David Isaacson

The Exception that Disproves the Rule: How Matter of K-E-S-G-‘s FGM Exception Exposes Its Incoherence

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In its recent decision in Matter of K-E-S-G-, 29 I&N Dec. 245 (BIA 2025), the Board of Immigration Appeals (BIA) held that “a particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable under the INA” as a basis for asylum. Matter of K-E-S-G-, 29 I&N Dec. at 152. Several organizations have already explained why this decision is an unlawful attack on refugee women that will have horrible consequences. In this blog post, rather than duplicating that work, I want to focus on why an exception that the BIA made in multiple footnotes of K-E-S-G- for cases relating to female genital mutilation (FGM) actually makes clear that the entire decision is logically incoherent.

The BIA in K-E-S-G- rejected the claim of the Salvadoran asylum applicant in that case, and seemingly attempted to pre-empt the asylum claims of all other women who assert that they face persecution due to their gender and nationality (absent other factors). In footnotes 7 and 8 of its decision, however, the BIA states that K-E-S-G- “does not involve a claim of female genital mutilation and our holding in this case does not affect the viability of such claims in the future” and on this basis distinguishes Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), which recognized a particular social group of Somali females in the context of a claim based on FGM.

The BIA’s exception for FGM was presumably made because of case law such as Hassan, and perhaps because of a more general realization that it would be facially ludicrous to deny that women subjected to FGM have faced persecution—although even if the BIA had taken that ludicrous step, Court of Appeals cases like Hassan and Mohammed v. Gonzales, 400 F.3d 385 (9th Cir. 2005), would exist whether the BIA acknowledged them or not. Upon further analysis, however, this exception for asylum claims based on FGM exposes why the overall holding of K-E-S-G- does not make sense.

The BIA says of Hassan that the Eighth Circuit there “held that “Somali females” was a particular social group because of the prevalence—98 percent—of female genital mutilation in the country.” Matter of K-E-S-G-, 29 I&N Dec. at 151 n.7. The implication seems to be that, according to the BIA, other forms of persecution of women are not so statistically prevalent, and that women in other contexts thus cannot constitute a particular social group even if they can constitute a particular social group in the FGM context in a country where the prevalence of FGM is so high. (The BIA does not make entirely clear how it would analyze an FGM case involving a lower prevalence than 98%, although footnote 8 of K-E-S-G- broadly exempts FGM claims from the decision’s holding without reference to a numerical cutoff.)

Asylum, however, does not require that persecution have a 98% likelihood, or anything close to that. The statutory standard under 8 U.S.C. § 1158(b)(1)(A) and 8 U.S.C. § 1101(a)(42)(A) is, instead, a well-founded fear of persecution. The Supreme Court clarified many years ago in INS v. Cardoza-Fonseca, 408 U.S. 421 (1987), that “to show a “well founded fear of persecution,” an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country.” Rather, “a showing of a ten percent likelihood of persecution could suffice to establish that an applicant’s fear is well-founded.” Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir. 2006) (citing Cardoza-Fonseca, 408 U.S. at 431). Ordinarily, of course, one cannot quantify a likelihood of persecution with statistical certainty, but the basic point remains: the chance of persecution required in order to support an application for asylum is much, much lower than the 98% suggested by the evidence in Hassan.

Given this, however, the BIA’s basis for distinguishing Hassan and FGM while attempting to maintain an otherwise broad rule against gender as a particular social group is logically unsustainable. Under Cardoza-Fonseca, the outcome in Hassan should have been the same if only 10% of women in Somalia were subject to FGM, if that implied a 10% probability that a particular asylum applicant would be so subject by virtue of being a woman. The same is logically true of any other form of mistreatment, sufficiently severe to qualify as persecution, that a woman is exposed to with a 10% or greater likelihood, in a particular country, by virtue of being a woman—keeping in mind, again, that statistical certainty is usually not obtainable in these matters.

Since the regulations at 8 CFR 208.13(b)(1) and 8 CFR 1208.13(b)(1) provide that a victim of past persecution benefits from a presumption of a well-founded fear of future persecution, there will be many cases in which it will not make sense to require a (previously persecuted) asylum applicant to make any statistical showing at all. Moreover, a conflation of likelihood of persecution with the particularity of a particular social group is potentially problematic to begin with, since the evaluation of a particular social group and the evaluation of likelihood of persecution are supposed to be different stages of the asylum analysis. But even if we accept that an approximate statistical assessment may be relevant, as the BIA indicates in footnote 7 of K-E-S-G-, we must accompany that acceptance with the realization that under Cardoza-Fonseca, the relevant statistical threshold is nowhere near the 98% at issue in Hassan. If, as the BIA has implied in footnote 7, persecution of 98% of women in a particular country by means of FGM mandates their acceptance as a particular social group, then significantly lower rates of persecution of women ought to do so as well.

Even apart from the issue of the percentage chance of harm required to make out a claim, the BIA’s acknowledgement of an exception for the 98% prevalence of FGM in Somalia according to Hassan exposes another flaw in its logic. As the Court of Appeals for the Second Circuit explained in Ordonez Azmen v. Barr, 965 F.3d 128 (2d Cir. 2020), assessments of a particular social group must be done on a case-by-case basis, with reference to the record evidence pertaining to a particular country. The BIA has not overruled the case law relied upon by the Second Circuit in Ordonez Azmen (and perhaps could not do so without itself being overruled by a court), and yet it seems, in K-E-S-G-, to be trying to suggest that a social group of all women of a particular nationality can never be a particular social group, regardless of the record evidence regarding that particular country. In addition to this proposition being inconsistent with the Second Circuit’s decision in Ordonez Azmen (and thus legally non-viable within the Second Circuit or other Circuits that have held similarly), however, this proposition is falsified by the BIA’s own FGM exception. Apparently, the BIA accepts that the record in Hassan revealed such widespread persecution of women in Somalia that asylum was warranted in that case. But the BIA has no logical basis for categorically ruling out the possibility that the same could be true of some other country in which a sufficient number of women face some other form of persecution.

The BIA appears to have avoided immediate judicial review of its logically incoherent decision in K-E-S-G- by remanding the specific case to the Immigration Court for further consideration of an application for cancellation of removal, meaning that there is currently no final order of removal regarding which a petition for review could be filed under 8 U.S.C. § 1252. It is this author’s view, however, that lawyers handling other cases that present the possibility of a PSG based on gender should not merely accept the BIA’s decision in K-E-S-G- at face value, but should preserve the issue for future challenge on a petition for review, while of course also asserting any other PSGs or other protected grounds that remain available even under the BIA’s current view of the law. When the issue does come before the various Court of Appeals, some or all of those courts may recognize that the BIA’s attempt to cabin gender-based claims to one particular form of persecution, and an overly-demanding threshold of probability, should be rejected.

Cyrus Mehta

Although DOS Resumes Visa Processing for Foreign Students,  the Enhanced Vetting Guidance Undermines American Values of Free Speech and Expression

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On June 18, 2025, the Department of State resumed visa processing for new and returning students and exchange visitors (F, M, and J nonimmigrants) but announced enhanced social media and online presence screening and vetting procedures. All applicants for F, M, and J nonimmigrant visas will be instructed to adjust the privacy settings on all of their social media profiles to “public” at their visa interviews. If the consular officer finds them otherwise eligible for the visa sought, the officer will issue the student an INA § 221(g) decision while they gather more information and documentation before issuing a final determination.

