Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B Visa or Labor Certification Denial?

There is a clear prohibition to the foreign national beneficiary paying attorney fees and costs associated with labor certification. Similarly, fees and costs associated with the preparation of an H-1B petition and Labor Condition Application are considered unauthorized deductions from the beneficiary’s wage. These prohibitions are set forth in regulations of the Department of Labor that require the employer to bear such fees and expenses. Do these prohibitions extend to situations where the beneficiary seeks federal court review of a denial of an H-1B petition or labor certification application without the employer under the Administrative Procedures Act and pays the fees and costs of such litigation? Should not the Administrative Procedures Act trump DOL regulations that hinder the ability of a beneficiary to initiate and seek review by a federal court of an erroneous denial?

When a beneficiary sues without a petitioner, he or she must assert standing as well as whether the beneficiary’s claim fell within the zone of interests that the statute was supposed to protect. Under Article III of the Constitution, the plaintiff must have suffered an injury in fact that is fairly traceable to the challenged conduct and is likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff also has the ability to sue when his or her claim is within the “zone of interests” a statute or regulation protects. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014).

For example, in the H-1B context, Tenrec, Inc. v. USCIS, No. 3:16‐cv‐995‐SI, 2016 U.S. Dist. LEXIS 129638 **21‐22 (D. Or. Sept. 22, 2016) held that H‐1B petition beneficiaries have standing because approval gives them “the right to live and work in the United States, and imposes obligations such as complying with “extensive regulations” on their conduct; they also have the potential for future employment with a new petitioner. Still, there is no guarantee that every court will recognize that a beneficiary has standing in a lawsuit challenging the denial of a nonimmigrant petition. In Hispanic Affairs Project v. Perez, 206 F. Supp. 3d 348 (D.D.C. 2016), the court decided that H-2A sheepherders lack standing because congressional intent was to protect U.S. workers.

With respect to labor certifications, in  Ramirez v. Reich, 156 F.3d 1273 (D.C Cir. 1998) the DC Circuit Court of Appeals recognized the foreign national’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, in Gladysz v. Donovan, 595 F. Supp. 50 (N.D. Ill. 1984)  where the non-citizen sought judicial review after the employer’s labor certification had been denied, the court held that the beneficiary was in the zone of interests, but the labor certification denial was upheld as it was not arbitrary and capricious.

If the foreign national seeks review of the denied labor certification in federal court, would the DOL still expect the employer to bear the fees of the litigation pursuant to 20 CFR § 656.12(b)? It can be argued that 20 CFR § 656.12(b) should be limited to activity related to obtaining labor certification and not while appealing a denial to federal court where the employer has dropped out as a plaintiff.  If that is not the case, the DOL would be obliterating the alien’s ability to seek review in federal court assuming that the employer still had a job offer open for the alien. 20 CFR § 656.12(b) barring the alien from paying the attorney’s fee ought to also be challenged by the foreign national who has standing to seek review of the denied labor certification in federal court. Based on the above, it is both necessary and proper  to avoid any interpretation of  § 656.12(b) that conflicts with the beneficiary’s right under the APA from seeking judicial review in federal court, a right that Congress has not taken away. It can be argued that DOL cannot condition or restrict the full and complete exercise of the foreign national’s APA rights in any way. That being the case, the courts should be properly reluctant to impose by judicial fiat that which is not already found in the law with unmistakable clarity. See National Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)(“Chevron’s premise is that it is for the agencies, not courts, to fill statutory gaps”). Here, when we look at INA § 212(a)(5)(A) there is nothing for DOL to add. The statute is clear and unambiguous. If Congress wants to prevent the alien from going into court under the APA to challenge the denial of a labor certification, then Congress knows how to do it. If DOL wanted to stipulate that an employer always had to go to BALCA or forget about the APA, it could have said too.

Neither Congress nor the DOL has done so despite the fact that the INA has been amended many times and DOL has reinvented the labor certification process more than once. Their silence speaks volumes.  There is no need for DOL to clarify what Congress has made crystal clear. That being the case, it is even more transparent that a federal court must honor the intent of Congress and stay its hand against any temptation to take the APA arrow out of a beneficiary’s quiver. The silence of those most directly responsible for the creation and administration of the labor certification process suggests, indeed commands, that the foreign national’s rights under the APA not only be respected but nurtured and encouraged

The situation is somewhat analogous to the purported regulatory limitations period for federal court review of a naturalization denial, which the Tenth Circuit rejected in Nagahi v. INS, 219 F.3d 1166 (10th Cir. 2000).

The Tenth Circuit said of the INA’s broad grant of authority to the Attorney General to make rules that “while this delegation is a broad grant of authority, it does not extend to creating limits upon judicial review.”  Nagahi, 219 F.3d at 1170.  The Secretary of Labor has, if anything, less broad authority, and what authority the Secretary does have also does not extend to creating limits on judicial review, even indirect ones.

The regulation should not strictly apply to a situation where the attorney is representing the foreign national only and not the employer, which could happen if the alien is the only plaintiff in the APA action that we are contemplating.  20 CFR § 656.12(b)-(c) states:

(b) An employer must not seek or receive payment of any kind for any activity related to obtaining permanent labor certification, including payment of the employer’s attorneys’ fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application, except when work to be performed by the alien in connection with the job opportunity would benefit or accrue to the person or entity making the payment, based on that person’s or entity’s established business relationship with the employer. An alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer. For purposes of this paragraph (b), payment includes, but is not limited to, monetary payments; wage concessions, including deductions from wages, salary, or benefits; kickbacks, bribes, or tributes; in kind payments; and free labor.

(c) Evidence that an employer has sought or received payment from any source in connection with an application for permanent labor certification or an approved labor certification, except for a third party to whose benefit work to be performed in connection with the job opportunity would accrue, based on that person’s or entity’s established business relationship with the employer, shall be grounds for investigation under this part or any appropriate Government agency’s procedures, and may be grounds for denial under § 656.32, revocation under § 656.32, debarment under § 656.31(f), or any combination thereof.

