Cora-Ann Pestaina

To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application

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As the COVID-19 pandemic unfortunately rages on, employers nationwide continue to seek ways to keep their businesses open and reduce costs while also protecting their nonimmigrant employees. This blog has addressed, here, here and here, some of the unique challenges facing employers of H-1B and other nonimmigrant workers. Employers have basically come to accept the fact that the H-1B worker is tethered to the LCA and there are several changes that could necessitate the filing of an amended petition. But while it is generally understood that other work visas such as the E-1, E-2, L-1, O and TN visas afford greater flexibility because they are not subject to the LCA, the lack of specific governmental guidance means that employers are still unsure of what steps they can and cannot take with regard to their workers in these visa categories. This blog discusses best practices for employers considering remote work, furloughs, reduction in hours of work or salary reductions for employees in nonimmigrant visa categories without wage requirements.

Change in Work Location

One requirement common to all visa types is that USCIS must be notified if there is a material change in the terms of employment. Over the past year, many employers have had to close headquarters and implement remote work policies. Because the E, L, O and TN visas do not require an LCA, they are not as location specific as the H-1B and they afford more flexibility regarding a change in the nonimmigrant employee’s work location.

In the L-1 context, 8 C.F.R. § 214.2(1)(7)(i)(C) states that an employer should file an amended petition to reflect changes in approved relationships, additional qualifying organizations under a blanket petition, change in capacity of employment (i.e. from a specialized knowledge position to a managerial position), or any information which would affect the beneficiary’s eligibility under the Act. As long as the L-1 employee continues to perform the duties of the approved L-1, a change in work location, especially if only temporary, should not be considered sufficiently material to require the filing of an amendment. However, employers of nonimmigrant workers in L-1 status, and especially when the change in work location will be long-term, should consider the fact that L-1s are subject to USCIS site visits. The employer should consider whether it makes more sense to file the L-1 amendment in an effort to protect against the potential negative effect of a failed USCIS site visit to the initial L-1 worksite. This was exactly what happened in Matter of W- Ltd., ID# 1735950 (AAO Nov. 20, 2018). This non-precedent decision involved an employer who relocated the L-1 employee without filing an amendment. Upon discovering, after a site visit, that the L-1 was no longer employed at the original worksite, USCIS issued a Notice of Intent to Revoke (NOIR) the approved L-1 petition. This was despite the fact that the officer was able to speak to the L-1 employee’s supervisor at the worksite, interview the L-1 employee over the phone and collect additional information from the L-1 employee via email! The employer responded to the NOIR explaining the relocation and that the L-1 employee continued to perform in the same position. However, the L-1 was still revoked. USCIS stated that it was not evident that the beneficiary was currently employed in a managerial position pursuant to the terms and conditions of the approved petition. Upon appeal, the employer successfully argued that neither the statute, regulations, nor USCIS policy expressly require an L- I employer to file an amended petition in every instance where a beneficiary is transferred to a new worksite to perform similar duties for the same employer. The Administrative Appeals Office (AAO) agreed and held that the L-1 had been improperly revoked. While this decision is excellent it is still only a non-precedent decision and the AAO stated that such determinations must be made on a case-by-case basis. Employers considering permanently relocating their L-1 employees may wish to engage in a costs-benefits analysis to determine whether it would make more sense to simply file the amended petition rather than risk a failed site visit and a possible revocation which would likely have a negative impact on their business and on the L-1 employee who would not be able to continue to work and may even have to leave the US while the revocation is under appeal. If the L-1 obtained L-1 status based on a blanket L-1 petition and will be relocated to an office location already listed in the approved blanket petition, then the L-1 amended petition would not be required.

The E, O and TN visas are not currently subject to site visits. As long as the other terms and conditions of employment remain the same, it is not likely that an employer would encounter any issues in implementing a switch to remote work.

Furloughs

A ‘furlough’ is a temporary leave of absence from employment duties, without pay. Employers continue to consider furloughs as a means to decrease spending as the pandemic continues. Generally, a nonimmigrant worker may request unpaid leave for personal reasons, such as to take care of a sick parent, and the employer may grant this leave as long as it is well documented in the employee’s file, the period of absence is reasonable, and the employer-employee relationship is maintained throughout the leave. But a furlough is not a voluntary request for leave.

Since there has been no communication to the contrary from USCIS, a furlough can only be interpreted in one way and that is to effectively place the nonimmigrant worker employee out of status. An employer who wants to implement furloughs but maintain the ability of the E, L-1, O or TN worker to return to work at the end of the furlough period, could take advantage of the fact that employees in these nonimmigrant statuses, under 8 CFR 214.1(l)(2) are allowed a grace period of 60 days upon a cessation of their employment. Specifically, these nonimmigrant workers shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which their nonimmigrant classification was based, for up to 60 consecutive days. The grace period could be shortened if worker’s remaining nonimmigrant status validity period is less than 60 days. In this case, the grace period will end when the status expires. If the employee is rehired, under the same working conditions described in their nonimmigrant visa petition, before the end of their grace period, then they could go back to business as usual. A nonimmigrant worker may only be granted this grace period once during each authorized validity period. Accordingly, an employer could only utilize this furlough strategy once during the employee’s validity period without jeopardizing the employee’s nonimmigrant status and maintaining the ability to rehire the employee.

Reduction in the Number of Hours Worked

A reduction in the number of hours worked, switching from full-time to part-time employment, could be considered a material change necessitating the filing of an amended petition. Because the E, L-1, O and TN visas are not tied to an LCA, it may be possible for the employer to reduce the nonimmigrant employee’s work hours especially if that change will only be temporary. While it could be argued that the switch to part-time employment is not material, the issue must be analyzed on a case by case basis to ensure that all other terms and conditions of the nonimmigrant worker’s employment will remain the same especially if the change will be long-term. For example, if there are some job duties that will no longer be performed, perhaps because the company downsized, best practices may necessitate the filing of an amended petition to describe the new part-time position.

Salary Reduction

Once again, because there is no LCA and therefore, no prevailing wage requirement attached to the E, L-1, O and TN visas, a reduction in salary may be permissible as long as the other terms and conditions of employment continue to be fulfilled.  The facts of each case ought to be carefully examined. If the L-1 nonimmigrant worker will continue to work in their executive, managerial or specialized knowledge capacity, a reduction in salary, especially when company-wide, should likely have no effect on L-1 status. Cyrus Mehta discussed the effect of salary reductions here and pointed out that while it is quite settled that the L-1 worker’s employment is not necessarily determinative upon the amount or existence of a salary, the question of whether the L-1 worker’s salary is commensurate with his or her executive, managerial or specialized knowledge position is one that should be carefully considered, especially if that change is significant. For example, a substantial salary reduction, such as halving of the original salary, may be significant enough to warrant an amended L-1 petition. Again, this must be assessed on a case by case basis. If the L-1 worker continues to perform in the same capacity, and continues to be compensated from overseas, then it may still be defensible to not file an amendment.  Further, employers should be careful not to offer a wage that violates the minimum wage under the Fair Labor Standards Act. USCIS is prohibited from approving such an L-1 petition under its adopted decision, Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017).

For an E-2 investor, a reduction in salary is permissible as long as the E-2 enterprise does not become marginal. An enterprise is marginal if it does not have the present or future capacity to generate income to provide for more than a minimal living for the E-2 investor and family. An enterprise that continues to employ workers other than the investor and his or her family is not marginal. Similar to the above discussion in the L-1 context, employers of E-1/E-2 employees in managerial, executive, essential or specialized positions should always consider whether a new, lower salary is still commensurate with the nature of the E-2 position.

In the end, it is worth reiterating that every case must be examined on its own merits. While great flexibilities may exist with regard to what could be considered a material change in E, L, O and TN contexts, that doesn’t mean that the government won’t ask questions later. A careful costs-benefits analysis may lead to the conclusion that it is safest to file an amended petition rather than being forced to later defend current decisions. Having said that, the costs-benefits analysis must include the fact that USCIS rescinded its policy of requiring officers to defer to prior determinations in petitions for extension of nonimmigrant status. This policy has not yet been rescinded by the Biden administration. Employers must consider whether the bigger risk lies in filing an amended petition only to have it be denied for new reasons that were not at issue when the initial petition was approved or in not filing the amendment and leaving the matter open to potential questions or an NOIR in the future.

