Cyrus Mehta

State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student  Nonimmigrant Intent

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The State Department has given much needed holiday gifts to ease delays in visa processing brought about by the evisceration of consular operations due to Covid-19.

According to a  December 22, 2021 article in Roll Call, visa applicants in London, Paris and Mexico City, for instance,  must wait about two months for a nonimmigrant visa appointment. In Toronto, the wait for such an appointment is more than a year, while at US Consulates in India, visa appointments are available only on an emergency basis. The situation has become so dire that many in the US who are in status but whose nonimmigrant visas have expired prefer to remain in the US rather than travel abroad to visit family. Those who leave the US must wait for months before they can get a new visa to reenter the US.

I was quoted in the Roll Call article advocating that the 48 month interview waiver policy be extended, and a day later on December 23, 2021, the State Department did precisely this by  indefinitely extending the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration. The State Department went even further by waiving the in person interview for many nonimmigrant visa classifications. To summarize: Those who have previously received any type of visa, or have used ESTA to travel to the US, and have never been refused a visa in a way that wasn’t overcome, may be able to obtain H-1B, H-3, H-4, L, O, P, and Q visas without an interview. The expanded interview waiver policy can be found at https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/.

The expanded interview waiver policy will most certainly provide relief to visa applicants who were otherwise subject to interminable delays in visa processing as a result of limited visa operations due to Covid-19. It will also allow consulates to focus their limited resources on visas that require interviews such as immigrant vias, E visas and those not subject to the expanded interview waiver policy thus shortening the delays. Even if interviews can be waived, “embassies and consulates may still require an in-person interview on a case-by-case basis and dependent upon local conditions.” There is also uncertainty whether people would be able to easily schedule Drop Box appointments as many report that obtaining such appointments in India are hard to get.

The State Department’s expanded interview waiver policy is an example of how the Biden administration can bring about much needed relief to visa applicants through a simple administrative fix. More can be done such as reinstating the ability to obtain a visa stamp in the US itself if the first visa in the same classification  was issued at a US embassy or consulate. This used to be the case until the State Department discontinued stateside visa processing in 2004 as a result of the need to impose  enhanced security measures after the September 11, 2001 attacks. The State Department should also consider conducting video interviews, among other measures suggested by AILA to reopen America,  as that would certainly help in reducing the backlog of immigrant visa applicants waiting to be processed at US consulates around the world.

 

Relaxed Policy in Determining Student Nonimmigrant Intent

In another smart move, the State Department brought back the relaxed policy regarding F-1 and M-1 visa nonimmigrant intent in the Foreign Affairs Manual at https://fam.state.gov/FAM/09FAM/09FAM040205.html. The new policy recognizes that students applying for  F-1 or M-1 visas do not have the same strong ties with their home country as B visa applicants, and they should not be subject to the same vigorous scrutiny of determining whether they have a residence abroad which they have no intention of abandoning and whether they intend to depart the US after they finish their studies. The following extract from 9 FAM 402.5-5(E)(1) is worth noting as its refreshing:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas.  The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa.  It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.  These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future.  Student visa adjudication is made more complex by the fact that students typically are expected to stay in the United States longer than do many other nonimmigrant visitors, to complete their program of studies.  In these circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States.  Therefore, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student would have, and their immediate intent………

While students may not be able to demonstrate the same strong “ties,” present in other classes of applicants, their typical youth often conveys a countervailing major advantage in establishing their bona fides: they are not expected to, or do not necessarily have a long-range plan, and may legitimately not be able to fully explain their plans at the conclusion of their studies.  As most students are relatively young and many reside with parents or guardians, you can consider a student to be maintaining a residence abroad if he or she intends to return to reside with parents or guardians.  Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities.  That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.  Further, the present intent to depart, does not infer the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of studies.

 

This was the prior policy of the State Department from 2005 until it was modified by the Trump administration in 2017, and the history of this policy is discussed in our prior blog State Department Toughens Standard for Assessing a Foreign Student’s Ties With Home Country. It was first articulated in 2005 after student visa applications were being denied in the aftermath of the September 11 terrorist attacks. The new policy that required examining a student’s nonimmigrant intent more leniently led to fewer student visa refusals. The Trump administration guidance was more restrictive, but student visa applications were not being wholesale rejected although students were more vulnerable to rejections as consular officers could not rely on the same broad guidance as before.    Based on the reaffirmation of the relaxed guidance on December 20, 2021, students applying for F or M visas should not be denied just because they do not have strong ties with the home country, and even though the student must still demonstrate a present intent to depart the US, if this intention is subject to change or even likely to change in the future is not reason enough to refuse the visa.

Notwithstanding the change in State Department policy as expressed in the FAM, the USCIS is unfortunately not bound by the FAM. Many children of parents caught in the employment-based second and third preference backlogs who are aging out are forced to change status from H-4 to F-1, and they too should also be able to benefit from this guidance. It would behoove the USCIS to also follow the State Department policy when one applies for a change of status to F-1 in the US. Nonimmigrant children  should not be penalized for not having ties abroad as they have been here for most of their lives and are being forced to change to F-1or M-1 status just because their parents could not timely receive a green card due to the per country limits in the employment preferences.  They also are unable to claim the benefit of the Child Status Protection Act due to erroneous USCIS policy of not allowing use of the Date for Filing in the Visa Bulletin to freeze the age. The fact that they or their parents have have sought permanent residence should not be held against them when they apply for change of status from H-4 to F-1 in the US. The best way for the USCIS to safeguard against denials of change of status applications  is to recognize that there is an inherent dual intent in all nonimmigrant visas, including F-1 and M-1 visas, as established in Matter of Hosseinpour. In that case, the Board of Immigration Appeals recognized in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. Matter of Hosseinpour is still good law. The Biden administration must continue to use all possible tools and resources to make life easier for nonimmigrants caught in the backlogs until Congress acts. Recognizing dual intent in nonimmigrant visas would help in ameliorating the plight of aged out children desiring to remain in nonimmigrant status in the US.

 

 

 

 

 

Cyrus Mehta

The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?

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By Cyrus D. Mehta

Several children who filed I-485 applications as derivatives of their Indian born parents under the October 2020 Visa Bulletin are being denied because they turned 21 years before the Final Action Dates became current. The backlogs for India in the employment-based second and third preferences have already caused untold suffering to beneficiaries of approved I-140 petitions who have to wait for over a decade in the never ending backlogs. When the Dates for Filing in the India EB-3 overtook the India EB-2 under the October 2020 Visa Bulletin thousands of applicants filed I-485 applications for themselves, spouses and minor children.   Hence, the denial of the I-485 applications of their children who turn 21 and are not allowed to claim the protection of the Child Status Protection Act through the Dates for Filing exacerbates the problem for these beneficiaries.

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the Final Action Dates (FAD) protects the age of the child under the Child Status Protection Act (CSPA). The State Department too has the same policy of using the FAD for purposes of freezing the age of the child at 9 FAM 502.1-1(D)(4) .

Using the Dates for Filing (DFF) to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintains that only the FAD can protect the age of the child. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the FAD becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the FAD becomes available while the child’s application gets denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DOF should protect the age of the child under the CSPA rather than the FAD.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation in the policy manual that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, the applicant still will meet the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

Neither the USCIS nor the DOS have considered reversing this policy by allowing CSPA protection based on the DFF. Brent Renison  challenged this policy in  Nakka v. USCIS, details of which can be found on his blog at http://www.entrylaw.com/backlogcspalawsuit.  The plaintiffs in this case not only challenged the CSPA policy but also argued that they were denied equal protection under the Fifth Amendment  on the ground that  children of parents who were born in countries such as India and China that have been impacted by the per country limits have a worse outcome than children of parents born in countries that have not been impacted by the per country limits.  Magistrate Judge Youlee Yim You   found on November 30, 2021 that plaintiffs’ claims that the USCIS Policy Manual and Foreign Affairs Manual dictating the use of the FAD to calculate the CSPA age instead of DOF was not “final agency action” and thus could not be reviewed under the Administrative Procedure Act.   Magistrate Judge You also found that plaintiffs could not claim a violation of equal protection under the U.S. constitution for unequal treatment. The Magistrate Judge’s decision is only a recommendation to the district court judge presiding over the case, who is Judge Simon. The Magistrate Judge’s recommendation also does not pass any judgment on the policy itself and whether it is appropriate to rely on the FAD rather than the DOF. It should also be noted that a Magistrate Judge is not an Article III judge and her findings and recommendations will not be binding leave alone persuasive on another court.

