Tag Archive for: Velasquez-Garcia v. Holder

David Isaacson

Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and other Recent Court of Appeals Rulings

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Earlier this year, in Zombie Precedents, the Sequel, I discussed how the Second Circuit’s April 2015 decision in Lugo v. Holder exemplified a better way of dealing with precedent decisions that had been overturned by a court.  As I noted in that blog post, the Second Circuit remanded Lugoto the BIA not only to deal with the issue raised by the overturned precedent, but also to deal with a related question regarding the retroactivity of the BIA’s decision in Matter of Robles-Urrea.  In that regard, the Second Circuit’s decision in Lugoforms part of an interesting trend regarding limits on the retroactivity of BIA decisions, most recently exemplified by the Tenth Circuit’s decision last week in De Niz Robles v. Lynch.

The issue in De Niz Robles concerned the interaction of INA §245(i), 8 U.S.C. §1255(i), with INA §212(a)(9)(C)(i)(I), 8 U.S.C. §1182(a)(9)(C)(i)(I).  The former provision, as has been discussed previously on this blog in a September 2010 post by Cyrus D. Mehta, allows adjustment of status by certain applicants who have entered without inspection, or are otherwise disqualified from adjustment under INA §245(a) and (c), if they are “grandfathered” as the principal or derivative beneficiaries of appropriate visa petitions or labor certification applications filed prior to April 30, 2001.  The latter provision declares inadmissible those who have been unlawfully present in the United States for a year or more and have subsequently re-entered without inspection, subject to a potential waiver which must be sought 10 years after one’s last departure from the United States.  These provisions, as the 10th Circuit noted in De Niz Robles, are in some tension with one another.

Approximately ten years ago, the Tenth Circuit held in Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d 1294 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237 (10th Cir. 2006), that §245(i) prevailed over §212(a)(9)(C)(i)(I), such that Mr. Padilla-Caldera could adjust status under §245(i) despite having been unlawfully present for over a year, left the United States in order to seek an immigrant visa, and ultimately re-entered without inspection.  The BIA then held differently in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), finding that inadmissibility under §212(a)(9)(C)(i)(I) prevented §245(i) adjustment.  The Tenth Circuit, in Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140 (10th Cir. 2011), deferred to this BIA decision pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and National Cable & Telecommunications Ass’n v. Brand X Internet Services (“Brand X”), 545 U.S. 967 (2005), finding it to be a reasonable interpretation of ambiguous statutory language.

In the meantime, however, between the time of Padilla-Caldera I and Matter of Briones, Mr. De Niz Robles had applied for adjustment of status under §245(i) based on Padilla-Caldera I.  His application took so long to process that it was adjudicated after Padilla-Caldera II, and the BIA, applying that decision and Matter of Briones, denied Mr. De Niz Robles’s application.  He argued that this was an inappropriately retroactive application of Matter of Briones to an application filed before that decision was issued.  The Tenth Circuit agreed.

As the Tenth Circuit pointed out, when Mr. De Niz Robles filed his application in 2007, he had the option of instead leaving the United States, and serving out the ten-year period before he could apply for a waiver of his inadmissibility under INA §212(a)(9)(C)(i)(I).  In reliance on the case law as it existed at that time, specifically Padilla-Caldera I, he chose to apply for adjustment of status instead.  The BIA, by applying Matter of Briones to Mr. De Niz Robles six years later in 2013, and defending that position on appeal in 2015, had put Mr. De Niz Robles in the position of having lost years of time that he could have spent towards the ten-year waiver qualification period—by now, he would have served out eight of the required ten years and been only two years away from being able to apply for a waiver, had he left.  This, the Tenth Circuit said, was retroactive application of the Briones decision, and was not permissible.

When the BIA or a similar agency tribunal acts to overturn an existing decision via Brand X, the Tenth Circuit decided, it should be treated for retroactivity purposes similarly to an agency that declares its new policy through rulemaking.  Although retroactive rulemaking is sometimes permitted, it is disfavored.  Applying the factors that govern such a retroactive agency rulemaking, the Tenth Circuit determined that the reasonableness of Mr. De Niz Robles’s reliance on Padilla-Caldera I, and the dire consequences to him if the BIA’s ruling was allowed to stand, weighed particularly strongly in favor of finding that Briones should not be applied to him.

