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State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad Is Welcome and Consistent with Federal Court Decisions

June 2, 2021/0 Comments/in Blog/by Cyrus Mehta

On May 18, 2021, the State Department issued guidance broadening the path for transmission of US citizenship to a child born abroad to married parents. The guidance is reproduced below:

Recognizing the advances in assisted reproductive technology the State Department is updating our interpretation and application of Section 301 of the Immigration and Nationality Act (INA), which establishes the requirements for acquisition of U.S. citizenship at birth.

Children born abroad to parents, at least one of whom is a U.S. citizen and who are married to each other at the time of the birth, will be U.S. citizens from birth if they have a genetic or gestational tie to at least one of their parents and meet the INA’s other requirements. Previously, the Department’s interpretation and application of the INA required that children born abroad have a genetic or gestational relationship to a U.S. citizen parent.

This updated interpretation and application of the INA takes into account the realities of modern families and advances in ART from when the Act was enacted in 1952.

This change will allow increased numbers of married couples to transmit U.S. citizenship to their children born overseas, while continuing to follow the citizenship transmission requirements established in the INA. Requirements for children born to unmarried parents remain unchanged.

At the same time, we remain vigilant to the risks of citizenship fraud, exploitation, and abuse. As with all citizenship and immigration benefits we examine, the Department will implement this policy in a manner that addresses these concerns.

This new interpretation allows a U.S. citizen who has a child through surrogacy, an egg donor, in vitro fertilization as well as other advances in assisted reproductive technology (ART) to transmit U.S. citizenship to their child, even if there is no genetic or gestational relationship to the U.S. citizen parent so long as such a link exists with the other married parent. As stated in the State Department’s announcement, this change in policy “takes into account the realities of modern families.” This is welcome news for a growing number of families who rely on the advancements of reproductive technologies to build their families.

For instance, prior State Department policy deprived the US citizen mother who may neither have been the gestational mother nor have a genetic relationship with the child from passing US citizenship. A US citizen mother is medically unable to bear a child and needs to use a surrogate mother overseas to carry the child to birth, and the egg is not hers and the sperm is from a non-US citizen father, US citizenship could not be passed onto the child. Thus, under the prior policy, such a mother who for medical reasons was unable to establish a biological link to her child, and also could not serve as the gestational mother herself, was unable to transmit US citizenship to her child. This was unfair for such mothers.

The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. The willingness and ability to understand parentage in a broader sense is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law and more recently a Second Circuit case, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005); Jaen v. Sessions, 899 F.3d 182 (2d Cir. 2018). In these cases, so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated, the child did not need to prove that he or she was the biological child of the US citizen parent to acquire citizenship.

Public policy supports recognition and maintenance of a family unit. The Immigration and Nationality Act (“INA”) was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members. See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir.1980) (discussing the “humane purpose” of the INA and noting that a “strict interpretation” of the Act, including an “arbitrary distinction” between legitimate and illegitimate children, would “detract from … the purpose of the Act which is to prevent continued separation of families.”); H.R.Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N.2016, 2020 (observing that the “legislative history of the Immigration and Nationality Act clearly indicates that Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united).

Solis-Espinoza, supra, at 1094.

The Second Circuit in Jaen v. Sessions did not insist on a genetic or gestational tie with the US citizen parent, and the State Department’s new policy is consistent with Jaen v. Sessions. David Isaacson’s blog, Jaen v. Sessions: The Government Reminds Us That Government Manuals Aren’t Always Right, correctly pointed out that the prior US government policy or guidance may not actually be the law, and federal courts need to step in to point this out. Fortunately, the State Department has now stepped in. In Jaen v. Sessions, as discussed in David’s blog, Levy Alberto Jaen was born in Panama in 1972 to a non-U.S.-citizen mother, Leticia Rogers Boreland, who was then married to a naturalized U.S. citizen named Jorge Boreland. But Jaen’s Panamanian birth certificate indicated that his father was another man named Liberato Jaen. Jaen moved to the US at the age of 15 as a nonimmigrant in 1988 and lived with the Boreland family. In 2008, Jaen was placed in removal proceedings based on controlled substance violations and he moved to terminate proceedings on the ground that he was a US citizen. The Immigration Judge denied the motion, and the Board of Immigration Appeals affirmed. The Second Circuit reversed and pointed out that the historic common-law definition of the term “parent” included a common-law presumption of legitimacy that held a married man to be the father of a child to whom his wife gave birth. As it was put in Blackstone’s Commentaries, “Pater est quem nuptiae demonstrant”—the nuptials show who is the father. Jaen, slip op. at 13 & n. 5. This common-law definition of parent, the Second Circuit held, would be sufficient to render Jorge Boreland the parent of Levy Jaen for citizenship purposes.

Although the State Department policy is meant to cover children born through ART, it is clearly applicable to out of wedlock scenarios in Jaen, Solis-Espinoza and Scales. Levy Alberto Jaen, for example, had a genetic link to his non-US citizen mother Leticia Rogers Boreland, who was married to his US citizen legal (although not biological) father Jorge Boreland. Consistent with the new State Department policy, Jaen had a genetic or gestational tie to at least one of [his] parents, Leticia, and she was married to another, U.S. citizen parent of his. Though born in Mexico, Solis-Espinoza claimed citizenship by virtue of the US citizenship of the woman he knew as his mother. That woman, who was married to Solis-Espinoza’s biological father at the time of petitioner’s birth, acknowledged him from his infancy as a member of her family and raised him as his mother, though he did not in fact have a biological connection with that woman. Scales was born in the Philippines in 1977, to Stanley Scales, Sr. an American citizen-serviceman at the time, and Aily Topaz, a Philippine citizen. Stanley and Topaz met during the first week of September 1976, and one week later, Topaz told Stanley that she was pregnant, probably from a prior relationship. Topaz and Stanley were married on March 13, 1977, and Petitioner was born on April 6, 1977.

Although one arguable difference is that he had a legally relevant third parent to a greater extent than generally exists in ART cases (where the egg or sperm donor is usually acknowledged not to have legal parentage rights), it isn’t unheard of for a child to have more than two parents for immigration purposes especially in the stepparent context. The State Department’s new policy is not only consistent with the common law meaning of “parent” in the INA, especially INA 301(g), but it is also in keeping with public policy that supports the recognition and maintenance of a family unit.

Proposals for Shattering Barriers and Obstacles to Legal Immigration Without Waiting for Congress to Act

May 19, 2021/0 Comments/in Blog/by Cyrus Mehta

In response to the Biden administration’s invitation to comment, I submitted several proposals to reform the immigration system through executive actions so that many can be quickly helped without waiting for Congress to act. You too can submit a proposal by May 19, 2021 at https://www.regulations.gov/document/USCIS-2021-0004-0001

May 19, 2021

Samantha Deshommes
Regulatory Coordination Division Chief
Office of Policy and Strategy
U.S. Citizenship and Immigration Services, DHS
5900 Capital Gateway Drive
Camp Springs, MD 2074

Re: USCIS-2021-0004

Identifffying Barriers Across U.S. Citizenship and Immigration Services (USCIS) Benefits and Services; Request for Public Input

Dear Ms. Deshommes:

I would like to propose ideas that would provide relief to beneficiaries of immigrant visa petitions caught in the backlogs. While I understand that President Biden has proposed the US Citizenship Act of 2021, my proposals do not need legislative action and can bring about far reaching reform and restore balance to the immigration system whether Congress acts or does not act.

I submit the following ideas for consideration under the following headings: 1. Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment Filings; 2. Parole of Beneficiaries of Approved I-130 and I-140 Petitions; 3. Protecting the Age of the Child Under the Filing Date, and 4. Counting the Family Together So That They May Stay Together.

1. Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment Filings

As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs in the employment-based green card categories. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the employment-based second preference (EB-2), those born in India have to wait for decades, and one study estimates the wait time to be 150 years!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can apply for adjustment of status and get ameliorative relief. Other fixes could include allowing beneficiaries of petitions overseas to enter the US on parole, and protecting more derivative children from aging out under the Child Status Protection Act.

The State Department’s October 2020 Visa Bulletin was thus refreshing. It advanced the Dates for Filing (DFF) for the India employment-based third preference (EB-3) from February 1, 2010 to January 1, 2015. This rapid movement allowed tens of thousands of beneficiaries of I-140 petitions who were languishing in the backlogs and born in India to file I-485 adjustment of status applications. Although an I-485 application filed pursuant to a current DFF does not confer permanent residence, only the Final Action Dates (FAD) can, the DFF provides a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Even derivative family members can also get EADs and travel permission upon filing an I-485 application.

