The Insightful Immigration Blog – Commentaries on Immigration Policy, Cases and Trends

STATE DEPARTMENT’S VISA OFFICE TAKES BROADER VIEW OF “SOUGHT TO ACQUIRE” PROVISION UNDER THE CHILD STATUS PROTECTION ACT

2012-01-22T20:30:00.000-08:00

By Cyrus D. Mehta

Many cases involving complexinterpretations of the Child Status Protection Act (CSPA) occur while theapplicant is applying for an immigrant visa at an overseas consular post. TheCSPA protects a child who may turn 21 or more from “aging out,” and thus beingeligible for permanent residence as a derivative, when his or her parent isissued permanent residence. Often times,while there is room for interpretations under the CSPA, the consular officermay take a restrictive view of a CSPA provision and refuse the visa. There isno appeal process to review a consular officer’s decision at an overseas post,and the refusal may seem to be the end of the road and separation from the“aged out” child from the parent. Fortunately, despite the absence of an appealprocess, one can seek an advisory opinion on a purely legal issue with theState Department’s Visa Office in Washington DC via legalnet@state.gov, and adenial under the CSPA mostly involves a legal issue rather than a factualissue. By contrast, the denial of a tourist visa application is almost alwaysfact based, and under such circumstances, it may not be possible to seek anadvisory opinion from the Visa Office.

This author hashad success in overturning a consular official’s denial on at least two occasionsin the past. On both these occasions, the State Department’s Visa Office agreedthat the 45 days provided in section 421(2) of the USA Patriot Act can besubtracted from the age of a child if the age subtraction formula under theCSPA did not bring down the age of the child under 21 years. In other words,the child can use the benefit of both the Patriot Act and the CSPA to lower theage of a child below 21 years. Although this author hadpreviously advocated that there was nothing in the CSPA preventing the use ofthe 45 days from the Patriot Act in addition tothe age subtraction formula provided in the CSPA, this is now no longer an issue as ithas been clearly acknowledged in 9FAM 42.42 N12.4(e.) and 9 FAM 42.42 N12.8(b.).

Our recent success, which wereport here for the benefit of others, was regarding the interpretation of“sought to acquire the status of permanent residency” within one year of visaavailability. At issue is whether the payment of the visa processing fees withthe National Visa Center within the one year period constituted “sought toacquire” permanent residency within the one year period. The actual applicationfor the immigrant visa, DS 230 Part I or II, had not been filed within oneyear. The applicant was unrepresented at that time and was not aware of the preciserequirement to apply for permanent residence within one year of visaavailability.

As a background, INA §203(h), introduced by Section 3 of theCSPA, provides the formula for determining the age of a derivative child in apreference petition even if the child is older than 21 years. To qualify as achild under INA §101(b)(1), one must be below the age of 21 and unmarried. Theage is determined by taking the age of the alien on the date that a visa firstbecame available (i.e. the date on which the priority date became current andthe petition was approved, whichever came later) and subtracting the time ittook to adjudicate the petition (time from petition filing to petitionapproval). Based on this formula, if the child’s age falls below 21, the childis protected under the CSPA. Specifically, §203(h)(1)(A) also requires thealien to have “sought to acquire” LPR status within one year of visaavailability.

The CSPA thus artificiallyfreezes the age of a child below 21 years of age so that he or she is notdeprived of permanent residency when the parent is granted the same status. Oneof the requirements, however, is for the child to seek permanent residencywithin one year of visa availability. Often times, a CSPA protected child fallsthrough the cracks by failing to meet the prevailing rigid filing requirementswithin the one-year deadline.

Both the Department of HomeSecurity (DHS) and the Department of State (DOS) have interpreted the phrase“sought to acquire” narrowly, althoughunpublished decisions of the Board of Immigration Appeals have taken a broaderview. DHS limits this phrase to filing an I-485 application for adjustmentof status. See “Revised Guidance for CSPA” (April 30, 2008). The DOS too has interpreted “sought toacquire” narrowly and indicated that in consular processing cases, the datethat a child seeks to acquire LPR status is the date Form DS 230, Part I, issubmitted by the child, or by the child’s parent on the child’s behalf to theNational Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January17, 2003), See “ChildStatus Protection Act: ALDAC 2” (January 17, 2003). If the principalbeneficiary parent adjusts status in the US, and the child will be applying forthe visa overseas, the DOS requires the principal to file Form I-824 toinitiate the child’s follow-to-join application. The DOS has also indicatedthat since Form I-824 is not the only way to initiate the process, posts mayseek advisory opinions in cases in which some other “concrete” step has beentaken.

The US consular post we weredealing with insisted that the applicant did not seek to acquire permanentresidence within one year because the applicant only paid the visa processingfees with the National Visa Center, but did not file the DS 230, Part 1, withinone year of visa availability. The payment of the visa processing fee was notsufficient to constitute “sought to acquire” permanent residence within the oneyear time frame.

Upon receiving official confirmation of the refusal at theUS consular post, we sought an advisory opinion from the Visa Office through legalnet@state.gov. Although weacknowledge that they are not binding on the State Department, we pointed to recentunpublished decisions of the Board of Immigration Appeals (BIA), which haveinterpreted the “sought to acquire” term more broadly, that should still bepersuasive. For example, In In re Murillo, 2010 WL 5888675 (BIA Oct.6, 2010) the BIA reaffirmed its broadened “sought to acquire” to includesubstantial steps towards the filing of the relevant application, althoughthese steps may fall short of an actual filing of an application. In this case,the applicant claiming protection under the CSPA hired an attorney to preparean I-485 adjustment application within the one year time frame, but filed itwithin a reasonable time thereafter. This decision follows closely on the heelsof other unpublished Board decisions that have applied the same “sought toacquire” standard. SeeIn re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the childbeneficiary “sought to acquire” LPR status within one year of visa approvalbecause her parents hired an attorney to start preparing the adjustmentapplication within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759(BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-yearperiod when, during this time, he informedboth the Immigration Judge and the Board that he wished to file an adjustmentapplication, even though the application was not actually filed within oneyear).

It is in thesame spirit as the unpublished BIA decisions, and consistent with INA§203(h)(1)(A), we requested that theVisa Office advise the Consul to consider the fact that the filing fee paidwithin the one year time frame constituted a very concrete step towards seekingpermanent residency. Indeed, payment of the fees constituted a much morecredible step towards seeking permanentresidency than making an informal requestto the NVC or contacting an attorney, which are the facts supporting theaforementioned BIA decisions. We alsopointed out to Visa Office, as we did with the consulate unsuccessfully, thatthe Foreign Affairs Manual (FAM) at 9 FAM 42.42 N12.9 recognizes the complexityof the CSPA, and advises that a Consul may seek an advisory opinion in thefollowing instance:

Ifthe officer encounters a case involving a derivative following to join alegally admitted immigrant, or adjusted principal, who has not filed FormI-824, Application for Action on an Approved Application of Petition, on thederivative’s behalf within the required time frame, but the consular officerdetermined that the derivative has taken some other concrete step to obtain LPRstatus within the required one year time frame.

We thereforeasked that the Visa Office provide such an advisory opinion under the authoritylaid out in the FAM, and advise the consular officer that other concrete stepstaken to obtain LPR status, such as the payment of immigrant visa fees thatoccurred here, may be considered.

In less thantwo weeks from seeking the advisory opinion just prior to the New Year (2012),we received the following communication from the Visa Office:

Thank you for your inquiry to LegalNet. Since the derivative applicants submitted their IV fee within one year of visaavailability, the Consular office will consider CSPA's sought to acquirerequirement satisfied. The visa unit in [redacted] will contact theapplicants to resume processing.

EDGE SAYS INDIAN 2- YEAR MASTER'S DEGREE FOLLOWING 4-YEAR BACHELOR'S IS NOT EQUIVALENT TO US MASTER'S DEGREE

2012-01-13T17:09:00.000-08:00

By Cyrus D. Mehta

Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3. Indeed, the EB-3 backlog for India is unimaginable and totally untenable. It is estimated that it will take 70 years for the green card for a person from India who establishes his or her priority date in 2012!

To be classified under the EB-2 pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign equivalent 4-year bachelor’s degree plus five years of post baccalaureate experience.

In the United States, one normally obtains a master's degree after completing a 2-year program following a 4-year bachelor's degree. Thus a student has to undertake 6 years of study in order to be awarded a master's degree from an accredited US college or university.

It has generally been assumed that a foreign master's degree, obtained after 6 years of education, would generally be equivalent to a US master's degree. EDGE (Electronic Database For Global Education), administered by the American Association of Collegiate Registrars and Admissions Officers provides information on foreign degree equivalence from educational institutions from around the world. It is treated as gospel truth by the USCIS in determining whether a foreign degree is equivalent for immigration purpose. Till recently, EDGE has correctly said that an Indian 4-year degree, such as a Bachelor of Technology degree, followed by a 2-year master's degree, is equivalent to a US master's degree. On the other hand, a master's degree following a 2- or 3-year Indian bachelor's degree only equated to a US bachelor's degree and not a master's degree.

It has recently come to our attention, thanks to Natalie Muehlberger of Trustforte Corporation, that EDGE has recently downgraded many Indian master's degrees. This is how EDGE, a paid service, describes it now:

Credential Description

Awarded upon completion of 1.5-2 years of study beyond the three-year bachelor's degree or four year BTech or BEngr degree.

Credential Advice

The Master of Science represents attainment of a level of education comparable to a bachelor's degree in the United States.

Thus, regardless of whether the master's degree is obtained after a 3- year or a 4- year bachelor's degree program in India, EDGE is now equating both to a US bachelor's degree. This downgrade of Indian master of science degrees would impact those who would otherwise qualify under the EB-2 as the USCIS closely relies on EDGE. We do hope that EDGE realizes that it is wrong and reverts to its earlier assessment that a master's degree, following 6 years of education, is equivalent to a US master's degree and not a bachelor's degree. In addition, EDGE has also downgraded the Indian MBA, regardless of whether it was preceded by a 4-year engineering degree and the Indian master of science by research degree (which no longer appears in EDGE at present). Fortunately, EDGE is still maintaining, according to Ms. Muehlberger, that 2 years of coursework in business management leading to a post-graduate diploma from the prestigious Indian Institute of Management, India, is comparable to a master's degree in the United States. EDGE also still finds that an Indian master of technology or engineering degree, and master of computer applications degree, is equivalent to a US master's degree. The same logic should hold true for other Indian master of science and MBA degrees, following a 4 year bachelor degree. It is therefore important to constantly check the foreign national's educational credentials with EDGE before embarking on an employment-based green card sponsorship.

Since USCIS follows EDGE, the beneficiary of an I-140 petition with an Indian master's in the above situations may be only able to qualify under the EB-2 if he or she can demonstrate a bachelor's degree (since this master's degree will still equate to a single source bachelor's degree) plus 5 years of progressive experience following this degree. If the beneficiary does not have the 5 years of post-baccalaureate experience, he or she will have no choice but to be classified under the EB-3, and if born in India, the green card will materialize after decades.

If EDGE does not revert to its original position with respect to Indian master of science degrees and the MBA, petitioners and their attorneys should still endeavor to convince the USCIS, or then litigate before the AAO and in federal court, that a 2-year Indian master of science degree following a 4- year bachelor's degree ought to be comparable to a US master's degree. In a 2009 USCIS liaison meeting, the agency indicated that it would still be receptive to arguments notwithstanding a contrary EDGE finding:

USCIS considers all sources, including EDGE and AACRAO databases, and has received many evaluations where the evaluators list membership in AACRAO in their credentials and list AACRAO publications as their reference materials. USCIS adjudicators review all evidence in the record and make determinations based on the individual facts of each case. The AAO's decisions are available to the public and provide an extensive compilation of the results of its findings as to the equivalency of particular foreign degrees.

The USCIS pursuant to its 2009 guidance ought to be receptive to arguments that an Indian master's degree following 6 years of post-secondary education is functionally equivalent to a US master's degree. Otherwise, the EDGE downgrade with Indian master of science and other degrees will strike another blow to Indians, who will then be endlessly mired in the EB-3 even though they qualify for a position that requires an advanced degree. It will also be another example of how the USCIS constantly shifts the goal posts concerning foreign equivalent degrees, adversely and unfairly impacting mostly skilled foreign nationals with Indian degrees.

(The blog was amended on January 18, 2012 to clarify that the downgrade only applies to Indian master of science degrees and a few other degrees but not all Indian master degrees)

UPDATE: EDGE FLIP FLOPS - SHOULD USCIS BE RELYING ON EDGE SO SLAVISHLY? - JANUARY 20, 2012

The author has learned today that EDGE has again reverted to its former position. It has deleted within the entry that a master of science degree beyond a 4 year degree is equivalent to a US bachelor's degree. It leaves intact within that entry that a master's degree following a 3 year bachelor's degree is equivalent to a US bachelor's degree. Does this mean that a master of science degree following a 4 year bachelor's degree is equivalent to a master's degree? We hope that the USCIS follows this logic and agrees. On the other hand EDGE now has an entry , and this is very strange, indicating that the master of engineering or master of technology degree following a 4 year bachelor of technology or bachelor of engineering degree is equivalent to a US bachelor's degree. This cannot be the case and must be an error! In yet another entry, EDGE says that an Indian master of physiotherapy, master of science (nursing), master of science in engineering/technology, master of pharmacy and master of laws, following 4 or 5 year bachelor degree programs is equal to US master's degree. All this is completely inconsistent with the downgrade, and results in uncertainty for those who rely on EDGE in filing immigrant visa I-140 petitions to get classified under the EB-2. Perhaps, USCIS, given these flip flops and inconsistencies, should no longer treat EDGE as the gospel truth with respect to determining whether these degrees are equivalent to US degrees, and give more credence to justifications provided from other reliable sources determining the accurate equivalence of such degrees.

WHAT THE PROPOSED PROVISIONAL WAIVER RULE MEANS FOR THOSE FACING 3- OR 10-YEAR BARS

2012-01-06T10:47:00.000-08:00

By Cyrus D. Mehta and David A. Isaacson

In the raging immigration debate concerning the millions of undocumented immigrants in the US, one important issue has received scant attention. We have yet to meet a person who has roots in the US who desires to choose to remain undocumented. Most are forced to remain undocumented even though they have a pathway to a green card due to a perverse Catch 22 effect in our immigration law as a result of the 3 and 10 year bars imposed under INA § 212(a)(9)(B).

Those who have remained unlawfully present in the US for 1 year or more face a 10 year bar to reentry if they depart the US. Similarly, those who have remained unlawfully present for more than 180 days face a 3 year bar to reentry if they depart the US. It should be noted that the term “unlawfully present” is a complex legal term and a discussion of this term is beyond the scope of this blog. These individuals, if they are the beneficiaries of an approved immigrant visa petition filed by a US citizen spouse or parent or a US citizen child (who is over 21), may often be unable to adjust their status in the US. Under INA § 245(a) one has to be inspected or paroled in order to qualify to adjust status to permanent residence in the US. Thus, a non-citizen spouse of a US citizen who previously surreptitiously crossed the border from Mexico into the US would be ineligible to adjust status because she was not inspected under § 245(a). Of course, there are exceptions to this rule too, which is beyond the scope of this blog and an article discussing these exceptions can be found here. This spouse would need to leave the US and apply for an immigrant visa at the US consulate in her home country. However, if she was unlawfully present in the US for 1 year or more, it would result in her triggering the 10 year bar to reentry. Although, under the current regime, she can apply for a waiver under INA § 212(a)(9)(B)(v), she can only do so after she has departed the US.

Obtaining the waiver is no small matter because she has to demonstrate extreme hardship to the US citizen spouse if the waiver is denied. The emotional angst resulting from the separation of two spouses is not enough. She will need to demonstrate, in addition to the emotional issue, financial, cultural, political and health conditions, among many others, as well as the balancing of ties within and outside the US. See Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). Thus, this spouse will be rolling the dice if she departs the US to chance winning the waiver while outside the US. If the waiver is denied, she will be stuck outside the US and will be separated from her loved ones. Moreover, she can only demonstrate extreme hardship to a limited universe of qualifying relatives, which include a spouse or a parent. If she has US citizen children, under INA § 212(a)(9)(B)(v), she cannot demonstrate extreme hardship to them if she is separated.

It is not hard to see why there has been such a huge build up of the undocumented population in the US. Even while people may be eligible for permanent residence, they are unwilling to leave and chance a waiver from outside the US. While Congress enacted INA § 212(a)(9)(B) to deter overstays, it has had the exact opposite effect. People overstay, despite being approved for a green card, because of fear of facing the 3 or 10 year bars.

It is thus heartening that the Obama administration has proposed a rule that will be published in the Federal Register on January 9, 2012 in the form of a Notice of Intent to publish such a rule, which will permit intending immigrants to apply for a provisional waiver in the US prior to their departure from the US. This rule, if published, will remove the uncertainty in leaving the US and being barred for 3 or 10 years if the waiver application is denied. Under the proposed rule, the waiver can be applied for while in the US. With the waiver in hand, the individual departing the US can more readily hope to reenter the US without facing the 10 year bar. This move has received thunderous applause from the immigration advocacy community and rightly so. In a time when Congress is virtually paralyzed and cannot even make small tweaks to improve the immigration system, the proposing of a smart administrative rule such as this one is consistent with the intent of the law. People subject to the 3 or 10 year bars still need to apply for the waiver and meet the rigorous “extreme hardship” standard, except that they can apply for it in the US prior to their departure. If they obtain the waiver, they can at least be assured of not triggering the 3 or 10 year bars upon their departure.

Apparently, if and when the rule takes effect, which under the formal rule making process may take some time, it will be limited to immediate relatives of US citizens who are seeking a § 212(a)(9)(B)(v) waiver of unlawful presence based on hardship to a US citizen, although the petitioning US citizen and the one to whom extreme hardship exists need not be the same (so that, for example, it appears that the parent of a 21-year-old US citizen petitioned for by that son or daughter would qualify if seeking a waiver based on extreme hardship to a US citizen parent, the grandparent of the petitioning relative). It appears that the rule will not cover people who are not immediate relatives of a US citizen (such as the over-21-year-old son or daughter of a US citizen who is petitioned for by their parent and not protected by the Child Status Protection Act), or whose qualifying relative for the waiver is a lawful permanent resident. It also will not cover people who need some other sort of waiver in addition, such as a waiver under INA § 212(i) for fraud. It is not entirely clear whether the proposed rule would cover people who in addition to a waiver under § 212(a)(9)(B)(v) need to obtain permission to reapply for admission because their departure will execute an order of removal and create inadmissibility under INA § 212(a)(9)(A), but it would seem that it should, since such applications for permission to reapply can already be filed in advance under existing regulations-- the actual proposed rule may clarify this when it comes out. We do urge the USCIS to at least include sons and daughters of US citizens who do not qualify as immediate relatives. A child who has turned 21, and who may not be protected under the Child Status Protection Act, still remains very much part of the nuclear family especially in hard economic times when their parents are still the lifeline. These adult children, technically referred to as sons and daughters, would otherwise qualify under DREAM Act legislation, and may at least be able to take advantage of this provisional waiver if the proposed rule is adjusted to allow them to do so.

Although this new proposed rule may be portrayed as some sort of radical innovation by immigration restrictionists, it is actually nothing of the sort. The governing regulations, specifically 8 C.F.R. § 212.2(j), have long provided that one who is consular processing an immigrant visa, and will need permission to reapply for admission because his or her departure will execute an order of deportation or removal and create inadmissibility under INA § 212(a)(9)(A), can file the Form I-212 application for permission to reapply in advance of departing from the United States, and “shall receive a conditional approval depending on his or her satisfactory departure.” That is, people who will be subject to the 5- and 10-year bars based on executed removal and deportation orders (the length of the bar can vary depending on the circumstances of a removal order) have long been able to apply for advance waivers of those bars before they leave the US to consular-process an immigrant visa. This new proposed rule would simply update the regulations to create a similar procedure for the parallel 3- and 10-year bars created by IIRIRA (the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”), for people who remove themselves from the United States after being unlawfully present even though there may have been no removal proceedings against them. It can therefore be seen as a long overdue technical fix. However, it remains to be seen how long the rule making process will take, which includes notice and comment. There is also bound to be opposition to the rule. The USCIS still has to publish rules from the enactment of IIRIRA provisions in 1996! Hopefully, the Obama administration will give this high priority as the promulgation of such a rule may even reduce the undocumented population in the US.