Prior to Nakka v. USCIS, there was another challenge in Lin Liu v. Smith, 515 F. Supp. 3d 193, 199 (S.D.N.Y. 2021) to the policy in the FAM requiring the use of the FAD rather than the DOF to protect the CSPA age. In this case too, Judge Koeltl opined that the policy in the FAM is an interpretive rule rather than a legislative rule. The plaintiffs also claimed that the government unlawfully applied the updated Visa Bulletin to the plaintiff retroactively. Here too the court dismissed the claim because the court held that DOS did not implement a new policy, and therefore there was nothing that could have been applied retroactively to the plaintiff. Judge Koeltl made the following observation:

The Visa Bulletin formerly contained one chart that listed the priority dates that were current for visa number availability. DOS updated the Visa Bulletin to include a second chart showing when applicants could file their applications with the NVC. However, the Final Action Date chart, not the Dates for Filing chart, reflects the information previously listed in the one-chart Visa Bulletin. In other words, the Dates for Filing chart is the new feature in the Visa Bulletin, not the Final Action Date chart. Both before and after the modernization of the Visa Bulletin, DOS used the same information to determine when a visa number became available, namely, when a visa number could be issued legally given the limits set by Congress. While DOS did change the format in which it conveyed this information—posting two charts to the Visa Bulletin rather than one chart—the substantive policy did not change. The newly added Dates for Filing chart reflects useful information for when applicants can begin submitting materials to the NVC, but it does not reflect when visa numbers  are legally available. Therefore, the plaintiff has not pleaded adequately that the defendants changed their policy with respect to tethering visa number availability to when the visa number could be issued lawfully given country and category limits to visa allocation.

Lin Liu v. Smith should not be considered the final word on challenging the USCIS CSPA policy. The plaintiff in this case was a derivative child who was outside the US processing her immigrant visa at the US Consulate. Her father had received a visa under the EB-5 but she had been denied the visa because she was not able to demonstrate that her age had been protected under the DOF and not the FAD. However, Judge Koeltl did not deal with the paradox that is applicable to adjustment applicants in the US. Unlike applicants pursing an immigrant visa at a US consulate, they are allowed to file an adjustment application under the DOF because the USCIS has interpreted the DOF to signify that a visa number is immediately available under INA 245(a)(3). However, the child is then deprived of the ability to demonstrate that the visa is immediately available under INA 203(h)(1)(A) for purposes of protecting his or her age.

The setbacks in Nakka v. USCIS and Lin Liu v. Smith ought not discourage a plaintiff from continuing to challenge the inconsistent USCIS policy of allowing an adjustment application to be filed under the DOF but not allowing CSPA age protection. One  involves the findings and recommendations of a non-Article III magistrate judge, which can be overruled by the district judge presiding over the case. The other decision involves a plaintiff who was applying for an immigrant visa at a US Consulate overseas where the DOF does not have any significance. A child applicant whose I-485 was denied because the age could not be protected when the DOF became current should certainly consider seeking judicial review of the decision under the Administrative Procedures Act. Alternatively, if the child is placed in removal proceedings, the child’s I-485 can potentially be renewed in removal proceedings and he or she should be able to argue that neither the USCIS nor DOS policy regarding the FAD protecting the CSPA age is binding on an Immigration Judge. If the IJ affirms a denial, the decision can be appealed to the Board of Immigration Appeals, and if the BIA reaffirms the IJ’s decision, a petition for review can be filed in a Court of Appeals. Hence, there are two avenues for judicial review – through the APA in federal district court or through a petition for review in a court of appeals – that may be able to reverse the erroneous USCIS policy.

 

Cyrus Mehta

The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers

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By Cyrus D. Mehta & Kaitlyn Box*

On November 26, 2021, President Biden issued a Presidential Proclamation entitled “A Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease 2019” in response to a report made by the South African government to the World Health Organization (WHO) that a new B.1.1.529 (Omicron) variant of the virus that causes COVID-19 was detected in the country. Reports from the WHO indicate that certain characteristics of the Omicron variant, including an increased risk of reinfection, make it a particular cause for concern. The Proclamation bans many travelers who have been in South Africa or neighboring countries Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, and Zimbabwe in 14 days preceding their entry from coming into the United States. The administration has indicated that it could add additional countries to the list if needed.

Unlike the previous COVID-related travel ban for India that applied only to nonimmigrants, this Proclamation, like the omnibus Proclamation of January 25, 2020, bars nonimmigrants and immigrants alike from entering the United States. The ban appears to apply even to individuals who are fully vaccinated. President Biden’s most recent Proclamation does share one commonality with its predecessors, though – it exempts numerous categories of travelers from the restrictions, including U.S. citizens, LPRs, spouses of US citizens or permanent residents, parents of minor US citizens or permanent residents, and noncitizens whose entry would be in the national interest. Several other countries have issued similar restrictions on travel from South Africa and neighboring countries, including the European Union, Australia, Bahrain, Brazil, Canada, Egypt, Jordan, Saudi Arabia, Singapore, Thailand, Turkey, and the United Kingdom. Japan and Israel have sealed their borders to all foreigners.  On November 27, 2021, the Department of State also issued a Level 4 Travel Health Notice for South Africa, indicating: “Do not travel to South Africa due to COVID-19.”

As we have argued in prior blogs,  travel bans are not an effective means of curbing the spread of COVID-19. Like previous iterations of the COVID-related travel bans, this most recent Proclamation outlines a number of exemptions for certain categories of travelers, all of who are just as likely to carry COVID-19 as the immigrants and nonimmigrants who are barred from entering the United States. Even a nonvaccinated U.S. citizen who had recently been present in South Africa could freely enter the United States under the Proclamation, while a fully vaccinated nonimmigrant could not. Of course, all travelers must undertake COVID tests before entering the US, and noncitizen travelers with very few exceptions must be vaccinated.  Ensuring that these protocols are strictly adhered to, including testing after arrival in the US, and even quarantining as necessary, will be more effective than a travel ban. Travel bans seem to be based more on politics rather than on science so that leaders can demonstrate that they are doing something to prevent the spread of the new variant even if it has spread already and its effects are largely unknown.  The existing set of Presidential Proclamations suspending the entry of nonimmigrants who had recently been present in a host of countries impacted by COVID-19 terminated as recently as November 8, 2021. Like its predecessors, the new Proclamation is likely to do little to prevent COVID-19 infections in the United States, but is sure to devastate families, separate employees from their U.S. employees, and cause untold hardship and confusion for unwary travelers. Past precedent has also shown that once a ban is imposed, it is not likely to get rescinded soon.

Furthermore, the Proclamation penalizes South Africa for detecting the Omicron variant and altering the WHO to its dangers. South African President Cyril Ramaphosa has condemned the ban, describing its uselessness in preventing the spread of COVID-19 and its potential for causing serious damage to the South African economy. Further underscoring the futility of the ban, South Africa has higher vaccination rates and more sophisticated scientific and medical facilities than most African countries, though it has still faced some challenges in administering vaccines quickly enough. Although the Omicron variant has also been detected in Belgium, Brazil, Hong Kong, Israel, the United Kingdom, and Germany, these countries are not presently included in the ban. The travel restrictions imposed on South Africa and its neighbors may even make other countries less likely to report the discovery of other new variants, lest they too face an onerous travel ban. As a result of flights not going into South Africa, one public health official, Tulio de Oliveria, angrily tweeted that his lab will run out of reagents needed to test for the variant.

Fortunately, the U.S. Embassy in South Africa has announced that South African consulates will continue processing visa applications, and embassies in neighboring countries appear to be following suit. These operations are consistent with recent federal court decisions holding that the State Department cannot use COVID-related travel restrictions as a justification for refusing to issue visas. It is also hoped that this signals that the ban may not remain for very long. Until these ineffective travel bans are rescinded for good, however, they will continue to cause serious hardship for travelers from many African countries while doing little to prevent the spread of the Omicron variant.

(This blog is for informational purposes, and should not be relied 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 Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged

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Cyrus D. Mehta

The USCIS has been processing employment authorization requests for H-4 and L-2  spouses so slowly that they have been rendered virtually useless. By the time the applicant receives the employment authorization document (EAD) after 10 months, the job offer no longer exists. The experience is even more harrowing when the spouse begins working under the first EAD and has to apply for a renewal. By the time the renewal EAD comes through, the spouse would have been forced to stop working after the prior EAD expired and often loses her job. Most H-4  spouses who have availed of the EAD are mainly women and  spouses of Indian born H-1B visa holders who are caught in the crushing India employment-based backlogs under the second and third preferences.

Following a recent settlement in Shergill v. Mayorkas,  USCIS announced on November 12, 2021, that certain H-4, E, or L dependent spouses will qualify for an automatic extension provided under 8 CFR § 274a.13(d) if certain conditions are met.

The new policy provides that certain H-4, E or L dependent spouses qualify for automatic extension of their existing employment authorization and accompanying EAD if they properly file application to renew their H-4, E or L-based EAD expires, and they have an unexpired I-94 showing their status as an H-4, E or L nonimmigrant. The policy further provides that E and L dependent spouses are employment authorized incident to their status and therefore they are no longer required to file Form I-765 for an EAD but may still do so if they choose to request an EAD. Still, the E and L dependent spouse may only qualify for an automatic extension if they have an unexpired valid E-2 or L-2 status.

Accordingly, a document combination to include an unexpired Form I-94, Form I-797C (Notice of Action) showing a timely filed employment authorization document (EAD) renewal application, and facially expired EAD may be acceptable to evidence unexpired work authorization for employment eligibility verification (Form I-9) purposes.

Although this new policy is a positive step, as a practical matter, many H-4 spouses may not be able to avail of the automatic extension if they are unable to demonstrate an H-4 status beyond the expiration of their existing EAD. Most H-4 statuses and EAD end on the same date.