The DFF in the November 2020 Visa Bulletin continued to remain at January 1, 2015 for the India EB-3, thus enabling many more in the backlogs to file I-485 applications and take advantage of job portability. In the December 2020 Visa Bulletin the DFF for the India EB-3 was pulled back to January 1, 2014. From January 1, 2021 onwards, the USCIS closed I-485 filings under the DFF for EB cases. While the advance to January 1, 2015 in October and November 2020 was a positive development, there is a legal basis to advance the DFF even further, perhaps to as close as current, without regard to whether the FAD will move to the DFF within a year or not. The Biden administration should seriously consider this proposal.

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

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Fortunately, under the advances in the October 2020 Visa Bulletin and a bit beyond, the beneficiary of an I-140 petition under EB-2 was able to “downgrade” by filing an I-140 under EB-3 and a concurrent I-485 application. Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

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

See https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates.

Taking this to its logical extreme, visa availability for establishing the DFF may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the foreign national beneficiary. So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). DFF could potentially advance and become current, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

8 CFR 245.1(g)(1) could be amended (shown in bold) to expand the definition of visa availability:

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

2. Parole of Beneficiaries of Approved I-130 and I-140 petitions

With respect to beneficiaries of approved I-130 and I-140 petitions who are outside the US, they too can be paroled into the US upon their DFF becoming current. This would provide fairness to beneficiaries of approved petitions who are within or outside the US.

However, due to a quirk in the law, beneficiaries of I-130 petitions should be able to file I-485 applications upon being paroled into the US since parole is considered a lawful status for purpose of filing an I-485 application. See 8 CFR 245.1(d)(1)(v). On the other hand, beneficiaries of I-140 petitions will not be eligible to file an I-485 application, even if paroled, since INA 245(c)(7) requires one who is adjusting based on an employment-based petition to be in a lawful nonimmigrant status. Parole, unfortunately, is not considered a nonimmigrant status. Such employment-based beneficiaries may still be able to depart the US for consular processing of their immigrant visa once their FAD become current.

This proposal can be modelled on the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the US pursuant to INA 212(d)(5). See https://www.uscis.gov/humanitarian/humanitarian-parole/the-haitian-family-reunification-parole-hfrp-program. (The Filipino World War II Veterans Program also has a liberal parole policy for direct and derivative beneficiaries of I-130 petitions, https://www.uscis.gov/humanitarian/humanitarian-parole/filipino-world-war-ii-veterans-parole-program). Once the beneficiaries of I-130 petitions are paroled into the US, they can also apply for an EAD, and adjust status once their priority date becomes current. The HFRPP concept can be extended to beneficiaries of all I-130 and I-140 petitions, and parole eligibility can trigger when the filing date is current for each petition. Beneficiaries of I-130 petitions may file adjustment of status applications, as under the HFRPP, once they are paroled into the US. On the other hand, Beneficiaries of I-140 petitions, due to the limitation in INA 245(c)(7) would have to proceed overseas for consular processing once the FAD become current.

3. Protecting the Age of Child Under the Filing Date

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7, states that only the FAD protects the age of the child under the Child Status Protection Act (CSPA). Using the 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. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the final date 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, the child 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 final date becomes available while the child’s application gets denied.

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 visa 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 that makes no sense: “If an applicant files based on the filing date chart prior to the date of visa availability according to the final date chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the final date chart. Applicants who file based on the filing date chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the final 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.

USCIS must reverse this policy by allowing CSPA protection based on the DFF.

4. Count the Family Together So That They May Stay Together

Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, I have steadfastly maintained that the current and prior administrations have got it wrong when counting visa numbers under the family and employment preferences. I do hope that the Biden administration will seriously consider this proposal, which I reiterate below.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based (EB) or family based (FB) preference visas in the Immigration and Nationality Act. While they must still be counted, they should be counted as “one” with the principal family member. Each family unit takes up one visa rather than separate visas. The treatment of family members is covered by INA 203(d), enacted by the Immigration Act of 1990, which states:

A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with them. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again. Should only the principal become a permanent resident while everyone else waits till next year? What if visa retrogression sets in and the family has to wait even longer, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA §203(d) to argue that family members should not be counted against the cap? It is not contended that they should be completely exempted from being counted. As stated in INA §203(d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.” Viewed in this way, INA §203(d) operates in harmony with all other limits on permanent migration found in INA both on an overall and a per country basis.

There is no regulation in 8 Code of Federal Regulations (CFR) that truly interprets INA § 203(d). Even the State Department’s regulation at 22 CFR §42.32 fails to illuminate the scope or purpose of INA 203(d). It does nothing more than parrot INA § 203(d). In Gonzales v Oregon, 546 US 243, 257 (2006) the Supreme Court held that a parroting regulation does not deserve deference:

Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.

It is certainly true that family members are not exempted from being counted under INA § 201(b) as are immediate relatives of US citizens, special immigrants, or those fortunate enough to merit cancellation of their removal. Yet, it is noted that the title in INA §201(b) refers to “Aliens Not Subject to Direct Numerical Limitations.” What does this curious phrase mean? Each of the listed exemptions in INA §201(b) are outside the normal preference categories. That is why they are not subject to direct counting. By contrast, the INA § 203(d) derivatives are wholly within the preference system, bound fast by its stubborn limitations. They are not independent of all numerical constraints, only from direct ones. It is the principal alien, who is and has been counted, through whom they derive their claim \.. When viewed from this perspective, there is nothing inconsistent between saying in INA §203(d) that derivatives should not be independently assessed against the EB or FB cap despite their omission from INA §201(b) that lists only non-preference category exemptions.

It is reiterated that derivative beneficiaries are not exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all and being counted as an integral family unit rather than as individuals. For this reason, INA §201(b) simply does not apply. The Biden administration through the simple mechanism of an Executive Order can direct a different way of counting derivatives.

INA §§201(a)(1) and 201(a)(2) mandate that “family sponsored” and “employment based immigrants” are subject to worldwide limits. Does this not cover spouses and children? True enough but all is not lost. While the term “immigrant” under INA §101(a)(15) includes spouse and children, they were included because, in concert with their principal alien family member, they intended to stay permanently in this their adopted home. No one ever contended they were or are non-immigrants. However, this does not mean that such family derivatives are either “employment based” or “family sponsored” immigrants. No petitioner has filed either an I-140 or I-130 on their behalf. Their claim to immigrant status is wholly a creature of statute, deriving entirely from INA §203(d) which does not make them independently subject to any quota.

INA §203(d) must be understood to operate in harmony with other provisions of the INA. Surely, if Congress had meant to deduct derivative beneficiaries, it would have plainly said so somewhere in the INA. The Immigration Act of 1990 when modifying INA §§201(a)(1) and 201(a)(2) specifically only referred to family sponsored and employment-based immigrants in §203(a) and §203(b) respectively in the worldwide cap. This was a marked change from prior law when all immigrants save for immediate relatives and special immigrants, but including derivative family members, had been counted. In this sense, the interpretation of INA §203(d) for which we contend should be informed by the same broad, remedial spirit that characterizes IMMACT 90’s basic approach to numerical limitation of immigration to the United States As already noted, these immigrants ought to only be the principal beneficiaries of I-130 and I-140 petitions. Derivative family, of course, are not the beneficiaries of such sponsorship. At no point did Congress do so. Under the theory of expressio unius est exclusio alterius, it is entirely reasonable to conclude that Congress had not authorized such deduction. Surely, if this was not the case, Congress would have made its intent part of the INA. If the Executive Branch under President Biden wanted to reinterpret §203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”. When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. Brand X can be used as a force for good. Thus, when a provision is ambiguous such as INA §203(d), the government agencies charged with its enforcement may reasonably interpret it in the manner that we suggest.

Skeptics who contend that the INA as written mandates individual counting of all family members point to two provisions of the INA, §§202(a)(2) and 202(b). Neither is the problem that supporters of the status quo imagine. Let’s consider §202(a)(2) first. In relevant part, it teaches that not more than 7% of the total number of family and employment-based immigrant visas arising under INA §203(b) may be allocated to the natives of any single foreign state. Eagle eyed readers will readily notice that this does not apply to derivative family members whose entitlement comes from INA §203(d) with no mention of §203(b). Also, but no less importantly, INA §202(a)(2) is concerned solely with overall per country limits. There is no reason why the number of immigrant visas cannot stay within the 7% cap while all members of a family are counted as one unit. There is no reason why monitoring of the per country family or employment cap should require individual counting of family members. The per country cap is, by its own terms, limited to the named beneficiaries of I-130 and I-140 petitions and there is no express or implied authority for any executive interpretation that imposes a restriction that Congress has not seen fit to impose.