The guidance directs consular officers to review visa applicants’ online presence for “any indications of hostility towards the citizens, culture, government, institutions or founding principles of the United States.” Consular officers will review more than just social media accounts with particular attention to applicants with a history of political activism. Officers will comprehensively screen every visa applicant “for potential security and non-security related ineligibilities.” Although the online content found may not alone be sufficient to deny a student’s visa, officers will conduct additional vetting to determine if the applicant will respect U.S. laws and “engage only in activities consistent with” their status. While some travelers have taken to temporarily wiping their social media accounts, consular officers will be taking screenshots during their vetting process to preserve records of their findings. 

Lack of a public online presence or refusal to make sites accessible will raise a red flag. If no derogatory information is found, the officer may make a decision on the visa application. However, according to the guidance, “[i]f potentially derogatory information is found, post should refuse the case under the appropriate refusal code; or, if needed, post should call the applicant back for a follow-up interview.”

According to the guidance, consular posts may resume processing of expedited appointment requests and are directed to prioritize physicians applying for J visas and applicants studying at U.S. universities where international students constitute 15 percent or less of the total student body.

The guidance is very authoritarian and not befitting American values that cherish freedom of speech and expression, and is aimed at stifling all forms of critical speech that is integral to a student’s expression. For instance, a student may have randomly posted on social media about the blandness of American cuisine because of the dominance of McDonalds in a small  town he visited in comparison to New York or San Francisco. Could this post now be used as a basis to refuse the student visa because he displayed hostility towards US culture? Or what if a student of international affairs writes an essay in the college newspaper critical of President Trump’s decision to bomb Iran without Congressional authorization even though many elected representatives in Congress share this view? One can go on and one with ridiculous examples of how a student may be refused a visa under this policy. 

Unfortunately, it is difficult to challenge a consular officer’s refusal of a student visa but there may be some legal foundation. In Kleindienst v. Mandel, the Supreme Court held that the government has broad discretion to  refuse entry of a noncitizen seeking entry to the US. So long as there is a  “facially legitimate and bona fide reason” to refuse entry, courts will not question that decision or weigh it against the First Amendment rights of those seeking to communicate with the noncitizen.  One may be able to argue in court  that denying a student visa to one who has posted critically against “McDonald culture” does not meet the “facially legitimate and bona fide reason” standard, but courts have still  historically been reluctant  to question a consular officer’s decision or gone behind it so long as the officer provided a decision. It may be more feasible to seek review in court  if the challenge intersects with a claim under the First Amendment and if US based plaintiffs are involved. In American Academy of Religion  v. Napolitano, the Second Circuit Court of Appeals held that the lower district court had jurisdiction to consider US organizations’ First Amendment claims despite consular non- reviewability in the denial of a B visa to an Islamic scholar.  The Court  found the First Amendment rights of U.S. organizations are at stake when foreign scholars, artists, politicians and others are excluded, quoting from Kleindienst v. Mandel that the organizations have a First Amendment right to “‘hear, speak, and debate with’ a visa applicant.” The appeals court also found that the government cannot exclude an individual from the U.S. on the basis of “material support” for terrorism without affording him the “opportunity to demonstrate by clear and convincing evidence that he did not know, and reasonably should not have known, that the recipient of his contributions was a terrorist organization.”

The State Department policy will either dissuade or deprive thousands of foreign students from studying in the US. It will also lead to processing delays as consular officers will be required to vet all student visa applicants for potential security and non-security ineligibility. This is turn will further undermine the ability of US universities to enroll foreign students who generally pay fees at full freight. It will erode America’s credibility as a destination to attract the best and the brightest, and it will also undermine the ability of universities to foster critical thinking as well as sow fear lest one’s published views lead to retaliation. The policy could also be applied arbitrarily, potentially leading to visa denials based on innocuous or irrelevant online activity. This could further support a challenge by demonstrating that the policy lacks clear standards and is inconsistent with American values of free speech and expression. Furthermore, the policy’s potential to dissuade or deprive foreign students from studying in the U.S. could undermine the ability of U.S. universities to foster critical thinking and academic exchange. This impact on U.S. institutions could strengthen the argument that the policy is detrimental to the First Amendment interests of U.S. entities.

If Trump’s State Department does not come to its senses and rescinds its unwise policy, visa applicants who have been baselessly denied visas and impacted US organizations should consider  challenging the policy in federal court under American Academy of Religion v. Napolitano.  

 

Cyrus Mehta

Trump’s Executive Order Restricting Birthright Citizenship Is So Unconstitutional that Even the Supreme Court May Reject It

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By Cyrus D. Mehta and Kaitlyn Box*

On January 20, 2025, Inauguration Day, Donald Trump signed an executive order entitled “Protecting the Meaning and Value of American Citizenship”, which interprets the language “subject to the jurisdiction thereof” in the Fourteenth Amendment to mean that U.S. citizenship does not extend to individuals born in the United States: 

1. when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, 

2. or when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The executive order further directs agencies not to “issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to individuals falling within these categories. Further, the executive order specifies that it applies “only to persons who are born within the United States after 30 days from the date of this order”, and does not speak to whether the U.S. citizenship of a child who has already been born to two non-U.S. citizen or LPR parents will continue to be recognized. 

The American Civil Liberties Union has already sued the Trump administration over this executive order. The complaint argues that the Fourteenth Amendment was indented to confer U.S. citizenship on all persons born in the United States, regardless of the citizenship status of their parents, and asserts that the executive order violates the Fourteenth Amendment, 8 U.S.C. § 1401, which mirrors the Fourteenth Amendment’s language, and the Administrative Procedure Act. 

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.”

Lost in the heated political rhetoric surrounding Trump’s executive order is that it is next to impossible to amend the hallowed Fourteenth Amendment, which was enacted to ensure birthright citizenship to African Americans after the Civil War, and following the infamous decision in Dred Scott v. Sanford  that held that African Americans could not claim American citizenship.   In  United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court  extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

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. 

Although in Elk v. Williams, 112 U.S. 94 (1884), those born within Native American tribes were not born “subject to the jurisdiction” of this country because they owed allegiance to their tribal nations rather than the United States,  this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924. Even the Board of Immigration Appeals in Matter of Cantu, Interim Decision #2748, broadly held that one who was born on a territory in 1935, the Horcon Tract, where the United States had impliedly relinquished control, but had not yet ceded it to Mexico until 1972, was born “subject to the jurisdiction” of the United States and thus a US citizen.

 Other lawsuits are sure to follow, and the executive order may be blocked by federal courts. As the recent decision on DACA in the Fifth Circuit, which enjoined the program only in Texas, demonstrates, a federal court decision could result in the different definitions of who is a U.S. citizen depending on the jurisdiction. Thus, even if plaintiffs prevail in the legal action in federal court in New Hampshire, the court may not issue a nationwide injunction. A Trump appointed federal judge in Texas in a different lawsuit may reach a different conclusion based on his or her interpretation of “subject to the jurisdiction thereof” in the Fourteenth Amendment.  Given its current conservative composition, however, Trump is hoping that the  Supreme Court may ultimately accept his administration’s reinterpretation of the “subject to the jurisdiction thereof” language and uphold the executive order. Even that is unlikely as the parents of a child who are undocumented or in nonimmigrant status are always subject to prosecution,  unlike a diplomat who enjoys immunity, and are thus subject to the jurisdiction of the US. It is also highly unlikely that nonimmigrant parents would be considered enemies during a hostile occupation of  a part of  US territory even if Trump might like to imagine so! 

