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Another Brick in the (Virtual) Wall: Implications of USCIS’s New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not “Lawfully Present”

In a November 2017 article, the Washington Post described “How Trump is building a border wall that no one can see”: how the Trump Administration was, “in a systematic and less visible way . . . following a blueprint to reduce the number of foreigners living in the United States those who are undocumented and those here legallyand overhaul the U.S. immigration system for generations to come.”  A month later, the New York Times published a similar article on Trump Administration efforts to reduce legal immigration using existing executive authorities.  The latest guidance from U.S. Citizenship and Immigration Services (USCIS) regarding when USCIS will issue a Notice to Appear (NTA) is another step in that direction, and an even more problematic one than it might appear to be at first glance.

USCIS recently announced in a Policy Memorandum, PM-602-0050.1, that it is changing the way it decides whether to issue an NTA placing someone into removal proceedings in immigration court.  In all cases other than those involving Deferred Action for Childhood Arrivals (DACA), which is the subject of separate NTA guidance, this new memorandum supersedes the previous USCIS NTA guidance that had been in effect since 2011.

The new NTA guidance in PM-602-0050.1 is said to be intended to implement the Trump Administration’s enforcement priorities as set out in the January 2017 Executive Order “Enhancing Public Safety in the Interior of the United States.”  It lists a number of scenarios in which an NTA will generally be issued absent high-level approval to do otherwise, but perhaps the most significant is one buried at the bottom of page 7 of the memorandum, after discussion of various scenarios relating to fraud or criminal cases.  The memorandum states there that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.”  This encompasses a wide variety of scenarios.

The new guidance’s apparent conversion of USCIS into an immigration-enforcement entity, contrary to the agency’s originally-intended mission as a benefits-granting entity distinct from the enforcement activities of other Department of Homeland Security components, has drawn criticism from the American Immigration Council and the American Immigration Lawyers’ Association, among others.  The criticism has understandably been from a broad, overarching perspective, and the new NTA policy is indeed deeply problematic from that perspective.  Some of the practical implications of the new policy, however, are also worth exploring in more detail.

By indicating that an NTA will be issued when, “upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present,” the new guidance implies that it will not matter if the person issued the NTA was lawfully present until just prior to the unfavorable decision.  That is, if an applicant for extension of nonimmigrant stay, change of nonimmigrant status, or adjustment of status was protected from the accrual of unlawful presence by the pendency of their application, but became unlawfully present the day that the denial was issued and mailed, it would seem that an NTA will follow.

Given the substantial processing times for many applications for change of status or extension of stay, this criterion could capture a great many nonimmigrants who in good faith applied to change to a different status, or extend their stay, well before their initial period of authorized stay expired.  According to the USCIS webpage regarding processing times, for example, an I-539 application for extension of stay or change of status which is processed at the USCIS Vermont Service Center is estimated to take between 9 months and 11.5 months.  So even someone who applies 9 months before the expiration of their initially authorized stay likely will not receive a decision before that period expires, and will thus be unlawfully present upon the issuance of an unfavorable decision on their application and subject to an NTA under the new USCIS policy.  Indeed, if a tourist or business visitor admitted for 6 months wishes to apply for an extension of stay or change of status, it would be mathematically impossible to do so far enough in advance to avoid this consequence in the event of a denial, because the projected processing time is longer than their entire initial period of admission!

Petitions and applications for extension of stay or change of status could also be denied for reasons which the nonimmigrant in question may not have anticipated.  As my partner Cyrus Mehta has pointed out, the new NTA guidance could apply, for example, to an H-1B skilled worker affected by new stricter USCIS policies regarding H-1B approvals, if the denial of an application for extension of stay comes after the expiration of the worker’s prior status.  It could also apply to an F-1 student who is the innocent victim of a mistake by a Designated School Official (DSO), or a B tourist or business visitor whom a USCIS officer decides has not given a sufficiently compelling explanation of why they want to remain for an extended but still temporary period of time.

Even one who has applied in good faith for a change of status or extension of stay, expecting it to be granted, may therefore under the new policy be placed in removal proceedings. Subjecting well-meaning temporary workers, students, tourists and other nonimmigrants to immigration court proceedings, and even potential detention, just because USCIS disagrees with the merits of their application for extension of stay or change or adjustment of status, is indicative of a malicious attitude towards noncitizens that we have also seen in other contexts from this Administration.

Because of what is likely to happen next in many such cases, this new policy is not merely malicious, but counterproductive as well, even when evaluated according to the goals that the Administration is presumably trying to accomplish (unless the Administration is more interested in harassing noncitizens, and generally deterring them from coming to the United States, than in encouraging timely departure following the denial of particular applications).  Initial hearings in removal proceedings often take several months to schedule even with the current backlog at the immigration courts, which will presumably get worse, not better, under the new NTA policy.  So our hypothetical denied applicant for change of status or extension of stay, who may have been planning to depart from the United States shortly after receiving the denial, will now be instructed to await an immigration court hearing in several months.  If he or she chooses to leave the United States in the meantime, and is unable to return for the removal hearing, this could result in a five-year bar to returning to the United States, pursuant to section 212(a)(6)(B) of the INA, which provides that “Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien’s subsequent departure or removal is inadmissible.”  An order of removal issued at such a hearing could also potentially lead to inadmissibility for ten years under section 212(a)(9)(A) of the INA, although the text of the statute (which refers to seeking admission “within 10 years of the date of such alien’s departure or removal”) suggests that this second bar ought not to apply where the person has already left at the time of the removal order (and unlike section 212(a)(6)(B) inadmissibility, 212(a)(9)(A) inadmissibility can at least be overcome by a grant of permission to reapply for admission under section 212(a)(9)(A)(iii) of the INA).  Thus, the statute provides a strong incentive for our hypothetical denied applicant, having been placed in removal proceedings, not to leave the United States before his or her hearing.