This technical fix could also reduce inefficiency in the era of Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), especially if accompanied by an additional change in the proposal relating to potential issues of fraud. Under Quilantan, entering the United States at a port of entry with the permission of an immigration officer is sufficient to create eligibility for adjustment of status as an immediate relative of a U.S. citizen, regardless of whether one’s entry was procedurally proper, as long as the entry did not involve a knowing false claim to U.S. citizenship. Many people who were waved through the border as passengers in a car or the like have little corroborating evidence of their manner of entry. Absent this regulation, if such a Quilantan entrant is married to a U.S. citizen and is denied adjustment because USCIS rejects their testimony regarding manner of entry, they will effectively be forced to request that removal proceedings be commenced against them so that they may testify before an Immigration Judge and seek to establish their manner of entry by credible testimony as Ms. Quilantan did in her case. Under the new procedure, some such Quilantan entrants may decide that it is simpler to seek an advance waiver of inadmissibility, as long as their qualifying relative’s particular form of extreme hardship is such that a brief trip abroad to pick up an immigrant visa will not be intolerable. If the advance waiver is approved, the already overcrowded immigration court system would then be spared the necessity of hearing testimony regarding the applicant’s manner of entry. One caveat, however, is that the current version of the proposal, which excludes waivers of fraud-related inadmissibility under INA § 212(i), could lead potential applicants and their attorneys to fear a potential finding of fraud inadmissibility by a consulate where the circumstances of the applicant’s prior entry into the United States are murky and difficult to prove (making it hard to refute an inaccurate consular suspicion that some fraud may have been committed). The potential efficiency would be much greater if the USCIS proposal were modified to allow either advance waivers under INA § 212(i), or at least an advance finding that no fraud was committed by an applicant. Otherwise, Quilantan entrants within the U.S. may be reluctant to give up their right to have an Immigration Judge (and if necessary the BIA) adjudicate their contention that they did not commit fraud in their entry, and to instead be at the mercy of an effectively unreviewable determination by a consular officer.

IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS

2011-12-21T09:49:00.000-08:00

By Myriam Jaidi

U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate. The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.” Visits are conducted pre- and post-adjudicationon randomly selected applications and petitions. Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status. Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear. There is a great deal riding on these site visits: if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition. If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice? Nothing earth shattering: Be prepared. If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a sitevisit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany theofficer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary. The officerwill usually want to speak with the signatory and the beneficiary. If those individuals are not available, the officer should be asked to providecontact information for a follow up discussion. The officers may also want to verify details with the signatory or beneficiary by phone or via emailafter conducting the site visit, if they are not available at the time of the visit. If the beneficiary is not available at the worksite, for examplebecause he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocationcould result. If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees areaware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include:

To the petitioner, about the petitioner

Verify the signatory of the petition, his or her position within the organization
Whether the signatory is aware that an H-1B petition was filed for the beneficiary
Check the ID of the petitioner’s signatory
Total number of employees at the petitioner’s company
Number of employees on H-1B status
Number of employees with LPR status
Gross annual income
Net annual income

To the petitioner, about the beneficiary:

Start date with the organization
Current salary
Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

Name of the employer/petitioner
Offer letter for the position with the petitioner
W2 for the most recent year
Most recent paystubs
Description of job duties
Photocopies of qualifying degrees
Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

Describe the relationship between end client and the petitioner
Does the end client anticipate receiving the services of the beneficiary?
If the answer is yes, the end client may be asked to provide
- beginning and ending dates of beneficiary’s employment;
- job description/duties;
- beneficiary’s physical work location
- project description of the task to which beneficiary has been assigned; and
- name and title of the beneficiary’s supervisor
Is end client aware that the beneficiary is an employee of petitioner?
Who assigns work to the beneficiary?
Who does the end client contact about employee related issues for the beneficiary?

You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary. We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition. After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary. As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them. Where is the attorney in this process? Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process. Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices). Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored. USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement: “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliancereviews.” Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.

BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD

2011-12-12T10:33:00.000-08:00

Verify the signatory of the petition, his or her position within the organization
Whether the signatory is aware that an H-1B petition was filed for the beneficiary
Check the ID of the petitioner’s signatory
Total number of employees at the petitioner’s company
Number of employees on H-1B status
Number of employees with LPR status
Gross annual income
Net annual income

To the petitioner, about the beneficiary:

Start date with the organization
Current salary
Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

Name of the employer/petitioner
Offer letter for the position with the petitioner
W2 for the most recent year
Most recent paystubs
Description of job duties
Photocopies of qualifying degrees
Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

Describe the relationship between end client and the petitioner
Does the end client anticipate receiving the services of the beneficiary?
If the answer is yes, the end client may be asked to provide
- beginning and ending dates of beneficiary’s employment;
- job description/duties;
- beneficiary’s physical work location
- project description of the task to which beneficiary has been assigned; and
- name and title of the beneficiary’s supervisor
Is end client aware that the beneficiary is an employee of petitioner?
Who assigns work to the beneficiary?
Who does the end client contact about employee related issues for the beneficiary?

HOW FAIR IS THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT?

2011-12-04T18:18:00.000-08:00

By Cyrus D. Mehta

H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

H.R. 3012 only redistributes the allocation of visas, it does not increase the visas that are fixed in number each year. As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only 300,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the Employment-based second preference (EB-2), those born in India and China have to wait for over 5 years to obtain green cards while all other nationalities do not have any wait times. The situation is even more dire in the Employment-based third preference for India (EB-3). Under the per country limit for India in the EB-3, only 2,800 visas can be allocated each year while an estimated 210,000 Indians, along with their dependants, are eligible for green cards. As a result, according to a report of the National Foundation For American Policy, the waiting time for a green card for an Indian under the EB-3 has been estimated to be 70 years, while it may be over 5 years for others.

As a result of such unmanageable waiting times, skilled foreign nationals in the pipeline for a green card, especially from India and China, have no incentive to stay in the US even though they may be invaluable to their employers who have sponsored them by demonstrating that there were no US workers available for the position. Many of these skilled immigrants have graduated with degrees in science, technology, engineering and math (STEM), vital to US growth and innovation. Such skilled workers are generally on H-1B visas, but many are on other nonimmigrant visas such as the L visa too. Even though they are able to extend their H-1B visas beyond the six year limit while waiting for the green card under provisions in the American Competitiveness in the 21^st Century Act (AC21) (and many are already past 10 years on the H-1B visa), they are generally bound to the same employer during the green card process and their spouses cannot work. If their children turn over 21, they lose the ability to remain on the H-4 dependent status and most likely will also be unable to derivatively get the green card along with the parent.

The passage of H.R. 3012 has been met with jubilation by Indians and Chinese, but those from the rest of the world may not be so happy. While Indians and Chinese may still need to wait, the waiting times will get more tolerable, but others who did not have to wait in the EB-2 will now need to wait. While it is hard to predict, there may eventually be waiting times of 1-2 years for all countries in the EB-2. While everyone in the EB-3 is subject to unreasonable waiting times, upon the elimination of the per country limits, Indians may still need to wait but it will not be for 70 years. Instead, it may be 10-12 years for all EB-3 nationals, according to the NFAP report. Those who have priority dates prior to November 2005 in the EB-3, according to the NFAP report, will need to wait only 1 to 2 more years instead of an additional torturous 11-18 years. While waiting times for Indian and Chinese may likely lessen, waiting times for all others may go up in both the EB-2 and the EB-3.

H.R. 3012 is thus not a perfect bill. It also has to be passed by the Senate before it becomes law, and there is an identical version introduced in the Senate. At present, Senator Grassley (R-1A), who has been a foe to skilled immigrant from India, including H-1Bs used by Indian IT companies, has placed a hold on legislation in the Senate. Senate procedures allow any member of the Senate to place such a hold on legislation, and it is uncertain whether Grassley will release his hold in the near future, although he is being persuaded to do so by colleagues and advocates. What is so significant about H.R 3012 is that it received bipartisan support and that too by a landslide, especially in a time when such bipartisan support on other measures is rare or non-existent. The easy passage of H.R. 3012 also shows that there is concern about the unfairness and imbalance in the system towards certain countries, especially India and China. Indeed, although the country limits were originally enacted for all countries, it has resulted in invidious discrimination within the immigration system for Indians and Chinese.

Things may work out better than expected if H.R. 3012 became law, though, as we have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because AC 21, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand in the EB outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today. The notes in the January 1, 2005 Visa Bulletin, when there was retrogression in the EB-3 for the first time after AC21, explains it all.

In conclusion, even if H.R. 3012 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness.

The words of Justice Jackson ring true with respect to H.R. 3012 too:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

Of course, H.R. 3012 ought to be viewed as a first baby step towards more comprehensive immigration reform. Even if it does become law, and skilled immigrants continue to wait, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities. If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to EB immigrants, Congress can exempt certain people from the numbers such as graduates with STEM degrees, or better still, dependent family members. Such carve outs too could restore further balance and integrity to the US immigration system.

SHUTTING DOWN GLOBAL BUSINESS IN AMERICA: WHY THE H-1B CAP HURTS US ALL

2011-11-23T20:47:00.000-08:00

By Cyrus D. Mehta

The USCIS announced that November 22, 2011 was the final receipt date for accepting H-1B petitions under the 65,000 cap of FY2012. The 20,000 advanced degree cap was reached even earlier on October 19, 2011. Any H-1B petitions filed after that date will get rejected. The new fiscal year started only on October 1, 2011 and the H-1B cap was reached less than 2 months later.

If a company now wishes to hire a badly needed engineer from abroad, it will need to wait till October 1, 2012 before this person can come on board. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers.

What is particularly counterintuitive with the H-1B cap is that it completely negates the recent Administration’s policy to encourage foreign entrepreneurs to create startup companies, resulting in job growth. On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” In the H-1B Question and Answers accompanying the August 2, 2011 announcement, the USCIS appears to reaffirm the existence of the separate corporate entity, and its ability to sponsor its owner or investor on an H-1B visa so long as an employer-employee relationship can be demonstrated between the company and the beneficiary. This may be established by creating a separate board of directors, which has the ability to hire, fire, pay supervise and otherwise control the beneficiary. There is nothing preventing such a board constituting foreign nationals or family members of the beneficiary.

In the experience of this author, the August 2, 2011 announcement fired the imagination of lots of entrepreneurs who had dreams of making it big in the US, notwithstanding the sluggish economy and the stubbornly high unemployment rate. With the convergence of social media, wireless technology and the cloud, it has never been easier for anyone anywhere to be an entrepreneur and also have access to the best infrastructure. Foreign students while still in their dorms have dreamed of starting Facebook-style ventures and being able to work for them under an H-1B visa. Many inquiries came in from people in other parts of the world with bold new ideas about how to go about this, and while the August 2, 2011 policy may yet not have seeped down into the rank and file of the immigration bureaucracy, it was possible to outright win the occasional H-1B visa for a client who was part of an interesting startup. All these entrepreneurial dreams have now been dashed with the announcement of the H-1B cap being reached on November 22, 2011 – and that too just before Thanksgiving. The August 2, 2011 policy will never be able to take fruition, at least until October 1, 2012, and allow entrepreneurs to thrive in the US and create jobs. While there are other options for entrepreneurs, using a startup for an H-1B visa did not require huge sums of money or a close affiliation with a foreign entity. Unlike the Treaty Investor Visa, which only applies to nationals of countries that have a treaty with the US (and the dynamic BRIC countries are excluded), the H-1B visa was open to all nationals.

Mr. Mayorkas has also been receptive to initiating changes in the USCIS Adjudicators Field Manual and training manuals for the USCIS, based on suggestions by Vivek Wadhwa and other entrepreneurs. These suggestions intend to make USCIS examiners aware of some unique features of startups, especially those in stealth mode, which may lack extensive promotional materials and the like. The lack of an organizational structure in a startup ought not to dissuade the USCIS from granting an H-1B visa. While entrepreneurs may be able to avail of other green card categories, such as the National Interest Waiver, the H-1B visa allows the entrepreneur to quickly enter the US and be able to work through his or her startup. After the announcement of the H-1B cap, unless one has been the subject of a prior approved H-1B petition, and thus been counted before in the past 6 years, the H-1B visa will not be available until Ocotber 1, 2012, and a person brimming with bright ideas may be better off setting up the startup in another country even if Mr. Mayorkas is willing to make changes in the AFM.

It is obvious that we need more H-1B numbers, but will Congress, which is in a stalemate, rush to the rescue of US employers and startups? Other factors have also contributed to the cap being reached so soon this year. Perhaps, certain parts of the economy have been ticking again, and employers were scrambling to fill positions with badly needed foreign skilled workers. Business immigration lawyers, after all, tend to see upticks and downturns in the economy faster than others! The wholesale denial of L-1B visas at the US Consulates in India may have probably forced companies to rely on the H-1B visa more than necessary. Note, though, that many prefer the L-1B to the H-1B since the spouse of an L-1 worker can also work in the US. The H-4 spouse, by contrast, is not allowed to partake in any activities that have the semblance of work, even if it is selling a work of art that was created as part of a hobby. The H-4 spouse has to obtain his or her own H-1B. Clearly, the decline in L-1 approvals in India has sucked up more H-1B numbers this year. Finally, the B-1 in lieu of H-1B visa was also placed under a lot of scrutiny this year, which robbed those who were assigned to the US on short term assignments easy flexibility and also forced them to use the H-1B visa.

AILA President Eleanor Pelta sums it all up very nicely, “During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine? The marketplace dictates the pace and type of demand by business for specialized workers. To be more competitive globally, we really should be smarter about our high skilled visa distribution so that it is related to market needs instead of pinned to a static limit that was determined by Congress in the last decade. Congress needs to be working on ways to make the visa system work for fueling the economy. The status quo is no longer acceptable.”

THE ETHICAL ROLE OF THE ATTORNEY UNDER ALABAMA'S ANTI-IMMIGRANT LAW

2011-11-11T21:35:00.000-08:00

By Cyrus D. Mehta

Alabama’s immigration law, HB 56, is aimed at making life miserable for unlawfully present immigrants, and is intended to drive them out of the state. The law criminalizes a person’s very existence in Alabama. Many portions of the law have been enjoined pending appeal by the 11^th Circuit Court of Appeals in USA v. Alabama, 2011 WL 4863957 (C.A 11 (Ala.)), although some very troubling provisions still remain and have taken effect.

What is the role of the attorney in advising non-citizens who may be committing crimes in Alabama by virtue of simply being alive in Alabama? At this point in time, Section 30, which is very much in effect, makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof. Although “business transactions” may be thought of as activities such as renewing a license or commercial activities with the government, it already appears to be going beyond these activities and can apply to any dealings with state or local governments. A powerful IPC Report highlighting Section 30’s impact, Turning Off The Water, gives the example of an Alabama probate court putting out a notice that all individuals conducting business transactions with it must provide proof of US citizenship or that they are lawfully present in the US. Hence, a woman unlawfully present in the US who is applying to change her name after divorce from her abusive husband may be committing a felony under Section 30. The IPC Report also states that the town of Allgood, Alabama, has interpreted this provision to require all water customers to provide an Alabama driver’s license or Alabama picture ID in order to keep current water service. Alabama Power has asked for proof of lawful presence when a family tried to get electricity reconnected.

Model Rule 1.2(d), which has its analog under state bar rules, provides, “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows to be criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Does this mean that an attorney cannot advise a client who is unlawfully present to apply for the probate of her deceased husband’s will? Must an attorney thus advise an unlawfully present parent of three US citizen children to no longer contract with an Alabama utility for water and electricity in her modest dwelling? There are other provisions that also criminalize the person’s very being but have been temporarily blocked. Section 11(a) makes it a misdemeanor for an unauthorized alien to apply for, solicit, or perform any kind of work. Section 13(a)(2) makes it unlawful to encourage an unlawful alien to come to Alabama. Thus, an immigration attorney who represents a US citizen living in Alabama temporarily for work related reason, and who wants to sponsor his unlawfully present spouse living in Tennessee for a green card, may violate Section 13 if the attorney encourages her clients to live together in Alabama in order to strengthen their case to further establish that the marriage is bona fide.

Some provisions were not blocked before the law took effect. For instance, Judge Blackburn in the lower district court decision, USA v. Alabama, 2011 WL 4469941 (N.D. Ala.) did not enjoin Section 10, which criminalizes one who fails to carry a registration document and who is in the US unlawfully. Section 10 was enjoined only on October 14, 2011 by the 11^th Circuit Court of Appeals and was effective from September 30, 2011 until October 14, 2011. An attorney may have represented an unlawfully present client who had no registration documents, but who was eligible for asylum, and it took time to prepare and file a solid asylum application. If this attorney, even if outside Alabama, in the course of the representation logically advised the client to remain in Alabama in violation of Section 10 while it was in effect, would he or she have breached an ethical rule?

Sections 5 and 6 state that government officials including “an officer of a court” cannot block the enforcement of immigration laws by “limiting communication between its officers and federal immigration officials.” Because “an officer of the court” could include an attorney, this might require attorneys to reveal information about their clients to immigration officials, if demanded by government officials. This provision has already stirred consternation among local attorneys, and the President of the Morgan County Bar Association has predicted that there will be many lawyers who will challenge this provision before turning client information in to the government. Clearly, Sections 5 and 6 breach the Sixth Amendment right to counsel as the essence of this right is the ability to have privacy of communication with counsel. See U.S. v. Rosner, 485 F.2d 1213 (2d Cir. 1975). Even outside the criminal context, the same analogy applies to Sections 5 and 6. Federal statutes and regulations provide a right to counsel in removal proceedings, INA § 240(b)(4)(A), 8 C.F.R. § 1003.16(b), 8 C.F.R. § 1240.3, and any Alabama attacks on lawyer-client confidentiality would most certainly be a violation on the Supremacy Clause.

An ethical argument can be made that a lawyer may represent unlawfully present non-citizen clients in Alabama if they can ultimately seek an immigration benefit under federal law. For instance, a person who is unlawfully present is not driven out of the US under federal law, unlike Alabama, but has a right to appear before an Immigration Judge in a § 240 removal proceeding. As indicated in my prior blog on the ethical role of the lawyer in advising undocumented clients, under federal law, being unlawfully present is generally an infraction under civil immigration statutes. This individual may seek various forms of relief in removal, including cancellation of removal under INA § 240A or adjustment of status under § 245. He or she may still be considered unlawfully present under federal law, but can apply for work authorization, while pursuing relief applications, even if they have been denied in the first instance and are being appealed in federal court. Even a person who has an outstanding order of removal may seek to apply for an administrative stay of removal or supervised release as well as apply for work authorization. While this unlawfully present individual legitimately pursues relief and is permitted to work, his or her existence in Alabama is criminalized and is not allowed to contract with the state for electricity and water. Further examples of how Alabama’s, and even Arizona’s, anti-immigrant laws absurdly conflict with federal law are amplified in David Isaacson’s blogs. A lawyer, after discussion the consequences of various courses of conduct, may permit a client to disobey a law if the lawyer in good faith believes that this law will ultimately be held unconstitutional. Arizona’s law, SB 1070, which contain many similarly ridiculous provisions that conflict with federal law, has been enjoined as unconstitutional in USA v. Arizona, 641 F.3d 399 (9^th Cir. 2011). A law that is ultimately held to be unconstitutional is no law at all. Of course, the lawyer bears some risk if the law’s constitutionality is ultimately upheld, but it may also be possible, that under federal law his or her client may have obtained permanent residency after being unlawfully present, or at least been granted permission to remain in the US to pursue applications for immigration benefits.

VISA OPTIONS FOR FOREIGN ENTREPRENEURS IN THE US - WHILE KEEPING AN EYE ON THE POTENTIAL TRAPS AND PITFALLS

2011-11-07T07:08:00.000-08:00

By Cyrus D. Mehta

On paper, there are many attractive options for foreign entrepreneurs to live and work in the US temporarily without investing large sums of money. This blog takes the reader through these options, but will also make one aware about the many traps that may befall him or her on the way to achieving fame and fortune in the land of opportunity. This may sound a bit cliché as the US economy remains sluggish and the unemployment rate hovers over 9%, along with the fact that immigration bureaucrats have been tending to restrictively apply the rules. Yet the Administration, at the highest levels, has welcomed entrepreneurs and investors. On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” Many were left wondering whether this was simply hot air or whether it represented an attitudinal shift to encourage a surge of entrepreneurs into the US.

H-1B Visa

The DHS announcement acknowledged that the H-1B visa, which is the workhorse nonimmigrant work visa, could be used by entrepreneurs who formed their own entities and were even the owners of these entities.The H-1B visa requires the employer to demonstrate that the position normally requires a bachelor’s degree is a specialized field, regardless of the size of the company or the investment. Prior decisions have recognized the existence of the separate corporate entity as being able to petition for the beneficiary, even though it may be solely owned by him or her. However, in recent times, this concept got somewhat muddied by the insistence that the sponsoring entity also control the H-1B worker’s employment, and such a sponsorship could not be possible when the H-1B worker owned the sponsoring entity. In the H-1B Question and Answers accompanying the August 2, 2011 announcement, the USCIS appears to still hold the line about the need to demonstrate an employer-employee relationship, but has conceded that this can nevertheless be demonstrated even when the owner of the company is being sponsored on an H-1B visa. This may be established by creating a separate board of directors, which has the ability to hire, fire, pay supervise and otherwise control.There is nothing preventing such a board constituting foreign nationals or family members of the beneficiary.

Yet, despite this announcement, USCIS officers in the field still appear to display an anti-small business attitude. Take the example of Amit Aharoni, an Israeli citizen who graduated with an MBA from Stanford University. He founded a hot startup, www.cruisewise.com, and received over $1.65 million in venture capital funding. The H-1B visa that was filed on his behalf by the company got denied and he was forced to leave the US and run his company from Canada. It was only after ABC news reported the story that the USCIS changed its mind and reversed the denial.Since the H-1B visa requires a bachelor’s degree in a specialized field, be aware that when one is managing a small company as its CEO, the USCIS may absurdly view the position based on old administrative decisions as too generalized and not requiring a specialized bachelor’s degree. See Matter of Caron International Inc., 19 I&N Dec. 791 (Comm. 1988). While Mr. Aharoni was fortunate that the USCIS relented because the media shone a bright light on his case, one wonders how many similar deserving cases that have not received media attention have been denied, resulting in the loss of so many jobs here. The H-1B visa is also subject to a 65,000 annual cap, which gets exhausted well within the fiscal year.