Even if an H-1B extension is filed on behalf of the principal spouse under premium processing six months before the existing H-1B status expires, the USCIS no longer processes the extension of the H-4 status in an expeditious manner. Thus, even if the H-1B status is renewed under premium processing within 15 days for an additional 3 years,  the H-4 status continues to remain pending and may or may not get approved before the expiration of the current H-4 status. If the H-4 status is not renewed prior to the expiration of the current H-4 status, the spouse will not be able to avail of the auto extension under the new policy.

It would thus behoove the USCIS to courtesy premium  process the H-4 status extension request along with the H-1B premium request. This used to be done prior to the imposition by the Trump administration of a mandatory biometrics appointment for an extension request filed by the spouse.  As a result of the new biometric requirement, the H-4 spouse’s extension request was  no longer processed along with the H-1B premium request.  Although the biometric requirement has been eliminated for H-4 spouse extension requests, the USCIS continues to process these cases at a snail’s pace. It is difficult to understand why the USCIS is unable to process the H-4 request along with the H-1B premium request at the same time as was done before the imposition of the biometric requirement.

Another way to get around the limitation of having H-4 status beyond the EAD is for the H-4 spouse to travel overseas and return with an I-94 that would have the same validity as the principal spouse’s H-1B status. However, if the H-4  spouse needs to obtain a new visa stamp, it is difficult to obtain consular appointments timely as a result of Covid-19.

Another work around would be for the H-4 spouse to go to Canada for less than 30 days and be readmitted under  automatic visa revalidation provided for trips to Canada or Mexico that are less than 30 days. The difficulty with this strategy, though, is that the CBP often admits the H-4 spouse under the same period of the existing status instead of admitting the spouse for an extended period that  would be coterminous with the H-1B spouse’s new status.

L-2 and E-2 spouses are in a better situation that H-4 spouses. INA 214(c)(2)(E) provides  statutory authority for dependent spouses of L nonimmigrants to be granted work authorization. INA 214(c)(2) provides similar work authorization for dependent spouses. Notwithstanding this statutory authorization that took effect on January 16, 2002 providing for work authorization incident to status,  USCIS was still insisting that L-2 and EAD spouses obtain an EAD through a policy memo authored by William Yates dated February 22, 2002, “Guidance on Employment Authorization for E and L Nonimmigrant Spouses, and for Determinations on the Requisite Employment Authorization for E and L Nonimmigrant Souses, and for Determinations on the Requisite Employment Abroad for L Blanket Petitions.” (Yates Memo).  The November 12, 2021 guidance has now rescinded the Yates Memo.

As a result of being recognized to be work authorized incident to status, L-2 and E-2 spouses will be able to work when their L-2 or E-2 status is extended. CBP will notate the I-94 to distinguish the L-2 or E-2 spouse from E and L children. Unlike the H-4 spouse who will need to apply for an EAD based on status that already extends beyond the EAD extension request, the L-2 spouse will be able to work as soon as the E-2 or L-2 status is granted. Similarly, the spouse who is admitted after travelling to the US in L-2 or E-2 spouse will also be issued an I-94 with a similar notation from the CBP and be work authorized after admission in that status. However, like with the H-4 spouse, when the L-2 spouse applies for an extension of that status, there will be no basis for an automatic extension of  work authorization until the L-2 status is approved.

On November 18, 2016, DHS promulgated the automatic extension of EAD regulation at 8 CFR 274a.13(d), which took effect on January 17, 2017. 8 CFR 274a.13(d) provides the legal underpinning for November 12, 2021 policy.  An applicant is eligible for automatic extension if the EAD renewal is timely filed and based on the same employment authorization category as shown on the face of the expiring EAD. See 8 CFR 274a.13(d)(1)(i) and (ii). Under 8 CFR 274a.13(d)(1)(iii) automatic extension may also apply where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application, …. As may be announced on the USICS Web site.”

The page on the USCIS Website listed 15 categories for automatic extension of their employment authorization or EAD. However, the November 12, 2021 USCIS Policy Memo acknowledges that E and L as well as H-4 spouses were missing from this list, as follows:

These broad categories were not included because at the time the automatic extension authority was established in 2016, USCIS determined that these applicants are in a category that first requires adjudication of an underlying application before their EAD renewal application can be adjudicated.[citation omitted]. While that is a permissible interpretation of the regulation, upon further review and consideration, USCIS recognizes that this interpretation does not contemplate the situation where the E, L, and H4 dependent spouse has already been granted a new period of authorized stay and such individual is eligible for employment authorization past the expiration of his or her EAD while the renewal Form I-765 application is pending. Under this scenario, the possible risk the provision at 8 CFR 274a.13(d)(1)(iii) sought to avoid—the risk that a Form I-765 renewal applicant’s eligibility for employment authorization will lapse during the automatic extension period—is not present. As such, it is reasonable for USCIS to expand the list of categories eligible to receive automatic EAD extensions to include this narrowly defined category of E, L, and H-4 dependent spouses to mitigate the risk of experiencing gaps in employment authorization and documentation while their renewal Form I-765 is pending, in light of their continued employment eligibility past the expiration date of their EAD.

The USCIS believes that this change in interpretation is permissible under 8 CFR 274a.13(d)(1)(iii) that speaks broadly of “class” and “category.” As these terms are undefined and thus ambiguous, under the broad deference courts have granted to a government agency to interpret its own ambiguous regulation, see Auer v. Robbins, 519 US 452 (1997) as modified by Kisor v. Wilke, 588 US ___ (2019), USCIS believes it has the discretion to interpret these terms and tailor designated categories to emerging circumstances and to fulfill the primary purpose of the EAD auto-extension.

While one agrees that USCIS does have discretion to reinterpret 8 CFR 274a.13(d)(1(iii) to include auto extensions for H-4, L-2 and E-2 spouses, this is not the most satisfactory outcome and should be challenging the USCIS to do more.

For starters, if the USCIS processes extension requests of H-4, L-2 and E-2 statuses more rapidly, this problem will be resolved. It should not be taking upwards of 6 months to process such status extension requests when the biometric requirement has been done away with. The Edakunni v. Mayorkas lawsuit seeks to force USCIS to speed up processing times.   USCIS can include courtesy premium processing of H-4, L-2 and E-2 status request  applications that  are part of a request for premium processing of the principal spouse’s H-1B, L-1 or E petition. Also do not forget that Congress in HR 8837 has authorized premium processing of many more petitions and applications, including applications to change or extend status as well as applications for employment authorization.

More important, the USCIS need not be cabined by the restrictive language in 8 CFR 274a.13(d)(1)(iii) which provides for automatic extension where the EAD renewal application is “[b]ased on a class of aliens whose eligibility to apply for employment authorization continues notwithstanding expiration of the Employment Authorization Document and is based on an employment authorization category that does not require adjudication of an underlying application or petition before  adjudication of the renewal application.” While the USCIS has threaded the difficult needle in its November 12, 2021 policy by justifying that 8 CFR 274a.13(d)(1)(iii) is nevertheless applicable if there is already an underlying status, the USCIS has authority under the INA to craft a whole new regulation that does not depend on automatic extension only if there is an underlying L-2, H-4 or E-2 status.

Furthermore, 8 CFR 274a.13(d)(1)(iii) can potentially be challenged as being inconsistent with INA 214(c)(2)(E) and INA 214(e)(2) that provide work authorization incident to status to L-2 and E-2 spouses. Nowhere does it  state in these INA provisions that a spouse who has been admitted in L-2 or E-2 status  must remain in status in order to avail of an automatic extension of work authorization when applying for an extension of that status. Although there is not direct INA reference for H-4 authorization incident to status, the H-4 EAD rule is based on the general authority given to the DHS under INA 103(1) and 274A(h)(3)  that allows it to grant work authorization to any noncitizen. Even under these general provisions there is no requirement that there must be an underlying nonimmigrant status in order to avail of automatic work authorization extension. Even if INA 214(c)(2)(E) and INA 214(e)(2) can be read to mean that a spouse is precluded from availing of an auto extension once the status has expired, 8 CFR 274a.13(d)(1)(iii) might still be inconsistent with the general authority to provide work authorization under INA 274A(h)(3).

Under its authority under INA 274A(h)(3),  DHS may wish to promulgate a regulation similar to 8 CFR 274a.12(b)(20) that provides for an automatic extension of work authorization for 240 days when a petition to extend nonimmigrant status has been timely filed on behalf of a nonimmigrant through the same employer prior to the status expiring. The 240 day automatic extension will be denied if the petition requesting the extension is denied prior to the 240 days.  The spouse should also be able to avail of a similar period of 240 days of automatic work authorization even if the underlying H-4, L-2 or E-2 status has expired so long as the request was made before the status had expired.  If the underlying request for extension of status is denied prior to the 240 days, the automatic work authorization will be denied.

While the new H-4, L-2 and E-2 work authorization policy of November 12, 2021 is a step in the right direction, it should  not become the permanent policy of the USCIS as it is far from perfect. As long as the USCIS delays in the processing of routine requests for extension of status and work authorization continue to persist, the regulations need to be changed in order to allow spouses to continue working regardless of whether there is an underlying nonimmigrant status or not.