In this scenario, the employer is not seeking or receiving any payment.  The only sentence which that fact does not take out of the picture immediately is the one stating that “an alien may pay his or her own costs in connection with a labor certification, including attorneys’ fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer.”

But even when the employer is the plaintiff, along with the beneficiary, or both the employer and the beneficiary are plaintiffs, it can be argued with equal force that the prohibition against the foreign national paying the fees in a DOL regulation cannot override a claim under the APA that falls within the “zone of interests” that the statute was intended to protect. The beneficiary is paying attorney fees not to obtain labor certification but to seek redress against the DOL for erroneously denying his or her labor certification.

The same analysis can extend to prohibition of payments by the foreign national in the H-1B context. The relevant regulation involves the definition of authorized deduction at 20 CFR § 655.731(c)(9)(ii), which states in relevant part:

[T]he deduction may not recoup a business expense(s) of the employer (including attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition).

Unlike 20 CFR § 656.12(b)-(c), there is no absolute prohibition towards payment of attorney fees and costs relating to the preparation and filing of an LCA and H-1B petition. They are treated as business expenses and have the effect of deducting the beneficiary’s wage. If the beneficiary’s wage falls below the required wage, it would result in violation.  A similar analysis would apply as in the PERM labor certification context.  If the lawsuit is being filed by the employee only, then it does not make sense to describe it as among the “H-1B program functions which are required to be performed by the employer”, because almost by definition, an employee-only APA action cannot be something required to be done by the employer. Even if the lawsuit is being filed by the employer on behalf of the employee, and the employee pays, it can be forcefully argued that the prohibition against this sort of unauthorized deduction is limited to the preparation and filing of an LCA and H-1B petition, and not when the fee is paid to challenge an arbitrary and capricious denial of an H-1B petition in federal court.

An action in federal court is authorized under the APA and should be distinguished from an administrative challenge of a denial to the Board of Alien Labor Certification Appeals or the Appeals Administrative Unit. Those challenges are not governed by the APA but by agency regulations, which insist that only the employer or petitioner may seek administrative review. The APA, on the other hand, allows the plaintiff, which may include both the petitioner and the foreign national beneficiary, to show that the claim falls within the “zone of interests” that the statute was intended to protect and the plaintiff has suffered injuries “proximately caused” by the alleged statutory violation. See Lexmark supra.  Even in the administrative review context, the USICS has recognized that the beneficiary of an I-140 may administratively challenge the revocation of an I-140 petition who has exercised job portability pursuant to INA 204(j). See Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017). While there has never been a prohibition against beneficiaries paying fees and costs associated with I-140s, and so the welcome development under Matter of V-S-G is not relevant to this discussion regarding fees, the DOL may still argue that it has latitude to prohibit payment of fees by the beneficiary whose employer is seeking administrative review at BALCA or the AAO of a denied labor certification or H-1B petition. However, this supposed latitude arguably diminishes or evaporates in the context of an APA action is filed in federal court where the beneficiary’s zone of interests that the statute was intended to project have been violated.

Under the Trump administration, there have been an increasing number of H-1B denials of petitions that were routinely approved previously. The stakes are extremely high for such beneficiaries who are caught in the crippling employment-based preference backlogs, and need to seek H-1B extensions well beyond the six year limitation. A denial of a routine H-1B extension can have a devastating impact on the beneficiary and the family. A beneficiary caught in this predicament may have no choice but to resort to suing the agency in federal court. An employer may be gun shy to sue or pay for the litigation, and thus the beneficiary would need to take the initiative and pay the fees and costs associated with such litigation. While we have not yet seen an increase in labor certification denials, they do happen and the stakes are equally high, if not higher, for the foreign national beneficiary who would need to seek redress in federal court. DOL regulations prohibiting payment of fees and costs associated with the preparation of applications should logically not apply to lawsuits in federal court against government agencies to challenge their denials. This is an issue of first impression, and if the DOL continues to assert that fees and costs paid by the foreign national relating to such litigation are prohibited, those rules – especially 20 CFR § 656.12(b)-(c) and 20 CFR §655.731(c)(9)(ii) – ought to also be challenged alongside the lawsuit to set aside a wrongful denial.

(The author thanks David Isaacson for his invaluable input).



Some Preliminary Reactions to the Oral Argument in United States v. Texas

As most readers of this blog will likely be aware, the Supreme Court heard oral argument today in the case now captioned United States v. Texas, regarding the lawsuit brought by Texas and a number of other states to stop implementation of DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for Childhood Arrivals).  The transcript of the argument is now available online, although the audiotape will not be available until later in the week.  There has been much media coverage of the argument, including by the always-insightful SCOTUSBlog, and a number of media organizations and commentators have suggested that the Court may divide 4 to 4, thus leaving the Fifth Circuit’s decision intact and preventing DAPA and expanded DACA from going into effect at this time.  While that is a possibility, however, there are also some reasons to be optimistic that it may not come to pass.

I do not wish to recap all of the voluminous coverage of the argument by the media and commentators, but will focus in this blog post primarily on one or two things that I have not seen highlighted by other commentators. However, there is one observation about the argument, not original to me, which does seem worth passing along, and which falls under the heading of reasons for optimism.  As Chris Geidner has pointed out in his review of the oral argument on Buzzfeed, Justice Anthony Kennedy, who is often seen as a swing vote in cases where the Court is closely divided, raised the possibility that the more appropriate way for Texas to have proceeded would have been to challenge the application of the regulation granting employment authorization to deferred action beneficiaries, 8 C.F.R. §274a.12(c)(14), under the Administrative Procedure Act.  Justice Sotomayor discussed with Solicitor General Verrilli on page 31 of the transcript the possibility that, if Texas had wanted to attack the 1986 regulation that allows employment authorization under many circumstances including deferred action, they could have petitioned the agency for rulemaking under section 553(c) of the Administrative Procedure Act.  If that failed, they could then have gone to court.  Instead, Texas went directly into court without first raising its concerns with the agency—a procedural shortcut which a majority of the Court may not be willing to tolerate.  This is separate from the constitutional concern, also discussed at length during the argument, that Texas may not have standing to attack DAPA where its asserted injury relates to its own decision to subsidize the issuance of driver’s licenses to certain classes of individuals.