In the meantime, the executive order creates much ambiguity and poses severe consequences for individuals who otherwise would have been U.S. citizens. The executive order applies not only to children of two undocumented parents, but also to the U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4. How will a child as soon as it is born acquire H-4 status? One needs to be admitted into the US in H-4 status or change from another nonimmigrant status into H-4 status. Perhaps, the Trump administration may need to issue a regulation recognizing H-4 status of the child at the time of its birth.    As we noted in a prior blog, the best chance for Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs to obtain permanent residence without waiting for several decades could be sponsorship by a U.S.-born adult child. Parents of children born after the effective date of the executive order may no longer have this opportunity. The executive order will cruelly create a permanent underclass of noncitizens. The child in H-4 status would have to leave the US when it turns 21 unless it finds a way to change to another nonimmigrant status or obtain permanent residence independently such as through marriage with a U.S. citizen. 

The executive order’s application to other categories of children born in the U.S. is unclear. For example, would U.S. citizenship extend to the child born to a mother in valid H-1B status, but who also had a pending I-485 application and is able to exercise portability under INA § 204(j)? Similarly, would a child born to a nonimmigrant mother be considered a U.S. citizen if the father is an anonymous sperm donor in the U.S.? Based on the plain language of the executive order, it appears likely that U.S. citizenship would not extend to either of these children. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Update:  Since the publication of the blog, on January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction stating “This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”

Cyrus Mehta

Does the Signing of the I-485 Supplement J By a New Employer Constitute Visa Sponsorship?

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Cyrus D. Mehta and Jessica Paszko*

Portability under Section 204(j) of the Immigration and Nationality Act (INA) allows certain employment-based green card applicants to change jobs or employers while their adjustment of status (Form I-485) application is pending. Portability becomes available once the I-485 has been pending for at least 180 days. It must be exercised by submitting Supplement J (Form I-485J), which confirms the new job offer and its compliance with the same or similar occupational classification as the original job offer that was the basis of Form I-140. Once an applicant’s I-140 priority date is current, there is a race to file an I-485J before the I-485 is approved to ensure the new employment details are recognized and to avoid any potential complications in the adjustment process or later at the time of naturalization. Foreign nationals with backlogged Form I-140 priority dates are generally not envied by their counterparts whose priority dates are current or about to become current. Ironically, the latter group may find themselves green with envy, wishing their non-current priority date could afford them additional time to secure a job offer when faced with unemployment upon their I-140 priority date becoming current.

We’ve previously addressed the dilemma of a green card being approved prior to filing the I-485J, as well as the uncertainties faced by foreign nationals terminated during the “Twilight Zone” with an I-485 pending for less than 180 days. Yet, in exploring these issues, we may have overlooked a crucial element of the I-485J: the employer’s willingness to endorse it. A laid-off worker with a distant priority date need not fear these dilemmas or uncertainties, even if their adjustment has been pending for less than 180 days. They can diligently pursue new opportunities for similar employment, assuming their I-765 application for an Employment Authorization Document (EAD) has been approved, and then request their new employer to execute an I-485J on their behalf. However, navigating this process may not be straightforward, particularly when addressing the standard screening question posed by employers to avoid a charge of discrimination or bias: “Do you now, or will you in the future, require sponsorship for employment visa status (e.g., H-1B visa status, etc.) to work legally for our company in the United States?”

Arguably, a foreign national employed under a valid EAD does not necessitate ‘sponsorship’ for a visa. Yet, the new employer must execute an I-485J on their behalf. Is an I-485J synonymous with sponsorship? Technically speaking, probably not, though the new employer should be apprised of this material fact which raises the question of when it would be appropriate to raise this with the employer?

Answering the screening question in the negative can be defended, as signing an I-485J does not imply the type of ’employment visa’ sponsorship the question typically refers to. While the need for an I-485J may not need to be disclosed during initial screening, could withholding this information until after signing the offer letter be justified? Introducing the I-485J requirement during the interview process, before the offer letter is finalized, could potentially complicate matters although the timing of such a disclosure should be determined on a case by case basis. From the foreign national’s perspective, it may be prudent to delay discussing the I-485J until after accepting the offer. However, if the employer learns of this requirement earlier and withdraws the offer, could the foreign national claim discrimination under INA 274B? Prevailing in such a claim is unlikely under these circumstances.

In the eyes of immigration practitioners, and employers who have been through the PERM process once or hundreds of times, hiring a foreign national with an approved I-140 and pending I-485 is a hard-to-pass-by bargain especially if they have the ideal sought after skills for the job. The new employer does not need to start the time consuming and costly PERM process anew and gets all the benefit of hiring a foreign national that has been vetted as qualified for the job by both the Department of Labor and USCIS. Surely, it would be silly for any employer to pass on hiring a prospective employee upon learning that just one simple form needs to be endorsed for the employer to take over an I-140 that another company spent significant time and resources to obtain. Although that might be the inherent reaction of the employer familiar with immigration visa sponsorship, alarm bells might go off in the ears of the cautious employer that has never sponsored any foreign nationals. From the cautious employer’s perspective, a signature in the employer’s section on the I-485J could expose them to perjury. The I-485J contains one section that must be signed by the applicant and another section that must be signed by the prospective employer who has to describe the job title, duties, and the Standard Occupational Classification (SOC) code, which may be daunting for the employer to figure out, and even more so in light of signing under penalty of perjury.

An employer’s unwillingness to attest to the contents of the I-485J under penalty of perjury may not be the only consideration. A fearless employer who has a hard time believing the government would bother bringing perjury charges against him for something like this would gladly sign off on an I-485J but for the form’s request for information that is fundamentally at odds with the employer’s business practices. Indeed, an employer who solely offers employment-at-will or who never specifies job duties or job duration in offer letters may be hesitant to change its longstanding practice and provide information in the I-485J it has never put in writing. The employer’s unwillingness to endorse an I-485J because to do so would contradict its normal business practices would also cut against a claim that the employer engaged in discrimination. On the other hand, would a discrimination claim fare any better if the employer’s long standing practice is to include job duties and job duration in its offer letters? From that employer’s perspective, despite its long standing practice, denying an offer of employment to a foreign national in need of an I-485J is not commensurate with discrimination because a signature on the I-485J exposes it to perjury, a major liability that its long standing practice does not even contemplate.

The pre-2017 era prior to the requirement of I-485Js offered a simpler process for adjustment applicants who sought job flexibility. During that time, applicants were generally only required to demonstrate, if questioned during a naturalization interview, that they had moved to a same or similar job. However, this approach introduced uncertainty regarding whether applicants were obligated to disclose changes in employment. With the introduction of regulations like 8 CFR § 240.25(a) many years after the enactment of INA § 204(j), clarity has been enhanced: applicants can now use Form I-485J to affirmatively demonstrate ongoing employment with the sponsoring employer or a new job in the same or similar occupation, after the application has been pending for 180 days. While not explicitly mandatory under 8 CFR § 240.25(a), the instructions on Form I-485J have effectively made it a requirement. However, although there is more certainty with the I-485J, applicants may find themselves penalized if the I-485J does not get submitted before the issuance of a green card. This creates a paradoxical situation where those who secured employment before their I-485 approval may benefit more than those who did not, assuming that the employer is not reluctant to sign its part the first place after being confronted with an I-485J asking for job duties and an SOC code.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

David Isaacson

Lock Up Falsely Arrested Adjustment Applicants and Teenage Shoplifters, or Be Sued: the House’s “Laken Riley Act”

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On March 7, 2024, the Republican-led U.S. House of Representatives passed the “Laken Riley Act”, H.R. 7511. The bill was named after a murder victim from Georgia, whose “alleged murderer”, as the bill describes him, had been paroled into the United States from Venezuela and had previously been arrested for driving a scooter without a license (with a child who was not wearing a helmet) and for shoplifting. The bill describes its primary purpose as “To require the Secretary of Homeland Security to take into custody aliens who have been charged in the United States with theft”.