 

Cyrus Mehta

Florida Detox Centers Provides Further Guidance on Resume Review in Labor Certification Recruitment

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By Cyrus D. Mehta & Jessica Paszko*

Under the Immigration and Nationality Act (“INA”), U.S. employers wishing to sponsor a foreign worker for employment and permanent residence must first prove to the Department of Labor (“DOL”) that there are no sufficient workers who are able, willing, qualified and available for the prospective job and that hiring the foreign worker will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. INA § 212(a)(5)(A)(i).

Before employers can file an Application for Permanent Employment Certification, or Form 9089, sponsoring a foreign worker, they must conduct a good faith recruitment effort and ascertain whether there are U.S. workers available for the job. Employers may only reject applicants for lawful, job related reasons in accordance with 20 C.F.R. § 656.10(c)(9), such as when an applicant is not qualified for the job opportunity. However, the regulations also provide that a U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. 20 C.F.R. § 656.21(e)(4). Therefore, an employer may lawfully reject a U.S. worker for being unqualified, only if the employer determines that a U.S. applicant does not meet the requirements listed on Form 9089 and the U.S. applicant could not acquire the skills during a reasonable period of on-the-job training.

Previous decisions by the Board of Alien Labor Certification Appeals (“BALCA”) have indicated that where an applicant’s resume shows a broad range of experience, education, and training that raises a reasonable possibility that the applicant is qualified, even if the resume does not expressly state that the applicant meets all the requirements, the employer bears the burden of further investigating the applicant’s credentials. See Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997); Matter of Goldman Sachs & Co., 2011-PER-01064 (June 8, 2012). These decisions discussed in a previous blog put pressure on employers to interview U.S. applicants, no matter how convinced they may have been that the applicants were unqualified for the position based on their resumes, or else risk a denial of the foreign worker’s labor certification. However, a recent BALCA decision, Florida Detox Centers, 2017-PER-00236 (Aug. 24, 2021), may offer some leeway to employers by allowing them to reject applicants on the basis of their resumes.

In Florida Detox Centers, the employer sought to employ an “Operations Analyst” with “two years of experience in the job offered,” and having found no such U.S. worker, filed Form 9089 sponsoring a foreign worker for the position. The employer was subjected to supervised recruitment by the DOL. In its recruitment report, the employer stated that it received 240 applications for the job opportunity, interviewed 20 applicants it found to be potentially qualified and rejected 220 applicants because they did not possess the minimum of two years of experience based on the face of their resumes. The DOL denied labor certification, finding that the employer rejected a potentially qualified U.S. applicant without an interview even though there was a reasonable possibility that the applicant met the requirements of the job opportunity.  The applicant’s resume clearly indicated that the applicant lacked the required two years of experience in the job offered. Nonetheless, the DOL argued that the employer did not meet its burden by failing to investigate the applicant further and conducting an interview. The DOL pointed to the applicant’s resume which indicated experience similar to the job duties described on Form 9089 as well as the applicant’s four years of experience in the Operations Analyst/Strategic Sourcing Coordinator industry.

In the matter before the BALCA, the employer, on reconsideration, thoroughly expanded on its reasons for rejecting the applicant and detailed why the applicant was unqualified for the job opportunity such that an interview or further inquiry was unnecessary. The employer argued that it was not able or willing to accept less than two years of experience, as stated on Form 9089, nor should it have been required to do so, given the high specific vocational preparation level (“SVP”) of 8 assigned by the DOL for the occupation of Operations Analyst under O*Net Code 13-1111. An SVP of 8 generally requires between four and ten years of education, training, and/or experience, but the employer was only requiring two years of experience in the job offered. The employer compared each duty identified in the Form 9089 to the applicant’s resume and determined that the applicant only had experience in 25% of the job duties described in the form. The employer also stated that the applicant lacked any experience in three important job duties described in the form. According to the employer, it was “unrealistic to . . . consider an applicant completely lacking experience in nearly 40% of the job duties,” especially given the employer’s requirement of a minimum of two years of experience in each job duty. The employer claimed not to have a duty to investigate the applicant further given the level of detail in the applicant’s resume which allowed it to readily determine that the applicant’s experience was not similar or relevant to the job opportunity.

The BALCA was satisfied with the employer’s explanation for rejecting the applicant and that the employer, in the selection process, concluded that based on the applicant’s resume and its business operations and staffing, that the applicant possessed two years of experience in only 25% of the job duties, and that for the remaining 75% of the job duties, the applicant would require a full two years of training in 40% of the job duties, and more than the normal six months of training in the remaining 55% of the job duties. The BALCA found that the employer’s explanation, which the employer substantiated by detailing the specific period of time that training would take, sufficiently demonstrated that the applicant could not acquire the necessary experience through a reasonable period of on-the-job training. The BALCA accepted the employer’s argument that it should not be required to offer more than 6 months of on-the-job training for an Operations Analyst assigned an SVP level of 8 because the additional training “would severely jeopardize the operational and financial well-being of the business, particularly when the specific purpose of [the job opportunity] is to improve and maximize efficient and effective operations” of the business.

While the BALCA’s conclusion appears helpful to employers, it should not be taken to mean that all employers can avoid a labor certification denial by relying on the argument that necessary job experience cannot be acquired through a reasonable period of on-the-job training. Indeed, in a 2012 decision, Kennametal Inc., 2010-PER-01512 (Mar. 27, 2012), the BALCA found that the employer rejected a number of applicants for other than lawful, job-related reasons. There, the employer did not merely reject applicants based on their resumes alone but rather interviewed them and only after the interview determined that they did not possess the requisite qualifications, namely knowledge in Unigraphics and heat transfer and fluid dynamics. According to the BALCA, the employer’s argument that training unqualified employees in using Unigraphics and learning heat transfer and fluid dynamics would involve a substantial and unreasonable amount of training was “not acceptable.” Apparently, the employer had not met its burden in establishing that it was not feasible to train a U.S. worker. The employer’s failure to substantiate its claims that the applicants would only be qualified if they already possessed these skills and failure to give the specific time that training would take proved fatal to its application.

While Florida Detox Centers may offer a reprieve from the rather harsh ruling of Matter of Goldman Sachs & Co. by allowing employers to reject unqualified candidates on the basis of their resumes alone, employers must detail the specific period of time that training the applicant would take and explain why the applicant could not acquire the necessary experience through on-the-job training. However, coupled with Kennametal Inc., it is clear that what the DOL or the BALCA really care about is that employers investigate how long training an unqualified applicant would take. In Florida Detox Centers, the employer clearly required that an applicant possess two years of experience in a number of job requirements and thus an unqualified applicant could only acquire that experience in two years’ time. Whereas in Kennametal Inc., the employer wholly failed to consider that training unqualified applicants in two specific job duties could take six months, or a reasonable period of time. Indeed, had the employer in Kennametal Inc., determined that such training would take much longer, the BALCA may have decided differently. In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16., 2012), the employer too won based on a resume review alone when the resumes did not indicate that the applicants met the employer’s requirement, which was “Proficiency in Excel or Access,. . .understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines . . . .” The key issue for the BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. Note that in Florida Detox Centers, on the other hand, the employer did not ask for any specific requirements which it could establish through business necessity and instead simply required two years of experience in the duties of the offered position. The BALCA in JP Morgan Chase stated that the employer had submitted a business necessity explanation in its recruitment report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the DOL did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, the BALCA held that the DOL cannot dismiss the employer’s stated requirements and substitute its judgment for the employer’s.

Therefore, while employers may survive a labor certification denial even where they fail to interview potentially qualified applicants, they must provide details of why the applicant did not meet the duties or requirements of the position based on a review of the resume as well as detail the specific period of time that training the applicants would take. A bare assertion that it is not feasible to train a U.S. worker will not be accepted.

[This blog is for informational purposes and should not be considered as a substitute for legal advice]

*Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

Cyrus Mehta

The Facebook Settlement Resolving Claims of Discrimination Against U.S. Workers Only Adds to the Contradictions in the Labor Certification Program

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By Cyrus D. Mehta and Kaitlyn Box*

On October 19, 2021, the U.S. DOJ and DOL announced that they had reached separate settlement agreements with Facebook regarding the company’s purportedly discriminatory PERM labor certification practices. These settlement agreements stem from a December 2020 DOJ complaint, in which the government alleged that Facebook had discriminated against qualified and available U.S. workers by “refus[ing] to recruit, consider, or hire” them for over 2,600 positions, which were tied to labor certifications filed on behalf of foreign national workers. Interestingly, Facebook was not accused of violating DOL rules, which require merely that employers test the labor market and discontinue the labor certification process if a qualified U.S. worker is found, but do not mandate that the company actually hire the U.S. worker or terminate the foreign national who currently holds the position pursuant to H-1B status. Instead, Facebook was charged with discriminatory practices under INA § 274B(a)(1), despite adhering to the DOL’s rules for recruitment.