As long as the immigration court proceedings take place within one year of the denial of a timely-filed application for change of status or extension of stay by one who has not worked without authorization, our hypothetical denied applicant is likely to be better off staying in the United States to attend his or her hearing, so as to avoid the above-discussed types of inadmissibility, and then seeking voluntary departure under section 240B of the INA.  (The three-year bar for those unlawfully present for more than 180 days but less than one year, under section 212(a)(9)(B)(i)(I) of the INA, only applies by its terms to those who departed “prior to the commencement of proceedings under  . . . section 240” and so does not apply to someone placed in removal proceedings, though the ten-year bar for one year of unlawful presence under section 212(a)(9)(B)(i)(II) would apply.)  Thus, in this instance, the virtual wall will operate to keep in the United States for a substantial additional period of time someone who may have been perfectly willing to leave on their own shortly after the denial of their application for change of status or extension of stay, had they not been placed in removal proceedings.

In the presence of ever more outrageous immigration policies from the Trump Administration, such as the separation of children from their parents and the recent news that the Administration will likely fail to meet a court-ordered deadline to reunify separated children under 5 with their parents, there is a risk that more subtle anti-immigration measures may be overlooked.  As with other Trump Administration malfeasance, however, it is important not to succumb to such “outrage fatigue”.  The fact that the Administration has done even worse things does not mitigate the callous and counterproductive nature of a decision to place many well-meaning nonimmigrants in removal proceedings, and effectively prevent them from leaving the United States in a timely fashion after denial of an application even if they wish to do so.

Beware The Gap: USCIS’s Policy Changes Cause Headaches and Confusion for F-1 Change of Status Applicants

There’s never any good news coming from USCIS these days.  The agency’s treatment of applicants changing status to F-1 is another prime example of a confusing policy change that has no basis in law and regulation, and which severely hurts the U.S.’s ability to hold on to talented students.  To fully grasp the ridiculousness of modern day USCIS, we should take a trip back through relevant policy interpretations dating back to legacy INS.  We can start in April 2012 when the administration under President George W. Bush, frightened by the September 11, 2001 terrorist attacks, published an interim rule in the Federal Register.  You can see from the preamble to the interim rule exactly the kind of xenophobic policy the administration was trying to implement, which has only gotten worse today:

The terrorist attacks of September 11, 2001 highlight the need of the Service to maintain greater control over the ability of an alien to change nonimmigrant status once the alien has been admitted to the United States. This interim rule will allow the Service to fully review any request from a B nonimmigrant to change nonimmigrant status to that of full-time student before allowing the alien to enroll in a Service-approved school. The elimination of the ability of a B nonimmigrant to begin classes before receiving the Service’s approval of the change of nonimmigrant status is also consistent with the Act’s requirement in section 101(a)(15)(B) that a B nonimmigrant not be a person coming to the United States for the purpose of study.

The interim rule was effective upon publication, and was announced in a Memo from Johnny N. Williams, the Executive Associate Commissioner of the Office of Field Operations (Williams, Ex. Assoc. Comm. Field Operations, Requiring Change of Status from B to F-1 or M-1 Nonimmigrant Prior to Pursuing a Course of Study, HQISD 70/6.2.2 (Apr. 12, 2002)).  The new rule required a B-1/B-2 visitor to first obtain a change of status to F or M status before starting school.  If a visitor had already started school, the change of status application would be denied.  The rule became effective April 12, 2002 and the policy was codified in 8 CFR §214.2(b)(7).  Going further, the change of status application needed to be timely filed before the B-1/B-2 status expires and within 30 days of the start of school.  The latter requirement seems to stem from USCIS’s interpretation of 8 CFR §214.2(f)(5)(i), part of which states:

An F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20.  The student is considered to be maintaining status if he or she is making normal progress toward completing a course of study.

Then, a case brought before the Maryland District Court in 2011 challenged USCIS’s interpretation of this regulation.  In Youseffi v. Renaud, 794 F.Supp.2d 585 (D. Md. Mar. 11, 2011), the Plaintiff Narges Youssefi entered the U.S. in B-2 status and was granted a B-2 extension through December 27, 2007.  After receiving a request from her employer back in Iran that she stay in the U.S. and take classes to improve her English language skills, Ms. Youssefi decided to apply to take English classes, acquired an I-20, and listed November 3, 2008 as the start date for her classes on the Form I-20.  She timely filed a change of status application from B-2 to F-1 on June 25, 2008.  USCIS denied her application, reasoning that she had failed to maintain her current nonimmigrant status up to 30 days before the start of classes and was therefore ineligible for a change of status.  The Plaintiff appealed the case all the way up to district court.  The court in Youseffi grappled with USCIS’s interpretation of 8 USC §1258, 8 CFR §248.1(b), and 8 CFR §214.2(f)(5)(i) that a B-2 to F-1 change of status applicant must maintain active B-2 status up to the 30 days before the school program start date, and not just until the change of status application is filed.  First and foremost, the court found that the statutory language at INA §248 is inherently ambiguous, as it “implies that the USCIS may not grant a change of status to someone who has failed to ‘maintain’ his or her nonimmigrant status, but it does not define what it means to ‘maintain’ status.  It is unclear from the statute whether a nonimmigrant must continue to maintain her status only until she petitions for a change in classification, or whether she must continue to maintain it until USCIS grants her new nonimmigrant status.”  Youseffi v. Renaud, 794 F.Supp.2d 585, at 593.  But then the court looked at 8 CFR §248.1(b) where it found language that clarified the ambiguity in favor of the applicant:

Section 248.1(b) states that “a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service ….” 8 C.F.R. § 248.1(b). Under the plain language of the regulation, an applicant may be eligible for a change of status even if she failed to file before her previously authorized status expired. The ultimate decision of whether to excuse the applicant’s lapse lies within “the discretion” of the USCIS.

Id.  (Emphasis added).  The court concluded that 8 CFR §248.1 allows USCIS to use its discretion to excuse applicants who apply for a change of status and whose prior status remained valid at the time of filing but later expired.  Id.  The court went on to review this same regulation against 8 CFR §214.2(f)(5)(i), and found that the latter regulation is silent on situations like in Youseffi where the applicant’s prior status expired more than 30 days prior to the program start date.  It then remanded the case to USCIS which the court found could excuse a change of status applicant who filed while the prior status is valid but which later expired.

Since Youseffi, however, no higher federal court has addressed USCIS’s interpretation of these regulations.  And in the last few years, USCIS’s views have moved further away from a reasonable plain meaning understanding of the statute and regulations.

Case in point, a few years ago, immigration attorneys began reporting USCIS denials of applications to change status from B-2 to F-1 where the applicant had timely filed while his prior status was valid, the program start date indicated on the Form I-20 was within 30 days of the expiration of the underlying status, but then because of lengthy processing times at USCIS service centers, the school’s Designated School Official (DSO) had to defer the program date in SEVIS.  The effective result was that although it was still within 30 days of the initial start date listed on the Form I-20, the applicant’s prior status had expired more than 30 days before the new program start date.  There were so many incidents of this that the American Immigration Lawyers Association (AILA) was prompted to send a letter to Leon Rodriguez, then-Director of USCIS and the agency’s Chief Counsel, Ur Mendoza Jaddou.  The letter, dated December 15, 2016 (and available here for AILA members), explained how USCIS was erroneously denying these applications by misinterpreting 8 CFR §248.1(b), 8 CFR §214.2(f)(5)(i), and Form I-539 instructions to require B-2 to F-1 change of status applicants to maintain their B-2 statuses up to 30 days before a new program start date even though the original start date was only deferred because of USCIS’s own extremely lengthy processing times.  AILA’s letter again reasoned that USCIS’s interpretation of these regulations went far beyond what they state, and that in fact nowhere in the regulations does it state that change of status applicants have to maintain their prior status so that they remain in that prior status until 30 days before the program start date.  AILA pointed to the fact that even the court in Youseffi cited Unification Church v. Attorney Gen. of the U.S., 581 F.2d 870, 877 (D.C. Cir. 1978) (stating, in dicta, that it “appears to be the position taken” in 8 CFR §248.1 that “an applicant nonimmigrant must continue to maintain his ‘status’ only until he petitions for a change in classification,” not “until his petition is granted”); and Salehpour v. INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“The plain regulatory language [of section 248.1] allows an applicant to file for change of classification up to the last day of his prior authorized stay.”).  Moreover, USCIS practice had been to routinely approve these types of change of status applications, and the I-539 instructions even stated that a change of status applicant “must maintain [his] current, or other, nonimmigrant status up to 30 days before the report date or start date of the course of study listed on Form I-20 or [the] requested change of status may not be granted.”  (Emphasis added).  The I-539 instructions clearly state that USICS is to rely on the date listed on the I-20 when adjudicating the application, and not a deferred start date that’s listed by the DSO on SEVIS.  AILA then argued that “bridge petitions” that the applicant would file to extend the B-2 even while the change of status to F-1 is pending are not only cost prohibitive, they cause confusion to applicants, force USCIS to adjudicate unnecessary applications, which in turn lengthen already long processing times, and additionally creates issues around the “intent” of the applicant who already filed to change a status from temporary visitor to temporary student and then has to file an extension of a temporary visitor status.  Moreover, at the time of the letter, AILA’s members found that USCIS’s bridge petition requirement for B-2 to F-1 change of status applicants was inconsistently applied, where some B-2 extension applications were denied because it went against B-2 intent, or returned because they were not required.

Seemingly in answer to all the complaints from stakeholders about the inconsistent application of the bridge application requirement, USCIS decided in April 2017 to formalize the new policy.  USCIS updated its website to formally require B-1/B-2 to F-1 or M-1 change of status applicants whose status will expire more than 30 days before the initial F-1 or M-1 program start date, or whose program start dates had to be deferred because of USCIS processing times, to file a second Form I539 requesting an extension of the B-1/B-2 status and pay a separate fee for that application.  By the way, if the change of status application takes so long that the first extension time runs out, the applicant must file another extension of status application with another fee, and keep going until the original change of status has been approved.

