Cyrus Mehta

Should Trump’s Lawyers Implementing Policies That Hurt Immigrants be Concerned About Violating Their Ethical Obligations? 

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By Cyrus D. Mehta and Kaitlyn Box*

On January 23, 2025, Acting Secretary of the Department of Homeland Security, Benjamine C. Huffman issued a memorandum entitled “Guidance Regarding How to Exercise Enforcement Discretion”, which directs ICE to take the following action: 

(1) For any alien DHS is aware of who is amenable to expedited removal but to whom expedited removal has not been applied:

     a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether to apply expedited removal. This may include steps to terminate any ongoing removal proceeding and/or any active parole status.

(2) For any alien DHS is aware of who does not meet the conditions described in (1) but has been granted parole under a policy that may be paused, modified, or terminated immediately under the January 20 memorandum:

a. Take all steps necessary to review the alien’s case and consider, in exercising your enforcement discretion, whether any such alien should be placed in removal proceedings; and

b. Review the alien’s parole status to determine, in exercising your enforcement discretion, whether parole remains appropriate in light of any changed legal or factual circumstances.

On January 6, 2023, the Biden Administration instituted a humanitarian parole program allowing certain nationals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to apply for entry to  the U.S. for a temporary stay of up to two years. All individuals admitted through the CHNV program must have a U.S.-based supporter, pass security vetting, and meet other criteria. Parole is not an immigration status. During the two-year parole period, individuals may seek humanitarian relief or other immigration benefits, if they are eligible, and work during that time. See our blog for further details on the CHNV program. 

The Biden Administration committed to accepting 30,000 beneficiaries a month from across the four countries. Within the first six months of launching the program, over 35,000 Cubans, 50,000 Haitians, 21,500 Nicaraguans, and 48,500 Venezuelans came to the U.S. through the program. As of August 2024, almost 530,000 people have been granted parole through the CHNV program, according to U.S. Customs and Border Protection (CBP). 

On January 20, 2025, President Trump issued an executive order terminating the CHNV program. The Huffman memorandum now allows  recipients of the CHNV program  who had been paroled into the United States to be expeditiously removed. It also includes nationals of Ukraine, Afghanistan  and Colombia who have been paroled under separate programs.  These individuals followed the rules established under the Biden administration in order to be paroled into the US in a safe, orderly and legitimate manner. They have now been blindsided and betrayed by the Trump administration. 

The devastating impact that this policy stands to have calls into question the conduct of the Trump administration lawyers involved in its development. We credit our colleague Michele Carney in providing input on ethical issues on the part of government lawyers in the Trump administration. ABA Model Rule 8.4 (c)-(d), (g) prohibits lawyers from engaging in conduct that involves “dishonesty, fraud, deceit or misrepresentation”, that is “prejudicial to the administration of justice”, or that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law”. By directing DHS officials to expeditiously remove some parolees, the memorandum could run afoul of ABA Model Rule 8.4(d) by depriving these individuals of due process. Termination of parole for some individuals could also be viewed as discrimination on the basis of national origin in violation of ABA Model Rule 8.4(g). If DHS’ implementation of the program results in a misrepresentation, a violation of ABA Model Rule 8.4(c) could also occur. The memorandum in itself may not be indicative of unethical conduct, but its implementation carries significant risk of violation of ethical rules by government lawyers in the Trump administration. 

In a previous blog, we discussed Trump’s executive order restricting birthright citizenship to only a child born in the US has one parent who is either a US citizen or a permanent resident. The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” In United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

 On January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction blocking the implementation of the executive order. During the hearing, Judge Coughenhour called the order “blatantly unconstitutional”, stating “There are other times in world history where we look back and people of goodwill can say, ‘Where were the judges? Where were the lawyers?’”. Judge Coughenour’s comments call into question ABA Model Rule 3.1, which states that a lawyer “shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law”. The  Trump administration’s restriction of birthright citizenship  could be viewed as a violation of Rule 3.1 if found to be unconstitutional. Rule 3.1 allows for good faith arguments for the “extension, modification, or reversal of existing law”, however, and it is likely that Trump administration lawyers would argue that the policy laid out in the new executive order falls within this exception. 

Experts will disagree and take the position that Trump’s lawyers may be committing ethical violations in supporting policies that may be cruel and harmful to immigrants. Supporting blatantly unconstitutional actions may be cause for concern according to our colleague, Craig Dobson. Independent of the specific rules governing lawyer conduct, Trump’s lawyers should ensure that their actions align with the ideals of the profession, which prioritize fairness, justice, and upholding the rights of individuals. While Trump holds the office of President of the United States, he is not a lawyer, and is not beholden to the same ethical standards. Lawyers, by contrast, are called to uphold the laws of the United States and avoid perpetuating harm and injustice. 

 *Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Inauguration Eve: The Havoc That Trump May Wreak on Immigration

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President-elect Trump’s inauguration on January 20, 2025, is expected to usher in immigration-related actions of various kinds. What will actually happen and when, in the short term and over the long term? Only time will tell. Discussion and preparation on both sides have been wide-ranging. According to reports, highlights include:

Deportations. The incoming “border czar,” Tom Homan, has said Chicago could be an early target for deportation operations, although later he appeared to walk that back following leaks of the details. Noting that a goal of the Trump administration is to create “shock and awe,” he also said “there’s gonna be a big raid all across the country. Chicago is just one of many places.” Sources said U.S. Immigration and Customs Enforcement has been putting agents in place and has readied plans to conduct operations in major cities starting shortly after inauguration. On January 18, Mr. Homan said that the incoming administration “hasn’t made a decision yet” about whether Chicago would be targeted first and is “looking at this leak and will make decision based on this leak. It’s unfortunate because anyone leaking law enforcement operations puts officers at greater risk.” President-elect Trump said earlier this weekend that mass deportations would “begin very early, very quickly,” adding that “I can’t say which cities because things are evolving. And I don’t think we want to say what city. You’ll see it firsthand.” In terms of priority, he said, “We have to get the criminals out of our country. And I think you would agree with that. I don’t know how anyone could not agree.” Sources have said that “sanctuary” jurisdictions would be targeted. In addition to Chicago, New York City, San Francisco, Miami, and Los Angeles have been mentioned.

According to CNN, in a briefing with senior Republican lawmakers on Sunday afternoon (January 19), Stephen Miller, chosen by President-elect Trump to be his deputy chief of staff for policy, confirmed “elements of a long-planned, sweeping suite of immigration actions, including Trump invoking a national emergency at the border as a way to unlock funding from the Defense Department for the administration’s use.” CNN also reported that President-elect Trump will “direct his administration to move to reinstate his first-term Migrant Protection Protocol policy, which is more commonly referred to as ‘Remain in Mexico.’ Trump will act to reinstate a series of his first-term immigration policy directives and actions that President Joe Biden rescinded on his own first day in office in 2021.”

