Cyrus Mehta

Impact of the Overturning of Roe v. Wade on Immigrants

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By Cyrus D. Mehta, Kaitlyn Box*, and Jessica Paszko**

On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning the landmark decision Roe v. Wade, and holding that there is no constitutional right to an abortion. Justice Alito, writing for the majority, first held that abortion is not implicitly protected by any constitutional provision, including the Due Process Clause. The opinion further states that although the Due Process Clause protects some rights that are not specifically enumerated in the Constitution, those rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Because abortion was not a recognized legal right until the latter half of the 20th century, according to the majority, and was until then often punishable as a criminal offense, the court reasons that it cannot fall into the category of activities protected by the Due Process Clause. The opinion also addresses whether the right to obtain an abortion “part of a broader entrenched right that is supported by other precedents”. The Court concludes that overturning Roe would not upset other precedential decisions that involve fundamental rights not specifically mentioned in the Constitution, like Griswold v. Connecticut (contraception), Obergefell v. Hodges (same-sex marriage), and Lawrence v. Texas (same-sex sexual conduct), because abortion involves a unique moral question not implicated in other cases – the destruction of “potential life”. Finally, the Court held that the doctrine of stare decisis does not require the preservation of Roe because this doctrine is not an “inexorable command” and other landmark Supreme Court cases have overturned prior precedential decisions.

On the other hand, according to one commentator, ending the forced sexual and reproductive servitude of black girls and women who were forcibly brought into the country was a critical part of the passage of the 13th and 14th Amendments, which sought to protect them from forced pregnancies and provide them privacy and freedom. The opinion in Dobbs will likely not be the last word as present and future generations of activists will seek to continue to restore women’s rights to privacy and bodily autonomy.

Until then, the Dobbs decision will have a devastating impact on the countless women in the United States who will no longer have access to safe and legal abortions, and the demise of Roe also carries worrying implications for other precedential Supreme Court decisions, including those that concern the rights of immigrants. Though the majority asserted that overturning Roe would not undermine other decisions involving fundamental rights due to the unique moral question posed by the right to abortion, Justice Thomas in his concurring opinion recommended that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Plyler v. Doe, which held that children of undocumented immigrants have the right to receive a K-12 education in the United States, escaped Justice Thomas’ mention, but has much in common with decisions like Roe and Obergefell. The Court in Plyler stopped short of calling education a “fundamental right”,  focusing instead on the Equal Protection Clause argument that undocumented children would suffer undue hardship due to circumstances outside their control if they were denied access to an education. According to Justice Burger’s dissenting opinion, once the Court established that undocumented children are not a suspect class and that education is not a fundamental right, the Court’s analysis should have considered whether the legislative classification bore a rational relationship to a legitimate state purpose. Under this rational-basis level of scrutiny, Justice Burger opined that it would not be irrational for a state to conclude that it owes a lesser responsibility to undocumented individuals. He further reasoned that because unlawfully present individuals have no right to be here, the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expenses of those who are lawfully in the state. In the final part of his dissent, Justice Burger remarked at how the majority’s opinion effectively set social policy and impermissibly usurped Congress’ policymaking role.

The idea that Plyler could be the next landmark decision that is threatened is not purely speculative. Governor Greg Abbott of Texas has already indicated that he would like to see Plyler to be revisited in the aftermath of Roe’s demise. On the other hand, Abbott’s attempts to get Plyler overruled will not be a slam dunk even under the Supreme Court’s current composition since providing undocumented children access to public education was not based on substantive due process but equal protection.

In addition to leaving open the possibility for other fundamental rights cases to be overturned, the Court’s decision in Dobbs will also have a disproportionately severe impact on certain immigrant women who need access to an abortion. The decision will undoubtedly cause the most harm to the women who have the least financial resources available for reproductive care. According to some sources, immigrant women who seek abortions are often lower-income and less likely to have medical insurance than U.S. citizens who seek the same care. While no states currently have abortion laws in place that attempt to prosecute residents who travel to another state to seek an abortion, a now-blocked Missouri law would have allowed individuals to sue anyone who assisted a woman in crossing state lines to seek an abortion. If similar state laws follow, a criminal conviction of this type could render non-citizens inadmissible to the United States and consequently ineligible for a host of immigration benefits, including visas and permanent residence, as well as leaving individuals vulnerable to being placed in removal proceedings.

Even where traveling across state lines to obtain an abortion does not carry the possibility of criminal convictions, this option will not be available to incarcerated women, including those in immigration detention facilities. Of the thirteen states that have “trigger laws” in place that immediately banned or restricted abortion upon the overturning of Roe, seven, including Idaho, Oklahoma, South Dakota, Wyoming, Kentucky, Arkansas and Mississippi, have some of the country’s highest rates of incarcerated women. Reports of women in immigration detention facilities being denied access to abortions, or receiving delayed or insufficient reproductive care, were already rampant. After the Court’s decision in Dobbs, it is likely that women with the least freedom to seek reproductive care will suffer even more.

 

Cyrus Mehta

Still Disadvantaged Even When Your Priority Date Becomes Current

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By Cyrus D. Mehta and Kaitlyn Box*

Individuals who are caught in the employment-based immigrant visa backlogs must navigate myriad issues that are associated with waiting for their priority dates to become current and applying for adjustment of status. Generally, it is cause for celebration when these individuals’ priority dates  become current, as then are eligible to apply for adjustment of status. When the Final Action Date becomes current, the individual should receive permanent residence.  But a Final Action Date becoming current can also bring about a number of additional issues that must be considered carefully. In our previous blog, we discussed the problems that can arise when workers do not apply for adjustment of status within one year of their priority date becoming current. For individuals who are the beneficiaries of more than one I-140 petition, another set of questions can come about when one I-140 is current but the other is not.

Pursuant to § 104(c) of the American Competitiveness in the 21st Century Act (AC21), an individual who is the beneficiary of an I-140 petition and would be eligible for adjustment of status “but for application of the per country limitations applicable to immigrants”, is eligible for extensions of his nonimmigrant status in three-year increments until the adjustment of status application has been processed. Similarly, 8 CFR § 214.2(h)(13)(iii)(E) provides that “an alien who currently maintains or previously held H-1B status, who is the beneficiary of an approved immigrant visa petition…and who is eligible to be granted that immigrant status but for application of the per country limitation, is eligible for H-1B status beyond the 6-year limitation…”. 8 CFR §214.2(h)(13)(iii)(E) plainly requires that an individual must be the beneficiary of an approved I-140 petition under the first, second, or third preference category in order to obtain H-1B extensions beyond the sixth year, but provide little further guidance, especially concerning individuals who may the beneficiaries of more than one I-140 petition.

One conundrum arises when an individual is the beneficiary of two approved I-140s, one under EB-2 and the other under EB-3, but she has filed her adjustment of status application in connection with only one of I-140s and the other remains unutilized. In recent months, EB-2 dates have raced ahead while EB-3 dates have retrogressed, so many individuals’ priority dates may have become current under the second preference category, but are not current under the third. If an adjustment applicant has already filed her I-485 in connection with her approved EB-2 I-140, may she still seek a three-year extension of her H-1B status based on her EB-3 I-140, which is not current? The language of AC21 § 104(c), and 8 CFR §214.2(h)(13)(iii)(E) do not seem to prohibit an application for an extension in this scenario. The regulations do not specify that the individual seeking an H-1B extension must not have another I-140 petition that is current, or must be seeking adjustment of status pursuant to the same I-140 petition being utilized for the H-1B extension.

