Analyzing the Definition of a Specialty Occupation Under INA 214(i) to Challenge H-1B Visa Denials

In recent denials of H-1B petitions, the USCIS has been taking the position that the occupation for which H-1B classification is sought must require a degree in the specific field.  This position runs contrary to the definition of a specialty occupation. An occupation that may require a degree is diverse fields may also qualify.  Denials resulting in the wholesale reading out of qualifying occupations will likely continue when H-1B cases selected under the FY 2019 cap are adjudicated. A careful analysis of the statutory definition of specialty occupation provides a good starting point to challenge such denials.

Under INA § 214(i)(1) a “specialty occupation” is  defined as an occupation that requires

–Theoretical and practical application of a body of highly specialized knowledge, and

-Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

The regulation at 8 CFR § 214.2(h)(4)(ii) parrots INA § 214(i)(1) by defining “specialty occupation” as follows, except that the regulation requires a bachelor’s degree in “a” specific specialty while the statute requires a bachelor’s degree in “the” specific specialty, which may be a distinction without a meaningful difference:

Specialty occupation means an occupation which requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

At issue is whether the occupation, in order to qualify for an H-1B visa, must require a bachelor’s degree in the specific specialty. A lawyer would qualify as a specialty occupation as only a degree in law would allow entry into the occupation. But INA § 214(i)(1) reads more broadly. It also ought to encompass a marketing analyst, even though this occupation may require a bachelor’s degree in diverse fields such as marketing, business or psychology. Unfortunately, the USCIS does not always agree. Is the USCIS correctly interpreting INA §214(i)(1).

The answer lies with how the phrase in the parenthetical “or its equivalent” is interpreted in INA § 214(i)(1). In Tapis International v INS, 94 F. Supp. 2d 172, the court held that a “position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass …….various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.” The phrase “or its equivalent” in INA 214(i)(1) is distinct from what the H-1B beneficiary is required to possess to qualify for specialty occupation.  INA 214(i)(2) sets forth separate requirements, such as completion of a bachelor’s degree or experience in the specialty through progressively responsible positions relating to the specialty. Therefore, the phrase “or its equivalent” actually broadens the requirement for a bachelor’s degree is a specific specialty to encompass “not only skill, knowledge, work experience, or training ….. but also various combinations of academic and experience based training.” See Tapis, supra. Thus, if an occupation requires a generalized degree, but specialized experience or training, it should still qualify as a specialty occupation. The AAO often cites Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007) for the proposition that a general purpose degree is not sufficient to meet the definition of a specialty occupation. In Royal Siam Corp, the First Circuit stated that a degree requirement in a specific specialty-one that relates directly to the duties and responsibilities of a particular position-is given more weight by the agency than a requirement for a generic degree. Thus, if the position carefully outlines the specialized degrees or experience that are essential to perform the duties of the position duties, it should be distinguished from the holding in Royal Siam Corp.

If USCIS does not consider this interpretation of “or equivalent”, it would be impossible to classify most occupations for H-1B classification. Under Residential Finance Corp. v. USCIS, 839 F. Supp.2d. 985(S.D. Ohio 2012), the court found that “[t]he knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation specific majors. What is required is an occupation that requires highly specialized knowledge and a prospective employee who has obtained the credentialing indicating possession of that knowledge.” The AAO has accepted this finding and has added that when there are disparate fields listed as minimums into the field, the petitioner must establish “how each field is directly related to the duties and responsibilities of the particular position such that the required body of highly specialized knowledge is essentially an amalgamation of these different specialties.” Matter of N-L-, Inc. AAO August 3, 2016.

Accordingly, there is a clear basis to challenge a USCIS denial on grounds that the occupation does not always require a degree in the specific specialty or that the degree may be too generalized, especially where an employer has taken pains to connect the specialized duties with the degree requirement. Indeed, 8 C.F.R. § 214.2(h)(4)(iii)(A) is further  consistent with INA § 214(i) as it provides several ways in which a petitioner can establish that the position can qualify as a specialty occupation.  Those criteria are:

(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

(2) The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

(3) The employer normally requires a degree or its equivalent for the position; or

(4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h)(4)(iii)(A).  The petitioner is required only to show that the position meets one of the four criteria. Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000), which the USCIS also relies on when denying H-1B petitions,   held that the four criteria in 8 CFR § 214.2(h)(4)(iii)(A) were only necessary conditions, but not necessary and sufficient conditions to establish that the occupation is a specialty occupation. In other words, an employer may under prong 3 require a bachelor’s degree for an occupation that ordinarily never requires a degree, but that may still not meet the statutory definition of a specialty occupation under INA § 214(i)(1). On the other hand, if the employer provides probative evidence of its need for a bachelor’s degree, and that its past hiring practices were also consistent with that need, as well as consistent with industry standards, the USCIS ought to accept the employer’s justification for a bachelor’s degree in a specialized field under the preponderance of evidence standard.

For a petition that has a proffered position of computer systems analyst, for example, USCIS has been selective in its reading of the Occupational Outlook Handbook in order to justify a denial on the ground that a bachelor’s degree in a computer science is not always a requirement. A denial often focuses on the following language in the OOH:

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.

(…)

Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Petitioners and their attorneys should closely review the OOH themselves rather than rely on the few sections USCIS provides in its denial. If attorneys do this, they will realize that USCIS chooses to leave out an important section of the educational requirements that “[m]ost computer systems analysts have a bachelor’s degree in a computer-related field.” USCIS ignores this language in order to support its faulty determination that a bachelor’s degree in a specific specialty, or its equivalent, is not normally the minimum requirement for the position and that the degree requirement is not common to the industry under the first and second criteria of 8 CFR §214.2(h)(4)(iii)(A). However, where the regulation uses the words “normally” and “common” it would be erroneous to determine that a proffered position is not a specialty occupation merely because not all employers require a bachelor’s degree. If most employers require a bachelor’s degree, this should be sufficient to meet the statutory definition of a specialty occupation.

Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531, at *30-31 (S.D.N.Y. Sep. 29, 2017) emphasized that if “most” computer systems analysts have a bachelor’s degree in the appropriate field, as is provided in the OOH, then it follows that the degree is “normally” required for the position, and thus, the position qualifies as a specialty occupation.” In (Redacted Decision) 2012 WL 4713226 (AAO February 08, 2012), and  consistent with the Next Generation Tech reasoning, the AAO has explained in at least 2,415 unpublished decisions that “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations.” For computer scientists, for example, the OOH provides that “[m]ost computer and information research scientists need a master’s degree in computer science or a related subject, such as computer engineering.” This illustrates that, provided the specialties are closely related, a minimum of a bachelor’s degree or higher in more than one specialty satisfies the “degree in the specific specialty” requirement of INA § 214(i)(1)(8). In reversing the CSC’s denial of a petition, Residential Finance said that the “premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.”

It is clear that both USCIS and the courts have repeatedly held that where most employers in an occupation require a bachelor’s degree in a narrow range of majors, or a related major, or its equivalent, it is a specialty occupation. In situations where the OOH is unhelpful, such as with respect to a Food Service Manager, where the OOH makes clear that a bachelor’s degree is not always required to enter the field, the employer must take pains to even further describe the specialized and complex duties of the position within the context of the employer, and potentially rely on the fourth prong of 8 CFR § 214.2(h)(4)(iii) for establishing the specialty occupation. The fourth prong provides that “the nature of specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. See 8 CFR § 214.2(h)(4)(iii)(4); Fred 26 Importers, Inc. v. DHS, 445 F. Supp.2d 1174 (C.D. Cal. 2006)(although agreeing that the degree must directly relate to the position where an HR manager did not have a degree in HR management, reversed AAO for ignoring evidence, including expert opinion, that the duties were specialized and complex). Indeed, 8 CFR §214.2(h)(4)(iii)(A)(4), arguably like in Tapis, recognizes that INA 214(i)(1) requires that the specialty occupation encompasses a bachelor’s degree in the specific specialty “or its equivalent”.

INA §214(i)(1) clearly provides for a broader interpretation of a specialty occupation. The USCIS is erroneously interpreting this provision when denying H-1B cases. The denials have become more rampant under President Trump’s Buy American Hire American Executive order, and we have blogged extensively on this unfortunate trend, herehere and here.  There is a good basis to challenge these H-1B denials based on the statutory provision itself.

Fearlessly Challenging H-1B Visa Denials Through Litigation

By Cyrus D. Mehta and Eleyteria Diakopoulos

As we have blogged about extensively in the past, President Trump’s “Buy American and Hire American” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year (FY) 2019 H-1B Cap filing season has been to rely on the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) to arbitrarily deny H-1B visa petitions for Information Technology (IT) positions, such as computer systems analysts. In RFEs and denial decisions, USCIS states that they recognize the OOH as an “authoritative source on the duties and educational requirements” of a variety of occupations, and has used the OOH’s general statements on such requirements to deny H-1B petitions for failing to establish that a bachelor’s degree in a specific specialty is the normal minimum requirement for entry into the position, despite statements in the OOH to the contrary. In addition, USCIS recently put out a statement entitled Combatting Fraud and Abuse in the H-1B Visa Program expressing an intent to continue to target H-1B dependent employers in the IT industry who assign H-1B workers at client sites.

