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The Guide for the Perplexed – Who is Stuck in the Green Card Backlogs

In the realm of Nature there is nothing purposeless, trivial, or unnecessary” ― Maimonides, The Guide for the Perplexed

David Bier of the Cato Institute in No One Knows How Long Legal Immigrants Will Have To Wait  calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” This is stunning, and a damming indictment of the broken and shambolic legal immigration system of the United States.

The backlogs in the India and China employment-based second (EB-2) and employment-based third (EB-3) preferences have made the employment-based immigration system completely unviable. It makes no sense for an employer to test the US labor market, obtain labor certification and classify the foreign national employee in the EB-2 and EB-3 through an approved I-140 petition, and then wait endlessly for decades for the green card. It is also hopelessly frustrating for the foreign national to be waiting endlessly. As Bier’s report points out, the wait may absurdly be beyond the lifetime of the employee and the sponsoring entity. One is also penalized based on where you were born. Although each employment-based preference has a limited supply of green cards each year set by law, the backlog is further compounded due to the per country limit. A person born in India or China, no matter what his or her present nationality may be, is charged to the country of birth. Currently, India and China are more oversubscribed than other countries in the EB-2 and EB-3 backlogs. Therefore, as espoused in The Tyranny of Priority Dates, one born in India or China suffers a worse faith than a person born in Sweden or Ghana in the employment-based backlogs, and this is tantamount to invidious discrimination.

Hence, the burning question in the mind of a perplexed foreign national stuck in the EB-2 or EB-3 backlog who was born in India and China is how can I improve my situation and get the green card more quickly? This blog will offer some guidance.

Upgrade from EB-3 to EB-2

Can you upgrade from EB-3 to EB-2? If so, your employer will have to sponsor you for a position that requires an advanced degree or a bachelor’s degree plus five years of post-baccalaureate experience. There may be circumstances where you may have been promoted or up for a promotion, and the new position may justify an advanced degree, and this may be a good opportunity to once again be sponsored for a green card under the EB-2 if you were originally sponsored under EB-3. Alternatively, a new employer can sponsor you under EB-2.  If the labor certification is approved for the new position, along with the I-140 petition, the priority date from the EB-3 I-140 petition can potentially be captured for the new EB-2. You will be able to advance closer to the green card in the new EB-2 queue through this upgrade, and may also be current to receive a green card. For example, if your priority date on the EB-3 petition was November 1, 2007, and if you recaptured it for the new EB-2 petition, then you will be current, as the EB-2 India Final Action cutoff date is November 1, 2007 according to the November 2016 Visa Bulletin. The difference between a Filing Date and Final Action Date is explained below.

Not everyone can qualify for an upgrade. If you do not have the equivalent of a US Master’s degree, or the equivalent of a single source 4 year US bachelor’s degree plus 5 years of progressive experience following such a bachelor’s degree, you will likely not be eligible to qualify under the EB-2. Also, be careful about preserving the age of your child under the Child Status Protection Act, as an EB-3 to EB-2 boost may not always protect the child’s age.

Qualifying as a Person of Extraordinary Ability under EB-1A

Some may be able to qualify as a person of extraordinary ability under the employment-based first preference (EB-1A), which is current for India and China. Of course, the standard to qualify under EB-1 is extremely difficult, but it does not hurt for one to at least think about it if you readily meet three out of the ten criteria for demonstrating extraordinary ability. You may have received more acclaim over the years in your career while waiting in the backlogs without knowing it, even if you may not have won major awards or written books or published scholarly articles. For example, in business fields, people have qualified if they have made outstanding contributions of major significance to the field, worked in a leading or critical capacity for organizations with a distinguished reputation and commanded a salary higher than others in the same positions. Even if you meet 3 out of the 10 criteria, the USCIS can still subjectively determine whether you are indeed a person of extraordinary ability with sustained national or international acclaim. Thus, the USCIS can still deny an EB-1A petition even if you meet the three criteria.