Cyrus Mehta

State Dept. Exempts Certain Travelers From Restrictions: Is there a Better Way So That the Least Number Get Impacted?

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On February 10, 2021, the Department of State (DOS) announced that certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom (UK), and Ireland. Qualified travelers who are applying for or have valid visas or Electronic System for Travel Authorization (ESTA) may travel to the United States while the PP remains in effect following the procedures below, DOS said.

Also, on January 28, 2021, DOS announced that certain H-2 travelers from South Africa may qualify for national interest exceptions.

Students traveling from the Schengen Area, the UK, and Ireland with valid F-1 and M-1 visas do not need to contact an embassy or consulate to seek an individual national interest exception to travel. Students seeking to apply for new F-1 or M-1 visas should check the status of visa services at the nearest embassy or consulate. Applicants who are otherwise qualified for an F-1 or M-1 visa will automatically be considered for a national interest exception to travel.

Business travelers, investors, academics, J-1 students, journalists, and treaty traders who have a valid visa in the appropriate class or an ESTA authorization issued before the PP’s effective date, or who are seeking to apply for a visa, and believe they may qualify for a national interest exception should contact the nearest U.S. embassy or consulate before traveling. If a national interest exception is approved, they may travel on either a valid visa or ESTA authorization, as appropriate.

“Granting national interest exceptions for this travel to the United States from the Schengen area, UK, and Ireland, will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship,” DOS said.

H-2A and certain H-2B travelers who have been present in South Africa may qualify for national interest exceptions “if they are providing temporary labor or services essential to the United States food supply chain.” A non-exhaustive list of covered occupations includes seafood processors, fish cutters, salmon roe technicians, farm equipment mechanics, and agriculture equipment operators. Applicants applying for a visa will be considered for an exception at the time of interview, DOS said. “Travelers who already hold valid H-2A or food-supply-chain related H-2B visas and believe they meet the exception criteria should follow the procedures set forth on the Embassy/Consulate website where their visa was processed for consideration for an exception,” DOS said. The exception criteria only apply to H-2 travelers and applicants subject to a January 25, 2021, Presidential Proclamation due to physical presence in South Africa.

DOS said it continues to grant national interest exceptions for qualified travelers seeking to enter the United States for purposes related to humanitarian travel, public health response, and national security.

Is There a Better Way?

While these exceptions are indeed salutary, the Covid-related proclamations instituted by Trump and continued by Biden still cause untold hardship. Moreover, nothing has been done to alleviate the hardship of those impacted by Trump’s immigrant visa ban, Proclamation 10014, and work visa ban, Proclamation 10052, that were instituted by Trump under the cover of Covid-19 but were actually based on the erroneous theory that noncitizens entering the US on legitimate visas threatened the jobs of US workers during the pandemic. Although these two proclamations were extended by Trump at the end of December 2020 with a validity date of March 31, 2021, that end period is too far away and continues to separate noncitizens from family members and employers in the US. Biden should immediately rescind these two proclamations.

While I am not a health expert, all these proclamations inherently have exceptions. For instance, US citizens and lawful permanent residents are exempted from the travel ban. These travelers could also potentially have Covid-19 when they come to the US. Does it not make more sense for all travelers to demonstrate that they are Covid negative before they travel to the US through a test result? The US has already imposed this requirement as of January 26, 2021.  If there is concern that one who tests negative may still contract the infection after the test and while travelling to the US, then there could also be a few days of quarantine imposed on the traveler upon entering the US. As the vaccine gets more prevalent, then one who has had the vaccine could also be allowed to travel to the US, although there will be many, especially from poorer countries, who may not have the same access to the vaccine as those from richer countries.  Some may not be able to take the vaccine for medical or personal reasons.  Therefore, rather than require a mandatory “vaccine passport” in the near future, a traveler ought to  be allowed entry into the US based on either a negative test result or upon proving they have have been vaccinated.

These safeguards would eliminate the need to have area wide and country bans related to Covid-19. Proclamations 10014 and 10052 are in any event not based on concerns of spreading Covid-19 in the US. There must be a more scientific way of preventing the spread of Covid-19 by ensuring negative test results, and subsequently being vaccinated,  rather than use the immigration system to block legitimate noncitizen travelers to the US and thus eliminate the needless hardship to them.

Cyrus Mehta

The Rescission of  Trump’s Buy American Hire American Will Benefit Immigrants and America

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By Cyrus D. Mehta

On January 25, 2021, President  Biden signed an executive order entitled the Future  is Made in All of America by All of America’s Workers. This executive order revokes Trump’s Buy American Hire American Executive Order (BAHA), 13788, of April 18, 2017. Although President Biden’s Buy American executive order requires government agencies to purchase goods and services from US companies, as a way to boost production within the United States, it is not designed to impede immigration or hurt immigrants. While Biden’s Buy American executive order has also been  criticized in some quarters as representing  bad economics – since forcing the government to buy only American products may raise the average cost and lower the average quality of everything the government buys – the purpose  of this blog is not to critique the economics behind Biden’s executive order but to celebrate the demise of BAHA.

Section 5 of the BAHA EO stated:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

When BAHA was announced with great fanfare in April 2017, USCIS reviewed all its regulations, policies, and programs to comport with BAHA.  BAHA was issued on the false premise that immigrants took away American jobs and were a threat to American workers. BAHA also falsely believed that immigration is a zero sum game where the presence of an immigrant in the US displaces a US worker. However, immigration can also be viewed as enhancing American jobs and foreign nationals complement US workers thus creating more growth and opportunities for further job creation.  The BAHA executive order explicitly highlighted the H-1B visa program and directed the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries even though there was no basis to do that in the Immigration and Nationality Act. The USCIS began to deny routine H-1B and L-1 visa extensions in the name of BAHA.  The State Department followed suit and so did the Justice Department and all other agencies in charge of implementing US immigration law. BAHA resulted in unfair denials of H-1B and L-1 petitions, and even US consuls at the State Department began asking visa applicants whether their entry into the US would comport with BAHA.

Even though there was no requirement in the INA for a demonstration that  US workers would not be displaced when approving visa applications – for example, an intracompany transferee need not demonstrate that he or she will not be displacing Americans, or create new jobs – attorneys prepared visa applicants to demonstrate how their entry in the US would result in more jobs for US workers and thus be consistent with BAHA. This author advised in a prior blog that attorneys should not suck up to BAHA as there was no standard set forth to determine how  a visa entrant would result in more jobs for American workers. BAHA now thankfully does not exist and attorneys need not have to go through the charade of coaching their clients to show how their entry would be consistent with BAHA even though those standards were nonexistent under the INA.

BAHA stemmed from Trump’s America First policy that disgracefully influenced how the United States viewed trade, immigration, the environment and global alliances. It was a radical departure from how the United States viewed itself before Trump took office. While previously the United States took the lead in forging the Paris climate accord, Trump withdrew from it. While the United States had promoted free trade as a basis for growing prosperity between nations, Trump withdrew from the Trans Pacific Partnership, which took years to negotiate under American leadership, and he also withdrew from other global alliances. Although the title was deceptive, Trump’s America First doctrine, unfortunately, abdicated America’s leadership role in the world. This thankfully will be restored by President Biden and without America First or BAHA guiding his administration.

It is worth noting that the term America First also has an ignoble history, and was associated with anti-Semitism.  The America First Committee (AFC) was founded in 1940 and opposed the involvement of the United States in World War II. AFC’s most notable spokesman Charles Lindbergh, the aviator, expressed not only sympathy for the persecution of Jews in  Nazi Germany, but further suggested that Jews were advocating that the United States enter a war that was not in the national interest. The AFC met a sudden death a few months later by disbanding when Japan attacked Pearl Harbor, which naturally propelled America’s involvement in World War II.