What about cross-chargeability under INA §202(b)? Even if §202(b) has language regarding preventing the separation of the family, it does not mean that the derivatives have to be counted separately. If an Indian-born beneficiary of an EB-2 I-140 is married to a Canadian born spouse, the Indian born beneficiary can cross charge to the EB-2 worldwide rather than EB-2 India. When the Indian cross charges, the entire family is counted as one unit under the EB-2 worldwide by virtue of being cross charged to Canada. Such an interpretation can be supported under Chevron and Brand X, especially the gloss given to Chevron by the Supreme Court in the Supreme Court decision in Scialabba v. de Osorio involving an interpretation of the provision of the Child Status Protection Act. Justice Kagan’s plurality opinion, though seeking to clarify the Child Status Protection Act, applies with no less force to our subject: “This is the kind of case that Chevron was built for. Whatever Congress might have meant… it failed to speak clearly.” Kagan slip op. at 33. Once again, as with the per country EB cap, the concept of cross-chargeability is a remedial mechanism that seeks to promote and preserve family unity, precisely the same policy goal for which we contend.

In a recent not so positive development, a federal district court in Wang v. Pompeo turned down a claim from EB-5 investors that derivatives should not be counted under the employment-based fifth preference (EB-5). Even though the claim focused on the EB-5 preference, it can be applied to all preference categories. Although plaintiffs argued that the annual limits do not apply to derivatives pursuant to INA §203(d) as enacted by the Immigration Act of 1990, Judge Tanya Chutkan disagreed on the ground that §203(d) is identical to the prior §203(a)(9) as it existed after the 1965 Act. If derivatives were counted under 203(a)(9), under the doctrine in Lorillard v. Pons, 434 US 575, 580 (1978), “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that same interpretation when it re-enacts the statute without change.” Moreover, in footnote 1 in Wang v. Pompeo, the court agreed with the government that “Congress spoke unambiguously spoke to the question at issue” and so the court need not address whether the government was entitled to Chevron deference.

Since this is a district court decision, the Biden administration can disregard Wang v. Pompeo and still choose to interpret §203(d) to allow for the unitary counting of principal and derivatives. Plaintiffs have appealed this decision to the DC Circuit Court of Appeals. If the DC Court of Appeals affirms Judge Chutkan’s decision, especially footnote 1, which indicates that INA 203(d) is unambiguous, it would be impossible for the Biden administration to change the interpretation of §203(d) under Chevron and Brand X within the jurisdiction of the DC Circuit Court of Appeals. This in turn will result in an untenable situation where those within the jurisdiction of the DC Court of Appeals would not be able to derive the beneficial impact of a reinterpretation of §203(d). It would thus be prudent for plaintiffs to delay taking up the appeal until the Biden administration decides whether they will change the interpretation under §203(d) or not. On the other hand, one would not complain if the DC Court of Appeals rules in plaintiff’s favor and overrules the district court decision.

Obviously, if Congress can affirmatively modify §203(d) to explicitly state that derivates will not be counted, that would be the best outcome. However, if Congress remains divided and there is no legislative fix forthcoming, and unless we are willing to watch the slow and tortured death of the priority date system in silence, President Biden must act on his own. Doing so will double or triple the number of available green cards without the creation of a single new visa. The waiting lines will vanish or be drastically reduced.

References

https://www.scribd.com/document/45650253/The-Tyranny-of-Priority-Dates-by-Gary-Endelman-and-Cyrus-D-Mehta-3-25-10

https://blog.cyrusmehta.com/2010/03/286.html

https://blog.cyrusmehta.com/2015/10/when-is-visa-immediately-available-for.html

https://blog.cyrusmehta.com/2018/09/recipe-for-confusion-uscis-says-only-the-final-action-date-in-visa-bulletin-protects-a-childs-age-under-the-child-status-protection-act.html

https://blog.cyrusmehta.com/2020/09/downgrading-from-eb-2-to-eb-3-under-the-october-2020-visa-bulletin.html

https://blog.cyrusmehta.com/2014/09/the-family-that-is-counted-together-stays-together-how-to-eliminate-immigrant-visa-backlogs.html

https://blog.cyrusmehta.com/2013/03/the-way-we-count.html

If you have further questions or need further input, please do not hesitate to contact me.

Sincerely,

Cyrus D. Mehta

The First Step for Reforming the Immigration Courts is to Allow Immigration Judges to Administratively Close Cases

May 10, 2021/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

On May 5, 2021, the majority opinion in the Third Circuit Court of Appeals decision in Sanchez v. Attorney General followed two other circuit courts in holding that an Immigration Judge (IJ) has the authority to administratively close cases. If there is a case that is deserving for an IJ to administratively close a case, this is it. Former Attorney General Sessions, under President Trump, issued Matter of Castro Tum holding that an IJ and the Board of Immigration Appeals (BIA) did not have this authority. It is about time that the Biden administration stop defending Matter of Castro Tum. There is a great and urgent need to reform the immigration courts, including making them more independent, but a simple first step is for Attorney General Merrick Garland to withdraw Matter of Castro Tum. This would have a great impact in reducing the immigration court backlog, bring a modicum of fairness and allow an IJ to focus on serious cases.

The Petitioner in Sanchez v. AG, Arcos Sanchez, a native and citizen of Mexico, entered the US at the age of seven without inspection. In 2012, he applied for Consideration of Deferred Action for Childhood Arrivals (DACA) status, which was approved. The DHS periodically granted his requests for renewals. In April 2019, Sanchez was arrested and charged in New Jersey with sexual assault and endangering the welfare of a child. As a result of these charges, the USCIS revoked Sanchez’s DACA status and placed him in removal proceedings. Sanchez applied for asylum and related relief. The IJ denied his claims and issued an order of removal. Two weeks from the IJ’s decision, the state criminal charges were dismissed. As a result of the dismissal of the charges, Sanchez was eligible again for DACA status.

On appeal to the BIA, Sanchez challenged the IJ’s decision and requested that the BIA remand the case to the IJ for consideration of administrative closure so that his DACA application could be approved, which in turn would favorably impact the disposition of the removal proceeding. The BIA denied remand, citing the binding decision of Castro Tum. The Third Circuit overruled the BIA and held that 8 CFR 1003.10(b) and 1003.1(d)(1(ii) unambiguously grants IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases.

The majority in Sanchez relied on the Supreme Court’s 2018 decision in Kisor v. Wilkie, which has come to the aid of petitioners challenging DHS’s interpretation of supposedly ambiguous immigration regulations. Our prior blogs addressing the beneficial impact of Kisor v. Wilkie on federal court decisions involving immigration law are here and here. In Auer v. Robins, the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. After Kisor, no longer can the DHS invoke Auer deference with respect to its ability to interpret its own regulations. The majority opinion in Kisor essentially “cabined the scope” of Auer deference, and set forth a three-step approach. Under this test, the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

A great example of a federal court applying Kisor in an immigration case is the 2019 Fourth Circuit decision Romero v Barr. The court in Romero overturned Matter of Castro-Tum by holding that the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted. Even if these regulations are ambiguous, the court citing Kisor noted that Auer deference cannot be granted when the new interpretation results in “unfair surprise” to regulated parties especially when the agency’s current interpretation conflicts with a prior one. The Fourth Circuit in Romero v. Barr focused on the specific language “may take any action…..appropriate and necessary for the disposition” of the case” in 8 CFR 1003.1(d)(1)(ii) & 1003.10(b). According to the Fourth Circuit, this language would necessarily encompass actions of whatever kind appropriate, including administrative closure, and hence there was no ambiguity thus necessitating Auer deference.

The majority in in Sanchez agreed with this analysis. In a dissent, Judge Paul Matey said that the rule which states that cases may only be administratively closed when “appropriate and necessary,” shouldn’t be interpreted to grant “unfettered discretion.” According to Judge Matey, “[t]o the contrary, ‘appropriate and necessary’ is itself an important restriction on the scope of the attorney general’s delegation, and one that comes with some bite.”