It’s unclear when or how big deportation operations will be or where those slated for deportation will be taken. Also unclear is how much the operations will cost and how much legal pushback will occur.

We have one observation: What is there to commemorate a presidential inauguration with mass deportations that separate parents from children? It is as base and vile as the rabble in ancient Rome who cheered the gladiatorial contest. 

Wild card: state/legal actions. California and other states have not been passively awaiting the inauguration. California’s Governor Gavin Newsom and state Democrats, for example, reached agreement on a $50 million deal to defend against federal anti-immigrant efforts and detentions, and fund grants for nonprofits to help with legal issues and immigrant support. Related bills would need to pass the California Assembly. “This funding agreement cements California’s readiness to serve as a bulwark against Trump’s extremist agenda,” said Scott Wiener, a state senator and budget chair from San Francisco. United Farm Workers officials warned of “rogue” agents in California who appear to be already engaging in sweeps and arrests: “This is part of a new political climate of people in some of these agencies feeling emboldened.” Reportedly, in Trump’s first term, California spent at least $41 million suing the Trump administration. Some commentators predict a backlash against California from the Trump side on various fronts.

The New York City Comptroller’s Office released a report, Protecting New York City. Comptroller Brad Lander said that the possible “mass deportation of hundreds of thousands of New Yorkers” poses a “grave threat.” Comptroller Lander also led a roundtable of civic, business, labor, religious, and community leaders “to discuss how to best prepare to protect New York City and New Yorkers who may be targeted by the policies of the incoming Trump Administration.” 

Organizations like the American Civil Liberties Union (ACLU) also have been working on legal strategies to fight mass deportations and protect immigrants. For example, the ACLU said it has plans to litigate against new mass detention centers and any erosions of due process for those facing deportation in the United States.

H-1B visa feud. An intramural argument is going on within Trump circles and the Make America Great Again base related to H-1B nonimmigrant visas. Elon Musk—a multi-billionaire CEO of Tesla and SpaceX who has been named “richest man in the world” and helped bankroll the Trump campaign—favors the H-1B visa as a way to bring in global talent. According to one report, in 2024, “Tesla won 742 new H-1B visas through the lottery, more than double the 328 it secured in 2023. In addition, Tesla had another 1,025 existing H-1B visas extended in 2024.” Mr. Musk vowed to “go to war” with those who might try to block the visa program, noting that “The reason I’m in America along with so many critical people who built SpaceX, Tesla and hundreds of other companies that made America strong is because of H-1B.” On the anti-H-1B side, Steve Bannon, who has said the visas are a way for companies to undercut U.S. workers, called Mr. Musk a “toddler” and threatened him and other like-minded H-1B supporters that Mr. Bannon and allies would “rip your face off.” He also said Mr. Musk is trying to establish “techno-feudalism on a global scale.” President-elect Trump has recently seemed to lean in favor of the Musk side of the controversy, but it remains to be seen how this issue will play out.

International students. President-elect Trump has commented on international students: “ If you graduate or you get a doctorate degree from a college, you should be able to stay in this country.”

Effects on other industries. Effects of anti-immigrant efforts could also be felt in the construction, medical, and hospitality industries, among others. President-elect Trump has commented that he has a lot of employees at his properties on visas.

Travel bans and extreme vetting. Also under discussion have been possible travel bans on certain groups, similar to former President Trump’s Muslim travel ban during his first term, and extreme vetting of visa applicants along with crackdowns on would-be immigrants trying to cross into the United States from Mexico.

Temporary Protected Status (TPS) and humanitarian parole rollbacks. According to discussions, mass designations of TPS are likely to end. The President also has authority to revoke humanitarian parole. Legal challenges are expected if the Trump administration attempts to revoke TPS before it expires for designated countries.

Effects on “Dreamers.” Although the previous Trump administration attempted unsuccessfully to end an earlier version of Deferred Action for Childhood Arrivals (DACA), President-elect Trump said more recently that he “will work with the Democrats on a plan” to protect Dreamers. He said that DACA Dreamers “were brought into this country…many years ago. Some of them are no longer young people. And in many cases, they’ve become successful. They have great jobs. In some cases they have small businesses. Some cases they might have large businesses. And we’re going to have to do something with them.”

It is impossible to overstate the complexity and uncertainty of the immigration situation in the United States today, or to predict outcomes. There are many more considerations and discussions afoot. Stay tuned.

 

Cyrus Mehta

Biden’s USICS Welcomes Entrepreneurs Through the H-1B and O Visas. Will Trump Do the Same?

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By Cyrus D. Mehta and Kaitlyn Box*

On January 8, 2025, USCIS issued updated guidance in its Policy Manual clarifying how entrepreneurs may qualify for O visas. The guidance states that:

“O beneficiaries may not petition for themselves. However, a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file the petition on their behalf.”

USCIS’ guidance on this point was more ambiguous previously, which created concerns that an O petition filed through a beneficiary’s own company would be viewed as tantamount to self-employment. This updated guidance will afford a clear pathway for entrepreneurs to obtain O-1 visas through their own companies. Interestingly, the new guidance appears to apply to all O beneficiaries and not merely those who qualify for O-1 classification. This guidance also does not require such startups to meet conditions such as their ability to control the O-1’s employment by requiring a majority shareholder or a board of directors. USCIS seems to have relied on old administrative decisions that  recognize the separate existence of the corporate entity as separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).

USCIS’ updated O-1 guidance is in line with a provision in the Department of Homeland Security (DHS)’s H-1B modernization final rule (see our commentary), set to take effect on January 17, 2025. In the final rule, DHS clarified that beneficiaries with a controlling ownership interest in the petitioning entity may still be eligible for H-1B status subject to “reasonable conditions”. In a previous blog, we explored the conditions under which an entrepreneur could qualify for H-1B classification. Even under the existing regulations, it was possible for a startup founder or entrepreneur to qualify for H-1B classification if the petitioning company could establish a valid employer-employee relationship under at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors, and the job qualifies as a specialty occupation under one of the four criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). An entrepreneur who was able to meet these requirements through his or her own company would have been eligible for H-1B classification for an initial 3 year period, as well as a subsequent 3-year extension. Although the final rule more clearly states that a beneficiary with a controlling interest in the petitioning organization may nonetheless be eligible for H-1B classification, it limits the validity of the initial H-1B petition and first extension to 18 months each.