Now BAHA is dead, and can no longer roil US immigration policy. No longer may USCIS issue a BAHA report card each year boasting on how well it has done under BAHA by denying visa applications and harassing immigrants. Even pending regulations designed to impede legal immigration into the US, such as the new H-1B lottery rule, may no longer rely on BAHA to move forward although this in itself may not be the basis to invalidate them in court.  The newly promulgated DOL wage rule that artificially increases prevailing wages, thus creating obstacles for employers to obtain H-1B visas and permanent residency for foreign nationals, also mentions the BAHA executive order several times. The USCIS policy that rescinded giving deference to prior successful adjudications was based on BAHA (USCIS has touted this as one of its BAHA accomplishments).  It is hoped that immigration policies and rules that were issued under BAHA, now rescinded, can provide an excuse for the Biden administration to abandon them as well as potentially provide further ammunition to litigators who challenge them in court. Even those who received denials of visa petitions or applications that cited BAHA can potentially use that as a basis to challenge them in court or through additional administrative review.

The rescission of BAHA should also pave the way for new progressive laws and policies that view immigrants as an asset to the nation rather than a threat, which in turn will benefit both immigrants and America.

 

 

 

Cyrus Mehta

President Biden Ushers in New Hope on Immigration after Trump’s Destructive and Xenophobic Four Years

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By Cyrus D. Mehta & Kaitlyn Box*

There is much for all of us to be excited about after President Biden’s inauguration on January 20, 2021 when he aggressively rescinded many of Trump’s most damaging immigration actions. We were also relieved to wake up on Saturday morning to find that there was no Friday midnight Trump regulation night aimed to hurt immigrants or put a further roadblock on legal immigration. What a nice feeling after four nightmare years.

On his first day, President Biden proposed bold new legislation and changes to our immigration system and reversed some of the most devastating policies of the last four years.  The Muslim and Africa bans were rescinded with great aplomb. We have written many blogs, here, here and here, for example,  arguing  and despairing how Trump abused his authority under INA 212(f) to ban whole countries, visa categories and millions of immigrants. While it took so much litigation challenging the Muslim ban, which the Supreme Court unfortunately upheld in Trump v. Hawaii,  it was so heartening to see President Biden rescind the ban with the stroke of a pen. The following words from the proclamation brought vindication to all our efforts to confirming how immoral the ban was:

The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all.

Beyond contravening our values, these Executive Orders and Proclamations have undermined our national security.  They have jeopardized our global network of alliances and partnerships and are a moral blight that has dulled the power of our example the world over.  And they have separated loved ones, inflicting pain that will ripple for years to come.  They are just plain wrong.

On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). Proclamation 10014, signed in April 2020, suspends certain green card applications, and restricts some nonimmigrant visa categories. Proclamation 10052 of June 22, 2020, itself an expansion of Proclamation 10014, curtailed the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the proclamation and were seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. Our previous blog discusses Proclamation 10052 in detail, and another blog discussed the fate of these bans even after the Biden administration takes over. A group of individuals who have been barred from obtaining a visa due to Proclamation 10052 have brought a lawsuit in federal court urging the Biden administration to rescind the ban and resume visa processing. It is sincerely hoped that President Biden rescinds these bans rather than waits till March 31 to allow them to lapse.

Below, is a summary of some of the salutary executive actions that have taken place thus far.

Below is a summary of the legislative proposals:

President Biden will soon send a proposed immigration reform bill to Congress. According to a fact sheet issued by the White House, the legislation, called the “U.S. Citizenship Act of 2021,” would:

  • Provide worker protections and improvements to the employment verification process.
  • Clear employment-based visa backlogs by not counting family members, recapture unused visas, reduce lengthy wait times, and eliminate per-country visa caps.
  • Make it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.
  • Create an earned roadmap to citizenship for undocumented individuals, allowing undocumented persons to apply for temporary legal status and apply for a green card after five years if they pass criminal and national security background checks and pay their taxes. DACA “Dreamers,” temporary protected status beneficiaries, and immigrant farmworkers who meet specific requirements would be eligible for green cards immediately. After three years, all green card holders who pass additional checks and demonstrate knowledge of English and U.S. civics could apply for U.S. citizenship. Applicants must be physically present in the United States on or before January 1, 2021. A waiver is included for certain family unity or other humanitarian purposes.
  • Reform family-based immigration.
  • Increase diversity visas from 55,000 to 80,000.
  • Promote immigrant and refugee integration and citizenship.
  • Prioritize border controls that include technology and infrastructure improvements.
  • Manage the border and provide various resources to protect border communities.
  • Crack down on criminal organizations.
  • Address underlying regional causes of migration.
  • Reform immigration courts.
  • Support asylum seekers and other vulnerable populations.
  • Change the word “alien” to “noncitizen” in U.S. immigration laws.

While it is easier for President Biden to rescind Trump’s executive actions, it will be harder to pass sweeping comprehensive immigration reform through Congress when the Senate is controlled 50-50 by Democrats and Republicans unless the filibuster is eliminated. To pass a reform bill, the administration would need to win the support of at least 10 Republican Senators, a formidable task since many Senate Republicans supported the supported Trump’s draconian immigration policies. See, e.g., Seung Min Kim, Biden to propose overhaul of immigration laws on first day in office, The Wash. Post (Jan. 18, 2021), https://www.washingtonpost.com/politics/biden-immigration-plan/2021/01/18/f0526824-59a8-11eb-a976-bad6431e03e2_story.html. However, there may be a chance for more narrow legislation to pass. Democrats have called for an agreement on the DACA program, for example, or the creation of a pathway to citizenship for essential workers. Biden must also boldly press forward with executive actions if Congress does not pass meaningful reform such as not counting family members under a reinterpretation of INA 203(d) or advancing filing dates so that many more can file adjustment of status applications.

Some of Biden’s executive actions will also be challenged in court, such as the Texas lawsuit objecting to  the 100 day pause on deportations. The suit alleged that the pause violated the president’s constitutional duty to execute the law, and agreement DHS had made to consult with the state of Texas and provide six months’ notice before softening any immigration enforcement policies. It further alleges that the state will face irreparable harm and suffer security challenges at the border because it did not receive advance notice of the pause. This challenge should fail as a prior president cannot bind a new president to an agreement with a state to notify it on any changes in its deportation policy and a state’s objections to federal immigration policy ought to also fail under the preemption doctrine.

As a result of the 60 day pause on pending regulations, the proposed Trump midnight rule that would require secondary employers to also file H-1B petitions has been tossed, which our previous blog had discussed.  The H-1B lottery rule that would select applicants based on wages will likely not take effect until March 21, 2021, which would most probably result in not taking effect this year. The DOL wage rule will still take effect on July 1, 2021 notwithstanding the 60 day pause, and we hope that there will be successful court challenges to this as well as the H-1B lottery rule  as these rules are inconsistent with the Immigration and Nationality Act. See Stuart Anderson, The Biden Administration and What Happens to Trump’s H-1B Visa Rules, https://www.forbes.com/sites/stuartanderson/2021/01/21/the-biden-administration-and-what-happens-to-trumps-h-1b-visa-rules/?sh=1932b7af726b.

All these challenges and obstacles come as no surprise and are inevitable. Still, the fact that we have a new president who has already brought about a sea change in the first few days on how the US views immigrants after Trump’s four nasty years comes as welcome relief.  We look forward to changes that not just reverse Trump’s destructive and xenophobic policies but also usher in transformative changes, both legislative and executive, that can help millions of immigrants and also benefit America.

 

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

Cyrus Mehta

Trump’s Final Attacks on H-1B Visas and Legal Immigration: Reintroduction of the Wage Rule and Rule Requiring Client Companies to File H-1B Petitions 

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By Cyrus D. Mehta & Kaitlyn Box* 

Although President Trump is on his way out, his administration has promulgated two new rules that will have a devastating impact on the H-1B visa program and legal immigration.