Qualifying as an Outstanding Professor or Researcher under EB-1B

If you get a position in a university that is tenure track or comparable to a tenure track position, and you can demonstrate that you are an internationally recognized professor or researcher, you may be able to qualify under EB-1B, which is also current for India and China. In addition, you will need to have at least 3 years of experience in an academic area. Demonstrating yourself as an outstanding professor or researcher is slightly less demanding than demonstrating extraordinary ability as you need to meet two out of six criteria. Interestingly, one can also qualify as an outstanding researcher through a private employer if it employs at least 3 full time researchers and has achieved as an organization, or through a department or division, documented accomplishments in an academic field. Still, like with the EB-1A person of extraordinary category, the USCIS can make a negative subjective determination even after you have met two out of the six criteria in an EB-1B petition.

Qualifying as a Multinational Executive or Manger under EB-1C

Yet another option is to explore whether your employer can assign you to a foreign parent, subsidiary, branch or affiliate as an executive or manager. After fulfilling a year of qualifying employment at the overseas entity, you may be able to qualify for a green card as an intracompany transferee executive or manager under the employment-based first preference (EB-1C) if you take up a similar position with the employer in the US. The EB-1 for multinational managers and executives is also current as it is for persons of extraordinary ability.

Job Creation Investment under EB-5

For those who may have a high net worth, and have amassed over $500,000, can consider passively investing in a project within a Regional Center under the employment-based fifth preference (EB-5). Although the EB-5 is not current for China, it is current for India. Still, the EB-5 requires you to put your capital at risk, and there is always a possibility that you could lose your investment along with not being able to obtain the green card. There is also a possibility of the law changing retroactively after December 9, 2016.

Cross Chargeability through Marriage

While marrying a U.S. citizen may be the panacea to your problems, provided the marriage was in good faith, even marrying a foreign national not born in India or China would allow you to cross charge to the spouse’s country of birth, which may not be experiencing the same backlogs in the EB-3, or may be current under the EB-2.

Filing I-485 Application Under the Filing Date in Visa Bulletin

There is a small saving grace that you can use the Filing Date in the Visa Bulletin to file an I-485 adjustment of status application. Under the November 2016 Visa Bulletin, an EB-2 beneficiary, for example, can file an I-485 application for adjustment of status if his or her priority date is on or before April 22, 2009 if born in India and March 1, 2013 if born in China. While the Filing Date only allows the applicant to file, it is the Final Action date that determines whether the applicant will be granted permanent residence. Note that under the new visa bulletin system introduced since October 2015 that created the dual Filing Date and Final Action Date, the USCIS will determine whether the filing date is applicable each month for purposes of filing adjustment of status applications. In the event that the USCIS determines that the filing date is not applicable, applicants will need to rely on the final action date in order to file an adjustment of status application within the US. In November 2016, the USCIS has allowed filing I-485 applications under the Filing Date as it did in October 2016. Thus, while the Filing Date for India EB-2 is April 22, 2009, which allows for the filing of the I-485 application, the Final Action Date is November 1, 2007, which is when the green card is actually issued. Upon the filing of an I-485 application, the applicant can enjoy some of the benefits of an I-485 application such as job portability, travel permission, and open market work authorization as well as work authorization for derivative family members.

Conclusion – Continue to Advocate for Immigration Reform

While no means exhaustive, these are a few options worthy of further exploration.  In the end, notwithstanding available options, you may still not qualify and be forced to remain in the EB-2 or EB-3 backlogs. Still, do not accept your fate and actively advocate for immigration reform in Congress. The Fairness for High Skilled Immigration Act, HR 213, eliminates the per country limits in the employment-based preferences and doubles the limit to 15 % to family sponsored immigrants. The bill has amassed about 127 co-sponsors from both parties, and could potentially pass if it was put up for a vote today. However, even if HR 213 becomes law, there will still be backlogs. There is also great scope to comprehensively reform and fix the broken immigration after we elect a new President and Congress. Finally, one should continue to press this and the next administration to implement administrative reforms. For example, in The Family That Is Counted Together Stays Together: How To Eliminate Immigration Visa Backlogs, Gary Endelman and I advocated that there is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. If the entire family was counted as one unit, instead of separately, imagine the additional green cards that would become available, resulting in a dramatic reduction of the backlogs. There is also an arguable basis for the Filing Date to be current under the Thanksgiving Turkey theory. In conclusion, do not feel hopeless and dejected. Consider all available options, and if you are still not eligible for those options, press hard for legislative and administrative changes. Every effort has a purpose, and if it is inherently for a just cause, there is that much more of a moral imperative for it to be realized and come to fruition.