It is indeed salutary that the USCIS is thinking of encouraging entrepreneurs to obtain visas through their startups. While it would be ideal if Congress enacted a startup visa, it is at least a good start for USCIS to create pathways within the existing nonimmigrant visa system for entrepreneurs. It is hoped that the new Trump administration continues down the same pathway. Entrepreneurs should be encouraged to come to the US to establish startups that may succeed, and create more jobs and new business models that break the paradigm, which in turn will result in economic growth and create even more jobs. There are many Trump advisors, as well some on the left like Bernie Sanders, who view nonimmigrants on work visas as a threat to US workers and want to curb lawful nonimmigrant pathways to the United States. They are misguided, and it is hoped that they realize the benefits that noncitizen entrepreneurs bring to the US and should not kill the goose that lays the golden eggs!

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

2024 in Perspective from The Insightful Immigration Blog

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By Cyrus D. Mehta & Jessica Paszko*

In 2024, we stayed true to our name, offering insightful commentary on immigration policy, cases, and trends.

We celebrated positive policy changes, such as the removal of countries like China and India from the Exchange Visitors Skills List. At the same time, we highlighted discrepancies, like the CSPA disharmony caused by the DOS’s failure to align with USCIS.

When landmark, administrative-state-dismantling decisions emerged from the Supreme Court in SEC v. Jarkesy and Loper Bright v. Raimondo, we provided in-depth analysis on how these cases might impact immigration law. After the Fifth Circuit Court of Appeals dismissed a lawsuit challenging President Biden’s humanitarian parole program in Texas v. DHS, we urged the Biden administration to take bolder steps, reforming the immigration system through parole initiatives and other executive actions without fear of lawsuits from certain states.

Our insights on immigration trends unfolded against the backdrop of an election year. Early on, with the specter of a potential Trump 2.0 looming on a foggy and uncertain horizon, we posed a series of “what ifs”—such as, what if he follows through on his promise to deploy a deportation army?  Late in the night on the first Tuesday of November, the fog cleared revealing a horizon that was not the familiar, joyful blue of recent years but a striking, loud, and unpredictable red—with an ironic tinge of spray-tan orange. Our “what ifs” quickly turned to “what now” as we prepared for the MAGA storm on the way.

First, we reminded ourselves that a popular mandate does not give a president the right to disregard the law or act outside the bounds of the Constitution and Bill of Rights. Above all, we reaffirmed our commitment to defending immigrants and upholding the foundational principles of the nation. We then turned to our ethical obligations, testing the limits of confidentiality in the face of potential demands by law enforcement carrying out removal orders under the new administration. Additionally, we called on the current administration to act while still in office and urged President Biden to advance the filing dates in the January 2025 visa bulletin as a departing gift to legal immigrants.

Although the Biden administration disappointingly did not advance the filing dates as we had proposed, the idea remains viable. We hope the tech faction within the Trump administration, including DOGE, if they succeed in the H-1B debate, will consider it. However, as long as Stephen Miller oversees immigration policy, our proposal is likely to remain on hold.

On a brighter note, the H-1B modernization rule, set to take effect in a few weeks, could provide critical protection for the H-1B visa program. This comes at a crucial time, with H-1Bs becoming a hot topic following Trump’s appointment of Siriam Krishnan as senior advisor on artificial intelligence. The appointment garnered support from Elon Musk and Vivek Ramaswamy but drew backlash from anti-immigration groups within Trump’s MAGA faction. Musk has championed H-1B visas as pivotal to the success of companies like SpaceX and Tesla.

Trump’s recent remarks in favor of H-1Bs, claiming he’s “a believer in H-1B” and calling it “a great program” he has “used many times,” mark a notable shift from his 2016 campaign stance. Back then, he called the program “very bad for workers” and suggested it should be ended. However, a closer look at the visa programs Trump has used in the past reveals his frequent and longtime use of H-2B and H-2A visas—programs starkly different from H-1Bs. Whether Trump 2.0 will embrace H-1Bs in a way that contrasts with Trump 1.0, or whether his recent comments reveal a persistent misunderstanding of these programs that shaped Trump 1.0, remains to be seen. Indeed, in the face of attacks by influential people in Trump’s circle,  Musk has now somewhat backpedaled his support for the H-1B program.  He states  that the program needs major reform by  raising the minimum salary significantly and adding a yearly fee for maintain the H-1B visa making it materially more expensive to hire from overseas. Such reforms would hurt skilled H-1B workers in green card backlogs who need to constantly renew their H-1B visas every three years if the goal posts get shifted at the time of the next renewal. Hopefully, Biden’s H-1B Modernization rule should help insulate the program from administrative changes by the Trump administration.

Looking ahead, we are committed to navigating the evolving landscape of immigration law, continuing to advocate for justice, and providing our community with the insights necessary to thrive in an ever-changing environment.

As we close out 2024, we reflect on the top 10 most-read blogs of the year although each blog  we wrote is worthy of reading:

  1. Biden’s Last and Best Gift to Legal Immigrants: Advancing the Filing Dates in the 2025 January Visa Bulletin to Current
  2. Ethical Obligation of the Public Official Lawyer Who Falsely Undermines the Criminal Justice System after Trump’s Conviction
  3. Who Are the Undocumented Immigrants That Would Become Targets of Trump’s Deportation Army If He Got Reelected
  4. USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour
  5. Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government
  6. 237(a)(1)(H) Waiver After Denial of Naturalization Application?
  7. Harrow v. Department of Defense and What It Means for Immigration Cases: The 30-Day Time Limit for Filing a Petition for Review Is Still Very Important, but Probably Not Jurisdictional Anymore
  8. How Corner Post, Along with the Demise of Chevron Deference, Can Open Immigration Regulations to Challenges
  9. SEC v. Jarkesy and Loper Bright v. Raimondo: How the Supreme Court’s Dismantling of the Administrative State Impacts Immigration Law
  10. CSPA Disharmony: USCIS Protects Child’s Age Under the Date for Filing While DOS Protects It Under the Final Action Date

 

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

While the H-1B Modernization Rule Will Insulate the H-1B Program from Trump, It Gives More Power to Investigate Alleged Fraud Which Trump Will Readily Use to Harass Employers and Workers

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By Cyrus D. Mehta

The Department of Homeland Security (DHS) announced a final rule, effective January 17, 2025, that will “significantly enhance U.S. companies’ ability to fill job vacancies in critical fields, strengthening our economy.” The new rule “modernizes the H-1B program by streamlining the approvals process, increasing [DHS’s] flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.” To implement this rule, a new edition of Form I-129, Petition for a Nonimmigrant Worker, will be required for all petitions beginning January 17, 2025.
Among other things, the final rule:

• Updates the definition and criteria for specialty occupation positions and for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas.
• Extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization for those F-1 students.
• Allows U.S. Citizenship and Immigration Services (USCIS) to process applications more quickly for most individuals who had previously been approved for an H-1B visa.
• Allows H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status subject to “reasonable conditions.”
• Codifies USCIS’ authority to conduct inspections and impose penalties for failure to comply.
• Requires employers to establish that they have a bona fide position in a specialty occupation available for the H-1B worker as of the requested start date.
• Clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition.
• Requires the petitioner to have a legal presence and be subject to legal processes in court in the United States.