Another difficult situation arises when an individual is similarly the beneficiary of two approved I-140s, one under EB-2 and one under EB-3, but filed his adjustment of status application in conjunction with the EB-3 I-140 when his priority date was current, but it has now retrogressed. If this individual’s priority date has become current under EB-2, he would likely want to consider filing a transfer of underlying basis request to connect his adjustment of status application to the EB-2 I-140 instead, hopefully ensuring more expeditious approval. Complications arise, however, when an applicant in this situation has not yet filed a transfer of underlying basis request but also wants to seek an H-1B extension beyond the sixth year based on the EB-3 I-140, which is no longer current. Given the ambiguity regarding USCIS stating that the 180 day portability clock starts again upon an interfiling request, some have chosen not to interfile and remain in EB-3 especially when they have changed to new employers.  As in the above-described scenario, the regulations may not preclude an individual in this situation from seeking a three-year H-1B petition.

Individuals who find themselves in this situation may find some refuge in AC21 § 106, which states that an H-1B nonimmigrant may receive extensions of status in one-year increments if more than one year has passed since either the labor certification or the I-140 has been filed. Even if the labor certification and/or I-140 petition have been approved, the individual can continue obtaining one-year extensions until an adjustment of status application can be filed. An individual whose priority date is current cannot ensure continued H-1B extensions by delaying filing an adjustment of status application, though. Proof must also be provided that the worker applied for adjustment of status within one year of his priority date becoming current, and if not, demonstrate that the failure to apply was due to circumstances beyond her control. To err on the side of caution, individuals who are the beneficiaries of one I-140 petition that is current and another that is not may consider requesting a three-year extension of H-1B status, but disclosing the existence of the second I-140 and asking in the alternative that USCIS grant a one-year extension, provided that either the labor certification or the I-140 petition was filed more than one year before the individual’s sixth or final year in H-1B status. Adopting this approach could prevent an outright denial of the petition if USCIS declines to approve a three-year extension.

In addition to requiring frequent renewal, one-year H-1B extensions are subject to other pitfalls as well. If H-1B visa holders are confined to one-year extensions of their statuses, H-4 spouses seeking initial EADs are disadvantaged. Many are in this situation as the USCIS has been so slow in approving adjustment applications even when the Final Action Dates have been current for several months.   Based on current USCIS processing times, an initial application for an H-4 EAD can take up to 8.5 months to be issued. Because the expiration date of the EAD will be tied to the validity of the H-1B petition itself, an EAD based on a one-year H-1B extension might only be valid for a couple of months by the time it is issued. Similarly, it can take several months for EADs and advance parole based on a pending adjustment application to be issued, potentially leaving H-4 spouses without work authorization if the H-4 EAD is issued with a very limited validity.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Ethical Dimensions of Patel v. Garland

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By Cyrus D. Mehta and Kaitlyn Box*

On May 16, 2022, the Supreme Court issued its decision in Patel v. Garland, a decision that has devastating implications for the reviewability of U.S. Citizenship and Immigration Services’ (“USCIS”) actions in federal court. Federal courts, according to the Supreme Court, will no longer be able review factual errors of the USCIS that result in the denial of an application. As there has been plenty of  analysis of this decision, see here and here and here, our blog will instead  address the ethical implications that Patel v. Garland will have on immigration practitioners.

The factual background of the case is strikingly sympathetic. Pankajkumar Patel and his family entered the United States without inspection in the 1990s, and Mr. Patel applied for adjustment of status some years later under § 245(i) of the Immigration and Nationality Act (INA). USCIS, however, became aware that Mr. Patel had checked a box indicating that he was a U.S. citizen on a Georgia driver’s license application, and found him inadmissible under § 212(a)(6)(C)(ii)(I) for falsely misrepresenting himself as a U.S. citizen. Mr. Patel was placed in removal proceedings and renewed his adjustment of status application in Immigration Court, testifying that he had checked the wrong box on the driver’s license application by mistake. In fact, under Georgia’s law, it did not make a difference regarding his eligibility for  a license whether he was a citizen or not. He was eligible because he had an application seeking lawful permanent residence had a valid employment authorization document.  The Immigration Judge denied Mr. Patel’s adjustment application and ordered him removed. The Board of Immigration Appeals (“BIA”) denied his appeal. Mr. Patel sought review of the decision at the Eleventh Circuit, but the court held that it  § 242(a)(2)(B)(i), a statutory provision which prohibits judicial review of “any judgment regarding the granting of relief” under § 245, prevented it for exercising jurisdiction over his claim.

By the time the Supreme Court heard the case, Mr. Patel had lived in the United States for some 30 years and his children, now adults, had become lawful permanent residents. Despite Mr. Patel’s plight, the Court held that it lacked the jurisdiction to review facts found as part of adjustment of status proceedings under INA § 245. The majority opinion, authored by Justice Amy Coney Barrett, focused on the meaning of the word “judgment” in § 243(B)(2)(B)(i), the statutory provision preventing federal courts from reviewing “any judgment regarding the granting of relief”. Mr. Patel argued that this provision, called the jurisdictional bar, applies only to an Immigration Judge’s ultimate decision of whether to grant relief.  The Government argued that the use of “judgment” refers exclusively to a decision that requires discretion. The majority was not persuaded by Mr. Patel’s or the Government’s arguments, and instead adopted the interpretation asserted by attorney Taylor Meehan, acting as an amicus, who defined a “judgment” for §1255 purposes as “any authoritative decision—encompassing any and all decisions relating to the granting or denying of discretionary relief”.

Finding that it did not have the jurisdiction to review his adjustment of status claim, the Court’s decision not only leaves Mr. Patel potentially vulnerable to removal, effectively eviscerates the ability of federal courts to review USCIS errors. Justice Gorsuch emphasized this issue in a surprisingly forceful and stirring dissent, stating: “Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court will even hear the case.” Justice Gorsuch, whose dissenting opinion was joined by Justices Breyer, Sotomayor, and Kagan noted that the Immigration Judge who heard Mr. Patel’s case mistakenly asserted that only U.S. citizens and lawful permanent residents are eligible for driver’s licenses in Georgia, a mistake that informed his conclusion that Mr. Patel must have intentionally held himself out to be a U.S. citizen on the application in order to obtain a license. In fact, as noted, a broader group of individuals who are not U.S. citizens or LPRs can obtain a driver’s license in Georgia. Despite the devastating consequences of this error and others like it, federal courts are powerless to intervene after Patel.