In particular, the complaint alleged that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process”, citing Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The complaint accused Facebook of designing recruitment practices specifically intended to deter US workers from applying for the relevant positions, a policy which discriminated against U.S. workers in violation of INA § 274B(a)(1)(A). At issue in particular were Facebook’s use of different recruitment methods for PERM labor certifications than those employed for regular positions, such as requiring resumes to be sent by postal mail for advertisements related to labor certifications while accepting resumes by email for other open positions. In a previous blog, we discuss in greater depth the context of the complaint and its contradictions with actual DOL recruitment rules.

Although Facebook will pay a civil penalty of $4.75 million to the United States and up to $9.5 million to workers impacted by its practices, a sum that is likely small change to one of the largest companies in the world, the settlement carries more worrying implications for smaller companies that lack Facebook’s resources. The complaint against Facebook emphasizes that employers must make “good faith” recruitment efforts, but paradoxically implies that it may not be sufficient for companies to follow the DOL regulations, particularly where an employer’s PERM recruitment differs from the way it advertises regular job openings. DOL regulations are largely outdated and require employers to carry out recruitment practices, such as placing print advertisements in two Sunday newspapers, that are out of touch with modern employment practices. In addition to conforming their recruitment practices to the specific and anachronistic methods prescribed by the regulations, the Facebook complaint implies that employers must conduct PERM recruitment that mirrors their regular recruitment, requirements which may be near impossible to reconcile. Among the grievances leveled against Facebook were its failure to hire qualified U.S. workers who applied for PERM-related positions and its rejection of free online advertisements when it had purchased print versions, neither of which are prohibited by the regulations.

Even if an employer mirrors its real world recruitment with its labor certification recruitment,   it will still be vulnerable to a citizenship discrimination claim by the DOJ’s Civil Rights Division’s Immigrant and Employee Rights Section (IER) because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers and replace the foreign national worker,  before the labor certification can be filed and certified by the DOL. If the employer hires the US worker, the labor certification may be denied. Even if the employer hires this minimally qualified US worker, and files the labor certification on behalf of the foreign worker, the employer may be found to be in violation as a result of “diversion.” The Board of Alien Labor Certification Appeals (BALCA) has held that a US applicant cannot be diverted to another position, even a more senior position. See Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam’s Exxon, 91-INA-362 (BALCA 1992). BALCA has found “diversion” even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992).

As part of the settlement,  Facebook is required to consider applicants who apply for PERM positions on Facebook’s Career website. Furthermore, the settlement requires the entry into “Facebook’s recruiting system (“FBR”) all applicants to all PERM related positions who apply via Facebook’s Careers website, enabling such applicants to be searchable and remain searchable in the same manner as applicants to non-PERM related positions at Facebook, and allowing Facebook’s recruiting team to identify, consider, and/or hire such applicants for Facebook job opportunities, including but not limited to ones in the same job profile group as the PERM-related position to which they previously applied. “It is hoped that if applicants for PERM positions are hired for other positions, the DOL does not deny the labor certification under its antiquated “diversion” doctrine.

These conflicting requirements may well prompt some employers to stop sponsoring foreign national workers for permanent residence. The penalty paid by Facebook would be ruinous to smaller employers and may deter them from even wading into the PERM domain. Further adding to the deterrent effect, Facebook faced not only a monetary penalty, but will also be forced to conduct supervised recruitment in future and will be subject to increased scrutiny even of its H-1B program. The latter penalty may be particularly off putting to companies who employ a large H-1B workforce.

Skilled foreign national workers already face several limitations in the US immigration system. There is a paucity of H-1B visas every year. The annual cap is set at a paltry 65,000 plus an additional 20,000 for those who have graduated with advanced degrees from US institutions of higher education. Skilled foreign national workers born in countries such as India and China also face disproportionate backlogs when they are sponsored for permanent residence due to the per country limits. The latest action against Facebook would now provide a disincentive for employers to file labor certifications. This would impact those caught in the backlogs who wish to change employers and obtain new labor certifications but retain their place in the queue by capturing the original priority date

The safest course for employers to pursue in light of the Facebook settlement may be to hew as closely as possible to their non-PERM recruitment practices when conducting PERM recruitment, within the dictates of the DOL regulations. If the employer normally accepts resumes by email, they should not require that applicants for PERM related positions send their resumes only by postal mail. When regular positions are advertised online, it may be prudent for the employer to do the same for PERM positions, rather than advertising only in print newspapers. At the same time, the employer must comply with the DOL regulation of advertising in two Sunday print newspapers even though they do not normally advertise in print for their normal recruitment.

Although the labor certification process requires an employer to conduct a “good faith” test of the US labor market to determine whether US workers are qualified or available for the position held by the foreign national, the very notion of “good faith” seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in the labor certification world do you win by losing.  The real solution, though, would be for Congress or the Biden administration to amend the regulations to comport with real, modern recruitment practices, ensuring that employers will not be tripped up by the contradiction between the “good faith” recruitment suggested by the Facebook complaint and the antiquated practices laid out in the DOL rules.

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

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

 

Cyrus Mehta

Handling Confidentiality, Adverse Interests, and Settlements in Group Suits

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By Cyrus D. Mehta and Brad Banias*

Immigration lawyers have filed lawsuits on behalf of several hundred plaintiffs challenging various immigration policies. These lawsuits have involved demanding that the government  speed up the processing of  work permits, or asking the government to reserve visas before the expiration of the program. Many of the lawsuits have resulted in settlements.

What ethical issues must a lawyer consider when signing on plaintiffs as clients? In the event that the government desires to settle, should the lawyer take into account additional ethical considerations?

There are certainly advantages when an attorney represents multiple clients in the same matter. One lawyer representing multiple plaintiffs in a litigation can ensure better coordination and communication. Legal costs are also reduced.  On the other hand, the lawyer will be representing plaintiff clients with different expectations regarding the outcome of the same litigation. Representing clients with differing interests can result in conflicts of interest.

Before representing multiple clients in a lawsuit against the government seeking injunctive relief, the lawyer must get informed consent from the clients.  ABA Model Rule 1.0(e) provides:

“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

Practice Pointers on What to Communicate to Plaintiff Clients Before Commencing Litigation

Professor Simon recommends that the following pointers, among others, be communicated to multiple clients before embarking on group litigation[1]:

 

  • One lawyer representing multiple plaintiffs can facilitate better coordination and communication, and thus lower expenses.
  • However, if the clients get into a dispute with each other, none of them will be able to claim the attorney client privilege as to each other with respect to communications with the common lawyer
  • Where the lawyer represents multiple clients in any litigation, some clients may accept a settlement offer while others may not. This can cause conflicts. For example:
  • Some plaintiffs may get the benefit they are seeking while others may not, and this can result in competition and jealousy
  • If there is a settlement offer, the lawyer will seek informed consent from the clients before participating in a settlement
  • In group litigation, where plaintiff clients may have different stories, the lawyer may need to emphasize one client’s version of facts over another client’s story.
  • If the lawyer has a long standing relationship with one client, or likes one over the other, then the lawyer may subconsciously tend to favor the client they like or hope to represent again in other matters.
  • If a conflict arises that cannot be resolved, then the lawyer may have to withdraw from representing some or even all the clients. When the lawyer withdraws, then the clients will have to get another lawyer or lawyers, which in turn will result in additional expenses.
  • Some information obtained from one client may be shared with the other clients in the group. Clients agree to waive any confidentiality if one client in the group discloses the information to third parties (such as on social media).
  • If the lawyer will be seeking fees under Equal Access to Justice Act if victorious, whether all of the clients are eligible for such fees or whether each client receives the same pro rata reimbursement (despite actual work on each individual case).

 

Although providing the communication as outlined above to multiple plaintiff clients may be onerous, it may be well worth the effort because a conflict can ruin the relationship not only with the lawyer but also with the other clients. Full disclosure will also alert the clients to the dangers of the multi-party representation, and the lawyer will also be able to get advance notice of any conflicts before launching the litigation on behalf of the group.

Practice Pointers on Communicating with Clients in the event of a Settlement

A settlement may not benefit all the plaintiffs. For instance, if the settlement involves the allocation of a certain number of recaptured visas, then all will not benefit. Moreover, if the settlement in a delay litigation lawsuit only includes the resolution of applications filed as of a certain date, then those plaintiffs who applications were file after that cutoff date will not benefit.

How does the attorney spearheading group immigration litigation of this kind resolve the conflicts that may arise? Another important concern is how must the attorney handle confidentiality issues? If there is a settlement offer involving hundreds of plaintiffs who are likely to communicate every development of the case on social media, how can the attorney ensure confidentiality of such communications?

ABA Model Rule 1.8(g) provides guidance to the lawyer in such instances. It provides as follows:

g)  A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

 

Comment 16 to ABA Model Rule 1.8(g) states:

 

[16]  Differences in willingness to make or accept an offer of settlement are among the risks of common representation of multiple clients by a single lawyer. Under Rule 1.7, this is one of the risks that should be discussed before undertaking the representation, as part of the process of obtaining the clients’ informed consent. In addition, Rule 1.2(a) protects each client’s right to have the final say in deciding whether to accept or reject an offer of settlement and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule stated in this paragraph is a corollary of both these Rules and provides that, before any settlement offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform each of them about all the material terms of the settlement, including what the other clients will receive or pay if the settlement or plea offer is accepted. See also Rule 1.0(e) (definition of informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding derivatively, may not have a full client-lawyer relationship with each member of the class; nevertheless, such lawyers must comply with applicable rules regulating notification of class members and other procedural requirements designed to ensure adequate protection of the entire class.