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

DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

While the Obama administration is working on unveiling administrative fixes to reform the immigration system, we wish to revive one idea, which we discussed in The Tyranny of Priority Dates.  
We propose that aliens caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. It would promote efficiency, maximize transparency and enhance fundamental fairness by allowing someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140, Form I-130 or Form I-526. We have also learned that the EB-5 for China has reached the cap, and there will be retrogression in the EB-5 in the same way that there has been retrogression in the EB-2 and EB-3 for India. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose
Upon filing of an I-485 application, one can enjoy the benefits of “portability” under INA § 204(j) in some of the EB preferences and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization.

We acknowledge that INA § 245(a)(3) only allows the filing of an I-485 application when the visa is “immediately available” to the applicant, and this would need a Congressional fix. What may be less well known, though no less important, is the fact that the INA itself offers no clue as to what “visa availability” means. While it has always been linked to the monthly State Department Visa Bulletin, this is not the only definition that can be employed. Therefore, we propose a way for USCIS to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3).
The only regulation that defines visa availability is 8 C.F.R. § 245.1(g)(1), which provides:

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). 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.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, an organizing  principle that was never designed to accommodate the level of demand that we have now and will likely continue to experience,   all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted lawful permanent resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA §245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

We acknowledge that certain categories like the India EB-3 may have no visa availability whatsoever. Still, the State Department can reserve one visa in the India EB-3 like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the alien beneficiary.   So long as there is one visa kept available, our proposal to allow for an I-485 filing through a provisional filing date would be consistent with INA §245(a)(3).
We propose the following amendments to 8 C.F.R. § 245.1(g)(1), shown here in bold, that would expand the definition of visa availability:

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.


Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), we propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. The authors suggest the insertion of the following sentence, shown here in bold and deletion of another sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 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. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

We believe our proposal would not be creating new visa categories, but simply allowing those who are already on the pathway to permanent residence, but hindered by the crushing priority date backlogs, to apply for adjustment of status or be paroled into the U.S.  Another proposal is to allow the beneficiary of an approved I-140 to remain in the United States, and grant him or her an employment authorization document (EAD) if working in the same or similar occupation. While such a proposal allows one to avoid redefining visa availability in order to file an I-485 application, as we have suggested, we do not believe that a stand- alone I-140 petition can allow for portability under INA §204(j). Portability can only be exercised if there is an accompanying I-485 application. Still, at the same time, the government has authority to grant open market EADs to any category of aliens pursuant to INA §274A(h)(3). Under the broad authority that the government has to issue EADs pursuant to §274A(h)(3), the validity of the underlying labor certification would no longer be relevant.

Our colleague David Isaacson suggests a blunter approach, which would avoid any regulatory amendments. The Department of State could similarly allow filing of adjustment applications by applicants with priority dates for which no visa number was realistically available, at any time it chose to do so, simply by declaring the relevant categories “current” in the Visa Bulletin as it did for July 2007. The most efficient time to do this would be in September, at the end of each fiscal year, when the measure could also be justified as a way to ensure that any remaining visa numbers for that fiscal year did not go unused. The Visa Bulletin cut-off dates for the rest of the fiscal year could theoretically then proceed normally, with dates for each October following naturally from whatever the dates had been in the August two months before.
Finally, we also urge  serious consideration of our other proposal for not counting derivatives as a way to relieve the pressure in the EB and FB backlogs, and refer you to our blog entitled, Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress – Not Counting Family Members And Parole In Place, http://blog.cyrusmehta.com/2014/06/two-aces-up-president-obamas-sleeve-to_29.html.
The fundamental point is that priority dates should be a way of controlling not preventing permanent migration to the United States.  The very notion of a priority date suggests a realistic possibility of acquiring lawful permanent resident status. That is no longer the case for many immigrants in waiting. For this reason, since Congress will not act, the President must step forward. Now is the time.

