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.

 

Cyrus Mehta

USCIS’ Change in CSPA Policy Can Help Aged Out Children Who Missed Out During the October 2020 Visa Bulletin EB-3 Advance for India

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By Cyrus D. Mehta and Kaitlyn Box

On September 25, 2024, USCIS announced that it had updated guidance in the USCIS Policy Manual Child Status Protection Act (CSPA) age for noncitizens who demonstrate extraordinary circumstances. The new guidance:

“Clarifies that the CSPA age calculation of an applicant who established extraordinary circumstances and is excused from the ‘sought to acquire’ requirement uses the date that the immigrant visa first became available when the immigrant visa is continuously available for a 1-year period without any intervening visa unavailability; and

Clarifies that under circumstances where the immigrant visa became available and then unavailable, the CSPA age calculation may use the date an immigrant visa first became available if the applicant demonstrates extraordinary circumstances for not applying for adjustment of status before the immigrant visa became unavailable.”

USCIS’ latest guidance builds on policy guidance it previously issued on February 14,  2023, clarifying that it “considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application”. In August 2023, USCIS issued further policy guidance which:

“Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the ‘sought to acquire’ requirement;

Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and

Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.”

In a previous blog, we discussed USCIS’ 2023 guidance at length. Due to USCIS’ pre- February 14, 2023 guidance, some noncitizen children may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens applied to adjust their status under the February 14, 2023 guidance, they could claim an exception to the one-year “sought to acquire” requirement if the delay in filing was the result extraordinary circumstances.

USCIS’ 2023 guidance left unclear what it would consider to be the date an immigrant visa first became available in the case of retrogression. In the October 2020 visa bulletin, for example, priority dates (which were the Dates for Filing) for many India-born beneficiaries with approved EB-3 I-140 petitions became current, only to retrogress a few months later. In its latest guidance, USCIS addresses this scenario, clarifying that October 1 would be considered the date the visa first became available for CSPA age calculation purposes. The USCIS Policy Manual provides the following hypothetical:

A visa first becomes available to the prospective applicant for accepting and processing their application on October 1, 2020, and the visa remains available to the prospective applicant until December 31, 2020. The visa was only available for 3 months and was therefore not available for a continuous 1-year period. As of January 1, 2021, the prospective applicant cannot apply for adjustment of status because a visa is no longer available.

A visa becomes available again to the prospective applicant on July 1, 2021. The prospective applicant applies for adjustment of status within 1 year, on June 15, 2022. Although USCIS provides the applicant with another 1-year period to seek to acquire because the visa was first available for less than a year, the applicant includes an explanation and evidence demonstrating extraordinary circumstances for not applying for adjustment of status during the first visa availability period between October 1 and December 31, 2020. USCIS determines, as a matter of discretion, that the applicant established extraordinary circumstances and calculates the applicant’s CSPA age using the date the visa first became available, which was October 1, 2020.

On October 1, 2020 when the India EB-3  Dates for Filing advanced to January 1, 2015, thousands of India born beneficiaries in the EB-2 and EB-3 filed I-485 applications along with their derivative family members (those in EB-2 downgraded to EB-3 first). By January 1, 2020 the beneficiaries under the India EB-2 and EB-3 could no longer take advantage of India  EB-3 Dates for Filing. Then, on July 1, 2021 the India EB-3 Final Action Dates advanced again, but only until  January 1, 2013. In October 2020, applicants for adjustment of status would have had no idea that the Dates for Filing would be used to calculate a child’s CSPA age. Thus, some noncitizen children may have missed out on applying for adjustment of status along with their family members in October 2020 because a visa was not available to calculate their CSPA age under USCIS’ prior policy or their CSPA age would have been calculated to be over 21 years old. The advance of the Final Action Dates on July 1, 2021 may not have helped the children if the earlier, more advantageous Dates for Filing on October 1, 2020 were not recognized for protecting the age of the child until the USCIS policy change on February 14, 2023.  Even when the USCIS allowed the filing of I-485 adjustment of status applications on February 1, 2023 under Dates for Filing, the Dates for Filing from February 1, 2023 till September 1, 2024 were not as advanced as the Dates for Filing established under the October 2020 Visa Bulletin.

But on October 2024, the EB-3 India Dates for Filing  has advanced to June 8, 2013, affording some noncitizens who have not been eligible to submit their adjustment of status applications since October 2020 another opportunity to do so. Noncitizen children who missed out on applying in  October 2020 can do so now, asserting that the change in USCIS’ policy is an extraordinary circumstance excusing their failure to file when a visa first became available.

