, and this individual recently returned back to the US in H-1B status from the same airport that issued the expedited removal just under a year ago. We thank Newark for doing the right thing, and hope that it will exercise its discretion wisely in other cases too, http://bit.ly/fFZ0al

David Isaacson

CONSEQUENCES OF VISA BULLETIN CUTOFF DATE RETROGRESSION UNDER THE CHILD STATUS PROTECTION ACT

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By David A. Isaacson

In recent months, the Visa Bulletin issued by the Department of State has shown a “retrogression” of priority dates in a number of Family-based categories. This means that the cutoff date determining which priority dates are early enough to make a visa number available to particular immigrants so that they can move forward with the process of seeking permanent residence, and which priority dates are not early enough, has moved backward in time rather than forward. Some people who were previously eligible – who appeared to have reached the front of the waiting line – will need to wait until their priority date once again becomes current to get a visa number. This retrogression, which affected the Philippines in the December 2010 Visa Bulletin, http://www.travel.state.gov/visa/bulletin/bulletin_5197.html, and then expanded to the cutoff dates for the rest of the world in the January 2011 Visa Bulletin, http://travel.state.gov/visa/bulletin/bulletin_5212.html, has the potential to create complications for those who seek to make use of the Child Status Protection Act (“CSPA”).

The CSPA protects certain applicants from losing their status as children even though they have turned twenty-one. The provision of the CSPA relevant here is section 203(h) of the Immigration and Nationality Act (“INA”), which provides, in part:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) PETITIONS DESCRIBED- The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

Subsection 203(a)(2)(A) refers to a petition filed by a Lawful Permanent Resident (“LPR”) on behalf of his or her spouse or child, and 203(d) provides for “[a] spouse or child” to derive status from the primary beneficiary of various sorts of I-130 and I-140 petitions. In the context of both a “2A” preference petition for one’s child under 203(a)(2)(A), and an application by a derivative child under 203(d), one must determine whether the applicant for an immigrant visa or for adjustment of status still qualifies as a “child” by the time that he or she is eligible to obtain an immigrant visa or adjust status.

Pursuant to INA § 101(b)(1), a “child” ordinarily must be less than twenty-one years old. Thus, there is the possibility of “aging out”—of losing one’s status as a child by getting too old. INA § 203(h)(1) says that, as long as the person seeking to be classified as a child has sought to acquire LPR status within one year of visa availability, their age for these purposes is calculated by taking the age at the time of visa availability, and subtracting the time that the I-130 or I-140 petition was pending. In effect, it is as if the child stopped aging at the time the petition was filed, did not start again until the petition was approved, and then stopped again on the day that a visa number became available. (Beneficiaries of petitions that were pending on September 11, 2001, who would otherwise have aged out after that date, should also be able to subtract an additional forty-five days from their age pursuant to section 424 of the USA PATRIOT Act, as clarified by section 42.42, note 12.8(b.) of Volume 9 of the State Department’s Foreign Affairs Manual, available online at http://www.state.gov/documents/organization/87848.pdf.) If the CSPA-adjusted age under INA § 203(h)(1) is under twenty-one years, then the child – assuming that he or she otherwise qualifies as a “child”, such as by being unmarried – may still adjust status or obtain an immigrant visa under the 2A preference petition, or derivatively on the petition covered by INA § 203(d).

Retrogression complicates matters by creating the possibility that there may no longer be only a single “date on which an immigrant visa number becomes available”, but rather multiple such dates. If, for example, the Visa Bulletin for November 2010 said that a particular priority date was current for the first time, but the Visa Bulletin for January 2011 retrogresses the relevant cutoff date so that this priority date is no longer current, then there will be (at least) two dates on which an immigrant visa number becomes available for someone with that priority date. The first will be November 1, 2010, when the visa number initially became available. The second, following the retrogression, will be the first day of the future month on which the cutoff date finally moves far enough forward that the priority date is current again. In effect, the CSPA is looking to the date on which people pass through the door at the front of a waiting line, but the retrogression has caused many people who had just passed through the door to move backwards and go back outside the door. As the line moves forward, those same people will one day pass through the door yet again, creating a second date of visa availability.