In a subsequent opinion in June 2020 following Romero v. Barr by now Justice Amy Coney Barrett, the Seventh Circuit in Meza Morales v. Barr also concluded that “the immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Although the Sixth Circuit in Hernandez-Serrano v. Barr a few months later in November 2020 upheld Castro-Tum, the Third Circuit majority in Sanchez sided with the reasoning in the Fourth and Seventh Circuit. The majority in Hernandez-Serrano was concerned that when immigration cases leave an IJ’s active calendar they never come back and “[t]hus the reality is that, in hundreds of thousands of cases, administrative closure has amounted to a decision not to apply the Nation’s immigration laws at all.” But even if that is a legitimate concern, the Sanchez court reasoned that the Attorney General can amend the regulation and it is not the role for the court to interpret the regulation in a way that would alleviate the government’s concern.

Given that there are three circuits that have overruled Castro-Tum on the ground that there is no ambiguity in the regulation authorizing administrative closure, with the Supreme Court’s decision in Kisor v. Wilkie aiding this interpretation, it is about time that AG Garland restore the BIA’s decision in Matter of Avetisyan and withdraw Castro Tum. As argued in our prior blogs, here and here, Matter of Avetisyan makes more sense than Castro Tum. In Matter of Avetisyan, an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the BIA. In Avetisyan, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

There are hundreds of thousands of cases in immigration court that do not need to be active as the respondents will be eligible for permanent residence or related relief. Reviving Avetisyan and withdrawing Castro Tum will go a long way in clearing the backlog in Immigration Court. In addition to reducing clutter in the immigration court’s docket, certain removal cases require resolution of questions that depend on outcomes from other immigration agencies that neither the IJ nor the BIA have any control over. Thus, the approval of an I-130 petition filed by a US citizen spouse on behalf of the foreign national spouse in removal proceedings, or the resolution of an appeal of an I-130 denial, will greatly determine the outcome of the removal case, although neither the IJ or the BIA have any control over the adjudication of the I-130 petition in a removal proceeding. It would make sense, and also be fair, for the IJ or BIA to receive the outcome of the I-130 petition before deciding to order removal of the respondent.

The Biden administration should thus refrain from appealing Sanchez to the Supreme Court notwithstanding the circuit split. As a practical matter, the administration may likely lose since all the nine justices were either part of the majority or concurring opinions in Kisor v. Wilkie, which aids in finding that there is no need to give Auer deference to the government’s interpretation of 8 CFR 1003.1(d)(1)(ii) & 1003.10(b). Justice Ginsburg is sadly no more and has been replaced by Justice Barrett, who wrote the opinion in Meza-Morales v. Barr when she was a judge on the Seventh Circuit, which overruled Castro Tum. Hence, despite the change in composition of the Supreme Court, there is still a very strong likelihood that the Biden administration will lose big in the Supreme Court if it asks the court to uphold Castro Tum. It would be much easier, and more in line with the Biden administration’s thinking on bringing fairness to immigration proceedings that Trump undermined, for AG Garland to withdraw Castro Tum and reinstate Avetisyan.

US Imposes Covid Travel Ban on India: How Effective Are Such Travel Bans?

May 3, 2021/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta and Kaitlyn Box*

In previous blogs we have discussed the Trump administration’s numerous COVID travel bans that were extended by President Biden, and provided suggestions for overcoming them. On Friday, April 30, 2021, a new COVID-related travel ban was implemented, this time by the Biden Administration. President Biden issued a Presidential Proclamation suspending the entry into the United States of nonimmigrants who have been physically present in India in the past 14 days preceding their entry due to the current COVID-19 outbreak in India. This ban will have devastating implications for the many Indian H-1B holders who traveled to India at the height of the pandemic to care for, and possibly bury, their ill parents. These travelers, many of whom have spouses and small children in the United States, now face being stranded in India for the foreseeable future.

Like previous iterations of the COVID travel bans, the new Proclamation outlines numerous categories of individuals who are exempt from the restrictions, including green card holders, spouses of U.S. citizens or green card holders, parents of unmarried U.S. citizen or LPR children under the age of 21, may immigrant visa holders, and certain other categories of travelers. Thus, the many H-1B visa holders who have U.S. citizen children will not be impacted. The Proclamation also exempts “any noncitizen whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees”. Thus, noncitizens who are covered by the ban may be able to seek national interest exception waivers, but doing so may be difficult and require proof that the traveler works in critical infrastructure.

The Proclamation takes effect at 12:01 a.m. EDT on May 4, 2021, and will not apply to noncitizens who are already on a flight to the United States that has departed before that time. Thus, impacted nonimmigrants who can book a return flight to the United States before the ban takes effect may want to consider doing so, though it may be difficult to even purchase plane tickets currently. The restrictions also will not apply to a nonimmigrant who, after leaving India, spends 14 days in a third country not subject to a COVID-19 proclamation before entering the United States. Note, though, that the entire Schengen region is subject to a travel ban and so is the United Kingdom. Hence, any travel through any of these countries, even if transiting through an airport such as Frankfurt or London, will subject the person to yet another ban even after they spend 14 days in a country outside India. As many countries have imposed restrictions on travelers from India, travelers may find it difficult to spend time in a third country, however. The United Arab Emirates, for example, recently extended its ban on flights coming from India through May 14^th. Others, like Mexico, may impose fewer restrictions on incoming international flights. Moreover, consular posts in India will likely not issue H-1B visa stamps to those who are subject to the ban on the flawed reasoning that if an applicant is subject to a ban they should not even receive a visa. There is no reason not to as they can spend 14 days in another country before seeking to enter the US, but based on experience with posts in other countries subject to Covid bans, they will not get a visa and lawsuits may need to be filed as in Gomez v. Trump , which involved DV lottery winners who were subject to Trump’s Proclamation 10014 and who got a ruling that they should be entitled to visas even though the ban was still in effect.

As we have argued in a previous blog, imposing travel bans such as this one are not an effective way to curb the spread of COVID-19. Immigrant visa holders or U.S. citizens who have recently been in India are just as likely to contract and spread the virus as nonimmigrant visa holders, so banning some categories of travelers while exempting numerous others has little utility. For example, one could be a US citizen by virtue of being born in the US, but then this person may have spent their entire life in India. This person will not be subject to the ban while a fully vaccinated H-1B visa holder who had to come to India to take care of a sick parent will be subject to the ban. Concerningly, other countries appear to be following the United States’ bad example, including Australia, which recently took the astonishingly draconian step of banning Australian citizens and permanent residents who have traveled to India from returning to Australia. While some may argue that the Australian ban is more uniform as it keeps everyone out and is thus more effective, it is unnecessarily harsh and in violation of citizenship principles. By not allowing its citizens to return, they may overstay their welcome in India, fall out of status and become deportable. They may also be more susceptible to Covid by being forced to remain in India, and will not have ready access to the vaccine as they may have in Australia. The Australian ban, in addition to being cruel for abandoning its own citizens, is also perceived as discriminating against Australian citizens of Indian origin while allowing Australian citizens from other banned countries to come in. The ban against Australian citizens in India also imposes criminal penalties, with penalties of up to five years in prison and nearly 60,000 Australian dollars in fines. If the US were to impose such a ban on its citizens or permanent residents, a court may well hold that it would be unconstitutional. Trump’s initial Muslim ban was successfully challenged in federal court because it also included permanent residents, which would result in a due process violation. See, e.g., State of Washington and State of Minnesota v. Trump, 847 F.3d 1151 (9th Cir. 2017).

Even onerous testing requirements may, in practice, result in returning citizens being banned from reentry. Canada, for example, requires that Canadian citizens who have traveled to India or Pakistan obtain a COVID test in a country other than India or Pakistan before they will be allowed reentry. Instead of being subjected to ineffective and disruptive travel bans, the United States should implement practicable testing requirements, and mandate that returning travelers quarantine for a few days prior to entry. With the vaccine becoming readily available in many parts of the world, proof of vaccination is a formidable safeguard and should enable fully vaccinated travelers to freely enter the United States.

(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 a Law Clerk at Cyrus D. Mehta & Partners PLLC.