One of the highlights in the sweeping H-1B modernization rule is that is codifies the policy of “prior deference” when deciding extension requests of previously approved H-1B petitions. The codification of the deference policy would insulate H-1B workers from policy changes under the Trump administration. Even if the DHS requires its officers to view H-1B extension requests more strictly, under the deference policy, now codified in the regulation, the USCIS would not be able to deny a previously approved H-1B petition unless “there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements, or there is new, material information that adversely impacts the petitioner’s, applicant’s or beneficiary’s eligibility.”

The definition of specialty occupation now requires the attainment of a bachelor’s degree or higher in a “directly related specialty” as a minimum as a minimum for entry into the occupation. The requirement that the bachelor’s degree be in a directly related specialty continues to cause concern as it would preclude occupations that are now related to degrees in a directly related specialty. On the other hand, the concern that commenters had when the H-1B rule was proposed last year have been addressed as “directly related” means that there is a logical connection between the required degree and the duties of the position. The regulation also allows for a range of qualifying degree fields provided that each of those fields is directly related to the duties of the position. It remains to be seen how the requirement that the degree must be in a directly related specialty plays out in emerging AI occupations. However, the need to show only a logical connection between the degree and duties rather than an “exact correspondence” should resolve some of the concerns.

With regards to H-1B workers placed at client sites, if the worker will be “staffed to a third party”, it is the requirement of the third party to establish that the degree is directly related to the position. The USCIS may also require evidence such as contracts, work orders, or similar evidence between all parties in the contractual relationship showing the bona fide nature of the position and the educational requirements to perform the duties. This may incentivize USCIS to issue requests for evidence when IT companies place H-1B workers at client site.

The rule also codifies USCIS’ authority to conduct inspections and impose penalties for failure to comply. It will require employers and workers to comply with unannounced worksite visits, and this aspect of the rule could be taken advantage of by the Trump administration to harass employers and workers, find fraud when there is none, and find reasons to deny pending H-1B petitions or extension requests. The rule gives the fraud directorate broad  authority to enter businesses and homes without a warrant to question, obtain information and use it against the applicant.

DHS said the new rule builds on a previous final rule, announced in January 2024, “which has already dramatically improved the H-1B registration and selection process.” DHS noted that these provisions “mainly amend the regulations governing H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.”

There will be no grace period for accepting prior form editions, DHS said. USCIS will soon publish a preview version of the new Form I-129 edition on uscis.gov.

 

Cyrus Mehta

As “Brain Gain” Replaces “Brain Drain” State Department Removes Many Countries Including China and India from the Two-Year Home Country Requirement

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By Cyrus D. Mehta & Jessica Paszko*

The Department of State (DOS) announced an update of the countries on the Exchange Visitors Skills List, effective December 9, 2024. This update supersedes the most recent update in 2009. DOS has removed China and India, among 34 countries, from the list. This means that J nonimmigrant exchange visitors from those countries who were subject to the two-year foreign residence requirement based on designations in the previously published Skills List no longer need to return to their countries for two years after their studies in the United States if their country is not on the revised list. DOS is not updating the skills on the list.

The notice explains that the Skills List is a list of countries designated as clearly requiring the services of persons engaged in certain fields of specialized knowledge or skills. Criteria for designation include overall economic development (per capita Gross Domestic Product), country size, and overall outbound migration rate, the notice states. In addition to China and India, Saudi Arabia, South Korea, the United Arab Emirates, and others were removed from the list.

Since the Skills List was first issued in the 1970s, the fields designated for the home residency rule have been primarily by requests from foreign governments, and this has contributed to setting visa requirements that are arbitrary and opaque.

The share of workers covered by the list actually rises with a country’s income level, according to a report from the Institute for Progress. For example, countries with similar levels of development can have vastly different representation of fields on that list. Mali imposes the home return requirement on almost all fields, for example, while Gambia doesn’t impose it on any.

The original rationale behind the list—that immigration creates a “brain drain” effect in their countries of origin—has also been complicated by new evidence showing that skilled immigration can increase development in home countries. Brain drain is an outdated concept and the emigration of people has given way to brain gain “because international flows of technology, entrepreneurship, trade, and investment typically flow through networks of people, networks that depend on skilled migration, and because the prospect of emigrating induces more people to invest in acquiring skills.”

The J-1 Research Scholar program is poised for greater impact following the revision to the Skills List. The Exchange Visitor Program, as described in 22 C.F.R. § 62.20(b), aims to foster the exchange of ideas between Americans and foreign nationals while encouraging international collaboration in teaching, lecturing, and research. By facilitating the exchange of professors and research scholars, the program promotes intellectual enrichment, shared research efforts, and stronger connections between academic and research institutions in the United States and abroad. It provides foreign scholars and professors the opportunity to work with American colleagues, engage in cross-cultural activities, and share their experiences and enhanced expertise with their home countries, benefiting both their communities and their fields of study.

22 C.F.R. §§ 62.3(a)(1)–(3) outlines the types of entities eligible to apply for designation as a sponsor of a J-1 program, including companies that meet the requirements set forth in 22 C.F.R. § 62.3(b). Once authorized, these companies can issue DS-2019 forms as specified in 22 C.F.R. § 62.12. A company can also partner with an organization such as the American Immigration Council’s (AIC)  J-1 Research Scholar program, which is also authorized by the State Department to  assist eligible foreign nationals by connecting them with qualifying U.S. host organizations, ensuring that academic enrichment and mutual understanding remain central to the program’s goals. According to AIC’s requirements, which align with 22 C.F.R. § 62.20(d), applicants must hold a Bachelor’s, Master’s, or PhD degree and possess a background as a research scholar, professor, scientist, or with similar expertise, along with the ability to showcase academic credentials, relevant experience, and contributions in their specific field of research interest. Applicants must not be pursuing a tenure-track position nor intending to stay in the United States beyond the duration of the five-year program.