Perhaps because the Laken Riley Act has little chance of passing the Senate or becoming law, there has been little public analysis of its details, although its initial passage by the House was covered by major media such as the New York Times and CNN. At least one press release has correctly observed that “Under the Laken Riley Act, a Dreamer who lives in a hostile state could be subject to indefinite detention simply because someone says they suspect them of a petty crime.” As it turns out, however, some of the details are even worse than that press release suggests.

The text of the Laken Riley Act would add a new paragraph (1)(E) to the list of those subject to mandatory detention during removal proceedings in INA § 236(c), 8 U.S.C. § 1226(c), covering “any alien who . . .

(i) is inadmissible under paragraph (6)(A), (6)(C), or (7) of section 212(a), and
(ii) is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense,”

H.R. 7511, § 3(1). It would require that “The Secretary of Homeland Security shall issue a detainer for an alien described in paragraph (1)(E) and, if the alien is not otherwise detained by Federal, State, or local officials, shall effectively and expeditiously take custody of the alien.” Id. § 3(3). In addition, it would allow lawsuits by “The attorney general of a State, or other authorized State officer” to file lawsuits challenging the release of aliens in alleged violation of INA § 236 and various other sections of law relating to immigration. Id. at § 4(a.)-(f.).

The most obvious problem with this new language would be that, as the above-quoted press release flagged, it does not require a conviction, only that one be “charged with” or “arrested for” the crimes in question. Mandatory detention following an arrest or charge that need not even lead to a conviction would be bad enough if it only applied to people who one would otherwise reasonably expect to be placed in removal proceedings, since even they are entitled under the Constitution to due process of law—and there has been at least one recent and notorious incident of an asylum-seeker being accused of a more serious crime than shoplifting before being exonerated. But for reasons that may be less obvious, the Laken Riley Act would go significantly farther even that that.

One problem is the breadth of the inadmissibility grounds which, together with any charge or arrest for burglary, theft, larceny or shoplifting, would trigger the mandatory detention. The reference to one “inadmissible under paragraph (6)(A). . . of section 212(a)” would cover anyone who entered without inspection, even if they have since been, for example, granted asylum, at least as the law has been interpreted by the Board of Immigration Appeals. INA § 212(a)(6)(A)(i) states that “An alien present in the United States without being admitted or paroled . . . is inadmissible”, and the BIA held in Matter of V-X-, 26 I&N Dec. 147 (BIA 2013), that a grant of asylum is not an “admission” for these purposes, leaving asylees subject to the grounds of inadmissibility (although with the proviso that they cannot be removed unless their asylum status is terminated). That scenario would at least bear some distant, tenuous resemblance to the cases that the authors of H.R. 7511 presumably thought they were trying to address, although the thought of an asylee, granted permission to stay in the United States for safety from persecution, being subject to mandatory detention due to potentially false charges of theft or shoplifting, is nonetheless horrifying. But the reach of H.R. 7511’s cited grounds of inadmissibility is even broader, and stranger, than this.

The ground of inadmissibility under INA § 212(a)(7), which applies to documentation requirements such as having a proper immigrant or nonimmigrant visa or passport, was presumably included in the Laken Riley Act order to capture parolees, as Laken Riley’s alleged murderer had been paroled into the United States. While the bill’s authors may have had in mind those who first arrive in the United States on parole, however, the language of the bill is broad enough to cover those who use advance parole to leave and re-enter the United States while they have a pending application for an immigration benefit, most commonly an application for adjustment of status to that of a Lawful Permanent Resident (green card holder). They, too, will upon their return be technically inadmissible for lack of an immigrant visa, until their applications for adjustment of status are granted, and so INA § 212(a)(7) is the ground of inadmissibility under which they would be charged if placed in removal proceedings. Under the Laken Riley Act, therefore, an applicant for adjustment of status who travels on advance parole, and is later incorrectly charged with or arrested for theft or shoplifting, would need to be detained by immigration authorities until the completion of those removal proceedings. If visa numbers had become unavailable since the filing of that adjustment application (what is commonly known as “retrogression”), the proceedings could potentially drag on for years until a visa number became available again, and during all of that time, the Laken Riley Act would mandate detention of the adjustment applicant.

Another problem with the structure of the Laken Riley Act is that while a “conviction” under immigration law has been defined to exclude many juvenile delinquency proceedings, as explained by the BIA in Matter of Devison, 22 I&N Dec. 1362 (BIA 2000), there is no such case law regarding an arrest or charge, nor does the text of the Laken Riley Act include any such carve-out. Thus, the Laken Riley Act would apparently subject even a teenager charged with shoplifting under juvenile delinquency procedures to mandatory immigration detention, if that teenager had previously entered without inspection or traveled on advance parole, and had not yet become a Lawful Permanent Resident.

It gets worse. If state authorities had not considered it worthwhile to detain the falsely accused adjustment applicant or teenage shoplifter while sorting out a minor criminal charge, section 3(3) of the Laken Riley Act would mandate that DHS “effectively and expeditiously take custody of the alien.” And if DHS did not do this, according to section 4(b) of the Laken Riley Act, the attorney general of any state that could claim at least $100 in damage could sue them “to obtain appropriate injunctive relief.” So an attempt by DHS to be somewhat reasonable in enforcing these overly broad criteria under unjust circumstances would simply lead to litigation, and possibly a court order to more rigorously enforce the Laken Riley Act’s peculiar requirements.

The author’s own Representative in Congress, Jerrold Nadler, was quoted by CNN as having described the actions of Republicans in putting forward the Laken Riley Act as “exploiting [Laken Riley’s] death for a partisan stunt” and “throwing together legislation to target immigrants in an election year.” That description appears accurate. The legislation having been thrown together hastily, to exploit Laken Riley’s tragic death for partisan purposes, may help explain why the House would have passed legislation mandating the indefinite detention of falsely accused adjustment applicants and teenage shoplifters. But it does not excuse it.

David Isaacson

Canada Begins New Program for Holders of U.S. H-1B Visas – And They Really Do Mean H-1B Visas, Not H-1B Status, Although Family Members Need Not Have Any Kind of H-4

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Update: on July 18, 2023, IRCC posted an announcement that the cap of 10,000 applications for the new program had been reached on July 17 and the program was closed. So the below post may be only of theoretical interest unless Canada reopens the program at a later date.

In a previous blog post, I described a new Canadian program for holders of H-1B visas, and flagged the issue that the initial announcement of the program and backgrounder issued by Immigration, Refugees and Citizenship Canada (IRCC) referred to “H-1B specialty occupation visa holders in the US” in such a way as to suggest that an actual H-1B visa stamp was necessary. As I explained in that post, there are multiple circumstances under which one can be in valid H-1B status, but not possess an H-1B visa stamp as such, such as in the event of a change of status or extension of stay. At the time, it was unclear whether this seeming requirement for a visa stamp was merely an imprecision in language. There were also other issues left open by the announcement.