Another notable portion of the oral argument was the discussion of the outsized importance that the plaintiff States have attached to the brief mention in the DAPA memorandum of “lawful presence”. As Marty Lederman explained in a post on the Balkinization blog prior to the oral argument, the significance of “lawful presence” in this context relates primarily to eligibility for certain Social Security and Medicare benefits, as well as to the tolling of unlawful presence for purposes of potential future inadmissibility under 8 U.S.C. §1182(a)(9)(B).  Neither of these things, however, has anything to do with the injury that Texas alleges.  Nor are they of particularly great significance in the context of DAPA as a whole.  Professor Lederman had described the lawful-presence argument as “the smallest of tails wagging a very large dog”, a phrase that Solicitor General Verrilli expanded upon (or should I say contracted upon?) on page 32 of the oral argument transcript by noting that the lawful-presence issue was “the tail on the dog and the flea on the tail of the dog.”  (He also returned to the basic “tail of the dog” formulation on page 88, in his rebuttal.)  If necessary, he offered, the Court could simply take a “red pencil” and excise the offending phrase from the memo, and this would be “totally fine” with the government.

Just as the issue of “lawful presence” lacks a connection to the injury Texas alleges, it was also discussed at the oral argument how even the employment authorization that is a much more important component of DAPA as it would operate in practice, and which seems to be what Texas is in large part challenging, does not really relate to Texas’s alleged injury. As Solicitor General Verrilli and also Thomas Saenz, arguing for intervenor prospective DAPA beneficiaries, pointed out, Texas, under its current policy, gives driver’s licenses based on the granting of deferred action itself, rather than based upon employment authorization.  Even if the federal government restricted itself to deferring any removal action against the intended beneficiaries of DAPA – as Texas, in the person of its Solicitor General Scott Keller, seemed to concede on page 50 of the transcript that it would have the authority to do – and simply, as Justice Ginsburg suggested, gave out ID cards noting the low priority status of the beneficiaries, Texas would still, under its current policy, apparently have to give those beneficiaries subsidized driver’s licenses.  Thus, besides the other problems with Texas’s claim that it is harmed sufficiently by DAPA to have standing to challenge it, there is the problem of redressability.  A decision forbidding the federal government to give out employment authorization documents, or declare “lawful presence”, under DAPA, while still permitting it to defer removal actions against DAPA’s beneficiaries, would not actually solve the problem that Texas is claiming DAPA has caused.  It is, instead, merely a convenient hook for what is actually a political dispute.  Solicitor General Verrilli returned to this point in his rebuttal argument, noting that Texas had offered no response to it.

Another notable portion of the oral argument relating to employment authorization was the discussion of how, as Justice Alito asked on page 28 of the transcript, it is “possible to lawfully work in the United States without lawfully being in the United States?” As Solicitor General Donald B. Verrilli attempted to explain, while this may seem peculiar, employment authorization based on a mere pending application for lawful status, such as an application for adjustment of status or cancellation of removal, is quite common.  Many, many people receive such authorization pursuant to the administrative authority recognized by 8 U.S.C. §1324a(h)(3), as discussed in my prior blog post Ignoring the Elephant in the Room: An Initial Reaction to Judge Hanen’s Decision Enjoining DAPA and Expanded DACA.  The suggestion that such authorization cannot exist would wreak havoc on our immigration system as we now know it.  As Solicitor General Verrilli pointed out on page 31 of the transcript, reading the §1324a(h)(3) authority as narrowly as suggested by the plaintiffs would eliminate well over a dozen of the current regulatory categories of employment authorization.  It would, to quote from Solicitor General Verrilli’s rebuttal argument at page 89, “completely and totally upend the administration of the immigration laws, and, frankly, it’s a reckless suggestion.”

Indeed, as I pointed out in a blog post several years ago, there are many circumstances under which even someone subject to a removal order can be lawfully granted work authorization.  Those whose asylum applications were denied in removal proceedings but who are seeking judicial review of that denial, for example, may obtain employment authorization under 8 C.F.R. §274a.12(c)(8).  An applicant for adjustment of status under INA §245 or cancellation of removal for nonpermanent residents under INA §240A(b) who has his or her application denied by an immigration judge and the BIA, is ordered removed, and petitions for judicial review of the order of removal under 8 U.S.C. § 1252(a)(2)(D) on the ground that a legal or constitutional error has been made in adjudicating the application, may also renew employment authorization.  Even outside the context of judicial review, an applicant for adjustment who was ordered removed as an arriving alien, and who is nonetheless applying to USCIS for adjustment of status pursuant to Matter of Yauri, 25 I&N Dec. 103 (BIA 2009), can be eligible for employment authorization.

The anomaly of concurrent authorization to work in the United States and lack of authorization to be here, paradoxical though it may have seemed to Justice Alito, can exist even with respect to some of the forms of employment authorization authorized by very specific statutory provisions, rather than under the general authority of 8 U.S.C. §1324a(h)(3)—the forms of employment authorization that even Justice Alito and Texas acknowledge should exist. In 8 U.S.C. §1158(d)(2), for example, Congress specifically indicated that while “an applicant for asylum is not entitled to employment authorization . . . such authorization may be provided under regulation by the Attorney General.”  The implementing regulations at 8 C.F.R. §208.7(b) and 8 C.F.R. § 274a.12(c) make clear that such employment authorization is renewable pending the completion of administrative and judicial review of a denial of the asylum application.  Thus, an asylum applicant whose application was denied, resulting in an order of removal, and who is seeking judicial review of that order, can obtain renewed employment authorization.