In this way, De Niz Robleswent beyond what Lugohad done, flatly finding that it would be inappropriate to give retroactive effect to the BIA’s ruling rather than merely remanding for further explanation of the point.  This is partly because the context made clearer in De Niz Roblesthat there had in fact been a retroactive ruling.  The Second Circuit in Lugo had asked the BIA to address, among other factors, “whether its holding in Matter of Robles-Urreawas a departure from prior law.”  Lugo, slip op. at 5.  In De Niz Robles, the Tenth Circuit did not need to defer to the BIA on the analogous question, but was able to resolve it on its own: it was quite clear that Briones was a departure from prior law, at least within the jurisdiction of the Tenth Circuit, where it was contrary to Padilla-Caldera I.

The Court of Appeals for the Ninth Circuit followed a similar path to the Tenth in Acosta-Olivarria v. Lynch, decided less than two months before De Niz Robles, on August 26, 2015.  Like the Tenth Circuit, the Ninth had, prior to Matter of Briones, issued a decision allowing §245(i) adjustment despite inadmissibility under INA §212(a)(9)(C)(i)(I): Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).  Like the Tenth Circuit, after Briones, the Ninth Circuit had overruled its decision, in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), deferring to the BIA under Brand X.  And like Mr. De Niz Robles, Mr. Acosta-Olivarria had applied for adjustment of status after his Circuit case law indicated he could do so, and before the BIA and Circuit told him he could not.  The bottom line was the same in Acosta-Olivarria as in De Niz Robles: the Ninth Circuit held, over one judge’s dissent, that the BIA’s ruling in Briones could not be applied retroactively to Mr. Acosta-Olivarria, and so an immigration judge’s order granting him adjustment of status, which had been set aside by the BIA, was reinstated.

De Niz Robles, Acosta-Olivarriaand Lugoare not the only relatively recent decisions to reject or cast doubt on retroactive application of a BIA ruling.  The Court of Appeals for the Seventh Circuit also did this in its July 2014 decision in Velasquez-Garcia v. Holder, 760 F.3d 571 (7th Cir. 2014).  There, the Seventh Circuit rejected retroactive application of the BIA’s decision in Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), interpreting the “sought to acquire” language of the Child Status Protection Act (CSPA).
As discussed in more detail by a numberof postson this blogand articleson our firm’s website, INA §203(h)(1)(A), added by section 3 of the CSPA, requires that a child have “sought to acquire” lawful permanent residence within one year of visa availability in order to take advantage of protections under the CSPA that fix the child’s age for purposes of derivative visa eligibility  at a point younger than that child’s actual biological age.  The BIA held in Matter of O. Vasquez that absent “extraordinary circumstances”, this provision could only be satisfied by the actual filing of an application for adjustment of status or of analogous forms and fees used to apply for an immigrant visa from the Department of State.  (USCIS subsequently issued an interim Policy Memorandum elaborating on what it would consider to be extraordinary circumstances.)  Prior to O. Vasquez, however, the BIA had in several non-precedential decisions been more lenient, allowing a broader set of “substantial steps” towards the obtainment of permanent residence to qualify as seeking to acquire for CSPA purposes.  As discussed in a previous post on this blog, for example, the BIA’s October 2010 unpublished decision in Matter of Murillo and other pre-2010 cases allowed such steps as hiring an attorney to meet the seeking-to-acquire requirement.

The Seventh Circuit in Velasquez-Garciaheld that it would not be appropriate to apply the stricter O. Vasquez standard to those who may have complied with the prior, laxer standard of seeking to acquire before O. Vasquez was issued.  As the Court of Appeals explained: “In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the [CSPA] did not require him to file an application within one year.”  Given the immense burden that applying the new rule retroactively would have imposed on Velasquez, and the tension between the effect of retroactive application and the remedial purpose of the CSPA to ameliorate the effect of administrative delays – among which the Seventh Circuit included the eight-year delay by the BIA before promulgating precedential guidance regarding “sought to acquire” in O. Vasquez – the Seventh Circuit held that Mr. Velasquez-Garcia should be permitted to proceed under the standard in effect prior to O. Vasquez.

These sorts of retroactivity issues can be expected to continue to arise in the future as the BIA aggressively uses its policymaking interpretative authority under Chevron and Brand X, at least when that authority is used to reinterpret a standard unfavorably to immigrants.  (Changes in a rule which are more favorable to those affected by that rule are not the sort which raise retroactivity concerns under the case law, since allowing someone to apply for a benefit from which he or she previously was precluded does not raise the same unfairness concerns as a change in the other direction.)  Under such circumstances, attorneys and clients should be alert for the possibility that the less-favorable BIA precedent may not apply retroactively, particularly to those who could potentially have relied on the prior state of the law.  The issue of retroactivity is often a complicated one, but it is worth exploring in appropriate cases.