IRCC has now published the application guidance for the new program, and has also posted the underlying temporary public policy established under section 25.2 of the Immigration and Refugee Protection Act. (The temporary public policy is dated June 23, but was only made public on its effective date of July 16.) Unfortunately, it appears from the temporary public policy and the application guidance that IRCC will indeed be requiring principal applicants for an open work permit under the new program to have an H-1B visa stamp, and not merely H-1B status, as well as reside in the United States. The good news is that there is no similar requirement that dependents of principal applicants have either H-4 visas or H-4 status, and indeed some family members who could not qualify for H-4 status will be eligible for the new program.

Part 1, section 1(iii.) of the temporary public policy specifies as one of the conditions to be met that an applicant for a work permit under the policy “holds an H-1B (Specialty Occupations category) visa issued by the United States of America that was valid at the time the work permit application referred to in (i) was submitted”. This reference to a visa, like the one in the original IRCC announcement, could potentially be read as ambiguous, but the application guidance specifies that a visa is a separate document required in addition to an H-1B approval notice and potentially Form I-94. The guidance states:
To apply, you’ll need
• a copy of your current H-1B visa
• Form I-797/I797B, Notice of Action
o This is a letter from the US government confirming your H-1B application was approved.
• proof that you live in the US, such as
o Form I-94, Arrival/Departure Record
o a recent utility bill
o an income tax report
o any document that proves you live in the US

The separate bullet point for “a copy of your current H-1B visa” implies that neither the Notice of Action showing approval of an H-1B application, nor a Form I-94, will suffice without the visa. It is not clear why IRCC has imposed this requirement, but it appears that they have done so.

One piece of good news, however, is that there is no similar requirement for family members of principal H-1B applicants. Indeed, not only are family members of principal applicants not required to have an H-4 visa stamp, they are not even required to have H-4 status, or be eligible for H-4 status. As long as they are a family member of an approved principal applicant under the definition contained in subsection 1(3) of the Immigration and Refugee Protection Regulations (IRPR), and reside in the United States, that is sufficient.

The definition of a family member under subsection 1(3) of the IRPR is somewhat broader than the definition of a family member for H-4 purposes under U.S. law. The IRPR definition includes “the spouse or common-law partner of the person” (here, of the principal applicant); “a dependent child of the person or of the person’s spouse or common-law partner”; or “a dependent child of a dependent child” of the person or the spouse or common-law partner. Thus, common-law partners of H-1B visa holders, children of common-law partners of H-1B visa holders, and some dependent grandchildren of H-1B visa holders and their spouses or common-law partners may be eligible for the new Canadian program although they would not be eligible for H-4 status.

Moreover, the definition of a child for these purposes does not cut off at age 21, as it does for H-4 purposes under INA 101(b)(1), 8 U.S.C. 1101(b)(1). Rather, under section 2 of the IRPR, a dependent child includes one who “is less than 22 years of age and is not a spouse or common-law partner, or . . . is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition.” Thus, some 21-year-old children or disabled older children of H-1Bs, who would not be eligible for H-4 status, may be eligible for the new Canadian program, even if they have had to change to some other nonimmigrant status or are stuck in limbo as derivative beneficiaries of long-pending applications for adjustment of status, as long as they reside in the United States. 

Another open question I had raised in my prior blog post was how IRCC was going to allocate the 10,000 available numbers for principal applicants under the new program. Now that the effective date has passed without any announcement of a lottery or similar allocation mechanism, it appears that IRCC is simply going to allocate the numbers to the first 10,000 approved applications.

A third open question at the time of the announcement resulted from language on an IRCC guidance page for high-skilled workers that suggested applicants might want to consider the new program if “your US work visa is expiring soon”. Fortunately, however, nothing in the temporary public policy or the application guidance indicates that any particular date of H-1B expiration is required. The guidance page notwithstanding, even someone with, say, two and a half years left out of an H-1B petition and visa with three years validity, should qualify for the new program.

The new Canadian program has attracted significant positive media attention, which has understandably focused on the broader picture rather than details such as the distinction between H-1B visas and H-1B status. I do not mean to suggest, by highlighting this seemingly arbitrary distinction, that it should overshadow the other positive aspects of the program, or the implications that the program has for U.S. immigration policy. And it is good to see that IRCC will not be requiring dependent family members to meet U.S. requirements for an H-4 in order to benefit from the new program. But it would be even better if IRCC could remove the arbitrary exclusion of those who have changed status to H-1B or otherwise lack a valid H-1B visa, and open up the temporary program to H-1B nonimmigrants who reside in the United States in H-1B status even if they do not have H-1B visa stamps.

David Isaacson

Canada Announces New Program for Holders of U.S. H-1B Visas – But Do They Mean Visas, or H-1B Nonimmigrant Status?

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In a news release on June 27 issued following remarks at the Collision 2023 conference, Canada’s Minister of Immigration, Refugees and Citizenship, Sean Fraser, announced several new measures as part of “Canada’s first-ever Tech Talent Strategy.” One that will likely be of interest to many foreign workers in the United States is “the creation of an open work permit stream for H-1B specialty occupation visa holders in the US to apply for a Canadian work permit, and study or work permit options for their accompanying family members”.

This program and other parts of the Tech Talent Strategy have already attracted significant media attention. An open work permit, allowing employment by any employer in Canada rather than the specific sponsor required in the United States for an H-1B, may be an attractive prospect for many H-1B visa holders. The availability of work permits for accompanying family members is likely to be attractive to many as well, particularly those whose H-4 spouses would not be eligible for an Employment Authorization Document in the United States. Some important details, however, remain unclarified.

One such detail is the question of exactly who will be eligible for the new program. According to the announcement, “The new H1-B specialty occupation visa holder work permit will be available as of July 16, 2023. Approved applicants will receive an open work permit of up to three years in duration, which means they will be able to work for almost any employer anywhere in Canada. Their spouses and dependants will also be eligible to apply for a temporary resident visa, with a work or study permit, as needed.” The backgrounder issued by Immigration, Refugees and Citizenship Canada (IRCC) also refers to “H-1B specialty occupation visa holders in the US,” at more than one point. Read literally, this would suggest that one will need to possess an H-1B visa stamp in order to obtain the new Canadian open work permit.

Not all H-1B nonimmigrants in the United States, however, will hold a valid H-1B visa stamp, or any H-1B visa stamp at all (even an expired one). Rather, there are multiple circumstances under which one can be in H-1B status, but not possess an H-1B visa as such.

Under section 248 of the Immigration and Nationality Act (INA), also known as 8 U.S.C. § 1258, and the regulations at 8 C.F.R. Part 248, someone who has been admitted to the United States as a nonimmigrant may apply to change status to a different type of nonimmigrant while still within the United States. This process does not require obtaining a new nonimmigrant visa. A new visa is only required if the person wishes to leave the United States and re-enter in their new nonimmigrant status. (Even then, someone making a brief trip to Canada or Mexico of less than 30 days, who has changed status, can sometimes utilize their old visa under a process known as automatic visa revalidation, pursuant to 22 C.F.R. § 41.112(d)(1)-(2).) Thus, someone who entered the United States with, for example, an F-1 student visa, and has never left the United States since then, may have changed their status to H-1B, and may have been issued a Form I-94 acknowledging their H-1B status as part of the approval notice of their application for change of status, but may not have an H-1B visa.