Admittedly, in some cases, a court of appeals can grant a stay of the order of removal for an asylum applicant in this situation, pending adjudication of the petition for review—which one might consider a form of authorization to be in the United States. But a stay of removal is not a precondition for a grant of employment under 8 U.S.C. §1158(d)(2) and 8 C.F.R. §274a.12(c)(8), either in theory or in practice.  It is fairly common for asylum applicants who are not detained to pursue judicial review without a stay of removal and to renew their employment authorization while doing so.  They are authorized to work in the United States, even though in theory they are not authorized to be here.  As long as they are here, because the government has not thought it worth removing them during the pendency of their court case, they can lawfully work.

Given Justice Alito’s follow-up question about whether the categories of persons who had employment authorization without lawful presence were “statutory categories”, however, it is also worth emphasizing that other kinds of employment authorization besides those specifically authorized by statute can persist even in the face of a removal order. Employment authorization based on a pending application for adjustment of status or cancellation of removal, under 8 C.F.R. §274a.12(c)(9) and 8 C.F.R. §274a.12(c)(10), does not stem from the sort of type-specific statutory authorization at 8 U.S.C. §1158(d)(2).  Nonetheless, these types of employment authorization, which have been granted for many years in significant volume with little controversy, can be obtained by someone with a final removal order who is seeking judicial review of that order, or who is seeking adjustment of status under Matter of Yauri.  To the extent Justice Alito meant to imply that the seeming paradox of authorized employment without authorized presence could only be justified by a specific statutory authorization, this too was an inaccurate description of the world of immigration law since long before DAPA.

While the discussion at oral argument of employment authorization separate from lawful status did not go so far as to address this issue of employment authorization for those subject to orders of removal, it did seem that the Solicitor General’s emphasis on the sheer scale of those grants of employment authorization may have made an impact on Chief Justice Roberts.  The Chief Justice, at the end of Solicitor General Verilli’s rebuttal, returned to the question of how many of these sorts of employment authorization documents are issued, and the answer on page 90 that there were 4.5 million in the context of adjustment of status since 2008 and 325,000 for cancellation of removal was the last substantive portion of the argument transcript.  This was potentially a strong closing argument, which may be a hopeful sign.

Attempting to predict the outcome of a case from oral argument is always a risky endeavor, and we will have to wait and see what the Court actually does. Nonetheless, it is my hope that the above observations may perhaps provide some additional insight.

Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization

Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program  and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act.

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides:

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

While the ability to of INA 274A(h)(3) to provide authority to the Administration was  completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA.

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3)  gives the Attorney General, and now the Secretary of Homeland Security, broad  flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

Indeed, if INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a, after all, is that the authority for most of them has always been thought to stem from INA 274A. While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable.  Indeed, one of the principal reasons why state regulations have been held to  conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory  that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit’s majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts.

The Supreme Court in Arizona v. United States132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The majority of the Supreme Court  justices ought to  latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s  November 20, 2014 executive actions.  There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!

The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status application has been pending for 180 days. Once the beneficiary has ported and is no longer in contact with the former employer, the USCIS may discover that it improperly approved the I-140 petition and revoke it. Only the prior employer may get notification, which may no longer care to contest the grounds for revoking the I-140 or this employer may no longer even be in existence. The hapless foreign national who is enjoying job mobility under INA 204(j) does not know any better, but this individual may no longer be able to obtain permanent residency.

Should this foreign national beneficiary at least be notified about the I-140 being revoked and allowed to contest it? In 2009, the Ninth Circuit Court of Appeals in Herrera v. USCIS  answered in the negative by holding that the government’s authority to revoke an I-140 petition under INA 205 survived portability under INA 204(j). Since Herrera,  progress has been made in favor of the foreign national’s interest in the I-140 petition although it may have been filed by the employer. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b) makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Despite Kurupati and Patel, which gave standing to the beneficiary of an I-140 petition to challenge the revocation or denial, a federal district court in Musunuru v. Lynch, 81 F. Supp.3d 721 (2015) held to the contrary, that the beneficiary of an I-140 petition could not challenge the revocation of a prior I-140 as the applicable regulations only authorize the petitioning employer to be provided with notification and to challenge the revocation. The Musunuru Court also opined that unlike a non-citizen who is in removal proceedings and who would suffer a serious loss, and thus a right to be heard, an I-140 revocation does not cause the same loss. Obviously, the court’s reasoning is wrong as the denial of an I-140 petition results in the denial of the I-485 adjustment application, which in turn can place the beneficiary in removal proceedings. Fortunately, Law360 reported that this case is on appeal in the Seventh Circuit, and at oral argument, “Circuit Judge Rovner seemed baffled by the whole case, however, saying it doesn’t appear that Musunuru did anything wrong but was being punished for someone else’s mistakes.”

The prospect of the DHS promulgating a rule that would allow beneficiaries of an approved I-140 to apply for work authorization although they are not yet able to file I-1-485 applications should not diminish the beneficiary’s standing in case the I-140 is revoked. First, USCIS has authority under INA 274(a)(h)(3) to issue work authorization to any class of non-citizens.  While an I-140 petition anchored by an I-485 would strengthen the standing claim, there are old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirezwas contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer,  the employer’s essentiality is obviated if the non-citizen is allowed to detach from the sponsoring employer under a rule granting work authorization  that replicates 204(j) portability, notwithstanding the lack of an I-485 application. Still, an even older 1984 case, Gladysz v. Donovan provides further  basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

As courts are recognizing the non-citizen’s interest in an I-140, employers may want to think twice before withdrawing an already approved I-140 petition even after the employee has left. Unlike an H-1B petition, there is no sanction for the employer who does not withdraw the I-140 petition. The I-140 petition allows the non-citizen to seek an H-1B extension through another employer beyond the maximum sixth year under the American Competitiveness in the 21st Century Act. It also allows the priority date on that I-140 petition to be transferred to a subsequently filed petition, and provides a measure of protection for one who wishes to port under INA 204(j). Courts have also recognized that the I-140 petition enables the beneficiary to seek benefits independent of the employer who sponsored him or her, and thus providing greater rights to the foreign national beneficiary in the I-140 is a step in the right direction, especially when backlogs in the employment preferences have resulted in longer and longer waits for the coveted green card.