Then, to cause even more confusion, and in a completely unhinged and callous move, USCIS decided to apply this “new” policy to pending B-1/B-2 change of status applications that were filed before USCIS posted its guidance.  How do we know?  Because USCIS issued Requests for Evidence (RFEs) to these applicants!  In these RFEs, USCIS states that the applicant’s underlying B-1/B-2 statuses had expired and that the F-1/M-1 start date had been deferred to a date more than 30 days after the B-1/B-2 status expired.  And by virtue of the new policy, which again was posted after the change of status application had been filed, USCIS requests evidence through the RFE that either the applicant submitted the additional Form I-539 application to extend her B-1/B-2 status, or if the applicant had not (and let’s again recall that the policy was adopted after the application was filed, and there is no indication on the USCIS website that it would apply retroactively to pending applications), that the applicant file the new I-539 now and ask USCIS to excuse the late filing pursuant to 8 CFR §214.1(c)(4).

Let’s recap what we have so far.  USCIS decided in April 2017 that it will require B-1/B-2 extension of status applications filed even if an application to change status is already pending, and is applying this policy to already filed change of status applications, and all without issuing a formal policy memorandum or undergoing a normal notice and comment period.  USCIS merely posted new “guidance” on its website, provides no statutory or regulatory basis for this change, and does not explain what happens to the B-1/B-2 extension of status applications once they are filed.

The result of USCI’s failure (or perhaps refusal) to undergo a formal notice and comment period for a sweeping policy change is that applicants and other stakeholders are simply not well informed about USCIS’s requirements, usually to detrimental and often disastrous results.  What had started off as USCIS’s formalization of its policy toward B-1/B-2 to F-1/M-2 change of status applicants has recently expanded to affect all other nonimmigrants who want to change status in order to remain in the U.S. to study.  USCIS’s original website posting of the new “guidance” referred exclusively to B-1/B-2 status holders changing status to F-1 or M-1 (the original website post has been preserved by AILA, and can be viewed here by members).  A careful review of the most recent USCIS website discussing this policy, which was most recently updated in February 2018, shows that the policy has been extended to every nonimmigrant whose status will expire more than 30 days before the F-1 and M-1 program start date.  There is no specific mention of B-1/B-2 status holders.  The full relevant language from the website is pasted here:

What if I Have a Gap in Status?

If your current nonimmigrant status will expire more than 30 days before your F-1 or M-1 program start date and you wish to remain in the United States until your start date, you must find a way to obtain status all the way up to the date that is 30 days before your program start date (“bridge the gap”). For most people, you will need to file a separate Form I-539 to request to extend your current status or change to another nonimmigrant status, in addition to your other Form I-539 application to change to student status. If you do not file this separate request prior to the expiration of your status, USCIS will deny your Form I-539 request to change to F-1 or M-1 status. Please continue to check the USCIS processing times while your Form I-539 change of status request is pending to determine if you need to file a request to extend or change your nonimmigrant status.

  • Note that because of processing times, your F-1 or M-1 program start date may be deferred to the following academic term or semester because USCIS did not make a decision on your Form I-539 change of status application before your originally intended F-1 or M-1 program start date. In that instance, you will need to obtain status all the way up to the date which is 30 days before yournew program start date. If you had already filed an I-539 to bridge the original gap, you may need to file another I-539 to bridge the new gap.

Because extending or changing nonimmigrant status to bridge the gap and changing to F-1 or M-1 status are two distinct benefits, you must pay a separate filing fee for each request. See the User Fee Statute, 31 U.S.C. § 9701.

How does this expanded policy look in practice?  Let’s say that an H-4 child of an H-1B worker is going to age out because she is turning 21.  Meanwhile her parents intend to maintain their H-1B and H-4 statuses, extending them in 3-year increments, so that they can remain long-term in the U.S. until the H-1B parent’s I-140 priority date is current and they can adjust status to lawful permanent residents.  It bears noting that the reason why our H-4 applicant’s parents are still in H-1B and H-4 statuses and need to extend them in 3-year increments under §104(c) of the American Competitiveness in the 21st Century Act is because they are caught in the never-ending green card backlogs under the employment-based second (EB-2) or employment-based third (EB-3) preferences and by virtue of being born in India or China.  Otherwise, the parents, along with our H-4 applicant who was their minor child, would have long ago obtained their green cards and the H-4 student would not have had to go through this ordeal.  Our H-4 student has already been enrolled in college and has been otherwise maintaining her valid H-4 status.  Following prior USCIS guidance and the guidance of her DSO, she decides to timely file a change of status application to F-1 so that she does not have to interrupt her studies by applying for an F-1 abroad and then returning to the U.S.  As most stakeholders know, I-539 applications for a change of status notoriously take a long time for USCIS to process.  So she waits, even after her H-4 has expired, thinking that she is in a “period of stay authorized by the Attorney General” as she had timely filed her change of status application.  And then bam!  She is hit with a denial.  Why?  Because she did not maintain her status or seek a change of status to another nonimmigrant category so that she could be “in status” within 30 days of the program start date indicated on the I-20.  Yes, folks.  USCIS now requires even H-4 nonimmigrants applying to change status to F-1 to apply to change status to B-1/B-2 in order to stay “in status” until 30 days within the program start date.  And USCIS does not even bother with issuing RFEs requesting proof that the applicant has maintained status until within 30 days of the program start date.  The Service will simply issue a denial and it’s up to the applicant now to determine whether she can stay in the U.S. as her unlawful presence started tolling when the denial was issued, and whether it is even possible to appeal this nonsensical decision.