Under 22 C.F.R. § 62.4(f), a foreign national can qualify as a research scholar if their primary purpose is conducting research, observing, or consulting on a research project at research institutions, corporate research facilities, museums, libraries, accredited academic institutions, or similar organizations. While J-1 research scholars may engage in activities similar to H-1B visa holders, such as research and teaching, the J-1 visa is specifically designed for cultural exchange and professional development, not for ordinary employment. However, unlike the regulations for training and internship programs under 22 C.F.R. § 62.22, which explicitly state that they must not displace American workers, this condition is not applied to research scholars. This is because the activities of research scholars are inherently academic and collaborative, focusing on the exchange of knowledge and skills rather than filling roles typically occupied by U.S. workers.

The Exchange Visitor Program for Research Scholars promotes the interchange of knowledge between foreign and American scholars, emphasizing mutual learning and expertise sharing. This ensures the program aligns with its mission of fostering international collaboration and understanding, rather than addressing employment gaps in the U.S. labor market. Although the primary focus of the J-1 visa is cultural exchange, research scholars can receive remuneration for their work, which aligns with the academic and research nature of their activities, distinguishing it from ordinary employment roles.

While the update to the Exchange Visitors Skills list does not change how the J-1 visa functions for research scholars, it has a significant impact on its appeal. Postdoctoral researchers, for example, might have been hesitant to accept J-1 positions if doing so required them to return to their home country for two years. The updated policy, by lifting the home residency requirement for scholars from countries removed from the list, creates greater flexibility for both STEM and other talent to engage in high-level research and build successful careers without the constraint of spending two early career years abroad. This policy shift is expected to encourage more scientists to pursue J-1 opportunities, benefitting U.S. institutions eager to attract global talent.

Employers can also explore using the J-1 visa for entry-level positions in the trainee or intern categories, providing foreign nationals with opportunities to gain experience and training. This approach could enable employers to assess long-term potential or equip workers with skills they can take back to their home countries. However, while the home residency requirement has been lifted for many, the fundamental rules of the J-1 visa remain unchanged. Thus, those whose participation in the J-1 program is funded by the US government or by the government of the home country continue to be subject to the two year home country requirement as well as those who receive graduate medical education or training.

The State Department’s decision to apply the updated policy retroactive holds further significance. Individuals who previously entered the U.S. on a J-1 visa and whose plans have shifted may now explore options such as H-1B or L  visas without first needing to fulfill the two-year residency requirement or obtain a waiver. This added flexibility enhances the J-1 visa’s value as a tool for advancing STEM research and fostering international talent exchange.

Overall, the change to the Skills List supports the exchange of expertise across borders, strengthening the U.S.’s global influence, fostering international collaboration, and reinforcing American soft power through the sharing of knowledge and ideas. Ultimately, the update ensures the U.S. remains a leader in global talent exchange and development.

Exchange visitors who seek a definitive determination from DOS of whether the two-year foreign residence requirement applies to them may request an Advisory Opinion from the Waiver Review Division, the notice says.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Ethical Obligations of the Attorney to Safeguard Information About a Client’s Whereabouts with a Removal Order Under Trump 2.0

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By Cyrus D. Mehta and Kaitlyn Box*

The recent reelection of Donald Trump is likely to usher in a new era of enhanced immigration scrutiny and enforcement. This shift raises a number of ethical questions and concerns for immigration lawyers. One such issue is whether immigration lawyers would be required to provide law enforcement or a government entity with the contact information, such as last known address or phone number, of one of their clients if asked, especially if the client has an outstanding removal order. Lawyers must be prepared to handle such a demand for information from the government especially since Trump has promised to deport 15 million noncitizens. Among those who can be expelled from the country without removal proceedings are noncitizens who have outstanding removal orders.

Although INA § 243 imposes criminal sanctions upon a noncitizen who fails to depart the United States within 90 days following a final order of removal, an attorney may not be required to cooperate with DHS or other agencies by providing a noncitizen’s whereabouts. An attorney should not advise the client to evade apprehension, but, at the same time, the attorney has an ethical obligation under state analogues to ABA Model Rule 1.6 to not reveal information relating to representation of a client without the client’s consent. There are several exceptions to the confidentiality obligation under ABA Model Rule 1.6 and we highlight the New York Rules of Professional Conduct at Rule 1.6(b), which proves that “a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary”:

1) to prevent reasonably certain death or substantial bodily harm;
2) to prevent the client from committing a crime;
3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
6) when permitted or required under these Rules or to comply with other law or court order.”

Therefore, under NY Rule 1.6(b)(2) the lawyer may reveal information “to prevent the client from committing a crime.” The client who has an outstanding order of removal and who has not left the US will potentially be committing a crime under INA § 243. Since disclosure under 1.6(b)(2) is not a mandatory obligation, it behooves an attorney to follow ABA Model Rule 1.2(d) and its relevant state analogue if advising a client who has an outstanding removal order:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Under Model Rule 1.2(d) a lawyer may discuss the legal consequences of any proposed course of conduct while not advising the client to evade apprehension and can also advise on all the contours and exceptions set forth in this provision. INA § 243(a)(2) contains the following exception: “It is not a violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Thus, it would be well within the scope of a lawyer’s duties to advise a client of all relief they can obtain from an order of removal such as filing a motion to reopen or reconsider. Furthermore, there are several classes of noncitizens who are authorized to remain in the US notwithstanding a removal order such as recipients of the Deferred Action for Childhood Arrival (DACA) program or applicants who have applied for and been granted Temporary Protected Status. Those with outstanding removal orders can also remain in the US if they have received a stay or removal or are under supervised release.

The other oft cited exception to Model Rule 1.6 is Rule 1.6(b)(6) which permits the attorney to reveal confidential information to “comply with other law or a court order.” What if the lawyer is asked by ICE agents to reveal the current or former client’s address? The authors are of the opinion that the lawyer is still bound by Rule 1.6 and should not reveal the client’s information so readily.

New York’s analogous Rule 1.6(b)(6) has been exhaustively interpreted in New York, N.Y. City Bar Opinion 2017-5. This opinion concerns a lawyer’s duty to protect clients’ confidential information from unauthorized disclosure during the analogous scenario of a crossing at the U.S. border, provides guidance on this question. This opinion addresses the question of what “an attorney’s ethical obligations [are] with regard to the protection of confidential information prior to crossing a U.S. border, during border searches and thereafter?” The opinion provides the following analysis:

Rule 1.6(a) prohibits attorneys from knowingly disclosing “confidential information” or using such information to the disadvantage of the client, for the lawyer’s own advantage, or for the advantage of a third person, unless the client gives informed consent or implied authorization or the disclosure is permitted by Rule 1.6(b). Rule 1.6(b), in turn, permits, but does not require, an attorney to use or disclose confidential information in specified exceptional circumstances, of which only 1.6(b)(6) is relevant to the above-described border-search scenario.