USCIS has said, in a 2008 memorandum from Acting Associate Director Donald Neufeld (updating § 21.2(e) of their Adjudicators Field Manual) that is available online at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/cspa_30apr08.pdf, that “[i]f a visa availability retrogresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140,” then USCIS will “retain the Form I-485 and note the date a visa number first became available.” When the visa number again becomes current, this original visa availability date, having been locked in by the prior filing of the Form I-485 adjustment application, will be used to calculate the CSPA-adjusted age. If, however, a Form I-485 is not filed before retrogression, but only within a year of when the priority date next becomes current, then the CSPA-adjusted age is “determined using the subsequent visa availability date.” (The filing of an I-485 may not be the only way to lock in a CSPA age, since as discussed in a recent article and blog post by Gary Endelman and Cyrus D. Mehta, http://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus2010101843057&Month=&From=Menu&Page=4&Year=All and http://cyrusmehta.blogspot.com/2010/10/bia-continues-to-reaffirm-broad-sought.html, the Board of Immigration Appeals has indicated in unpublished decisions that one may seek to acquire lawful permanent residence for CSPA purposes without actually filing an adjustment application; that same logic ought to make it possible to lock in a CSPA-adjusted age before retrogression without actually filing the I-485, but relying on this would be very risky.)

Under the USCIS approach, therefore, you can lock in a child’s CSPA age if you file before a retrogression, but otherwise the child will in effect keep aging until the visa number becomes current again, and the child then seeks to acquire permanent residence within a year of this second date on which a visa has become available. The bright side of retrogression under the USCIS approach is that the subsequent visa availability date can give you another year in which to seek to acquire permanent residence, as long as the child’s adjusted age will still be under twenty-one on that second date.

The Department of State has indicated in Volume 9, Section 42.42 of its Foreign Affairs Manual, http://www.state.gov/documents/organization/87848.pdf, that its approach is similar but subtly different. Just as USCIS does with those who have filed an I-485, the Department of State will look to a child’s age at the first visa availability date if the relevant forms – which in the DOS context are the DS-230, Part 1, or a Form I-824 for a child following to join a principal applicant who adjusted in the United States – are filed within a year of that date and prior to the effective date of any retrogression. If not, the State Department will focus on whether the applicant had a full year to seek to acquire permanent residence before the retrogression:

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. If a visa availability date retrogresses . . . within one year of visa availability and the visa applicant has not yet sought to acquire LPR status, then once a visa number becomes available again the one year period starts over. The alien beneficiary’s age under the CSPA is redetermined using the subsequent visa availability date.

9 FAM 42.42 Note 12.7.

This apparent refusal by the State Department to give children a second chance after retrogression, if they had a full year to apply before retrogression and did not take advantage of it, may be stricter than the USCIS policy. Although the USCIS memo does not specifically address this situation, it strongly implies that whether a child has sought to acquire permanent residence within a year of visa availability can be measured from the second visa availability date that comes after a retrogression, regardless of how much time passed between the first visa availability date and the retrogression. That is, under the USCIS approach, if you miss your one-year deadline after the first visa availability date, you may get another chance if a retrogression followed by a second visa availability date occurs soon enough; under the Department of State approach, you will not.

Under either of these approaches, however, failing to move forward with the permanent residence process before a retrogressed Visa Bulletin takes effect can have dire consequences. If a child’s adjusted age is anywhere near twenty-one based on the first date of visa availability, then missing the opportunity to file before retrogression takes effect, and having to wait for a future forward movement to make a priority date current again after the retrogression, can easily lead to the child aging out. It is extremely risky to hope for a second visa availability date coming soon enough after a retrogression to allow a child’s adjusted age to remain under twenty-one. Therefore, it is essential that immigrants involved in CSPA-related cases affected by the retrogressions in the January 2011 Visa Bulletin act quickly to begin the process of seeking permanent residence before January 1.

(This post orginally appeared on www.cyrusmehta.com on December 26, 2010)

Cyrus Mehta

KEEPING HOPE ALIVE: PRESIDENT OBAMA CAN USE HIS EXECUTIVE POWER UNTIL CONGRESS PASSES THE DREAM ACT

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By Gary Endelman and Cyrus D. Mehta

We are all extremely disappointed that the Senate blocked the DREAM Act on December 18. Even though a majority of the Senate voted for cloture, it was not enough. We need 60 votes for legislation to move forward, even when we have a majority of 55 out of 100. But do we need to wait endlessly for Congress to act? The answer is NO! Faced with unrelenting opposition from a radicalized Republican party that has declared war on immigrants, the Obama Administration is not powerless if it has the vision and the will to act.