What is particularly irksome about USCIS’s policy changes is that the usual notice and comment period would have, even if brief, provided some notice to stakeholders.  But here, USCIS simply changed a bit of language on its website and everyone is expected to know the new requirements, abide by them, and live with harsh results for failing to follow them.  Empirically, we are aware that school DSOs were not given any notice or guidance by USCIS on this new policy and its expansion to other nonimmigrant categories.  Thus, our lowly applicant who relied on the advice of the DSO would not have known to request a change of status to B-2 to bridge the gap until her change of status to F-1 is approved.  She is instead punished with a harsh denial, the inability to continue her studies, and potentially having to leave the U.S. in order to apply for an F-1 abroad which comes with its own set of issues, not the least of which could be questions over the applicant’s nonimmigrant intent and problems with demonstrating ties to her home country if she has been living in the U.S in H-4 status since she was a young child.

There is already a brain drain occurring in the U.S. thanks to the Trump administration’s xenophobic policies combined with the EB-2 and EB-3 backlogs.  Fewer students want to come to study in the U.S.  It’s harder for companies to hire highly educated and skilled foreign workers.  The backlogs in the EB-2 and EB-3 preferences are also causing skilled immigrants from India to leave the U.S. for countries like Canada in total desperation.  Foreign born entrepreneurs are facing difficult challenges starting their businesses here in the U.S.  One prime reason that people have upended their lives to come to the U.S. is to pursue the “American dream” for their children – to give them a chance to obtain excellent education and take advantage of the economic, social, and cultural opportunities in the U.S.  This dream turns into a nightmare when the child on the H-4 visa ages out and is unable to seamlessly change status to F-1.  No immigrant parent wants his child to be in a worse off situation than him because of our Byzantine immigration system.  And now we will see even fewer nonimmigrants try to attend school because of USCIS’s new, cumbersome, and costly policy discussed in this blog.  Worse, if USCIS continues to issue new policy changes without a notice and comment period, we will likely see more confusion, more heartbreak, and more completely nonsensical and costly requirements all without the barest minimum in explanation from our government.  Beware the gap, indeed.

Employer Not Always Obligated To Pay Return Transportation Cost Of Terminated H-1B Worker

In Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

When filing a Labor Condition Application (LCA) – a necessary first step in the filing of an H-1B visa petition – the employer attests that it will pay the required wage to the H-1B nonimmigrant worker. See INA 212(n)(1)(A); 20 CFR 655.731(a). The required wage must be paid until there is a bona fide termination of the employment relationship. In order to demonstrate such a bona fide termination of the employment relationship, the ARB held in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii). First, the employer must expressly terminate the employment relationship with the H-1B worker. Second, the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11). Third, the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). If the employer otherwise explicitly terminates the employment relationship, but fails to follow the second and third steps, the employer may still be obligated to pay the required wage for failure to effectuate a bona fide termination. Although in the real world the employer must only undertake step one, in the case of an H-1B worker, the employer must also take steps two and three that have been mandated by the Department of Labor (DOL).

It is the third prong that has been the subject of much interpretation.  Must an employer still offer to pay the return transportation costs even if the worker chooses to remain in the US on his or her own volition? In Vinayagam v. Cronous Solutions, the terminated H-1B worker did not leave the United States on her own volition and unsuccessfully applied for H-1B status through another employer. Prior to this unsuccessful attempt, the worker sought to apply for B-2 visa status, which was also denied. The employer under this scenario was not required to pay the return transportation costs home, and thus was not liable to continue to pay the required wage after the employer fulfilled steps one and two. This decision follows a line of other ARB decisions where the employer was not obligated to pay the return transportation costs where the H-1B worker had married a US citizen and adjusted her status to permanent residence or where the worker found an employer to file another H-1B petition and thus extend H-1B status through that employer or where the H-1B worker outright rejected the reimbursement. If the H-1B worker voluntarily terminates employment prior to the expiration of the authorized H-1B stay or is dismissed when the authorized stay has ended, the employer is not liable for return transportation costs. See Toia v. Gardner Family Care Corp., 2007-LCA-6 (April 25, 2008).

It is intriguing that the Department of Labor has latched on to USCIS rules for requiring a bona fide termination of employment. The employer’s obligation to pay the wage is an obligation under DOL rules, but in determining the employer’s ending of that obligation, the DOL has relied on the rules of United States Citizenship and Immigration Services (USCIS), which includes notification to the USCIS that results in the revocation of the H-1B petition (8 CFR 214.2(h)(11) and payment of the return transportation home obligation (8 CFR 214.2(h)(4)(iii)(E). Naomi Schorr has astutely observed that when one agency engages in interpreting and enforcing the rules of another agency, courts will not defer to that agency’s interpretation. See Schorr, It Makes You Want To Scream: Overstepping Bounds: The Department of Labor and the Bona Fide Termination of H-1B Employees, Bender’s Immigration Bulletin, Oct. 15, 2014. Indeed, in a 1999 exchange of correspondence between a private attorney and the INS, the response was that the “Service views the return transportation provision as a private contractual issue between the petitioner and the beneficiary. As a result, the Service has not developed any policies with respect to the questions that you have raised.” See Letter from Thomas W. Simmons, Chief, INS Business and Trade Services Branch to Robert A. Klipstein (May 20, 1999), reprinted in 70 Interpreter Releases 1140 (July 26, 1999).