One should expect the same sort of H-1B carnage like last year. No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court.

USCIS has typically based these types of denials on claims that the proffered positions fail to qualify under any of the specialty occupation criteria listed in 8 CFR § 214.2(h)(4)(iii)(A). The USCIS has also challenged H-1Bs based on allegedly inappropriate wage levels, but the main concern is the USCIS entirely reading out acknowledged specialty occupations from the law.

As background, in order for a petitioner to hire a foreign worker in a specialty occupation under the H-1B visa program, the proffered position must meet the regulatory definition as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 8 CFR § 214.2(h)(4)(ii). This definition is met by satisfying at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h)(4)(iii)(A) (emphasis added).

For a petition that has a proffered position of computer systems analyst, for example, USCIS has been selective in its reading of the OOH in order to justify a denial. A denial often focuses on the following language:

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.

(…)

Although many computer systems analysts have technical degrees, such a degree is not always a requirement. Many analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Petitioners and their attorneys should closely review the OOH themselves rather than rely on the few sections USCIS provides in its denial. If attorneys do this, they will realize that USCIS chooses to leave out an important section of the educational requirements that “[m]ost computer systems analysts have a bachelor’s degree in a computer-related field.” (emphasis added). USCIS ignores this language in order to support its faulty determination that a bachelor’s degree in a specific specialty, or its equivalent, is not normally the minimum requirement for the position and that the degree requirement is not common to the industry under the first and second criteria of 8 CFR §214.2(h)(4)(iii)(A). However, where the regulation uses the words “normally” and “common” it would be erroneous to determine that a proffered position is not a specialty occupation merely because not all employers require a bachelor’s degree. If most employers require a bachelor’s degree, this should be sufficient to meet the statutory definition of a specialty occupation. If a petitioner receives a denial of an H-1B petition based on this same reasoning, which is contrary to the law, mounting a challenge in federal court may be worth considering. Petitioners are gun shy about suing the government in federal court out of fear that the government may retaliate against them on other cases. That may not be necessarily so as one has anecdotally heard that the USCIS is terrified of litigation as it creates more work and could also result in a precedent that may be unfavorable for the government’s position in future cases. This is not surprising, however, given the repeated failure of USCIS to appropriately interpret the law in accordance with the INA. In reality, due to the quota system on which USCIS operates, the vast majority of USCIS officials do not care and do not have time to retaliate against litigious petitioners. Indeed, USCIS may pay more attention to cases that may potentially be litigated and give the benefit of doubt to the petitioner over a close call.

Recently, attorney Michael E. Piston, a fearless litigator, on the behalf of petitioner Delta Information Systems, bypassed the AAO and filed a complaint in the U.S. District Court for the Central District of California with this argument pursuant to §10b of the Administrative Procedure Act (APA), 5 U.S.C. § 702. In the complaint, plaintiffs Delta Information Systems, Inc. (Delta) and Srinivasa Narasimhalu allege that the Director of the California Service Center (CSC) of the USCIS erred in denying Delta’s Form I-129, Petition for Nonimmigrant Worker as a temporary worker in a specialty occupation (H-1B) on behalf of Mr. Narasimhalu and in denying Mr. Narasimhalu’s application to extend his H-1B nonimmigrant status in the United States. Plaintiffs ask the court to hold unlawful and set aside these decisions of the CSC Director that were arbitrary, capricious, and not in accordance with the law. Mr. Narasimhalu is a native of India who Delta lawfully employed as a computer professional from November 1, 2011 to February 27, 2018 with the authorization of USCIS. His education and experience has been evaluated as the equivalent of a Bachelor’s Degree in Computer Information Systems.

The plaintiffs first argue that USCIS erroneously determined that no employer-employee relationship existed between Delta and Mr. Narasimhalu. In fact, Mr. Narasimhalu has been an employee of Delta, with USCIS authorization, for over six years, and it is undisputed that the sole right to control Mr. Narasimhalu’s work activities belongs to Delta. This ground is frequently invoked by the USCIS when the H-1B worker is placed at a third party site.  In its decision, USCIS concedes that for purposes of H-1B visa classification, the terms “employer,” “employed,” “employment,” or “employer-employee relationship” are undefined. The complaint notes that because these terms are undefined by the agency, it is necessary to look to the common law definition. Citing to Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003) and Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992), the complaint explains that in determining whether one is an employee, the consideration is the hiring party’s right to control. Citing to Chin v. United States, 57 F.3d 722, 725 (9th Cir. 1995), the complaint argues that the decision was not in accordance with the law to the extent that it was premised upon the assertion that Delta had to actually direct or control the work of Mr. Narasimhalu rather than merely having the right to control his work. In fact, USCIS in its decision observes that a “United States employer” is defined as one who “has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee …” (emphasis added). Consistent with Clackamas, Darden, and Chin, the fact that an employer “may” control the work of an employee, instead of “must,” proves that it is only the right to control rather than the actual exercise of the right that is determinative of an employer-employee relationship. In Mr. Narasimhalu’s case, his contract with Delta expressly provides that Delta has the complete right to control his work. Additionally, the entity controlling the location where Mr. Narasimhalu will perform his work, Nabco Entrances, Inc., disaffirms having any right to control Mr. Narasimhalu’s work and fully corroborates that Delta has the complete right to control Mr. Narasimhalu’s work and will control his work. Thus, it was arbitrary and capricious to decide that Delta lacks an employer-employee relationship with Mr. Narasimhalu.

The plaintiffs also argue that USCIS erred in concluding that the job of computer systems analyst was not a specialty occupation where it is undisputed that most computer systems analysts have a bachelor’s degree in a computer related field. As a reminder, 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) provides that if a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position, then that position qualifies as a specialty occupation. Citing to Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531, at *30-31 (S.D.N.Y. Sep. 29, 2017), the complaint emphasizes that if “most” computer systems analysts have a bachelor’s degree in the appropriate field, as is provided in the OOH, then it follows that the degree is “normally” required for the position, and thus, the position qualifies as a specialty occupation. Furthermore, in its decision, USCIS pointed out, as a basis for its denial, that “computer system[s] analysts have degrees in a wide range of unrelated degrees including computer related degrees, business degrees and liberal arts degrees.” Citing to (Redacted Decision) 2012 WL 4713226 (AAO February 08, 2012), the complaint notes that consistent with the Next Generation Tech reasoning, the AAO has explained in at least 2,415 unpublished decisions that “USCIS regularly approves H-1B petitions for qualified aliens who are to be employed as engineers, computer scientists, certified public accountants, college professors, and other such occupations.” For computer scientists, for example, the OOH provides that “[m]ost computer and information research scientists need a master’s degree in computer science or a related subject, such as computer engineering.” (emphasis added). This illustrates that, provided the specialties are closely related, a minimum of a bachelor’s degree or higher in more than one specialty satisfies the “degree in the specific specialty” requirement of INA § 214(i)(1)(8). In reversing the CSC’s denial of a petition, a U.S. District Court said that the “premise that the title of a field of study controls ignores the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.” Residential Fin. Corp. v. United States Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). The complaint makes clear that both USCIS and the courts have repeatedly held that where most employers in an occupation require a bachelor’s degree in a narrow range of majors, or a related major, or its equivalent, it is a specialty occupation. Since it is undisputed that most computer systems analysts hold degrees in a computer related area, USCIS did not act in accordance with the law in deciding the position not to be a specialty occupation.

Attorneys who also face this obstacle should similarly challenge an H-1B denial directly in federal court in order to avoid wasting any time. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the AAO and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Some examples of recent successful litigation include Next Generation Tech., Inc. v. Johnson, No. 15 cv 5663 (DF), 2017 U.S. Dist. LEXIS 165531 (S.D.N.Y. Sep. 29, 2017) and Raj & Co. v. U.S. Citizenship & Immigration Servs., 85 F. Supp. 3d 1241 (2015). In Next Generation Tech., the court failed to see a rational connection between the evidence in the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS’s conclusion that “computer programmers are not normally required to have a bachelor’s degree.” 2017 U.S. Dist. LEXIS 165531 at *20-21.The Court found that USCIS did not present a fair reading of the OOH and failed to satisfactorily explain its determination that a computer programmer was not a specialty occupation. Id. at *21-22. In Raj & Co., the Court found that USCIS abused its discretion in determining that a position for a market research analyst did not come within the first criterion of the regulation of a specialty occupation. 85 F. Supp. 3d at 1246. The Court reasoned that USCIS impermissibly narrowed the plain language of the statute when it concluded that a bachelor’s degree being typical did not require the degree as a minimum for entry into the occupation. Id. at 1247. Even if the USCIS invokes the lack of an employer-employee relationship as a ground for denial when an H-1B worker is assigned to a client site, one should point out that the goal of USCIS’s latest policy memo concerning third party relationships is to exercise more scrutiny on contractual arrangements with third parties rather than deny the legitimacy of such an arrangement. The USCIS in its policy memo acknowledges that such arrangements may be a legitimate and frequently used business model under the H-1B visa program. These cases show that it is unjustified to deny highly qualified foreigners the opportunity to work in specialty occupations in the United States based on a narrowed reading of the OOH. Hopefully, with continued pushback, the federal courts will put an end to such arbitrary denials.