Work Authorization for Some H-4 Spouses Liberates Them From the Tyranny of Priority Dates

By Gary Endelman and Cyrus D. Mehta

All the forces in the world are not so powerful as an idea whose time has come.

Victor Hugo

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses of H-1B visa holders is a good example. It is in line with the policies of other countries, and if the United States wishes to attract the brightest and the best, such an individual may be dissuaded from coming to the United States if the spouse is not allowed to work.  This is especially true if the H-1B workers have to wait for several years before they and their families can apply for permanent residency.

Almost 4 years ago, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended that H-4 spouses  be granted employment authorization to USCIS Director Alejandro Mayorkas, but only for those “H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to Comprehensive Immigration Reform. The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until January 31, 2012 when the Department of Homeland Security brought this idea back to life.

On May 6, 2014, the Department of Homeland Security (DHS)   announced that it would allow certain H-4 spouses to obtain employment authorization. The proposed rule provides that an H-4 spouse may apply for employment authorization if  the principal H-1B spouse is the beneficiary of an approved I-140 immigrant petition; or, if the H-1B spouse  been granted an extension of beyond the 6-year limitation pursuant to section 106(a) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Under section 106(a) of AC 21, the filing of a labor certification or employment-based immigrant visa petitions 365 days prior to the sixth year allows the H-1B worker to apply for an additional year be yond the sixth year.

In Tyranny of Priority Dates and subsequent articles, we pointed out the long delays befalling skilled immigrants due to the backlogs in the priority dates, and proposed remedial measures, including the ability of an H-4 spouse to work. Our prior analysis of H-4 spousal employment and earlier indications that the USCIS recognized the problem and intended to do something about it provide a helpful context against which the importance of this latest development can be measured. .

The proposed rule to grant work authorization to H-4 spouses is much welcomed recognition of this problem. It acknowledges the contributions of foreign born immigrants, especially in the tech industry, and cites the findings of Vivek Wadhwa that in 25% of tech companies founded between 1995-2005, the chief executive or lead technologist was foreign born.  Indeed, the preamble to the proposed rule acknowledges that certain beneficiaries of I-140 petitions under the India EB-3 preference may have to wait over 10 years to obtain permanent residence. In the meantime, the H-4 spouse cannot seek employment, and is also prohibited from other work related activities such as engaging in self-employment through a home based business. While only Congress could create new visa categories, we argued that the Executive under section 103(a) of the Immigration and Nationality Act was charged with the administration and enforcement of the INA. Also, the Executive had authority to grant work authorization to any aliens under INA section 274A(h)(3). Under these provisions, we had proposed that the Executive could provide relief for beneficiaries, including spouses, of approved I-130 and I-140 petitions through the grant of employment authorization who were caught in the crushing backlogs. After all, these people were in the pipeline for the green card, but for the backlogs in the priority dates.  The H-1B visa also allows for “dual intent,” as it permits one to apply for permanent residency even though it is technically a nonimmigrant visa.

The proposed rule now recognizes, as we did in The Tyranny of Priority Dates, the ability of the Executive to pass ameliorative measures in the face of crushing delays for those in the green card queue.  While Congress has still not been able to pass a reform of the broken immigration system, the proposed rule  further acknowledges that the Executive has the legal authority to authorize spousal employment pursuant to INA sections 103(1) and 274A (h)(3) Resting on this foundation, the proposed rule further relies on INA sections 214(a)(1), which authorizes the Executive to prescribe regulations setting forth terms and conditions with respect to the admission of nonimmigrants into the United States.  Recognizing that H-1B workers and their spouses would be green card holders but for the backlogs in the priority dates, Commerce Secretary appropriately stated, “These individuals are American families in waiting.”