Coping with Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application – Part 2

April 19, 2021/0 Comments/in Blog/by Cyrus Mehta

By Cyrus Mehta and Isabel Rajabzadeh*

Although H-4 and L-2 extensions continue to be delayed since our last blog “Coping with Delays Facing H-4 and L-2 Spouses”, we highlight another issue, which adds further hardship for H-4 and L-2 spouses faced with unjust processing delays. In October 2020, the EB-3 Dates for Filing in the Visa Bulletin advanced significantly, which allowed many born in India to file Form I-485, Adjustment of Status (AOS) applications. The surge in AOS cases, coupled with the H-4/L-2 processing delays, have left many with the inability to travel abroad as they await both their H-4/L-2 extension and Advance Parole (AP) processing. This blog tackles the threat to abandonment of AOS when traveling internationally while AP and H-4/L-2 are processing. We also discuss the complex interplay with employment authorization for H-4/L-2 spouses who have pending AOS applications.

Preserving H-4 and L-2 Status When an AOS is Pending

Since the H-1B and L visas allow for dual intent, it is possible to maintain H or L nonimmigrant status while an AOS application for permanent residence has been filed.

Due to the delays in the processing of H-4/L-2 extensions and requests for EAD, travelling abroad poses a conundrum. In order to preserve the AOS that is still processing, one needs to have either AP or valid H-4/L-2 status before leaving. Accordingly, 8 CFR 245.2(a)(4)(ii)(B)-(C) outlines two distinct pathways. Under (B), it allows those with approved AP to leave the country and then subsequently return in AP without abandoning their AOS, absent any specific situations outlined in the regulation. Under (C), the same is true for those who leave in H-4/L-2 status and return in H-4/L-2.

In 2000, the Cronin Memo was published and clarified that although an H-1B or L is considered to be paroled after entering the United States via AP, he/she is still able to apply for an extension of H-1B or L if there was a valid and approved petition. Upon the granting of the H-1B or L extension, the grant of parole would be terminated, and the H-1B applicant would then be admitted into the relevant H-1B status. Although the Cronin Memo contemplates one who is already in H-1B and L status before traveling abroad and being paroled via AP, it could also apply to one who has a pending extension of H-1B or L-1 status application and who traveled abroad under AP and was paroled into the US. Likewise, upon the approval of the H-1B or L-1 request, the parole would be terminated, and the beneficiary would be admitted in H-1B or L status. This allows the H-1B beneficiary to travel abroad while simultaneously preserving the AOS when both the H-1B and AOS are pending.

There is an inherent vagueness as to whether the Cronin memo applies to derivatives since H-4s and L-2s are not mentioned in the memo in respect to this issue. One may however argue, through anecdotal experience, that the Cronin Memo should apply to H-4s and L-2s and therefore, the H-4/L-2 should be able to enter the United States in AP and be able to switch to H-4/L-2 status once the H-4/L-2 extension is approved.

Preserving Adjustment of Status When Advanced Parole and H-4 are Pending

What happens when an H-4 has a pending AOS and has not received AP or H-4 approval but wants to travel based on an emergency? This issue is two-fold and is specifically applicable to those whose prior H-4/L-2 statuses have expired and have timely filed their extensions but still await processing. As mentioned before in our prior blog, although the H-4 can get a visa stamp at a US consulate, the AOS may be deemed abandoned if the H-4 left the US without H-4 status or AP.

In this scenario, the only recourse for the H-4 is to apply for an emergency AP by calling the USCIS 800 number to schedule an appointment with the local USCIS office, however, it is not definite that one will be able to connect to a live-person, let alone convince the USCIS that the emergency qualifies for expeditious AP processing.

Does an L-2 Spouse Need an EAD?

Out of the many downfalls of the H-4/L-2 processing delays, one of the most significant is the Employment Authorization Document (EAD) processing gaps afflicting families around the nation. At large, this issue has subjected many spouses and their families to financial struggle, and it remains a leading issue that the USCIS and the Biden administration must immediately resolve. The hardship is compounded by the fact that there are delays in the processing of the EAD under both the AOS and the H-4/L-2. Nonetheless, there may be an arguable legal basis for an L-2 spouse to engage in employment without obtaining an EAD.

In the Matter of Do Kyung Lee, the Board of Immigration Appeals (BIA) held that employment authorization is incident to E-2 status. INA 214(e)(6) explicitly states that an E-2 spouse shall be authorized to engage in employment. In this unpublished decision, the BIA reasoned that the regulation at 8 CFR 274a.12(c)(2) only specified that the dependent spouse and child of an E-1 visa holder must apply for work authorization, but the same regulation did not specifically state that the spouse of an E-2 must do the same. The Court held that since INA 214(e)(6) specifically authorized the E-2 spouse to engage in employment, the E-2 spouse’s failure to apply for an EAD did not result in a violation of status. Based on the reasoning of this BIA decision, the same logic can be applied to L-2 spouses since INA 214(c)(2)(E) explicitly authorizes L-2 spouses to engage in employment. The regulations at 8 CFR 274a.12 do not have a specific category for L-2 spouses, and USCIS requires L-2 spouses to use the catchall reserved provision under 8 CFR 274a.12(a)(18).

Nevertheless, this is still a gray area and E-2 and L-2 spouses are therefore still recommended to apply for an EAD. Even if the reasoning of this unpublished BIA decision is accepted by the USCIS, a lack of EAD could potentially trigger I-9 noncompliance issues with respect to the employer as ICE may not recognize the holding of an unpublished BIA decision.

The reasoning of this BIA decision is not appliable to H-4 spouses as there is no explicit INA provision that specifically authorizes H-4 spouses to engage in employment. The Department of Homeland Security (DHS) under the Obama administration specifically created a regulation which authorizes EAD for an H-4 under 8 CFR 274a.12(c)(26), based on implied authority in the INA to issue work authorization to any class of noncitizens. The Trump administration tried to unsuccessfully rescind the rule as it was hostile towards H-4 EADs, but could not get it past the Office of Management and Budget. The Trump administration then imposed the biometric requirement for every I-539 extension, which in turn delayed the grant of the H-4 EAD. The pandemic that followed in March 2020 caused further delays and backlogs.

Conclusion

We reiterate our request that the Biden administration remove the biometric requirement imposed by the prior Trump administration when an I-539 application is filed. The justification by the Trump administration, as revealed in a recent WSJ article, that the biometric requirement was necessary so that dependents did not misrepresent themselves is spurious. Until 2019, there was never a biometric requirement when dependents filed I-539s, and there were no widespread incidents of such misrepresentations. Many of these dependents were already vetted when they obtained H-4 and L-2 visa stamps at US consulates. Moreover, subjecting infants and toddlers seeking H-4 and L-2 extensions to this is downright cruel. Eliminating this unnecessary biometric requirement will go a long way in eliminating the delays facing H-2 and L-2 spouses as they can then be processed under the premium processing request filed through the principal spouse’s H-1B or L-1 petition. The DHS should also initiate premium processing for EAD requests since Congress authorized additional premium processing last year. Finally, since INA 214(c)(2)(E) explicitly authorizes an L-2 spouse to engage in employment, what is the need to require the L-2 spouse to go through the lengthy process of applying for an EAD? Under the logic of the BIA decision in Do Kyung Lee, an E-2 or L-2 spouse who engages in employment without an EAD will not be viewed as engaging in unauthorized employment. Therefore, even if the Biden administration cannot speed up EAD processing quickly, it can officially pronounce that L-2 and E-2 spouses need not obtain an EAD.

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

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

Coping with Delays Facing H-4 and L-2 Spouses

April 11, 2021/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta & Isabel Rajabzadeh*

In March 2019, the Trump administration implemented a new biometrics requirement for some employment-based and nonimmigrant dependents. H-4 and L-2 dependents must complete biometrics each time an extension of status is filed on Form I-539. This superfluous mandate, paired with the already backlogged queue due to Covid-19 processing delays, has resulted in dependent extensions being processed months behind their principal applicants. Since most of the people impacted by the delays are H-4 spouses, we refer more to them than L-2s although both face similar issues.

Spousal processing times are left estranged with some H-4 extensions taking over a year while the H-1B option of 15-calendar-day premium processing remains in full effect. To shed light on how absurd these delays truly are, it is crucial to note that most dependents have at one time or another provided biometrics in the past to the U.S. Citizenship and Immigration Services (USCIS) for an unrelated immigration benefit, or during visa consular processing. Nonetheless, spouses are losing their work authorization and are also inhibited from travelling abroad while their H-4 extension requests are pending because of these illogical delays.