Rule 1.6(b)(6) permits an attorney to “reveal or use” confidential information to the extent the attorney “reasonably believes necessary . . . when permitted or required .. . to comply with other law or court order.” Comment [13] to Rule 1.6 recognizes that this exception permits the disclosure of a client’s confidential information insofar as reasonably necessary to respond to an order by a “governmental entity claiming authority pursuant to . . . law to compel disclosure.” The exception applies even when the validity of the relevant law or court order, or its application, is subject to legal challenge, although, in ordinary circumstances, compliance is not “reasonably necessary” until any available legal challenge has proven unsuccessful. See Rule 1.6, cmt. [13] (“Absent informed consent of the client to comply with the order, the lawyer should assert on behalf of the client nonfrivolous arguments that the order is not authorized by law, the information sought is protected against disclosure by an applicable privilege or other law, or the order is invalid or defective for some other reason.”).

In general, disclosure of clients’ confidential information is not “reasonably necessary” to comply with law or a court order if there are reasonable, lawful alternatives to disclosure. Even when disclosure is reasonably necessary, the attorney must take reasonably available measures to limit the extent of disclosure. See, e.g., ABA Formal Op. 10-456 (July 14, 2010). For example, compliance with a subpoena or court order to disclose confidential information is not “reasonably necessary” until the attorney or the attorney’s client (or former client) has asserted any available non-frivolous claim of attorney-client privilege. See, e.g., NYCBA Formal Op. 2005-3 (March 2005). Likewise, a lawyer must ordinarily test a government agency’s request for client confidential information made under color of law. See, e.g., NYCBA Formal Op. 1986-5 (July 1986) (“[I]f presented with a request by a governmental authority for production of information pertaining to escrow accounts when a client is a target of an investigation, a lawyer must, unless the client has consented to disclosure, decline to furnish such information on the ground either that it is protected by the attorney-client privilege or that it has been gained in the course of a confidential relationship. . . . If disclosure is [subsequently] compelled [by a court], it will not breach a lawyer’s ethical obligation with respect to his client’s confidences or secrets.”).

At the same time, attorneys need not assume unreasonable burdens or suffer significant harms in seeking to test a law or court order. See, e.g., NYSBA Ethics Op. 945 (Nov. 7, 2012) (indicating that “when the law governing potential disclosure is unclear, a lawyer need not risk violating a legal or ethical obligation, but may disclose client confidences to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law, even if the legal obligation is not free from doubt”)…

The opinion concludes that “attorneys need not assume unreasonable burdens or suffer significant harms in seeking to test a law or court order”, guidance that can readily be applied to lawyers facing demands for client information under the Trump administration.

Nebraska Ethics Advisory Opinion for Lawyers No. 90-2 similarly addressed the question of whether an attorney may “ethically inform the U.S. Marshal’s office of the client’s location?” The opinion concluded that:

Generally, an attorney may not reveal the whereabouts of a former client where such information was received during the course of and in furtherance of the professional relationship. However, the attorney may ethically divulge the whereabouts of the client where the attorney determines that it is the intention of the client to commit a crime in the future, the attorney has obtained the consent of the client to make the disclosure, or the attorney is required by law or a court order to do so. Under the Disciplinary Rules, it is not mandatory that the attorney disclose such information.

The question of what attorney’s obligations to reveal the client’s address when withdrawing as attorney in Immigration Court or before the Board of Immigration Appeals are also arises. Similarly, must an attorney withdraw from representing a client who is evading immigration enforcement? The EOIR Practice Manual requires that the withdrawing attorney, among other things, “reveal the last known address of the respondent.” The BIA Practice Manual also includes a similar requirement. Can the attorney make a motion to withdraw without revealing the client’s last known address assuming that the attorney knows about the client’s whereabouts? Would this lead to a denial of the motion to withdraw?

DC Bar Op. 266 citing Matter of Rosales (BIA Interim Decision No. 3064) advises that the lawyer is given a choice, which is 1) to withdraw unconditionally, the lawyer must disclose the client’s last known address; or 2) if the lawyer does not provide this information, the withdrawal will be granted only conditionally, i.e the lawyer must continue to accept service on his client’s behalf.” NY State Bar Ethics Opinion 529 concludes that “a lawyer should not be required to withdraw from representation merely because his client refuses to surrender to the authorities…The lawyer is free to continue to give legal advice to the client and to represent him before the authorities, as long as the does nothing to aid the client to escape trial.” Similarly, N.Y. City Bar Formal Opinion 1999-02 affirms that a lawyer may continue representing a fugitive client, so long as the continued representation does not result in violation of a Disciplinary Rule.

While at one level a noncitizen who is in violation of removal order may be viewed as a fugitive, they should be viewed differently from criminal defendants who have evaded arrest or jumped bail. Noncitizens in violation of a removal order, as explained above, have the ability to reopen the order or may request permission to remain in the US, and apply for work authorization, even when there is an underlying removal order. Therefore, lawyers representing individuals in violation of removal orders have additional ethical responsibilities, including the duty of competence under Model Rule 1.1, such as evaluating whether they can reopen the order or can seek permission to remain in the US. Moreover, ethics opinions guiding lawyers representing fugitives in the criminal justice system may not always be directly applicable to lawyers representing noncitizens who have violated a removal order as the latter may be able to seek relief.

Our blog is only the starting point to aid lawyers if required by Trump administration officials to reveal a client’s whereabouts and is by no means an exhaustive coverage of this complex and evolving area. We will be sure to post updates as we notice developments in this area as we seek to legally and ethically protect our clients entering a new era of heightened immigration enforcement under the Trump administration.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box

Biden’s Last and Best Gift to Legal Immigrants: Advancing the Filing Dates in the 2025 January Visa Bulletin to Current

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Donald Trump’s recent reelection has sparked fears that restrictionist immigration policies will abound come January 20, 2025 onwards. During the time that remains of his presidency, President Biden can still act to safeguard the immigration system and implement policies that support and benefit immigrants through executive action. Cyrus Mehta has long advocated for one such solution – the advancement of the filing dates in the State Department’s Visa Bulletin, allowing backlogged beneficiaries of approved petitions to file their I-485 adjustment of status applications. Although suggestions have been made regarding other policies that President Biden could implement to aid immigrants, advancement of the filing dates has not yet been proposed thus far.  President Biden has one last chance to advance the filing dates in the January 2025 visa bulletin, which will be announced during December 2024. Adjustment of status applicants would also be able to avail of other ancillary benefits, such as obtaining employment authorization document (EAD) and advance parole, and the ability to exercise job portability under INA §204(j). Spouses and minor children of primary applicants can also EADs and advance parole after they file their I-485 applications. Allowing more backlogged beneficiaries to file their adjustment of status applications would also ensure that the ages of these individuals’ children could be protected under USCIS’s updated guidance relating to the Child Status Protection Act.