The granting of work authorization to H-4 spouses if the principal spouse has applied for an AC 21 extension also resolves the conundrum when both spouses are on H-1B visas and are reaching the sixth year on their H-1B visas. Under this situation, the spouse who was not the subject of a labor certification was generally forced to switch to H-4 status, and was then prohibited from continuing employment.  In Two H-1B Spouses: One Labor or Certification we advocated how both spouses could take advantage of the labor certification filed on behalf of one of the spouses in order to get a seventh year extension. While there is a sound basis to argue that AC 21 would benefit the spouse who was relying on the labor certification filed on behalf of the labor certification, since this is the basis for their adjustment of status,  the USCIS did not always interpret AC 21 section 106(a) broadly to benefit both spouses. Now, thankfully, this uncertainty will no longer exist. The spouse who is not the subject of the labor certification can switch to H-4 status and can still apply for work authorization. At the same time, we still advocate that a spouse on an H-1B visa be able to rely on the other spouse’s labor certification or I-140 to seek an H-1B extension beyond the sixth year limitation. There will be occasions when it is more expeditious for the spouse to file an H-1B extension and continue working, rather than file for a change of status to H-4 and then apply for an employment authorization document before re-starting work again. This is an excellent illustration of how doctrinal clarity by the USCIS can promote robust operational flexibility by aliens and their advocates.

The proposed rule also resolves another uncertainty. H-4 spouses who were able to file an I-485 adjustment of status application for permanent residency could always apply for work authorization by virtue of filing the I-485 pursuant to 8 CFR 274a.12(c)(9). What was not clear is whether such H-4 spouses forfeited their right to remain in H-4 status if they engaged in work pursuant to an employment authorization under 8 CFR 274a.12(c)(9) while their I-485 applications remained pending. The proposed rule in footnote 13 appears to suggest that they did not violate their status. The rule will create  8 CFR 274a.12(c)(26) as a basis for H-4 spouses to apply for work authorization, and suggests that H-4 spouses who previously availed of work authorization under 274a.12(c)(9) can also avail of work authorization under 274a.12(c)(26). If the spouse lost H-4 status by engaging in employment pursuant to 274a.12(c)(9), it would not be possible for the H-4 spouse to now take advantage of new 274a.12(c)(26).  As with the H-1B  itself, the proposed H-4 rule recognizes and diffuses the tension between the constraints of nonimmigrant visa categories, such as the H-1B which is employer-specific or the H-4 that  hitherto was not allowed to sustain employment, and the adjustment of status provision in INA Section 245 that grants open market employment.

Many advocates feel that the rule did not go far enough and could have granted work authorization for all H-4 spouses without condition.  After all, the L-1 and E visas, allow dependent spouses to apply for  work authorization immediately upon being admitted under those statuses. On the other hand, the authorization to grant spouses of L and E nonimmigrants work authorization stems from Congress, although J-2 spouses who do not support the principal J-1 exchange visitor work solely through regulation Congress has not specifically authorized work authorization for H-4 spouses, although there is authority in the INS, as discussed, which still provides such authority to the DHS. While this is fair criticism, the Administration also faces withering opposition from anti-immigration advocates, including the likes of Senator Charles Grassley (R-IA), who question whether there is any authority at all to grant work authorization. Hence, the middle ground to grant work authorization benefits to H-4 spouses who are already on the pathway to permanent residence but are caught up in the backlogs. The proposed rule also acknowledges that this ameliorative measure is consistent with AC 21, which was enacted so that the principal H-1B spouses could continue to remain in the United States beyond the sixth year, and thus avoid disruption to US employers. Limiting work authorization to H-4 spouses who are on the pathway to green cards can also more easily insulate such a rule from challenges in federal court.

Still, even under this logic, it would be preferable if H-4 spouses are able to apply for work authorization as soon as a labor certification is filed on behalf of the principal spouse. There is no need to pre-condition the grant of employment authorization upon the approval of the I-140 petition, given the delays in the PERM labor certification process, which can take two years if the application is subject to an audit or to supervised recruitment. The rule also recognizes that an H-4 can apply for employment when a labor certification is filed, but only when it is used to obtain an H-1B extension beyond the six years under AC 21. It is illogical to only allow the H-4 to apply for a work permit when the principal spouse relies on the labor certification to seek an extension beyond six years, and not otherwise. Furthermore, while the majority of H-1B visa holders may be sponsored by employers through I-140 petitions, some H-4 spouses may also be sponsored by prospective employers in their own right. H-4 spouses who are directly sponsored by employers under an I-140 petition should also be allowed to apply for employment authorization. And why limit this to only I-140s? Some H-1Bs or H-4s are also sponsored by qualifying family members through an I-130 petition. They too are Americans in waiting.