There is no need for this Trump era senseless H-4 and L-2 biometrics requirement to remain as it was part of the prior administration’s effort to thwart legal immigration. The Biden administration should not only remove this impediment, but it should also implement premium processing of H-4 extensions and work authorization (EAD) requests. We refer you to a prior blog, “Work Authorization for H-4 Spouses: The Experience Thus Far” that discusses the eligible requirement for EADs. Since Congress authorized additional premium processing last year, which the USCIS has not implemented yet, we urge the agency to act now.

This processing limbo has caused much confusion among the nonimmigrant population. As litigation ensues over the delays around the country, we have outlined some of our most asked H-4 dependent related questions below.

Traveling Abroad While H-4/L-2 Is Pending and H-1B/L-1 principal has a valid I-94

While consular posts continue to operate at a limited capacity, it is not always ideal to travel outside of the United States in order to receive an H-4 visa stamp. Still, we provide some guidance below when travel opportunities arise.

The H-4 extension request can remain pending even if the spouse leaves the United States. The same is also true with respect to the request for an employment authorization document (EAD) through the filing of the I-765. However, if an H-4 spouse leaves the United States before doing his/her biometrics, and the USCIS issues a biometrics appointment, the spouse can seek postponement and complete the biometrics when he/she returns to the United States.

Travel during an extension request should be distinguished from travel during a request for change of status. If one departs the United States while the change of status to H-4 is pending, the underlying I-539 application will get denied.

Whether the H-4 is processed abroad or by the USCIS, it is always important to review the expiration of the I-94. The I-94 is attached to H-4 approval notices (I-797) when H-4s are approved by the USCIS. If the H-4 spouse either obtains their H-4 visa stamp abroad or travels outside of the United States, the new I-94 will appear on the Customs and Border Protection (CBP) I-94 portal, which should always be reviewed upon entering the United States.

Please remember that while visas allow a person to travel to a port of entry, the I-94 grants the actual status and permits the person to stay in the United States. The CBP has made mistakes on I-94s in the past, which is why reviewing each I-94 is even more critical. If the CBP made a mistake, correcting the I-94 may be as simple as contacting the CBP and requesting the correction. The CBP may also issue an I-94 date that matches the validity period of the underlying passport. Therefore, it is important to ensure that the passport is renewed prior to travel abroad in order to avoid a mismatch in the I-94 validity date and the H-4 visa, or the H-1B approval notice.

Lastly, if the H-4 spouse’s I-94 does not match the visa expiry date, it is important to plan to file an I-539 extension request in advance of the I-94 expiration. Alternatively, the spouse can travel abroad and be admitted.

No Status while H-4 Is Pending vs. Accrual of Unlawful Status

Most importantly, H-4 spouses must not accrue unlawful status in the United States. H-4 spouses have been falling out of status because of the long processing delays, however, H-4 spouses do not begin to accrue unlawful status as long as the H-4 extension (form I-539) was filed before the H-4 status (the I-94) expiration date. During the pendency of the I-539 request, the applicant is authorized to remain in the United States even if they do not have the underlying H-4 status. Once the extension request is approved, the spouse’s H-4 status is restored. If, for whatever reason, the H-4 extension is denied, the H-4 spouse will start accruing unlawful presence for the purpose of triggering the 3 or 10 year bars under INA 212(a)(9)(B)(i)(I) and (II). If the spouse has been unlawfully present for more than 180 days, they will face the three-year bar once they depart the United States. Therefore, it is incredibly important to not accrue unlawful status.

If the spouse wants to file a motion to reopen or reconsider upon a denial, the spouse must consider leaving within 180 days of the denial if the case has not been reopened. He/she would risk facing a 3 or 10 year bar if they leave after 180 days, assuming the motion is not granted.

Conclusion

Although it is understandable that the Biden administration has been left with a big backlog of H-4 and L-2 cases from the Trump administration, the Biden administration can alleviate the backlog by immediately lifting the biometrics requirement whenever an I-539 is filed. This would be a good first step as the H-4 extension will get processed along with the H-1B extension under premium processing. Then, premium processing should be introduced for EAD processing. The additional premium fees that applicants will gladly pay can be used to add more resources to expedite the processing of cases. Of course, all this is still a band-aid since the ultimate solution is to alleviate the backlogs in the employment-based preferences by adding more visa numbers as well as exempting the counting of certain immigrants such as dependents, which is part of Biden’s US Citizenship Act of 2021. Even if the prospects of the passage of the entire bill are unlikely, the provisions that will alleviate the backlogs in the family and employment visa system must be pushed along with helping Dreamers and TPS applicants in the American Dream and Promise Act of 2021.

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

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

End the Arbitrary H-1B Lottery and Visa Quotas – and other practical considerations for the winners!

April 2, 2021/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta and Kaitlyn Box*

On March 30, 2021, USCIS announced that it had received sufficient H-1B registrations during the initial period to reach the Fiscal Year 2022 cap, including Master’s Cap registrations. All prospective petitioners whose registrations were selected should now have been notified. These petitioners may file H-1B petitions for the selected beneficiaries beginning on April 1, 2021. At this time, many petitioners are seeing that less than 1/3 of their registrations have been selected, a remarkably low selection rate. The selections for a total of 85,000 H-1B slots were made out of a record number of what is believed to be over 300,000 total registrations.

This lottery system is an unfair barrier to U.S. employers who rely on the H-1B visa program to employ highly-skilled workers. Subjecting employers to the game of chance that is the H-1B lottery renders the process of planning for the future and meeting staffing needs unnecessarily complex for U.S. employers, particularly when the selection rates are as low as this year’s selection numbers. In fields like the tech industry, where the need for highly-skilled workers exceeds the number of qualified U.S. workers, the unduly restrictive cap numbers hinder companies from being able to meet demand and remain competitive in the global market. It is also highly unfair for both employers and the foreign workers they wish to hire to first be fortunate enough to be selected in a lottery, and then have to wait until October 1 to commence employment.

The only way to ensure that the United States continues to attract the best and brightest talent worldwide is to eliminate quotas and lotteries from the H-1B program. As discusses by Stuart Anderson in a recent Forbes article, highly-skilled noncitizen workers promote innovation and economic growth in U.S. markets. Even the oft-maligned IT consulting companies, which employ high numbers of H-1B workers, serve a critical role in the U.S. economy by providing reliable and inventive IT solutions to U.S. companies. Employing H-1B workers allows consulting companies flexibility, as well as the ability to provide top talent at affordable rates and respond to changes in the market. Though sometimes pejoratively referred to as “job shops”, IT consulting companies, in truth, promote ingenuity by providing a source of technical expertise that can quickly respond to the evolving needs of the U.S. market.

Some have suggested that the solution is to allocate H-1B visas to the highest wage earners but this system, articulated in the Trump administration’s H-1B lottery final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions”, worsens the problems with the H-1B visa program rather than solving them. As we have discussed in a prior blog, a wage based preference system would practically foreclose numerous categories of noncitizens workers who are highly skilled but do not earn overly high salaries from pursuing the H-1B visa as an option. Entry level workers, for example, including talented graduates of U.S. universities, have the potential to greatly contribute to the U.S. economy over the course of their career, but are not likely to be paid extremely high wages. Entrepreneurs who start their own companies bring innovative businesses to the United States and create jobs if they are successful, but their startups may not be able to afford to pay them an overly high wage. Similarly, employees of non-profit organizations tend to command modest salaries, but perform meaningful and significant work in the United States. Allocating H-1B workers to the highest earners will, in the long run, deter highly-skilled noncitizens from pursuing employment in the United States, which will be detrimental to the United States’ economy and competitive advantage in the global market. And even if the lottery is skewed towards those offered the highest wages in the occupation, it still continues to remain a game of chance.

Although some affiliated with respectable think tanks like the Economic Policy Institute attack the H-1B as a source of cheap labor, they are wrong. Daniel Costa and Ron Hiro of the Economic Policy Institute, for example, suggest that H-1B employers “use the program to pay migrant workers well below market wages”, but a recent Center of Growth and Opportunity paper suggests that skilled immigrants holding temporary work visas have a wage premium of 29.5 percent compared to similar natives. H-1B lotteries, whether quota or wage based, limit the United States’ ability to attract the most skilled foreign workers. Those who are truly concerned for the wellbeing of the U.S. economy understand the key role that highly skilled foreign workers play and would want to encourage top talent from all over the world to come to the United States. One obstacle to H-1B workers was already removed when Proclamation 10052, which suspended the entry into the U.S. of many H-1B and other nonimmigrants, was allowed to lapse on March 31, 2021. This Trump-era ban further obstructed the flow of skills into the United States. Ironically, it also impeded the ability of last year’s lottery winners to come to the United States but this year’s winners with approved H-1B petitions will not be impacted by the Proclamation and last year’s winners may also seek visa appointments. Even with the expiration of the Proclamation, however, it is unlikely that H-1B visa applications will immediately begin being processed, as many U.S. consulates are still not fully operational due to the pandemic. DOS will prioritize the applications of applicants who have not yet been interviewed or scheduled for an interview, and invites individuals who were refused a visa due to the Proclamation to reapply.