L-1A Visa

If the entrepreneur has been running a company in his or her home country as a manager or executive, the L-1A visa also readily lends itself to a foreign national who wishes to open a branch, subsidiary or affiliate in the US, but it is important that the beneficiary must still be able to establish that he or she will work in an executive or managerial capacity. The source of the salary can come from the foreign entity. Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). A sole proprietorship can also qualify as a qualifying entity for L purposes. Johnson-Laid v INS, 537 F.Supp. 52 (D. Or. 1981). If the beneficiary is a major stockholder or owner, then "the petition must be accompanied by evidence that the beneficiary's services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States." 8 CFR § 214.2(l)(3)(vii). The purpose of this regulation is to ensure that the beneficiary will maintain the qualifying foreign entity, which is a pre-requisite for the L visa. The entity in the US must generally be the subsidiary, parent or affiliate of the foreign entity.

Yet, in recent years, the USCIS has come down on L-1A petitions by small businesses with a heavy hand. Denial decisions often argue, albeit erroneously, that the manager in a small business would also be involved in day to day operations, which are considered disqualifying activities. Despite the salutary amendment to the L-1A definition by the Immigration Act of 1990 to also include one who manages an essential function, INA § 101(a)(44)(A)(2), as opposed to people, the USCIS appears to have read this provision out of the INA by insisting that such a manager still cannot perform the duties of the function. There have also been credible reports that the US Consulates in India have been denying L visa applications in what is thought to be an unofficial trade war against India, although these also include employees of established global companies who are applying for L-1B specialized knowledge visas.

E-1 and E-2 Visas

The E-1 and E-2 visa categories lend themselves readily to foreign entrepreneurs, but they are only limited to nationals of countries that have treaties with the US. This category thus disqualifies entrepreneurs from dynamic BRIC countries – Brazil, Russia, India and China. For the E-1 visa, the applicant must show substantial trade principally between the US and the foreign state. For the E-2 visa, the applicant must demonstrate that he or she has made a substantial investment in a US enterprise. While there is no bright line amount as to what constitutes a substantial investment, it must be weighed against the total cost of purchasing the enterprise and whether the investment will lead to the successful operation of the enterprise. However, based upon the proportionality test in the Foreign Affairs Manual,the lower the cost of the enterprise, the investor under the E-2 will be expected to make a higher proportion of investment. 9 FAM 41.51 N.10. Note that the E-2 visa will be denied if the enterprise is marginal – if it does not have the present or future capacity to generate more than a minimal living for the investor and family.

Conclusion: The Importance of Foreign Entrepreneurs

These three options, if applied consistent with the true intent under their respective statutory statute provisions, provide wonderful opportunities for foreign entrepreneurs, including students graduating out of a US university, to implement their business ideas in the US. Unfortunately, in recent times, immigration adjudicators have become the self-appointed guardians of US economic well being by assuming that the entry of foreign nationals in the US would eliminate US jobs. In fact, it is quite the opposite as such individuals through their innovations will generate more jobs for Americans. New York City Mayor Bloomberg has categorically called the failure to bring in foreign entrepreneurs and skilled workers as being akin to committing “national suicide.”There also exists the Employment-based Fifth Preference (EB-5) pursuant to INA §203(b)(5) resulting in permanent residency, which is specifically designed for investors, but this involves an investment of $1 million (or $500,000 in targeted areas with high unemployment or that are rural) and the creation of 10 jobs. Investments in designated regional growth centers allow the showing of the indirect creation of 10 jobs and also allow passive investment. The H-1B, L and E categories can offer speed and flexibility to a foreign entrepreneur who may not be able to afford a $ 1 million or $500,000 investment, and the need to immediately create 10 jobs. Also, the EB-5 option is fraught with risks if the investor cannot show his or her own source of funds and if the 10 jobs are not created directly or indirectly at the end of the two year conditional residency period. Another important bill, the Startup Visa Act, remains stuck in Congress as a result of partisan stalemate, which would allow the investor to demonstrate that he or she has obtained funding or created jobs to a lesser degree than the EB-5. While we wait for the Startup Visa, an enlightened interpretation of the already existing H-1B, L and E visa categories for entrepreneurs will surely benefit the US at this point of time and be consistent with the Administration’s August 2, 2011 announcement.

EB-3 to EB-2 BOOST MAY NOT PROTECT YOUR CHILD UNDER THE CHILD STATUS PROTECTION ACT

2011-10-21T20:42:00.000-07:00

By Cyrus D. Mehta

If you were born in India and are being sponsored for a green card through your employer under the employment-based third preference (EB-3), the wait is likely to be 70 years. If your employer filed the first step towards the green card, the labor certification, sometime in 2006, and you managed to file an adjustment of status application (Form I-485) when the EB-3 miraculously opened up for one month under the July 2007 Visa Bulletin and closed after that, the wait may be shaved off by a few decades, but it will still be very long. The only saving grace, besides being able to derive the benefits as a pending adjustment applicant, is that the filing of the I-485 application in July 2007 may have frozen the age of your child under the Child Status Protection Act (CSPA) even if your child is substantially over 21 today. If the green card comes through for you finally after 40 years, your child will still be protected under the CSPA, even if he or she is middle aged by then, and be able to derivatively obtain the green card with you as a child.

Many who are in the never ending pipeline for the green card under the EB-3, especially those born in India, may have upgraded their qualifications and obtained an advanced degree, or if they already possess an advanced degree or the equivalent, they may today qualify for a position that requires an advanced degree. Their employers could file new labor certifications with a view to obtaining classification under the employment-based second preference (EB-2), which applies to job positions requiring advanced degrees or their equivalent while the EB-3 is applicable to positions requiring bachelor’s degrees or 2 or more years of training or experience. The EB-2, while still backlogged for India, is moving substantially faster than the EB-3.

Take the example of a foreign national born in India whose employer originally filed a labor certification on November 1, 2006 for a position requiring only a bachelor’s degree and some experience. The next step in the process upon the approval of the labor certification, the I-140 immigrant visa petition, was filed on March 1, 2007 under the EB-3 and was subsequently approved. At the time of filing the I-140 petition, his daughter, who was born on March 1, 1988, had just turned 19. When the State Department opened up the EB-3 during July 2007, our foreign national from India rushed to file the I-485 applications for himself, his spouse and his daughter who was still 19. The filing of the I-485 application for his daughter, on say July 15, 2007, permanently froze her age under INA section 203(h)(1). Under Section 3 of the CSPA, which has been codified in INA section 203(h)(3), if the child’s age is below 21 when the visa petition is approved and the priority date becomes current, whichever happens later, the child’s age remains permanently frozen under 21 provided she also sought to apply for permanent residence within one year of visa availability. In our example, the daughter’s priority date became current on July 1, 2007, when the State Department announced that the EB-3 was current. Eligible people could file adjustment applications until August 17, 2007 as a result of a threatened law suit, which compelled the State Department to extend the filing period beyond July 30, 2007. After the July 2007 Visa Bulletin, the EB-3 severely retrogressed several years and has moved forward again at a snail’s pace, especially for India, since then. As of the time of writing, the cut-off date for India under the EB-3 is July 22, 2002. However, since the daughter filed her I-485 when the EB-3 date became current in July 2007, her age at that time, which was 19, permanently froze under the CSPA.

Today in 2011, even though the daughter is over 23, her CSPA age is technically still 19 and she can some day in the distant future, when the priority date of November 1, 2006 becomes current under the India EB-3, adjust with her father as a derivative (as if she’s still under 21) however old she may be.

While our Indian foreign national, his wife and his daughter can remain legally in the US as pending adjustment of status applicants, this is not of much solace for her father who is yearning to break free with a green card. He has been stuck with his job for many years, and even if he is provided some job mobility under INA section 204(j), he must work in a similar occupation under which he was sponsored through the labor certification. Thus, if he was sponsored as a Computer Programmer, and can now qualify for a position as a Controller of his new IT company after obtaining an MBA in Finance through an evening executive MBA program at an Ivy League business school, his adjustment application will get denied when ultimately adjudicated if he is unable to show that he has “ported” to a same or similar occupation. One way to resolve this is if his present employer can file a new labor certification presently under the EB-2 as a Controller requiring an MBA and experience in the peculiar financial aspects of an IT company. Once the labor certification is approved, the employer files a new I-140 petition but can magically capture the priority date of the old I-140 under EB-3, which is November 1, 2006. A USCIS rule, 8 CFR 204.5(e), allows you to do this provided that petition is not subsequently denied or revoked. Once the I-140 petition under the EB-2 is approved, it can be inter-filed with the pending I-485 application that was initially filed with the original I-140, and since the EB-2 cut-off date is well beyond November 1, 2006, he will suddenly get the green card.

While this may be manna from heaven for him and his spouse, the filing of the new I-140 will most likely not be able to protect the daughter under the CSPA at this point as it was filed much after her 21^st birthday, even though the new I-140 petition will recapture the priority date of the old I-140 petition filed under EB-3. While this can be open to interpretation, the CSPA applies to the “applicable” petition only, and it will be difficult to bootstrap the new I-140 onto the “applicable” EB-3 I-140 petition, which is no longer being utilized but was filed before her 21^st birthday. While there may be some room to interpret the term “applicable” petition to include the new I-140 petition under EB-2, especially since the new I-140 petition recaptured the priority date of the prior I-140 petition especially if it was filed by the same petitioning employer (See Li v. Renaud), it will be extremely risky to go ahead with this knowing that there is an aged out child who is otherwise protected under the CSPA. Thus, while dad and mom get the green card, their daughter may get left behind. Parents who thus wish to upgrade from EB-3 to EB-2 should beware about doing so if they have a child who is over 21 but who has been protected under the CSPA through the filing of an adjustment application under a prior I-140 petition.

We have already written extensively about the Fifth Circuit’s recent decision in Khalid v. Holder, which correctly interpreted INA section 203(h)(3) providing for the automatic conversion of the priority date of the earlier petition to the appropriate category. If the daughter is unable to seek the protection of the CSPA, after her parents got their LPR status under EB-2, she can use the November 1, 2006 priority date, if she resides in a jurisdiction where Khalid v. Holder is binding, to a family-based second preference petition for an adult child (F2B) that her father can potentially file on her behalf as a green card holder. But even Khalid v. Holder may not throw her an immediate life line since the current cut-off date under the F2B is much earlier than November 1, 2006 at this time.

The CSPA is an extremely complex statute subject to varying interpretations, which even Circuit courts cannot agree upon, and the thin protective cover that it provides can quickly unravel based upon even an inadvertent misstep. Of course, this blog assumes that the child of an EB-3 beneficiary has already been covered under the CSPA through an earlier adjustment application. If the EB-3 for India is truly expected to take 70 years before a green card materializes, a foreign national being sponsored today with a 1 year old child will have absolutely no hope of protecting the age of this child under the CSPA!

BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS

2011-10-14T20:41:00.000-07:00

by Cora-Ann V. Pestaina

To practitioners who file numerous PERM applications, the Department of Labor’s (DOL) philosophy of solely protecting the U.S. labor market without regard to employers’ efforts, its constantly shifting goal posts, and its frightful game of “gotcha” which we involuntarily enter whenever we file a PERM application, have sadly all become par for the course. But, every so often, a valiant employer fights back and in recent times we have seen the Board of Alien Labor Certifications (BALCA) demonstrate more reason in its decisions. Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) reveals the most recent case of the DOL’s game of “gotcha.” In that case, BALCA held, reversing the Certifying Officer (CO), that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.”

In Emma Willard School, the employer, a boarding school, conducted a recruitment effort for the position of “Spanish Instructor” and timely filed an ETA Form 9089. The CO issued an audit notification requesting that the employer submit “a detailed explanation indicating the reason the foreign worker currently resides with the employer.” In its timely response, the employer submitted documentation of the school’s philosophy, which states that the school “offers housing as a resource that benefits the faculty, staff, and program” and that a “significant majority” of teachers and key administrators live in school owned housing. The school’s housing guidelines indicated that the school provided on-campus housing, off-campus housing and dormitory apartments to selected faculty and staff as a benefit of employment.

The CO denied the PERM application citing six reasons for denial, all related to the employer’s failure to indicate, in its advertisements and Notice of Filing, the benefit of employer-subsidized housing. Four of the reasons for denial fell under 20 C.F.R. §656.17(f)(7). According to the CO, because the employer’s advertisements in the newspaper of general circulation, in a local or ethic paper, on the employer’s website and on job search websites did not indicate that the employer offered subsidized housing, the advertisements did not comply with 20 C.F.R. §656.17(f). Because the Notice of Filing also did not list this benefit, one denial reason fell under 20 C.F.R. §656.10(d)(4), which requires that the Notice of Filing contain the information required for advertisements. The final reason for denial fell under 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO held that because the employer did not list the benefit of subsidized housing in its recruitment, the recruitment contained terms and conditions of employment that were less favorable than those offered to the alien, thereby disaffirming the employer’s attestation that the job is open to any US worker.

The employer submitted a request for reconsideration of the denial arguing that the regulations do not mandate that benefits be listed in advertisements. The CO forwarded the case to BALCA. In its brief to BALCA, the employer made the obvious point that many advertisements do not list employment benefits such as health insurance and vacation.

BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. The choice not to list the offered wage would not lead to an assumption, on the part of the US worker, that the employer is offering no wage. Similarly, the employer’s choice not to list employment benefits would not lead a US worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

At every step of the persnickety PERM process the DOL claims it is only doing its job to protect US workers, but here it appears that BALCA is finally giving US workers the credit they deserve for being intelligent enough to recognize that a tiny advertisement could not possibly list ALL the terms and conditions of employment. Perhaps BALCA recognized that any US workers who were interested in the position with Emma Willard School would have naturally contemplated whether the boarding school provided boarding to its employees! Therefore, the employer’s decision not to list the subsidized housing benefit in the ad in no way deterred US workers from applying for the position.

Yet, careful not to paint with too broad a brush, BALCA made sure to limit its decision to the facts of the case and to state that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Despite BALCA’s timidity, this decision is significant and bears on other situations as well. For instance, an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment. While the DOL may argue that a “work from home” benefit is different from the subsidized housing benefit, the employer choosing to not list the “work from home” benefit should not serve to deter any US workers from applying for the position especially if the advertisement was placed in a national magazine. US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. A prospective applicant can also inquire about this, and the advertisement on its own, without the listing of a “work from home” benefit should not deter US workers from applying for the position.

When will the DOL come to realize that US workers are smart enough to discern job advertisements themselves, and do not need this kind of misguided protection resulting in the needless denial of a labor certification for a much needed foreign national worker?

PROSECUTORIAL DISCRETION AND THE "CRIMINAL ALIEN"

2011-10-07T13:47:00.000-07:00

By Cyrus D. Mehta

The June 17, 2011 Memo calling for prosecutorial discretion by ICE Director John Morton is being applied in favor of low priority non-citizens who are threatened with removal. For instance, some who were brought to the US at an early age have been given a temporary reprieve, especially those who would qualify under proposed DREAM Act legislation, which thus far Congress has failed to pass. This is very commendable, and makes sense since the Administration cannot use its limited resources to deport the 10+ million undocumented immigrants in the US. It also makes sense to allow such immigrants with long ties in the US to somewhat regularize their status and obtain a work permit, while under a stay of removal or deferred action order, and thus be allowed to contribute to the US and its economy.

While the Administration showcases low priority non-citizens as model immigrants but for the fact that they violated the immigration law, the Administration is cracking down hard on what it calls the “worst of the worst,” generally characterized as “criminal aliens.” In a recent seven day sweep, called Operation Cross Check, the Administration arrested 2,901 immigrants with criminal records. While the ICE press release highlights some of these individuals with multiple criminal records, including attempted murder, armed robbery and sex crimes against minors, it is not clear whether all of the 2,901 immigrants that were subject to this sweep could be or ought to be characterized as the “worst of the worst.” It is also unclear as to how many of them were undocumented or had permanent resident status.

Even a so called “criminal alien” can in some cases be deserving of prosecutorial discretion. Actually, the definition of “criminal alien” is rather amorphous, and could include one who has either been convicted of a crime or one who has been charged with a crime. Under the Administration’s Secure Communities program, information about a non-citizen charged with a crime and who is fingerprinted, is provided to the DHS, which can then start removal proceedings against this person even if there is no ultimate conviction or the resulting conviction is based on a very minor offense, such as disorderly conduct. While the use of the word “alien” is itself a pejorative, which applies to anyone who is not a citizen, the additional use of “criminal” is like rubbing salt into the wound. Apart from such a person not being charged at all or the charges being dismissed, non-citizens can also be placed into removal proceedings for having admitted to committing the essential elements of certain offenses, such as crimes involving moral turpitude or minor controlled substance offenses, including smoking pot as a student.

Also, a non-citizen convicted of a crime, even while a misdemeanor under the relevant penal law, can be characterized as an aggravated felon under section 101(a)(43) of the Immigration and Nationality Act (INA). For example, minor assault with a one-year suspended sentence can be an aggravated felony under INA 101(a)(43)(F). Take for example the well publicized case of Mary Anne Gehris who lived in the US since she was around one year old . Because she had pulled the hair of another woman in a quarrel over a boyfriend, and had pled guilty upon the advice of her public defender, she suddenly faced removal for the aggravated felony of misdemeanor assault, because she had gotten a one-year suspended sentence. Also, theft or forgery with a one-year sentence can be an aggravated felony under 101(a)(43)(G) [theft], 101(a)(43)(R) [forgery]. Thus, one who was convicted of a forgery of a check for $19.83 could be deportable as an aggravated felon. Shoplifting with a one-year sentence, suspended or not, could also be an aggravated felony. Even a “sex offense” relating to a consensual relationship between a 21-year-old man and his 16-year-old girlfriend can potentially be sexual abuse of a minor under INA 101(a)(43)(A).

Such cases are also deserving of prosecutorial discretion, and the DHS can exercise this discretion especially over permanent residents who are “aggravated felons” by not even issuing a Notice to Appear, which starts a removal proceeding. A non-citizen permanent resident who is convicted of an aggravated felony is generally foreclosed from relief from removal, such as cancellation of removal under INA 240A (a) or by applying for a waiver of inadmissibility under INA 212(h). Fortunately, with respect to the 212(h) waiver, two circuit courts, the Third, and Fifth, have held that the bar against permanent residents only applies to those who were admitted to the United States as permanent residents at a border or port of entry as opposed to those who adjusted status in the US to permanent residence. See Martinez v. Mukasey, 519 F.3d 532 (5^th Cir 2008); Lanier v. US, 631 F.3d 1363 (11^th Cir. 2011). The Ninth Circuit has also implied in Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) that this may be the case. However, these decisions are only binding within the respective circuits, and the Board of Immigration appeals has further blunted these holdings in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) by barring a permanent resident from applying for a 212(h) waiver who entered the US without inspection but who adjusted to permanent residence since the adjustment of status is this individual’s only admission.

Even non-permanent residents who have been convicted of crimes that have been re-characterized as aggravated felonies are similarly deserving of prosecutorial discretion, on a case by case basis, if they can seek relief by virtue of say a potential marriage to a US citizen and by filing a 212(h) waiver. Similarly, such an individual who is convicted of an aggravated felony may have a US citizen child who may be turning 21 years in a few years who will be able to provide the basis for an adjustment application and a 212(h) waiver. Prior to the June 17, 2011 Morton Memo, a similar memo in 2000 by former INS Commissioner Doris Meissner contemplated prosecutorial discretion in cases involving non-citizens convicted of crimes and who would be unable to seek relief against removal despite the presence of US citizen qualifying relatives. The same spirit behind the Meissner memo (although it was rarely implemented) should guide ICE prosecutors under the new Morton Memo too, which is being taken more seriously, even though the focus of the latter is on low priority individuals, who ostensibly are not “criminal aliens.” After all, the hyped up notion that “criminal aliens” are dangerous and should be immediately removed from the US is generally misguided as most have actually served their sentences or paid their fines under the penal system. If a US citizen is allowed to get a second chance after serving his or her sentence, an immigrant could also be given that chance if he or she is otherwise deserving of prosecutorial discretion through family ties and the gravity and nature of the past criminal conduct.

In the second decade of the 21^st century, in light of other pressing concerns and challenges, the draconian impact of the 1996 Immigration Act, especially pertaining to the retroactive re-characterization of minor criminal convictions as aggravated felonies, remains a distant memory and is taken for granted. Any movement for immigration reform of a broken immigration system must also press for a roll back on some of the harshest provisions of the 1996 law, especially the elimination of relief for persons convicted of aggravated felonies, despite evidence of reform, rehabilitation and close families ties in the US. While we continue to press ahead for reform in a Congress that is in a stalemate, including the DREAM Act for children who were brought into the US and are now out of status, the Administration has wisely used its powers to exercise prosecutorial discretion in favor of immigrants who clearly do not deserve to be deported from the US. Some of these people ought to also include those with criminal convictions.