Another reason to sue is that advocacy is no longer effective with the Trump administration. Although there are good policy arguments to approve legitimate H-1B visa petitions in a full employment economy as it makes U.S. employers more competitive, resulting in further jobs, they make no difference if high level immigration officials are driven by another agenda based on white nationalism and xenophobia. The same officials who spend their time conjuring up restrictive policies for purposes of denying H-1B petitions will need to focus their efforts in defending litigation within an agency with a finite budget. Moreover, challenging a denial under the APA is not as time consuming as it seems as there is generally no discovery, depositions, or interrogatories, although there may be some exceptions. It requires drafting a complaint, researching and writing a motion for summary judgment, reviewing and opposing the government’s motion for summary judgment and drafting a reply brief. Business immigration lawyers and their clients have generally refrained from suing. This is understandable as litigation is time consuming and a federal court may still give deference to the government’s reasoning behind a denial. We can try to overcome denials by responding to RFEs and appealing to the AAO. But after that, if you still want to show that you are right and the government has gotten it completely wrong, then it may be time to sue the government. Federal judges may have a different reaction than the typical USCIS adjudicator. They may be shocked and viscerally angry at the way the USCIS is interpreting the law and may just about reverse the denial!

Update: After the blog was posted, it was noticed that the complaint in Delta Information Systems, Inc. v. USCIS had been voluntarily dismissed. Michael Piston has informed the authors that a new complaint will be refiled with the beneficiary as the plaintiff. Further Update: On April 3, 2018, the complaint was refiled on behalf of the Beneficiary, Mr. Narasimhalu, as the plaintiff. The complaint asserts that plaintiff has standing to bring an action where he suffered an injury in fact, there is a causal connection between the injury and the conduct complained of, and it is likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

Eleyteria Diakopoulos  is a student at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC. The authors also thank Sophia Genovese and David Isaacson for their assistance.

The Draconian Documentation Regime For Third Party Arrangements in H-1B Visa Petitions

The attacks on the H-1B visa program by the Trump administration continue unabated. On February 22, 2018,  U.S. Citizenship and Immigration Services (USCIS)  published a policy memorandum entitled Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites (Third-Party Memo) clarifying that USCIS may request detailed documentation to ensure that a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

USCIS said this clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. “This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location,” USCIS said. The guidance explains that for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

  • The beneficiary will be employed in a specialty occupation; and
  • The employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period.

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition, the guidance states. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

In a related news release to the Third-Party Memo, USCIS said the updated policy guidance aligns with President Trump’s “Buy American and Hire American” Executive Order and directive to protect the interests of U.S. workers. “Employment-based petitioners who circumvent the worker protections outlined in the nation’s immigration laws not only injure U.S. workers (e.g., their wages and job opportunities), but also the foreign workers for whom they are petitioning,” the release stated.

Although the purpose of the Third-Party Memo is to exercise more scrutiny on contractual arrangements with third parties, the USCIS acknowledges that such arrangements may be a legitimate and frequently used business model under the H-1B visa program.  The arrangement typically involves a third-party client who solicits service providers to deliver a product or fill a position at their worksite. In some cases, the petitioner may place the H-1B worker directly with the client. In other cases, there may be one or more intermediaries between the petitioner and the end client, commonly referred to as vendors. As the relationship between the petitioner and the beneficiary becomes more attenuated through intermediaries such as contractors, vendors or brokers, there is a greater need for the petitioner to specifically trace how it will maintain an employer-employee relationship with the beneficiary. For the very first time, the Third-Party Memo drills further into vendor concepts and acknowledges the role of “primary vendors” who have an established or preferred relationship with a client, or “implementing vendors,” who bid on IT projects with a client and then implement the contract using their own staff. Primary and implementing vendors will turn to secondary vendors to fill staffing needs on individual projects. USCIS acknowledges that the ultimate client project may be staffed by a team of H-1B beneficiaries who were petitioned by different, unrelated employers.   USCIS will need corroborating evidence to substantiate a claim of actual work in a specialty occupation, such as contracts and work orders, including documentation to show the relationship between the petitioner, intervening vendors and the end client.

The need to document such third-party arrangements is not new. The USCIS has used Donald Neufeld’s January 2010 guidance (“Neufeld Memo”) to provide a framework for demonstrating that an employer-employee relationship exists.  According to the Neufeld Memo, “The petitioner will have met the relationship test, if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary’s employment. In assessing the requisite degree of control, the officer should be mindful of the nature of the petitioner’s business and the type of work of the beneficiary.” The Neufeld Memo emphasized the need for the petitioner to demonstrate its right to control the employment of the H-1B worker. As the relationship got more attenuated through intermediaries, USCIS has questioned the petitioner’s right of control over the beneficiary’s employment through requests for evidence. The new policy guidance recognizes the existence of intermediaries such as vendors as legitimate under the H-1B visa program. However, the Third-Party Memo suggests that in addition to contracts and work orders, the petitioner may be able to demonstrate that the beneficiary has an actual work assignment in a specialty occupation by providing a combination of the following or similar types of following evidence:

  • Evidence of actual work assignments, which may include technical documentation, milestone tables, marketing analysis, cost-benefit analysis, brochures, and funding documents.
  • Copies of relevant, signed contractual agreements between the petitioner and all other companies involved in the beneficiary’s placement, if the petitioner has not directly contracted with the third-party worksite.
  • Copies of detailed statements of work or work orders signed by an authorized official or the ultimate end-client companywhere the work will actually be performed by the beneficiary. The statement should detail the specialized duties the beneficiary will perform, the qualifications that are required to perform the job duties, the duration of the job, and the hours to be worked.
  • A letter signed by an authorized official of each ultimate end-client company where the beneficiary will actually work. The lettershould provide information, such as a detailed description of the specialized duties the beneficiary will perform, the qualifications required to perform those duties, the duration of the job, salary or wages paid, hours worked, benefits, a detailed description of who will supervise the beneficiary and the beneficiary’s duties, and any other related evidence.

(Emphasis added.)

The need to submit detailed statements from the end-client company documentation regarding the specialized duties that the H-1B beneficiary will perform, as well as the qualifications that are required to perform those duties, would be extremely onerous. Since the end-client is not the ultimate employer of the beneficiary, most clients would be reluctant to provide such letters. Indeed, providing such letters would be tantamount to acknowledging an employment relationship with the beneficiary, which the end client has avoided by arranging to contract with the petitioner or intervening vendors for a project or to fill positions.

Requiring the end client to provide a detailed discussion of the assignment and its requirements would directly contradict the Neufeld Memo, which insists that the employer has the right of control over the H-1B beneficiary’s employment. If the end client sets the requirements for the position, then the end client would be acting as the employer and controlling the H-1B worker’s employment. This would have other implications for the end client under a joint employer liability theory, and it would not be surprising for an end client to be reluctant in providing a detailed statement about the position and its requirements, especially when its relationship with the petitioner is attenuated through layers of vendors. However, in Defensor v. Meissner, 201 F.3d 384 (5th Cir 2000), the Fifth Circuit held that if the H-1B worker is placed at a third-party client site, it is important to demonstrate that both the petitioning employer and the client require a bachelor’s degree in a specialized field. The USCIS frequently cites   Defensor v. Meissner in requests for evidence requiring further details about the position from the end client even while it requests evidence relating to the petitioning employer’s right of control over the H-1B worker’s employment at the client’s worksite. In some ways, Defensor v. Meissner contradicts the requirements under the Neufeld Memo, although immigration practitioners are not unfamiliar in playing the role of contortionist when making arguments on behalf of clients that are subject to the USCIS’s contradictory requirements! Perhaps the conflict between Defensor v. Meissner and the Neufeld Memo can be reconciled because the petitioner must demonstrate that it has the right of ultimate control over the H-1B worker’s employment in order to demonstrate the employer-employee relationship even though there could be more immediate control by the client at its worksite.

When the end client is reluctant to issue further details of the H-1B worker’s employment, the supplementary guidance to the Neufeld Memo issued in March 12 2012 (March 2012 Supplementary Guidance) could also come to the rescue.  USCIS noted that the Third-Party Memo is intended to be read together with the Neufeld Memo and as a complement to that policy. The March 2012 Supplementary Guidance further clarifies that a petition involving a third-party worksite may be approved if the petitioner can demonstrate that it will retain the right to control the beneficiary. A number of different forms of documentation may be provided to demonstrate that a right to control exists, such as a letter from the end-client, but such a letter is not an actual requirement.  Question 5 of the March 2012 Guidance states as follows:

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location?

A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist. (Emphasis added.)

Furthermore, Question 13 of the March 2012 Guidance states as follows:

Q13: The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?

A13: Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship. (Emphasis added.)

Questions & Answers: USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions, rev. March 2012.