Even if someone did come to the United States with a valid H-1B visa at some point in time, regulations at 8 C.F.R. § 214.1(c) allow for an extension of stay as a nonimmigrant beyond the period of initial admission. In this way, as well, someone whose H-1B visa, and initial period of H-1B admission, have already expired, may nevertheless be in valid H-1B nonimmigrant status. But if such a person does not travel outside the United States during the period of the extension, they need not get a new H-1B visa.

Nor are these the only ways that it is possible to be in valid H-1B status but not have a valid H-1B visa. According to 22 C.F.R. § 41.112(a), “The period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.” Rather, as that same regulation explains, “The period of validity of a nonimmigrant visa is the period during which the alien may use it in making application for admission.” And that period is often defined by “reciprocity”, that is, the time period for which a similar visa would be issued to a U.S. citizen by a particular foreign country. The State Department’s reciprocity schedule for the People’s Republic of China, for example, indicates that an H-1B visa will only be issued for 12 months. Thus, if a Chinese citizen is issued an H-1B visa valid for one year because of this reciprocity schedule, but has an approved H-1B petition valid for three years, he or she may be admitted in H-1B status until the end of the three years of petition validity, despite having a visa that will expire sooner than that. Even during the latter part of this initial admission, such a person will have H-1B status but no H-1B visa.

It is not clear why IRCC would want to exclude such H-1B nonimmigrants from the new work permit program, despite their lack of an H-1B visa. Based on the language of the announcement and IRCC backgrounder, however, it appears that they would be excluded. One can hope that this may have simply been an imprecision in language that can be corrected by the time the final program is officially created, but it is at least an open question.

Another open question is exactly how IRCC is going to allocate the limited supply of the new work permits. The announcement and IRCC backgrounder state that “This measure will remain in effect for one year, or until IRCC receives 10,000 applications. Only principal applicants, and not their accompanying family members, will count toward the application cap.” It appears from this that IRCC may simply allocate the 10,000 available numbers for principal applicants on a first-come, first-served basis.

As has historically come up in the H-1B context itself, however, allocating a sufficiently in-demand supply of application numbers on a purely first-come, first-served basis can result in chaos when more than the allotted number attempt to apply on the first possible day, and this can sometimes lead to the institution of a lottery system. Canada has historically sometimes utilized a similar lottery system, for example to allocate the limited number of opportunities for Canadian citizens and permanent residents to sponsor their parents and grandparents for permanent residence, at least in some years. On the other hand, some Canadian immigration programs with limited allocations – including, at times, the parents and grandparents sponsorship program – have been operated on a purely first-come, first-served basis, even if that rewarded those who could (or whose legal representatives could) most quickly file applications as soon as a program opened. We can hope that IRCC will make clear, before July 16, which approach they will be following for this new program.

A third open question is whether there will be any requirement linked to the length of remaining time in H-1B status available to an applicant. The announcement and IRCC backgrounder do not suggest so, but the IRCC webpage guidance to high-skilled workers more generally, which contains a subsection on the “H-1B visa holders” program, says to “Choose this program if . . . your United States work visa is expiring soon.” Hopefully, this language may be just a prediction regarding who might find the program attractive, rather than a requirement of imminent H-1B expiration. Such a requirement could screen out relatively new H-1B nonimmigrants who would rather have an open work permit in Canada accompanied by work permits for their family members, and there is no obvious policy reason for such a requirement.

The official legal basis for the new work permits, which will likely be in the form of a temporary public policy or perhaps a Ministerial Instruction, has not yet been made public by IRCC. Once the official temporary public policy or Ministerial instruction is published, it should be possible to answer the open questions discussed above. A sequel to this blog post will likely be published at that time.

Cyrus Mehta & Kaitlyn Box*

Making Sense of USCIS’s Twitter Posts on Applying for Jobs or Attending Interviews While in Visitor Visa Status

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By Cyrus D. Mehta and Kaitlyn Box*

On April 11, 2023, USCIS’s  post on Twitter  created a great deal of interest and some confusion. The tweet indicated that nonimmigrants can apply for jobs or attend job interviews while in B-1 or B-2 status. The post was the subject of numerous press articles, with some incorrectly interpreting it as a change in USCIS policy or authorization for B-1/B-2 visa holders to work in the United States.

The tweet read as follows: “Many people have asked if they can look for a new job while in B-1 or B-2 status. The answer is, yes. Searching for employment and interviewing for a position are permissible B-1 or B-2 activities.”

The USCIS clarified its response in a series of three additional tweets stating:

“If you are in B-1 or B-2 status, please remember you may not engage in employment within the domestic labor market (also known as “local labor for hire”) while in B-1 status or engage in any employment while in B-2 status”

“Before beginning any new employment, a petition and request for a change of status from B-1 or B-2 to an employment-authorized status must be approved, and the new status must take effect.”

“Alternatively, if the change of status request is denied or the petition for new employment requested consular or port of entry notification, the individual must depart the U.S. and be admitted in an employment-authorized classification before beginning the new employment.”

A screen shot of these tweets, the first of which received over 130,000 views, is reproduced below.

 

USCIS Tweet

 

USCIS also linked to a page on its website entitled “Options for Nonimmigrant Workers Following Termination of Employment” that includes the following guidance:

Q: Can I look for a new job while in B-1 or B-2 status?

A: Yes, searching for employment and interviewing for a position are permissible B-1 or B-2 activities. By statute, however, you may not engage in employment within the domestic labor market (also known as “local labor for hire”) while in B-1 status or engage in any employment while in B-2 status. Before beginning any new employment, a petition and request for a change of status from B-1 or B-2 to an employment-authorized status must be approved, and the new status must take effect. Alternatively, if the change of status request is denied or the petition for new employment requested consular or port of entry notification, the individual must depart the United States and be admitted in an employment-authorized classification before beginning the new employment.

In a previous blog, we suggested that terminated noncitizen workers who needed to remain in the U.S. beyond the 60-day grace period could file a change of status to B-2.

9 FAM 402.2-5(B) lists activities that a B-1 visitor may engage in in the U.S., which include negotiating contracts, consulting with business associates, and participating in conferences or seminars. Visitors for pleasure may enter the United States for purposes including tourism, making social visits to friends or relatives, receiving medical treatment, and participating in social or religious activities pursuant to 9 FAM 402.2-4(A). The full scope of activities that are permissible under a B-1 or B-2 are often broader, however.  So long as a noncitizen demonstrates the requisite ties to their home country and nonimmigrant intent, entering the U.S. on a B-1 or B-2 visa to attend interviews or apply for jobs was permissible even before USCIS issued its recent guidance on Twitter.

While it is commendable that the USCIS has correctly outlined this option for nonimmigrants who have been laid off, it remains to be seen how CBP will react if B-1/B-2 visa holders state that the purpose of their trip is attending a job interview or searching for employment in the U.S. CBP has broad powers to place visitors in expedited removal proceedings without a hearing if they determine that the person’s visit to the US is not consistent with the visitor admission. They can either initiate expedited removal if there is allegedly fraud or misrepresentation pursuant to INA 212(a)(6)(C) or lack of entry documents under INA 212(a)(7). CBP officials have been known to search phones and other electronic devices for hints that the person is looking for a job in the US and may not return timely.  Other less-common uses of the B-1 visa, such as “B-1 in lieu of H-1B”, which allows  individuals who would otherwise qualify for an H-1B visa to the United States for a limited period of time, have been the subject of ambiguity and legal challenges, as discussed in a prior blog.