The latest update will  thus help many previously ineligible individuals qualify under the previous 2023 CSPA update. As the EB-3 India Date for Filing continues to advance until it reaches January 1, 2015, which is what it was under the October and November 2020 Visa Bulletins, all children who missed out under those visa bulletins  in 2020 may be able to benefit from this salutary  policy change today and beyond.

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

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

 

Cyrus Mehta

Making the Case of the Manager under the L-1A Visa Whose Subordinates are AI Bots

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When the Administrative Appeals Office (AAO) designated Matter of Z-A- Inc. as an “Adopted Decision” in 2016 it was seen as a breakthrough as it recognized that a US company can rely on its resources outside the United States to produce products or provide services. Matter of Z-A-, Inc. held that an L-1A intracompany manager who primarily manages an essential function can be supported by personnel outside the United States within an international organization and also recognizing that such support was possible with the advent of internet technologies. A USCIS officer could no longer deny L-1A classification to such a manager because they were not supported by personnel within the United States.

Generative AI -data-trained technology that uses prompts to create content—has seen a massive uptick in adoption since the introduction of ChatGPT on November 30, 2002. As AI enabled chatbots can perform both complex and routine tasks within an organization, a credible case can be made that an L-1A manager may be supported by chat bots to manage an essential function within an organization rather than by humans. A recent estimate by Goldman Sachs found that generative AI could eventually automate activities that amount to the equivalent of some 300 million full-time jobs globally — many of these in office roles like administrators and middle managers.

The noncitizen manager seeking an L-1A visa extension in Matter of Z-A-, Inc. was the President and Chief Operating Officer of the US petitioning entity whose parent company was in Japan. His duties included: directing and managing the Petitioner’s financial, legal, trade, administrative, and sales activities; establishing financial and budgetary plans and goals; reviewing and monitoring sales activities performed by the Petitioner’s sales manager; liaising with the parent company; and interacting with customers and outside service providers. The Petitioner in the US only employed a sales manager and an administrative specialist. However, eight staff members within the parent company’s headquarters in Japan also exclusively supported the work of this manager.

The key issue  in Matter of Z-A-, Inc. is whether the Petitioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA 101(a)(44)(A). The Petitioner asserted that this manager would manage an essential function of the organization, which is permitted under the statute, as opposed to managing other personnel. A functional manager under the L-1A visa classification must primarily manage the function as opposed to perform the essential function, and must also be senior in the organizational hierarchy. An employee who primarily performs the tasks necessary to produce a product or a service is not considered to be employed in primarily a managerial or executive capacity.

In reversing the denial of the L-1A petition in Matter of Z-A-, Inc. the  AAO stated:

Here the record shows that the Beneficiary, in his role as Vice President, will continue to rely on the support of the eight staff members in Japan and two employees in the United States to accomplish non-managerial duties, and that the purpose of his transfer is to oversee the short-term and long-term expansion of the Petitioner’s presence in what is a new market. Given the overall purpose of the organization and the organization’s stage of development, the Petitioner has established a reasonable need for a senior-level employee to manage the essential function of developing its brands and presence in the United States, notwithstanding that the Petitioner employs directly only two other employees in the United States. While the Beneficiary may be required to perform some operational or administrative tasks from time to time, the Petitioner has established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined staff of 10 employees of the Petitioner and its parent company, located in the United States and Japan, respectively.

In a 2016 blog written shortly after Matter of Z-A-, Inc. it was observed that “[i]n a globalized world, where people are easily connected to each other by the internet, it is no longer necessary for a manager to rely on personnel in one location, namely in the United States. It is now common for teams of personnel within one organization to easily collaborate across different countries to produce a product or provide a service using cloud technology and even able to video conference on one’s smart phone through Skype or FaceTime.”

Practitioners may wish to advocate that generative AI can also enable the L-1A manager to primarily manage an essential function as opposed to primarily perform the tasks necessary to produce a product or service. In Matter of Z-A-, Inc., the AAO recognized that resources overseas could support the role of the L-1A manager. This sets the groundwork to argue that external resources, not limited to human employees, can be considered in evaluating the managerial capacity of the beneficiary. The L-1A petition can potentially include details of the organizational structure and staffing levels, showing that AI chatbots effectively supplement the limited human resources. The supporting evidence can further illustrate how AI chatbots handle routine tasks by interfacing with customers, thereby allowing the L-1A manager to focus on higher-level managerial duties. The evidence provided can further demonstrate that  AI chatbots relieve the L-1A manager from performing the routine day to day operational and administrative duties. This aligns with the requirement that the manager primarily manages an essential function rather than perform it with the help of AI technology.