Reissuance of DOL Wage Rule

 On January 12, 2021 the Department of Labor (DOL) published an advance copy of a final rule which changes the way in which prevailing wage levels will be computed for purposes of permanent labor certifications and Labor Condition Applications (LCAs). The final rule is expected to be published on January 14, 2021. The new rule will raise all four salary tiers, with the Level I wage, currently set at around the 17th percentile, eventually increasing to approximately the 35th percentile. However, the new rule acknowledges that an abrupt transition to the new wage levels could be disruptive to the economy and detrimental to U.S. employers, so the DOL will gradually introduce the new wages over a period of a year and a half, with the first increase set to take place on July 1, 2021. For H-1B workers who were the beneficiaries of approved I-140 petitions as of October 8, 2021, the phase-in period for the increased wages is extended over a three- and- a -half year period. See Stuart Anderson, DOL H-1B Visa Wage Rule: Donald Trump’s Bad Parting Gift To Immigrants, Forbes (Jan. 13, 2021), https://www.forbes.com/sites/stuartanderson/2021/01/13/dol-h-1b-visa-wage-rule-donald-trumps-bad-parting-gift-to-immigrants/ for a detailed summary of the phase-in.  

This rule was initially published with an effective date of October 8, 2020, but was struck down in the U.S. District Court for the District of Columbia last month on the ground that the COVID-19 pandemic did not give the DOL sufficient cause to publish the rule without a notice and comment period. Purdue University, et al., v. Scalia, et al., Civ. Actin No. 20-3006 (2020).  

Though the new wages themselves will be gradually phased in, the new rule will go into effect 60 days after publication, absent intervention from the Biden administration. Despite the phase in, the new wage levels will have no bearing to wages paid to US workers. They will not reflect prevailing or market wages and will be set at artificially high levels, thus rendering it difficult for an employer to either sponsor a new H-1B worker or retain an existing  H-1B worker at the time of renewal.  The American Immigration Lawyers’ Association (AILA) has reported that President-Elect Biden’s transition team will issue a memorandum on January 20, 2020 that will delay for 60 days the implementation of this and other last-minute regulations promulgated in the last days of the Trump presidency. 

Requirement to File H-1B Petitions by Employer and Third Party Client

On Friday, January 15, the Department of Homeland Security (DHS) quietly issued a new rule aimed at demolishing the H-1B visa program. The Department of Labor (DOL) also issued accompanying new guidance entitled “H-1B Program Bulletin Clarifying Filing Requirements for Labor Condition Applications by Secondary Employers at 20 C.F.R. §§ 655.715 and 655.730(a)”. The DHS rule is a limited version of a proposed rule published in October, the implementation of which was enjoined, and will take effect 180 days after publication in the Federal Register.  

The DHS rule changes and broadens the definition of the employer-employee relationship by incorporating common law elements into the definition of an employer. Historically, USCIS has been concerned with whether a petitioner who file an H-1B petition and then sends the beneficiary to a third-party worksite is the true employer of that beneficiary. The DHS rule, after taking into account comments made in response to the prior H-1B proposed rule, has now broadened the definition of the employer-employee relationship. 

However, the USCIS, by broadening the employer-employee definition, is now requiring the entities who use the services of the H-1B worker to also file H-1B petitions if they meet the broader definition of employer. The DOL’s corresponding guidance announced that it is reinterpreting its regulation to also require such “secondary employers” to file the LCA and H-1B petition. This departure completely contradicts USCIS’ concerns about whether the petitioner of an H-1B worker is a genuine employer or not by now rendering even the user of the H-1B worker’s services an employer.  

This outcome was never contemplated in the initial proposed H-1B rule which was blocked in court, and stake holders were not given an opportunity to comment on this aspect of the rule, which will create a radical paradigm shift. “Secondary employers” will have difficulty even complying with the rule since they do not pay the H-1B worker’s wages. The concept of secondary employment has existed in DOL regulations with respect to dependent employers and willful violators who needed to ascertain whether the assigning of an H-1B worker with a secondary employer would displace US workers. In 2000, the Fifth Circuit in Defensor v. Meissner also viewed a hospital that used the nurses of a staffing company as a secondary employer, but the Court developed this analytical framework of two employers to determine whether the hospital, as a secondary employer, required the nurses to have a bachelor’s degree or whether it was only the staffing company’s requirement. Defensor v. Meissner, 201 F. 3d 384 (5th Cir. 2000). However, those applications of “secondary employer” were limited to the dependent employer’s obligation to ensure there was no displacement of US workers when an H-1B worker was placed with a secondary employer, or in the case of Defensor v. Meissner, used to determine whether the position qualified for H-1B classification. The DOL uses this term in an unprecedented way, and this new interpretation will adversely impact the H-1B visa program – if not kill it completely.  

While this Friday night Trump rule in the waning days of a failed presidency has been designed to kill the India heritage IT industry, it will also hurt corporate America, which relies on this IT industry to keep humming away, creating jobs, and thus remaining competitive in the global economy. The change will also do significant harm to other sectors as well that involve third-party placements, including nursing, consulting, audit, engineering services among many others. 

However, the Biden administration may forestall the implementation of this rule after January 20th. The rule is likely to be politically unpalatable, even to Democrats who disfavor the H-1B visa program, given how overbroad and radical it is, as well as the deleterious impact it would have on the American economy and U.S. companies who use H-1B workers.  

The DHS circumvented the notice and comment process in promulgating this rule, alleging that the change in the employer definition would be inconsequential. Nothing could be further from the truth as the new rule requires the end client to also file an H-1B petition. To IT consulting companies, H-1B workers, and third parties who use the services of the workers, however, this rule would be catastrophic. By implementing an expanded definition of “employer”, the DHS and DOL will force third parties who do not pay an H-1B worker’s wage to file LCAs and H-1B petitions, interfering in contractual obligations and perhaps even forcing end clients to disclose confidential wage information. These secondary employers, according to a DOL Field Assistance Bulletin  that was issued upon the promulgation of the DHS rule, will need to comply with all the required wage and other obligations under the Labor Condition Application, along with maintaining their own pubic access file.  

This disconnect between the DHS statement and the rule’s true breadth could render  it even more vulnerable to the legal challenges that are sure to come.  For instance,  the Supreme Court in Kisor v. Wilkie, 139 S.Ct. 2400 (2019) recently held that  government agencies no longer get unbridled deference to interpret their  own regulations as they did under a previous holding, Auer v. Robbins, 519 US 452 (1997). While the need for a secondary employer to file an H-1B petition has been suggested in the preamble to the rule, it is not stated in the actual rule, which defines the employer in a broader sense but does not include any definition of “secondary employer”  or the need to file an H-1B petition. The DHS and DOL cannot now reinterpret the new definition of employer to require multiple H-1B petitions on behalf of the same H-1B worker when the new rule does not contain this requirement, and which has never been the authoritative position of the agency and has taken stakeholders by unfair surprise. There is a good argument to make to a court that this interpretation of the new rule ought to be held unreasonable under Kisor v. Wilkie. 

Even though Trump will exit on January 20, his attacks on legal immigration through last minute regulations such as the ones above will take time to challenge, unravel and rescind.

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

 

Cyrus Mehta

Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump

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By Cyrus D. Mehta & Kaitlyn Box*

On the last day of 2020, Trump issued a Presidential Proclamation extending two previous Proclamations – Proclamation 10014 (Suspension of Entry of Immigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak) and Proclamation 10052 (Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak). Proclamation 10014, signed in April 2020, suspends certain green card applications, and restricts some nonimmigrant visa categories. Proclamation 10052 of June 22, 2020, itself an expansion of Proclamation 10014, curtailed the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the proclamation and were seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa. Our previous blog discusses Proclamation 10052 in detail.