SOME PRELIMINARY REACTIONS TO THE DISTRICT COURT DECISION REFUSING TO ENJOIN PORTIONS OF ALABAMA’S IMMIGRATION LAW

2011-10-02T17:14:00.000-07:00

By David A. Isaacson

Chief U.S. District Judge Sharon Blackburn of the U.S. District Court for the Northern District of Alabama recently issued a memorandum opinion preliminarily enjoining the enforcement of certain portions of Alabama's new immigration law but upholding other portions. This decision has already attracted substantial criticism, with the New York Times describing it as "dismal". Additional useful background regarding the decision is available from Immigration Impact. As a follow-up to my previous article on our firm's website regarding constitutional and practical problems with the Alabama law, it seemed appropriate to examine how Judge Blackburn's decision does and does not address some of these problems.

Some of the most absurd portions of the statute were struck down, so there is some good news. Judge Blackburn did enjoin the portion of the Alabama statute that barred lawfully admitted refugees, and others such as those with Temporary Protected Status, from attending public universities. She enjoined the portion of the statute that attempted to make it illegal to rent housing to the unlawfully present, by deeming it "harboring", and she also enjoined the portion of the statute that attempted to criminalize work and the solicitation of employment by an "unauthorized alien". In addition, she enjoined portions of the statute that would have forbidden companies from deducting wages paid to unauthorized workers as a business expense, and allowed other workers to sue those companies.

Some deeply problematic provisions of the statute were left standing, however. One provision, similar to a provision of Arizona's much-criticized SB 1070, criminalizes failure to register or carry an alien registration document, in violation of federal law, when committed by "an alien unlawfully present in the United States." As explained in this author's previous article on our firm's website regarding the Arizona law, the application forms used by certain battered women and crime victims to petition for relief under the Violence Against Women Act or for a "U-visa" do not constitute applications for alien registration under the governing regulations. Thus, certain such battered women and crime victims may arguably be in violation of the federal statutes regarding alien registration, but as a matter of prosecutorial discretion, it is exceedingly unlikely that the federal government would ever pursue such people for those technical violations. While Alabama may have somewhat reduced the set of truly absurd potential violations of its statute by covering only those who are "unlawfully present" rather than Arizona's reference to "a person who maintains authorization from the federal government to remain in the United States" -- since battered women actually granted deferred action will not qualify as unlawfully present even though they likely also do not qualify as maintaining authorization to remain in the United States -- the statute could still be applied by Alabama to applicants for VAWA or U-visa relief who have not yet been granted relief. This is merely an example of why it is a bad idea, as a matter of our constitutional structure, to allow a state to meddle in a field so comprehensively occupied by the federal government. Alabama's attempt to reserve the right to pursue such technical violations of the alien registration statutes, even in cases where the federal government does not wish to, should have been held pre-empted.

Another problematic provision that was left standing by Judge Blackburn's opinion again closely resembles one of the provisions of Arizona's SB 1070. According to Section 12(e) of Alabama's law, police officers must attempt to ascertain the citizenship and immigration status of any person they detain, if "reasonable suspicion exists that a person is an alien who is unlawfully present in the United States" and unless "the determination may hinder or obstruct an investigation." Along the lines of Arizona's SB 1070, Alabama's statute prohibits law enforcement officers from considering "race, color, or national origin . . . except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901." As with the Arizona law, the logical implication is that to the extent consideration of race, color or national original may be constitutional under whichever of the United States Constitution or the state constitution is more permissive on the subject, the law enforcement officials and agencies of Arizona are invited to engage in it. In addition, the statute's list of documents which a person can present and thus be “presumed not to be an alien who is unlawfully present in the United States” includes a “foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States” but does not include any option for an expired visa and a document from DHS showing an unexpired period of authorized stay. If the “stamp or notation” indicates that the bearer’s period of admission and authorized stay is unexpired, it is not at all clear why it should matter if the bearer’s U.S. visa is expired or not. There is no logical reason to subject anyone who obtains an extension of stay or change of status with a validity period beyond the expiration date of their visa to more extensive detention while their status is electronically verified with DHS, if their DHS-issued Form I-94 clearly shows that their status is still valid. This legal illogic gives still more weight to the complaint made by the federal government that DHS may now be overwhelmed by requests for information and that substantial burdens may be placed by Arizona's law on lawfully present immigrants (and nonimmigrants). By meddling in areas which its legislators quite apparently did not fully understand, Alabama has created a system in which nonimmigrants who have been granted a change of status or extension of stay beyond the validity of their initial visa, as well as asylees and those having Temporary Protected Status, may be detained and an inquiry made to DHS because such persons lack "an unexpired United States Visa." This, too, should have been held preempted and was not.

Judge Blackburn's memorandum opinion also refused to preliminarily enjoin sections of the Alabama law that render unenforceable any contract entered into by an unlawfully present alien, with certain limited exceptions, and forbid unlawfully present aliens to enter into certain business transactions with the state and its subdivisions, such as obtaining a driver's license or business license. The difficulty with these sections is that, as explained in my previous article on our firm's website, unlawful presence, insofar as it is a defined term, does not correspond neatly to a set of people that it would have made any sense to subject to such prohibitions. Alabama appears to have forbidden from getting a driver's license, or entering into enforceable contracts, many people with pending applications for adjustment of status or cancellation of removal filed for the first time in removal proceedings, who are considered unlawfully present but who may become lawful permanent residents if their applications succeed. Moreover, Alabama has forbidden many people who are specifically authorized to be employed in the United States from getting driver's licenses or entering into binding contracts in connection with that employment (unless perhaps the employment contracts fall within the terms of the statute's exception for "a contract authorized by federal law", which seems a gray area at best), since an applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). (Indeed, even some people who have been ordered removed may be authorized to accept employment while challenging that order in various ways or awaiting removal, as explained in a previous blog piece by this author.) Once again, by meddling in an area of law that is the responsibility of the federal government and that its legislators apparently did not fully understand, Alabama has created the possibility for truly absurd outcomes.

Finally, Judge Blackburn refused to preliminarily enjoin the section of the Alabama law that attempts to require students enrolling in public school to provide documents regarding their citizenship and immigration status. While it is conceivable that the section's apparent lack of a penalty provision might save it from unconstitutionality, there is some tension, to the extent that the statute may be an effort to coerce unlawfully present children not to attend Alabama public schools, between this provision and the Supreme Court's decision in Plyler v. Doe, 457 U.S. 202 (1982), forbidding a state to prevent children from attending public schools based on their immigration status. It has been reported that upon the coming into effect of this portion of the statute after Judge Blackburn's decision, "Hispanic students have started vanishing from Alabama public schools" because fear has caused "scores of immigrant families" to withdraw their kids from school or keep them home. Alabama should not be permitted to do indirectly what the Supreme Court has forbidden it to do directly.

Judge Blackburn's memorandum opinion only addressed whether to grant a preliminary injunction, so it is still possible that she may reverse herself before the conclusion of the case at the district court level. If she does not, the Court of Appeals for the Eleventh Circuit or the Supreme Court may need to step in to reverse those portions of her recent decision that uphold particularly problematic portions of Alabama's law.

THE POTENTIAL REACH OF KHALID V. HOLDER: HOW THE 5TH CIRCUIT INTERPRETED THE CSPA AND HOW SOME OUTSIDE ITS TERRITORY MAY BE ABLE TO BENEFIT

2011-09-25T18:47:00.000-07:00

By David A. Isaacson

In its recent decision in the case of Khalid v. Holder, the U.S. Court of Appeals for the Fifth Circuit rejected the 2009 decision of the Board of Immigration Appeals (“BIA”) in Matter of Wang. The Fifth Circuit in Khalid held that a derivative beneficiary of an immigrant petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, can under section 203(h)(3) of the Immigration and Nationality Act (“INA”) retain the priority date originally given to the principal beneficiary and proceed in the 2B preference category with respect to that principal beneficiary. That is, if your aunt or your grandfather filed a petition for your parent when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you can retain the family’s place in the priority-date waiting line as the adult son or daughter of your now-lawful-permanent-resident parent, under the 2B preference, rather than going to the back of the years-long waiting line for an immigrant visa number. The BIA had found in Matter of Wang that such priority date retention was impermissible, but the Fifth Circuit held in Khalid that this ignored the plain meaning of the statute.

In rejecting the BIA’s decision in Matter of Wang, the Fifth Circuit also rejected the decision of the Court of Appeals for the Second Circuit in Li v. Renaud regarding the same CSPA provision, criticized by this author in a previous blog post The Second Circuit had reached essentially the same conclusion as Matter of Wang by finding the CSPA to unambiguously preclude retention of a priority date “to use for a different family petition filed by a different petitioner." The Ninth Circuit in Cuellar de Osorio v. Mayorkas found the statute to be ambiguous and the BIA's interpretation in Wang a reasonable one, a conclusion also inconsistent with the Fifth Circuit's decision in Khalid.

The BIA itself had previously taken a more generous view, before changing its mind: Matter of Wang overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family petition beneficiary to retain the priority date that she previously had shared with her parent. The Fifth Circuit in Khalid found Matter of Garcia to represent the correct approach.

Additional background regarding the CSPA in general and Matter of Wang in particular, for those who are interested, can be found in an earlier article written by this author for our firm’s website. The portion of the CSPA in question, now INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

It is available online as enacted into the U.S. Code at 8 U.S.C. § 1153.

In Matter of Wang, the BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was "limited to a lawful permanent resident's son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident." Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.

As the Fifth Circuit pointed out in Khalid, however, the BIA’s finding of ambiguity ignores the internal cross-references in § 203(h) and the statute’s clear identification of the petitions to which it applies. Subsection (h)(2), entitled “Petitions described”, makes clear that INA § 203(h) as a whole applies to all derivative beneficiaries, as well as 2A child beneficiaries. Moreover, “(h)(3) expressly references (h)(1), which in turn expressly references (h)(2).” Particularly because subsection (h)(3) expressly applies “for the purposes of subsections (a)(2)(A) and (d)” just as subsections (h)(1) and (h)(2) do, there is no textual basis for excluding from the protection of (h)(3) the derivative beneficiaries under subsection (d) who are all expressly included by (h)(2). Thus, as the Fifth Circuit said in Khalid, “subsection (h)(2) directly answers the question that the BIA found that Congress left unanswered.”

The Second Circuit’s decision in Li is similarly convincingly refuted by the Fifth Circuit in Khalid. Li’s holdingthat a priority date could not be retained “to use for a different family petition filed by a different petitioner” was based on the notion that there is no “appropriate category” to convert to in the sort of scenario at issue in Li and Khalid, because there is, for example, “no family preference category for grandchildren of LPRs”. The Fifth Circuit in Khalid aptly notes that this latter criticism only makes sense if one assumes that a change in petitioners is indeed necessarily impermissible, and that no such rule against a change in petitioners appears anywhere in the text of the statute. Proceeding on this unwritten assumption does leads to the conclusion that, as the BIA held in Matter of Wang, § 203(h)(3) only protects the derivative child beneficiaries of second-preference petitions for a spouse, who were already protected by regulation—but in that case, as the Fifth Circuit noted, “the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the spouse of the burden of filing a new petition, since the conversion would now be automatic.” It is, as the Khalid court pointed out, unlikely “that this meager benefit was all Congress meant to accomplish through subsection (h)(3), especially where nothing in the statute singles out derivative beneficiaries of second-preference petitions for special treatment.” Reading the statute as it is written gives much larger and more appropriate significance to § 203(h)(3).

Beyond the legal virtues of the Fifth Circuit’s decision, however, it is worth examining the practical implications of its ruling for those who are not lucky enough to live within the boundaries of the Fifth Circuit, that is, Texas, Louisiana, and Mississippi. As Cyrus Mehta pointed out in a recent blog piece, one way for § 203(h)(3) to benefit many more outside of the Fifth Circuit would be for Attorney General Eric Holder to issue a decision acquiescing in Khalid on a nationwide basis, just as the BIA on the Attorney General’s behalf has acquiesced in favorable Court of Appeals decisions in the past. Unless and until such action is taken, however, one question which arises is whether those who seek the benefit of Khalid may be able to obtain it through litigation even if they reside outside the jurisdiction of the Fifth Circuit.

In cases where the original beneficiary who has now become an LPR seeks to recapture the old priority date under § 203(h)(3) for their derivative son or daughter by filing a new I-130 petition, obtaining the benefit of Khalid may be difficult, at least when the parties do not happen to reside within the Fifth Circuit. Such I-130 petitions will generally be processed either by the California Service Center, which is located within the jurisdiction of the Court of Appeals for the Ninth Circuit (home to Cuellar de Osorio), or the Vermont Service Center, which is located within the jurisdiction of the Court of Appeals for the Second Circuit (home to Li). The initial filing and receipt by USCIS of an I-130 petition will usually take place at the USCIS lockbox in Chicago, within the jurisdiction of the Court of Appeals for the Seventh Circuit, which has not yet ruled on the correctness of Matter of Wang. As an initial matter, therefore, USCIS is likely to follow Matter of Wang in such cases.

If a lawsuit were filed against USCIS to attempt to force compliance with the proper meaning of INA § 203(h)(3) as found in Khalid, the statute governing venue would be 28 U.S.C. § 1391. For actions against U.S. government agencies, 28 U.S.C. § 1391(e) provides:

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

(1) a defendant in the action resides,

(2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or

(3) the plaintiff resides if no real property is involved in the action.

Leaving aside Fifth Circuit residents, therefore, such a lawsuit could only be brought in a district within the Fifth Circuit if that was where “a substantial part of the events or omissions giving rise to the claim occurred”—which is, in the case of an I-130 petition, unlikely for the reasons explained above. For those residing in a circuit other than the Fifth, Ninth, or Second – one which has not yet confronted Matter of Wang – an I-130 filing followed by litigation may still be worthwhile, but would likely have to go up to the relevant Court of Appeals to succeed.

The filing of a new I-130 petition following the adjustment of the original beneficiary, however, is not the only way to seek CSPA protection for a derivative son or daughter under the logic of Khalid. In Matter of Garcia, which the Fifth Circuit in Khalid cited approvingly, the BIA made quite clear that it was the original petition filed for the adjustment applicant’s mother that rendered her eligible for adjustment using the old priority date, after having been automatically converted to a second-preference petition. An additional petition was not necessary; Ms. Garcia was permitted to seek adjustment of status based on the converted old petition. Indeed, the Fifth Circuit in Khalid described the non-necessity of filing a second petition as the one (meager) benefit which 203(h)(3) would provide, at least in 2A derivative cases, even under the Second Circuit’s narrow interpretation. Thus, where visa numbers are available for the appropriate priority date in the 2B preference category, those seeking the benefit of Khalid’s interpretation of the CSPA should be able to simply file a derivative I-485 application for adjustment of status based on the deemed converted petition, and challenging any denial or rejection in federal court, without the intervening step of a new I-130 petition.

Derivative adjustment applications in family-based cases, unfortunately, are filed with the USCIS Chicago lockbox, within the Seventh Circuit where Matter of Wang has not been struck down, and are then generally transferred to the local office in the area where the applicant resides, which for applicants not having the good fortune to reside within the Fifth Circuit will also not be in an area definitively outside the grasp of Matter of Wang. Derivative adjustments in employment-based cases based on a pending or approved I-140 petition, however, are, at least for those living in roughly the eastern half of the U.S., filed with the USCIS lockbox in Dallas or Lewisville in Texas, and generally processed by the Texas Service Center before perhaps being sent to a local office for an interview. Specifically, the area in question includes Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia. For applicants living in those states and territories, if a derivative I-485 based on an I-140 is filed and denied or rejected based on Matter of Wang, it appears that “a substantial part of the events or omissions giving rise to the claim” will have occurred in Texas. (For those applicants in the western and midwestern states not included in the above list, sadly, their I-485 applications will go to the Phoenix Lockbox in the Ninth Circuit and perhaps then the Nebraska Service Center in the Eighth Circuit, which has not yet ruled on Matter of Wang.)

Thus, if the son or daughter of an I-140 beneficiary who would benefit from the Khalid interpretation of the CSPA, residing in one of the listed states within Texas lockbox jurisdiction, files a derivative adjustment application along with their parent’s I-140-based application without awaiting a redundant I-130 by their parent, it would appear that the rejection or denial of that application could be potentially challenged in a Texas federal district court, located within the Fifth Circuit and bound by Khalid. Such a challenge to the legally erroneous denial (or rejection) of an adjustment application by USCIS would be brought under the Administrative Procedure Act, as explained by the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005). Some other circuit courts of appeals have previously rejected the logic of Pinho, but the Fifth Circuit is not among them; the question of district court jurisdiction over legal error in the denial of an adjustment application, outside the context of removal proceedings, appears to be an open one in the Fifth Circuit.

Due to this jurisdictional uncertainty and the possibility that DHS could avoid the problem by initiating removal proceedings in the beneficiary’s home location, such an approach would be quite risky for any derivative beneficiary residing outside the Fifth Circuit who was not maintaining nonimmigrant status (and was utilizing, for example, INA § 245(i)). However, in those instances where the adult son or daughter of an I-140 beneficiary has acquired a nonimmigrant status of his or her own, and resides in the half of the U.S. that is under the jurisdiction of the Texas lockbox, attempting to file a derivative adjustment application under Khalid without an intervening I-130 petition may be an approach worth considering if visa numbers in the 2B preference category are available for the relevant priority date.

REINTERPRETING THE AUTOMATIC CONVERSION PROVISION OF THE CSPA TO HELP DREAM KIDS

2011-09-16T13:10:00.000-07:00

By Cyrus D. Mehta

The DHS has commendably issued policies urging prosecutorial discretion in recent months recognizing its inability to deport all undocumented immigrants, and designating certain deportable deserving discretion immigrants under a low priority status. Especially noteworthy is the June 17 Morton Memo on prosecutorial discretion, which urges against enforcement of individuals who came to the US as children, and who have successfully graduated from high school or are pursuing college or advanced degrees. Although DREAM Act legislation failed in December 2010, the DHS has nevertheless announced policies that would stay or terminate the deportation of those who came to the US as children and would otherwise have qualified under this legislation to gain legal status.

While the DHS has been using administrative action to ameliorate the hardships for DREAM kids, why can’t it reinterpret a provision in the Child Status Protection Act more consistently with the statute? INA § 203(h)(3), called the automatic conversion provision, has been the subject of much litigation lately, but all this would be unnecessary if the DHS only interpreted it consistent with its plain language and allowed children who were otherwise not eligible under the age protection formula of the CSPA to automatically convert to the new category they may be entitled to and retain the priority date of the original petition.

INA §203(h)(1), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current) and the immigrant visa petition (Form I-130 or I-140) was approved, whichever came later, and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21 (even if he or she is over 21 at the time of visa availability), the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

But what if the child is not protected under this formula? The automatic conversion provision could still come to his or her assistance. This is how §203(h)(3) reads:

Retention of priority date –If the age of an alien is determined under paragraph 1 [which sets forth the age protection formula] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition

Like the facts in the latest 5th Circuit decision in Khalid v. Holder, which sensibly interprets the automatic conversion provision, assume that a non-citizen child is 11 years old when his mother’s sister, a US citizen, files an I-130 petition for his mother on January 12, 1996. By the time that the priority date becomes current under the Family Fourth preference in February 2007, the child is 22 and cannot unfortunately avail of CSPA’s age protection formula. His mother, who has now become a Lawful Permanent Resident (LPR) files an I-130 petition on November 23, 2007 for her 22 year old son under the Family 2B preference. It makes no sense for the son to wait another 8 years or longer for the Family 2B date to become current. Under the plain meaning of the automatic conversion provision, §203(h)(3), the earlier priority date of the mother’s sister’s I-130, January 12, 1996, can be retained under the new I-130 petition filed by the mother on behalf of her 22 year old son. If the priority date is retained, her son will not need to wait and can potentially adjust his status immediately under the current January 12 1996 priority date. Under the broad “grandfathering” provision of INA §245(i), since he was the derivative beneficiary of his mother’s I-130 petition filed long before April 30, 20001, he can file an application to adjust status even though he is no longer maintaining status presently.

While it is beyond the scope of this blog to explain the detailed holding behind Khalid v. Holder, and the government’s counter arguments, it is worth mentioning that the 5th Circuit cited with approval an earlier unpublished decision of the Board of Immigration Appeals in Matter of Garcia, No. A79 001 587, 2006 WL 2183654 (BIA June 16, 2006) with identical facts:

In this instance, the principal beneficiary of the original petition was the respondent's mother, who became a lawful permanent resident of the United States once a visa number became available to her in 1996. The respondent was (and remains) her mother's unmarried daughter, and therefore the "appropriate category" to which her petition was converted is the second-preference category of family-based immigrants, i.e., the unmarried sons and daughters of lawful permanent residents. Furthermore, the respondent is entitled to retain the January 13, 1983, priority date that applied to the original fourth-preference petition, and therefore a visa number under the second-preference category is immediately available to the respondent.