The Decline of Deference: BALCA Does Not Speak for the DOL

By Gary Endelman and Cyrus D. Mehta

In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter  stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC, 2013-PWD-00002 (BALCA 3, 2012) did not represent the legal position of the Secretary of Labor. The DOL had issued increased prevailing wage determinations to an employer after it changed its wage methodology through an Interim Final rule that took effect on April 24, 2013. The order to increase wages was issued after the DOL had already certified the labor certification for the H-2B workers at a lower wage.  BALCA in Island Holdings invalidated the wage increases on the ground that there was no specific statutory or regulatory authority that would authorize DOL to increase the wage rate at an unknown future date.

The DOL’s letter to the Third Circuit disregarding the BALCA ruling in Island Holdings would have enormous implications on labor certification practice and administrative law. We credit Wendel Hall of C.J. Lake, counsel in the Island Holdings case, for alerting us to the significance of this issue and also bringing it to the attention of DOL itself.  If BALCA does not speak for DOL, is it necessary to exhaust administrative remedies before challenging a PERM denial in federal court? If BALCA does not speak for DOL, should the courts pay Chevron style deference to BALCA decisions? Can DOL ignore other BALCA decisions on PERM since BALCA does not speak for Secretary of Labor?

The Supreme Court established a two-step analysis in Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) for evaluating whether an agency’s interpretation of a statute it is entrusted to administer is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further.  Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute.  A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.

Still, Chevron deference cannot be accorded unless there is an agency construction of a statute to which the federal court must defer. DOL has now told the 3rd Circuit that BALCA does not speak for the Secretary of Labor since the administrative law judges on BALCA are only subordinate DOL employees. Therefore, an interpretation by BALCA does not represent the official view or understanding of the DOL. For this reason, one may never reach the question of deference since there is no agency finding or interpretation capable of commanding it. In United States v. Mead, 533 U.S. 218 (9th Cir. 2001), the Supreme Court held that not all agency interpretations qualify for Chevron deference, and deference is only accorded “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”    Using the Mead language or rationale, one can conclude that, since DOL has now decided that BALCA does not speak for the DOL, Congress has not delegated any interpretive authority to BALCA. Hence, no deference can or should be paid to any BALCA ruling.  Such a ruling would appear not to be entitled to deference

Even under the lower  standard in Skidmore v. Swift & Co, 323 U.S. 134 (1944) the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.”  If DOL does not think that BALCA speaks for the Secretary of Labor, using theSkidmore criteria, how can BALCA ever have the power to persuade? Not having that, any BALCA decision would not be invested with any deference under Skidmore.

Finally, in Auer v. Robins, 519 US 452 (1977), the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations, there would be no deference to a BALCA decision since the DOL has now told the Third Circuit that an opinion by BALCA is not an interpretation by the DOL but only an expression of what individual subordinate DOL employees think.

Since DOL does not think BALCA speaks for the Secretary of Labor, is there a need to exhaust administrative remedies before challenging a PERM labor certification denial in federal court? Moreover, if no deference to a BALCA decision is justified or required, can there be a failure to exhaust? We doubt it. If DOL does not think that BALCA speaks for the agency, how can an appeal to BALCA be mandatory despite 20 CFR 656.24(d)(e)(3) that advises an employer a failure to appeal to BALCA within 30 days constitutes a failure to exhaust. How can going to BALCA be a mandatory administrative remedy when BALCA speaks only for itself and not the DOL?  There is a conflict between this regulation and the DOL view in the 3rd Circuit Louisiana Forestry case. This regulation is key since, for Administrative Procedure Act purposes, only if exhaustion is required by an agency regulation can recourse to the federal courts be barredDarby v. Cisneros509 US 137, 144-54 (1993)

The four criteria set forth in Darby v. Cisneros in order to bypass an administrative appeal, are as follows:

  • Federal review has been brought pursuant to the APA;
  • There is no statute that mandates an administrative appeal;
  • Either: a) there is no regulation that mandates an administrative appeal; or b) if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and
  • The adverse agency decision to be challenged is final for purposes of the APA.

BALCA cannot provide an administrative remedy to the parties concerned since its decisions do not represent the official view of the DOL. Rather than constituting “superior agency authority” to use the language of Section 10 (c ) of the APA, 5 USC 704, BALCA consists of a collection of subordinate DOL employees  in the view of the DOL itself. Since that is the case, BALCA “lacks the ability or competence to resolve the issue or grant the relief requested…” Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002).  

None of the various reasons most regularly advanced for the exhaustion doctrine apply here given the DOL repudiation of BALCA as the final expression of the DOL. The need to first appeal to BALCA does not promote administrative efficiency since it can be ignored by the DOL as the individual perspectives of subordinate employees. For the same reason, it will not avoid needless litigation or promote the conservation of judicial resources. When DOL agrees with BALCA, it accepts what BALCA says. When DOL disagrees, it can tell the court, as here, that BALCA does not speak for the DOL.  This is how and why the lack of deference is linked to the absence of any need to exhaust remedies.

Aggrieved employers and aliens may wish to directly seek review in federal court than seek review at BALCA after the DOL’s letter to the Third Circuit. Strategically, going directly into federal court may be advantageous if the plaintiff wished to challenge a regulation on constitutional grounds rather than waste time with BALCA, which may not have jurisdiction over such a challenge. Moreover, if the employer desires to file a new PERM application, and still seek review of the old denial, going to BALCA would preclude the filing of a new application until there was a final adverse decision. 20 CFR § 565.24(e)(6). The same prohibition does not apply if the aggrieved employer directly goes into federal court.