Practitioners following Patel v. Garland need to be aware of various ethical considerations when representing a client on an I-485 adjustment of status application. ABA Model Rule 1.1 requires the practitioner to provide competent representation to clients.  ABA Model Rule 1.3 requires the practitioner to act with reasonable diligence and promptness in representing the client. There are also parallel grounds for disciplining practitioners who practice before the DHS or EOIR for failing to represent the client competently and diligently at 8 CFR §1003.102(o) and 8 CFR §1003.102(p) respectively.   If the USCIS makes a mistake on an applicant’s I-485 adjustment application resulting in a denial, every effort must be made to convince the USCIS to correct the error as the practitioner will no longer be able to rely on a federal court to correct it. In an adjustment of status proceeding, there is no administrative appeal after the USCIS denies the application. Therefore, the practitioner would need to file a motion to reopen or reconsider the denial within 30 days of the decision. Although the applicant can seek review of the denial of the I-485 application in removal proceedings, the USCIS does not routinely place the applicant of a denied I-485 application in removal proceedings. While an applicant can request the USCIS to initiate removal proceedings when an I-485 application is denied through a Notice to Appear, the USCIS may choose not to do so. In this case, the practitioner can potentially file another I-485 application and request the USCIS to review its prior determination in the context of a new I-485 application. Alternatively, when removal proceedings have not been initiated, filing an action under the Administrative Procedures Act in federal district court may still be a possible avenue under Pinhoe v. Gonzales, 432 F.3d 193 (3rd Cir. 2005) which has likely not been impacted by Patel v. Garland.

If the applicant is placed in removal proceedings following the denial of an I-485 application, the practitioner must continue to competently and diligently represent the client before an Immigration Judge. Every effort must be made to convince the IJ that the USCIS’s denial was based on a factual error. The practitioner must ensure that all evidence is submitted that would convince the IJ to render a favorable decision. If the IJ still denies the application, the respondent in removal proceedings can file an appeal to the Board of Immigration Appeals. Here too, in this proceeding, the practitioner must continue to competently and diligently represent the client and ensure that the record contains evidence and arguments that were submitted in support of client’s position. If the BIA affirms the denial, although Patel v. Garland forecloses judicial review of factual errors, INA §242(a)(2)(D) makes an exception with respect to judicial review of constitutional claims or questions of law. Therefore, every effort must be made to explore whether there was a constitutional claim or question of law when seeking review in a court of appeals following the dismissal of the appeal by the BIA. See, e.g. Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir 2005)(there is no bar to reviewing a non-discretionary decision of whether person is eligible as a matter of law under §245(i)); Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (permitting review of legal error where IJ looked behind application to deny I-485 based on a police report).

If the practitioner has acted competently and diligently in representing the client, and the I-485 application still remains denied, the practitioner cannot be held responsible for the denial. On the other hand, if it can be demonstrated that a practitioner’s representation constituted ineffective assistance to the client, the client can seek to reopen a removal order by following the procedure under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) as set forth below:

  • The motion must be supported by a declaration from the respondent attesting to the relevant facts. The declaration should include a statement of the agreement between the respondent and the attorney with respect to the representation.

  • Before the respondent files the motion, he or she must inform counsel of the allegations and give counsel the opportunity to respond. Any response should be included with the motion.

  • The motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.

  • The respondent must show that the representation was ineffective and prejudiced the respondent.

Therefore, practitioners must maintain a record in their files that they had acted competently and diligently in representing the client notwithstanding that there was a denial of the I-485 to insulate themselves against ineffective assistance of counsel motions under Matter of Lozada.

Another ethical consideration is whether disclosure must be made in response to questions on the I-485 application, and this obligation continues even after the I-485 application has been filed and prior to the conclusion of the proceeding. Thus, if a client has made a false claim to citizenship on another application such as for a driver’s license, disclosure must be made on the I-485 application at Part 8, Question 66.  In Patel v. Garland, Patel was prosecuted by Georgia, although the state dropped its prosecution after concluding that it had insufficient evidence that Patel committed a crime. The driver’s license application incident arose after Patel filed the I-485 application, and it is not clear whether Patel voluntarily made disclosure or whether the USCIS asked for it after Georgia prosecuted him. Of course, when there has been a criminal prosecution, Part 8 Question 25 also requires a response in the affirmative whether the applicant has been charged, cited or arrested or detained by a law enforcement official for any reason.  Under ABA Model Rule 3.3, the practitioner shall not make a false statement or fail to correct a false statement to a tribunal. If a false statement has been knowingly offered, the lawyer is obligated to take reasonable remedial measures, including if necessary, disclosure to the tribunal. In case there is any ambiguity whether USCIS is a tribunal under ABA Model Rule 1.0(m), 8 CFR 1003.102(c) contains an analogous sanction for immigration practitioners that does not distinguish whether any DHS agency is a tribunal or not, as follows:

Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures.

If a practitioner confronts a similar situation with a client who made a false claim to citizenship on a driver’s license, would there be an obligation to disclose this on the I-1485 application when the claim was not material to the benefit being sought as in Patel’s case? INA §212(a)(6)(C)(ii)(I) renders a noncitizen inadmissible “who by fraud or willfully misrepresenting a material fact seeks to procure (or has sought to procure or has procured) a visa, or other documentation, or admission into the United States or other benefit provided under this Act.” The Supreme Court in Patel cited the BIA’s decision in Matter of Richmond, 26 I&N Dec. 779 (2016), which held that INA §212(a)(6)(C)(ii)(I) is only applicable when a noncitizen 1) makes a false representation of citizenship, 2) that is material to a purpose or benefit under the law and 3) with the subjective intent of obtaining the purpose or benefit.

If the client met the standard under Matter of Richmond, and it is determined in good faith that the client did not implicate INA §212(a)(6)(C)(ii)(I), would there be a duty to disclose on the I-485 application that the client made a false claim to citizenship? While not disclosing under these circumstances might be defensible,  it would be more prudent to disclose and then explain why the applicant should not be found inadmissible under Matter of Richmond.

Hundreds of thousands of noncitizens have filed I-485 adjustment applications based on family and employment-based petitions. Immigration practitioners must be even more vigilant in representing a client competently and diligently in ensuring that the USCIS does not make a mistake when rendering a decision on an I-485 adjustment application, and if that happens, must continue to represent the client competently and diligently in seeking to redress the mistake under the limitations imposed by Patel v. Garland. The stakes have never been higher.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

The Pathos of Patel v. Garland

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By Stacy Caplow∗

There are many reasons for despair over the Supreme Court’s technocratic decision in Patel v. Garland which strikingly depends on arguments advanced by an amicus rather than the Government. The decision effectively forecloses judicial review of fact-finding by immigration courts or agencies regardless of whether the fact-finding was unreasonable and produced an incorrect legal conclusion.  In 1996, Congress did insulate certain specific discretionary decisions, which already have an almost impossible standard of review in most contexts and, by their nature are highly subjective, from judicial review. But, in Patel, the effort to protect the courts’ dockets from revisiting a “matter of grace” shields incorrect, biased, ignorant, illogical, and indefensible fact-finding by low-level or quasi-judicial officials.

As Justice Gorsuch laments in his surprisingly critical and forceful dissent, life-altering consequences ensue based on the assessment of a single Immigration Judge, or worse immigration functionaries in local offices—in this case the deportation of a person whose ties to the U.S. were substantial and longstanding.  He describes this an “assertion of raw administrative power.”