Abolishing the H-1B lottery is the surest way to ensure free entry of talented and skilled workers into the United States. The reason for the lottery is because there is an arbitrary limit of 65,000 visa and an additional 20,000 for master’s degree holders that have no bearing on economic reality. Similarly, these same H-1B workers who get sponsored for green cards are subject to unrealistic quotas in the India EB-2 and EB-3s resulting in decade long backlogs, thus depriving them of obtaining permanent residency. There is no basis for quotas on H-1B visas or immigrant visas. As pointed out in a Forbes article, unemployment rates in H-1B occupations like computer and mathematical fields were only 2.4% at the beginning of 2021, illustrating that H-1B employees are not pushing U.S. workers out of the labor market. Lotteries and quotas have no place in a modern immigration system. There should be a free flow of skills and talent into the US.

It remains to be seen whether another H-1B lottery will be conducted in August, as was the case last year. If the case was selected under the lottery, the online account will indicate “Selected.” If the case shows “Submitted,” it means that it is still eligible for selection in a subsequent lottery during this fiscal year. If it shows “Denied” it means that multiple registrations were submitted for the same registrant. If the payment was declined it will show “Invalidated-Failed Payment.” In the meantime, petitioners who were selected can begin filing Form I-129 from April 1 to June 30, 2021. They will only be eligible to start employment in H-1B status on October 1, 2021, and if the foreign national is in the US they must ensure that they are maintaining status. Those who are on F-1 Optional Practical Training, and if their OPT will expire prior to June 30, 2021, should file the I-129 prior to expiration so that they can take advantage of the Cap Gap till September 30, 2021. USCIS will begin accepting exclusively the new (3/10/2021) version of Form 1-129 on July 1, 2021. Until then, older versions of the form may still be submitted. Also note that Question 5 in Supplement H on page 13 of Form I-129 must be completed for H-1B Cap-subject petitions.

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

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

The Law Does Not Compel the Impossible– Or Does It?: Matter of C-C- and Awuku-Asare v. Garland

March 22, 2021/1 Comment/in Blog/by David Isaacson

“Lex non cogit ad impossibilia.” In English, as translated by the Court of Appeals for the Eleventh Circuit, that means: “The law does not compel the doing of impossibilities.” In 1948, citing this principle, the Board of Immigration Appeals (BIA) held that a nonimmigrant seaman could not be deported for having failed to leave the United States timely when, at the time he was supposed to leave, he was in jail pending trial for a crime of which he was later acquitted. Matter of C-C-, 3 I&N Dec. 221, 222 (BIA 1948). But last week, the Court of Appeals for the Tenth Circuit affirmed the BIA’s removal order against a student who had failed to attend classes while in jail pending trial for a crime of which he was later acquitted. Awuku-Asare v. Garland, ___ F.3d ___, No. 19-9516 (slip op. March 16, 2021).

The BIA’s 1948 decision in Matter of C-C- is not publicly available online in its entirety (although it can be obtained from sources such as Westlaw and Lexis), as the Department of Justice’s online collection of precedent decisions only goes back to Volume 8 covering 1958-1960. The decision was, however, summarized in the more recent and thus publicly available Matter of Ruiz-Massieu, 22 I&N Dec 833 (BIA 1999), as follows:

Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), involved an alien who was held in custody pending trial for a criminal charge past the time of his authorized stay. The Board held that he was not deportable as an overstay under the principle that the law does not compel the impossible. Id. at 222.

Matter of Ruiz-Massieu, 22 I&N Dec. at 841.

The original Matter of C-C- decision, which I will take the liberty of excerpting even without a hyperlink, provides additional details:

The appellant, a native and citizen of China, male, 44 years of age, last entered the United States at the port of Boston, Mass., July 30, 1947, as a seaman. He was admitted for a period not to exceed 29 days. The record indicates that the appellant intended to reship foreign at the time of said entry.

The appellant testified that he was arrested by customs officials at Boston the day after his arrival and charged with smuggling opium. The record indicates that he was acquitted of this charge in the District Court of the United States at Boston, Mass., on October 17, 1947. The warrant for the appellant’s arrest in deportation proceedings was issued October 1, 1947, while he was in custody awaiting trial on the narcotic charge and prior to his acquittal. He had been in custody since the day following his admission on July 30, 1947.

This case is to be distinguished from a case where the alien’s criminal act caused his incarceration. Here, by judicial finding, the appellant was not guilty of a criminal act. An alien cannot be prevented from departing from the United States in accordance with the terms of his admission and then be found deportable for not so departing. “Lex non cogit ad impossibilia.” The appellant should be given a reasonable period of time within which to depart. Failure to so depart would then render the appellant deportable.

Matter of C-C-, 3 I&N Dec. at 221-222.

Daniel Kofi Awuku-Asare recently found himself in somewhat similar circumstances to Mr. C-C-, except that he was a student charged with rape rather than a seaman charged with drug smuggling. As the Court of Appeals for the Tenth Circuit recounted in its March 16 opinion in Awuku-Asare v. Garland,

Awuku-Asare entered the country on a nonimmigrant F-1 visa and could lawfully remain in the United States so long as he complied with the conditions of his visa. Relevant here, maintaining an F-1 visa status requires maintaining a full course of study at an approved educational institution. But Awuku-Asare did not comply with this full-course-of-study requirement because he was incarcerated for approximately 13 months for a crime of which he was ultimately acquitted.

Awuku-Asare, slip op. at 2.

According to the Tenth Circuit, an Immigration Judge ordered Awuku-Asare removed and “[t]he BIA sustained the removability charge. . . determining that “[a]s a result of his arrest and detention,” Awuku-Asare could not “pursue the requisite ‘full course of study.’” Awuku-Asare, slip op. at 3. (quoting 8 C.F.R. § 214.2(f)(5)(i)). Awuku-Asare was thus found removable under INA § 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), which provides that “Any alien who was admitted as a nonimmigrant and who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed . . . or to comply with the conditions of any such status, is deportable.”

The Tenth Circuit upheld the removal order against Mr. Awuku-Asare, rejecting his argument that deportability for failure to maintain status requires “that the nonimmigrant’s failure to maintain status must have been caused by some affirmative act performed by the nonimmigrant or that the failure to maintain status was otherwise the nonimmigrant’s fault.” Awuku-Asare, slip op. at 7. Such an interpretation, the Tenth Circuit held, “necessarily adds text to an unambiguous statute. And that is something we cannot do.” Id.

As in Matter of C-C-, however, the interpretation of the statute that led to the issuance of an order against Mr. Awuku-Asare would seem to have required him to do the impossible. He could no more attend classes in person at his college while incarcerated than C-C- could have left the United States while incarcerated. (Attendance at other educational programs for incarcerated inmates likely would not have sufficed, since maintenance of F-1 student status requires attendance at “an institution of higher learning which awards recognized associate, bachelor’s, master’s, doctorate, or professional degrees,” 8 CFR 214.2(f)(6)(ii), as well as the completion of proper transfer procedures with the assistance of the new receiving school, 8 CFR 214.2(f)(8).) The BIA and then the Tenth Circuit, however, did not follow Matter of C-C- and give Mr. Awuku-Asare the benefit of the principle “Lex non cogit ad impossibilia.”

It appears that Matter of C-C- may not have been cited by the BIA or by Mr. Awuku-Asare’s counsel before the Tenth Circuit (he represented himself before the Immigration Court and BIA, see Awuku-Asare, slip op. at 3-4 fn.1.). At least, it is not cited in the Tenth Circuit’s decision, even to explain why it would not apply. It is possible that neither counsel nor the Court found the decision because it pertains to a slightly different mechanism of removability than was at issue in Awuku-Asare: Mr. C-C- had been charged with overstaying his admission, which would today be the subject of a charge under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), not INA § 237(a)(1)(C)(i). But Matter of C-C- remains good law today, and it would appear to have been relevant here. Particularly faced with an unrepresented respondent, the BIA ought to have taken it upon itself to cite Matter of C-C- and distinguish it if appropriate. It evidently did not do so because the issue was not raised below, however, and it is possible that Mr. Awuku-Asare’s appointed counsel at the Court of Appeals for the Tenth Circuit did not raise the argument because it would not have been properly exhausted (as a general rule, courts do not consider arguments on review of removal proceedings that were not made during those removal proceedings). The Tenth Circuit was relatively forgiving about broadly construing the arguments that Mr. Awuku-Asare did make below without a lawyer, but declined to consider one argument that was made to it but had not been made below. Awuku-Asare, slip op. at 3-4 fn 1.