While the USCIS does not give this rule any teeth, the DOL has chosen to enforce it against an employer if the employer cannot demonstrate that the H-1B worker chose to stay in the US on his or her own volition. In fact, notwithstanding Vinayagam v. Cronous Solutions, unless it is clearly indicated that the worker chooses to remain in the US, it would be prudent for the employer to give the benefit of doubt to the H-1B worker and offer the return transportation costs home. These cases have shown that the employer must always go through protracted litigation to establish that the H-1B worker voluntarily stayed on in the US in order to escape back wage liability. Moreover, the burden is on the employer to demonstrate whether it had a duty to provide the return transportation costs and whether it had satisfied that requirement. See Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039 (ARB Mar. 30, 2007).

The High Skilled Worker Rule that took effect on January 18, 2017 provides for a 60 day grace period to H-1B as well as other nonimmigrant workers holding E-1, E-2, E-3, H-1B1, L-1 or TN status. See 8 CFR 214.1(2). The 60 day grace period is indeed a salutary feature. Up until the rule took effect, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

The new 60 day grace period may incentivize the H-1B worker to remain in the US, and thus enable an employer to escape paying the return transportation costs. On other hand, it should not be viewed as a green light to never offer the return transportation costs home. While the 60 day grace period does allow a terminated worker some cushion in finding another employer in the US, it also provides a cushion for the worker to leave the United States less abruptly if terminated prior . In the latter situation, the employer’s failure to offer return transportation costs home could still render the employer liable for back wages as a result of not effectuating a bona fide termination.

DELAYS FOR OVERSEAS SPOUSES OF US CITIZENS SEEKING GREEN CARDS


One of the most fundamental benefits under immigration law is for the ability of a US citizen to quickly sponsor a foreign national spouse for a green card.  While the granting of immigration benefits is contentious in today’s political environment, no one has disputed, even immigration restrictionists, that a US citizen cannot swiftly bring into this country a foreign national whom he or she has married overseas. Under the Immigration and Nationality Act, the spouse of a US citizen qualifies as an immediate relative, and falls outside the quotas that other relatives of US citizens may be subject to such as adult sons and daughters or siblings. Minor children and parents of US citizens also qualify as immediate relatives.

The Form I-130 petition is used to sponsor a spouse, minor child or parent of a US citizen who is outside the US. In the recent past, such an I-130 petition filed with the United States Immigration and Citizenship Services on behalf of an immediate relative got approved in about 3-4 months. The case was then sent to the National Visa Center, a clearing house for the consular posts of the Department of State. Once the petitioner submitted the required documents to the NVC, the file was dispatched to the consular post and an appointment was quickly scheduled. The entire process generally took about six months or a little over.

More recently, I-130 petitions filed on behalf of spouses and other immediate relatives are reportedly taking much longer. This author has heard that I-130s filed in January or February 2013 have still not been approved. The Vermont Service Center states that I-130 petitions received on October 22, 2012 for immediate relatives are being adjudicated presently. The California Service Center does not indicate any processing time for a similar I-130 petition.  This is quite frankly a shocking state of affairs. The reason for the delay is that the I-130s are being shunted to local USCIS offices for processing rather than being processed at the California or Vermont Service Centers, which is how they were processed previously. Still, this is no excuse for the USCIS to cause so much delay. It makes no sense to allow spouses of US citizen to wait for so long outside the US before they can join their loved one in the US. The USCIS is capable of far greater efficiency as it demonstrated when it more quickly adjudicated thousands upon thousands of applications under the Deferred Action for Childhood Arrivals (DACA) program.

While the filing of a concurrent I-130 petition with an I-485 application for adjustment of status may process more quickly, the foreign spouse has to be in the US in order to adjust status. If a spouse enters the US on a nonimmigrant visa, such as a tourist visa, with the intention to adjust status, such an I-485 can be denied if the spouse had a preconceived intent to apply for permanent residence while entering the country as a tourist. If, on the other hand, the spouse came genuinely as a tourist, but changed his or her mind after arriving in the US, then it can be demonstrated that there was no preconceived intent, or worse, fraud or misrepresentation with respect to the purpose of entering the US on a tourist visa.  Of course, if the spouse enters on a nonimmigrant visa, such as an H-1B or L visa, which allows for dual intent, then the spouse’s intent to apply for a permanent immigrant benefit is not an issue. The number of people on H or L visas who become spouses of US citizens is relatively few, though, and many people are unable to apply for a tourist visa to even visit the US temporarily to meet their spouses while the I-130 petition remains pending. People who are nationals of Visa Waiver countries can visit the US for 90 days without applying for a visa, but they too may risk being questioned about their intent at the port of entry.

The filing of an I-130 petition for consular processing, when the spouse is based overseas, is thus the legally appropriate method to apply. The USCIS should not discourage this process by inordinately delaying the approval of an I-130 petition, and thus encourage people to circumvent the process by coming on tourist visas, or other nonimmigrant visas that do not allow for dual intent, with the intent to apply for adjustment of status. Moreover, it is worth noting that with Section 3 of the  Defense of Marriage Act being declared unconstitutional in United States v. Windsor, same sex spouses of US citizen can also for a green card through an I-130 petition. These spouses were unjustly deprived of a benefit for years on end as a result of an unconstitutional statute, and they should not be required to wait that much longer for the I-130 petition to get approved.