Despite the issuance of the Third-Party Memo insisting on further details about the H-1B worker’s job duties and requirements from the end client, petitioners may also want to point to the March 2012 Supplementary Guidance to the Neufeld Memo, which has not been reversed. Thus, when a document may not be available, a petitioner can point to the March 2012 Supplementary Guidance and provide a combination of any documents to establish, by a preponderance of the evidence, that the employer-employee relationship will exist. The Third-Party Memo puts additional obstacles. It rescinds a prior 1995 policy guidance and insists that a precise itinerary be submitted that requires services to be performed in more than one location. The prior guidance only required general statements, but the Third-Party Memo requires exact dates of employment and the locations of the services to be performed. The itinerary should detail when and where the beneficiary will be performing the services, and the Third-Party Memo sternly asserts that there can be no exception from the regulatory requirement at 8 CFR 214.2(h)(2)(i)(B).

On the other hand, the itinerary should only be required when the services will be performed at more than one location. If the H-1B worker will only be placed at only one client location, then there should be no insistence on an itinerary by the USCIS.  If the work assignment should change later and cannot be anticipated at the time of filing the H-1B petition, resulting in a change of location, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AA0 2015), has already contemplated this and requires an employer to file an amended H-1B petition if the change of location requires a new Labor Condition Application. The USCIS should not be asking for an itinerary when the new job location cannot be anticipated, but the petitioner will file an amendment pursuant to Matter of Simeio Solutions. But under the Third-Party Memo, if the documentation does not clearly indicate that the work assignment will last for the duration of the proposed H-1B validity period, the petition may be approved for less than three years. At the time of filing an H-1B extension, if the petitioner cannot establish that the petitioner met the H-1B requirements when the worker was placed at the client site, including maintaining the right to control the beneficiary’s employment, the Third-Party Memo suggests that the extension may be denied even if it approved the new petition.

The H-1B visa has long been identified in the mind of its many critics with India, perhaps because of the vigorous use of this visa by Indian nationals, particularly in the IT industry. The Neufeld Memo, along with Matter of Simeio and now the Third-Party Memo, which was inspired by President Trump’s Buy American Hire American Executive Order,   is a direct attack on the business model whose consistent efficiency has promoted reliability and quality in the IT industry, a condition whose existence is directly due to the ability of major technology companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers,  promote diversity of product development and more jobs for Americans.  This is what the oft-criticized “job shop” readily provides, which has been recognized as a legitimate business model in the Third-Party Memo. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  While most would not want to openly admit it, one wonders whether this business model would be so maligned and attacked if it was developed in a Scandinavian country rather than India. Indian H-1B workers have been unfairly disparaged even in the media for displacing American workers as we saw in the Disney episode (see my prior blog, Putting Disney and H-1B Visas in Perspective) without any regard to the benefits these H-1B workers ultimately bring to the American economy.  The fact that the USCIS seeks to restrict this development, rather than to nurture it not only reflects the chronically insular character of U.S. immigration policy but the new siege mentality under the Trump administration that has deprived the nation and its economic system of the capacity for job creation and growth that would otherwise benefit us all. Nowhere is this fortress mentality more evident than in the draconian document regime that was first established under the Neufeld Memo and continues to build up under the Third-Party Memo, where the lines between rhetoric and reality have become blurred, if not totally erased. Yet, even here, the increasingly difficult to comply requirements through successive policy memoranda, including the latest Third-Party Memo, cannot shield American workers from the winds of change that will continue to blow. Far better would it be for the Trump administration and USCIS to welcome what must come by shedding the shibboleths of Buy American Hire American and thereby place such winds at our back.

(The author acknowledges the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

NO-WIN IMMIGRATION POLICY: DENYING H-1B EXTENSIONS TO SKILLED WORKERS FROM INDIA SO THAT THEY SELF-DEPORT

There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas while they wait legally in the United States. President Trump, in the name of protecting US workers, wants to send these skilled workers home to wait for their green cards. This is consistent with the Trump administration’s goal to destabilize the immigration system – from the travel ban aimed at Muslims to depriving skilled workers on H-1B visas to remain in their jobs and contribute to the United States.

A McClatchy press report  has sent shock waves within the backlogged H-1B community, as well as alarmed employers who sponsor skilled foreign workers for visas and green cards, attorneys and all people concerned about fairness. The report cites credible sources within the Department of Homeland Security who say that they are drafting a proposal to restrict H-1B visa extensions beyond the six-year limitation, which would result in the “self-deportation” of tech workers, thus opening up jobs for Americans in furtherance of President Trump’s Buy American Hire American Executive Order. Such a move is completely counter intuitive as these H-1B workers have all been beneficiaries of approved labor certification applications that resulted in unsuccessful attempts at locating qualified US workers to perform these specialized duties.

There are reportedly more than 1 million H-1B visa holders in the country, mainly from India, that have been waiting for green cards for more than a decade. Although the H-1B visa’s maximum duration is 6 years, those who are caught in the green card backlogs can apply for either a 3-year extension or a 1-year extension under the American Competitiveness in the 21st Century Act (AC21).

The DHS is specifically looking to reinterpret Section 104(c) of AC21, which provides for a 3-year extension of H-1B visas beyond the 6-year limitation. In order to be eligible for a 3-year extension under 104(c), the H-1B visa holder must be the beneficiary of an approved employment-based I-140 petition and must also demonstrate eligibility for adjustment of status but for the visa not being available as a result of the per country limitation. Section 104(c), however, states that the beneficiary of an I-140 petition “may apply” and the Attorney General (and by extension the DHS) “may grant” such an H-1B extension.

Since the enactment into law in 2000, prior administrations under Presidents Clinton, Bush and Obama have routinely granted 3-year H-1B extensions under 104(c). Even if the statute indicates that the government “may grant” the extension, such discretion cannot be used to arbitrarily deny H-1B visa extensions and thus eviscerate Congressional intent. The purpose of Section 104(c) was to provide relief to those in H-1B visa status who are caught in the employment-based backlogs as a result of the per-country limitation. India and China are the two countries where the per country limit within the employment-based second and third preferences have been oversubscribed. The extended H-1B visa has provided a lifeline to skilled workers who are otherwise eligible for green cards but for their priority dates not being current.

When a statutory provision bestows discretion through words such as “may grant,” such discretion cannot be exercised in an arbitrary and capricious manner. The Supreme Court’s opinion in Judulang v. Holder, 565 U. S. ____ (2011) has provided parameters under which a government agency may exercise discretion in the immigration context relating to a waiver under Section 212(c). The following interesting discussion is worth noting:

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).  The scope of our review under this standard is “narrow”; as we have often recog­nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency deci­sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency pro­vide reasoned explanation for its action”).  The BIA has flunked that test here. By hinging a de­portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner.

. . . .

The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi­gration laws or the appropriate operation of the immigra­tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The key in determining whether denying a 3-year H-1B extension is arbitrary is “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Is the DHS proposal to restrict 3-year H-1B extensions based on “relevant factors” or is it planning to disfavor a class of noncitizens through the mere flipping of a coin? The DHS’s proposal will likely fail under this test as 104(c)’s plain language requires the government to grant the extension so long as the prerequisites have been met. This means that so long as one who is in H-1B status is the beneficiary of an approved I-140, and the priority dates is not yet current, this person should be granted a 3-year extension.  Even justifying the “self-deportation” of hundreds of thousands to protect US workers under the BAHA Executive Order is no excuse. BAHA was not around when AC21 was enacted in 2000.  If the DHS seems to reinterpret 104(c) in light of BAHA, this decision can be challenged as it is contrary to the plain meaning of 104(c) as well as Congressional intent. The concern under INA § 212(a)(5) that US workers be protected was already met through the labor certification or by seeking an exemption of it through the national interest waiver. The imposition of BAHA should not upend the carefully crafted statutory structure enacted by Congress over the years.

Moreover, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared that federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if H-1B visa extensions are denied under President Trump’s interpretation of AC21 provisions pursuant to the BAHA Executive Order, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

The title to 104(c) “One-Time Protection Under Per Country Ceiling” does not mean that it empowers the Trump administration to restrict its application to a one-time 3-year extension. The title can clarify an ambiguous statute but shouldn’t be used to contradict the text of the statute. In this case, the text of 104(c) clearly states that three year extensions can be granted indefinitely until the “alien’s application for adjustment of status has been processed and a decision made thereon.” See  Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (the title of an Act cannot enlarge or confer powers); INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (the title of a statute or section can aid in resolving an ambiguity in the legislation’s text).

The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers  that took effect on January 17, 2017 further restrains the government’s ability to restrict H-1B extensions under 104(c).  Current 8 CFR § 214.2(h)(13)(iii)(E)(i), which implements 104(c),  does not appear to give broad discretion and pertains more to granting discretion with respect to the validity period, as follows:

Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

 This suggests that if the priority date is likely to become current imminently, the USCIS may shorten the time period of the H-1B extension to less than 3 years. The USCIS may also shorten the validity period if it is planning to revoke an approved I-140 petition if it believes it was previously erroneously granted. These sorts of discretion would pass muster and could have been contemplated under 104(c) when Congress said that the DHS “may grant” the extension. On the other hand, a new rule that would wholesale preclude the granting of a 3-year H-1B extension would be a completely erroneous reading of 104(c) and should certainly invite a lawsuit to challenge the Trump administration’s capricious interpretation. Even an H-1B worker, rather than an employer, should be able to sue as plaintiff  following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, 134 S.Ct. 1377 (2014), which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects. See also Mantena v. Johnson, 809 F.3d 721 (2015) and Kurupati v. USCIS, 775 F.3d 1255 (2014). The proposal appears to be based on pure xenophobia by the Trump administration to curb legal immigration of legitimate skilled workers from India and China who have been waiting for years in the green card backlogs. It does not protect American workers as the labor market has already been tested. Trump’s animus towards immigrants can also be cited in a future court challenge, as was successfully done in court challenges against the travel ban where Trump’s utterances and tweets against Muslims were invoked. Trump’s animus was further evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy –  white nationalism, which can be used to show bad faith if the USCIS starts denying 3-year H-1B extensions.