If Matter of Garcia was followed by the DHS in 2006, there would have been no need for such expensive and needless litigation, and many thousands of children who aged out due to delays in the burgeoning backlogs under the family and employment preferences would have been permanent residents today. Unfortunately, three years later, in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the BIA reached the opposite result and disregarded Garcia under the rationale that the automatic conversion provision, §203(h)(3), only affirmed limited conversions acknowledged by regulation. For instance, 8 C.F.R. § 204.2(a)(4) provides for “retention” of a priority date for a minor child who was accompanying or following to join a principal beneficiary parent on a second-preference spousal Family 2A petition but then turned 21 before the mother could become a LPR. Under 8 C.F.R. § 204.2(a)(4), if a child ages out prior to the parent being issued the immigrant visa, a separate I-130 petition for that son or daughter is then required, although the original priority date is retained if the subsequent petition is filed by the same petitioner. Khalid v. Holder correctly rejects Wang’s strained interpretation since §203(h)(3), reading it in conjunction with subparagraphs (1) and (2), makes reference to both second preference family petitions and derivatives of all family and employment petitions. It is thus illogical to only consider the reference to the second preference petitions, where minors have been able to retain the original priority date, and to ignore derivatives of all other employment and family petitions, even though explicitly mentioned in §203(h)(3), who can also automatically convert to the “appropriate category” and “retain the original priority date.”

Admittedly, two other circuits have come out differently. The Ninth Circuit in Osorio v. Mayorkas decided that §203(h)(3) was ambiguous and paid Chevron deference to the BIA’s constricted interpretation of this provision in Matter of Wang. The Second Circuit in Li v. Renaud, on the other hand held that the provision was unambiguous, but nevertheless reasoned the provision would only allow someone to retain the priority date to a petition that was filed by the same petitioner. Thus, in the example in Khalid v. Holder, the original petitioner was the child’s aunt, and the new petitioner is his mother, and according to the Second Circuit in Li, which David Isaacson has critically commented on in a prior blog, there could be no automatic conversion.

While it is not the purpose here to discuss the merits of the various holdings, from a policy perspective and in the spirit of the Morton memo on prosecutorial discretion, it would make sense if the Administration withdrew its opposition to a broader interpretation of §203(h)(3) and followed Khaled v. Holder across the country. Currently, Khalid v. Holder is only binding within the 5th Circuit, which comprises Mississippi, Texas and Louisiana. To achieve this, Attorney General Holder would have to issue a new decision reversing Matter of Wang, and consistent with Matter of Garcia and Khalid v. Holder. The Attorney General, through the BIA, has done this before and can do it again if there is truly a will to implement policy consistent with the Morton memo. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). Of course, if the government still wants to contest, this matter is ripe for review in the Supreme Court due to splits within the circuits, but one questions the wisdom of the government in further contesting this issue when it otherwise supports prosecutorial discretion for DREAM kids.

REFLECTING ON 9/11 AFTER 10 YEARS AS AN IMMIGRATION ATTORNEY

2011-09-09T22:01:00.000-07:00

By Cyrus D. Mehta

In the spring and summer of 2001, and the days just prior to September 11, 2001, things were not going so badly for immigrants. Although the Section 245(i) deadline of April 30, 2001 had expired, hundreds of thousands of people had managed to file their applications before the deadline to hopefully benefit from this provision and ultimately adjust status in the US even though they were in the US unlawfully. A week before September 11, Presidents Vicente Fox of Mexico and Bush were in serious negotiations on an immigration deal that would have granted benefits to undocumented immigrants, especially those from Mexico. In the same week, on September 6, 2001, a compromise was reached between the Senate and the House (the Senate had earlier passed its version) to extend the Section 245(i) provision to April 30, 2002, which would have allowed those unlawfully in the US to adjust status, albeit under more limited terms.

It was on that beautiful crystal clear Tuesday morning, September 11, just as I was leaving my Manhattan apartment for the office, worried about an impending deadline for an immigration case that a neighbor told me that a plane had crashed into the first tower. I went back home, and saw the second plane crash into the second tower on my television set. Before one could realize the horrific extent of the calamity that tragically killed just under 3,000 people, the towers came crashing down. It was difficult to realize then as I watched agape with horror how much would change for me as an immigration lawyer. I was the Chair of the Committee on Immigration and Nationality Law of the New York City Bar, and our next meeting was scheduled on September 13. I decided we should go ahead with the meeting and not call it off. It was important to have this meeting as our work was cut out, and I prepared remarks for the members of the committee. On September 12, it was important to send a loud and clear message that immigration was completely separate from terrorism. This became the most critical mission for the immigration lawyer and it remains so even ten years later.

Less than ten days after September 11, the Executive under Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism. I remain surprised that not more noise has been made about this. As all this was happening, I wondered whether immigrants caught in the post 9/11 sweeps were being subjected to the same treatment as Japanese-Americans who had been interned after the Pearl Harbor attacks. Were not certain immigrants after 9/11 being broadly profiled in the same way under expanded powers in the name of national security as Japanese-Americans after Pearl Harbor? Was this another dark period in American history, and would we ever learn history’s lessons?

As if this were not enough, the Bush Administration implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen. Special Registration confirmed my worst fears that race and religion were being used as proxies for individualized suspicion and guilt. In the end, Special Registration did not catch a single terrorist or make our country safer. Instead, it separated families, created more burdens on the government to administer the program, and in the end special registration was disbanded because it was a colossal failure.

The INS was dismantled and folded into the Department of Homeland Security bureaucracy. A new agency within DHS, Immigration and Customs Enforcement (ICE) came into being, which continues to expand and deport immigrants with even greater zeal. Databases got integrated, and fingerprints of all visitors needed to be taken at ports of entry. Visa interviews became mandatory and visa grants got delayed due to security checks. Many of the delays were needlessly caused due to the fact that one’s name matched a name in the humongous government database.

Yet it is a testament to the power and clout of immigrants that the basic underlying architecture of American immigration law did not change after September 11. There were no drastic cutbacks in visa quotas or categories. People continued to receive nonimmigrant visas and green cards. Foreign students continued to come to study at US universities of all stripes. The practice of immigration law continued in the same way. The only difference was that everything was seen through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse would only be approved after every aspect of the spouse's information was extensively checked against error-prone national data bases.

While the immigration system was left intact, including the draconian provisions from the 1996 immigration law, the September 11 attacks unfortunately prevented it from being improved and to keep pace with globalization. The 245(i) extension that was about to happen the week before September 11 never saw the light of day. The deal that was made between Presidents Bush and Vicente to legalize the status of millions of productive undocumented immigrants was put into cold storage. The immigration system continued to break, and then crash, but Congress was never interested in fixing it, perhaps based on a subconscious fear that immigration equated to terrorism. The immigrant visa preferences remain hopelessly oversubscribed resulting in waits lasting more than a decade. The H-1B cap limit of 65,000 has never been expanded, save for an additional measly 20,000 under a special advance degree cap. Several efforts to achieve Comprehensive Immigration Reform in Congress have failed. The last effort to pass the DREAM Act in December 2010 also failed. Even business immigration, which can spur growth and more jobs, has gotten bogged down because of national security concerns. There are admittedly other forces also at work. The sluggish economy, along with joblessness, can also serve as a disincentive for immigration reform, along with nativist backlash. But the main bogeyman has been national security, largely as a result of the trauma caused by the 9/11 attacks. Various states are competing with each other to pass laws that will punish suspected immigrants who are not in lawful status. And then there is the combustible mix of Islamophobia and Xenophobia, which got unleashed nearly 10 years after September 11.

I was all set to move downtown prior to September 11, 2001 to spanking new offices, and when the attacks happened, I did not break my new contract and moved in the hope that the area would get rejuvenated, and the immigration system would too. It took a long time for downtown to break itself from the doom and gloom of 9/11, but it did. Today, it has become a vibrant and bustling neighborhood with attractive restaurants, and I see each day with some joy the new World Trade Center rising like a phoenix, along with many other residential towers along with the opening of swanky new restaurants and shops. After ten years, I fervently hope that the immigration system will also break itself free from the shackles of the September 11 attacks. I yearn for a new immigration system like the new WTC that will invigorate the economy and attract the best from all over the world like we did before September 11. I also hope for an immigration system that will recognize the dignity of the individual and restore due process.

GOING BEYOND THE POLITICS OF DISCRETION IN THE AMERICAN IMMIGRATION SYSTEM

2011-09-02T09:14:00.000-07:00

By Gary Endelman and Cyrus Mehta

The ability of whether the President can use discretion in the immigration arena has become the flavor of the month. The announcement by the DHS on August 18, 2001 under which 300,000 individuals who are low priority can hope to have their cases closed and obtain work authorization was welcomed. The details about how this policy will play out are nicely explained in a Legal Action Center advisory. Although many were pleasantly surprised by this policy, within days of the announcement even advocates for immigration reform have become skeptical about whether this policy will have a dramatic and far reaching impact. Obama supporters have even gone so far to accuse the Obama administration for mere window dressing in order to keep certain voters on his side in the next elections. Commentators such as Dan Kowalski also justifiably feel that ICE personnel will continue to ignore this policy, and choose not to exercise their discretion favorably.

While the President has his critics within the pro-immigration camp regarding his new announcement on discretion, the attempt by immigration restrictionists in Congress to blunt the June 17, 2011 Morton Memo on prosecutorial discretion when viewed in a larger context repeats an old pattern. For instance, Congressmen Lamar Smith (R-TX) and Senator Vitter have proposed a most unusual piece of legislation suitably called the HALT Act (Hinder the Administration’s Legalization Temptation Act) that will suspend all of the Administration’s discretionary relief until January 21, 2013, which is the day after the next Presidential inauguration.

Those who think the exercise of discretion will reduce enforcement or promote immigration support the concept of discretion. This is the case with the Morton Memo. The same thing happened with respect to the leaked memo to USICS Director Mayorkas - it was written to allow for remediation through executive fiat without the need for Congress to act and it was leaked to prevent this from happening. However, when the policy question appears to reinforce narrow interpretation and make strict enforcement more likely, then the antagonists switch sides and the pro-immigration camp seeks to curb discretion. Skeptics who fear ICE over-reaching often counsel clients to avoid signing up for the IMAGE program precisely because the exercise of discretion by ICE will, in reality, prove both invasive and punitive.

What is lost in all this is an open and honest discussion of the place that discretion has in the American immigration system separate and apart from the substantive issues or ideological positions at stake. In an increasingly complex, hyper-technical system, the need for discretion as a way to make intelligent choices seems more open and obvious than ever. In light of the possibility of more than a decade long backlog in the Employment-based Second and Third Preferences, for persons born in India and China, we provided in The Tyranny of Priority Dates, a dispassionate approach for the exercise of discretion to ameliorate the plight of those caught in the backlogs. The entrenched positions and mutual recriminations that characterize relations between all major interest groups makes such a disinterested dialogue virtually impossible. Consequently, the system becomes increasingly rigid and ever more incapable of responding in a meaningful and effective way to new challenges and emerging opportunities.

The Doris Meissner Memo on Prosecutorial Discretion and Letter from Assistant Attorney General Robert Raben to Congressman Barney Frank (available on AILA Infonet at Document # 00020771, Feb. 7,2000) both dealt with concerns by immigration advocates that the Illegal Immigration Reform and Responsibility Act of 1996 had deprived the legacy INS of the fundamental authority to grant discretionary relief; in each case, it was not the presence or absence of discretion that was of primary concern to critics who sought clarification and reassurance but rather the ability to obtain the substantive relief that Congress had seemed to put out of reach.

Both critics and defenders of discretion often convey the subliminal but powerful message that discretion is the polar opposite of enforcement. Restrictionists oppose discretion because they oppose the substantive relief that discretion makes possible. Advocates promote discretion not because they accept the need for more intelligent or targeted enforcement, but because they hope that its vigorous exercise will make any enforcement less likely.

The point is that whether discretion is good or bad depends upon whether one supports or opposes the short-term end result to which discretion is presumed to lead. A detached, disinterested examination of how discretion will affect the larger national interest or the fundamental heath and rationality of the system itself is, sad to say, conspicuously absent.

The Immigration Policy Center has published a report on the historical role of the Administration in exercising discretion. This paper provides the example of the implementation of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), which provided relief, but unequal treatment, to Nicaraguans, Cubans, Salvadorians and Guatemalans. Nicaraguans and Cubans were allowed to adjust their status without preconditions, while Salvadorians and Guatemalans were thrown the gauntlet to demonstrate extreme hardship if removed from the US. While advocates demanded the same standard to apply for Salvadorians and Guatemalans as NACARA sought to apply for Nicaraguans and Cubans, which the then Clinton Administration correctly stated it could not do under the legislation, the Administration compromised through subsequent regulation, and through use of judicious discretion, by softening “extreme hardship” for Salvadorians and Guatemalans through the creation of a rebuttal presumption standard.

The exercise of discretion by the Clinton Administration after the passage of NACARA is a good example of how this exercise was used judiciously to achieve a compromise between competing interests. Moreover, the use of discretionary administrative action is no stranger to immigration policy, and previous efforts to administratively correct hardships or imbalances were implemented without a whisper. Deferred Action has been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. A USCIS memo, issued on June 15, 2009, provided extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries could request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow (er) who was married less than two years at the time of the citizen’s death to apply for permanent residence. The USCIS has also implemented “parole in place” for spouses for military personnel who would otherwise not be eligible for adjustment of status if they were unable to demonstrate that they were admitted or paroled into the US.

It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system, the Administration can exercise discretion, devoid of ideology, to remedy the imbalance. In the context of the recent August 18 policy announcement about closing the cases of low priority respondents in removal, people on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 12 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it would be wiser for the Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US under the August 18 policy, even if it does not go all the way, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans.

FINAL IMMIGRATION LESSON FROM THE DISMISSAL OF THE STRAUSS-KAHN CASE

2011-08-23T21:58:00.000-07:00

By Cyrus Mehta

Much has been written about the amazing turn of events in the Strauss-Kahn case that resulted in the dismissal of the criminal charges against him. The Manhattan DA’s motion to dismiss the indictment reads like a treatise on the ethical role of the district attorney in prosecuting a case, while also richly detailing the inconsistencies of the accuser, Nafissatou Diallo. According to the motion, if the prosecutor does not believe that a crime was committed beyond a reasonable doubt, he or she cannot ask the jury to do so. Moreover, the motion goes on to state that the prosecutor’s duty is to seek justice and not just to win cases. Under New York ethical rule 3.3, a lawyer cannot offer evidence that he or she knows is false and has a duty to correct any false evidence that the lawyer has already offered to the court. I do not fault the ethical judgment of Cyrus Vance, the Manhattan DA, in declining to prosecuting this case, as well as alerting the court of the many inconsistencies of Ms. Diallo after they came to light, although Slate has offered a well reasoned rebuttal of the inconsistencies of Ms. Diallo that have been alleged by the DA’s office.

The main concern for this writer, as stated in prior blogs on the Strauss-Kahn case, is that in the future immigrants will be more reluctant to come forward and press charges if they have been victims of sex crimes. Since in most such cases, the success of the prosecution depends on the credibility of the accuser, one with a less than perfect immigration past will be susceptible to her credibility being attacked in a trial. It is not uncommon for asylum seekers who have been persecuted to be coached by unscrupulous immigration practitioners, both authorized and unauthorized, to exaggerate their claims. For instance, one who may have suffered female circumcision, which in itself is a basis for asylum, may be coached to also state that she was raped by governmental actors to bolster the claim. This is not to suggest that asylum seekers do not present truthful claims. In the experience of this writer, most do, but it is also possible that some may not, especially if they are not represented by an ethical practitioner, and still obtain asylum. If they become victims of a horrific rape in the future, they may be discouraged from coming forward even if the prosecutor is willing to take up the case.

As the recent New York Times editorial on the Strauss-Kahn case aptly states:

There is a legitimate concern that his decision may discourage rape victims from coming forward in the future. Women who have been assaulted often worry, with reason, about being victimized a second time in court. And those with problematic backgrounds must feel confident that they can demand and receive justice.

Finally, what about the fate of Ms. Diallo? Will she be thrown to the wolves even though it is possible that a crime may have been committed during those few minutes in the hotel room, but the prosecutors have declined to go forward because they cannot convince a jury beyond a reasonable doubt that it occurred? If her asylum case was fabricated, the DHS could potentially reopen the case and place her in removal proceedings. She can try to again seek asylum on the genuine grounds of persecution that she suffered, but did not reveal in her asylum application. On the other hand, because she has a minor daughter, and she has been a victim of female circumcision, she could also merit the exercise of the government’s prosecutorial discretion.

Ms. Diallo can also seek a U visa if all else fails and her back is pushed against the wall. To qualify for the U visa under Section 101(a)(15)(U) of the Immigration and Nationality Act, the foreign national must demonstrate that she “has been helpful, is being helpful, or is likely to be helpful” to the prosecutor in addition to demonstrating substantial physical or mental abuse from the criminal activity. After all this, one’s instinctive reaction is that Ms. Diallo was not helpful to the prosecution in investigating or prosecuting criminal activity that would qualify one for the U visa, such as a rape or related sex offenses. The applicant must also possess "credible and reliable information that he or she has knowledge of the details concerning the qualifying criminal activity upon which his or her petition is based." See 8 C.F.R. 214.14(b)(2). However, in the U visa immigration context, it can be argued that she was helpful to the prosecution, despite her many inconsistencies, but it was ultimately the prosecutor’s office that decided to drop the case as they could not prove to a jury beyond a reasonable doubt that the offense was committed. A careful read through the motion to dismiss does not suggest that the prosecution was convinced that criminal activity did not occur in the hotel room. A U visa applicant should not be deprived of this benefit only because the prosecution ultimately decided, based on the flaws in the case, that it could not take the case forward in a criminal proceeding under a higher "beyond a reasonable doubt" standard. Also, the grant of a U visa ought not to be based on whether the victim was able to prove the charges against the accuser. Thus, even if there is an acquittal against the defendant who is found not guilty, the U visa ought to still be approved for the crime victim who was helpful to the prosecution, even though unsuccessful. Moreover, the U visa depends on whether the prosecutor will sign the crucial certificate of helpfulness that provides the basis for a successful U visa application. Even if the Manhattan DA’s office dismissed the indictment, it should not shy away from certifying that Ms. Diallo was helpful for purposes of the U visa. This is the least that Cyrus Vance can do if Ms. Diallo needs to remain in the United States. Such a gesture would also provide some encouragement for other immigrants to come forward who have been victims of sex offenses.

FEWER PEOPLE TO GET DEPORTED UNDER NEW POLICY: HAS THE ADMINISTRATION FINALLY COME TO ITS SENSES?

2011-08-18T20:46:00.000-07:00

By Cyrus Mehta

The Department of Homeland Security in a letter addressed to Senator Durbin and 21 other senators announced on August 18, 2011 a new policy that would identify low priority removal cases for the exercise of prosecutorial discretion. According to a New York Times story, the beneficiaries of such discretion would also be able to obtain work permits.

This is a refreshingly positive development, and shows that the Obama administration may have hopefully finally come to its senses. At a time when Congress is in a stalemate, and it has been acknowledged that 12+ million people cannot be deported, the administration has used its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. In providing some legal basis for them to remain in the US, they are more likely to add to tax revenues, spur consumer confidence, buy homes and ultimately build businesses that may result in jobs for Americans. On first impression, the new policy appears to be a mere promotion of the Morton Memo of June 17, 2011 on prosecutorial discretion. It does not grant relief on a broad scale, and it appears, if put into effect as promised, that it will probably only assist people on a case by case basis who are already in removal proceedings or will be placed in such proceedings. According to Senator Durbin’s website, this is how the new process will work:

Under the new process, a Department of Homeland Security (DHS) and Department of Justice (DOJ) working group will develop specific criteria to identify low-priority removal cases that should be considered for prosecutorial discretion. These criteria will be based on “positive factors” from the Morton Memo, which include individuals present in the U.S. since childhood (like DREAM Act students), minors, the elderly, pregnant and nursing women, victims of serious crimes, veterans and members of the armed services, and individuals with serious disabilities or health problems. The working group will develop a process for reviewing cases pending before immigration and federal courts that meet these specific criteria.

On a regular basis, ICE attorneys will individually review every case scheduled for a hearing within the next 1-2 months to identify those cases that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. DHS will also begin reviewing all 300,000 pending cases to identify those that meet these specific criteria. These cases will be closed except in extraordinary circumstances, in which case the reviewing attorney must receive the approval of a supervisor to move forward. Individuals whose cases are closed will be able to apply for certain immigration benefits, including work authorization. All applications for benefits will be reviewed on a case-by-case basis.

On the other hand, the new policy involves an inter-agency effort to identify the low priority cases. Under the Morton Memo, only ICE was charged with the responsibility of exercising prosecutorial discretion, and it seemed unlikely that all ICE officials in the field would follow the new mandate. Indeed, there was already a rebellion within the rank and file of ICE against the Morton Memo. The latest inter-agency initiative refreshingly also involves Immigration Judges at the Executive Office for Immigration Review, who could probably coax the ICE prosecuting attorney to terminate a deserving low priority case and take it off their tremendously clogged court calendar. The new initiative ought to also deeply involve the USCIS. Although the USCIS’s mandate is to grant immigration benefits rather than enforce the law, the USCIS is also authorized to issue Notice to Appears upon a denial of a benefits application. If the USCIS applies discretion earlier on, fewer low priority individuals will be placed in removal proceedings in the first place.