Cyrus Mehta

TO AMEND OR NOT TO AMEND: USCIS ISSUES FINAL GUIDANCE ON MATTER OF SIMEIO SOLUTIONS

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U.S. Citizenship and Immigration Services (USCIS) issued final guidance on July 21, 2015, instructing when an employer should  file an amended or new H-1B petition following Matter of Simeio Solutions, LLC (Simeio). In Simeio, a precedent decision issued on April 9, 2015, the Administrative Appeals Office concluded that changes in the H-1B beneficiary’s places of employment, resulting in the obtaining of a new Labor Condition Application (LCA), constituted a material change to the terms and conditions of employment as specified in the original petition, thus necessitating the filing of an amended petition.

What is significant about the final guidance is that it extended the deadline to file an amended H-1B petition to January 15, 2016 from the previously suggested deadline of August 15, 2015. It also sends a mixed signal about whether USCIS will take punitive action regarding moves prior to Simeio that were not followed by the filing of an amended H-1B petition.

USCIS applies Simeio in its final guidance, by confirming that a petitioner must file an amended or new H-1B petition if the H-1B employee is changing his or her place of employment to a geographical area requiring a corresponding LCA to be certified to USCIS, even if a new LCA is already certified by the U.S. Department of Labor and posted at the new work location.  Prior to Simeio, employers relied on informal USCIS guidance indicating that so long as a new LCA was obtained prior to placing an H-1B worker at a new worksite, an amended H-1B petition was not required. See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003). The AAO explicitly stated in Simeio, footnote 7, that the Hernandez guidance has been superseded. Once a petitioner properly files the amended or new H-1B petition, the H-1B employee can immediately begin to work at the new place of employment, provided the requirements of section 214(n) of the INA are otherwise satisfied. The petitioner does not have to wait for a final decision on the amended or new petition for the H-1B employee to start work at the new place of employment.

The final guidance also notes, as the draft guidance did, regarding when a petitioner does not need to file an amended or new H-1B petition. If a petitioner’s H-1B employee is moving to a new job location within the same area of intended employment, for example, a new LCA is not generally required. Therefore, provided there are no changes in the terms and conditions of employment that may affect eligibility for H-1B classification, the petitioner does not need to file an amended or new H-1B petition. The petitioner must still post the original LCA in the new work location within the same area of intended employment.

The language in the USCIS guidance is similar, whether by design or by coincidence,  to what I had suggested in prior blogs entitled When An Amended Petition Is Not Required Even After Matter Of Simeio Solutionsand AAO Firmly Tethers H-1B Workers To An LCA Like Dog Is To A Leash, and this is encouraging since the USCIS can be receptive to a lawyer’s blog relating to important immigration policy. Here is the example that I provided regarding when a new move would not trigger a new LCA and thus obviate the filing of an H-1B amendment:

So a move to a new job location within New York City would not trigger a new LCA, although the previously obtained LCA would need to be posted at the new work location. This could happen if an entire office moved from one location to another within NYC, or even if the H-1B worker moved from one client site to another within NYC.

The final guidance similarly states:

For example, an H-1B employee presently authorized to work at a location within the New York City metropolitan statistical area (NYC) may not trigger the needs for a new LCA if merely transferred to a new worksite in NYC, but the petitioner would still need to post the previously obtained LCA at the new work location. See 20 CFR 655.734. This is required regardless of whether an entire office moved from one location to another within NYC, or just the one H-1B employee.

Similarly, with respect to short-term placements under certain circumstances and as suggested in my prior blog, a petitioner may place an H-1B employee at a new worksite for up to 30 days, and in some cases 60 days (where the employee is still based at the “home” worksite) without obtaining a new LCA or having to file an amended or new H-1B petition.

Also, if an H-1B employee is only going to a non-worksite location and there are no material changes in the authorized employment, the petitioner does not need to file an amended or new H-1B petition. A location is considered “non-worksite” if: (1) the H-1B employee is going to a location to participate in employee developmental activity, such as a management conference or staff seminar; (2) the H-1B employee spends little time at any one location; or (3) the job is “peripatetic in nature,” such as in a situation where the employee’s job is primarily at one location but he or she occasionally travels for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding 5 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations.)”