The Trump administration will have less scope to play mischief with the ability to seek a 1-year H-1B extension under Section 106(a) and (b) of AC21.  Section 106(b) states that the Attorney General “shall” extend H-1B status in increments of 1 year provided a labor certification or I-140 was filed one year prior to the final year in H-1B status, and until the labor certification, I-140 or adjustment of status is denied.  It is not the case that 104(c) is surplusage, as contended by an activist  organization that supports backlogged H-1B visa holders, and so one who qualifies under 104(c) will also be eligible for the grant of a 1-year extension under section 106.  104(c) allows for longer extensions and removes the need to file for extensions every year, and so it is clearly providing an additional benefit. 8 CFR §§ 214.2(h)(13)(iii)(D)(2) and (10), the rules that implement 106(a) and (b), give further support to this position as they both contemplate an approved I-140 petition while an H-1B beneficiary seeks a 1-year extension beyond the sixth year.  The widely held view is that either section can be applicable when its own conditions are met.  There are some cases where only 104(c) is available (where the labor certification was filed in the sixth year or final year of H-1B status and the I-140 is approved in that year), some cases where only 106(a)-(b) is available (where the labor cert or I-140  filed one year before the 6th year is still pending or where the priority date is current), and some cases where both are available but 104(c) gives greater benefits. Even when both are available, at times, for strategic reasons, one may wish to still seek an H-1B extension for 1 year under 106(b) if the priority date will become current at the time of adjudication of the extension request.   Nothing in the text or logic of the statute indicates that 106(a)-(b) ceases to become available, when it otherwise would be, simply because 104(c) is also available.

While the need of the hour is to oppose any arbitrary changes in interpreting 104(c), the ultimate goal is to reduce the green card backlogs. AC21 is a mere band-aid that provides relief to H-1B workers in a hopelessly broken immigration system that keeps them from getting green cards for years on end. HR 392 is one vehicle through which the backlogs can get reduced through elimination of per country limits. Still, HR 392 is not the magical elixir as backlogs will likely remain, but they will be far less. In fact, all will likely face a few years of backlogs if the per country limits are eliminated. If we can also hope for the unitary counting of derivatives in addition to HR 392, that will completely drain the employment-based system of backlogs. While all this is wishful thinking under a Trump administration, it never hurts to strive for a sensible winning immigration reform for the good of the country. Until backlogs are completely eliminated, the ability of skilled workers to remain in the US and extend H-1B status should never be taken away through policies inspired by white nationalism and xenophobia under the Trump administration. This can be the only explanation for attacking immigration in a full employment economy and BAHA is only thinly veiled nativism. In conclusion, just because a statute says “may” does not mean that the Trump administration can capriciously defeat the will of Congress by denying H-1B extensions to hundreds of thousands of Indians so that they may self-deport – an action that is a no-win for the United States or the foreign national skilled worker. Fortunately, there is enough protection in the AC21 law that will make it very hard for the Trump administration to see the light of the day with such a loser immigration policy.

 

 

 

 

Immigration and Nationality Act Trumps America First

President Trump’s America First policy has influenced how the United States views trade, immigration, the environment and global alliances. It is a radical departure from how the United States viewed itself before Trump took office. While previously the United States took the lead in forging the Paris climate accord, Trump withdrew from it. While the United States has promoted free trade as a basis for growing prosperity between nations, Trump withdrew from the Trans Pacific Partnership, which took years to negotiate under American leadership, and has signaled his intention to withdraw from NAFTA and the free trade agreement with a crucial ally South Korea. Although the title is deceptive, Trump’s America First doctrine, unfortunately, abdicates America’s leadership role in the world.

It is worth noting that the term America First also has an ignoble history, and has been associated with anti-Semitism.  The America First Committee (AFC) was founded in 1940 and opposed the involvement of the United States in World War II. AFC’s most notable spokesman Charles Lindbergh, the aviator, expressed not only sympathy for the persecution of Jews in  Nazi Germany, but further suggested that Jews were advocating that the United States enter a war that was not in the national interest. The AFC met a sudden death a few months later by disbanding when Japan attacked Pearl Harbor, which naturally propelled America’s involvement in World War II.

Trump has now again championed America First, which has already had a pernicious impact on immigration policy. Pursuant to America First that withdraws this nation’s outreach to the world be welcoming immigrants, Trump issued travel bans, increased immigration enforcement regardless of priorities, intends to cancel the Deferred Action for Childhood Arrivals (DACA) program and has provided full throated support for legislation that curbs legal immigration.   On April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order No. 13788. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

Although the administration has yet to influence any legislation in Congress or change rules, the impact of the EO is already being seen in the increased number of Requests for Evidence (RFEs) challenging the paying of Level 1 wages, even though employers have legitimately offered positions to entry-level workers under the H-1B visa program. The administration has also indicated that entry level Computer Programmers may not qualify for the H-1B visa. The State Department has made the following changes to the Foreign Affairs Manual with respect to providing guidance to consular officers regarding the issuance of nonimmigrant H, L, O, P and E visas:

9 FAM 402.10-2 Overview of H Visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(H) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040210.html

9 FAM 402.12-2  Overview of L visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(L) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040212.html

9 FAM 402.13-2 Overview of O visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(O) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040213.html

9 FAM 402.14-2  Overview of P visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that cases under INA 101(a)(15)(P) must be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040214.html

9 FAM 402.9-2  Overview of E visas

  1. On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788), intended to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.”  The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.  You must also remember that the basis of this classification lies in treaties which were entered into, at least in part, to enhance or facilitate economic and commercial interaction between the United States and the treaty country.  It is with this spirit in mind that cases under INA 101(a)(15)(E) should be adjudicated.

https://fam.state.gov/FAM/09FAM/09FAM040209.html

What is interesting that even though the Buy American Hire American Executive Order singles out H-1B visas, the FAM has been amended to incorporate America First principles into other temporary visa programs that do not require payment of US source wages. For example, the remuneration of an intracompany transferee on an L-1 visa can emanate from a US or a foreign source. See Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). The L visa also does not mandate a certain wage or a test of the U.S. labor market.  An E visa treaty trader or investor does not need to be paid wages. Still, under the new EO, this may be viewed as suspect if it does not create higher wages and employment rates for US workers. The Buy American Hire American EO was not in existence when Congress created the L, E or O visa provisions in the Immigration and Nationality Act. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a)(15)(L) that the purpose of the L visa  was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Therefore, if Congress desired the same purpose for the L or the O visa, as it did for the H-2B visa, it would have said so.

If government agencies seek to reinterpret INA provisions in light of the Buy American Hire American EO resulting in denials of visa petitions, those decisions ought to be challenged as they are contrary to the plain meaning of the statute as well as Congressional intent. A presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if visa petitions and applications are denied under President Trump’s interpretation of INA provisions pursuant to the Buy American Hire American EO, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

What the Trump administration cannot change through Congress, it is trying to do so through executive orders. The Buy American Hire American EO further tries to jolt the immigration system that has been carefully crafted by Congress over the years. Quite apart from pleasing Trump’s political base it is unclear whether the EO will create more jobs. Most economists credibly argue that more immigrants create more jobs, and that restricting immigrants will not necessarily create more jobs for American workers. America’s most successful companies have been founded by immigrants and most of its recent Nobel prize winners were not born in the United States.   The plain meaning of statutory provisions in the INA should prevail over ideologically motivated executive orders under Trump’s America First doctrine.  Thankfully, the courts will provide a forum to allow those adversely impacted by new interpretations to demonstrate that the INA trumps America First.

On this Labor Day, it is worth reflecting whether a more welcoming immigration policy will benefit America more than Trump’s America First. Immigrants do not come to America because it is great; in fact, to the contrary, they come to America and make it great! America First will make the nation less great.

 

 

Trump’s Tweet On “Extreme Vetting” May Have Opened the Door to a Court Challenge

The Trump administration has begun to apply extreme vetting on visa applicants, even though tourism has dropped this year. A new form, DS-5535, asks visa applicants extremely detailed questions about travels, work history and their presence on social media, as follows:

  • Travel history during the last fifteen years, including source of funding for travel;
  • Address history during the last fifteen years;
  • Employment history during the last fifteen years;
  • All passport numbers and country of issuance held by the applicant;
  • Names and dates of birth for all siblings;
  • Name and dates of birth for all children;
  • Names and dates of birth for all current and former spouses, or civil or domestic partners;
  • Social media platforms and identifiers, also known as handles, used during the last five years; and
  • Phone numbers and email addresses used during the last five years.

