Posts

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.

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

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 This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B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

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

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

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

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

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