 

Although the lawyer already made the appropriate disclosures to obtain informed consent before embarking on litigation, in the event of a settlement offer, Rule 1.8(g) requires the lawyer to again make disclosure before participating in making an aggregate settlement that would “include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.”[2] Since  Rule 1.8(g) requires obtaining informed consent from each client, taking a decision regarding a settlement based on a majority vote is disfavored.  The lawyer would need to specifically disclose what claims will be settled if the plaintiffs accept the offer and what claims may remain if they take the offer.

 

Rule 1.8(g) intersects with Rule 1.7, which governs how a lawyer needs to go about representing multiple clients when there is a potential or actual conflict. Rule 1.7(a) prohibits a lawyer from representing two or more clients when the representation of one will be directly adverse to the other, or where there is a significant risk that the representation of one client will be materially limited by the lawyer’s responsibilities to the other client. However, Rule 1.7(b) nevertheless allows such representation even if there is a conflict if the lawyer believes that he or she can still provide competent and diligent representation to the affected client.  Rule 1.8(g) also intersects with Rule 1.2(a) which requires the lawyer to abide by a client’s decision whether to accept a settlement. Underpinning all of these rules is to ensure that the lawyer has obtained informed consent under Rune 1.0(e) and that the lawyer has appropriately communicated with the client under Rule 1.4 to obtain this informed consent.

Finally, a lawyer must also maintain the confidentiality of communications with all the plaintiff clients under Rule 1.6, although when the lawyer is representing multiple clients, information provided by one client may be shared with the other clients. If the lawyer wishes to keep confidential certain communication with one client, then the lawyer must obtain the informed consent from the entire group that certain communication with individual clients may not be shared with other clients so long as maintaining such confidentiality does not adversely impact the lawyer’s ability to represent all the clients competently and diligently. As noted above, plaintiffs may have a propensity to leak out confidential communications with the attorney on social media. While the lawyer may not be able to prevent such disclosure, Rule 1.6(c) states that “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

 

Good Faith Allegations, Candor to the Court, and Hundreds of Clients You Will Never Meet

Twitter and Facebook are replete with attorney advertising directed at potential plaintiffs who live abroad. Recent group suits—sometimes including thousands of plaintiffs each—challenging travel bans and consular delays, by definition, comprise hundreds of plaintiffs who are currently abroad. In such a situation, it may be impossible to investigate the stories and facts (often provided through a standard, self-guided questionnaire) that are provided by your very own clients. So, how can you be sure the facts are true? What do plaintiffs’ counsel need to do to satisfy their obligations under Rule 11 to do a good faith investigation of the facts they aver in a pleading and their ethical obligations of candor toward the tribunal?

● ● ●

 

The relevant rules and controlling principles are as follows:

Federal Rule of Civil Procedure 11(b)(3):

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . .

 

Fed. R. Civ. P. 11(b).

ABA Model Rule 3.3:

(a) A lawyer shall not knowingly:

 

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer . . .

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

 

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

● ● ●

 

Best Pre-Allegation Practices:   

These apply when you are preparing your case and drafting the pleadings. First, demand copies of actual documents from your clients. Require that clients in the far reaches of the world upload official documents substantiating their claims (receipts from State, USCIS, or Labor; Consular emails; Consular returns; Actual payment receipts). This also includes identity documents that match the potential plaintiffs alleged name, date of birth, and nationality. You should also REVIEW these documents and compare them to the information in the questionnaire. Second, require your clients to sign declarations under 28 USC 1746. This provision of federal law allows individuals to declare factual matters subject to penalty of perjury from inside and outside the United States. Whether you attach the declaration to the complaint or not, you now have an additional declaration subject to penalty of perjury to rely upon should a court require you to prove that you had a good faith basis for certain allegations. Third, avoid allegations “upon information and belief.” Such allegations also need a good faith basis, though the attorney has more liability exposure on such allegations. Finally, go easy on hyperbolic allegations. Do you have a good faith basis that the consulate refused a visa because of personal animus, political bias, or sheer prejudice? While you may be able to intimate through such possibilities through circumstantial evidence, be mindful of your obligations to have a good faith basis to make certain factual allegations.

 

Best Post-Allegation Practices:

So, you’ve filed a pleading with factual allegations and, now, you’ve learned they are not true. First, determine whether the allegations are material and require remedial action. If the false allegation relates to something immaterial, there is likely no duty under Rule 3.3 to conduct remedial measures. However, it is a good practice to go ahead and correct any falsity through an errata, footnote, or notice. Again, while it may not be required because the “falsity” is immaterial and will be “fixed” through the course of litigation, there is a strategic benefit to fix the misstatement before the government points it out to attack you and your client’s credibility. Second, if it is a material misrepresentation, you must take “reasonable remedial measures.” Of course, there is no black and white on what is a “reasonable” remedy for correcting falsities. But the remedial measure must fix the misstatement. Reasonable measures may include an amended pleading with the proper information; a notice of correction of certain facts; or a supplemental declaration from the client correcting the information. There is no way to identify all possible remedies, but one principal is clear: you must identify and fix the falsity. And unfortunately, if the client refuses to fix the falsity and demands you push the case forward based on the falsity, you will likely need to withdraw from representation based on an irreconcilable conflict and notify the court of the falsity. This can be very tricky in a group case to have one plaintiff unrepresented (who lives somewhere far, far away) while you continue forward with the remainder of the group.

 

*Guest author Brad Banias is a partner in Wasden Banias, and is a nationally recognized in federal court immigration litigation. See https://www.wasdenbanias.com/

 

[1] See Simon’s New York Rules of Professional Conduct Annotated Volume 1, §1.7:81, 2020-21 Edition.

[2] To bind multiple clients jointly represented by the same lawyer, an aggregate settlement requires the informed written consent of each and every client, and the requirement of  individual informed consent may not be waived by any of the jointly represented clients. See NYC Bar Opinion 2009-06, available at https://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/aggregate-settlements-formal-opinion-2009-06

 

Cyrus Mehta

November 2021 Visa Bulletin Seesaw: Frequently Asked Questions

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By Cyrus D. Mehta and Kaitlyn Box*

On Thursday, October 14,  2021, the Department of State released the November 2021 Visa Bulletin, which has brought significant retrogression in employment-based third preference (EB-3) India dates, among other significant changes. The EB-3 India Date for Filing (DFF) retrogressed to January 22, 2012 and the Final Action Date (FAD) almost two years to January 15, 2012. By contrast, the  India EB-3 DFF  under the October 2021 Visa Bulletin is January 8, 2014 and the EB-3 India FAD is January 1, 2014. On the other hand, the Employment-based Second Preference (EB-2) India DFF has advanced to January 8, 2013 and the FAD to December 1, 2011. As it did in October 2021, USCIS has elected to use the DFF for employment-based adjustment of status applications. Thousands of applicants who filed concurrent I-140 petitions and I-485 applications when India EB-3 DFF dates rapidly advanced under the October 2020 Visa Bulletin, as well as under the November 2020 and December 2020 Visa Bulletins, are now justifiably disappointed that the USCIS has failed to  approve their I-485 applications and will remain stranded in the backlogs if their applications are not approved by October 31. The retrogression of EB-3 India dates, in particular, has thus been the source of much concern and confusion, so we address a few common questions below.

 

Q: I have approved I-140s under both India EB-2 and India EB-3 with the same employer. I filed my I-485 adjustment application concurrently with the EB-3 I-140, but it has yet to be approved due to Service Center backlogs and now EB-2 dates are moving ahead. Should I file a second adjustment at a different Service Center based on the EB-2 I-140?

If the Form I-485 was filed concurrently with the EB-3 I-140, it is generally not advisable to file another I-485 for the EB-2 I-140. There is no guarantee that a separately filed I-485 based on the now current EB-2 I-140 will be processed faster at a different service center than the Texas Service Center, which has been extremely backlogged and processing cases very slowly. USCIS designates the appropriate filing addresses for applications, and the filing location for adjustment applications based on an approved I-140 depends on the applicant’s address.  Thus, many adjustment applications will go to the Texas Service Center regardless, and one cannot select an alternative filing location.

The USCIS has a policy of transferring the underlying basis of an I-485 from one I-140 petition to another. The USCIS Policy Manual contemplates such a transfer of underlying basis from an I-140 filed by one employer to an I-140 filed by another employer, and requires that the applicant write a letter, although USCIS often automatically approves the I-485 based on whichever I-140  is current if both have been filed by the same employer. This used to be USCIS policy some  years ago when the China EB-3 overtook the China EB-2.  Although the USCIS Policy Manual explains that portability cannot be exercised under INA § 204(j) until 180 days upon the  transfer of underlying basis, this applies when the transfer of underlying basis of the I-485 is with an I-140 filed by one employer to an I-140 filed by another employer, or when the second I-140 petition of the same employer is for a different position,  but should not apply when there are two I-140s filed by the same employer for the identical position. Thus, if an employee has two approved I-140s with the same employer and identical position, USCIS should automatically connect the adjustment application to the I-140 that becomes current fastest, without the need for what one may term as  interfiling or filing of a second adjustment application. In fact, filing a second I-485 may cause confusion at USCIS and result in further delays.