It is going to be extremely difficult for anyone who doesn’t keep meticulous records to accurately complete Form DS-5535. The form also warns that failing to provide the information may delay or prevent the application’s processing. It is not clear who will be subject to these additional questions. The US Department of State in its May 4, 2017 notice in the Federal Register has indicated that consular officers will ask visa applicants to complete the new form to “resolve an applicant’s identity or to vet for terrorism or other national security related visa ineligibilities when the consular officer determines that the circumstances of a visa applicant, a review of a visa application, or responses in a visa interview indicate a need for greater scrutiny.” The notice goes on to further state, “Failure to provide requested information will not necessarily result in visa denial, if the consular officer determines the applicant has provided a credible explanation why he or she cannot answer a question or provide requested supporting documentation, such that the consular officer is able to conclude that the applicant has provided adequate information to determine the applicant’s eligibility to receive the visa. The collection of social media platforms and identifiers will not be used to deny visas based on applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation.” Notwithstanding this assurance, it is quite likely that those who inadvertently fail to include all the information may be penalized later when applying for subsequent immigration benefits. A simple error could also create a false suspicion of fraud. The government has estimated that at least 65,000 people will be subject to the extreme vetting procedure.

As more and more visa applicants subjected to DS-5535 are likely to either face actual or constructive denials (such as where an application remains pending for an indefinite period of time), what recourse would one have? A consular officer has unbridled discretion over visa decisions. A visa applicant has no right to appeal. Courts are reluctant to review a consular officer’s decision. There may however be a sliver of an opening thanks to President Trump’s obsessive use of Twitter. Trump’s recent tweets might have provided a legal basis for challenging a visa denial under the new extreme vetting procedure, especially if a visa applicant has been denied  from one of the countries contemplated under the executive order that bans travel of nationals of six Muslim majority countries.

On June 5, 2017, following the latest terror attack in London, Trump issued a series of tweets that may have undercut his travel ban case. The first executive order banning nationals of seven Muslim majority countries was blocked because it was found to have animus against Muslims based on Trump’s campaign statements, and thus violated the Establishment Clause of the First Amendment of the US Constitution. The Trump administration subsequently issued the current executive order to overcome the infirmities in the first one, but even that was blocked. The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against the second travel ban stated that even this ban “in context drips with religious intolerance, animus, and discrimination.”

The administration has asked the Supreme Court to remove the block on the ban. The key issue on appeal is whether the second version is merely a watered-down version of the first ban. If that is so, then the second version is no different from the first version, which was found infirm as it displayed an animus towards one religion, namely. Trump did not help his case when he actually admitted that the second travel ban is a watered-down version of the first ban:

The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”

David Isaacson has astutely commented  that  the usage of the term “politically correct” at “Trump’s end of the political spectrum” implies that “it is unnecessarily or inappropriately tailored to avoid speaking of a minority group in a way that liberals would consider offensive.” In other words, this is a dog whistle to Trump’s base that the watered-down more “politically correct” version demonstrates the same animus against Muslims like the first one. There is also growing commentary that agrees that Trump’s tweets may have undercut his case in favor of the travel ban. Here are other damaging tweets that were part of Trump’s tweet storm on the travel ban on June 5:

The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court – & seek much tougher version!

and

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

Later in the evening on June 5, Trump tweeted this:

That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!

It is thus no surprise that Neal Katyal, the lawyer who argued for the plaintiffs in Hawaii v. Trump in the 9th Circuit, tweeted, “Its kinda odd to have the defendant in Hawaii v. Trump acting as our co-counsel. We don’t need the help but will take it!” Even George Conway, the husband of Trump’s adviser Kellyanne Conway, who took himself out of the running to lead the Justice Department’s Civil Division tweeted: “These tweets may make some ppl feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what actually matters. Sad,” he wrote, using abbreviations or Office of Solicitor General and the Supreme Court.”

There is one tweet of Trump as part of the June 5 tweet storm that did not get noticed as much as the others, which potentially opens the door for one who may wish to seek judicial review over a visa denial under the new extreme vetting procedures:

In any event we are EXTREME VETTING people coming into the U.S. in order to help keep our country safe. The courts are slow and political!

This tweet can be interpreted to mean that “EXTREME VETTING”, capitalized by Trump, is in effect a substitute for the travel ban, which the courts have blocked. If DS-5535 is used to wholesale deny visa applicants from Muslim countries in the executive order entry into the United States, then Trump’s animus against Muslims will also be evident in Form DS-5535. On its face, the government has every right to apply extreme vetting procedures on travelers to the United States and it would be difficult to overturn a consular denial as a result. However, as a result of Trump’s tweet implying that he has deployed extreme vetting as a substitute for the blocked travel ban, it may have created an opening for challenging the procedure.

Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Justice Kennedy’s concurring opinion in Kerry v. Din affirms this standard. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion in IRAP v. Trump emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the executive order was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security. The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always defer to the government on national security concerns, especially when the government acts in bad faith.

Trump’s recent tweets seem to suggest that the new travel ban, as a watered down and “politically correct” version of the original travel ban, was intended to fulfill his campaign promise of banning Muslims from the United States. Thus, one can infer that even the second ban was issued in bad faith, which the Supreme Court will soon review. The same could be said about Trump’s tweet on extreme vetting, as it appears to be a substitute for the travel ban, which was found to have been done in bad faith. If there is pattern of nationals from the blocked countries in the travel ban being denied visas under the extreme vetting procedures pursuant to DS-5535, applicants could potentially challenge such denials as being done in bad faith. As suggested in my prior blog, IRAP v. Trump provides a basis to challenge visa refusals if they are done in bad faith even beyond the travel ban. One can see this happening if applicants from the countries cited in the travel bans are routinely refused admission as a pretext for blocking Muslims. Admittedly, a challenge of this sort would be difficult, and the plaintiff would also need to assert standing. Standing would be easier to assert, though, when there is a constitutional claim, especially if extreme vetting like the travel ban violates the Establishment Clause, and when cases are brought by US citizens or when the interests of US citizens may be jeopardized as a result of the visa refusal.

At the time of going to press, the Ninth Circuit also issued a decision in Hawaii v. Trump that upholds the block of the lower district court, but on statutory grounds. The Ninth Circuit did not even need to get into the constitutional argument on whether the executive order displayed animus towards Muslims and thus violated the Establishment Clause, and instead ruled that the executive order violates INA 212(f). By suspending the entry of 180 million nationals of the six blocked countries, the Ninth Circuit ruled that the President did not show a sufficient justification that their suspension would be “detrimental to the interests of the United States” under INA 212(f). Although the Ninth Circuit in making a statutory argument did not feel the need to analyze Trump’s tweets, footnote 14 in on page 40 of the slip opinion mentioned one of the tweets:

Indeed, the President recently confirmed his assessment that it is the “countries” that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s “travel ban.” See Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20 PM), https://twitter.com/realDonaldTrump/status/871899511525961728 (“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”) (emphasis in original); see also Elizabeth Landers, White House: Trump’s tweets are “official statements”, CNN (June 6, 2017, 4:37 PM), http://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/ (reporting the White House Press Secretary’s confirmation that the President’s tweets are “considered official statements by the President of the United States”).

Ultimately, the Supreme Court will be the final arbiter and may either affirm the reasoning of the Fourth Circuit or the Ninth Circuit, or reverse. If the Supreme Court lifts the block, then that would end the matter and this blog may become moot. If the Supreme Court affirms the block, then Trump’s tweet on extreme vetting might still be relevant if a plaintiff decides to challenge a visa denial and especially if the Supreme Court upheld the Fourth Circuit’s constitutional argument rather than the Ninth Circuit’s statutory argument. One can see the Trump administration deploying extreme vetting with full force as a substitute to the blocked travel ban. If extreme vetting harms the image and economy of the United States by dissuading bona fide travelers form Muslim-majority countries, and does nothing to enhance national security interests, it is incumbent on those who view the United States as a great nation because of its welcoming attitude towards visitors and immigrants to find creative ways to challenge DS-5535.

H-1B Cap Filing Aftermath: Evaluating the Fate of the Computer Programmer and the H-1B Dependent Employer

On  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references the relevant part reference computer programmers in the  DOL’s Occupational Outlook Handbook that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questions whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.

The fact that the guidance was issued just as employers had filed H-1B petitions to reach on the first day of the filing period, April 3, 2017, caused panic in many quarters. The media also suggested that the new guidance was aimed against India based IT firms who utilize most of the H-1B numbers each year. Such speculation was backed up by another announcement on the USCIS website entitled Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse. The announcement specifically indicated that USCIS would focus its resources on conducting site visits on employers who are dependent on H-1B workers and who place H-1B workers at client sites. It also set up an e mail where US workers could report alleged H-1B fraud and abuse. The DOJ also followed with an announcement cautioning employers who hire H-1B workers to not discriminate against American workers and that its Immigrants and Employee Rights division would vigorously enforce the anti-discrimination provision of the INA.  INA 274B prohibits citizenship, immigration status and national origin discrimination in hiring, firing or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation.  Not to be outdone by sister agencies, the DOL also put out a news release on April 4 stating that it would rigorously use its existing authority to initiate investigations of H-1B violators.