We demonstrated in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz, that it is possible for the Executive to legalize the status of non-citizens without Congressional intervention to achieve something close to CIR. Our proposal for administrative solutions has become all the more relevant now that Congress has not passed the DREAM Act. DREAMERS must still lobby the administration for relief, which is has the ability to grant without going to Congress. Yes, the President does indeed have power to grant benefits administratively, such as parole and employment authorization. The Executive, under INA § 212(d)(5), has the authority to grant parole for urgent humanitarian reasons or significant public benefits. http://cyrusmehta.blogspot.com/2010/04/comprehensive-immigration-reform.html. Talented and dedicated DREAMERS who go to college, serve in the military or perform work of national importance under civilian direction are ideal candidates for invoking § 212(d)(5) under “urgent humanitarian reasons or significant public benefits.” Similarly, the Executive has the authority to grant employment authorization under INA §274A(h)(3), which defines the term “unauthorized alien” as one who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” Under sub paragraph (B), the USCIS may grant an EAD to DREAM kids who inadvertently fell out of status for no fault of their own and who only know America as their country.

The Executive’s use of parole, sua sponte, in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict comes readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. DREAM kids need not wait an eternity for Congress to come to the rescue.

The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien. Deferred Action is purely discretionary. They are both informal ways to allow continued presence in the United States. The INA never mentions deferred action. Neither does deferred action depends upon regulation. Deferred action is not mentioned in Title 8 of the Code of Federal Regulations but only in the old, and now inapplicable, Operations Instructions. The exercise of prosecutorial discretion to grant deferred action status is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport DREAM kids who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students.

Deferred Action has also been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. Mr. Neufeld’s memo, issued on June 15, 2009, provides extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries may request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow who was married less than two years at the time of the citizen’s death to apply for permanent residence.

How about parole in place? Unaccompanied minors brought as young children to the United States without inspection deserve such relief. Take a look at Section 235(a)(1) of the INA. Know what it says? It reminds us that these DREAMERS who are physically in this country without formal inspection or legal admission can be deemed to be applicants for admission. That is how “parole in place” works. By indulging in the legal fiction that these DREAMERS are actually knocking at the golden door and asking to be let in, the Obama Administration can make them eligible for adjustment of status to legal permanent residen (if they qualify as immediate relatives, such as a spouse of a US citizen) through expansion of the parole mechanism. The USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US.

Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to the DREAM Act and even Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine. While some may argue that there is no express Congressional authorization for the Executive to enact such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

There is no bar in law or logic to a decision by the Department of Homeland Security that it will not seek to deport or remove anyone here without color of law who would qualify for DREAM Act benefits. Only in those instances where relief was available would ICE issue a Notice To Appear. Refraining from seeking removal of DREAMERS in the public interest would be entirely consistent with the reasons why the Administration lobbied the Congress so hard in the first place and hopefully will continue to do so. Be prepared for Steve King, Lamar Smith and their nativist allies in the Senate to react. They can threaten to use the power of the purse to curb these regulatory initiatives. Be strong and of good courage! Mr. President, keep your veto pen close at hand. Until we get a new law, justice will have to be squeezed out of the one we have now. The fact that Congress will not act does not mean that the DREAM is dead; it simply is deferred, while we go about its realization by other means.

Cyrus Mehta

DREAM ACT AND THE POLLS

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Although the House voted in favor of the DREAM Act on December 8, 2010, with eight Republicans also joining with a yea, the prospects of passage of the bill in the Senate look less hopeful but still possible. This hesitancy is bolstered by the fact that the Republican minority in the Senate on Thursday filibustered a crucial defense bill because it also included a ban on discrimination against gays. The hypocritical “don’t ask don’t tell policy” if you are gay in the military still stands because of the obstructionism of the Republican minority in the Senate where you need 60 votes to survive a filibuster. http://www.nytimes.com/2010/12/10/opinion/10fri1.html?_r=1&hp. This move by the Republicans is even more surprising since a very recent Gallup poll indicates that 67% of Americans support repealing the “don’t ask don’t tell policy,” http://politicalticker.blogs.cnn.com/2010/12/09/poll-two-out-of-three-say-repeal-dont-ask-dont-tell/

The DREAM (Development, Relief and Education for Alien Minors) Act allows children who were brought into the US illegally or who became illegal (as a result of their parents actions) to legalize their status. They should have entered the country before the age of 16 and lived here for five years. DREAM also requires that they must graduate from high school or obtain a GED and demonstrate good moral character. Qualifying children would be given a six year conditional status. During that time, the applicant must have been attending college or serving in the military for at least two years, and must have also passed criminal background checks.