 

Q: My family filed I-485s when my priority date was current under EB-3 India DFF, but they are still pending and my priority date will no longer be current in November 2021. Will my child’s age still be protected if he or she turns 21 before our adjustment applications are approved?

 Although we view this policy as erroneous, the USCIS Policy Manual makes clear that the concurrent filing of an I-485 based on a current DFF does not protect a child from aging out under the Child Status Protection Act (CSPA).  The child’s age, according to USCIS, locks in only when the FAD becomes current.  (It may be possible for certain people adversely affected by this policy to challenge it in federal court.)  There is a likelihood that the India EB-2 FAD will advance ahead of the India EB-3 FAD in the next few months. Thus, an I-485 that was filed concurrently with an EB-3 I-140 ought to  lock in the child’s age when the EB-2 I-140 becomes current, even if the I-485 was filed concurrently with the EB-3 I-140 as there is a transfer of basis of the I-485 from the EB-3 to the EB-2 140.  Again, there does not seem any need to file a new I-485 only for the purpose of locking in the child’s age and the USCIS has not issued any guidance that one must do so, although it may be prudent to write a letter to the USCIS requesting the transfer of underlying basis. However, because of the lack of guidance from USCIS, those who want to play 100% safe may want to file a new I-485 in lieu of writing a letter to the USCIS requesting the transfer of underlying basis.

The CSPA ought to apply as the underlying basis of the I-485 filed with the EB-3 I-140 transfers to the I-140 filed under EB-2 provided the other conditions to lock in the child’s age under the CSPA are met. The I-140 must have been filed before the child’s 21st birthday, and on the date when the FAD is current on either of the I-140s, the child is under 21. If the child is over 21 at the time the FAD is current, the CSPA allows the child’s age to be subtracted  by the number of days it  took from the filing of the I-140 petition to its approval. If the child’s CSPA age falls below 21 after the subtraction, it gets locked in until the I-485 is adjudicated. The child would have also sought permanent residency within one year of visa availability based on the I-485 that was filed with the EB-3 I-140, which has been transferred to the EB-2 I-140. The letter requesting transfer of underlying basis should satisfy the requirement that the child sought permanent residency within one year of the EB-2 I-140 becoming current, although the filing of a second I-485 application under this circumstance is recommended in order to be 100% safe in the absence of USCIS guidance.

Even if there is retrogression of the FAD after the CSPA locks in the child’s age, the child’s age will continue to be locked in until the FAD becomes current again and the I-485 is adjudicated.

Our prior blog provides further clarification on CSPA issues.

 

Q: I have approved I-140s under both India EB-2 and India EB-3. I was in the processing of filing my I-485 under EB-3 in October 2021. Should I instead file under EB-2?

Since the USCIS has announced that it will accept I-485  adjustment applications under the DFF for November 2021, applicants in this position should consider filing under the already approved EB-2 I-140 if their priority date is current under the EB-2 Date for Filing, as the EB-2 dates appear to now be moving ahead faster. If the applicant’s priority date will not be current under the EB-2 DFF in November 2021, it is prudent to still catch the first bus and file the I-485 under EB-3 before the end of October. If the priority date subsequently becomes current under EB-2, the basis for the I-485 can then be transferred to the EB-2 I-140, as described above.

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

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

 

Cyrus Mehta

Migration in the Time of COVID-19 Ebook – How Much Has the Pandemic Really Shifted the Immigration Landscape?

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By Kaitlyn Box*

Together with my co-author, Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion, the Samuel Weiss Faculty Scholar, and Founder and Director of the Center for Immigrants’ Rights Clinic (CIRC) at Penn State Law, I recently contributed a chapter to the Frontiers in Human Dynamics e-book “Migration in the Time of COVID-19: Comparative Law and Policy Responses”. A PDF can be downloaded from the Frontiers website.  The e-book “aims to provide one of the first comparative analyses of migration law and policy responses to the COVID-19 pandemic”, by bringing together a collection of articles that “examine and assess destination states’ responses to COVID-19 from the perspective of migration law and policy, and consider how they build upon prior exclusionary regimes, offering suggestions for reform of domestic laws in the wake of the pandemic.”

Our article, entitled “COVID-19 and Immigration: Reflections From the Penn State Law Center for Immigrants’ Rights Clinic”, provides a review of significant COVID-19 -related immigration policy changes, and uses CIRC as a case study to demonstrate how the same tools that immigration advocates have developed to respond to the ever-evolving policies of the Trump administration can also be harnessed to address COVID-related immigration policies. In particular, we discuss three of CIRC’s central response tools: short, accessible fact sheets and FAQ sheets, informational “town hall” forums to discuss new immigration laws or policies as they impact the community, and direct representation of individual clients.

One central thread that emerged across the chapters of the ebook, as well as in last week’s book launch panel, was the idea of continuity, both in repressive immigration policies and the responses to them, both before and during the pandemic. Although the Trump administration, marked by its numerous and draconian immigration policy changes, has now been replaced by the Biden administration, many Trump-era policies still live on, situating COVID-related immigration policies within a broader harsh climate for immigration. Recent federal court decisions, for example, illustrate the revival of many of the Trump administration’s policies, as well as its jaundiced view of immigrants. A federal judge in Texas, for example, recently ordered the Biden administration to reinstate the Migrant Protection Protocols, which force asylum seekers to wait in Mexico for adjudication of their cases, often placing them in grave danger. In August, the Supreme Court refused to overturn the lower court order that would revive the program. Similarly, the U.S. District Court for the Southern District of Texas recently held that Biden’s immigration enforcement priorities, which would have focused removal efforts on only those noncitizens who were a national security risk, entered the United States on or after November 1, 2020, or posed a threat to public safety, were a violation of the Administrative Procedure Act, at least as applied to detention cases. However, the Fifth Circuit has issued a partial stay of the S.D. Texas order, allowing the provisions that provide guidance on when enforcement actions should be initiated to go into effect, among others. The Fifth Circuit’s order left in place only a handful of narrow provisions in the injunction that concern detention. The U.S. District Court for the Southern District of Texas has also held that the DACA program violates the APA, which will bar any new applications for the program.

Many of the COVID-related immigration policies outlined in the chapter continue, at least in some form, as well. For the moment, the slew of COVID travel bans continue, with the suspension on entry into the United States of nonimmigrants who have been physically present in India prior to traveling having been added by the Biden administration after publication of the ebook. As discussed in prior blogs, these bans have a disproportionately harsh impact on nonimmigrants, who are no more likely to transmit COVID-19 than the numerous categories of other travelers exempted by the bans. Although the bans are projected to be lifted in November, to be replaced with testing and vaccination requirements, the harm they created, particularly for nonimmigrants who traveled to be with family at the height of the pandemic and became trapped outside the U.S., is unlikely to be immediately resolved, particularly in light of lingering vaccine inequality issues.

Similarly, the suspension of non-essential travel by land and sea between the United States and Mexico and Canada remains in place for a little while longer. This suspension also includes a number of exemptions, including for U.S. citizens and permanent residents, as well as certain categories of essential workers. First implemented in April 2020, the restrictions were recently extended until at least October 21, 2021.

The chapter also discusses the interruptions to visa processing that occurred when U.S. embassies and consulates suspended routine services. When the travel bans are lifted, some consular services may resume. However, consulates are likely to have significant backlogs and operations may still be disrupted by local COVID conditions. Thus, individuals who are waiting for visa interviews and the like are still likely to experience significant delays.

The climate for asylum seekers, too, has improved little since publication of the ebook. Our article discusses the summary removals that resulted from a CDC and U.S. Department of Health and Human Services regulation and notice that suspended the “introduction” into the United States of individuals who arrived at or between ports of entry without valid travel documents or permission. The Trump administration invoked Title 42, a provision of the 1944 Public Health Services Act permitting the federal government to prevent travel into the country in the event of a public health crisis, as the authority for this order. Despite relaxing the restrictions somewhat for unaccompanied minors and parents with children, the Biden administration has largely continued to rely on Title 42 to summarily remove adults who arrive at the border, effectively denying them any meaningful opportunity to seek asylum. This use of Title 42 plainly contradicts with the United States’ legal obligations to asylum seekers, as laid out at 8 U.S.C. § 1158, which states that any individual “who arrives in the United States…may apply for asylum”.