Finally, children in H-4 status have been left out and do not have the ability to apply for work authorization. Children of L-1 and E-1 visa holders are also not allowed to work, although children of J-1 visa holders can work. On the other hand, H-4 children can obtain work authorization benefits if they switch to F-1 student visa status.

We continue to call upon Congress to enact comprehensive immigration reform, including the expansion of H-1B visa numbers.  Any administrative initiative, however meaningful or positive, and this one is both, is, by its very nature, both tentative and subject to reversal. Only an INA worthy of the many difficult but exciting challenges that America must confront and master in the 21st century can provide the nation with the vision that it needs and deserves. Yet, until that happy day comes, the USCIS can and must do justice with the law that we all have. That is what has finally happened with H-4 spousal employment. Not a full and complete step certainly, but a stride forward towards a better day.

Something else needs to be said before we go. What we in the United States are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B visa debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. No decision on H quotas can or should be made separate and apart from an answer to a far more fundamental question: How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze.

An immigration system that restricts the importation of human capital hurts American competitiveness every bit as much as high tariffs or artificial subsidies. In each case, the controlled but predictable flow of capital across national boundaries is the lubricant of economic activity. Preserving the H-1B as an instrument of job creation for Americans while enhancing the ability of foreign professionals to make our cause their own is an essential and irresistible component of comprehensive immigration reform. Allowing some, though not all, H-4 spouses to work is a key step in this direction. The DHS estimates that 100,600 H-4 spouses will apply for work authorization in the first year and 35,900 will initially apply in subsequent years. For those concerned about the impact on the US labor market, these H-4 spouses would in any event be able to work once the principal H-1B spouse applied for adjustment of status. They will also be able to contribute to the US economy, and the incentive provided to them will also encourage the H-1B spouse to stay on in the United States. We have every good hope that is will lead to ever more confident strides in the days to come. It is in the very nature of reform in the liberal tradition for progress to be incremental.  If the Chinese maxim that “the journey of a thousand miles begins with a single step,” retains its power to teach,  as we believe it surely does, we who legitimately want much more than the H-4 spousal regulation offers should not, even for a single moment, divert our eyes from the very real progress that has now been taken.

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

PAROLE IN PLACE: THE SECRET SAUCE FOR ADMINISTRATIVE IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

On November 15, 2013, the USCIS issued a Policy Memorandum formalizing the granting of parole to persons who are present in the United States without admission or parole and who are spouses, children and parents of US citizens serving in the US military or who previously served in the US military. While parole traditionally applies to those who seek to come to the United States, the expansion of this concept to those already here is known as “parole in place”.

According to this memo, military preparedness can be potentially adversely affected if active members of the military worry about the immigration status of their spouses, parents and children. The memo makes a similar commitment to veterans who have served and sacrificed for the nation, and who can face stress and anxiety because of the immigration status of their family members. Such persons can now formally apply for parole in place (PIP) through a formal procedure pursuant to the ability of the government to grant parole under INA section 212(d)(5)(A). PIP would allow them to adjust status in the US rather than travel abroad for consular processing of their immigrant visas and thus potentially triggering the 3 or 10 year bars.

As a quick background, an individual who is in the US without admission or parole cannot adjust status through an immediate relative such as a US citizen spouse, parent or son or daughter. This person is inherently inadmissible under INA section 212(a)(6)(A)(i), which provides:

An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.

Section 212(a)(6)(A)(i) renders an alien inadmissible under two related grounds: 1) an alien present in the US without being admitted or paroled or 2) an alien who arrives in the United States at any time or place other than as designated by the Attorney General.

The grant of PIP to a person who is present in the US without being admitted or paroled can wipe out the first ground of inadmissibility in section 212(a)(6)(A)(i). PIP would then also allow this person to adjust status in the US under section 245(a) – as the person needs to have been “inspected and admitted or paroled” – without needing to leave the US.  The ability to adjust status through PIP would obviate the need  to travel overseas and apply for the visa, and thus trigger the 3 or 10 year bar pursuant to INA section 212(a)(9)(B)(i) and (ii). Since there will be no departure triggering the 3 and 10 year bars, this person would no longer need to file a waiver or an advance provisional waiver by demonstrating extreme hardship to a qualifying US citizen relative to overcome the 3 and 10 year bars before leaving the US.