None of these announcements suggest anything new. The USCIS has for many years been critical of viewing computer programmers as a specialty occupation, especially if the H-1B worker receives level 1 wages. A search of non-precedent decisions on the Appeals Administrative Office website reveals a number of affirmations of denials of H-1B petitions for computer programmers over the years. This is not to suggest that a computer programmer will never be able to qualify for an H-1B visa, but the employer should not rely on the OOH and should be prepared to rebut the OOH findings that an associate’s degree would be adequate preparation for a computer programmer with respect to its niche position. In Fred 26 Importers Inc. v. DHS, a federal district court overturned a finding of the AAO that a Human Resource Manager did not qualify for an H-1B occupation as the OOH indicated that a broad range of disciplines, as opposed to a specialized discipline, could qualify a person for the occupation. The employer used expert witnesses to demonstrate that the position was complex, even in a small organization, to require a bachelor’s degree in a specialized field. If the employer’s business model requires assigning the H-1B worker at a third party client site, it is further important to demonstrate that both the petitioning employer and the client require a bachelor’s degree in a specialized field. See Defensor v. Meissner, 201 F.3d 384 (5th Cir 2000). At the same time, under the Neufeld Memo, the petitioning employer must additionally demonstrate that it and not the client exercises control over the H-1B worker’s employment. Moreover, not all computer occupations have received the same treatment by the OOH as computer programmers. For instance, according the OOH, a bachelor’s degree in computer science is a requirement to qualify as a computer systems analyst, although some employers may require bachelor’s degrees in business or liberal arts. With respect to software developers, the OOH categorically states that a bachelor’s degree in computer science or related fields is a minimum requirement. Hence, a software developer or computer systems analyst will fare better than a computer programmer, even at an entry level wage. It can also be argued that in every profession there is an entry level position, and that factor in itself should not undermine the ability of the employer to qualify the position for H-1B visa classification. If the position qualifies as a specialty occupation, then paying an entry level wage should not undermine it. If the position does not qualify as a specialty occupation for H-1B classification, then paying even at the highest wage level would not be able to salvage it.

Site visits of the FDNS are nothing new, and firms that heavily rely on H-1B workers who are placed at third party sites have been the focus in recent years. However, with respect to the USCIS’s intention to conduct site visits, the announcement states, “Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” While it is true that H-1B dependent employers are obligated to recruit for US workers before filing H-1B petitions for foreign national workers, this obligation does not apply when a dependent employer files an H-1B petition for an exempt employee – one who is either paid $60,000 or higher or who has a master’s degree or higher in the specialty that is relevant to the position. The USCIS announcement, unfortunately,  is somewhat misleading, and a dependent employer who is not obligated to recruit because it has filed an H-1B petition for an exempt employee may be subject to a warrantless complaint or investigation. It is urged that the USCIS clarify this point in its announcement so that it can focus its resources on legitimate rather than frivolous complaints.

There is also no question that a US employer is prohibited from discriminating against an American worker in favor of an H-1B worker. However, in order to be found liable, it must be demonstrated that there was an intention to discriminate based on citizenship or national origin. If there was a lawful business objective to hire H-1B workers, or even contract with an IT consulting firm that uses H-1B workers, that would not be a legal basis to hold an employer liable under the anti-discrimination provisions of INA 274B. Only time will tell whether the DOJ intends to push the envelope further.

The USCIS on April 7, 2017 announced that the FY2018 H-1B cap had been reached. It is likely that more H-1B petitions will get rejected than accepted. Those petitions that get accepted, in the event that they face more scrutiny by virtue of being filed for computer programmer positions, will not outright get denied. The USCIS will issue a Request for Evidence, which allows the employer to demonstrate that the position qualifies for a specialty occupation. If there is a denial after that, the employer may file an appeal to the AAO, and if the appeal is dismissed, the employer can seek review in federal court. Under Darby v. Cisneros, an employer may directly pursue review in federal court and bypass the AAO.  A dependent employer who is the subject of a complaint for not recruiting US workers first has a rock solid defense if the employer filed an H-1B petition for exempt employees. Finally, employers must always hire objectively based on legitimate business criteria in order to stave off any allegations regarding discrimination. Although there are many challenges for employers filing H-1B petitions under the FY 2018 H-1B cap, they are not insurmountable.

 

 

Immigrants Are Not Undesirable Criminals

During his campaign and after he became president, Trump has unfortunately changed the narrative by linking immigrants, especially undocumented immigrants, to rapists, murderers, terrorists and job stealers. Trump has exploited the crimes committed by a few immigrants to link all of them to criminal activity. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. While we undoubtedly sympathize with the victims of such crimes, it is morally reprehensible to taint all immigrants with the conduct of a very few. The criminal justice system can effectively punish perpetrators of all crimes, whether they may be immigrants or US citizens.  Most immigrants are hardworking and honest, trying to make a better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans.

Some in the media have latched onto this false narrative to further sensationalize the issue. When I was invited to debate Tucker Carlson on Fox News on March 27, 2017 I accepted believing it is important for an immigration attorney to speak out loudly and boldly, no matter how ruthless the TV host may be.While Carlson may limit the conflation to crimes with undocumented immigrants, this has the tendency to extend to even legal immigrants as exemplified in Trump’s travel ban. Nationals of the countries affected in the ban are people entering the United States legally as students, temporary workers or as refugees,  but they are still considered suspect as the Trump’s travel ban directly links to nationals of Muslim majority countries suspected of terrorism.  This sort of stereotyping is not just false, but it is also extremely dangerous. A few weeks ago, a US citizen killed an Indian engineer who was legally in the United States on an H-1B visa under the false perception that he was a dangerous immigrant. By Carlson’s logic, the immigrant would not have committed a crime if he or she had not been let into the United States in the first place. But how do you determine this in advance as to who will commit a crime in the future? Does this  mean that our entire immigration system has to shut down?  Or do we no longer take in people fleeing persecution to prevent risking one of them or one of their descendants from committing a crime in the future, even though America is known as the beacon of hope for the persecuted? Is there a way to determine whether one born in the United States will be the next Timothy McVeigh or Adam Lanza?

We can only hope that this virulent fever in America breaks soon because it goes against the long cherished notion that America is nation of immigrants.

Watch the clip below:

Protesting Trump’s Muslim Ban Through Art: An Immigration Lawyer’s Perspective

There are many ways to protest Trump’s travel ban, also known as the Muslim ban. Lawyers have successfully sued against the ban in the courts. People protested at airports in an unprecedented and spontaneous manner. Art can also be a powerful form of protest against the ban.  The Museum of Modern Art (MOMA) has also joined the protests by displayng works of artists from the banned countries among other iconic works of art in its permanent collection. One has to go through the galleries housing the permanent collection to serendipitously come across the work of an artist from a banned country, which in the age of Trump, have also attained iconic status. Art is able to inspire the lawyer in protesting the ban. Trump’s exclusion of an entire people from a banned country casts all of them as terrorists, including the artist. This is both legally wrong and morally shameful.

These are three of my favorites among the works of the artists from the banned countries at the MOMA. I have also included at the end the works of two artists from my own very modest art collection. I am happy to possess these works, which have always been beautiful, but resonate more powerfully today. They inspire me as I protest Trump’s ban.

Charles Hossein Zenderoudi – born in Iran

Ibrahim el- Salahi - born in Sudan

Ibrahim el- Salahi – born in Sudan

Parviz Tanavoli – born in Iran

 

These are two works from my own collection, the first which I acquired in 1993 and the second in 2010.

 

Reza Derakshani – born in Iran

Mary Yahya – born in Iraq

No Matter How Many New Travel Bans Trump Issues, Maximum Power Does Not Mean Absolute Power

By Cyrus D. Mehta and Sophia Genovese-Halvorson

We have numerous justifiable concerns with the immigration policies of the Trump Administration on behalf of our clients and all Americans who feel that our values are being undermined, especially the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” Fortunately, courts across the country seem to agree except for one. Most notable were United States District Judge Robart’s nation-wide temporary restraining order (TRO) of the EO in the Western District of Washington and United States District Judge Brinkema’s Virginia-wide injunction against the EO in the Eastern District of Virginia. Due to these and many other orders, as well as heavy backlash, the Trump Administration has now stepped back and have stated that they will replace the January 27 EO with a new Executive Order sometime next week that will survive judicial scrutiny. It is our view, however, that even this new EO in whatever way repackaged will be unconstitutional under the Establishment Clause of the First Amendment to the U.S. Constitution.

As a reminder, the January 27 EO suspended for 90 days the entry of persons from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, suspended the U.S. Refugee Admissions Program for 120 days, and banned Syrian refugees indefinitely, unless they received an exemption from DHS for being a “religious-minority.” The EO immediately disrupted the lives of thousands of people, from non-immigrants, immigrants, LPRs, and even dual-citizen holders. The first suit against the EO came only a day after its enactment in the Eastern District of New York, which issued an emergency stay that temporarily blocked the government from sending people out of the country after they have landed at a U.S. airport with valid visas, including green card holders. There were several other injunctions that followed. Then the States of Washington and Minnesota filed suit in the Western District of Washington, requesting, among other things, a restraining order on the ban. Judge Robart issued a nationwide temporary restraining order against the ban, which was affirmed by the Ninth Circuit. Judge Robart’s ruling on the merits is still pending. Meanwhile, Judge Brinkema in the Eastern District of Virginia granted a Virginia-wide injunction against the EO, citing specifically to the Establishment Clause.