Following Matter of Z-A, Inc. the AAO in  Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), provided important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization. In Matter of G, the AAO noted that “essential function” is not defined anywhere in the INA. Instead, it relied on the Merriam-Webster Dictionary definitions of “essential” and “function” in proceeding with its analysis, concluding that an essential function must be a core activity of a petitioning organization. Relying on these definitions, the AAO first found that the Petitioner must “(1) describe with specificity the activity to be manage, and (2) establish that the function is core to the organization.”  The AAO further recognized that an organization could have more than one core activity “such as the manufacture or provision of an end product or service, and research and development into other products or services.”

Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Immigration and Nationality Act (INA).

INA § 101(a)(44)(A) defines “managerial capacity” as:

[A]n assignment within an organization in which the employee primarily-

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day- to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

 

The foreign manager seeking immigrant classification under INA § 203(b)(1)(C) in Matter of G- was the Director, Financial Planning and Analysis (FP&A) at a large multinational technology corporation. The company first transferred the Beneficiary to the U.S. on an L-1A visa to seek business opportunities and foster growth of the company in the U.S. markets. After a few years of success, the company decided to petition for the worker to permanently reside in the U.S. under INA § 203(b)(1)(C). The Petitioner explained in their I-140 petition that the Beneficiary would continue to direct and develop revenue forecasts and analysis for the entire company, lead mergers and acquisitions, and oversee strategic pricing analyses, among other managerial duties. However, the USCIS denied Form I-140, finding that the Petitioner did not establish that the Beneficiary would be employed in a managerial role. It is not unusual for one Service Center of the USCIS to approve the L-1A visa and another Service Center to deny the I-140 petition.  Upon review, the AAO reversed, and sought to clarify the role of a function manager.

In applying their new function manager analysis to the case at bar, the AAO found that the FP&A Director was clearly a function manager under INA §101(a)(44)(A). First, it found that “financial planning and analysis” qualified as a function within the organization as it was clearly defined with specificity and indicated a clear goal of generating data to assess the company’s revenue. Second, the AAO found that the FP&A function was essential to the company, where the Beneficiary’s work would be relied upon by the company’s executives and board of directors in making strategic decisions in mergers and acquisitions. Third, the AAO found that the Beneficiary would primarily manage the function where he would “develop and direct revenue forecasts and analysis for the worldwide organization, lead mergers and acquisitions, and oversee strategic pricing analysis.”  The AAO continues that the Beneficiary will be supported by six direct and three indirect reports who will “perform the routine duties associated with the FP&A function.”  Critically, the AAO finds that even though the Beneficiary directly supervises some of his subordinates, he still primarily manages the function. Fourthly, the AAO found that the Beneficiary will act at a senior level within the organization and with respect to the function, where he reported only to the CFO and CEO and worked closely with other senior executives and managers. Finally, the AAO found that the Petitioner clearly established that the Beneficiary will have discretionary authority over day-to-day operations where the Beneficiary will establish policies, goals, and oversee mergers and acquisitions.

Using the same analysis as in Matter of G,  and as set forth in the USCIS Policy Manual, a company can establish that its AI technology is an essential or core function of the organization. It can further be established that the beneficiary will primarily manage this function, and will be supported by AI bots when managing the function. This would be analogous to Matter of Z-A, Inc. which recognized the ability of foreign personnel outside the United States to support the L-1A manager in the US.  It can also be established that the L-1 manager is employed at a senior level within the organizational hierarchy and that they have discretionary authority over the day to day operations.