So far so good, but how does one overcome the second ground of inadmissibility in section 212(a)(6)A)(i), which relates to “an alien who arrives in the United States at any time or place other than as designated by the Attorney General?” The memo skillfully interprets this clause as relating to an alien who is in the process of arriving in the US without inspection. Thus, the second ground only applies to an alien who is presently arriving in the US while the first ground applies to an alien who already arrived in the US without admission or parole. If the second ground is interpreted as applying to an alien who arrived in the past, then it would make the first ground superfluous, according to the memo. It would also then make the 3 year bar under INA section 212(a)(9)(B)(i) superfluous as a person who at any point arrived, if used in the past tense,  at a place or time other than designated by the Secretary of Homeland Security would be  permanently inadmissible rather than inadmissible for only 3 years. Thus, if the second ground of inadmissibility is no longer applicable with respect to an alien who has already arrived in the US, then the grant of PIP would allow such a person to adjust in the US by overcoming the first ground under INA section 212(a)(6)(A)(i).

The extension of PIP to the families of current or former military service men and women is a proper recognition of their contribution to the nation and an attempt to benefit those who have given so much to the rest of us.  While such logic is compelling, why not expand its application to other instances where aliens have served and strengthened the national interest or performed work in the national interest? How about granting PIP to families of, outstanding researchers striving to unlock the mysteries of science and technology, those with exceptional or extraordinary ability, and key employees of US companies doing important jobs for which qualified Americans cannot be found? And there is also a compelling interest in ensuring family unification so that US citizens or permanent residents may feel less stressed and can go on to have productive lives that will in turn help the nation.  All such people do us proud by making our cause their own and the need of their loved ones to come in from the shadows is real and present. Indeed, the non-military use of PIP was advocated by top USCIS officials several years ago in a memo to USCIS Director Mayorkas, a memo leaked by its critics who wished successfully to kill it.

In the face of inaction on the part of the GOP controlled House to enact immigration reform, granting PIP to all immediate relatives of US citizens would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.

The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the memo currently states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. What about INA section 245(c)(2)’s insistence on “lawful immigration status” at the snapshot moment of I-485 submission?  Even this would not be a problem. For purposes of section  245(c) of the Act, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.

There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.

There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done.  The holistic approach to parole for which we argue is a prime example of this second approach. The term “status” is not defined anywhere in the INA.  By ordinary English usage, “parolee status” is a perfectly natural way of describing someone who has been paroled. Parole is a lawful status in the sense that, by virtue of the parole, it is lawful for the parolee to remain in the United States, at least for the authorized period of time under prescribed terms and conditions. We credit David Isaacson for suggesting that there are other instances in the INA where lawful status does not automatically equate to nonimmigrant status: for examples, asylum status under INA Section 208 and refugee status under INA section 207 are lawful statuses, even though strictly speaking, neither an asylee nor a refugee is a nonimmigrant according to the INA Section 101(a)(15) definition of that term. The Executive can easily revise the memo for military families to declare parole under INA  section 212(d)(5) a status  because it has already declared parole a lawful status for NA 245(c)(2) purposes under 8 C.F.R. 245(d)(v), asylum a lawful status under INA section 208, and refugee a lawful status under INA section 207.  See 8 C.F.R. 245.1(d)(iii)-(iv). In all three cases, people are allowed into the United States in a capacity that is nether legal permanent residence nor, strictly speaking, nonimmigrant.  True, INA section 101(a)(13)(B) does say that parolees are not “admitted”, but is one who enters without admission and is granted asylum under INA 208 ever been “admitted” per the statutory definition of that term? Yet, such a person has a lawful status.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 and 10 year bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the 3 or 10 year bars, as well as trying to overcome the bars by demonstrating extreme hardship to qualifying relatives, which is a very high standard. Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation.

There is no doubt that the memo for military families is a meaningful example of immigration remediation through executive initiative. Yet, it is one step in what can and should be a much longer journey. In the face on intractable congressional resistance, we urge the President to take this next step.