Mr. Patel made a mistake—checked a wrong box which happens to be the worst wrong box possible: misrepresentation of U.S. citizenship.  His mistake related to a Georgia driver’s license not any immigration benefits.  Apparently, he may even have been entitled to a license without being a citizen.  More importantly, when his misrepresentation was discovered, Georgia declined to prosecute him, crediting his claim of mistake.  That was the end of the road for his good luck.

Anyone familiar with the bureaucracy of the immigration system must cringe at Mr. Patel’s misfortune at every stage thereafter.  The Georgia decision apparently was unpersuasive to immigration authorities who denied lawful permanent residence, and several years later, placed Mr. Patel into removal proceedings.

This is the first cringe: Why did USCIS seek his removal?  Both the agency and then the ICE lawyers in Immigration Court had could have exercised discretion by declining to prosecute.  His basis for removal was unlawful presence making him a low priority for deportation.  The equities of his situation were in his favor.

The next cringe is geographical: While none of the reported decisions specify the jurisdiction of his removal proceedings or name the judge, as a Georgia resident he likely was venued in Atlanta Immigration Court where every judge has a denial rate over 90% in asylum cases.  While his application for relief was Adjustment of Status, this astonishingly miserly grant rate reveals how immigrant-unfriendly the judge who decided that Mr. Patel was untruthful must have been.

From one of the most immigrant-hostile immigration courts, Patel’s case eventually landed in the Eleventh Circuit, whose pro immigrant rulings are below average for all circuits.

The final cringe is ideological:  Despite the Government’s basic agreement with Patel’s legal theory that the law permits judicial review in cases like his, the Court invited an amicus defense of the Eleventh Circuit’s decision, enlisting a former law clerk of Justice Thomas.  Then, early in its opinion the majority states “Amicus’ interpretation is the only one that fits [the statute’s] text and context.” The outcome, however laboriously reasoned, was a foregone conclusion.

While Patel was found incredible by an Immigration Judge, the ramifications of this decision extend far beyond the 3,000 or so Adjustment of Status and the close to 3,000 Cancellation of Removal or related relief matters heard in Immigration Courts yearly, a small percentage of the overall caseload.  Every day, multiple thousands of cases decided by USCIS never reach even Immigration Court let alone the Circuits. These agency determinations rarely are explained or justified.   Bureaucrats—not judges—make life changing decisions invisibly, anonymously, and unaccountably.

This case has a sad ending for Mr. Patel personally.  Maybe one of the nameless agency decision makers will be compassionate enough to exercise their unlimited discretion now and defer deportation.  He may not gain lawful status, but he can remain in the U.S. with his family and his community.

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

∗Guest author Professor Stacy Caplow teaches immigration law at Brooklyn Law School where she has co-directed the Safe Harbor Project since 1997. 

 

 

 

 

 

Cyrus Mehta

H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date is Current and Green Card is Not Applied for Within One Year

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By Cyrus D. Mehta and Jessica Paszko*

The Immigration and Nationality Act (INA) § 214(g)(4) limits the amount of time that H-1B nonimmigrant workers may extend their H-1B status to six years. Under certain situations, however, H-1B status may be extended beyond the statutory six-year maximum, namely by way of a “Lengthy Adjudication Delay Exemption” or a “Per-Country Limitation Exemption”.

On January 17, 2017, regulations for high-skilled workers incorporating provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) were implemented. Under AC21 §106(a), H-1B status may be extended beyond the statutory six-year maximum for H-1B nonimmigrant workers if, inter alia, a labor certification or immigrant petition was filed 365 days prior to the end of the sixth year. Under AC21 §104(c), H-1B status may be extended for three years at a time if the individual is the beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. Therefore, a petitioner seeking an H-1B extension on behalf of an H-1B beneficiary pursuant to §104(c) must establish that at the time of filing for such extension, the beneficiary is not eligible to be granted lawful permanent resident (LPR) status on account of the per country immigrant visa limitations. In other words, if at the time of filing Form I-129 to extend H-1B status, the beneficiary’s priority date is not current under the Department of State’s Immigrant Visa Bulletin, the USCIS is authorized to grant the H-1B extension request for three additional years. Beneficiaries born in India and China can generally avail of the exemption under §104(c).

Based on §106(a) of AC21, 8 CFR § 214.2(h)(13)(iii)(D) provides a Lengthy Adjudication Delay Exemption by allowing extensions of H-1B status beyond the statutory six-year maximum if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. § 214.2(h)(13)(iii)(D)(2) further adds that H-1B approvals may be granted in up to one-year increments until either the approved permanent labor certification expires or a final decision has been made to, inter alia, approve or deny the application for permanent labor certification, immigrant visa petition, or adjustment of status application. Based on §104(c) of AC21, 8 CFR § 214.2(h)(13)(iii)(D)(10) precludes a noncitizen from taking advantage of the aforementioned Lengthy Adjudication Delay Exemption if the noncitizen is the beneficiary of an approved I-140 and fails to file an adjustment of status application or apply for an immigrant visa within one year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability. Notably, this section also provides that USCIS may excuse a failure to file in its discretion if the noncitizen establishes that the failure to apply was due to circumstances beyond his or her control. 8 CFR § 214.2(h)(13)(iii)(E) provides a Per-Country Limitation Exemption by allowing H-1B extensions beyond the statutory six-year maximum if the noncitizen is the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for application of the per country limitations. The petitioner must demonstrate such visa unavailability as of the date the H-1B petition is filed with USCIS. 8 CFR § 214.2(h)(13)(iii)(E)(1) authorizes USCIS to grant H-1B extensions of up to three years for as long as the noncitizen remains eligible for this exemption.

Even though the preamble to the rule is not binding, it at least suggests that for purposes of determining when an individual becomes eligible for the Lengthy Adjudication Delay Exemption, DHS will look to see if he or she failed to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance based on the applicable Final Action Date in the Visa Bulletin. In practice, it is advantageous for clients that visa availability be measured by the Final Action Date, instead of the Dates for Filing, as they are eligible to obtain three-year extensions, until their priority date becomes current under the Final Action Date. This is also consistent with the position that the USCIS has taken with respect to relying on the Final Action Date to freeze the age of the child under the Child Status Protection Act (see our blog criticizing use of the Final Action Date for CSPA purposes).

In other words, an H-1B nonimmigrant worker may hold H-1B status for more than six years if either 365 days have elapsed since an employer filed a labor certification or immigrant visa petition on his or her behalf.  Whether the H-1B worker may extend his or her status in one or three year increments depends on a different set of factors. H-1B status may be extended in one-year increments if a labor certification was filed 365 days prior to the end of the worker’s sixth year in H-1B status, and if the worker is the beneficiary of an approved I-140, he or she files an adjustment application or applies for an immigrant visa within one year of his or her priority date becoming current unless the failure to file timely was due to circumstances beyond the worker’s control. Meanwhile, H-1B status may be extended in three-year increments if the H-1B worker if the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for his or her priority date not being current. Thus, the key differentiating factor between the one and three year extensions is whether the H-1B worker’s I-140 priority date is current. If the H-1B worker’s priority date is current and he or she has filed an adjustment application within one year of the priority date becoming current, then he or she may only extend H-1B status in one-year increments. If the H-1B worker’s priority date is not yet current, then he or she may extend H-1B status in three-year increments provided the I-140 petition is approved.