In light of long delays in the processing of the I-130 petition, it may be worth considering filing an I-129F petition for a K-3 visa. Congress specifically designed the K-3 visa to allow spouses of US citizens to enter the US if the I-130 processing got delayed. In recent times, K-3 petitions have not been filed due to the fact that I-130 petitions were processed in a few months. It now makes sense to revive the K-3, and to file for it after the I-130 petition has been filed. Both the Vermont and California Service Centers indicate that K-3 processing is taking 5 months. If that time frame is accurate, then the beneficiary of a pending I-130 petition, which is expected to take a year or longer under current processing times, can at least unite with the US citizen spouse through a K-3 visa. Once the spouse is here on a K-3 visa, it is permissible under law to file an I-485 application for adjustment of status. While this is not a perfect solution as it involves two steps, the spouse can at least expect to unite with the US citizen spouse somewhat sooner.

(This article is for informational purposes only and does not constitute legal advice)

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes be a Good Thing

The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as manyAAOdecisionsstate, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisionsfrom 2012; 2010; February, March, Apriland June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from Januaryand Marchof 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11)applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

New Portal Welcomes Entrepreneurs to the USA: But Will this Change the Culture of “No” at USCIS

Consistent with its earlier policy of welcoming entrepreneurs, the USCIS launched a new portal called Entrepreneur Pathways providing resources on how foreign entrepreneurs can use existing visas to launch their innovative startups in the US.  The portal is quite good, and it is hoped that USCIS officials retreat from their culture of “No” and process cases in the spirit of this new guidance.

At the outset, we clearly need Congress to create a Startup Visa rather than entrepreneurs using existing visas that were not designed for them, but those legislative proposals are still floundering. One version of a Startup Visa would require the entrepreneur to invest a minimum of $100,000 in order to get a two year green card. To keep the green card past two years, the founder would need to create five jobs and either raises at least $500,000 in additional funding or $500,000 in revenues. Even if Congress enacted a Startup Visa, these requirements could be rather burdensome for a nimble entrepreneur who could still launch a successful business without an initial $100,000 investment.

There are enough opportunities under our existing immigration law for entrepreneurs who may not need to make such a high investment in their startup. The existing visa system if interpreted broadly, together with the Startup Visa, would provide a welcoming environment for job creating foreign entrepreneurs in the US. The new portal shows the way on how entrepreneurs can use the existing immigration system to set up ventures in the US and possibly even flourish. While these ideas have been used by creative immigration attorneys on behalf of their clients from time immemorial, it is good to know that the portal validates them, largely based on the input that the USCIS received from real entrepreneurs through its Entrepreneur in Residence initiative. Most important, the EIR has endeavored to train USCIS officers about the unique aspects of a startup business. It is hoped that USCIS officers, after receiving such training, will change their mindset and be willing to distinguishing a legitimate startup from a fraudulent artifice.

For instance, startups may not yet be generating a revenue stream as they are developing new technologies that may lead to products and services later on. Many have received financing through venture capital, angel investors or through “Series A and B” rounds of shares. Startups may also operate in more informal spaces, such as the residences of the founders (with regular meetings at Starbucks) instead of a commercial premise. Some are also operating in “stealth mode” so as not to attract the attention of competitors and may not display the usual bells and whistles such as a website or other marketing material. Startups may also not have payroll records since founders may be compensated in stock options. Still, such startups are legitimate companies that should be able to support H-1B, L, O or other visa statuses.

The portal suggests that if a foreign student has a “Facebook” type of idea, he or she can start a business while in F-1 Optional Practical Training provided the business is directly related to the student’s major area of study. After completing F-1 OPT, this student can potentially switch to H-1B visa status (provided there are H-1B visa numbers at that time). Regarding the startup owner being able to sponsor himself or herself on an H-1B, the USCIS is surprisingly receptive, but still obsessed with the Neufeld Memo that there must be a valid employer-employee relationship and that the entity has a right to control the employment. Still, the USCIS suggests that a startup may be able to demonstrate this if the ownership and control of the company are different. This can be shown through a board of directors, preferred shareholders, investors, or other factors that the organization has the right to control the terms and conditions of the beneficiary’s employment (such as the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment). Some of the suggested evidence could include a term sheet, capitalization table, stock purchase agreement, investor rights agreement, voting agreement or organization documents and operating agreements.

Even with intra-company transferee L-1 visas for executives and managers, the portal recognizes that an entrepreneur may establish a “new office” L-1 (which could be a subsidiary, parent, affiliate or branch of the foreign company) with a validity period of one year, which allows a ramp up period where the entrepreneur can be involved in “hands on” tasks instead of function as an executive or manager. After the one year ramp up, the organization must be able to support the entrepreneur in a true managerial or executive capacity. The portal also refreshingly suggests that entrepreneurs who can demonstrate extraordinary ability in their field of endeavor can take advantage of the O-1 visa, and can set up a company who can sponsor them. Interestingly, there is no mention of the control test for the O-1 visa like for the H-1B visa. Finally, the portal also provides guidance for nationals of certain countries that have a treaty with the US, which facilitates the E-2 investor visa.