A Forbes article that provides examples of how brands are replacing their employees with AI technology. It provides examples of how Klarna, the Swedish-based “buy now pay later service”,was using an OpenAI powered customer service chatbot that was doing the work of 700 customer service agents faster and more efficiently than human workers. The article also notes that large financial service companies like Goldman Sachs and Morgan Stanley are introducing AI tools that can replace much of the entry level white collar work such as preparing spreadsheets, creating PowerPoints and analyzing financial data. BestBuy is replacing its geek squad agents with generative AI technology to provide customers with personalized, best in class tech support experiences. Even local governments are resorting to AI. The Texas Education Agency is rolling out a “new artificial intelligence-powered scoring system set to replace a majority of human graders in the region.” If a petitioning entity is using similar AI technology a case can be made that AI is relieving the manager from performing the day to day tasks while the manager manages the essential function. An organization that relies on bots may have a smaller number of employees, but one should push back against a negative finding only because of the small size.  In Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that although size is a relevant factor in assessing whether a company’s operations are substantial enough to support a manager, “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity.” See also INA 101(a)(44)(C) (“[i]f staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.”).

While it would be more feasible to build the L-1A case for a functional manager who is supported by AI technology, the next step in the evolution of L-1A jurisprudence would be to establish that even a people manager might qualify for this visa classification if they supervise AI chatbots rather than humans. These AI bots can take the place of other “supervisory, professional, or managerial employees” under INA 101(a)(44)(A)(ii) who are supervised and controlled by the L-1A manager. Under  INA 101(a)(44)(A)(iii) the manager must also have “the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization)” of the employees they supervise. Admittedly the L-1A manager may not have the authority to hire and fire bots or take other personnel actions as they are not employees. The manager, however, could have equivalent authority such as the ability to upgrade the AI technology or replace the bots with other bots to comply with INA 101(a)(44)(A)(ii) and 101(a)(44)(A)(iii). This may seem far fetched for now, there may come a time when the USCIS might be persuaded to approve an L-1A petition for a people manager who will be managing and supervising AI bots rather than humans.

[This blog is only for informational purposes and should not be relied upon as a substitute for legal advice.]

 

 

 

 

Cyrus Mehta

While the Dogs and Cats of Springfield, OH Are Safe, the Haitian immigrants Are Not

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By Cyrus D. Mehta and Kaitlyn Box*

This past week, Trump and J.D. Vance have gone viral for some particularly bizarre rhetoric, alleging that Haitian immigrants in Springfield, Ohio were eating people’s pets. On September 9, 2024, J.D. Vance posted on X: “Months ago, I raised the issue of Haitian illegal immigrants draining social services and generally causing chaos all over Springfield, Ohio. Reports now show that people have had their pets abducted and eaten by people who shouldn’t be in this country. Where is our border czar?” Trump repeated these claims in his September 10, 2024 debate with Vice President Kamala Harris, stating “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there.” These allegations were widely recognized as entirely baseless, including by Springfield, Ohio mayor Bob Rue, who in an interview called Trump and Vance’s statements “just untrue” and assured residents that their “pets are safe in Springfield, Ohio”. These anti-immigrant sentiments come after Laura Loomer, a far-right activist and internet personality, stated in a post on X “If @KamalaHarris wins, the White House will smell like curry & White House speeches will be facilitated via a call center and the American people will only be able to convey their feedback through a customer satisfaction survey at the end of the call that nobody will understand.”

Unfortunately, xenophobic statements like these can have real world negative consequences. In Springfield, Ohio, credible bomb threats related to Trump and Vance’s comments forced schools and offices to close. Haitian immigrants in the area, many of whom are Temporary Protected Status (TPS) recipients, report feeling unsafe and even being targeted for property damage as a result of this hostility. Notwithstanding the harm caused to communities in Ohio, the Trump campaign has doubled down on its anti-immigrant rhetoric, with J.D. Vance stating in a CNN interview, “I’m still going to keep on talking about what the migrants have done to Springfield, Ohio, and what Kamala Harris’ open border has done to Springfield, Ohio”. Vance also had the audacity to state that  “If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”

Trump’s animus towards immigrants is hardly new. In 2018, he infamously referred to migrants from Haiti and elsewhere as “people from shithole countries” and has stated that Haitian migrants “all have AIDS”. Sentiments like these no doubt contributed to the Trump administrations efforts to terminate TPS designations for Haiti, Sudan, Nicaragua, and El Salvador, a decision that was challenged by TPS beneficiaries and their U.S. citizen children in federal court in Ramos v. Nielsen. The U.S. District Court for the Northern District of California found that Trump’s animus towards “non-white, non-European” immigrants had influenced the decision to end these TPS distinctions, cataloguing a series of anti-immigrant remarks he has made since 2015, including characterizing Mexican immigrants as criminals and rapists, and calling for “a total and complete shutdown of Muslims entering the United States.” The court ultimately struck down the Trump administration’s effort to rescind these TPS designations, holding that the decision was made “without any explanation or justification in violation of the Administrative Procedure Act”, and that that it may have been “influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution”. The court’s decision to issue a preliminary injunction was later overturned by the Ninth Circuit, which upheld the Trump administration’s TPS rescissions, and the designations were ultimately restored under the Biden administration.  Despite the Ninth Circuit’s decision to overturn the preliminary injunction and the Biden administration restoring TPS, the litigation is not entirely resolved. The en banc Ninth Circuit Court of Appeals granted Plaintiffs’ petition for rehearing and vacated the opinion of the three-judge panel. Plaintiffs filed an opening brief opposing the motion to dismiss.