Most problematic at this stage with the new policy, as noted by DREAM activist and law student Prerna Lal, who is herself in deportation is that it may not assist those who are in a legal limbo. These are undocumented individuals who have not yet come on the radar of DHS to even be considered being placed in removal proceedings. We surely do not want to encourage the perverse effect of such people coming forward and attempting to be placed in removal proceedings (by say filing a frivolous asylum application) solely to be considered for prosecutorial discretion. This would also defeat the purpose of the new policy as it will create more work than necessary to process people for removal and then consider them under the new policy for prosecutorial discretion. Indeed, the next logical step for the Obama administration and DHS is to affirmatively grant deferred action, parole and work permits to people in legal limbo who can come forward if they meet the same low priority criteria as those who are in removal proceedings or about to be put into these proceedings. The government does have the power to exercise such discretion under the existing provisions of the Immigration and Nationality Act. Gary Endelman and Cyrus Mehta in a prior blog have outlined a blueprint for undocumented individuals to be affirmatively granted administrative relief, See Keeping Hope Alive, President Obama Can Use His Executive Power Until Congress Passes The Dream Act, http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html.

Critics of the use of prosecutorial discretion such as House Judiciary Chairman Lamar Smith will argue that the President is not faithfully implementing the law. This would be a valid position if our immigration laws were rational and not broken. The reason why we have such a huge undocumented population is because our outdated laws are broken, and have not been able to provide sufficient pathways for people who need to unite with family members in the US . The existing legal framework also deprives employers from being able to effectively sponsor them for work permits or green cards. Moreover, the President is not bypassing Congress by creating a new class of permanent residence. In exercising prosecutorial discretion, the President is merely refraining from deporting low priority individuals, and using his power within the INA to grant administrative relief such as a work permits, parole or deferred action. If Mr. Smith were to have his way through the passage of the HALT Act, which would remove all discretion from the administration, our immigration law would be even more broken, and the undocumented population would continue to build without being able to benefit the US.

PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I FILE A PERM LABOR CERTIFICATION?

2011-08-12T16:23:00.000-07:00

by Cora-Ann V. Pestaina

The Department of Labor (DOL) has announced that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage Center (NPWC) has temporarily suspended processing of prevailing wage determinations (PWD), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in 3-4 weeks.

In response to practitioners’ inquiries concerning pending requests, the NPWC has been issuing the following e-mail:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. If you have further questions concerning your PWD, please contact 202-693-3010.

In an August 30, 2010 decision in CATA v. Solis the District Court ordered the DOL to promulgate new H-2B prevailing wage regulations. When the DOL made a decision to delay, by almost one year, the effective date of those regulations, the Federal Court found that the DOL violated the Administrative Procedure Act by imposing the delay without engaging in notice and comment. The Court also found that the DOL acted in contravention of the Immigration and Nationality Act because it justified the delay by pointing to potential hardship to employers—a consideration that was outside the scope of the DOL’s congressional mandate. The year-long delay in implementing the new wage regulations would require the continued payment of a lower and invalid wage to H-2B workers. In a June 15, 2011 court order, the Court mandated a change in the effective date of those regulations.

In order to comply with the Court order, the DOL issued a final rule published in the Federal Register on August 1, 2011, with an effective date of September 30, 2011. There are existing H-2B temporary labor certifications covering work to be performed after September 30, 2011, for which the previously issued PWDs no longer apply. The NPWC is now utilizing all of its resources to reissue approximately 4000 PWDs to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011. In the rule published on August 1, 2011, the DOL indicated that they will be able to reissue all of the required H-2B wage determinations before October 1, 2011 but not before August 31, 2011.

The temporary suspension of processing on PWDs greatly impacts the PERM labor certification process. PERM is the first step of the green card process for foreign nationals seeking permanent residence through their employment. The PWD is an extremely important component of the process and pursuant to 20 C.F.R. §656.40, obtaining a PWD is a mandatory step under PERM. In accordance with 20 C.F.R. §656.40(c) PWDs are issued with a validity period between 90 days and 1 year from the date of determination and in order to use a PWD, the employer must file the PERM application or begin required recruitment within the validity period of the PWD.

Under 20 C.F.R. § 656.10, the employer must post the Notice of Filing for at least 10 consecutive business days between 30 and 180 days before filing the PERM application and the Notice of Filing must contain a wage that is equal to or greater than the PWD. In addition, under 20 C.F.R. §656.17, the mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. Employers who commenced PERM recruitment prior to obtaining the PWD may now have to watch the recruitment expire if the PWD is not issued in time. The employer may have to conduct new recruitment once the NPWC resumes processing of PWDs.

Conducting new recruitment could be a very expensive process for the employer. But, beyond that, the inability of the employer to file a PERM application on behalf of a foreign national in H-1B status may have more far-reaching effects. §106(a) of the American Competitiveness in the 21st Century Act (AC21) allows one to apply for a 7th year H-1B extension if a labor certification or an I-140 petition was filed 365 days prior to the end of the 6th year in H-1B status.

Accordingly, if, due to the current suspension of processing, an employer is unable to file the PERM prior to the commencement of the foreign national’s 6th year in H-1B status, this may affect the foreign national’s ability to extend his or her H-1B status at the end of the 6th year.

There are a few steps employers may take to cope with the current delays in processing and to ensure that they are able to timely file their PERM applications and utilize recruitment before it expires or to protect the foreign national’s ability to extend H-1B status in the US.

Utilize a previous PWD

An employer is permitted to use the same PWD for multiple PERM applications if the PWD is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved. Therefore, a PWD issued in relation to a previous PERM could potentially be used for other PERMs.

Utilize an expired PWD

If the employer commenced its earliest recruitment during the PWD’s validity period, then there is clearly no need to obtain a new PWD and the employer may file the PERM application utilizing the expired PWD.

The DOL previously denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. However, under the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), the employer can rely on an expired PWD in the filing of a PERM application if the employer initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application. The DOL has not yet indicated that it will follow Matter of Horizon Computer Services and employers who intend to rely on this case ought to bear in mind that the employer in that case initiated MOST of its recruitment during the PWD validity period. (See my previous blogs on this topic at http://tiny.cc/mtv39 and http://tiny.cc/9u8zp.)

Predicting the PWD

Practitioners can predict what level and wage will be assigned to any position by going through the same analysis in which the DOL will engage. The Prevailing Wage Guidance (See “Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs,” published on AILA InfoNet at Doc. No. 10019468 (posted Jan. 4, 2010)) provides a detailed description of the four levels, as well as a worksheet at Appendix C and instructions specifying five steps to determine the prevailing wage level. Once the PWD has been predicted, the employer can post the Notice of Filing. This way, the employer will not be forced to wait until the NPWC resumes processing and actually issues a PWD in order to post the Notice of Filing. If the Notice of Filing has already been posted and the employer has complied with the mandatory 30-day quiet period, once the NPWC issues the PWD, the employer may quickly proceed to file the PERM application. If the employer is clearly offering a wage that is excess of any PWD that the NPWC could issue, then the employer need not estimate the PWD and need not wait for the PWD before posting the Notice of Filing.

In the event that the NPWC issues a PWD that exceeds the predicted wage listed on the Notice of Filing, the employer will have no choice but to post a new Notice of Filing bearing the new, higher wage. If the wage was listed in any other forms of recruitment, then that recruitment will have to be restarted. All of this will delay filing of the PERM. The employer will have to conduct precise calculations to ensure that all recruitment occurs within the 30 - 180 day timeframe prior to filing a PERM application.

Hopefully, come October 1st, the NPWC will resume processing on PWDs, etc. As usual, these requests will be processed on a first come, first served (FIFO) basis and no expedite requests will be accepted. Practitioners must continue to file requests for PWDs to secure a place in the lengthening queue.

DO WE HAVE A START-UP VISA FOR ENTREPRENEURS EVEN WHEN CONGRESS HAS NOT LIFTED A FINGER?

2011-08-04T19:30:00.000-07:00

By Cyrus Mehta

The US economy remains sluggish. The joblessness rate is still much too high. Even after the debt ceiling crisis was averted at the last minute, the compromise did not generate any excitement or renewed optimism. Indeed, the Dow Jones industrial average plunged more than 500 points on August 4, 2011 on fears that the US may enter into another recession.

We need something new that would give us cause for hope. How about an immigration stimulus?

On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and USCIS Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” Director Mayorkas wrote a blog acknowledging that entrepreneurs and skilled workers would “fuel our nation’s economy by creating jobs, and promoting new technologies and ideas.”

All this has happened without Congress lifting a finger. In fact, even the DHS has not done much. It has clarified the true meaning of the provisions in the Immigration and Nationality Act, which Congress itself enacted, which it had previously distorted. For example, in its prior policy memo authored by Donald Neufeld on H-1B employment relating to third party sites, the USCIS indicated that to qualify as an H-1B worker, the petitioning employer must demonstrate an employer-employee relationship. Under such circumstances, it would be practically impossible for an owner of a company to be sponsored for an H-1B if it could not demonstrate that the entity could control the employment, despite administrative decisions upholding the separate existence of the corporate entity. In the latest H-1B Question and Answers, the USCIS appears to still hold the line about the need to demonstrate an employer-employee relationship, but has conceded that this can nevertheless be demonstrated even when the owner of the company is being sponsored on an H-1B visa, so long as there is a right of control by the petitioner over the employment of the beneficiary. According to the USCIS Q&A:

For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

This is indeed a welcome clarification, and is something that we also advocated in a prior article on our website, See Cora-Ann Pestaina, USCIS GRAPPLING WITH THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA:

Also, the chance of an approval is greater if others are also involved in the management of the entity. Petitioners must endeavor to establish the power to make final decisions and to terminate the beneficiary’s employment. For example, the employer-employee relationship might be satisfactorily illustrated where petitioner’s bylaws clearly dictate how the corporation will be managed. Petitioner may be able to show, through its bylaws, that its business and property will be managed by a Board of Directors and that a majority vote of this Board will govern the employment, compensation and discharge of all employees of the corporation. A Board of no fewer than three Directors, including the beneficiary, would mean that the majority vote belonged to Directors other than the beneficiary and essentially, that petitioner held the power to make decisions for the company and to terminate the beneficiary’s employment. As a result, the employer-employee relationship is less likely to be questioned.

We hope that this policy announcement becomes a reality and that the officers in the field faithfully follow the directives. Vivek Wadhwa, noted scholar on entrepreneurship, has stated in his recent column in the Washington Post, “We could easily see thousands of start-ups generating tens of thousands of jobs in the next couple of years if these changes are enacted in the spirit that they were intended.” Indeed, unlike the legislative proposal for the Start-Up Visa (which has not made much progress in Congress), or the more onerous EB-5 Investor category that exists presently, there is no minimum investment requirement or creating a minimum number of jobs within a certain time frame. The petitioner, however, will still need to demonstrate that it will be employing the beneficiary in a specialty occupation, which is a position that requires the minimum of a bachelor’s degree in a specialized field, and that the entity will be able to provide work for the beneficiary in this specialty for the duration of the H-1B visa.

The H-1B visa has a six year limit. What happens to this entrepreneur after six years? The USCIS has clarified other existing provisions to encourage entrepreneurs. to apply for the green card. Another set of Question and Answers on the Employment-based Second Preference (EB-2) suggests that an entrepreneur can be sponsored under this immigrant visa category, which generally requires a labor certification, but can seek an exemption of the labor certification requirement through a “national interest waiver.” In addition, the beneficiary must be able to demonstrate an advanced degree (or its equivalent - bachelor’s degree + 5 years of post-baccalaureate experience) or exceptional ability. This too is nothing new. The national interest waiver was enacted by Congress in 1990, and exists under INA §203(b)(2)(B), except that it had become impossibly hard to obtain under Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT), which set forth a three-prong test.

With respect to the first two criteria under NYSDOT, the petitioner must show that he or she will be employed "in an area of substantial intrinsic merit" and that the "proposed benefit will be national in scope." Interesting, until this new policy, it was always difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. This concern has now been put to rest in the EB-2 Q&A:

For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.

It is the third that is extremely opaque and difficult to overcome. The petitioner must demonstrate that "the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien." The AAO went on to further illuminate this criterion as follows: "Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications."

Overcoming the third prong is difficult, and allowed the USCIS to shoot down the best of arguments made by a national interest waiver claimant. Indeed, the USCIS could always resort to this subjective criterion to thwart even the most meritorious of claims, which is that the claimant does not overcome the inherent interest of the government in making the job available to US workers.

The EB-2 Q&A refreshingly provides the following golden nugget to the entrepreneur to overcome the third prong:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for the NIW. For example, the entrepreneur may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

It would have been nice if the USCIS had thrashed the three prong test in NYSDOT, as in my opinion, INA section 203(b)(2)(B) does not set forth such a cumbersome test, and the statute, which is a clear expression of Congress, is more important than an AAO decision, which added a spin on an unambiguous statutory provision. And what if the entrepreneur cannot demonstrate that he or she is working in the national interest or cannot qualify under the EB-2 because he or she lacks an advanced degree or exceptional ability?

The EB-2 Q&A appears to suggest that the entrepreneur can also be sponsored for a green card under the EB-2 through a labor certification. Presumably, an entrepreneur under the EB-3 could also be sponsored through a labor certification. This is a surprise. The DOL has always frowned upon an owner of an entity being sponsored for a labor certification. In order to obtain labor certification, the employer must establish that it has conducted a good faith test of the labor market and that there were no qualified US workers who were available for the position. The DOL has denied labor certification to both 100% and minority owners of companies who filed a labor certification on their behalf. See ATI Consultores, 07-INA-64 (BALCA Feb. 11, 2008); M. Safra & Co. Inc., 08-INA-74 (BALCA Oct. 27, 2008). The test for determining whether an employee closely tied to the sponsoring entity could qualify for labor certification was set forth in Modular Container Systems, Inc. 89-INA-228 (BALCA July 16, 1991) (en banc), where BALCA applied a “totality of circumstances” test to determine whether there was a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

Clearly, an entrepreneur who may successfully obtain an H-1B visa under the new guidance will most likely fail under the Modular Container Systems “totality of circumstances” test. Did the USCIS consult with the DOL before issuing this guidance? Will the DOL be receptive to the USCIS’s new policy of encouraging entrepreneurs and liberally interpret Modular Container Systems? When DOL implemented the new PERM labor certification program, it also promulgated 20 C.F.R. §656.17(l), which incorporates some of the Modular Container analysis, and also requires the employer to certify on the PERM labor certification application whether the foreign national has an ownership interest in the sponsoring entity or has a familial relationship with the stockholders, corporate officers, incorporators or partners. What will become of this regulation? I do not feel that the DOL will change its ways on entrepreneurs. Whether one agrees or not, the DOL believes that its narrow mission is to protect the jobs of US workers, and not to spur economic recovery and growth. Of course, one can argue that foreign entrepreneurs who are allowed to start up businesses and stay in the US will likely create jobs for US workers, rather than take the jobs of Americans, but this logic may fall on deaf ears as far as the DOL is concerned. I hope I am proved wrong on this by the DOL.

In conclusion, the new policy, if implemented, will allow foreign entrepreneurs to obtain H-1B visas, and under certain circumstances, also qualify for a “fast track” green card under the National Interest Waiver. Much administrative tinkering still needs to be done if we really want to create a system that will spur amazing economic activity. The DOL will need to fall into line. The horrendous EB-2 and EB-3 backlogs for Indian and Chinese beneficiaries will still persist. It makes no sense to encourage entrepreneurs from India and China if the wait to get a green card will be in excess of 5 years in the EB-2 or more than a decade in the EB-3. In Tyranny of Priority Dates, Gary Endelman and I offered a blueprint for further administrative action to allow beneficiaries of approved I-130 and I-140 petitions to file adjustment of status applications even if the priority date is not current as well as allow the grant of employment authorization and parole, which would include spouses and other dependants. We have also provided an administrative blueprint for DREAM kids. Our proposals are more ambitious, but I am heartened that the Executive Branch on August 2, 2011 did the right thing by recognizing that foreign national skilled workers and entrepreneurs can be an asset rather than a liability, even in such hard economic times. If the USCIS guidance is properly implemented, these skilled foreign nationals may provide much needed stimulus for the flagging and lackluster US economy.

THE ROLE OF THE IMMIGRATION LAWYER IN ADVISING UNDOCUMENTED IMMIGRANTS

2011-07-29T16:08:00.000-07:00

By Cyrus Mehta

Immigration lawyers commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the attorney recommend that this person remain in the U.S. in this unlawful status until a benefit “may” accrue in the near or distant future? Even if the attorney may not directly advise the client to remain in the U.S. in violation of the law, would an attorney advising the client of a potential future immigration law be implicitly encouraging the client to remain in violation of the law, and also be implicating any ethical obligations?

This situation indeed is one of the great paradoxes in immigration practice, since an individual who is in undocumented status need not expect to remain eternally undocumented. A classic example is one who is “grandfathered” under § 245(i) of the INA. So long as an immigrant visa petition or labor certification was filed on behalf of this person on or before April 30, 2001 that was “approvable as filed,” and if the principal applicant, for whom the labor certification was filed was physically present in the U.S. on December 21, 2000 (in cases where the labor certification or petition was filed after January 14, 1998), this individual can ultimately adjust status in the U.S. when she is eligible to do so.

In the meantime, while this individual is waiting to become eligible for adjustment of status, he or she continues to remain unlawfully in the U.S. and may also be placed in removal despite having an approved petition, but unable to adjust status until the priority date becomes current. We encounter yet another paradox when such a person who is potentially eligible under § 245(i) is issued a Notice to Appear and is placed in removal proceedings. The Board of Immigration Appeals has held that it may be an abuse of discretion for an Immigration Judge to deny a continuance to a respondent who has a prima facie approvable visa petition, in both the family and employment context, and is also potentially eligible for adjustment of status. See e.g. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).

Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria pursuant to INA §240A(b), such as by being physically present in the U.S. on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or a permanent resident. Similarly, the undocumented person can also apply for asylum within one year of his or her arrival in the US, and can do so even later, if exceptional or extraordinary circumstances are demonstrated. Conversely, a documented person, such as one in H-1B status can according to the government also technically be considered not in status, during the pendency of an extension request, although this position has been successfully challenged.

Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status (TPS), if a calamity were to befall his or her country such as the recent TPS program and its extension for Haitians after the devastating earthquake on January 12, 2010. Millions of undocumented immigrants, including children, who have fallen out of status or entered without any status, are waiting for Congress to pass legislation that could legalize their status. Immigration lawyers also advocate on their behalf, and help them draft petitions and accompany them to the offices of elected representatives.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), which held that undocumented children could not be deprived of a public education, is worth noting:

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

Against this backdrop, the immigration lawyer must be mindful of certain limitations. On the one hand, a lawyer is under a duty to act zealously. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only zealously represent his or her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling a client to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation where an undocumented noncitizen can eternally hope to gain legal status, a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The latest Immigration and Customs Enforcement Memo on prosecutorial discretion by John Morton, June 17, 2011, instructing officials to exercise prosecutorial discretion in a number of situations also behooves the immigration attorney to zealously advise his or her clients of all options notwithstanding INA §243. The ICE Memo instructs that an individual who is removable, but is on low enforcement priority, can ask ICE for supervised release (and can then request employment authorization), deferred action or can seek to reopen with the government’s consent the removal order if there is relief available.

What about a state law that makes it criminal for an unauthorized immigrant to remain in the state? We can argue at this point that the major provisions of the laws of Arizona, Georgia and Indiana have been enjoined as being unconstitutional. Many of these state laws could snare people who may not technically be registered under federal law, but may be allowed to remain in the US by the federal government and even be given employment authorization such as battered spouses who have filed self-petitions under the Violence Against Women Act, U visa applicants (victims of certain crimes ) or TPS applicants. Moreover, while a state may seek to banish the so called individual from its territory, under the federal immigration system, he or she must first be placed in proceedings. While in proceedings, this individual can then potentially apply for relief such as cancellation of removal, and can get employment authorization even while continuing to remain unlawfully present. The author commends readers to David Isaacson’s A PRELIMINARY LOOK AT SOME OF THE CONSTITUTIONAL AND PRACTICAL PROBLEMS WITH ALABAMA’S NEW IMMIGRATION LAW in order to fully understand the contradictions between a state’s immigration law and the federal immigration law.

In closing, Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

(This blog include extracts from How To Walk The Ethical Line – Being Less Stressed Out, by Cyrus D. Mehta, Sam Myers, and Kathleen Campbell Walker, AILA’s Immigration Practice Pointers (2011-12 Edition)).

ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS

2011-07-21T08:42:00.000-07:00

By Myriam Jaidi

Second Circuit Court Judge Denny Chin’s decision in Lawson v. USCIS, 09 Civ. 10195 (DC) (issued July 7, 2011) provides a beacon of hope for individuals who have overcome a reprehensible past and wish to pursue U.S. citizenship, and serves as an exemplar to advocates and adjudicators not only on the legal question of good moral character but also on the way to analyze other cases such as waivers requiring a demonstration of extreme hardship. Like the issue of good moral character, which was the lynch pin in Lawson, extreme hardship waivers require the same care in preparation and in adjudication revealed by Judge Chin’s searching legal analysis in Lawson. Judge Chin’s scrutiny and weighing of all relevant facts and legal issues in the case provides a guide to adjudicators on how to conduct the required “case by case” legal analysis. Judge Chin expertly applies the appropriate legal standards with a keen awareness of relevant policies and priorities, and a judicious exercise of discretion that results in justice triumphing over petty posturing.