In a clever political move on Thursday, Senator Reid tabled the vote in the Senate until next week so that the Senate could vote on the House bill, which unexpectedly passed on Wednesday. The last time the House passed a major immigration bill was HR 4437, which would have made all undocumented immigrants into felons, including those who assisted them such as pastors and medical personnel. Clearly, the passage of DREAM in the House is a sea change from the passage of HR 4437, which fortunately never went onto become law. http://www.huffingtonpost.com/frank-sharry/dream-act-makes-history-i_b_795118.html. But we do hope DREAM does. A new Gallup poll released Friday reveals that 54% of Americans support the DREAM Act. http://politicalticker.blogs.cnn.com/2010/12/10/poll-54-percent-support-dream-act/ It remains to be seen whether this would change the minds of Republican Senators who had supported prior versions of the DREAM Act, and even a few Democratic Senators (especially from states such as Montana that have no immigrants). Given that DADT was opposed even though more Americans (67%) were in support of its repeal, it remains to be seen whether the Gallup poll on the DREAM Act (with 54% in favor) will have a sway upon the recalcitrant Senators. Within that poll, two-thirds of Democrats say they would vote for the measure, but only 57 percent of independent voters are in favor and even a fewer 34 percent of Republicans say that they will vote for DREAM. In any event, the tabling of the Senate vote was a positive one, and will strenthen the prospects of DREAM’s passage, as it will give more time to mobilize support, and the new Gallup poll should help advocates in gaining more votes in the Senate in favor of DREAM.

One cannot go wrong with DREAM. It is clearly the right thing to do. These kids are in the US in an undocumented capacity for no fault of their own. They are as American as any other kids, and share the same dreams and aspirations, only to have their hopes dashed when they realize that they are in a second class undocumented status. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students. And won’t America ultimately benefit if you give more DREAMers a chance to aspire and succeed through innovation, creativity and industry?

According to Michael Mandel, Chair of the AILA-NY Advocacy Committee, the chances of success in the Senate are”uphill but very possible, ” which is what he had heard, and it is critical that we continue to flood Congress with your calls. He urges that you take a few minutes to ask the recalcitrant senators listed below (but who are not yet lost causes such as John McCain) to vote YES on the DREAM Act. Also, keep checking http://www.dreamactivist.org/, http://www.nysylc.org/ and www.thenyic.org/dreamact for updates. Ultimately, in the end, the polls do matter, and the recent Gallup poll should sway these Senators to do the right thing by voting in favor of DREAM. And those Republicans who are afraid to come out in favor of this legislation because of the current anti-immigrant mood in the party caused by the Tea Party movement, they should pay heed to people like Newt Gingrich and Jeb Bush, who realize that the Republican party will be doomed if they alienate themselves from the growing number of Latino voters, http://bit.ly/gL38LJ.

Senate Democrats: 866-967-6018 or 202-224-3121
Conrad (ND)
Dorgan (ND)
McCaskill (MO)
Webb (VA)
Warner (VA)
Landrieu (LA)
Pryor (AR)
Tester (MT)
Hagan (NC)
Senate Republicans: 866-967-6018 or 202-224-3121
Hutchison (TX)
Brownback (KS)
Murkowski (AK)
Brown (MA)
Kirk (IL)
Bennett (UT)
Voinovich (OH)
Snowe (ME)
Collins (ME)
Lemieux (FL)
Lugar (IN)
Bunning (KY)
Cyrus Mehta

BALCA’S NEW DECISION IN DENZIL GUNNELS OPENS THE DOOR TO SUBMIT MORE EVIDENCE FOLLOWING A LABOR CERTIFICATION DENIAL

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By Cyrus D. Mehta

The Board of Alien Labor Certification Appeals (BALCA) has been extremely active recently issuing several important decisions. Since the PERM labor certification process is so exacting and unforgiving, there is very little opportunity for an employer to correct the record in the event of a mistake, or to supplement the record if the Department of Labor (DOL) objects to some aspect of the PERM application and issues a denial. BALCA recently issued an important decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010), that may provide more opportunities for the employer to provide supplemental evidence following a denial. Indeed, BALCA has made itself relevant again by cutting down on processing times and issuing more decisions. This post is based on a larger article analyzing selected BALCA decisions that will be part of the 13th Annual AILA New York Chapter Immigration Law Symposium on December 1, 2010

As a background, over three years ago BALCA issued HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006), a seminal decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