The total allocation of visa numbers in the employment and family based categories are woefully adequate. §201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  INA §202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. These limits were established in the Immigration Act of 1990, and since then, the US Congress has not expanded these limits for well over three decades. In 1990, the worldwide web was not in existence, and  since then, there have been an explosion in the number of jobs as a result of internet based technologies and so many related technologies as well as a demand for foreign skilled workers many of whom have been educated at US educational institutions.  Yet, the US legal immigration system has not kept up to timely give green cards to immigrants who contribute to the country. Due to the per country limits,  till recently it was only India and China that were backlogged in the employment based preferences, but now under the December 2024 Visa Bulletin all countries face backlogs in most of the employment preferences. Still, India bears the brunt disproportionately in the employment-based second and third preferences, and one study has estimated the wait time to be 150 years in the India EB-2!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. But Congress had not acted since 1990, and Biden can advance the filing dates in the January 2025 Visa Bulletin to current. This would provide ameliorative relief many in the family and employment based backlogs who are already in the United States and are eligible for adjustment of status under INA § 245.

There is a legal basis for the significant advancement of the filing dates in the visa bulletin. INA §245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa is immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 CFR 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin”, or if the date in the Bulletin is current for that category.

The State Department has often advanced priority dates although it was uncertain when a visa would actually become available. It is not uncommon for applicants to be eligible to file their I-485 applications in a particular month, only for the dates to retrogress a month or two later. For example, in the April 2012 Visa Bulletin the EB-2 cut-off dates for India and China were May 1, 2010. A month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007 in the May 2012 Visa Bulletin. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands of applicants filed during that period, but the State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards. More recently, the EB-2 India final action date was December 1, 2014 in the September 2022 Visa Bulletin. In the October 2022 Visa Bulletin for the following month, the FAD for EB-2 India was abruptly retrogressed to April 1, 2012, and then retrogressed even further to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014 or earlier should have been issued permanent residence.

These three examples, among many more, illustrate that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some time in the future. Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the Dates for Filing Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

Taking this to its logical extreme, visa availability for establishing the filing dates may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by a noncitizen beneficiary.  So long as there is one visa kept available, it would provide a legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1).

This same logic can also be extended to beneficiaries of family-based I-130 petitions. The Biden administration need only move the filing dates to current or close to current with an explanation in the January 2025 Visa Bulletin or through an accompanying USCIS policy memo. However, if it needs to do this through rulemaking, 8 CFR 245.1(g)(1) could be easily amended (shown in bold) through an Interim Final Rule to expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“Final Action Date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (“Dates for Filing”) without reference to the Final Action Date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current Final Action Date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

 Once the filing dates advance and result in adjustment of status filings, the new administration cannot reverse course on January 20, 2025. The visa bulletin for January 2025 would have to be respected until the end of the month. In the July 2007 visa bulletin, the EB-1, EB-2, and EB-3 categories were all initially “current”, but the Department of State attempted to revise the visa bulletin a few days later to indicate that far fewer visas were available. This mid-month change resulted in threatened lawsuits from immigration advocacy groups, and eligible applicants were allowed until August 17, 2007 to file based on the “current” dates.

Advancing the filing dates would be Biden’s last, best gift to the backlogged community, many of whom are stuck in the  employment- and family-based backlogs for years or even decades. Upon filing adjustment of status applications, they would be able to apply for an EAD and  travel permission, exercise job portability, and their children would be protected under the Child Status Protection Act while waiting in the backlogs for permanent residence. Advancing the filing dates to current should not be viewed as a partisan move by a lame duck democratic presidential administration, but as a move that would greatly benefit beneficiaries of I-130 and I-140 petitions employed in corporate America, including at companies who heads are closely aligned with Trump such as Elon Musk’s Tesla, Space X and X.com.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Saving America by Defending Clients Against Trump’s Immigration Policies

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By Cyrus D. Mehta and Kaitlyn Box*

On November 5, 2024, Donald Trump was once again elected president. Although Trump’s campaign has been marked by anti-immigrant rhetoric, some hope that a second Trump administration will prove favorable to employment-based immigration. Trump once promised to “staple a green card to every diploma” of graduates of U.S. colleges, and has cultivated relationships with business moguls like Elon Musk and Vivek Ganapathy Ramaswamy.

However, a second Trump presidency is likely to create obstacles even for legal skilled immigrants. Former Trump advisor Stephen Miller, who has espoused notoriously anti-immigrant views, is expected to be appointed Deputy Chief of Staff, and will doubtless influence Trump’s immigration policies. In a post on X last year, Miller confirmed that a denaturalization project started during Trump’s first term would be “turbocharged” in 2025. During his campaign, Trump affirmed his intention to end birthright citizenship. For Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs, being sponsored by a U.S.-born adult child may provide a chance of obtaining permanent residence without waiting for decades. Trump’s proposed policies would ensure that even children born in the U.S. would not be afforded the security of U.S. citizenship unless one of their parents is a U.S. citizen or lawful permanent resident, as well as prevent these children from sponsoring their parents for permanent residence in future. This policy, if implemented, could be challenged in federal court as violations of the 14th Amendment, which provides that “all persons born […] in the United States…are citizens of the United States”, but the current conservation composition of the Supreme Court could render these efforts more difficult.

The Trump administration will seek to thwart employment-based immigration in other ways, as well. During his first term, Trump restricted the H-1B visa program through increased numbers of Requests for Evidence (RFEs) challenging the payment of Level 1 wages, promulgation of a policy memorandum stating that computer programmer positions may not be “specialty occupations”, and imposing onerous documentary requirements on employers who place employees at third-party worksite, as discussed at length in prior blogs. Restrictions of this nature are expected to return, and possibly intensify, during Trump’s second term.

Undocumented immigrants and beneficiaries of humanitarian programs may stand to suffer even more severely under a second Trump administration. Trump has vowed to “bring back” the infamous travel bans INA 212(f), ban refugees from Gaza, and carry out mass deportations. He has also threatened to invoke the Enemy Aliens Act of 1798, which allows for the detention and deportation of noncitizen nationals of an enemy country during wartime, as a justification for widespread deportations. His administration will seek to increasingly use expedited removal INA 235(b)(1)(A)(iii) without an immigration court hearing for noncitizens who are within the border of the US and cannot prove that they have been in the US for more than two years. The return of family separation and reinstatement of the “remain in Mexico” policy appears likely, as does the termination of TPS designations for many country, DACA, and humanitarian parole programs.