Trump’s latest Proclamation extends the restrictions imposed by the previous Proclamations to March 31, 2021. The administration’s stated rationale for the Proclamation is high unemployment due to the COVID-19 pandemic, and a desire to preserve as many jobs as possible for American workers. This reasoning stands in sharp contrast to Trump’s recent boast that unemployment rates have fallen below 6.7%. It appears that the Proclamation is actually the Trump administration’s last effort at restricting the immigration of highly skilled workers before President-elect Biden takes office in January. The extensions continue to rely on INA 212(f), which gives the president broad power to suspend the entry of foreign nationals whose entry would be detrimental to the interests of the US.  While invoking INA 212(f), Trump has invented new law regarding visa categories outside what Congress enacted through the Immigration and Nationality Act.  Trump relied on INA 212(f) to issue the various iterations of the travel ban and Presidential Proclamation 9822, which banned individuals who cross the Southern border between ports of entry from applying for asylum in the United States, to cite only a few examples.  Another example where the Trump administration invented the law, as discussed in a prior blog,  was in the exceptions to Proclamation 10052. One exception can be availed of by showing that the H-1B worker  is being paid 15% over the prevailing wage. The additional wage requirement is entirely absent from the INA.

Like planting a time bomb, the Trump administration has foisted on Biden the unpleasant choice of rescinding the Proclamation come January 20, likely to be a politically unpalatable move given that unemployment rates will probably remain high in the coming months as the pandemic drags on, or letting the Proclamation expire on its own on March 31, 2021. Regardless of which strategy the Biden administration chooses to pursue, would-be immigrants and highly-skilled foreign workers can take comfort in the fact that the Proclamation will be relatively short lived.

If the Biden administration chooses to rescind the proclamations before March 31, they must be mindful of a recent Ninth Circuit decision which has also upheld the Trump administration’s invocation of 212(f), this time as the authority for Presidential Proclamation 9945, “Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order to Protect the Availability of Healthcare Benefits for Americans.”, which barred immigrant visa applicants for entering the United States unless they could demonstrate the ability to acquire health insurance within 30 days of entry or pay for healthcare expenses on their own.  John Doe #1 v. Trump, No. 19-36020, D.C. No. 3:19-cv-1743-SI, *1-2 (9th Cir. 2020). In Doe #1 v. Trump, the plaintiffs alleged, among other causes of action, that Proclamation 9945 exceeded the President’s authority under INA § 212(f). Id. at 10. The Ninth Circuit rejected this argument and upheld the healthcare proclamation, citing to Trump v. Hawaii in stating that INA § 212(f) grants the President broad discretion to restrict entry. Id. at 22; Trump v. Hawaii, 138 S. Ct. 2392, 2407 (2018). The court reasoned that INA § 212(f) limits the President’s authority in three ways – the President must find that entry of a certain class of immigrants is detrimental to U.S. interests, the limitations on entry imposed must be “temporally limited”, and the President must properly identify the “class of aliens” who are subject to the restrictions. John Doe #1 v. Trump at *22-26. The Ninth Circuit also indicated that another potential limitation is that a proclamation may not “expressly override” a provision of the INA, which may exist where the statute solves the “exact problem” as the proclamation. Thus, even if the healthcare proclamation overlapped with the public charge ground of inadmissibility at INA 212(a)(4), the imposition of an additional ground of inadmissibility via INA 212(f) will not be viewed as the proclamation overriding the public charge provision.  Finding that Proclamation 9945 did not exceed any of these limitations, the court upheld it as a valid exercise of the President’s authority under INA § 212(f). Id. at *26.

The Ninth Circuit’s decision in Doe #1 v. Trump may, unfortunately, make it more difficult to challenge Presidential Proclamations issued in reliance on INA § 212(f) as an invalid exercise of Presidential authority. However, the decision can be read narrowly to apply only to Proclamation 9945. It might also give ammunition to those who may wish to challenge Biden’s authority to rescind Proclamation 9945 and the extended Proclamations 10052 and 10014. The new administration must carefully  follow the holding in the Supreme Court’s decision in  Department of Homeland Security v. Regents of the University of California in rescinding Trump’s proclamations under INA 212(f) to ensure the rescissions are not found to be arbitrary and capricious under the Administrative Procedure Act. The Biden administration must provide a detailed and cogent reason for rescinding Trump’s proclamations. In Department of Homeland Security v. Regents, in which the Supreme Court held that the rescission of DACA was a violation of the APA, the Court stated that an agency must comply “with the procedural requirement that it provide a reasoned explanation for its action” in rescinding an existing policy. Department of Homeland Security v. Regents of the University of California, 591 U. S. ___, *29(2020). Special consideration should also be accorded to “whether longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, (2016) (slip op., at 9) (quoting Fox Television, 556 U. S., at 515). A previous blog post discusses Department of Homeland Security v. Regents in greater detail. Given the detrimental impact that Proclamation 9945, together with Proclamations 10052 and 10014, has on U.S. interests, it is hoped that the Biden administration will be able to provide ample and well-reasoned justifications for rescission. Should President-elect Biden rescind the healthcare Proclamation soon after taking office, and withdraw the appeal before the Ninth Circuit’s mandate ensues after 45 days, the opinion may become a moot one.

The Doe #1 v. Trump opinion may limit the avenues for challenging Proclamation 9945, along with Proclamations 10052 and 10014. Although the ban [on H-1B and L-1 workers] was enjoined by the court in NAM (National Association of Manufacturers) v Trump, that ruling was limited to the plaintiff organizations that brought the suit. Therefore, the extension will still be effective on others. The Ninth Circuit’s ruling in the healthcare proclamation case, Doe 1 v. Trump,  may have jeopardized NAM v. Trump, already limited in its application, since the decision in NAM v. Trump was based partly on the idea that the healthcare Proclamation exceeded presidential power. However, all this may not matter if Biden withdraws the appeal before the mandate ensues and also rescinds Proclamation 10052.

We trust that the Biden administration will ensure that Doe #1 v. Trump does not become precedent in the Ninth Circuit, and that it will carefully rescind Trump’s proclamation.

 

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

 

 

 

Cyrus Mehta

Top Ten Most Viewed Posts on the Insightful Immigration Blog in 2020

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Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs that were published in 2020.  While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. Blogs from previous years continued to be widely read in 2020.

2021 ushers in a new dawn with the end of the Trump administration’s hostile policies towards immigrants. We covered much of President Trump’s policies in our blogs, most notably the ban on immigrants and nonimmigrants, and also commented on many of the successful court challenges thwarting or delaying their implementation. Indeed, one of the bright spots was that the courts in 2020 did not allow the Trump administration to get its way, whether it was on rescinding DACA or gutting the H-1B visa program through regulations that provided no advance notice.

In addition to Trump’s cruel immigration policies, Covid-19 also struck in 2020 and disrupted the world. Trump weaponized Covid-19 as a pretext to continue putting road blocks on immigration and asylum. The pandemic also adversely impacted the status of foreign national workers who lost their jobs or had to work under modified terms as well as the ability of green card holders to maintain permanent residence in the US. Our blogs addressed novel issues arising from Covid-19 regarding protecting the status of nonimmigrant workers, ethical issues for attorneys, and how green card holders could still assert they had not abandoned permanent residence even though they were forced to remain outside the US due to Covid-19.  We also wrote on how remote work impacted visa status, as well as how many immigration attorneys were still forced to appear in court, attend interviews for clients, and process and file paper based applications in their offices notwithstanding the risks posed by Covid-19.

The incoming Biden administration ushers in a new dawn on immigration in 2021. President Biden, in sharp contrast to Trump, has loftily proposed big and generous ideas on immigration and we hope that he will live up to these promises.  Our blogs have proposed ideas on how the Biden administration can improve our immigration system through executive actions, which, in addition to rescinding Trump’s actions, can also improve the immigration system and provide relief to many.

A new dawn for immigration in 2021

A new dawn for immigration in 2021 (Photo by Cyrus Mehta)

Ultimately, true and meaningful reform can only come through Congress. If Congress remains divided when Biden becomes president it will be much harder to push through badly needed reform such as expanding the employment and family based preferences so that would-be immigrants with approved petitions need not be waiting in decades long backlogs. While advancing filing dates in the visa bulletin, like what was done in October 2020, was salutary and allowed tens of thousands of skilled workers to file adjustment of status applications, which we blogged about, that was no substitute for Congressional action that can end discriminatory country quotas and infuse more visas into the system.

Finally, we also look forward to reform in the asylum system, the immigration courts, and due process for noncitizens, which the Trump administration disgracefully curtailed to such an extent that Lady Liberty seemed out of place and at odds with the long cherished idea that America is a nation of immigrants and a beacon for the world’s oppressed.