The State Department could also interpret this differently from the USCIS and may deny a visitor visa to one who wishes to attend interviews or apply for jobs in the US. A US consular officer also has broad powers to refuse a visa under INA 214(b) that presumes that most nonimmigrant visa applicants are immigrants unless they can establish that they are entitled to the nonimmigrant status.

It would be nice if the USCIS, CBP and DOS coordinate the messaging on attending interviews or looking for jobs while someone is in the US as a visitor, but such coordination between the three agencies is rare and maybe it is best for potential visitors to obtain appropriate legal advice rather than rely on the USCIS Twitter feed  and be prepared to advocate to the  relevant authority that they will remain bona fide visitors even if they will be looking for jobs or attending interviews.

[This blog is for informational purposes and should not be relied on as a substitute for legal advice]

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Texas’s Legal Challenge to Biden’s Humanitarian Parole Program is Both Flawed and Inhuman

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By Cyrus D. Mehta and Kaitlyn Box*

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukranian and Venezuelan nationals will allow 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

But alas, on January 24, 2023, Texas and nineteen other states filed a suit challenging the Biden administration’s implementation of the program. The plaintiff states argue that the “Department’s parole power is exceptionally limited, having been curtailed by Congress multiple times, and can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. The complaint further alleges that the program “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so”, and asserts that the Biden Administration failed to engage in notice-and-comment rulemaking under the Administrative Procedure Act (APA).

Notably, the complaint refers to individuals entering the United States under humanitarian parole as “illegal aliens”. Page 3 of the complaint, for example, asserts that “[t]he Department does not have the authority to invite more than a third of a million more illegal aliens into the United States annually as it has announced with this program.” However, the plaintiff states’ characterization of parolees as “illegal aliens” is entirely erroneous. INA § 212(d)(5) provides the legal authority for humanitarian parole, Biden’s expansion of the program notwithstanding. This provision authorizes humanitarian parole on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit” for individuals who present neither a security risk nor a risk of absconding. Because humanitarian parole is a longstanding program authorized by the INA, individuals who enter the U.S. pursuant to this program cannot thus be accurately characterized as “illegal aliens”.

The complaint also refers to the Migration Policy Institute (MPI) Noncitizen Respondents in U.S. Census Bureau Survey Data, which provides demographic information about unauthorized immigrants living in each state. The complaint relies on this data to support the idea that the humanitarian parole program would impose a financial burden on the plaintiff states due to the costs involved in supporting undocumented immigrants. However, the MPI survey includes TPS recipients, DACA recipients, and individuals who entered the United States without authorization but have since applied for asylum. The MPI figures regarding unauthorized populations each state include noncitizens who may also be authorized to remain in the U.S., and may have work authorization, even if they were previously undocumented. The complaint’s reliance on this data to illustrate the burden that the humanitarian parole program would impose on states thus appears to be misplaced.

Further, the complaint asserts that the humanitarian parole program violates the requirements laid out in INA § 212(d)(5) that the benefit be granted only “on a case-by-case basis for urgent humanitarian reasons or for a significant public benefit”. However, even a narrow reading of this provision does not indicate that there is a numerical limit on the benefit. Even if a large group of noncitizens, in this case 360,000 individuals, are granted humanitarian parole, this does not mean that the benefit will not be granted on a case-by-case basis, or that the justifications of “urgent humanitarian reasons” or “a significant public benefit” will not be present. Each applicant can still be reviewed on an individual basis, and their applications can denied if they do not meet the requirements for humanitarian parole.

The humanitarian parole program is based on the Uniting for Ukraine program, which has not been challenged by this lawsuit. The programs bear many similarities, as well. The Uniting for Ukraine program also requires that individuals who are granted parole can be supported by a U.S. sponsor who files an I-134. We thus question whether Texas and the other plaintiff states’ true objection is not a perceived violation of INA § 212(d)(5), but rather the fact that the expanded program will benefit Cuban, Nicaraguan, Haitian, and Venezuelan noncitizens rather than Ukrainians. Other humanitarian programs intended to benefit large groups of noncitizens have also not been challenged, including the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the U.S. pursuant to INA § 212(d)(5), and the Filipino World War II Veterans Program, which also benefits direct and derivative beneficiaries of I-130 petitions.

In addition to being consistent with the “case by case basis” requirement, there is clearly an urgent humanitarian reason for this program given the large number of people from these countries who have been coming to the U.S. to seek asylum. The humanitarian parole program provides an orderly path for people from these countries to come to the U.S. legally without being aided by smugglers and without needing to take perilous paths to the U.S. that can result in death. Though not without flaws, namely the fact that it stands to be implemented alongside the draconian Title 42 policy, the program provides a model for paroling large groups of noncitizens into the U.S. in an organized manner and providing them with work authorization. Even if the Biden administration’s humanitarian parole program is ultimately struck down, the Biden administration has the authority to continue to grant the benefit to individuals pursuant to INA § 212(d)(5). It is hoped that the Supreme Court will ultimately uphold the federal district court’s  lifting of Title 42 restrictions in this scenario, and allow noncitizens to apply for asylum under Title 8, pursuant to the Immigration and Nationality Act, and be able to utilize the CBP One app to schedule an appointment to make a claim for asylum at the border in an orderly manner.

Texas has been serially challenging Biden’s executive actions that have been designed to provide relief to hundreds of thousands of people. These lawsuits are designed to hurt human beings from DACA recipients to those fleeing persecution under the new humanitarian program. While plaintiffs claim that the administration has no authority to implement these programs on a mass scale, they have never claimed that exercising discretion on an individualized basis is unlawful. If it is lawful for the government to exercise discretion in paroling one person into the U.S. or deferring the removal of that person, then it seems illogical to deny the administration the ability to exercising its discretion in relation to a large group. How big should the size of the group be before the government’s valid exercise of discretion is no longer deemed valid? Is the Uniting for Ukraine program that has remained unscathed thus far too big or the right size?  According to a Migration Policy Report, “[m]idway through its term,  the Biden administration, midway through its term,  has notched some significant advances. The quiet transformation of immigration enforcement in the U.S. interior, use of parole and other mechanisms to grant humanitarian protection, and restoration of legal immigration to pre-pandemic levels will have a lasting legacy.”  It is hoped that at some point five justices in the Supreme Court will see through the absurdities of these lawsuits and preclude states like Texas from running and ruining federal immigration policy!

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Tension Between State Wage Transparency Laws and Labor Certification Recruitment

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By Cyrus D. Mehta and Kaitlyn Box*

In the past year, several states and jurisdictions across the U.S. have begun enacting wage transparency laws, and others are poised to go into effect in the new future. Aimed at increasing wage transparency for job seekers, these laws typically require that job postings disclose the salary that the employer plans to offer applicants. Colorado’s law went into effect on January 1, 2021, and requires employers with at least one employee in Colorado to list the applicable hourly wage or salary for the position. New York City’s law went into effect on November 1, 2022, and requires employers with 4 or more employees, at least 1 of which is located in New York City, to disclose wage information in job advertisements. Washington State and California have enacted wage transparency laws effective January 1, 2023, with both applying only to employers with 15 or more employees. Other jurisdictions are considering implementing similar legislation in future. Interestingly, some wage transparency laws could be interpreted to apply even to remote positions that could be performed from one of the impacted jurisdictions, even if the employer does not currently have a presence in that state. Penalties in New York, for example, can require offending employer to “pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief”, although the city will not assess a penalty on first time offenders who correct the violation within 30 days of receiving notice. Civil penalties of $250,000 per violation can be assessed on repeat offenders. Although Colorado indicated that it would not enforce its wage transparency law against PERM recruitment, it has not formalized this guidance in writing, and other jurisdictions have not offered similar assurances

In the permanent labor certification (PERM) context, these laws present a host of new issues for employers to consider. The PERM regulations 20 CFR §656.17 and 20 CFR §656.18 require only the Notice of Filing (NOF) to list the wage or wage range offered for the position, but employers may now find that they are required to disclose a salary range on newspaper and website advertisements that would typically not have included this information. Although Colorado indicated that it would not enforce its wage transparency law against PERM recruitment, other jurisdictions have not offered similar assurances. See AILA Doc. No. 21040231. Interestingly, some jurisdictions’ wage transparency laws may apply to advertisements for remote positions that could be performed from that location, even if the employer otherwise has no presence or current employees in the jurisdiction.