Keep in mind that to qualify for a one-year extension, a labor certification must have been filed on the beneficiary’s behalf 365 days prior to the end of the H-1B worker’s sixth year, and to qualify for the three-year extension, the I-140, which could have been filed at any time, needs to be approved and the immigrant visa must be unavailable. But what happens when an H-1B worker’s priority date has become current and he or she has not filed an adjustment application or immigrant visa within one year? If an immigrant visa is available, then only the one year extension must be requested and proof must also be provided that the worker has applied for adjustment of status or immigrant visa within one year of the Final Action Date. If an employer mistakenly requests three years instead of one year in the H-1B extension request, USCIS will likely issue a Request for Evidence (RFE) questioning why a three year extension was requested and also whether an adjustment of status application has been filed if more than one year has elapsed since the visa became available.

Fortunately, under 8 CFR § 214.2(h)(13)(iii)(D)(10), USCIS may excuse failures to file timely upon a successful showing that the failure to apply was due to circumstances beyond the noncitizen’s control. Indeed, there are certain instances in which a noncitizen may not file an adjustment application or immigrant visa within one year of his or her priority date becoming current, for example, where the noncitizen switches employers. Under AC21 §§ 106(a) and 104(c), the worker is eligible for H-1B extensions even if a prior employer filed the labor certification or immigrant visa petition. Given that an adjustment of status application cannot be filed with the prior employer when there is no job offer, the current employer must start the PERM labor certification process anew and then file a new I-140 petition with the prior priority date recaptured. We believe that such facts present circumstances beyond the noncitizen’s control that warrant a waiver of the of the requirement that adjustment applications be filed within one year of the immigrant visa becoming available.

Skilled workers born in India who are caught in the EB-2 and EB-3 backlogs already face several obstacles while waiting for the green card. We have pointed out one more minefield that the worker needs to successfully overcome in remaining in the US in H-1B status while waiting for permanent residency.

 

*Jessica Paszko graduated with a J.D. from Brooklyn Law School in 2021 and is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Ethical Considerations  when ICE Moves to Dismiss Removal Proceedings under the Doyle Prosecutorial Discretion Memo

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By Cyrus Mehta and Kaitlyn Box*

On April 3, 2022 the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle issued a memorandum (“the Doyle memo”) which empowers ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the criteria laid out in the earlier Mayorkas memo. The goal of the ICE prosecuting attorney under the new policy is to achieve justice rather than removing the noncitizen. Indeed, under the Doyle memo, the ICE attorney’s role as the government’s representative in removal proceedings is to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

For cases where removal proceedings have not yet been initiated, the Doyle memo encourages ICE attorneys to consider not filing a Notice to Appear (NTA). If an NTA has already been issued, the Doyle memo prescribes filing a motion to dismiss the case, whether or not the noncitizen consents to the dismissal. The memo also outlines some of the other tools ICE prosecutors can employ as an exercise of discretion, including stipulations to issues or relief, continuances, not pursuing appeals, joining in motions to reopen, and administrative closure, which temporarily halts removal proceedings by taking a case off a court’s docket for the time being. However, the Doyle memo states that OPLA’s strong preference is to remove nonpriority cases from the docket permanently through dismissal or similar means, so that resources can instead be devoted to priority matters.

Some of the guidance provided in the Doyle memo will provide helpful relief to individuals in removal proceedings, or individuals who have not yet been placed in proceedings, the memo also raising some ethical conundrums for practitioners of immigration law. As mentioned above, the Doyle memo authorizes ICE prosecutors to file motions to dismiss nonpriority cases, even if the noncitizen does not agree with the dismissal. If an individual in a  removal proceeding has an application for relief pending before EOIR such as an application for cancellation of removal and the case is outright dismissed, the noncitizen might lose work authorization or another benefit associated with the pending application. This individual will also be deprived of the ability to pursue the application and win cancellation of removal. Dismissal will put the noncitizen back to square one as an undocumented person. It is possible that a noncitizen who has been granted cancellation of removal but is waiting in the queue for a number can also be subject to a unilateral motion to dismiss by an ICE prosecutor.  Thus, it is crucial for attorneys to promptly notify clients of an outright dismissal and any associated consequences. Board of Immigration appeals case law also provides a basis for attorneys to be able to challenge outright dismissals that are deleterious to their clients. In Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998), the BIA held that once the NTA is filed  an Immigration Judge must not simply cancel a charging document upon USCIS’ invocation of prosecutorial discretion, but should adjudicate the motion to dismiss on the merits, considering arguments from both sides.

Certain noncitizens have a right to be placed in removal proceedings. One whose affirmative asylum application is not granted must be referred for removal proceedings pursuant to 8 CFR 208.14(c)(1). Similarly, under 8 CFR 216.4(d)(2) and 8 CFR 216.5(f), the denial of a joint I-751 or waiver I-751 petition requires the issuance of an NTA. A dismissal of such an application would clearly be in violation of not just the applicable regulations but also the Doyle memo. Still, the IJ can dismiss a proceeding where a meritless asylum application was filed with the USCIS for the sole purpose of seeking cancellation of removal in immigration court. See Matter of Andrade, 27 I&N Dec. 557 (BIA 2019. Thus, attorneys must be vigilant to contest a motion to dismiss if the facts of the case can be distinguished from Matter of Andrade. For instance, even if the asylum application may have been filed with the intention for seeking cancellation of removal, but the asylum application had merit, this would not be a basis for an IJ dismiss the proceeding.

The Doyle memo also encourages ICE attorneys to employ other tools in exercising prosecutorial discretion, such as filing joint motions to dismiss. There is often a short time frame to respond to these motions, so advocates must be vigilant in ensuring that they inform clients and submit a timely response. Advocates should ensure that clients have an avenue for relief before joining a motion to dismiss, and should inform clients about what a dismissal would mean for their case and any negative consequences.

The Doyle memo states that OPLA attorneys may agree to administrative closure when the noncitizen does not oppose and the specific facts of the case warrant administrative closure over other means of clearing the case from the docket. In some instances, though, OPLA can unilaterally seek administrative closure regardless of the wishes of the noncitizen. Immigration attorneys should inform their clients of the impact that an administrative closure would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure is not a permanent termination of removal proceedings, so attorneys must continue to monitor administratively closed cases and seek more lasting forms of relief for their clients.

Despite its beneficial aspect, the methods for exercising prosecutorial discretion suggested in the Doyle memo could place noncitizens in uncertain situations and raise ethical dilemmas for their immigration lawyers. The attorney must be competent, diligent and must communicate with the client to ensure that the client is not worse off than in pending removal proceedings. Most important, the attorney must obtain the client’s informed consent before responding to any initiative by the ICE prosecutor under the Doyle memo or reaching an agreement with the government. The pros and cons of seeking relief under prosecutorial discretion over seeking relief under the INA must be carefully considered and discussed with the client.  Because OPLA does not include language in motions that would preserve a noncitizen’s ability to work, dismissal of the case often means that a noncitizen will lose work authorization with little warning. Dismissal of a case may also leave individuals with essentially no authorization to remain in the US, giving them little choice but to work without authorization, not pay taxes, and potentially violate the law in other ways. Immigration attorneys must carefully analyze these issues and advocate for their clients when a dismissal or administrative closure may do more harm than good.