Although in its prior draft guidance, USCIS said that Simeio would apply retroactively, the final guidance is more equivocal and sends a mixed signal. On the one hand, the final guidance states that the USCIS would “generally” not take adverse actions against employers that fail to file amended petitions based on moves that may have triggered a new LCA prior to April 9, 2015. On the other hand, the USCIS gives employers a “safe harbor period” in which they may choose to file amended H-1B petitions by January 15, 2016. With respect to moves that have taken place after April 9, 2015 but prior to August 19, 2015, amended H-1B petitions must be filed by the new deadline of January 15, 2016. Regarding any moves after August 19, 2015, the employer must file an amended or new H-1B petition before the H-1B employee starts working at the new place of employment not covered by an existing approved H-1B petition, and not subject to any of the above discussed exceptions to filing a new LCA.

While the USCIS has indicated that it will not generally take adverse action against employers for moves that did not result in the filing of an amended H-1B petition prior to April 9, 2015, employers should file  amended petition out of an abundance of caution. If an employer chooses not to file, and take advantage of the safe harbor period until January 15, 2016 by filing before that deadline, it will be doing so at its own peril, and any adverse action taken, may result in a finding that the H-1B worker did not maintain status. The Department of Labor may also factor the failure to file an amended H-1B petition when penalizing an employer for violations under the LCA regulations at 20 CFR 655. Moreover, neither the Department of State or Customs and Border Protection may be bound by the USCIS final guidance regarding not taking adverse action against an employer.

If the adverse action is taken against the employer based on a retroactive application of Simeio, can the employer challenge it? Generally, the retroactive application of a rule created through agency adjudication is disfavored. In Velasquez-Garcia v. Holder,  760 F.3d 571 (7th Cir. 2014), the Seventh Circuit considered whether the “sought to acquire” standard for a child’s age to get protected under the Child Status Protection Act by the BIA in Matter of O. Vazquez could be applied retroactively. The Seventh Circuit in Velasquez-Garcia applied the following factors: (1) Whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.

Under the criteria established in Velasquez-Garcia, it can certainly be said that Simeio is a case of first impression under the first consideration and that the retroactive application of Simeio would impose a great burden on an employer under the fourth consideration. What is less clear is whether Simeio represents an abrupt departure from well established past practice under the second consideration and whether there was a former rule that employers relied on. The Efren Hernandez letter of October 23, 2003, was hardly a rule as it did not constitute an agency decision or even a form instruction, and despite the existence of the Hernandez letter, there were many instances when DOS recommended revocation of an H-1B petition where the job location had changed, and the USCIS often went ahead and revoked such petitions. There were also other instances when the the USCIS after a site visit revoked H-1B petitions when the H-1B worker was no longer at the original location.  The Hernandez letter is thus a relatively thin reed to rest on. Under the fifth consideration, the government will probablyhave success in arguing that there is a general interest in uniformly applying immigration law, and unlike the CSPA that has a remedial purpose in protecting the age of a child, filing amended H-1B petitions ensures that employers have properly accounted for changes in employment not previously disclosed in the original H-1B petition.  In sum, an employer may not have a clear cut basis in challenging the retroactive application of Simeio, and this is all the more reason for employers to take advantage of the safe harbor and file amended H-1B petitions for moves made even prior to  Simeio.  Furthermore, although publishing a rule through notice and comment under the Administrative Procedures Act would have been more appropriate, the government may be able to successfully argue that the promulgation of a rule was not necessary as the final guidance was a clarification on how to enforce Simeio.

The final guidance is not all doom and gloom, and we can end on a more upbeat note. Although the burdens will be high for employers in filing amendmentsand Simeo was unnecessary, the final guidance makes clear that an H-1B employee can start working at the new location after the H-1B amendment has been filed. If an amendment is still pending, the final guidance makes reference to the Memorandum from Michael Cronin (June 19, 2001) that allows H-1B employees who have ported to new employers and have only receipt notices, to be admitted into the US based on a valid H-1B visa stamp and that the validity date of the prior H-1B approval. Thus, an H-1B worker who is the subject of an H-1B amended petition can similarly be admitted into the United States on the basis of the receipt notice, and the prior H-1B validity date, provided the individual also has an H-B visa stamp. Also, just as serial H-1B porting is allowed, so can H-1B amendments be filed serially if job locations change before the approval of the prior amendment, although the denial of any H-1B petition will result in the denial of all successive requests to amend. This would only happen if the H-1B beneficiary’s status expired while successive amendments were pending. If an amendment is denied, but the original petition is still valid, the H-1B employee may return to the place of employment covered by the original petitionprovided that employee is able to maintain valid status at the original place of employment.

(The information contained in this blog is of a generalized nature and doe snot constitute legal advice).