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

EXPANSION OF STEM FIELDS AS AN EXAMPLE OF ADMINISTRATIVE FIXES FOR A BROKEN IMMIGRATION SYSTEM

By Cyrus D. Mehta

I was pleased to see the announcement below. Immigration and Customs Enforcement, (ICE) of all agencies, expands immigration benefits to students who have graduated in science, technology, engineering and math degree programs (STEM) fields. ICE, which has been deporting non-citizens in high numbers in recent times, ironically acknowledges that this is a “continued commitment to fixing our broken immigration system and expanding access to the nation’s pool of talented high skilled graduates in science and technology fields.”

The 17 month extension of Optional Practical Training for STEM graduates is a good example of how the Administration can fix problems within our broken immigration system in the face of Congressional inaction. The 17-month extension was in response to the crisis caused by the H-1B cap in previous years. Even if presently, under the FY2012 H-1B cap, there are still plenty of H-1B visas, the quota is likely to get filled prior to the end of FY 2012. The expansion of STEM fields will benefit both employers and foreign students when they are next confronted with the filling of the H-1B cap. The 17-month STEM OPT extension rule was promulgated in the absence of any Congressional action. The rule also withstood a court challenge by the Programmers Guild in the Third Circuit on the ground that Congress acquiesced by never objecting to the concept of practical training whenever it previously legislated on immigration. See Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009).

In The Tyranny of Priority Dates by Gary Endelman and Cyrus D. Mehta, we have forcefully argued that the Administration has the power to creatively fix our immigration system administratively, and used the STEM OPT extension as an example.
What is intriguing about this ICE announcement that it comes closely on the heels of President Obama’s speech on immigration in El Paso on May 10. While many think that Obama’s recent meetings on immigration and his El Paso speech do not amount to much, the fact that his administration expanded STEM fields after the speech reveals that he may still have a nuanced plan to change the game on immigration. Expanding STEM fields is a baby step, and he can do a lot more administratively such as halting deportations for DREAM students. The President can justify such administrative fixes as our immigration system no longer works and is not what Congress intended when it enacted the preference system in 1965, which was expanded in 1990., but is unable to cope with present day realities. By taking bold administrative steps now, he can force Congress to bless them later either through acquiescence (by taking no action) or by affirming through legislation.

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ICE announces expanded list of science, technology, engineering, and math degree programs

Qualifies eligible graduates to extend their post-graduate training

WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) today published an expanded list of science, technology, engineering, and math (STEM) degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension-an important step forward in the Obama administration’s continued commitment to fixing our broken immigration system and expanding access to the nation’s pool of talented high skilled graduates in the science and technology fields.

The announcement follows President Obama’s recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and extend their post-graduate training in the United States.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

REDEFINING “IMMEDIATELY AVAILABILE” TO ALLOW EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

By Gary Endelman and Cyrus D. Mehta

We continue to blog on the salient ideas in our article, Tyranny of Priority Dates, published in BIB Daily, http://scr.bi/i0Lqkz, on March 25, 2010.

Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability? It would only be more fair to allow someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140. Upon filing of an I-485 application, one can enjoy the benefits of occupational mobility or “portability” under INA § 204(j) and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization, which they otherwise would not be able to get on an H-4 dependent visa.

Unfortunately, INA § 245(a)(3) only allows the filing of an I-485 application when the visa is immediately available to the applicant, and this would need a Congressional fix. We know that Congress either NEVER makes any sensible fix or takes a very long time to do so. So, why not find a way for the immigration agency, USCIS, to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3)?

The only regulation that defines visa availability is 8 C.F.R. § 245(g)(1), which provides:

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). 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.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted Legal Permanent Resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA 245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

The authors propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in bold, that would expand the definition of visa availability:

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.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), the authors propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. Since parole is not considered a legal admission, they will not be eligible for adjustment of status but will have to depart the United States and use the now-valid visa as a travel document to return when visa availability subsequently presents itself. The authors suggest the insertion of the following sentence, shown here in bold and deletion of an other sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 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. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Nothing could be simpler. The reason to seek Congressional modification of INA § 245(a) is not because it is the only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal.

(The authors thank Marcelo Zambonino, a law student at New York Law School for his assistance with this post.)