President Trump continues to argue that the President has extensive powers granted to him under the Immigration and Nationality Act (INA) § 212(f), 8 U.S.C. § 1182(f), and proffers that the judiciary cannot exercise jurisdiction over an EO due to the plenary powers doctrine. In relevant part, INA § 212(f) states that,

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

However, as Judge Brinkema rightfully pointed out in her decision, “maximum power does not mean absolute power.” Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889, at *11 (E.D. Va. Feb. 13, 2017). In her analysis, Judge Brinkema reaffirms that the U.S. Constitution is the supreme law of the land, and that no one, not even the President, can violate its terms. Citing to landmark cases such as Zadvdas v. Davis, 533 U.S. 678 (2001) (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), among others, she proves this point.

The Ninth Circuit that affirmed Judge Robart’s TRO also provided precedent on the reviewability of the Executive, citing to Boumediene v. Bush, 553 U.S. 723, 765 (2008) (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha, 462 U.S. 919 (1983) (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”). The Ninth Circuit goes so far to say that even under Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court can review the actions of the Executive branch, noting that but for their ability to review, there would be no “facially legitimate and bona fide reason” test to measure executive exercises of immigration authority.

In short, there is no doubt that Trump’s Executive Orders are subject to review when there is an alleged violation of the Constitution. But what specifically is unconstitutional about Trump’s ban? Or a rewrite of the ban even if it does not apply to lawful permanent residents or non-immigrants who have already been in the United States? One indication of the new EO by DHS Secretary Kelly is that it would give time for people to come back in , and would presumably include the same 7 nations whose nationals would be barred from future entries.

The Establishment Clause

The Establishment Clause argument has great merit, and it is the opinion of these authors that this argument will likely prevent Trump from prevailing on even his latest Executive Order, where it is likely he will include even non-Muslim countries, so as to appear non-discriminatory. The Virginia Court, in relevant part, explains that,

“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” The Supreme Court has articulated various tests for determining whether that command has been violated. The first such test is that the law “must have a secular…purpose.” “In the past, [this] test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing” one religion over the other. The secular purpose requirement “‘nevertheless serves an important function,’” because “[b]y showing a purpose to favor religion, the government sends the…message to…nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members.” This message of exclusion from the political community is all the more conspicuous when the government acts with a specific purpose to disfavor a particular religion. (internal citations omitted).

(Aziz, at *13-14).

In order to assess whether there was discriminatory intent in the January 27 EO, Judge Brinkema cites heavily to statements made by Trump during his campaign, especially noting that a “Muslim Ban” was a central feature of his platform. She also pointed to post-election and post-inaugural interviews where he speaks about the need to prioritize Christian refugees. She also cites to a particularly intriguing quote by Rudy Giuliani, who stated after the EO’s enactment, that “when [Trump] first announced it, he said ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’…And what we did was, we focused on, instead of religion, danger—the areas of the word that create danger for us…Which is a factual basis, not a religious basis. Perfectly legal, perfectly sensible. And that’s what the ban is based on. It’s not based on religion. It’s based on places where there are [sic] substantial evidence that people are sending terrorists into our country.” Additionally, Judge Brinkema noted that post-hoc statements by DHS Secretary Kelly and White House Chief Counsel proclaiming that this is not a Muslim ban will be given little weight because we are looking to past intent in our analysis.

These statements taken together go to show that the ultimate aim of the Trump Administration is to ban Muslims. Even in light of the new EO, which may or may not include non-Muslim majority countries, these statements cannot be washed away. The intent to ban Muslims is there. The intent to violate the Establishment Clause, without outright saying it, is there. “‘The world is not made brand new every morning,’ a person is not made brand new simply by taking the oath of office.” Aziz, at *15. Trump’s new EO is only being reissued because he and his Administration know it is likely that his January 27 EO is unconstitutional. Essentially, the new EO will be a repackaging of the old. The intent, therefore, remains to ban Muslims. This is the case even if the new EO proposes to ban future entrants. While people with no ties to the US may not have the same constitutional rights as lawful permanent residents, such a person who wishes to visit a US citizen relative or attend a US educational institution could still likely be able to challenge an unconstitutional EO pursuant to Boumediene v. Bush and Hamdi v. Rumsfeld.

Balancing the Government and State’s Interests

Given that plaintiffs can likely prevail on the Establishment Clause argument, the government must prove that its national security concerns are bona fide. This means that the government must present evidence to support its assertions that these EOs are vital for the preservation of national security. Judge Brinkema again notes that in the Virginia case, the government failed to provide any evidence to support their claim. The Ninth Circuit also noted that no evidence had been proffered to point to terrorist threats of nationals from the original seven banned countries. In fact, Judge Brinkema states that the only evidence offered in this regard is the declaration of 10 national security experts who declared that the January 27 EO only serves to make the country less safe. It is possible, though, that a court may follow what the Massachusetts district court in Louhghalam v. Trump did, and grant the President this authority and not find discriminatory intent (although the court rendered this decision to justify not extending the injunction indefinitely, which it did initially, and did not analyze the discriminatory intent).

It is clear to us, and hopefully to a court that hears the new challenge,  that the discriminatory intent will still exist in this new EO, thereby remaining in violation of the Establishment Clause. While it remains unclear if courts will find that this new EO puts forth facially legitimate national security concerns, it will still possess discriminatory intent, specifically banning Muslims, and will fail under the “bona fide” prong put forth in Kleindienst. See also American Academy of Religions v. Napolitano, 573 F.3d 115 (2009).  If the EO is found to possess facially legitimate national security concerns, but also formed in bad faith, it will be up to the courts to decide if these national security concerns have enough muster to overcome constitutional constraints. But history has repeatedly shown that national security concerns have been conveniently and falsely invoked even to deprive US citizens of their rights as with the shameful internment of Japanese Americans.

These national security concerns, in our opinion,  are invalid and cannot even pass the facially legitimate prong. Immigrants and refugees face numerous screenings before being granted admission into the United States. In addition, the immigration process can take years. The government in the January 27 EO proceedings failed to offer evidence that these processes were defective in their ability to screen out security threats. Further, it is unlikely that a terrorist would go through the trouble of filing an nonimmigrant/immigrant petition, only to be vetted several times over, then be subjected to a consular interview, and then still have to make it through Customs and Border Protection. It is an inefficient means to their end. Even attempting to ban prospective entrants who have not had ties with the United States cannot be justified if the ban violates the Establishment Clause. Since Marbury v. Madison, 5 U.S. 137 (1803),  the Supreme Court has recognized that when a government action is in conflict with the Constitution, it is for the judiciary to say what the law is. This is the wonderful balance that preserves American democracy. White House advisor Stephen Miller was wrong to assert that an unelected judge cannot check the President’s power in the area of immigration. The will of the majority, even in a democracy, cannot trample upon the rights of others. If that happens, the judiciary applies the breaks on such abuse of power so as to protect those who are trampled upon by the majority.

But most importantly, the majority of people seeking to temporarily visit or immigrate to the United States are peaceful people. Just because they share a different religion, worldview, or skin tone than some Americans does not mean that they are somehow violent or a threat. In fact, the opposite is true. Immigrants have been critical in the continued advancement of our country. From science and technology, to social ingenuity and progress, immigrants have helped to continue moving our country forward. To equate immigrants or non-immigrants, especially those from Muslim-majority countries with terrorists is not only bigoted, but it is simply untrue. Profiling all people from a specific country cannot serve as a proxy for individualized suspicion and guilt. It is also a sloppy law enforcement technique as an individual who desires to harm the country can evade being part of the profile. There are other smart law enforcement techniques that have been successfully deployed to track and apprehend people who intend to do us harm than profiling all people of a country.

President Trump derives his authority to assert maximum power through the plenary power doctrine, which arose from a Supreme Court case in the late 1800s, Ping v. United States, 130 U.S. 581, that upheld the racist Chinese Exclusion Act. In the 21st century, after the United States has made such strides in civil rights, women’s rights, and marriage equality, there is no longer place for plenary power as a justification to violate the Constitution. Allowing President Trump to assert such maximum power, based on the plenary power doctrine, only takes America back more than a hundred years after all the progress that has been achieved. The plenary power, as asserted in the travel ban EO, also sends a wrong message to the world that America is no longer a welcoming place for people to travel, do business, temporarily work, or to make a permanent home. Being unwelcoming, arbitrary and intolerant is inconsistent with the notion of America as a great nation. On this President’s Day, it is important to reflect whether now is the opportune moment to reassess the plenary power doctrine that was grounded in a racist law whose purpose was to exclude Chinese nationals just as the current or future EO is aimed against banning Muslims. It is high time for the courts to once and for all recognize the supremacy of the Constitution over the president’s absolute power.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]