 

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence

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By Cyrus Mehta and Kaitlyn Box*

In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. On March 16, 2022, the Department of Homeland Security also announced the designation of Afghanistan for TPS for a period of 18 months.

Generally, TPS provides a temporary immigration status to nationals of countries fraught with armed conflict or other disasters. In order to be eligible for TPS, an individual must be a national of a country designated for TPS, have been continuously present in the U.S. since the date of the designation, have continuously resided in the U.S. since a date specified by the Secretary of Homeland Security, and not be inadmissible to the United States. In the case of Ukraine, the requirement that applicants must have continuously resided in the United States since April 11, 2022 will render many  Ukrainian nationals ineligible for TPS, as many individuals fleeing the war would not have arrived in the United States by that date. Individuals who are granted TPS receive a stay of deportation and temporary authorization to work in the United States.

The Uniting for Ukraine program that would allow Ukrainians to enter the US under humanitarian parole was announced on April 21, 2022. Thus, those who will get paroled into the US under Uniting for Ukraine will not be eligible for TPS.  However, several thousand Ukrainians who came to Mexico  after the Russian invasion in February 20, 2022 and got paroled into the US from the Southern border prior to April 11, 2022 will be eligible for TPS.

On the other hand, Afghans have been applying for  humanitarian parole prior to and  after the US withdrew from Afghanistan on August 30, 2021. A recent New York Times report states that of the 43,000 humanitarian parole applications received by USCIS since July 2021, the agency has processed less than 2,000. Of those processed applications, 1,500 were denied and 170 were approved as of February 11, 2022. While the humanitarian parole program for Afghans has been a disappointment, those who have been paroled into the US already prior to March 16, 2022 can apply for TPS.

Though it provides an important temporary form of relief for some nationals of countries experiencing a crisis, TPS is, by its very nature, temporary and does not provide foreign nationals with a pathway to permanent residence or citizenship in the United States. Thus, one must look for other alternatives for individuals who wish to seek permanent residence in the United States. Foreign nationals who have a U.S. citizen or lawful permanent resident relative may be able to file a family-based adjustment of status application, but some family preference categories are extremely backlogged. Skilled TPS recipients who can find a U.S. employer to sponsor them may instead be eligible to file an employment-based adjustment of status application. There are no backlogs for most TPS-designated countries, and spouses and minor children of the primary applicant may also file adjustment of status applications. In addition, foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa, which does not require employer sponsorship or a Labor Certification.

However, complications arise when a TPS recipient who entered the U.S. without inspection wishes to apply for permanent residence. Pursuant to INA § 245(a), an individual must have been inspected and admitted  or paroled into the United States in order to be eligible to apply for adjustment of status. A foreign national who was inspected and paroled into the United States would be eligible for adjustment of status, but an individual who entered without inspection would not. In a previous blog, we analyzed the Supreme Court’s decision in Sanchez v. Mayorkas, which holds that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. However, the decision seems to leave open whether a grant of TPS could “cure” a short lapse in the status of an individual who was inspected and admitted to the U.S., but later fell out of status. In her opinion, Justice Kagan gives the example of an individual who was out of status for a few months before receiving TPS, potentially implying that receiving TPS ends an individual’s time out of status, if this duration would otherwise have exceeded 180 days and rendered the individual unable to adjust under INA § 245(k). Additionally, the decision could imply that a grant of TPS could qualify as a “lawful nonimmigrant status”, which could assist individuals who would otherwise have been ineligible to file and adjustment of status application under INA § 245(c)(7).

While TPS is no doubt an important tool for aiding individuals who have fled Ukraine or Afghanistan, not all nationals of these countries will be eligible and a grant of TPS does not provide a path to permanent residence in the U.S. Thus, some TPS recipients, or individuals from TPS-designated countries who are ineligible, may be able to utilize employment-based immigrant visa petitions as a path to permanent residence.  Thus, one who was initially paroled into the US and then was granted TPS would be able to apply for adjustment of status if he or she became the beneficiary of an employment based I-140 petition after an employer obtained labor certification. The parole would fulfill the requirement  under INA 245(a) that the applicant have been inspected and admitted or paroled into the US. The subsequent grant of TPS would then confer “lawful nonimmigrant status” to that applicant and thus render him or her eligible for adjustment of status under INA §245(c)(7).  However, TPS recipients who entered without inspection will be ineligible to apply for adjustment of status. For individuals who were inspected and admitted to the U.S., though, but later had a lapse in status, a grant of TPS could render them again eligible for permanent residence.

There will be large numbers who will enter the US on humanitarian parole under Uniting for Ukraine but will not be eligible to receive TPS as they would have entered the US well after the cut off date of April 11, 2022. If a parolee is sponsored by an employer through labor certification, he or she will not be eligible for adjustment of status as parole is not considered a lawful nonimmigrant status under INA  § 245(c)(7).  This person will have to process at a US Consulate overseas after the I-140 petition is approved. Fortunately, Ukrainian nationals can have their cases processed at the US Consulate in Frankfurt rather than in Kiev. On the other hand, a parolee would still be able to adjust status under 245(a) as an immediate relative. Similarly, a parolee who becomes the beneficiary of an I-130 petition under a family preference category will also be able to adjust status as the requirement to be in “lawful nonimmigrant status” under 245(c)(7) only applies to beneficiaries of employment-based petitions and not family-based petitions. Indeed, one in parole status would be considered  to be in a lawful status under 8 CFR 245.1 (d)(1)(v) for purposes of adjusting status under a family-based petition but not an employment-based petition.

There are pathways for people who have been paroled to become permanent residents, and even more  pathways for those who have subsequently received TPS. Given the low unemployment rate and shortage of workers in the US, employers should look to not just be hiring Ukrainians and Afghans as parolees or in TPS status, but must also endeavor to sponsor people with parole and TPS for permanent residence through a labor certification, an I-140 petition and the filing of an I-485 adjustment of status application. Those who may not be eligible for adjustment of status because they are parolees can still proceed to a US Consulate for an immigrant visa following the approval of the I-140 petition.

The sponsoring of  workers based on their true worth skills would allow them to pursue better jobs and careers. Presently, people on TPS or parole may have employment authorization, but many are in jobs that may not match their skills. How many times has one been driven by a taxi driver who was a doctor or engineer in their own country or received groceries from a delivery person who may have previously been an accountant?   An employer who commits to hiring and then sponsoring a foreign national worker on parole or TPS based on their real skills creates a win-win situation for both.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

I-485 Supplement J Should Not Be the Only Vehicle to Express Portability

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By Cyrus D. Mehta

It is well settled that noncitizens must have the requisite intent to work for their employers at the time of entry or adjustment of status under the employment second (EB-2) or employment third preferences (EB-3) unless they are exercising job portability under specific statutory provision. A noncitizen who does not have such a bona fide intent is potentially inadmissible under Section 212(a)(5) of the Immigration and Nationality Act (INA) or may be deportable after entry.