Judge Chin’s decision also makes clear that applying a set of government priorities in determining whether a legal standard has been met does not mean that individuals will have an easy time of making their cases. Advocates should review the decision and the laws at issue for a sobering overview of just how high the standard is, and how much work and client preparation need be done to succeed in arguing that someone has demonstrated good moral character in the context of naturalization, or merits a favorable decision on a waiver application in the admissibility context. Adjudicators should, in turn, review the case for guidance, in the absence of guidance from DHS/USCIS, on how to apply the law within the framework of agency priorities.

Make no mistake: the road to showing someone merits a favorable finding of good moral character or a favorable exercise of discretion for a waiver, is a hard one and the bars in these case are nebulous and set quite high. Here we will explore the difficulties of establishing good moral character as a matter of law, but readers should keep in mind that the same principles for building and analyzing a case can readily apply in the waiver context as well.

Although courts have long espoused the notion that “[w]e do not require perfection in our new citizens,” Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961), those who have committed significant crimes or have other grave negative incidents in their past face an uphill battle that can be won only if they do not fall within one of the bars to establishing good moral character and only if they have made exemplary efforts to redeem themselves.

In Lawson, the court concluded that Vernon Lawson, a Vietnam War veteran honorably discharged from the Marines, established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985 because he paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates.” Lawson at page 2.

In addition, Mr. Lawson continued his efforts at reform after he left the confines of prison:

Upon his release, he obtained gainful employment, and spent eight years as a drug abuse counselor, drawing on his own experience to help countless individuals deal with their addictions. He moved back home with his mother and took care of her as her health failed. He went to church every Sunday and regularly volunteered to help in church activities. He brought food to homeless veterans, played chess in a neighborhood chess club, and tended a neighborhood garden.

Lawson, at page 3. As described by Judge Chin, Mr. Lawson made extensive, ongoing efforts to overcome his past and though, as the court noted, he committed an “unspeakable act”, by the time of the court’s decision he had utterly reformed his life, had paid his debt to society, and therefore established that he met the legal standard for good moral character.

Judge Chin also spent considerable effort in examining Mr. Lawson’s life experiences and how these impacted him, to place Mr. Lawson’s efforts at redemption and the changes he effected in his life in context. Judge Chin closely considered Mr. Lawson’s horrific experiences in Vietnam, where he became a substance abuser as a result of the stress and suffered psychological damage. He did not get the necessary treatment until he was in prison more than 20 years after he returned from serving his country honorably.

In Mr. Lawson’s case, as in many cases, good moral character made the difference between deportation and US citizenship. That these two outcomes are alternatives in one case is astounding and underscores the importance of closely examining and mustering the positive efforts and achievements in an individual’s past and present, even where a significant obstacle to a finding of good moral character may exist. Doing so (and making the determination of whether someone should risk applying for naturalization), however, requires an understanding of the nebulous concept of good moral character as well as a firm grasp of the government’s policy goals.

Although the relevant legislative and regulatory frameworks provide an idea of what precludes a finding of good moral character, no definition exists and the term has been called “incapable of exact definition.” Posusta v. United States, 282 F.2d 533, 535 (2d Cir. 1961). The statutory and regulatory bars may be found in INA 101(f) and 8 CFR 316.10. These laws dictate a finding of a lack of good moral character for a person who has ever been convicted of murder, who has been convicted of an aggravated felony (defined in INA 101(a)(43)) after November 29, 1990, and who has at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom). Further, an applicant must be found to lack good moral character if during the relevant statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;
(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act;
(viii) Is or was involved in the smuggling of a person or persons into the United States as described in section 212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant was convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.

Finally, a third set of preclusions apply, which includes a catchall. Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing marriage; or
(iii) Committed unlawful acts that adversely reflect upon the applicant's moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

The time frame relevant to a determination of good moral character may reach well beyond the specific statutory periods relevant to particular types of petitions, for instance 5 years (individuals applying as lawful permanent residents under INA 316(a)(1)), 3 years (if LPR living for 3 years in marital union with US citizen spouse under INA 319(a)), 1 year (under regulations governing eligibility under INA 329). According to 8 CFR § 316.10(a)(2), USCIS may

take into consideration, as a basis for its determination, the applicant's conduct and acts at any time prior to [the relevant statutory] period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant's present moral character.

Within this framework, USCIS is directed by regulation to evaluate good moral character “on a case-by-case” basis. 8 CFR § 316.10(a)(2) There is sparse policy guidance on the question of good moral character. The Adjudicator’s Field Manual contains a lengthy section on good moral character but the section is designed to provide an overview of the statutory bars, methods of uncovering fraud, and procedures for defending challenges to a denial rather than apprising officers of how to objectively assess a person’s character within the framework of the laws and overarching agency policies. The AFM provides a baseline for analysis, specifically that “good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides should be considered, without regard to whether the applicant has been arrested or convicted.” AFM 73.6(a). The AFM also provides some helpful guidance with regard to what kind of misstatements may be excused or insignificant because they do not demonstrate the requisite intent to deceive for an immigration benefit. (“[M]isrepresentations that results [sic] from poor memory or because the applicant did not understand the question are not false testimony.”) However, in the next paragraph, the AFM goes on to note that individuals use the failure to understand the question as a “very common defense” and refers readers to another section “regarding interviewing techniques and proper documentation to file in order to eliminate this line of defense.” Perhaps more helpful to adjudicators would be direction on how to figure out whether someone is using a “line of defense” or sincerely has not understood. Such direction is once again found in Judge Chin’s decision.

In Mr. Lawson’s case, the government finally based its effort to deport Mr. Lawson on its claim that he committed perjury (at the deposition taken as part of the action in district court regarding his application for naturalization) for the purpose of obtaining an immigration benefit (in violation of 8 CFR § 316.10(b)(2)(vi)). The government argued that Mr. Lawson did not truthfully answer a question about whether he continued to drink alcohol. Closely examining the questions asked and answers given, Judge Chin found that Mr. Lawson had not understood the question at the deposition. Judge Chin recognized that Mr. Lawson had interpreted the words “drinking” and “drinks” [and “alcohol”] to mean “hard liquor” and reasonably interpreted the question as inquiring whether he continued to engage in abusive drinking. The court concluded that Mr. Lawson could therefore not be found to have committed perjury for not mentioning that he occasionally had wine or beer at family gatherings. The court noted that “[i]n light of the case law and all of the compelling circumstances, the Government’s latest position seems nothing but petty.”

After Mr. Lawson’s many years of hard work to redeem his character, it is daunting to think that a misinterpretation of question could have made all the difference in his case. What saved Mr. Lawson was not only that the court found that he had not answered the question “falsely” but also that case law recognizes other possible motives for false statements besides that of seeking to obtain an immigration benefit or naturalization exist and requires these alternatives to be considered. Judge Chin reviewed case law recognizing that fear, embarrassment or a desire for privacy could be alternative reasons, see Kungys v. United States, 485 U.S. 759, 782 (1988) as could misinterpretation of a question. See United States v. Hovsepian, 422 F.3d 883 (9th Cir. 2005).

Hovsepian involved two individuals who had been convicted in the past of serious crimes, but who, like Mr. Lawson, had completely reformed their lives, both earning advanced degrees and becoming community and youth role models, devoting a great deal of their lives to community leadership. The government argued that in the course of their quest for naturalization, each made false statements on the Form N-400 and regarding other issues (one regarding the nature of a youth group to which he belonged; the other regarding other names by which he had been known). Ultimately, the court found no error in the lower court’s conclusion that the individuals had not given intentionally false testimony for the purpose of obtaining an immigration benefit. Interestingly, the court noted that the question on the form at issue -- “Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” -- was rife with potential for misinterpretation or different reasonable interpretations given the extensive case law regarding the concept of “persecution.”

Individuals and their advocates must parse the question of good moral character very carefully and prepare to answer questions carefully, asking for clarification where they do not understand in order to avoid running afoul of the legal standards by mistake. What might appear to be a lost cause may not be if the individual can demonstrate that he has changed for the better because the laws are not meant to punish “but to admit as citizens those who are law-abiding and useful.” Posusta, 285 F.2d at 535-36. Circuit Judge Chin’s decision serves as an excellent reference for understanding what good moral character is and how it can be demonstrated. It also presents guidance for individuals who seek to reform themselves after having committed an act that stands as an obstacle (though not falling within the statutory bars) to naturalization. These individuals must demonstrate sincere and significant efforts to become upstanding and engaged contributors to their communities and to the nation in order to merit a favorable finding on their behalf. Finally, the decision serves, in the absence of guidance from DHS/USCIS on the adjudication of good moral character and similarly the exercise of discretion in waiver cases, as an exacting guide of the type of searching legal and factual inquiry adjudicators should make in these cases, not simply to uncover suspected fraud, but to analyze a person in light of their experiences, their mistakes, and their efforts to remake themselves into law-abiding and useful members of their local and national communities.

LEAVING TOO MUCH FOR ANOTHER DAY: WHAT THE SECOND CIRCUIT’S RECENT CSPA DECISION MISSED IN AGREEING WITH THE RESULT OF MATTER OF WANG

2011-07-12T08:43:00.000-07:00

By David A. Isaacson

In its recent decision in Li v. Renaud, the U.S. Court of Appeals for the Second Circuit found that a derivative beneficiary of a family-based petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, cannot use section 203(h)(3) of the Immigration and Nationality Act (“INA”) to retain the priority date originally given to the principal beneficiary with respect to a petition in the 2B preference category by that principal beneficiary. That is, if your grandfather filed a petition for your father when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you cannot retain the family’s place in the priority-date waiting line now that you count as over 21 after subtracting the year that the petition was pending; instead, you will have to go to the back of the years-long waiting line for an immigrant visa number.

In so holding, the Second Circuit essentially approved the result reached by the Board of Immigration Appeals (“BIA”) in its Matter of Wang decision in 2009, although for somewhat different reasons. In the process, however, the Second Circuit appears to have overlooked the significance of its reasoning as applied to employment-based petitions, a subject which was deliberately left for another day but which I would argue sheds substantial light on why the Second Circuit’s decision in Li was incorrect.Additional background regarding the CSPA in general and Matter of Wang in particular can be found in an earlier article written by this author for our firm’s website. The section construed by Matter of Wang and Li v. Renaud, INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Enacted into the U.S. Code at 8 U.S.C. § 1153(h)(3), this section can be found online within 8 U.S.C. § 1153 .

In Matter of Wang, the BIA had overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family preference petition beneficiary to retain the priority date that she previously had shared with her parent. The BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.
The Second Circuit in Li went a step further, holding that the statutory language was not even ambiguous, and that one need not resort to legislative intent to find that a priority date could not be retained “to use for a different family petition filed by a different petitioner.” Under circumstances such as the grandfather/child/grandchild fact pattern noted earlier (modeled on the facts of Li), the Second Circuit said, there is no “appropriate category” to convert to, because there is, for example, “no family preference category for grandchildren of LPRs”.

In footnote 1 of the Li opinion, at the urging of amicus curiae Mohammed Golam Azam, the Second Circuit made clear that they were leaving the issue of employment-based petitions for another day, and not determining how § 203(h)(3) applies to such petitions. The problem with this well-intentioned effort not to decide an issue unnecessarily is that it allowed the court to avert its eyes from the implications of the Liholding in the employment-based context, implications which I would argue suggest a problem with the entire holding.

As the reader will note from the quoted text of INA § 203(h) above, § 203(h)(2) specifically applies § 203(h) to derivative beneficiaries under § 203(d) not just of family-based petitions covered by § 203(a), but also of petitions in employment-based cases covered by § 203(b) and in diversity cases covered by § 203(c). Moreover, § 203(h)(3) specifically mentions subsection (d), pertaining to derivative beneficiaries, so we know that § 203(h)(2) doesn’t just apply to principal beneficiaries under § 203(a)(2)(A), children of Lawful Permanent Residents (“LPRs”) petitioned-for under the “2A” preference, who age out and must use the 2B preference for adult sons and daughters. Rather, the structure of § 203(h) read as a whole clearly indicates that the CSPA mechanisms apply to employment-based cases just as well as to family-based cases, and that priority-date retention applies to derivative beneficiaries just as much as to principal beneficiaries.

In the employment-based context, however, the reasoning of Li, if taken to its logical conclusion, suggests that § 203(h)(3) has no role to play at all. Being the child of the beneficiary of an employment-based petition will never qualify as a preference category in its own right, any more than being the grandson of a family petitioner is its own category does, and the derivative beneficiary will never (or almost never) be the direct beneficiary of a second petition by the same employer. Perhaps the Second Circuit in a later case will choose to shy away from this implication and prevent its precedent from going further down the wrong path, but that does appear to be the direction in which Li points it.

On the other hand, § 203(h)(3) does have work to do in the context of § 203(b) petitions if we adopt the interpretation that Li and Matter of Wang rejected, the one previously offered by the BIA in Matter of Maria T. Garcia: that the appropriate category for an aged-out derivative under § 203(d) is the 2B category, under INA § 203(a)(2)(B), with respect to the original beneficiary. This interpretation allows the derivative beneficiary to continue in essentially the same relation to the principal beneficiary that has existed all along, modified for the aging-out. It should not come as a surprise that the process allowed by this interpretation requires awaiting the LPR status of the principal beneficiary, because the defining characteristic of derivative beneficiaries under § 203(d) is always their entitlement to “the same order of consideration . . . if accompanying or following to join[] the spouse or parent”—to quote directly from the text of § 203(d) as enacted at 8 U.S.C. § 1153. By definition, one cannot accompany or follow to join a parent who has not yet become an LPR, whether or not the CSPA is involved.

The irrelevance of § 203(h)(3) with regard to § 203(b) derivatives caused by the interpretation in Li is a contextual clue in the statute that this interpretation is incorrect. Interpretations which render part of a statute superfluous are, and should be, disfavored. According to the logic of Li, it appears that even though § 203(h)(2)(B) mentions family-based petitions under § 203(a) and employment-based petitions under § 203(b) in precise parallel as contexts in which the entirety of § 203(h) should apply to derivative beneficiaries under § 203(d), and even though § 203(d) is specifically cited in § 203(h)(3) as a context in which that particular subsection applies, § 203(h)(3) may not apply at all to § 203(d) derivative beneficiaries of § 203(b) employment-based petitions. Whether or not one agrees with the BIA’s policy decision in Matter of Wang (which this author finds overly harsh) as applied to a statute thought by the BIA to be ambiguous, it certainly seems excessive given this clue to read the statute as unambiguously mandating such a result. And yet that is what the Second Circuit did in Li.

There is a famous saying, often attributed to Thomas Jefferson, that you should never put off until tomorrow what you can do today. Courts are often properly reluctant to follow this maxim, because it is a principal of judicial decision-making in our system of law that a court should not reach out to decide questions unnecessarily. But when a court too cavalierly puts off until tomorrow a question which is actually important to the resolution of the issue it is deciding, it may come to an incorrect result. It appears that this may be what occurred in Li.

IMMIGRATION LESSONS FROM THE FALL AND RISE OF STRAUSS-KAHN - PART II

2011-07-05T20:17:00.000-07:00

By Cyrus D. Mehta

Ever since the criminal case of Strauss-Kahn began to disintegrate after the New York District Attorney's office revealed flaws in the credibility of the accuser, I looked back at my earlier blog, Immigration Lessons From the Fall of Strauss Kahn and feel that many of the immigration lessons I reflected upon still hold true. I wrote:

It is difficult for any victim of a sex crime to come forward, given that the defense will seek to turn the tables against her and undermine her credibility. It is even more difficult for an immigrant who has been a victim of a sex crime to come forward since this person's immigration status, or lack thereof, will also be put under the microscope.

One of the reasons why the case has collapsed is because DSK's accuser lied on her asylum application. She also fudged her tax returns. I can only speculate that if the NY DA's office had an immigration expert on its team at the very outset, her asylum story could have been closely analyzed. If it was found to be fabricated, she could have been advised to come clean. Even if her asylum grant was potentially revocable, she could have been assured a U visa status in exchange, which is issued to non-citizens who have been or who will be helpful in a prosecution involving certain offenses, including rape and sexual abuse. Even if the prosecution of such an offense is not successful or is not likely to move forward presently, the non-citizen may still qualify for U visa status. It may have also been possible to file another asylum claim based on the genuine grounds.

Many asylum applicants may have genuine claims, but are still encouraged by unscrupulous practitioners, often times unauthorized, to embellish or alter their stories. This is particularly true of people fleeing desperately poor countries like Guinea who may not be sophisticated and employ the services of a competent attorney in their quest for asylum. The same holds true for the filing of tax returns. Many poor immigrants are misled into filing less than perfect tax returns. An experienced immigration attorney often comes across immigrants who have claimed dependants they were not supposed to claim in their tax return, and the prudent course is to advise the client to amend the tax return or explain to the Immigration Judge, especially in a waiver application where demonstration of good moral character is crucial, the circumstances that caused the filing of an improper tax return. Often times, this strategy is successful and it is still possible to invoke the favorable discretion of the Immigration Judge in granting relief. Putting the false tax return issue in perspective, I am sure if IRS agents looked really carefully they might find flaws in the tax returns of many Americans with regard to their deductions or other positions they may take to save a few dollars in taxes.

The bottom line is that such a person should not be branded as a fabricator and liar. Such actions are a desperate attempt to flee poverty and persecution in exchange for hope in America. While one should not condone the filing of false applications to gain an immigration benefit, there may be ways to mitigate the adverse consequences by either rehabilitating the application or by exploring other forms of relief. If DSK's accuser had a history of filing a false asylum application and tax returns, it should not undermine her ability to be a credible witness regarding the circumstances of her sexual assault, and there is still clearly a case for trying Strauss-Kahn. As to the conversation the accuser had with her friend in immigration detention regarding gaining a financial benefit, one need not reach the sole conclusion that her accusation was false. Is it so unusual for anyone who has been victimized to vent to a family member or close friend that she is prepared to take the perpetrator to the cleaners because he can afford to compensate her for lost wages?

Possibly, if the accuser was advised by someone with a perspective on how desperate immigrants try to enter the US, and given assurances regarding her ability to continue to remain in the US notwithstanding the fabrication in her asylum claim, there may have been less of a chance for the case to get derailed and she may have testified more consistently to the grand jury. Even so, there is no reason why the case should not go ahead. Failure to prosecute this case, when there is still a credible accusation of sexual assault, will dissuade other immigrants from coming forward if their immigration past will be viewed under a microscope for the purpose of tearing their credibility to shreds. One ought not to be the perfect immigrant or victim to be able to come forward with a criminal complaint.

Finally, in my prior blog post, I also reflected about how non-citizens on temporary visas are less likely to get bail even before they have been found to be guilty. This is because their non-immigrant status, often linked to a job, evaporates after they are arrested and indicted, and they are then automatically viewed as a flight risk. I do hope that after the lessons learned from the fall and rise of Strauss-Kahn, judges in criminal court will be more prone to releasing a non-citizen defendant on bail and not automatically view this person as a flight risk just because he or she is not a US citizen.

RIGHT TO APPOINTED COUNSEL IN REMOVAL PROCEEDINGS? THE SUPREME COURT MAY HAVE OPENED THE DOOR IN TURNER v. ROGERS

2011-06-29T21:16:00.000-07:00

By Cyrus D. Mehta

A non-citizen placed in removal proceedings has the privilege of being represented at no expense to the government pursuant to §240(b)(4)(A) and §292 of the Immigration and Nationality Act. While every non-citizen has a right to be represented by competent counsel of his or her choosing, he or she cannot ask the Immigration Court to appoint counsel if indigent. Even though we all know that immigration law is extremely complex, and a respondent’s chances to stave off removal are substantially increased if represented by counsel, this person is out of luck if he or she cannot afford a lawyer or does not have access to one if detained in a remote area where an immigration attorney may not be in close proximity.

Intuitively to one, including a lawyer, unschooled in immigration procedures, it may seem obvious that a respondent in removal proceedings, especially if incarcerated, should be afforded counsel to navigate through the labyrinthine maze of immigration law as would a defended in criminal proceedings. The Sixth Amendment clearly grants an indigent defendant the right to state appointed counsel in a criminal case, Gideon v. Wainright, 372 U.S. 335 (1963), and so why not the same right to a non-citizen in a removal case? Deportation has always been classified as a civil rather than as a criminal procedure. Harisiades v. Shaughnessy, 342 U.S. 580 (1952). Deportation even while harsh, which tears the person away from family and all that life is worth living for, is not seen as punishment, Bugajewitz v. Adam, 228 U.S. 585 (1913), and nor is detention for the sole purpose of facilitating the deportation. Demore v. Kim, 538 U.S. 510 (2003).

Not many may have noticed the Supreme Court’s June 20, 2011 decision in Turner v. Rogers, 64 U.S ____(2011) for its relevance in the immigration context, which held that an indigent parent threatened with incarceration for civil contempt for failure to provide child support does not have a right to counsel under the Fourteenth Amendment. Although Turner v. Rogers dwelt on whether a right to counsel was applicable to an indigent non-custodial parent in a civil contempt proceedings, on first brush it applies negatively to all civil proceedings, including immigration removal proceedings. But hold your breath! The Supreme Court qualified its holding that there is no right to appointed counsel only if certain other safeguards are met in child custody cases. The question is whether such safeguards even exist in immigration cases? The answer is a clear “No,” and this author believes that Turner v. Rogers can be used favorably by immigration advocates seeking to establish a right to appointed counsel in immigration removal proceedings.