Finally, 20 CFR 656.26 does not require an alien to go to BALCA; indeed, the alien has no such right. In the labor certification context, the alien is not even informed of a right to appeal in contrast to the  notification of such right provided to an alien investor,  8 CFR 204.6(k), or fiancé(e) , 8 CFR 123.2 (k)(4). Then, under Darby, an alien ought to be able to get APA standing even if the employer does not seek review of the denial with BALCA, which in any event has been downgraded by the DOL.  The Sixth Circuit in Patel v. USCIS very recently held that an alien had standing to seek review of the denial of an I-140 petition as the alien’s interests are within the zone of interests protected by INA section 203(b)(3). See also Stenographer Machines v. Regional Administrator for Employment and Training, 577 F.2d 521 (7th Cir. 1978); Cf Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) (although alien has standing to sue on a denied labor certification, government’s motion to dismiss granted due to absence of employer’s participation in the litigation).  Given that the DOL has rendered BALCA irrelevant in its letter to the Third Circuit, aliens ought to be able to bolster their argument about seeking review of a denied PERM labor certification in federal court.

The DOL repudiation of BALCA as an authoritative voice calls into question the relevancy of BALCA itself. If BALCA does not speak for the DOL to a federal judge, how can it do so in any other context? Can BALCA represent the DOL in an administrative law sense only?  Is it possible for BALCA to be invested with a sense of finality only with respect to decisions on labor certification, both temporary and permanent, but to lose such imprimatur should the DOL go into court? To answer these questions, we would do well to cast our minds back to the reason that DOL created BALCA in the first place. At that time, the DOL’s administrative decisions were neither consistent nor uniform. So the DOL revised the regulations to create a Board of Alien Labor Certification Appeals (BALCA) in 1987 to replace the system of appeals to single administrative law judges within the DOL. The rule creating the BALCA said, “[T]he Board will enhance uniformity and consistency of decisions.” 52 Fed. Reg. 11218 (Apr. 8, 1987). A subsequent BALCA decision explained: “The purpose of the Board is to provide stare decisis for the immigration bar.” Matter of Artdesign Inc., 89–INA–99 (Dec. 5, 1989). Subsequently, however, these goals were not achieved, and the BALCA invented a device (the en banc decision) to resolve inconsistencies in BALCA decisions. The BALCA suffers from a strange defect: unlike the DHS and the BIA where regulations exist that make BIA decisions binding on all officers and employees of the Service and Immigration Judges, BALCA decisions cannot command unquestioning obedience from the federal agency it claims to represent. Yet, until today, both the regulators and the regulated assumed that BALCA spoke not merely or even primarily for the administrative law judges themselves but for the Department of Labor. Now, we are not so sure.

(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)


Issues Ripe for Rulemaking: Some Modest Proposals

By Gary Endelman and Cyrus D. Mehta

Immigration lawyers are used to interpreting complex immigration statutes in the absence of regulations. Indeed, there has evolved a “common law” within immigration practice based on governmental guidance memos and even letters written by government officials in response to an attorney’s query. Immigration lawyers often refer to a letter of Efren Hernandez or Jacqueline Bednarz from more than a decade ago as if they have the halo of an authoritative and binding decision. The problem is that unless the government actually promulgates a regulation under the Administrative Procedure Act, such memos and letters are hardly binding. Still, stakeholders, including the government agencies, have conveniently created an illusion that they are binding, and readily cite to them, even when they are not.  From an immigration attorney’s point of view, the stakes are too high for challenging their authority. It is strategically prudent to demonstrate how their client qualifies under such informal agency guidance, and seek a quick approval, rather than challenge their validity in long drawn litigation.

Agency interpretations advanced in “opinion letters” neither justify nor enjoy Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (contrasting interpretations in opinion letters with those “arrived at after…a formal adjudication or notice-and-comment rulemaking.”). Instead, “interpretations contained in less reliable formats such as opinion letter are ‘entitled to respect’ under Skidmore v. Swift., 323 U.S. 134, 140 (1944), but only if they have the ‘power to persuade.’” Christensen, 529 US at 587; see also Catskill Devel, LLC. V. Park Place Enter. Corp., 547 F.3d 115, 127 (2d Cir. 2008) (under Skidmore, agency viewpoint articulated in an opinion letter was “entitled to deference only to the extent that it ha(d) the power to persuade” the court).

Much of our legal reasoning rests upon a very uncertain foundation. One is reminded, for example, that all of the American Competitiveness in the 21st Century Act (AC 21) interpretations upon which we routinely rely are not the product of APA rulemaking but of agency memoranda or opinion letters. To the extent that these may benefit us or our clients, let us remember that they are not endowed with Chevron-style deference and can be ignored or overturned by subsequent court rulings.  We have seen this in the context of AC 21 adjustment of status portability. In a 2009 decision styledHerrera vv USCIS, No. 08-55493, 2009 U.S.App. LEXISs 14592 (2009), the Ninth Circuit held that the revocation of an I-140 petition under INA 204(j) without bothering to acknowledge or distinguish the facts of the case  sub judice  from the 2005 Aytes Memo on AC 21, which states that a withdrawal of an I-140 petition after 180 days did not undermine portability.See Cyrus D. Mehta, Ninth Circuit In Herrera v. USCIS Rules that Revocation of I-140 Petition Trumps Portability,

Several years ago, stunned lawyers learned to their utter dismay that even opinions of the legacy INS General Counsel could not be counted on. Matter of Izumi, A 76 426 873 (decided by Associate Commissioner, Examinations, July 13, 1998). The absence of  guidance is the lawyer’s worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is secondary and glossing over that which is truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator also is at sea. Uncertain what standards to employ, frustrated by a nagging suspicion that overly clever attempts by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst looks in vain for guidance that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is sure, almost anything can happen.  In the absence of borders, can order survive?