Noncitizens who never reported to the certified job after entering the US as a permanent resident have been found deportable. For instance, in Spyropoulos v. INS, 590 F.2d 1 (1st Cir. 1978), a Greek national with Canadian citizenship, was offered a job as a cabinet maker in Washington DC. and the prospective employer obtained labor certification, but was unable to obtain confirmation of the job offer prior to entering the US. Upon arrival in the US, the respondent worked instead in Massachusetts as a woodworker and shortly thereafter with yet another employer as a machinist. The court upheld the lower Board of Immigration Appeals (BIA) reasoning that the respondent should have known that there were problems regarding the offer of employment before he entered the US and further held that he was excludable under Section 212(a)(5) as he never had an intent to take up the certified job.

On the other hand, there are also a long line of decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso, 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoe lace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux, 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry).

Yet, INA Section 204(j), enacted by Congress in 2000 through the American Competitiveness in the 21st Century Act (“AC21”), provides job portability by leaving intact a labor certification or an employment-based I-140 petition when the I-485 adjustment of status application has been pending for 180 days or longer even if the noncitizen changes jobs provided it is in the “same or similar occupational classification” as the job described in the I-140 petition. AC21 turned the prior law topsy turvey in a positive way by allowing  noncitizens under special circumstances to change their intent even prior to obtaining permanent residence.

Section 204(j), thus, overrides prior law that required a noncitizen to have a bona fide intent to work for the employer who sponsored him or her. Section 204(j) is known as “portability” as it allows an I-485 applicant whose application has been pending for 180 days or more to change jobs within the same employer or even change employers provided it is in the same or similar occupation. 8 CFR Section 240.25(a), which was promulgated on January 17, 2017,  states that the applicant may affirmatively demonstrate to USCIS on Form I-485 Supplement J that  either the job offer by the petitioning employer is continuing or that the applicant has a new offer of employment through the same employer or a different employer, or through self-employment, in the same or similar occupational classification as the employment offered under the I-140 petition. Although 8 CFR Section 240.25(a) does not make it mandatory to submit an I-485J, the instructions on the form make it mandatory to submit the I-485J thus incorporating it  into the regulation (although incorporation of form instructions into a regulation without notice and comment make them vulnerable to court challenge under the Administrative Procedures Act).

Thus, if an applicant legitimately ports under a pending I-485 application, his or her intent to work for the sponsoring employer is no longer relevant. If on the other hand, the noncitizen did not have an offer to work in a same or similar job under Section 204(j), and the I-485 application is is approved, it does not appear that the applicant can exercise portability upon the acquisition of permanent residence. At this point, upon the approval of the I-485 application, the noncitizen must demonstrate that he or she had the intent to work for the employer. Not working for the employer, or reporting to work for that employer, if there was no porting prior to the adjudication is not an option. Section 204(j) portability thus seems to put those in a favorable situation prior to the successful adjudication of the I-485 application. If such persons did not have an offer of same or similar employment prior to the approval of the adjustment application, they must demonstrate they had an intent to work for the sponsoring employer. Portability’s paradox, as explained in a prior 2009 blog,  thus favors the person who was able to demonstrate a job offer in a same or similar job before adjudication of the I-485 application and not after. Of course, this is unfair for an applicant who has waited several years and worked for the same employer only to be required to work for the same employer after lawful permanent residency is granted.  Furthermore, Section 204(j) only benefits an I-485 applicant. If the individual is overseas waiting for a visa appointment at the US consulate instead of adjusting status in the US, he or she cannot avail of this benefit.

There are thousands of beneficiaries of EB-2 and EB-3 petitions whose I-485 applications have been pending even though the priority date of the I-140 petition under the Final Action Date in the State Department Visa Bulletin has become current. These applicants may also desire to change jobs either with the same employer or with a different employer in a same or similar occupational classification. If they are in the process of preparing and submitting I-485Js, and the USCIS approves the I-485 application, this applicant’s green card should not get jeopardized only because the I-485J was not received before the USCIS approved the I-485 application but they otherwise had job offers in a same or similar occupational classification. It does not make sense for this applicant to go back to the old job, which may not exist.  It is also  not good policy to rescind permanent residency only because the I-485J was not submitted before the I-485 application was approved. The USCIS should still be able to determine if the applicant ported under Section 204(j) based on other facts and circumstances even in the absence of the I-485J.

At this point, there is fortunately no anecdotal evidence that USCIS is initiating rescission proceedings if  permanent residency was granted prior to the receipt of the I-485J. However, naturalization examiners have been known to question applicants if they did not take up the position that was the subject of the I-140 petition. If there has been an allegation that the applicant did not properly receive permanent residency, it has been possible to convince a naturalization examiner that the applicant changed to a job in a same or similar occupational classification and thus was properly granted permanent residence. It has also been demonstrated that the I-485J was only issued on January 17, 2017 and so there was no notification requirement prior to that date. However, those who file for naturalization in 2022 will not be able to argue that there was no notification requirement in the 5 years preceding the filing of the application as the I-485J has been in existence for the past 5 years. If such a person did not file the I-485J, the naturalization application should not be denied on the ground that the applicant was not properly admitted as a permanent resident 5 years ago. This person should be  able to demonstrate on a case by case basis that the new job was in a same or similar occupational classification even if the I-485J was not submitted or acknowledged prior to the approval of the I-485 application.

A simple edit to the USCIS  policy manual would resolve this issue and put to bed any anxiety:

In any situation where a Supplement J was not approved or filed before the adjustment of status was granted, USCIS shall not rescind, nor shall it initiate removal proceedings to revoke, the legal permanent residence of any applicant who used section 204(j) so long as the new job was, in fact, in a same or similar occupation as the job for which USCIS approved the I-140. Where the requirement of a same or similar occupation is met, but no Form I-485 Supplement J was filed, USCIS shall consider an applicant for naturalization to have been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of law, for purposes of section 318 of the INA, notwithstanding the absence of the Supplement J.

This would be consistent with Section 204(j) as well as USCIS’s own regulation at 8 CFR § 245.25(a) that does not make the I-485J mandatory. The failure to file an I-485J should not jeopardize permanent resident status if an applicant ports to a new job so long it can be determined that it is in a same or similar occupational classification. The I-485J should not be the only vehicle for an I-485 applicant to express portability as it would be absurd if USCIS approves the I-485 application one minute before the I-485J is received at USCIS and thwarts one’s ability to port under INA 204(j). The I-485J was designed to provide a way for the applicant to notify the USCIS about portability, but it should not be mandatory, and ought not create peril and anxiety for the applicant. Now USCIS has also decided that filing I-485J is required with an interfiling request and this affects portability eligibility by starting the 180 day clock even though the I-485 has been pending for over 180 days. This is a ghost filing that is not supported in the INA or 8 CFR!