All this looks good on paper (rather online!), and it remains to be seen whether USCIS officers will faithfully interpret this guidance. Even if an H-1B founder of a company successfully establishes that the entity can control her employment through a board of directors or through preferred shareholders, the USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Also, positions in innovative startups may not necessarily fit under the occupations listed in the Department of Labor’s Occupational Outlook Handbook but may yet require at least a bachelor’s degree. It is hoped that USCIS examiners are trained to be receptive to other evidence to demonstrate that the position requires a bachelor’s degree. Furthermore, an MBA degree should be considered a specialized degree in itself since many MBA programs at top business schools focus on entrepreneurship and other fields, such as technology or web analytics, which equip one to be a successful entrepreneur.

In the end, the success of the Entrepreneur in Residence initiative largely depends on whether the USCIS has been able to alter the mindset of its officials who are in the habit of saying “No.”

“CULTURALLY UNIQUE” DEFINITION UNDER P-3 VISA CAN INCLUDE HYBRID OR FUSION ART FORMS OF MORE THAN ONE CULTURE OR REGION

U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012) addressing the term “culturally unique” and its significance in adjudicating P-3 visa petitions for performing artists and entertainers. This decision is significant in light of a growing trend where the culturally unique artistic tradition of one country or ethnicity is influenced by artistic traditions from elsewhere. For instance, musicians trained in Indian classical music have incorporated Western jazz and rock influences. The most famous example of such a fusion band was Shakti, which incorporated South Indian Carnatic music and jazz elements, featuring guitarist John McLaughlin, South Indian violinist L. Shankar and Zakir Hussain on tabla and T.H Vikku Vinayakram on the ghatam (an earthen pot). Examples of hybrid groups abound all over the world, and a contemporary example is Afro Celt Sound Systems, which is a hybrid of African and Celt music. Afrobeat is another classic example of a fusion genre that originally fused American funk music with African rhythms, and its main exponent has been Fela Kuti. Until this decision, there was a risk that such groups would not be considered to be “culturally unique” as they did not incorporate the music which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

The Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists’ visa for failing to establish that the group’s performance was “culturally unique” as required for this visa classification. USCIS noted that “due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review.”

The AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. USCIS said that the regulatory definition of “culturally unique” requires the agency to make a case-by-case factual determination. The decision clarifies that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The petitioner had sought classification of the beneficiaries as P-3 entertainers for a period of approximately six weeks. The beneficiaries were musicians in the group known as Orquesta Kef. The ensemble of seven musicians from Argentina had been performing together for between four and eight years, according to a letter dated September 2009, and performed music that blended klezmer (Jewish music of Eastern Europe) with Latin and South American influences. The group’s biography stated that the band had developed “its own and unique musical style” based on “the millenary force of tradition and the powerful emotion of the Jewish culture, mixed in with Latin American sounds.” The petitioner also provided a letter from an associate professor at the University of Southern California’s Annenberg School for Communication supporting the band’s claim to cultural uniqueness, among other submitted expert opinion letters and published materials.

The decision noted that Congress did not define the term “culturally unique” and the former Immigration and Naturalization Service (now USCIS) defined it in regulations as “a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.” See 8 C.F.R. § 214.2(p)(3)(2012).

In her decision denying the petition, the director stated that a hybrid or fusion style of music “cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”

The AAO said that the director’s reasoning was not supported by the record, noting:

[T]he fact that the regulatory definition allows its application to an unspecified “group of persons” makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of “culture” is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion. Of course, the petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture. To determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record.

The AAO pointed out that the director’s decision failed to note that the beneficiary group was a klezmer band and “seemed to struggle to identify the nature of the group’s musical performance, focusing instead on the group’s musical influences. Here, the evidence establishes that the beneficiaries’ music is, first and foremost, Jewish klezmer music that has been uniquely fused with traditional Argentine musical styles.” The AAO said it found particularly persuasive an expert opinion explaining that klezmer music, “while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures.” The AAO also noted the fact that the beneficiaries were South Americans born to Eastern European immigrants and therefore were influenced by both cultures to create something new and unique to their experience. All the opinion letters submitted also recognized the existence of a distinct Jewish Argentine culture and identity that was expressed in the beneficiary group’s music. Furthermore, the AAO noted, the published articles submitted recognized a musical movement in Argentina that fuses Argentine styles with influences from Jewish music and other Eastern European styles, and the articles and opinion letters placed the beneficiary group at the forefront of this trend.

Accordingly, the AAO found that the petitioner had established by a preponderance of the evidence that the modern South American klezmer music performed by the beneficiary group was representative of the Jewish culture of the beneficiaries’ home country of Argentina and that the group’s musical performance therefore fell within the regulatory definition of “culturally unique.” The AAO added that the petitioner had submitted an itinerary showing that the beneficiary group would be performing at Jewish cultural centers and temples during its U.S. tour, which provided further evidence that the performances would be culturally unique events.

Matter of Skirball Cultural Center remarkably recognizes the significance of crossover cultural trends and that “the idea of culture is not static,” which is increasing in our globalized world, where people have access to music from anywhere on an iPhone and have learned to enjoy fusion and hybrid forms. The favorable impact of this decision can extend to other art forms such as dance and drama too. Thanks to this decision, audiences in America need not fear of being deprived of hearing their favorite fusion bands live!