At the recently concluded CIS Second Annual Conference in Washington DC on October 18, 2012, Cyrus D. Mehta addressed key issues ripe for rulemaking involving unlawful presence, American Competitiveness in the 21st Century Act (known as “AC 21”), EB-5, Child Status Protection Act and more. A power point presentation, which is part of the conference record, lays out some areas that are in need of rule making as well as some areas that do not need new rulemaking. Of course, this presentation does not claim to cover every issue, but selects a narrow slice of issues, which can greatly benefit from rulemaking.  The need for rulemaking, in the opinion of the authors, can be broken into several components, as follows:

First, some areas are ripe for rulemaking especially when the law has been interpreted in a consistent and reasonable manner over several years through policy guidance memos.  Although there may be no compelling need for a rule, a rule affirming a guidance memo would create consistency and would guide all the agencies administering immigration law. One area that would benefit from such rulemaking is unlawful presence that triggers inadmissibility under INA 212(a)(9)(b)(B). There already exists a weighty USCIS May 6, 2009 Interoffice Memo providing guidance on unlawful presence, which has generally been accepted by the government and stake holders. Still, a   rule on unlawful presence  affirming this memo would bind CBP, where some offices have taken inconsistent position on Canadian overstays not being treated as if they are in duration of status (like students in D/S) and thus not accruing unlawful presence and triggering the 3 or 10 year bars. Such a rule could also potentially help to clarify the conundrum between maintenance of status and period of stay authorized by the attorney general (POSABAG)., as discussed in  this previous blog,  Cyrus D. Mehta, Victory in El Badrawi: Narrowing The Disconnect Between Status and Work Authorization, It is incongruous to allow ICE to attempt to remove one from the US while that person has filed a timely application with USCIS to extend nonimmigrant status or is in the process of adjusting status to permanent residence.  The promulgation of a rule may also avoid differences in interpretations by US consulates, such as minors accruing unlawful presence for purposes of INA 212(a)(9)(C) bar when  minors do not accrue unlawful presence for purposes of the 3 and 10 year years under 212(a)(9)(B)(iii)(I).  Finally, such a  rule should affirm informal USCIS Chief Counsel Divine letter, July 14, 2006, holding that time spent for purposes of 3 or 10 year bars can be spent in the US, and not necessarily outside the US, See Cyrus D. Mehta,  Can One Spend The 3-And 10-Year Bars In The US?

Second, some areas simply cry out for a rule because the absence of which renders the statute inoperable. A regulation long overdue   will assist a group of EB-5 investor applicants who have filed removal of their conditional resident applications more than a decade earlier. The 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215; PL 107-273 – which affect investors who filed I-526 applications between January 1, 1995 and August 31, 1999 and I-829 applications before November 2,2002 –  can only take effect upon the promulgation of a regulation.  Their I-829 applications still remain pending in 2012 due tot the absence of a  regulation. Even in the absence of such a long overdue regulation, EB-5s should at least be found eligible for naturalization as they have been conditional residents for over a decade.

Third, we can and should advocate for new or modified regulations, where there has been harshness and the impact to those seeking immigration benefits that may not necessarily reflect the plain meaning of the statute. Such regulations may also be in the spirit of the Obama administration’s policies concerning prosecutorial discretion. We make a few selected proposals that can greatly improve both efficiency and fairness:

  • Foreign equivalent degree determinations have caused hardship to employment-based beneficiaries of I-140 petitions, especially as they are inconsistent with the way H-1B foreign equivalent degrees are determined, and after the DOL has approved labor certification based on the employer’s good faith recruitment. The USCIS insists on a single source 4 year degree under an I-140 petition, and if the EB beneficiary has a degree  based on a three year foreign degree and post graduate diploma, it will not accept that as the equivalent of a US  4 year bachelor’s degree even if it was determined to be so for the H-1B visa. SeeCyrus D. Mehta, EDGE Says Indian 2-Year Master’s Degree Following A 4-Year Bachelor’s Is Not Equivalent To A US Master’s Degree, Many EB beneficiaries who would otherwise be able to qualify under the EB-2 have to qualify under the EB-3. If the equivalency is not properly defined on the PERM labor certification, the I-140 gets denied. We recommend that the current definition of “foreign equivalent degree” under 8 CFR 204.5(k)(2) and 204.5(l)(2) be modified to parallel the H-1B definition of equivalent degree under 8 CFR 214.2(h)(4)(iii)(D).
  • With respect to the Child Status Protection Act (CSPA),  we propose the issuance of a regulation overruling Matter of Wang, 25 I&N Dec.28 (BIA 2009), now that two circuit courts, Khalid v.Holder,  655  F.3d  363 (5th Cir. 2011)  and  De Osorio v.Mayorkas, __ F.3d __(9th Cir. 2012)  have rejected it.  Aged out children who cannot get CSPA protection should have the former priority date convert to a new F2B petition filed by the LPR parent under INA 203(h)(3).  Such  a policy is consistent with prosecutorial discretionary polices of Obama administration, including deferred action for childhood arrivals. See Cyrus D. Mehta, Reinterpreting The Automatic Conversion Provision Of The CSPA To Help DREAM Kids,
  • Given that the endless waits in the China and India EB-2 India, and that the  EB-3 wait is long as 60 years, we propose an amendment to 8 C.F.R. § 245(g)(1), See Gary Endelman and Cyrus D. Mehta, Re-Defining “Immediately Available” To Allow Early Filing Of An Adjustment Of Status Application,, shown here in bold italics, that would expand the definition of visa availability and allow an I-485 application to be filed prior to the priority date becoming current under the Visa bulletin:
    An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date.An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.  
  • While INA 245 conditions adjustment of status on having a current priority date and meeting various conditions, there is no prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required. This could be done purely by act of regulation. For those who want a statutory basis, the USCIS can rely on its parole authority under INA 212(d)(5) to grant such interim benefits for “urgent humanitarian reasons” or “significant public benefit.” See Gary Endelman and Cyrus D. Mehta, Comprehensive Immigration Reform Through Executive Fiat,  
  • Section 106(a) of AC 21 allows an H-1B visa holder on whose behalf a labor certification has been filed 365 days prior to the maximum time limit to obtain an H-1B extension beyond the six years. AC 21 Section 106(a) ought to also allow the spouse of an H-1B who is also in H-1B status to be able to go beyond the six year maximum without having his or her own labor certification. This used to be allowed but the Aytes Memo on AC 21 seems to suggest that only dependent H-4 spouses would get tthe benefit of such an extension. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC 21 Section 106(a).  The statue itself has more flexibility and speaks of “any application for labor certification…in a case in which the certification is required or used by the alien to obtain status under section 203(b) of such Act.” (emphasis added). Under this interpretation, the H-1B husband who does not have his own labor certification can still use his H-1B wife’s labor certification on a derivative basis to file for adjustment of status. This interpretation can be implemented by the USCIS through a regulation and such remediation would be faithful to the generous spirit of AC 21. It would help to soften the hardship caused by chronic visa backlogs with respect to China and India as well as worldwide EB-3. The current interpretation placed upon AC 21 Section 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China, not to mention worldwide EB-3, it is simply realistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain to preserve their eligibility for adjustment of status. All this can be done with the stroke of a pen. See Gary Endelman and Cyrus D. Mehta: Two H-1B Spouses And One Labor Certification: Both Spouses Should Be Able To Seek 7th Year H-1B Extensions Under AC 21, Of course, the issue of the spouse of an H-1B being limited for 6 years, who is also in H-1B status, can be obviated if USCIS goes ahead with its proposed regulation to allow H-4 spouses to work, but it has been allowed to languish and USCIS seems content to allow it to die. This proposed regulation also appears to limit the group of H-4 spouses who can potentially work, and we refer readers to our blog that advocates that H-4 spouses and children be granted employment authorization in the same way as L-2 or E spouses from the very moment an H-1B is admitted into the US. See Gary Endelman and Cyrus D. Mehta: Working: H-4 Spouses Get To Take A Leap Forward, But Is It A Giant One, 
  • There is nothing in the INA, which suggests that derivative family members be counted in addition to the principal applicant under the employment-based and family-based preference. This has been carefully outlined in our article, Gary Endelman and Cyrus D. Mehta, Why We Can’t Wait: How President Obama Can Erase Immigration Backlogs With A Stroke Of A Pen,,0201-endelman.shtm.  INA 203(d) only states that “[a] spouse or child….be entitled to the same status and the same order of consideration …if accompanying or following to join, the spouse or parent.” Hence, there is ambiguity in the plain language of INA 203(d) to allow a rule that will not count all family members in addition to the principal applicant. Thus, a principal applicant with four derivative family members (spouse + 3 children) should only take one visa number and not 4 visa numbers from the preference categories. This will greatly assist in reducing the endless backlogs in the FB and EB preferences, which were not intended by Congress when it last increased visa numbers through IMMACT90.  There is no regulation in 8 CFR instructing what INA 203(d) is supposed to be doing. We do not claim that derivative beneficiaries are exempt from numerical limits. They are subject to numerical limitations in the sense that the principal alien is subject by virtue of being subsumed within the numerical limits that applies to this principal aline. There is a difference between not being counted at all, for which we do not contend, and being counted as an integral family unit as opposed to individuals. We seek not an exemption from numerical limits but rather a different way of counting such limits. 

Finally, there are legal issues, where regulations have already been promulgated, that do not require modification through a new rule just because of a new sentiment. For example, since the economic downturn, there has been a tendency on the part of immigration officials to become self appointed guardians of our economy, and with misguided zeal, they endeavor to protect jobs of American workers by reinterpreting the law. The definition of the employer-employee relationship for H-1B purposes is quite clear under 8 CFR 214.2(h)(4)(ii), and attempts to modify it through the Neufeld Memo are  simply not necessary, See Cyrus D. Mehta, Halcyon Days In H-1B Visa Processing  The Neufeld Memo too has been treated as interpretive guidance and not binding in Broadgate v. USCIS,  We propose that the Neufeld Memo be withdrawn. Similarly, the L-1B specialized knowledge definition under 8 CFR 214.2(l)(1)(ii)(D) reflects the intent of  the Immigration Act of 1990 (IMMACT90), and there is no need to muddy the waters by restricting the definition by resurrecting administrative decisions prior to IMMACT90 when the specialized knowledge definition was more restrictive, and included proprietary knowledge, which was eliminated after 1990.

What is blindingly transparent is that what we have now simply has broken down. Years pass after Congress enacts major immigration legislation and, time after time, implementing regulations are nowhere to be found. Is there anyone who knows anything about immigration practice who would not acknowledge a real and present need for rules that are clear, specific and accurate?  While the broad outlines of immigration policy are set by Congress what this policy means each day in real life is most often a matter of what the implementing regulations say. The job of Congress is to articulate a long- range vision while that of the Executive is to make short-term, tactical adjustments.

How the agency puts the law into practice often has more to do with its ultimate impact, of lack of one, than the black letter law itself. The gap between what Congress intended and what the regulation mandates can often be the distance between rhetoric and reality. The proposals we advance reflect our core belief that the American economy would benefit from a more cooperative relationship between regulators and those they regulate.  We urge that traditional notice and comment rulemaking be informed by a creative exchange about possible solutions to ultimate problems. Our hope is that the rulemaking process itself facilitates mutual education on the proposed rule’s practical effect so that honest strategies can emerge capable of resolving fundamental differences.

Those who believe as we do that immigration is good for America have their principles right. Our challenge as a nation is to translate these principles into practice. This is why we write. We do not expect that this will be easy but we ask our readers who shrink from the task to remember the story of the rebellious prince who ran away from the palace of his father the King. “Come back” said the King through his most trusted messenger, only to be told “I cannot.” Back came the royal reply: “Go as far as you can, and I will come to you the rest of the way.”