In Turner v. Rogers the petitioner, Michael Turner, who had been incarcerated previously for civil contempt, was again sentenced to 12 months of incarceration for civil contempt even though he tried to demonstrate that he was unable to pay the child support. Turner appealed on the ground that that the Federal Constitution entitled him to right to counsel. The Supreme Court had to decide whether Turner threatened with incarceration for civil contempt was entitled to the same right as counsel under the Fourteenth Amendment as a criminal defendant under Gideon v. Wainwright, supra. The majority acknowledged that a contempt proceeding is a civil proceeding although it still involved the indigent parent’s loss of liberty through imprisonment. However, such imprisonment in a civil proceeding is not punishment, but only to coerce the defendant to do what the court had ordered him to do. While there is still a requirement of fairness in civil proceedings under the Due Process clause, it does not always require the provision of counsel even where there is a threat of incarceration. Key to this analysis, however, is the defendant’s ability to pay. If the defendant parent subject to the child support order can demonstrate indigence, he or she can avoid incarceration. Thus, if the defendant is given an opportunity in the civil contempt proceeding to demonstrate the lack of ability to pay, including a meaningful opportunity to respond to questions of financial status during the hearing, such safeguards would be have been met. The Supreme Court also took into consideration that the other parent opposing the defendant at the hearing is also mostly not represented by counsel, which was the case with Ms. Rogers, the custodial parent. Therefore, providing a lawyer to the non-custodial parent would create an asymmetry of representation, resulting in delay, making the proceeding overall less fair and increasing the risk of the depriving the family in need of support the payment it is entitled to receive. Even though Turner did not have a lawyer, he also did not receive the benefit of the alternative safeguards such as a notice that his ability to pay would make the difference between being incarcerated or not, or a finding on his ability to pay. The Supreme Court remanded the case back to the South Carolina court for further proceedings in conformance with its opinion.

Now compare these safeguards that were elaborated by the Supreme Court in the context of a civil contempt proceeding to an immigration removal hearing. The respondent charged with deportability cannot avoid incarceration by meeting a condition precedent like the non-custodial parent such as an ability to pay! Indeed, INA §236(c) makes it mandatory for the detention of a non-citizen based on the commission or conviction of an assortment of offenses, no matter even if the respondent can pay a million dollars to post bond. The respondent’s opponent in removal proceedings is the government, which is always represented by a well trained counsel employed by Immigration and Customs Enforcement. Interestingly, the majority in Turner v. Rogers concluded, “Neither do we address what due process requires in an unusually complex case where defendant “can fairly be represented only by a trained advocate.”[citing Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973)].

No one, not even opponents of due process for immigrants, can deny the fact that immigration removal proceedings are extremely complex, and can only fairly be represented by a well trained attorney conversant in immigration law. Yet, the majority of incarcerated respondents never have access to counsel. According to the Katzmann Immigration Representation Study Group’s recent findings, 60% of detained immigrants in New York City and 27% of non-detained immigrants do not have counsel by the time their cases are completed. Individuals who are transferred elsewhere and who remain detained and out of New York are unrepresented 79% of the time. This is truly a crisis. It is unthinkable to allow respondents in removal proceedings to proceed without the assistance of a lawyer to navigate and help through the complex maze of statutes, regulations and legal interpretations. This same study indicates that where there is competent representation of those who have been released or never detained, 74% had a successful outcome.

Advocates must continue to press for the right to appointed counsel in removal proceedings where the respondent cannot afford his or her own lawyer. Such a cause may be too unpopular for Congress to pass legislation at this time. Only a court ruling can make this happen, and the Supreme Court’s decision in Turner v. Rogers may provide the analytical framework to make a winning argument. Gideon v. Wainright was historic as it established the right to counsel under the Fourteenth Amendment for criminal defendants in state courts. We need a civil Gideon, and the best place to establish this is in immigration removal proceedings.

In conclusion, the following passage from Gideon v. Wainright citing Mr. Justice Sutherland’s eloquent and moving need for a right to counsel in Powell v. Alabama , 287 U.S. 25 (1932) will surely resonate with those seeking a right to appointed counsel in removal proceedings:

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

NOT SO FAST! DOL HESITANT TO FOLLOW MATTER OF HORIZON COMPUTER SERVICES ON PREVAILING WAGE VALIDITY

2011-06-24T10:48:00.000-07:00

By Cora-Ann Pestania

My elation over the recent Board of Alien Labor Certification Appeals’ (BALCA) decision in Matter of Horizon Computer Services, Inc., 2010-PER-00746 (May 25, 2011), expressed in my last blog, has proven to be short-lived. Last week, I attended the American Immigration Lawyers’ Association’s (AILA) Annual Conference on Immigration in San Diego, CA. At the conference, one of the most popular panels is the Department of Labor (DOL) Open Forum where members of AILA are permitted to directly question such bigwigs as William Carlson, Administrator, and Elissa M. McGovern, Chief of Policy Division, both of the Office of Foreign Labor Certification, U.S. Department of Labor. Naturally, the subject of Matter of Horizon Computer Services arose.

In Matter of Horizon Computer Services, the employer commenced its earliest recruitment before the Prevailing Wage Determination’s (PWD) validity period and filed the PERM after the PWD had expired. The DOL, citing 20 C.F.R. §656.40(c), denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period. The DOL currently interprets 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period and has denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. In Matter of Horizon Computer Services, BALCA held that the timing of the employer’s recruitment complied with the regulations in 20 C.F.R. §656.40(c) and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA held that the employer must initiate some recruitment during the PWD validity period but not necessarily the “earliest” recruitment.

At the AILA Conference, the DOL Open Forum panel was questioned as to whether the DOL would soon be issuing a new FAQ (Frequently Asked Questions) with regard to the holding in Matter of Horizon Computer Services and whether attorneys could safely rely on this case when conducting recruitment for purposes of a PERM labor certification application. We did not get the answer we were hoping for. Instead, Ms. McGovern explained that the DOL reviews BALCA decisions just as attorneys do and that Matter of Horizon Computer Services is currently being reviewed along with BALCA’s decision in Matter of Ecosecurities, 2010-PER-00330 (June 15, 2011), which she said has a “similar fact pattern.” Ms. McGovern informed attendees that the DOL will figure out a path “in between” the two decisions and devise a directive.

In Matter of Ecosecurities, the employer commenced recruitment on May 6, 2007. The employer obtained a PWD valid from June 18, 2007 to September 16, 2007. The employer filed the PERM on Monday, September 17, 2007. The DOL Certifying Officer (CO) denied the PERM under 20 C.F.R. §656.40(c) because neither the earliest date listed for a recruitment step nor the date the application was filed, fell within the PWD validity period. The employer requested reconsideration and argued that because the PWD expired on a weekend, the expiration date ought to be extended to Monday, September 17, 2007. As authority, the employer cited the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (OALJ) which provides that “[i]n computing any period of time under these rules…the time begins with the day following the act, event, or default, and it includes the last day of the period, unless it is a Saturday, Sunday or legal holiday observed by the Federal Government in which case the time period includes the next business day.” 29 C.F.R. § 18.4(a). The CO affirmed the denial and forwarded the case to BALCA finding that there was no reason why the employer could not have filed the application on Sunday, September 16, 2007 since the Permanent Online System (www.plc.doleta.gov) is available 24 hours a day and seven days a week. BALCA held that the OALJ Rules of Practice and Procedure cited by the employer in support of its argument that the PWD ought to be considered valid until Monday, September 17, 2007, have no bearing on the expiration date of the employer’s PWD because they only govern filings before the OALJ and, moreover, govern filings by mail on days when the office is closed. BALCA stated that while its decision “may appear to elevate form over substance,” it is an appellate body and it “simply does not have the discretion to waive the clearly stated regulatory requirements.”

BALCA had, a mere 21 days earlier, held in Matter of Horizon Computer Services, that the Employment and Training Administration (ETA) did not intend that the first recruitment step begin during the validity period, only that some recruitment step be initiated during that time and BALCA vacated the denial of the PERM application filed after the PWD’s expiration date. In light of that, why didn’t BALCA similarly hold, in Matter of Ecosecurities?

Matter of Ecosecurities is devoid of any facts that would aid in a perfect side by side comparison of the two cases. But, in Matter of Horizon Computer Services the employer placed the Job Order only 2 days before the PWD validity period and then commenced every other type of recruitment within the PWD validity period. In its decision, BALCA made an effort to point out that “the employer initiated every single recruitment step during the validity period with the exception of its first recruitment step.” In Matter of Ecosecurities, the Employer initiated its first form of recruitment 43 days before the PWD validity period. This long time period is significant. The fact that BALCA did not discuss the other forms of recruitment and when they were each initiated is significant. Since there is no discussion about the timing of the other recruitment, we can assume that no recruitment was initiated during the PWD validity period and all recruitment was initiated prior to June 18, 2007. This makes Matter of Horizon Computer Services and Matter of Ecosecurities entirely distinguishable. If the employer in Matter of Ecosecurities had initiated some recruitment within the PWD validity period, BALCA would have decided the case similar to Matter of Horizon Computer Services. Contrary to Ms. McGovern’s statements, the two cases do not have “similar fact patterns” and the DOL should not conflate the two decisions!

Nevertheless, at least for now and until the DOL issues a directive, it is safest for practitioners to continue to abide by the DOL’s erroneous interpretation of 20 C.F.R. §656.40(c) and ensure that our clients either begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period. In my opinion, though, Matter of Horizon Computer Services can indeed be relied upon if the DOL has denied a PERM application where the employer commenced recruitment before the PWD validity period, initiated at least one form of recruitment during the PWD validity period and filed the PERM after the PWD had expired.

ETHICAL BASIS FOR PRO BONO

2011-06-17T22:27:00.000-07:00

By Cyrus D. Mehta

I am most honored to be the recipient of the American Immigration Lawyers Association 2011 Michael Maggio Pro Bono Award. Thank you very much.

The news of the award came to me as an utter surprise and my instant response was that I did not deserve it. I immediately recalled the many immigration attorneys far more engaged in pro bono than me, and more deserving of this award. Upon further reflection of this award, knowing there was nothing I could do about it, I thought it best to accept it in recognition of all the valiant lawyers who have spent many hours doing pro bono on behalf of immigrants and their families. I also accept this award on behalf of all my colleagues who have been instrumental in organizing the many immigration pro bono events and projects that you have been hearing of in recent years, which in turn encourage more lawyers to do pro bono work.

We all know how important it is to assist vulnerable immigrants who cannot afford a lawyer. As Judge Katzmann said in his historic Marden lecture at the New York City Bar on February 28, 2007 - “In our legal system, driven by complex rules and procedures, a lack of access to competent legal services damages fundamental concepts of fairness and equality before the law.” I strongly believe, and agree with Judge Katzmann, that lawyers, by virtue of being granted a license, enjoy a monopoly with respect to providing legal services (which they justifiably work very hard to preserve), and this monopoly ought to be used wisely and to achieve justice. Accordingly, pro bono service is not an act of charity, but an ethical obligation on the part of the lawyer.

One of the reasons that drew me towards immigration law, which is what has drawn all of us to this fields, was that I could help people and make an impact in their lives, no matter who they are or where they come from. Even as I undertake to manage a busy immigration law firm, this ideal continues to drive my work till this day, which I also try to instill in my associates and other colleagues. Each time I took up a leadership capacity in the bar, I have always striven to organize activities to encourage lawyers to meet the unmet needs of the immigrant community.

According to the Katzmann Immigration Representation Study Group’s recent findings, 60% of detained immigrants in New York City and 27% of non-detained immigrants do not have counsel by the time their cases are completed. Individuals who are transferred elsewhere and who remain detained and out of New York are unrepresented 79% of the time. This is truly a crisis. It is unthinkable to allow respondents in removal proceedings to proceed without the assistance of a lawyer to navigate and help through the complex maze of statutes, regulations and legal interpretations. This same study indicates that where there is competent representation of those who have been released or never detained, 74% had a successful outcome.

We the members of the leading immigration bar association in the country, the American Immigration Lawyers Association, must think outside the box to resolve this crisis and urgently address the unmet needs of poor or vulnerable immigrants, for whom the presence of a competent lawyer can make all the difference. I also urge all AILA lawyers to spend a few hours each year doing pro bono. Pro bono representation could either involve taking on a case to its completion, or could also involve spending a few hours at a legal clinic. Moreover, an expert immigration attorney can also serve as a mentor on a pro bono case that is handled by other lawyers in a law firm that does not specialize in immigration law. And for those who own or manage law firms, please encourage your associates to also participate in pro bono. In fact, there is a strong business case too for engaging in pro bono as you gain more skills that you can utilize in paid cases, earn a reputation within the community and among potential clients, and attract motivated lawyers to your firms.

Last evening’s first Pro Bono clinic at the Thomas Jefferson School of Law on June 16, 2011, in conjunction with the annual AILA conference in San Diego also gave an opportunity for AILA lawyers and law students to exercise their skills (and learn new ones) in providing high quality legal consultations to members of the San Diego immigrant community. Approximately 100 people from San Diego’s immigrant community of several nationalities and speaking several languages were served. These brief services are invaluable as they provide the immigrant with a truthful and accurate roadmap of the available options, thus empowering this person so that he or she does not get scammed later by an unauthorized practitioner. For this reason, AILA must continue to organize similar clinics again and again.

Finally, I am deeply honored that I am receiving this prestigious award in the memory of Michael Maggio whom I knew and deeply admired. Michael was the shining example of a very successful lawyer who gave back through his outstanding pro bono efforts. I am also humbled that the recipient of last year’s pro bono award was Judge Katzmann himself, who has used the prestige of his office as a judge of the Second Circuit to advance pro bono in New York in a most powerful and forceful way. It is hoped that we all follow Judge Katzmann’s example and spearhead and inspire similar initiatives all over the country.

Thank you again for this award, and rather than cheer for me now, your time will be better spent if you all roll up your sleeves and do some pro bono!

(This blog post is based on Cyrus D. Mehta's remarks upon accepting the AILA Michael Maggio Memorial Award in San Diego on June 16, 2011).

BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION'S VALIDITY PERIOD

2011-06-06T21:13:00.000-07:00

Cora-Ann V. Pestaina

Pardon me while I take a moment to pump my fist! I am just really excited (and also relieved that sanity finally prevailed!) over the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), http://j.mp/jAQRfO. Along with many fellow practitioners, I have long been irked by the Department of Labor’s (DOL) continued erroneous and hypertechnical interpretation of the rule found in 20 C.F.R. §656.40(c). I first wrote on this issue in August 2009 on www.cyrusmehta.com, in my article entitled, “How the Definition of the Word “Begin” Could Affect Your PERM Application.” http://j.mp/k1e5e6.

The DOL has long interpreted 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the prevailing wage determination’s (PWD) validity period. The DOL has consistently denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. Rather than fight with the DOL (and suffer through the long wait in the appeals queue!), most employers simply conducted new recruitment and filed a new PERM application. In my article, I argued that the DOL’s interpretation of the rule was (1) overly narrow and contrary to the plain meaning of the regulation; and (2) contrary to the Employment and Training Administration’s (ETA) intent when promulgating the regulation which was to have the employer conduct at least one form of recruitment within the PWD validity period. I expressed the hope that a well-crafted Motion to Reopen and Reconsider would bring forth a more definitive statement from BALCA.

We finally have this statement in Matter of Horizon Computer Services! In this case, the employer began its earliest recruitment by placing a job order on January 22, 2007. The employer obtained a PWD with a validity period from January 25, 2007 to June 30, 2007. The employer filed the PERM application on July 20, 2007, after the PWD had expired. The DOL denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period and cited 20 C.F.R. §656.40(c) as authority for the denial. The employer fought back in a Request for Review and cited to the ETA’s notice of proposed rulemaking for PERM regulations wherein the ETA sought to explain the need for specific PWD validity periods and stated:

2. Validity Period of PWD
We are proposing that the SWA must specify the validity period of PWD on the PWD form, which in no event shall be less than 90 days or more than 1 year from the determination date entered on the PWDR. Employers filing LCA's under the H-1B program must file their labor condition application within the validity period. Since employers filing applications for permanent labor certification can begin the required recruitment steps required under the regulations 180 days before filing their applications, they must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the PWD to rely on the determination issued by the SWA. Employment and Training Administration, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States ["PERM"], 20 CFR Part 656, 67 Fed. Reg. 30466, 30478 (May 6, 2002).

Based on the ETA’s statements, the employer in Matter of Horizon Computer Services argued that the ETA did not intend that the employer’s first recruitment step begin during the validity period but only that some recruitment step be initiated during that time. In fact, with the exception of the job order, the employer had initiated all of its recruitment during the PWD validity period.

BALCA agreed with the employer, vacated the DOL’s denial and held that the timing of the employer’s recruitment complied with the regulations and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA agreed that the ETA intended only that the employer initiate some recruitment during the PWD validity period and not the earliest recruitment.

Accordingly, under Matter of Horizon Computer Services, in order to rely on an expired PWD in the filing of a PERM application, the employer must have initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application.

Matter of Horizon Computer Services is an important decision especially at this time of the year when the DOL issues PWDs with only a narrow 90-day validity period. The DOL updates its prevailing wage databases on July 1st. PWDs issued around this time of year have only a 90-day validity period as opposed to PWDs issued after July 1st which are typically valid until June 30th of the following year. Employers who initiated recruitment prior to obtaining the PWD, initiated additional recruitment during the PWD’s 90-day validity period but were then unable to file the PERM application within the brief 90-day validity period of the PWD, would previously have had no recourse.

The Insightful Immigration Blog – Commentaries on Immigration Policy, Cases and Trends

STATE DEPARTMENT’S VISA OFFICE TAKES BROADER VIEW OF “SOUGHT TO ACQUIRE” PROVISION UNDER THE CHILD STATUS PROTECTION ACT

EDGE SAYS INDIAN 2- YEAR MASTER'S DEGREE FOLLOWING 4-YEAR BACHELOR'S IS NOT EQUIVALENT TO US MASTER'S DEGREE

WHAT THE PROPOSED PROVISIONAL WAIVER RULE MEANS FOR THOSE FACING 3- OR 10-YEAR BARS

TOP 10 POSTS ON THE INSIGHTFUL IMMIGRATION BLOG IN 2011

IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS

BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD

HOW FAIR IS THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT?

SHUTTING DOWN GLOBAL BUSINESS IN AMERICA: WHY THE H-1B CAP HURTS US ALL

THE ETHICAL ROLE OF THE ATTORNEY UNDER ALABAMA'S ANTI-IMMIGRANT LAW

VISA OPTIONS FOR FOREIGN ENTREPRENEURS IN THE US - WHILE KEEPING AN EYE ON THE POTENTIAL TRAPS AND PITFALLS

EB-3 to EB-2 BOOST MAY NOT PROTECT YOUR CHILD UNDER THE CHILD STATUS PROTECTION ACT

BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS

PROSECUTORIAL DISCRETION AND THE "CRIMINAL ALIEN"

SOME PRELIMINARY REACTIONS TO THE DISTRICT COURT DECISION REFUSING TO ENJOIN PORTIONS OF ALABAMA’S IMMIGRATION LAW

THE POTENTIAL REACH OF KHALID V. HOLDER: HOW THE 5TH CIRCUIT INTERPRETED THE CSPA AND HOW SOME OUTSIDE ITS TERRITORY MAY BE ABLE TO BENEFIT

REINTERPRETING THE AUTOMATIC CONVERSION PROVISION OF THE CSPA TO HELP DREAM KIDS

REFLECTING ON 9/11 AFTER 10 YEARS AS AN IMMIGRATION ATTORNEY

GOING BEYOND THE POLITICS OF DISCRETION IN THE AMERICAN IMMIGRATION SYSTEM

FINAL IMMIGRATION LESSON FROM THE DISMISSAL OF THE STRAUSS-KAHN CASE

FEWER PEOPLE TO GET DEPORTED UNDER NEW POLICY: HAS THE ADMINISTRATION FINALLY COME TO ITS SENSES?

PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I FILE A PERM LABOR CERTIFICATION?

DO WE HAVE A START-UP VISA FOR ENTREPRENEURS EVEN WHEN CONGRESS HAS NOT LIFTED A FINGER?

THE ROLE OF THE IMMIGRATION LAWYER IN ADVISING UNDOCUMENTED IMMIGRANTS

ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS

LEAVING TOO MUCH FOR ANOTHER DAY: WHAT THE SECOND CIRCUIT’S RECENT CSPA DECISION MISSED IN AGREEING WITH THE RESULT OF MATTER OF WANG

IMMIGRATION LESSONS FROM THE FALL AND RISE OF STRAUSS-KAHN - PART II

RIGHT TO APPOINTED COUNSEL IN REMOVAL PROCEEDINGS? THE SUPREME COURT MAY HAVE OPENED THE DOOR IN TURNER v. ROGERS

NOT SO FAST! DOL HESITANT TO FOLLOW MATTER OF HORIZON COMPUTER SERVICES ON PREVAILING WAGE VALIDITY

ETHICAL BASIS FOR PRO BONO

BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION'S VALIDITY PERIOD