Further complications arise when an employer wishes to list a salary range in its PERM recruitment in order to comply with a state or local wage transparency law, and the lower end of that falls below the prevailing wage determined by the Department of Labor (DOL) or if the wage range in the advertisement materials does not conform with the wage stated in the Notice of Filing. This scenario may be compliant with the relevant wage transparency law, but it could create issues in the PERM context. As yet, the DOL has not issued any guidance on the interaction between wage transparency laws and PERM regulations, and the Board of Alien Labor Certification Appeals (BALCA) has not directly addressed this issue. In the meantime, analyzing how the DOL has viewed wage ranges that partially fell below the prevailing wage can provide helpful guidance.

As mentioned above, the PERM regulations do not require recruitment to list a salary at all, with the exception of the NOF. 20 CFR § 656.10(d)(4) states: “If an application is filed under § 656.17, the notice must contain the information required for advertisements by § 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section”. Employers who do list a wage or wage range in advertisements in newspapers or professional journals are required to ensure that these advertisements do “[n]ot contain a wage rate lower than the prevailing wage rate” pursuant to 20 CFR § 656.17(f)(5). Furthermore, 20 CFR § 656.17(f)(7) states that that advertisement shall “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

If a wage range is indicated in the advertisements, it is important that the Notice of Filing (NOF) also contains the same wage range. BALCA has held that employers violate 20 CFR § 656.17(f)(7) if the NOF contains a wage lower than the wage offered the foreign worker. In Gallup McKinley County Public Schools, 2016-PER-00646 (BALCA April 16, 2021), the wage range offered to a Middle School Teacher was $50,273 to $57,402. The NOF identified the wage as $52,000 per year. The BALCA upheld the Certifying Officer’s denial since the wage range suggested that the foreign national employee would be paid a wage up to $57,402 and higher than the wage indicated in in the NOF. BALCA reasoned that because the NOF stated a wage lower than the highest wage in the wage range, the “NOF did not disclose that opportunity to the Employer’s other workers or other interested persons who may have viewed the NOF.”

The employer cited a pre-PERM case University of North Carolina, 1990-INA-00422 (June 9, 1992) establishing that 20 CFR § 656.17(f) was satisfied if the wage offered is no less than the wage offered at the time of the foreign worker’s initial hire. In University of North Carolina, the university indicated a salary of $23,100 in all of its advertisements for a research associate position, which exceeded the prevailing wage determination and reflected the noncitizen’s salary at the time. By the time the PERM application itself was filed, though, the noncitizen’s salary had risen to $30,000. BALCA overturned the denial of the PERM application, reasoning that 20 CFR § 656.21(g)(8) requires the employer to advertise a wage that is no less than what the noncitizen was offered at the time of their initial hire, not the offered salary at the time the PERM application is filed. However, in Gallup KcKinley, BALCA held that subsequent panels have rejected the reasoning in University of North Carolina as US workers could potentially pass on the job opportunity because of the difference in the lower wage in the advertisement and the higher wage privately offered to the noncitizen. See, e.g., Sensus Metering Systems, 2010-PER-00849 (July 20, 2011). In Sensus Metering Systems, the employer listed a higher offered wage on the ETA 9089 than the NOF, and the employee had only gained about 7 months of additional experience with the employer since the position was advertised, rather than 3-5 years as in University of North Carolina. BALCA has also upheld denials of PERM applications where the lower end of a wage range as listed in the advertisements fell below the salary offered to the noncitizen on the ETA 9089. See Om Shri Ganesh, LLC, 2016-PER-00024 (July 28, 2016); Red Apple Child Dev. Ctr., 2009-PER-00472 (June 29, 2010); Lakeview Farms, 2011-PER-01679 (Sept. 4, 2014); Charles E. Churchwell, 2012-PER-01662 (Mar. 2, 2016). Sensus Metering Systems and its progeny illustrate the importance of ensuring that a consistent offered wage range is listed across the NOF, advertisements, and the PERM application itself.

In cases where recruitment has inadvertently included a salary range that fell below the prevailing wage, there have been a few decisions where BALCA has been relatively forgiving. In Re IAC Search & Media, Inc., BALCA Case No.: 2011-PER-00845 (May 2, 2012), for example, involved an employer who inadvertently listed a salary lower than the prevailing wage in the ETA Form 9089 and in a website advertisement. BALCA held that employer had actually offered a salary that exceeded the prevailing wage, so the typographical error was not grounds for denial of the PERM. Similarly, in Nancy Adelman, 2011-PER-02464 (BALCA 2011), BALCA overturned a denial of a PERM application on the grounds that the “prevailing wage rate and validity period listed in Section F of the Employer’s ETA Form 9089 did not match the information contained in the PWD submitted by the [e]mployer” as part of an audit response. BALCA held that a labor certification cannot be denied due to a typographical error unless the result is a violation of the PERM regulations, and no violation had occurred here since the offered wage had actually exceeded the prevailing wage. However, in Marcel Cleaners, Inc., 2009-PER-00395 (BALCA February 2010), BALCA affirmed the denial of a labor certification when the job order listed a wage range, the lower end of which was less than the prevailing wage. BALCA reasoned that 20 CFR § 656.17(f)(5) expressly specifies that advertisements placed in newspapers and professional journals must not contain a wage rate lower than the prevailing wage.

Finally, employers must also be careful about State Workforce Agency job orders whose algorithms may require a different formulation of the wage. Thus, a wage range of $0-$70,000 (depending on experience) will not be in compliance with the regulation. This issue also came up in Gallup McKinley County Public Schools, although BALCA focused its denial on the discrepancy between the wage range in the advertisement and in the single wage indicated in the NOF.  Practitioners can take some comfort in  A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012) where BALCA held that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation in the event of a DOL audit of the labor certification application.

Wage ranges in labor certification recruitment always add more complexity and risk to an already hyper technical process.   The DOL will likely continue to deny labor certification if there are discrepancies, such as when the salary range falls below the prevailing wage at the lower end (notwithstanding some BALCA decisions going the other way) or if the wage range stated in the advertisements is different from the wage reflected in the NOF. The DOL has said that employers must comply with PERM rules. If employers need to comply with local wage transparency laws it would be prudent for the employer to comply with those laws too during labor certification recruitment but DOL is not concerned about what employers must do under local laws. Employers need to now tread even more carefully when they are compelled to state a wage range under state transparency laws taking into account all the relevant considerations regarding wage ranges established under DOL rules and BALCA decisions.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.