Notwithstanding the challenges that Trump’s return is likely to bring, immigration lawyers are prepared to vigorously defend noncitizen clients. His prior presidency provided insight into the types of policies that are likely to return, and allowed advocates to gain experience in combatting these harmful measures. Even if Trump got a popular mandate that does not give him license to ignore the law and act outside the Constitution and Bill of Rights. Immigration lawyers are all set to defend immigrants to preserve the foundations upon which the country is built.

 

 

 

 

 

Cyrus Mehta

State Department’s Interpretation of Matter of Arrabally and Yerrabelly at Odds with BIA’s  

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By Cyrus D. Mehta and Kaitlyn Box*

In a previous blog, we analyzed Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), a seminal Board of Immigration Appeals case which held that a departure under advance parole does not trigger the 10 year bar provision under § 212(a)(9)(B)(i)(I). The BIA reasoned that travel under a  grant of advance parole is different from a regular departure from the US, since the individual is given the assurance that they will be paroled back in the US to continue to seek the benefit of adjustment of status. Thus, traveling outside the US under advance parole does not trigger the 10 year bar. Although Matter of Arrabally and Yerrabelly interpreted the 10 year bar provision under § 212(a)(9)(B)(i)(I), its rationale has also  applied equally to the 3 year bar under § 212(a)(9)(B)(i)(I), but had never been officially confirmed.

On September 5, 2024, USCIS updated guidance on its website to state the following:

Furthermore, under Matter of Arrabally and Yerrabelly, 25 I&N Dec 771 (BIA 2012), a noncitizen who accrued more than 180 days of unlawful presence during a single stay and left is not inadmissible under INA 212(a)(9)(B)(i)(II) when they again seek admission, if they left the United States after first obtaining an advance parole document. While the Board of Immigration Appeals, in Matter of Arrabally and Yerrabelly, stated that its decision was limited to INA 212(a)(9)(B)(i)(II), the board’s reasoning in Matter of Arrabally applies equally to INA 212(a)(9)(B)(i)(I). For this reason, we apply the decision to both INA 212(a)(9)(B)(i)(I) and (II).

This language makes clear that USCIS will apply Matter of Arrabally and Yerrabelly when making determinations of inadmissibility under INA 212(a)(9)(B)(i)(I) relating to the 3 year bar and INA 212(a)(9)(B)(i)(II) relating to the 10 year bar. The guidance also emphasizes that Matter of Arrabally and Yerrabelly applies equally to INA 212(a)(9)(B)(i)(I), although the BIA decision itself dealt only with INA 212(a)(9)(B)(i)(II). The corresponding section of the USCIS Policy Manual (Volume 8, Part O) has yet to be updated to reflect this guidance.

Matter of Arrabally and Yerabelly enables individuals to escape the 3 and 10 year bar when they depart the US under advance parole in various contexts. For instance, an applicant for adjustment of status can request advance parole, and a departure under such advance parole does not trigger the 3 and 10 year bar. Similarly, a DACA recipient who obtains advance parole and travels pursuant to this grant of advance parole also does not trigger the 3 and 10 year bar. The USCIS has also applied Matter of Arrabally and Yerrabelly to one who leaves the US pursuant to travel authorization under Temporary Protected Status.

The U.S. Department of State (DOS) policy surrounding INA 212(a)(9)(B)(i)(I) and INA 212(a)(9)(B)(i)(II)  is highly inconsistent with this USCIS guidance, however. In meeting with DOS on October 10, 2024 the American Immigration Lawyers Association (AILA)’s DOS liaison committee posed the following question:

“Members report instances where DACA recipients who have received Advance Parole have been determined to be inadmissible under the three- and/or 10-year bars. This is contrary to the Board of Immigration Appeals decision in Matter of Yarrabelly and Arrabelly…Can DOS confirm that consular officers are instructed to apply the Yerrabelly/Arrabelly holding and that, as such, any visa applicant who is traveling pursuant to the approval of Advance Parole would not require a waiver under INA§212(d)(3) for a violation of 212(a)(9)(B)? This would be consistent with USCIS’s recent update…”

 

DOS responded by stating:

In Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771(BIA 2012), the Board of Immigration Appeals held “that an alien who has left and returned to the United States under a grant of advance parole has not made a ‘departure . . . from the United States’ within the meaning of section 212(a)(9)(B)(i)(II) of the Act.” The holding and discussion throughout Arrabally makes clear that advance parole allows a noncitizen who needs to leave and return to the United States to do so with the expectation that the noncitizen “will be presenting himself for inspection without a valid visa in the future” so that “he will, upon return, continue to pursue the adjustment of status application he filed before departing.” Arrabally in no way holds that advance parole can be used as a way to leave the United States and to obtain a visa (as opposed to pursuing an adjustment of status) without application of the congressionally mandated visa ineligibility for accrual of unlawful presence in excess of 180 days.

This Q&A is available online.

DOS’ policy will not recognize Matter of Arrabally and Yerrabelly if a noncitizen, for example, obtains DACA after age 18.5, leaves the U.S. on advance parole, and applies for an H-1B visa at a US consulate. Although this applicant departed the U.S. on advance parole, DOS would nonetheless consider them to have triggered the inadmissibility bar at INA 212(a)(9)(B)(i). In order to obtain an H-1B visa, the applicant would need a 212(d)(3) waiver of unlawful presence. Similarly, DOS is unlikely to apply Matter of Arrabally and Yerrabelly to one who left the U.S. under advance parole and seeks to be readmitted to the U.S. with an immigrant visa.

There is no reason for DOS to restrict the interpretation in Matter of Arrabally and Yerrabelly to one who departed the US under advance parole and will be returning to the US on advance parole rather than on a newly obtained visa at the US consulate. The BIA in Matter of Arrabally and Yerrabelly correctly interpreted that one who leaves under advance parole does not effectuate a departure for purposes of triggering the 10 year bar under INA 212(a)(9)(B)(i)(II). If the individual chooses to return on a visa rather than advance parole, it should not change the fact that there was no departure under advance parole at the point in time when they left the US. Thus far, the USCIS has not restricted its interpretation in the same manner as DOS.

The DOS’s interpretation has also been inconsistent with the USCIS’s interpretation in other instances. For example, the DOS has  not recognized the Dates for Filing to protected the age of a child under the Child Status Protection Act as the USCIS has prudently done.  Now the DOS’s interpretation of Matter of Arrabally and Yerrabelly is also at odds with USCIS’s. Such inconsistent interpretations between the USCIS and DOS  only create further hardship and difficulties for noncitizens who are already struggling to navigate a complex and byzantine immigration system.

 

 

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.