Although the pets are safe, the rhetoric advanced by Trump and Vance proves that the immigrant community is decidedly not. Baseless anti-immigrant sentiments have the potential to sow discord and violence, as illustrated by recent events in Ohio communities. Moreover, Trump’s antipathy toward immigrants shaped policy decisions while he was president, including the rescission of TPS protections for vulnerable populations.

Indeed, Trump has promised to deport Haitian immigrants in Springfield, OH by again attempting to rescind their TPS status. Trump has repeatedly stated that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States. The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II,”Balko states.

In light of the second assassination attempt on Trump at the time of going to press, his supporters accuse critics of allegedly creating  a climate that encourages people to perpetrate such acts of violence. Although there is no place for political violence in America, and all political differences, however heated, must be settled through ballots and not bullets, Trump should also realize that his baseless claims against Haitians immigrants result in violence towards them too, even if they may whip up votes in his favor. There is no excuse for politicians like Trump, and Vance, who is also the sitting Senator from Ohio, to instigate violence against people here in the US whom they have a solemn duty to protect. Notwithstanding any sympathy that Trump may be generating after the assassination attempts, his dangerous rhetoric towards Haitians who are legally in the US has crossed an unacceptable line and he fully deserves to be completely and frontally defeated in this election.

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

 

Cyrus Mehta

237(a)(1)(H) Waiver After Denial of Naturalization Application?

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By Cyrus D. Mehta

At the naturalization interview the noncitizen applicant could face a rude shock if the examiner reveals that they made a misrepresentation in a long forgotten application for an immigration benefit filed in the distant past.

For example, the applicant could have been misled by an unauthorized practitioner when she first came to the US three decades back in filing a fabricated asylum application who did not inform her about the asylum interview. This ultimately resulted in the issuance of a Notice to Appear resulting in the applicant being placed in a removal proceeding. At the Master Calendar Hearing the noncitizen withdrew the asylum application in exchange for receiving voluntary departure from the Immigration Judge and the asylum application was never adjudicated on its merits, leave alone reviewed by the judge or the government opposing counsel. The noncitizen timely left the US timely under voluntary departure, and a few years later, came to the US in H-1B status and ultimately obtained permanent residence through the employer who filed a labor certification, an I-140 petition and subsequently an I-485 adjustment of status application.

At the time of filing the I-485 application the noncitizen failed to mention  in the I-485 application that she had made a misrepresentation to obtain an immigration benefit through the asylum application. Although in the asylum application she had  claimed to be a member of a political party that resulted in her arrest for political reasons, the noncitizen failed to indicate in the I-485 application that she had ever been a member of a political party or that she had been arrested. On the other hand, the noncitizen disclosed in the I-485 application that she had been placed in removal proceedings and had left the US pursuant to voluntary departure.

This individual retains an immigration attorney who in good faith prepares and files the N-400 application. The attorney inquired about how his client obtained permanent residency and is satisfied with the explanation from the client that she was sponsored by her employer through a bona fide labor certification, I-140 petition and I-485 application. The client desires that the N-400 application be filed quickly so that she can become a US citizen in time to vote in the presidential election and indicates to her attorney that it would not be necessary to file a request for her records under the Freedom of Information Act. When preparing the N-400 application, the attorney disclosed that his client had been placed in removal proceedings, but relying in good faith on what his client told him, he did not acknowledge in the N-400 that his client gave any information that was false, fraudulent or misleading or had lied to a government official to obtain an immigration benefit.

At the naturalization interview, the examiner goes through the questions on the N-400 and then confronts the client for not admitting that she had been a member of a political party as she had stated in her asylum application. The examiner also questions the client for not admitting that she had been arrested. The attorney is caught by surprise and asks for a short break to speak to the client. The client confesses to the attorney that she vaguely remembers that she was mislead into filing a fabricated asylum application, but she did not think much about it, as she withdrew the asylum application before an IJ in exchange for voluntary departure.