Congress did not intend to put  an applicant in a worse off position as applicants who filed their I-485Js prior to the  adjudication of the I-485 application. Congress by enacting AC21 intended to ameliorate the plight of applicants who were waiting endlessly for their green card and it would be inequitable, bordering on involuntary servitude, for such a person to maintain an intent to work for the sponsoring employer for years on end. There are other provisions in AC21 that provide similar relief, such as extending the H-1B status beyond the six year limit, and thus the entire purpose of AC21 was to provide relief to professional and skilled workers who are in the US here but caught in the green card backlogs. While the example of the grant of permanent residency without the submission of the I-485J starkly demonstrates the absurdity of the disparity when the person clearly had a job offer in a same or similar occupational classification, the same benefit should broadly apply to persons who got the green card after an endless wait as I-485 applicants but changed their intention after receiving it. It makes no sense to allow portability while the applicant is the subject of an I-485 application that has been pending for 180 or more days, but then restrict this benefit to one who obtains permanent residency and receives a job offer in a same or similar occupation shortly thereafter.

 

 

 

 

 

 

 

Cyrus Mehta

Immigration Relief for Ukrainian Refugees: What the United States is Currently Offering

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I conducted  a  one hour presentation on immigration relief for Ukrainians under the aegis of the Practising Law Institute on March 29, 2022, and spoke about options for Ukrainians in the US as well as for those who have fled Ukraine or considering fleeing as a result of the unprovoked Russian invasion. This presentation  should assist attorneys who wish to represent Ukrainians impacted by the invasion.  One can download video recording through this link https://www.pli.edu/programs/immigration-relief-for-ukrainian-refugees-what-the-united-states-is-currently-offering?t=ondemand

Below is the PowerPoint presentation with useful links. Since there are new developments regarding Ukraine every day, the information is current as of March 29, 2022.

[embeddoc url=”https://blog.cyrusmehta.com/andromeda/wp-content/uploads/2022/04/PowerPoint-Ukraine.finalv2.pptx” height=”420px” viewer=”microsoft”]

Cyrus Mehta

Using U.S. Immigration Law to Undermine Putin

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By Cyrus D. Mehta and Kaitlyn Box*

Since Russia’s invasion of Ukraine in late February 2022, there has rightly been much discussion of how to assist the Ukraine and its citizens. The United States’ immigration laws can plainly be employed to assist Ukrainian nationals who wish to seek refuge in the United States, including extending Temporary Protected Status for them. However, immigration can serve another important function, as well. One can harness immigration avenues that are already open to Russian citizens to welcome Russia’s “best and brightest” to the United States, thereby undermining Putin’s tyrannical regime. While immigration attorneys and advocates may not be able help courageous Ukrainians in the battlefield, we can help their cause by using our immigration law expertise in creatively finding pathways for Russians opposing Putin to come to the US.

In recent weeks, Putin has cracked down on those within the country who object to the war, targeting journalists who even refer to the operations in Ukraine as a “war” or “conflict”.  Many educated Russians who impose the war have been forced to leave the country out of fear of arrest or worse. With more and more companies and institutions withdrawing from Russia, many also find themselves concerned about the future of their career and ability to earn a living. Along with journalists, bloggers, and activists, I.T. professionals and other creatives have been leaving Russia in droves since the onset of the war.

Offering Russian nationals who oppose the war a safe harbor is a worthy objective in and of itself, but attracting Russian talent to the United States can serve another goal as well – undermining the Kremlin’s power and influence. The United States would undoubtedly benefit from an influx of Russian scientists, researchers, I.T. professionals and other skilled workers, and the Russian military and economy would suffer from the loss of this talent. Offering Russian nationals a streamlined process for immigration to the United States, as well as connecting them to employers and universities in the country, would assist in attracting top talent.

In the current absence of targeted programs for fleeing Russians, however, existing immigration options can help fleeing Russian national who wish to relocate to the United States. Russian nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa. In order to obtain an EB-1 visa, one must provide evidence of a one-time achievement of major, internationally-recognized award on the level of an Oscar or Pulitzer Prize, or meet 3 of the following 10 criteria:

  • Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
  • Evidence of your membership in associations in the field which demand outstanding achievement of their members
  • Evidence of published material about you in professional or major trade publications or other major media
  • Evidence that you have been asked to judge the work of others, either individually or on a panel
  • Evidence of your original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
  • Evidence of your authorship of scholarly articles in professional or major trade publications or other major media
  • Evidence that your work has been displayed at artistic exhibitions or showcases
  • Evidence of your performance of a leading or critical role in distinguished organizations
  • Evidence that you command a high salary or other significantly high remuneration in relation to others in the field
  • Evidence of your commercial successes in the performing arts

A noncitizen of extraordinary ability must also be able to demonstrate that she intends to continue working in her area of expertise. Importantly, no offer of employment or labor certification is required for an EB-1 visa.

Similarly, highly talented Russian nationals could consider applying for an O-1 visa, the nonimmigrant parallel to an EB-1 visa, as the O-1 visa can be effectuated more rapidly. Individuals with an extraordinary ability in the sciences, education, business, or athletics may be eligible for an O-1A visa, while those with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry may be eligible for an O-1B visa. A U.S. employer must file an O-1 petition on behalf of a foreign national of extraordinary ability, and must demonstrate that the beneficiary meets the relevant criteria. There are other visa options under immigration law, such as the H-1B visas and permanent residency in the employment and family based categories, although we have highlighted two that would be applicable to the “best and brightest.”

 Finally, Russian nationals who have publicly expressed opposition to the war, or even reported on it,  may also be eligible for asylum in the United States. Russia has already opened cases, both administrative and criminal, against people who have protested or written about the war.   As noted, on March 4, 2022 Russia enacted two laws, adopted and brought into force on March 4, that criminalize independent war reporting and protesting the war, with penalties of up to 15 years in prison. The laws make it illegal to spread “fake news” about the Russian armed forces, to call for an end to their deployment and to support sanctions against Russian targets. On March 23, 2022, Russia’s Parliament adopted amendments effectively expanding the ban on criticizing the armed forces to banning criticism of all Russian government actions abroad. Individuals who have a well-founded fear of persecution based on past persecution or a risk of future persecution due to their race, religion, nationality, membership in a particular social group, or political opinion may be eligible for asylum. They must be in the US or must be apply at a land border post or port of entry. If they come in through Mexico and apply at the Southern Border, they will be subject to Title 42 that has been used by both the Trump and Biden administrations to block asylum seekers out of fear that they will bring Covid-19 into the US. The Biden administration has exempted Ukrainians from Title 42 on a case by case basis, but Russians will be subject to Title 42.   Given the Putin regime’s recent increased sanctions on those who even discuss the war against Ukraine, Russian nationals who have openly opposed the invasion could potentially have a viable political opinion-based asylum claim.

The Biden administration has recently announced that the United States will accept up to 100,000 Ukrainian refugees, but U.S. immigration policy assist the victims of Russia’s invasion of the Ukraine in another way, also. By attracting highly skilled Russian nationals who oppose the war, the United States can both drain the Kremlin of key talent and shelter civilians who face danger in Russia through the effective deployment of US immigration policy. As the atrocities committed by Putin increase by the day, Russian nationals themselves, and the United States’ reception of these individuals, may be a key to achieving peace.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.