We look forward to blogging in 2021, albeit on different themes, and wish all our readers a safe and happy New Year. Below are the Top 10 viewed blogs of 2020:

  1. Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin
  2. FAQ for Green Card Holders During the Covid-19 Period
  3. Frequently Asked Questions on Filing a Downgrade EB-3 Petition under the October 2020 Visa Bulletin
  4. FAQ Relating to Skilled Workers in the Green Card Backlogs During COVID-19
  5. Proposal for the Biden Administration Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment of Status Filings
  6. FAQ on Changes in Salary and Other Working Conditions for Nonimmigrant Workers in L-1, O, TN, E and F-1 Status Due to Covid-19
  7. Proposal for the Biden Administration to Reduce Backlogs: Count the Family Together so that they may Stay Together
  8. Killing the H-1B Visa Also Kills the US Economy
  9. What if the Job Has Changed Since the Labor Certification Was Approved Many Years Ago
  10. LCA Posting Requirements at Home During Covid-19 Pandemic: Do I Post on the Refrigerator or Bathroom Mirror

 

 

Cyrus Mehta

Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa

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By Cyrus D. Mehta & Kaitlyn Box*

On December 16, 2020, the Ninth Circuit issued its opinion in Innova Solutions, Inc. v. Baran,  which involved a technology company, Innova, that wanted to hire an Indian employee in the specialty occupation of Computer Programmer, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. Baran, No. 19-16849, *4.  USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation. Id. at 5-6. USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree”, thereby implying that some individuals employed as computer programmers do not have bachelor’s degrees. Id.

In a prior blog, we have discussed the outcome of the Innova Solutions, Inc. v. Baran case at the District Court level. The U.S. District Court for the Northern District of California heard the case in 2018, and held that the position of Programming Analyst, categorized under the OOH’s Computer Programmer classification, did not qualify as a specialty occupation because the OOH’s description for Computer Programmer stated only that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree”. Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, *17.

The Ninth Circuit reversed the District Court’s grant of summary judgment to USCIS, and remanded the case, holding the USCIS’ denial of the visa was arbitrary and capricious. The court first examined the OOH language, holding that USCIS’s denial of the petition on this basis was arbitrary and capricious. Innova Solutions, Inc. v. Baran, No. 19-16849, *8. The court compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation. Id. The court found there to be no appreciable difference between these two descriptions, stating that: “[t]here is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria”. Id. Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, lambasting USCIS’s reasoning as “beyond saving” and stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

The court was similarly unpersuaded by USCIS’s argument that OOH language stating that “some employers hire workers with an associate’s degree” indicates that a bachelor’s degree is not normally required for the position. Id. at 10. In fact, the court reasoned, this language is entirely consistent with the regulatory criteria, which requires only that a bachelor’s degree “normally”, and not “always”, be required for entry into an occupation. Id. The court stated that “[w]hile agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted, relying on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), which limited Auer deference to “genuinely ambiguous” regulations. Id. at 10-11.

The court also held that USCIS’s denial was arbitrary and capricious because it mischaracterized the language in the OOH. Id. at *12-13. The USCIS decision claimed that the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify”, when in fact it states merely that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” Id. at 13. While it acknowledged that “a factual error is not necessarily fatal to an agency decision”, the court found USCIS’s misconstruction of the OOH language to be arbitrary and capricious in this instance because whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. Id.

Finally, the court found USCIS’s decision arbitrary and capricious because it failed to consider key evidence. Id. at *14. The court reasoned that OOH language stating that a bachelor’s degree is the “[t]ypical level of education that most workers need” to become a computer programmer was prominently featured on the OOH landing page and of central importance to the USCIS’s determination, but the USCIS failed event to mention this language in its decision. Id.

While the Ninth Circuit’s decision in Innova Solutions is doubtless a victory for U.S. technology companies who employ foreign workers as computer programmers, the decision has broader implications, as well. For one, the decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds. On March 31, 2017, the USCIS issued a policy memorandum that rescinded earlier 2000 guidance that acknowledged the position of computer programmer as a specialty occupation. The 2017 policy memorandum relied on the current language in the OOH as basis for rescission of the earlier guidance. Importantly, the Ninth Circuit in Innova Solutions held that this same language from the OOH does not contradict the regulatory criteria at 8 C.F.R. 214.2(h)(4)(iii)(A), effectively undercutting the USCIS’ rationale for issuing the 2017 memorandum.

Additionally, Innova Solutions represents the first recent reported circuit court decision in which the court has ruled in favor of the H-1B petitioner. Other landmark circuit court cases have historically favored the USCIS. In Defensor v. Meissner, for example, the Fifth Circuit ruled against a medical staffing agency that had filed H-1B petitions on behalf of the nurses it employed on the grounds that the end hospital where the nurses were placed was really the supervising entity, and reasoning that no evidence suggested these hospitals required the nurses to possess bachelor’s degrees.  Defensor v. Meissner, 201 F.3d (5th Cir. 2000). In Defensor, the court held that the held that the criteria in 8 CFR § 214.2(h)(4)(iii)(A) are merely necessary conditions, rather than necessary and sufficient conditions, to establish that a position is a specialty occupation, a decision the USCIS often cites in H-1B RFEs. Id. Similarly, in Royal Siam Corp. v. Chertoff, the First Circuit ruled in favor of USCIS’s position that a position which requires a degree in a specific specialty related to the duties and responsibilities of the job should be accorded more weight than a generic degree requirement. Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007). Innova Solutions is thus a unique and welcome victory for H-1B petitioners in the circuit courts.

The Ninth Circuit’s decision is in line with a number of recent decisions in lower courts in which, in contrast to most circuit court cases, H-1B petitioners have successfully challenged USCIS’s denial of H-1B petitions on the grounds that the position in question did not qualify as a specialty occupation. See, e.g., Taylor Made Software, Inc. v. Cissna, Civil Action No. 2019-0202 (D.D.C. 2020); Relx, Inc. v. Baran, 397 F. Supp. 3d 41 (D.D.C. 2019); Next Generation Technology v. Johnson, 15 cv 5663 (S.D.N.Y. 2017). In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions.

Finally, one cannot overstate the growing importance of Kisor v. Wilkie in limiting the USCIS’s ability to exercise broad discretion in interpreting its own regulations under Auer precedent. Auer v. Robbins, 519 U.S. 452 (1997). In its decision in Innova Solutions, the court acknowledges that Auer deference applies only to genuinely ambiguous regulations, which 8 C.F.R. 214.2(h)(4)(iii)(A) is not. The court’s decision reminds the USCIS that Auer deference is not a broad license to deny meritorious H-1B petitions.

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

Cyrus Mehta & Kaitlyn Box

Two New York Ethics Opinions Instruct When Lawyers Can Withdraw from Representing a Client in Court During COVID-19

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By Cyrus D. Mehta and Kaitlyn Box*

In an earlier blog, we discussed ethics for immigration lawyers during the COVID-19 pandemic. Another ethical dilemma, addressed by two recent ethics opinions from the New York City Bar and the New York State Bar, arises when a lawyer is required to make an in-person court appearance, but is reluctant to go to court for fear of contracting COVID-19 or out of fear of for passing onto the infection to others. These ethics opinions are directly relevant to immigration lawyers who need to make appearances in immigration court on behalf of clients as well as as appear on behalf of clients for adjustment of status and naturalization interviews at USCIS.

On December 2, 2020, the New York City Bar Professional Ethics Committee issued Formal Opinion 2020-05: A Lawyer’s Ethical Obligation When Required to Return to Court During a Public  Health Crisis. The opinion deals with a New York lawyer’s duty to appear physically appear in court during the COVID-19 pandemic. The opinion acknowledges that some lawyers may be concerned about physically returning to court during the pandemic. Lawyers who are more susceptible to COVID-19 due to health conditions, or those who care for a medically vulnerable family member worried about appearing in court in person while the pandemic remains a threat. The opinion first examines whether a lawyer’s health concerns could create a personal conflict of interest. According to New York Rules of Professional Conduct (the “Rules”) 1.7(a)(2), a personal conflict of interest exists where a reasonable lawyer would conclude that “there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.” The opinion reasons that “a reasonable lawyer would conclude that there is a significant risk that the lawyer’s professional judgment on behalf a client would be compromised by the lawyer’s personal interest in not wanting to resume in-person court appearances”. One can imagine scenarios, like those outlined in the opinion, in which a lawyer who is extremely anxious about contracting the COVID-19 virus would avoid pursuing a remedy that would involve court appearances, even though this might be the best course of action for his or her client.