The attorney explains all of this to the naturalization examiner after conversing with his client. The examiner believes that if the client had filed a false asylum application, she should have disclosed that she had sought an immigration benefit by lying in her I-485 application and should have  sought a waiver under INA § 212(i) prior to adjusting status and obtaining permanent residence. The attorney argues that his client withdrew the application under the supervision of the Immigration Judge who granted her voluntary departure. She was also misled into filing this asylum application.

Notwithstanding the attorney’s pleas on behalf of his client, the USCIS issued a denial of the N-400 application on the ground that she had not met all the requirements for naturalization including having been lawfully admitted for permanent residence under INA §316. The client appealed the denial by filing Form N-336,  and a more senior naturalization officer again affirmed the original denial.

Although the USCIS asserted that the client has not been lawfully admitted for permanent residence, she sill technically remains a permanent resident until she is subject to a final order of removal. She can continue to remain in the US as a permanent resident as well as use the I-551 card if she needs to verify her status with a new employer as well as travel in and out of the US. And herein lies the paradox. If the USCIS issues a Notice to Appear (NTA)  and places the client in removal proceedings, it will benefit her as she will be eligible for a waiver under INA § 237(a)(1)(H), which provides:

Waiver authorized for certain misrepresentations. The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in Section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

  1. (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
    (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation. OR
  2. is a VAWA self-petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

A noncitizen in removal proceedings may apply for this waiver under INA § 237(a)(1)(H) after being inadmissible for fraud or willful misrepresentation under INA  § 212(a)(6)(C)(i). The waiver would apply whether the noncitizen filed at application for an immigrant visa at a consular post or even during adjustment of status. See Matter of Agour, 26 I&N Dec. 566 (BIA 2015). The waiver also applies even if the misrepresentation was not willful such as if the noncitizen mistakenly received an immigrant visa after the petitioner died and is not even charged under INA 212(a)(6)(C)(i) and instead under the more general INA 212(a)(7)(A)(i)(I) for lack of a valid visa or entry document. See Matter of Fu, 23 I&N Dec. 985 (BIA 2006). This sort of innocent misrepresentation can occur if the USICS adjusts an applicant for permanent residence under an employment-based preference when the final action date was not current. At the naturalization interview, the applicant’s N-400 can be denied because he was not properly admitted as a lawful permanent resident. It may also occur if a diplomat who is subject to diplomatic immunity adjusts status to permanent residence without submitting a waiver of diplomatic privileges and immunities.

If the noncitizen is placed in removal proceeding, and has the requisite qualifying relative, which is she must be the spouse, parent, son, or daughter of a citizen of the United States or of a lawful permanent resident, she can request a waiver before an Immigrant Judge.  There is no form to file a § 237(a)(1)(H) waiver. The IJ has discretion to grant or deny the waiver after taking into consideration all the favorable an adverse factors. The initial fraud can also be considered as a factor in considering the waiver. See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998).  If the waiver is granted and removal proceedings are terminated, the applicant can get quickly naturalized provided she met all the other requirements for naturalization.

The problem is that the USCIS these days seldom places noncitizens who have been denied naturalization based on not being admitted as lawful permanent residents in removal proceedings. Even repeatedly requesting USCIS to issue an NTA falls upon deaf ears.  The reason could either be that the DHS does not have the resources to process NTAs, or it could be more cynical, which is that the DHS does not wish to place them in removal proceedings so that they may then seek a benefit. As a result, noncitizens whose applications have been denied will forever remain lawful permanent residents and never be able to become US citizens unless they can successfully challenge the denial of the N-400 application in federal court.

DHS may wish to consider promulgating a rule that would allow noncitizens to apply for §237(a)(1)(H) waivers administratively outside removal proceedings. Historically, 8 CFR 212.3(a) and (c) has allowed for the filing of waivers under INA § 212(c) with the USCIS. Under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA),  eligible individuals could apply for cancellation of removal administratively, which got implemented under 8 CFR §1240.66. Allowing administrative filings of § 237(a)(1)(h)  waivers would increase efficiency in the immigration system and provide a more humane approach for individuals who have demonstrated eligibility as well as compelling equities and humanitarian factors. It would also reduce the burdens on the already backlogged courts, allowing them to focus on more complex cases.