However, not every mistake can be overcome by invoking HealthAmerica, especially mistakes that are clearly in violation of the regulations. It should also be noted that the beneficial impact of HealthAmerica has been somewhat negated by 20 CFR §656.24(g)(2)(ii), which limits documents accompanying a motion for reconsideration to “[d]ocumentation that the employer did not have an opportunity to present previously to the certifying officer, but that existed at the time the application for permanent labor certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of §656.10(f).” Still, we see BALCA continuing to rule in favor of applicants who have made errors based on fundamental fairness and in recognition of the fact that the PERM process is an exacting an unforgiving one. Indeed, even in Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009), which involved a failure to state the magic language that an employer will accept any suitable combination of experience, training or education on the form, BALCA’s decision was grounded in the fundamental fairness doctrine enunciated in HealthAmerica, especially since there was no place on the ETA-9089 that signaled to an employer to insert this language. However, as noted below, the trend is for BALCA to be far less forgiving and to apply HealthAmerica very narrowly.

BALCA’s most recent decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) sets forth standards under which the CO must consider an appeal as a request to reconsider rather than treat is as a request for review. 20 CFR 656.24(g)(4) provides that “[t]he Certifying Officer, may, in his or her discretion, reconsider the determination or treat it as a request for review.” In Denzil Gunnels BALCA found that the CO abused his discretion by failing to consider the employer’s request as a motion, and instead, treating it as a request for review. Even though the employer filed a “Request for Review of Denial of Form ETA 9089,” it was attempting to submit supplementary evidence, a corrected ETA 9089, after the originally filed ETA 9089 failed to state “yes” or “no” in Section M1. The employer was thus attempting to request a motion for reconsideration, even though it did not say so clearly, and BALCA admonished the DOL indicating that its FAQs did not make clear that if the employer omits the magic word “reconsideration,” it will result in the request being placed in the BALCA queue. Note that if the CO sends the file to BALCA, an employer is unable to correct or supplement the record under HealthAmerica as BALCA is unable to consider new evidence.

BALCA in Denzil Gunnels concluded by setting forth circumstances under which the CO may exercise his discretion properly and the circumstances under which it will be found to be an abuse of discretion:

Step 1. Where an employer unambiguously requests BALCA review, the employer has made a tactical decision to appeal to BALCA and can no longer supplement the record. BALCA, however, left open the possibility that even where an employer uses the words “request for review,” but it is clear that the employer is seeking consideration or where there is ambiguity, BALCA will determine whether the CO abused his discretion by sending the file into the BALCA queue without first treating it as a request for reconsideration and reviewing the supplemental evidence.

Step 2. BALCA recognized that not all supplemental evidence can be accepted, and could be barred under 20 CFR §656.24(g)(2)(ii) where the employer did have a prior opportunity to submit evidence to the CO during an audit. This would be a case, labeled as Situation 1, where “Application is Filed – Audit – Audit Response – Final Determination – Reconsideration based on evidence submitted in audit response.” Under Situation 1, BALCA will not find that the CO abused his discretion as the supplemental evidence was squarely barred under § 656.24(g)(2)(ii), and the CO was justified in treating the request for reconsideration as an appeal to BALCA. On the other hand, under Situation 2, “Application is Filed – Denial of Application – Reconsideration based on evidence that would have been submitted as part of the audit response,” if a PERM application is denied without an audit, and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. See also CVS RX Services, Inc., 2010-PER-01108 (BALCA Nov. 16, 2010) (CO abused his discretion by referring file to BALCA when employer submitted supplemental evidence, after denial without audit, justifying that a professional journal was appropriate even though the position required a bachelor’s degree with no experience).

Step 3. BALCA further recognized that even in cases that fall squarely under Situation 1, the circumstances of an audit may not have been specific enough to put the employer on notice regarding a specific deficiency. Thus, these cases would be treated under Situation 2, even if an employer received an audit, but argues that it did not receive specific notice, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present supplemental evidence to the CO.

Denzil Gunnels, thus, opens the door for an employer to argue that it may not have received adequate notice of the deficiency and appears to provide a way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred by 20 CFR §656.24(g)(2)(ii). Thus, as an example, in its denial CO objected to whether a Sunday newspaper was appropriate or whether a specific US worker was lawfully rejected or not, one can argue that the generic boilerplate audit notice, even if it asked for evidence of the employer’s recruitment, did not adequately apprise the employer of these potential deficiencies, and can seek to supplement the record through a motion to reconsider. On the other hand, if an employer inadvertently submits an erroneous copy of an advertisement in response to an audit notification for evidence of recruitment, BALCA has held that this situation is the precise type of evidence barred by § 656.24(g). SeeTechdemocracy LLC, 2009-PER-00459, 2011-PER-00058 (BALCA Nov. 16, 2010).