However, even if a lawyer’s health concerns create a conflict of interest, that conflict may be waived if the lawyer nonetheless believes that he or she “will be able to provide competent and diligent representation”. Rule 1.7(b)(1). The opinion recommends that a lawyer who has reservations about appearing in court in person, but believes that he or she can still competently and diligently represent the client though other means like video appearances, should disclose the conflict and obtain a waiver from the client, provided that the client is comfortable with the lawyer’s proposed alternatives. If, however, the lawyer’s health concerns make it impossible to provide competent and diligent legal representation, then the conflict is not waivable.

If a lawyer believes that a conflict of interest is not waivable or is not able to obtain a waiver from the client, the lawyer must withdraw if the conflict will result in her representation of the client falling below the “competent and diligent” standard. See Rule 1.16(b)(1).  This rule requires the lawyer to withdraw if “the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law.” Although Rule 1.16 allows permissive withdrawal of representation under Rule 1.16(c), this ethics opinion insists that a lawyer must withdraw based on the non-waivable conflict of interest pursuant to Rule 1.16(b)(1).   The opinion also recognizes that when the lawyer is before a tribunal, under Rule 1.16(d) the lawyer must seek permission from the court to withdraw, and the court may still require the lawyer to continue with the representation. The opinion states that the lawyer “should obtain a clear and unequivocal order from the tribunal and consider whether to appeal or comply with the order.” If the lawyer is permitted to withdraw by the court, the lawyer must take reasonable steps to avoid foreseeable prejudice to the client. See Rule 1.16(e).  Finally, the opinion also advises that law offices and lawyers with supervisory responsibilities must take reasonable steps  to address the ethics issues detailed in the opinion.

2.3(i)(ii) of the EOIR Practice Manual lays out the requirements for a lawyer who wishes to withdraw from representation in immigration court. The lawyer must first submit to the court a written or oral motion to withdraw. See 8 C.F.R. § 1003.17(b). The EOIR Practice Manual specifies what information a motion to withdraw must contain, including the reason for the withdrawal and a statement concerning the lawyer’s efforts to obtain consent from the client to withdraw. The immigration court will then consider the motion, taking special consideration of the time remaining before the client’s next hearing and the reason the attorney has put forth for wishing to withdraw. Until the immigration court has granted the attorney leave to withdraw, the attorney must continue to diligently and competently represent the client, including attending any scheduled hearings.

An earlier New York State Bar Association ethics opinion on October 8, 2020 similarly concluded that a lawyer may withdraw when health concerns create a situation where “the lawyer’s mental or physical condition renders it difficult for the attorney to carry out the representation effectively.”  See NYSBA Ethics Op. 1203 (2020). The New York City Bar Professional Ethics Committee’s opinion reaches a parallel conclusion, but emphasizes that a lawyer may withdraw if her fear of contracting COVID-19 prevents her from providing competent and diligent representation to her client. The opinion concludes by pointing out that, even if a lawyer wishes to withdraw, she may still be required to continue representation if so ordered by the court under Rule 1.16(d), or if withdrawal would harm the client.

NYSBA Ethics Opinion 1203 involved a similar inquiry from an attorney who was required to make an in-person  appearance in immigration court during the pandemic, but was concerned about contracting the virus or infecting a family member, given the lack of safety protocols that the immigration court had implemented at the time. The opinion addressed the question of whether an attorney might withdraw if continued representation would endanger the lawyer’s health or safety. The opinion concluded that the lawyer could withdraw, with permission from the court, reaching a similar conclusion to the New York City Bar Professional Ethics Committee’s opinion. The NYBSA ethics opinion first points to  Rule  1.16(b), although this appears to be a scrivener’s  error as the opinion is likely referring to Rule 1.16(c)(9), which permits withdrawal when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.”  The standard, according to the NYSBA, is that effective representation becomes ‘difficult,’ not impossible. The NYSBA provides examples of how the lawyer’s fear of COVID-19 might “subtly but powerfully” undermine the representation of a client in immigration court in a number of ways.  The lawyer may be reluctant to spend time with the client in-person to understand the client’s case and communicate the options. The lawyer might also be inclined to consent to a premature disposition of the case, even though prolonging the case through additional appearances and motions could lead to a more favorable outcome. The lawyer may also try to complete the hearing quickly without calling witnesses to testify or waiving cross examination of government witnesses.

While the New York City Bar’s opinion centers around the mandatory ground under Rule 1.16(b)(1), based on a non-waivable conflict of interest,  the NYSBA opinion invokes the permissible withdrawal ground ostensibly under Rule 1.16(c)(9) when “the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.” The opinion also invokes two additional permissible grounds for withdrawal:   Rule  1.16(c)(1) if the “withdrawal can be accomplished without material adverse effect on the interests of the client” and Rule 1.16(c)(10) if the client “knowingly and freely assents to termination of the employment.”

The opinion concludes that a lawyer caught in this situation may seek to withdraw from representation, provided the lawyer has permission from the court and withdraws in a manner that does not prejudice the client’s interests and has permission from the court. Rule 1.16(d) requires lawyers to seek permission from the court before withdrawing, and forbids them from withdrawing at all if the court declines to allow withdrawal.

An immigration judge might refuse to allow a lawyer to withdraw because of a fear of contracting COVID-19 if alternatives, such as appearances by telephone or video, would allay the lawyer’s health concerns and allowed for continued representation. EOIR has attempted to offer alternatives to in-person hearings to mitigate health concerns. All EOIR courtrooms are equipped with telephones and some with video equipment, so hearings conducted by telephone or video conference may be appropriate alternatives in many cases.  In July 2020, The AILA New Jersey Chapter filed a complaint in district court seeking an injunction to prevent the Newark Immigration Court from forcing immigration attorneys to appear for in-person court proceedings during the pandemic, but the U.S. District Court declined to grant the injunction on the grounds that EOIR’s policy of offering a videoconferencing alternative sufficiently mitigated the harm plaintiffs would suffer if forced to appear in person. A November 6, 2020 EOIR policy memo memorializes EOIR’s practice of offer telephonic and video hearings in lieu of an in-person hearing where appropriate.

Lawyers must carefully consider whether they may be able to competently and diligently represent a client through a telephonic, or video hearing if they are reluctant to attend a live hearing. Attending the hearing in person may have advantages where there are difficult and complex evidentiary issues and where the client’s credible testimony is crucial for a successful outcome, but the lawyer must make that determination when deciding to opt for remote representation. There are times when the immigration court may force a remote hearing on all the parties.  If the client chooses a live hearing when it is an option, the lawyer must abide by the client’s wishes. If a lawyer’s request to withdraw is declined by an immigration judge, a lawyer should try to find alternative approaches without compromising competent representation. If the immigration judge is not inclined to grant a continuance, one possible approach is to arrange to have another competent lawyer within the lawyer’s firm attend the hearing. A solo practitioner may arrange for a competent colleague to appear at the hearing. These arrangements should only be undertaken after obtaining the client’s informed consent and ensuring that the client will still be competently represented. It is hoped that the two New York ethics opinions would persuade an immigration judge to allow an attorney to withdraw from representation either on the ground that it would create a personal conflict of interest or when the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively.