Although many hostile immigration policies linger on, the conclusion need not be an entirely negative one. Many of the pandemic’s most onerous restrictions, such as the travel bans, are soon to expire, which will provide relief to many. Further, one need not reinvent the wheel when responding to COVID-related immigration laws and policies. Immigration lawyers became very skilled at advising their clients about ever-evolving policies and finding creative solutions during the Trump administration. The tools highlighted in our chapter need not apply only to law school clinics. Practitioners of all varieties continue to support and counsel individual clients as the navigate immigration policy changes, COVID-related and otherwise, and community education can take the form of articles, blogs, webinars, or even social media posts that relay the latest policies in an accurate and digestible way. The same skills and tools that have been honed in recent years can still be utilized during the pandemic, however long it may last.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

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

 

 

 

 

Cyrus Mehta

Recent Trends in Requests for Evidence on I-140 Petitions

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By Cyrus D. Mehta,  Sung-Min Baik* and Kaitlyn Box**

Employers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE).  These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India employment-based Second preference (EB-2) date.  Below are some examples of RFEs we have been seeing.  Although the USCIS is required to adjudicate over 100,000 pending I-485 adjustment cases by September 30, it is very likely that the USCIS will not be able to do so, and so we will continue to see these issues in the new 2022  fiscal year with respect to pending I-140 and I-485 cases.

Retention of the Priority Date, Ability to Pay

Under 8 C.F.R. § 204.5(g)(2), an employer filing an I-140 petition must demonstrate its ability to pay the proffered wage “at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.”  According to a policy memo dated May 4, 2004, by William R. Yates, the petitioning employer may receive a positive determination of this ability to pay with initial evidence establishing that its net income or net current assets are equal to or greater than the proffered wage or that it has paid or is paying the proffered wage to the beneficiary.

This seemingly unambiguous burden is often applied erroneously when an employer files an I-140 petition on behalf of a foreign national who is already the beneficiary of a previously approved I-140 petition and seeks to recapture the priority date associated with the earlier I-140.The new employer is required to obtain a new labor certification, but the new I-140 petition would ultimately receive the earlier priority date established by the former employer.

When this retention of the priority date is requested by a new employer under 8 C.F.R. § 204.5(e), the UCSIS interprets 8 C.F.R. § 204.5(g)(2) to insist that the new employer must show its ability to pay from a priority date that it seeks to retain, even though the labor certification establishing the earlier priority date was obtained with a job offer made by a former employer and is not claimed by the new employer as the legal basis for filing a new I-140 petition.

The relevant regulation does not support the USCIS’ interpretation. On ETA Form 9089, an employer attests in the context of a specific job offer that an offered wage “will equal or exceed the prevailing wage” and that it has “enough funds available to pay the wage.”  20 C.F.R. §§ 656.10(c)(1).  Accordingly, determining the employer’s ability to pay should not exceed the scope of the employer’s attestation made with respect to the specific job offer for which certification is sought and obtained.  Subjecting the employer to the conditions of a different job offer made by a former employer would violate 20 C.F.R. § 656.30(c)(2), which provides that “[a] permanent labor certification involving a specific job offer is valid only for the particular job opportunity.”  It would also be impossible for the current employer to obtain the financial documents from a prior employer. Furthermore, the current employer is also not required to provide financial records from the year when the prior employer filed the labor certification. Indeed, the current employer may not have existed when the prior employer filed the labor certification.

It should be argued that the USCIS should not confuse the current employer’s ability to retain a prior pririty date under 8 C.F.R. § 8 C.F.R. § 204.5(e) with its ability to pay pursuant to 8 C.F.R. § 204.5(g)(2). The current employer must be required to establish its ability to pay at the time when it filed the current labor certification based upon which the I-140 petition was filed, and not based on an earlier recaptured priority date.

Beneficiary’s Current Position v. Offered Position

With respect to an I-485 application, the USCIS sometimes questions the validity of a job offer if the beneficiary is currently employed by a petitioning employer but not in the offered position, even when the current position falls within the same SOC code as the offered position in the labor certification, with only minor distinctions such as a differe job title.  In such casse, the USCIS argues that the employer failed to establish that it would permanently employ the beneficiary in the offered position set forth in the labor certification.  But, there is no requirement that the employer must offer the  PERM position to the beneficiary prior to obtaining permanent residence.  8 C.F.R. § 204.5(c) provides only that “[a]ny United States employer desiring and intending to employ an alien may file a petition.”   The Board of Immigration Appeals has noted that “[a]n alien is not required to have been employed by the certified employer prior to adjustment of status.”  Matter of Rajah, 25 I&N Dec. 127, 132–33 (BIA 2009).  As long as the employer provides evidence demonstrating that the beneficiary would be employed as set forth on the labor certification, the employment of the beneficiary in a different capacity or position during the pendency of an I-485 application would not, despite the USCIS’ contention, necessarily be relevant to the validity of a job offer made to the beneficiary.

Determining Ability to Pay When There is a Financial Loss

Because 8 C.F.R. § 204.5(g)(2) requires the employer to be able to demonstrate its ability to pay from the date when the labor certification is filed to the date when the beneficiary obtains permanent residence, the employer must put forth evidence, at the time of filing and/or in response to a request for evidence, establishing its ability to pay for the entire period. However, due to unforeseen intervening factors, the employer may report a loss for some part of this period.  For example, many petitioners may have suffered financially in 2020 due to distruptions caused by the COVID-19 pandemic.  In these instances, the USCIS may argue that the employer has failed to maintain its ability to pay as required by the regulation, but the then Immigration and Naturalization Service took a broad approach and indicated that the important question is whether the loss would preclude the employer from establishing that she [petitioning employer] will be able to meet the conditions of the certification in the ‘Job Offer.’”  Matter of Sonegawa, 12 I&N Dec. 612, 615 (Reg. Comm. 1967).  To answer this question, the Board analyzed the factors that led the employer to report a substantially lower income in one year and accepted evidence indicating that the employer’s business was likely to grow and report profits.  Id. 614-15.  Accordingly, reporting a loss for one year would not automatically prevent an employer from establishing its ability to pay, but attention needs to be devoted to presenting a well-documented and plausible argument that the employer would be able to pay the proffered wage as set forth on the labor certification.

Work Experience

With respect to establishing that the beneficiary has qualifying experience, 8 C.F.R. § 204.5(g)(1) instructs that evidence be provided “in the form of letter(s) from current or former employer(s) … and shall include … a specific description of the duties performed.”  In general, an experience letter is prepared by a supervisor who has direct knowledge of duties performed by the beneficiary, but sometimes a former employer may have a policy of provides letters that include only the start and end date of the employment, the job title, and a very brief description of the duties. When the beneficiary cannot obtain a more detailed letter from the employer itself, a separate affidavit from a supervisor may provide a more complete description of the actual duties performed by the beneficiary that comports more closely with the description of the beneficiary’s experience in Section K of the ETA 9080 labor certifcation.  However, the USCIS sometimes asserts that the petitioning employer must first establish “the non-existence or other unavailability” of an expereince letter from the former employer before submitting an affidavit from a supervisor for consideration.

Because 8 C.F.R. § 204.5(l)(3)(ii)(A) states only that “[a]ny requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien”, one can argue that letters from supervisors are primary, rather than secondary evidence. Letters from trainers or employers must be authored by a person, such as a supervisor or a human resources professional, and are rarely signed by a corporation itself. 8 C.F.R. § 204.5(l)(3)(ii)(A) does not specify who must author an experience letter.  Indeed, the fact that Form ETA-9089 requests the contact information for an employee’s supervisor during the period of experience suggests that a supervisor and not human resources or some other officer within a company may actually be the preferred source of a letter from an employer.

Even if USCIS does not accept that letters from supervisors are primary evidence, a petitioning employer can argue that primary evidence is unavailable because the former employer has a policy of not providing detailed experience letters. When responding to an RFE that question’s the beneficiary’s work experience, the petitioning employer should instruct the beneficiary to reach out the the former empoyer(s) and request a new, detailed experience letter that includes all the necessary components. Ideally, the beneficiary will be able to obtain an updated experience letter that can be included with the RFE response. Even if the employee is unsuccessful, however, and the former employer’s policy prevents it from issuing a more detailed letter, copies of the emails or letter from the former employer can serve as proof that an experience letter is unavailable.

Other RFEs question the content, rather than the format, of the experience letters. For example, if the requirements in the labor certification state that candidates must have experience in a certain industry, such as IT or finance, USCIS may reject experience letters that do not specifically mention the field of experience. Petitioners should follow a similar process to respond to these RFEs, and ask the employee to attempt to obtain new experience letters. If more detailed letters are not available, publicly available information about the former employer, such as website printouts, can be submitted with the RFE response to demonstrate that the company operates within a certain industry and so the beneficiary gained the necessary experience.

Many of these RFEs emanate when an EB-3 I-140 petition is upgraded to premium processing, and are issued even when the prior EB-2 was approved based on the same supporting evidence. Therefore, care must be taken to properly address the RFEs, particularly because a denial of an EB-3 I-140 can potentially even jeopardize the underlying EB-2 I-140. Because many employment-based second and third preference green card backlogs, employers should also evaluate whether the job has drastically changed since the filing of the original labor certification before beneficiaries file a downgrade and concurrent adjustment. As outlined in our previous blog, however, employers may still rely on the old labor certification if the job duties remain largely the same and the beneficiary is merely using updated tools or technologies. Cases involving a slight change in the job are thankfully not being questioned by USCIS at this time.

(The information procided in this blog is for information purposes, and should not be viewed as a substitute for legal advice)

*Sung-Min Baik graduated with a JD from George Mason University School of Law in 2014, is an Associate at Cyrus D. Mehta & Partners PLLC.

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