While many immigration courts remain closed, or close whenever there is a COVID-19 incident, USCIS has been more regularly conducting in person adjustment and naturalization interviews. A lawyer would face a similar dilemma in deciding to attend an adjustment of status or naturalization interview on behalf of a client. The current USCIS policy is to allow the lawyer to represent the client via telephone while the client appears in person for the interview. In this case too, the lawyer must ensure that representing the client via telephone will not compromise the representation. It is easier for a lawyer to withdraw from representation before the USCIS than immigration court, but whether the lawyer has withdrawn from representation of a client for an in person appearance in immigration court or an in person appointment at USCIS, it is important that the lawyer follows Rule 1.16(e), which is to “take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including by giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly repaying any part of a fee paid in advance that has not been earned and complying with applicable laws and rules.”

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

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

 

 

Cyrus Mehta

Justice Department’s Discrimination Complaint Against Facebook Chills Employer’s Ability to Legitimately Sponsor Skilled Foreign National Workers for a Green Card

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The Department of Justice’s complaint claiming that Facebook discriminated against US workers even when it followed DOL regulations for sponsoring foreign national workers is troubling. It renders every employer vulnerable to charges of discrimination each time it files a labor certification on behalf of a foreign national worker.

When an employer wishes to sponsor a foreign national for a green card, it is required to test the domestic labor market for qualified workers before a PERM labor certification is approved. Labor certification is the first step in the employment sponsored green card process.  It is rather odd that when Facebook followed the DOL rules regarding recruitment for a labor certification, another agency of the federal government, the Immigrant and Employee Rights (IER) Section of the Department of Justice (DOJ) accuses it of discriminatory practices under INA 274B(a)(1).  Facebook was not accused of violating the DOL rules. Under the DOL rules, if the employer finds a qualified  US worker after testing the labor market, the employer cannot go ahead with the labor certification and is not required to hire the US worker and terminate the foreign worker who already holds the job often on an H-1B visa.  The IER has accused Facebook of discrimination for not hiring US workers for advertisements that were related to a labor certification filed on behalf of a foreign national worker. The labor certification process requires the employer to test the US labor market with respect to an application filed on behalf of a foreign worker, and contrary to the allegations in the IER complaint, is not set up as a program for recruiting US workers.

The IER complaint says at paragraph 24 that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process.”  It cites Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The IER accuses Facebook of implementing a recruitment process intentionally designed to deter US workers from applying, thus discriminating against US workers because of their citizenship status in violation of INA 274B(a)(1)(A). The complaint states that Facebook uses recruitment methods for PERM labor certifications that were different than those it employs for its regular positions. For example, Facebook requires resumes to be sent by postal mail for advertisements related to labor certifications but for open market positions they will accept resumes by e mail. Facebook also does not post advertisements on their website for labor certification positions but for their other positions they do post on their website.

However, Matter of Am. Specialty Pharmacy, supra, which IER cites in its complaint,  just says that: “We have interpreted this regulation as placing a burden on the Employer to conduct a good faith recruitment effort.”  It cites East Tennessee State University, 2010-PER-00038, slip op. at 11 (Apr. 18, 2011) (en banc), which does go into some more detail, but not in the direction that IER suggests. BALCA stated in East Tennessee State University that “employers seeking permanent labor certification may have to conduct their recruitment in a manner different than they would normally in order to ensure that the position is clearly open to all qualified U.S. workers.” In a 2008 Guidance Memo, the DOL also confirmed that “given that the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation, the Department understands and appreciates the legitimate role attorneys and agents play in the permanent labor certification process.”

DOL also insists on recruitment practices that have no bearing on real world recruitment such as placing print advertisements in two Sunday newspapers even when most employers and job seekers do not rely on the print classified sections any longer. Indeed, most of the advertisements in the classified Sunday edition of the NY Times have the look and feel of labor certification advertisements. Although the IER accuses Facebook of requiring applicants to respond by postal mail rather than online, when its non-labor certification advertisements allow for online responses from applicants, that in itself is not a violation of the DOL rules, and DOL has already conceded that the employer’s labor certification recruitment deviates from normal labor practices. While in hindsight, Facebook should have done more to reconcile its labor certification advertisements with its real world advertisements, the labor certification process requires the employer only to test the labor market and not to use it to hire US workers. The DOL imposes other requirements on an employer during labor certification recruitment, which are unimaginable in real world recruitment. If a US worker applicant does not respond to the employer’s invitation to an interview, the employer must go the extra mile to demonstrate that it did indeed contact the applicant who never showed up by sending up a follow up e mail or letter to the uninterested candidate, and must prove that this candidate actually received the communication!  Even when the US worker applicant was interviewed and rejected, the employer must prove that it actually made contact with the applicant.  Thus, even if an employer mirrors its real world recruitment with its labor certification recruitment,  and even goes beyond, it will still be vulnerable to a citizenship discrimination claim by the IER because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers,  before the labor certification can be filed and certified by the DOL.

Rather than penalize an employer for following the rules set forth in 20 CFR 656, Congress,  the administration, or both, could change the rules governing the labor certification process to make them more rational and comport with real world practices.  In a 2008 article Walking The High Wire Without A Net – The Lawyer’s Role In The Labor Certification Process, Bender’s Immigration Bulletin, February 1, 2009,  Gary Endelman and I noted how far removed the labor certification process truly is from an employer’s real world recruitment practices.  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. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve.

It is reiterated that an employer is under no legal obligation to hire a qualified applicant at the end of the process. If the employer finds a U.S. worker who is qualified for the position, the labor certification dies. In other words, the employer cannot file the labor certification on behalf of the foreign national worker.  This makes sense as it would be rather cruel to fire the foreign worker on a temporary work visa like the H-1B, which can extend for many years, and replace them with the US worker.  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).

The statutory basis for labor certifications is provided in §212(a)(5) of the Immigration and Nationality Act (“INA”). Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there are a lack of U.S. workers who are qualified and willing at the time of the application. Interestingly, INA §212(a)(5) is silent about requiring the employer to advertise or to establish that it advertised the position without reference to unduly restrictive requirements. It appears that the Department of Labor has created out of whole cloth the current system it enforces against U.S. employers. Gary Endelman previously wrote for the National Foundation for American Policy: “There was no mention of individualized recruitment in the proposed labor certification regulations on November 19, 1965, or the final version of these same implementing rules that came out on December 3, 1965. There was no sense that employers had to advertise; the availability of U.S. workers, or their nonavailability, was based solely on statistics as embodied in Schedules A and B, respectively.”

In discussing the labor certification requirement in the 1965 Amendments,8 Senator Edward Kennedy (D-MA) stated:

It was not our intention, or that of the AFL-CIO. that all intending immigrants must undergo an employment analysis of great detail that could be time consuming and disruptive to the normal flow of immigration. We know that the Department of Labor maintains statistics on occupations, skills, and labor in short supply in this country. Naturally, then, any applicant for admission who falls within the categories should not have to wait for a detailed study by the Labor Department before his certificate is issued …(W]e would expect the Secretary of Labor to devise workable rules by which he could carry out his responsibilities under the law without unduly interrupting or delaying immigration to this country. The function of the Secretary is to increase the quality of immigration, not to diminish it below levels authorized by the law.

Thus, one of the key drafters of the bill, Senator Kennedy, never mentioned nor contemplated the need for the individualized, wasteful, and unreal recruitment that the DOL has imposed on employers. Indeed, after all this recruitment, the DOL only requires the employer to test the U.S. labor market. In other words, employers must prove a negative, namely, that there are no minimally qualified workers for the position. The employer is not required to hire minimally qualified workers. If the employers find qualified workers, they are precluded from filing the labor certification application on behalf of the foreign national worker. Through this process, the DOL forces employers to make pawns of U.S. worker applicants by advertising the position, having them apply for the position, interviewing them, and in the end, not encouraging their hire even if the employer wants them in addition to the foreign national worker.

And now the complaint against Facebook brought by a sister federal agency further highlights the contradictions in the labor certification program.  The IER complaint is aimed at discouraging employers from sponsoring skilled foreign national workers for permanent residence lest they be accused of  citizenship discrimination after following the labor certification process. Whatever may be the motivation behind this action – and it is not unreasonable to speculate that it may be linked to President Trump’s dislike for Facebook and Twitter – the end result is that skilled foreign national workers deserving of green card sponsorship by a US employer bear the brunt,  and America loses the most if they are forced to leave.