In the end, the problem here may be that attending college classes while imprisoned, pending trial for a crime of which he was acquitted, was not the only impossible thing that the law required Mr. Awuku-Asare to do. By statute, a respondent in removal proceedings only has a right to counsel “at no expense to the government”, INA § 292, 8 U.S.C. § 1362, and not a right to publicly-funded appointed counsel, such as is provided to defendants in criminal proceedings under the Sixth and Fourteenth Amendments as interpreted in Gideon v. Wainright, 372 U.S. 335 (1963). If a respondent in removal proceedings cannot afford to pay a lawyer, and cannot find a lawyer to represent him or her pro bono (without fee), then he or she may have to proceed without a lawyer. Immigration law is sufficiently complex, however, that effectively representing oneself without a lawyer is often no more possible than attending classes at one’s college while in prison. Certainly, it would have been extremely difficult for Mr. Awuku-Asare to become aware of Matter of C-C- on his own.

New York State and New York City have provided funding for representation of detained respondents through the New York Immigrant Family Unity Project, meaning that a detained respondent like Mr. Awuku-Asare would have received free representation if he had been in New York. Other jurisdictions have begun similar programs as well. There is also limited federal funding for representation of unaccompanied children and certain people deemed incompetent due to a mental disorder. Ultimately, as the American Immigration Council has explained, Congress and the Biden Administration should amend the INA and its implementing regulations to provide a right to publicly-funded counsel for those unable to afford it, so that people like Mr. Awuku-Asare do not have their cases decided without regard to relevant law simply because they cannot afford a lawyer.

CSPA Triumphs in Cuthill v. Blinken: Child of Parent who Naturalizes Should not be Penalized

March 15, 2021/0 Comments/in Blog, uncategorized/by Cyrus Mehta

By Cyrus D. Mehta

One of the unresolved conundrums in our immigration law is the inability of children of lawful permanent residents to be protected under the Child Status Protection Act (CSPA) when their parents naturalize to US citizenship. The CSPA was enacted to ensure that a child remained under the age of 21 in order to obtain permanent residency with the parent or to stay in a more advantageous family visa category. Sure enough, the CSPA protects the age of a minor child of a who has been sponsored for permanent residency by the parent who is a green card holder even when the child turns 21. Unfortunately, based on erroneous government policy, the goal of the CSPA gets thwarted when the parent of this child naturalizes especially after the child’s biological age is over 21 years.

The Second Circuit in Cuthill v. Blinken recently clarified by holding that a child of a permanent resident whose age is protected under the CSPA ought to be able to continue to claim age protection under the CSPA even when the parent naturalizes to US citizenship.

Section 2 of the CSPA, codified in the Immigration and Nationality Act, protects the age of minor children of US citizens under the age of 21. These minor children are termed Immediate Relatives (IR) under INA 201(b)(2)(A)(i). When a US citizen parent files an I-130 petition for an IR minor child, the child’s age will be frozen under 21 even if there is a delay in the grant of permanent residency and the biological age of the child crosses 21. See INA 202(f)(1).

What happens when a minor child of a permanent resident naturalizes? The child automatically converts from the Family Second (2A) to the IR category. If the biological age of the child is under 21 at the time of the parent’s naturalization, the child’s age pursuant to INA 201(f)(2) freezes. Even if there is a delay in the grant of permanent residency and the child’s biological age is over 21, the child’s statutory age remains frozen under 21.

So far so good. What happens if the child’s biological age under the F2A was over 21 but was protected under the CSPA? Section 3 of the CSPA protects the age of a child who is the beneficiary of a F2A petition under a special formula. This is how it works:

When the Family 2A petition becomes current under the State Department Visa Bulletin, one has to look at the age of the child on the first day of the month when the F2A becomes current. If the biological age of the child is over 21 at that time, the age can be subtracted by the amount of time the I-130 petition took to get approved from the date of filing. If this subtraction reduces the age of the child under 21, the child can remain under F2A rather than slide into the less favorable Family 2B preference (F2B), which applies to unmarried sons and daughters of permanent residents. There is clearly a big advantage of remaining under F2A rather than F2B. The F2A is current under the March 2021 Visa Bulletin while the F2B cutoff date in the worldwide category is July 22, 2015.

Although the age of the child is protected under F2A, when the parent naturalizes, the USCIS has taken the position that the age could no longer be protected. Thus, the child gets penalized when the parent became a US citizen. It also leads to the absurd result of inhibiting the parent from naturalizing as the child is better off remaining the child of a lawful permanent resident than a citizen.

These were precisely the facts in Cuthill v. Blinken. On September 29, 2016, when Veronica Cuthill was a permanent resident, she filed an I-130 petition for her daughter, Tatiana Maria Diaz de Junguitu Ullah, who was exactly 19 years 9 months and 6 days old. U.S. Citizenship and Immigration Services (USCIS) took 363 days to process the I-130 petition and approve it. Although the daughter’s biological age exceeded 21 while she was waiting for the F2A visa, under the CSPA formula the daughter remained in the F2A preference.

On June 25, 2018, while Diaz was waiting for an F2A visa, Cuthill naturalized as a US citizen. At that time Diaz was still statutorily eligible under the F2A visa based on the 363 days of subtraction of processing time from her biological age. Cuthill sought to convert Diaz’s F2A petition for an IR visa, but the State Department instead notified her that Diaz would be placed in the Family First Preference (F1) queue rather than be considered an IR.

The key issue is whether Cuthill’s daughter Diaz could remain in F2A or whether she would convert into F1. If the daughter converted from F2A to F1, it would cause a great setback. Under the March 2021 Visa Bulletin, the cutoff final action date for F1 beneficiaries is August 8, 2015. The F2A, on the other hand, is current.

INA 201(f)(2) allows a conversion from F2A to IR when the parent naturalizes. This provision is reproduced below:

Age of parent’s naturalization date – In the case of a petition under section 204 initially filed for an alien child’s classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child’s parent being lawfully admitted to permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under section (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age on the date of the parent’s naturalization (emphasis added).

The question before the Second Circuit was whether “the age on the date of the parent’s naturalization” is the biological age of the child or the CSPA age of the child? Judge Katzmann writing the decision for the three judge panel, acknowledged that “although no one will ever accuse the CSPA of being reader-friendly” ingeniously found a textual path to hold that it is the CSPA age and not the biological age that counts. Although INA 203(h)(1)(A) (which protects the age of F2A beneficiaries) and INA 201(f)(2) (which protects the age of IRs) are separate sections within the INA, there is a connection between the two as they both reference the definition of a child under INA 101(b)(1).

Under INA 101(b)(1), a child is “an unmarried person under twenty-one years of age.” However, the definition of the child is modified under INA 203(h)(1)(A) for F2A children. As noted, under this provision, a child’s CSPA age under F2A can be reduced to under 21 even if the biological age has exceeded 21 by subtracting the age based on the amount of time the I-130 petition took to get approved. Since INA 201(f)(2) also references INA 203(a)(2)(A), there is a connection between the two sections, and the child’s age can be interpreted as the CSPA age rather than the biological age when the parent naturalizes, and thus Diaz should convert from F2A to the uncapped IR rather than remain in the backlogged F1.

Judge Katzmann did not end the analysis here, but examined the broader purpose of the CSPA. “We examine Congress’s purpose in enacting the CSPA, and it is there that we find our clincher: The legislative history shows a clear desire by Congress to fix the age-out problem for all minor beneficiaries, and there is nothing to suggest that Congress intended to exclude beneficiaries like Diaz,” Judge Katzmann wrote.

The government’s argument of insisting that Diaz move from F2A to F1 after her mother Cuthill naturalized ran counter to CSPA’s purpose of to protect child beneficiaries from aging out of their age-dependent visas. While reliance on legislative purpose is often criticized since Congress is a divided body, with respect to the CSPA, Judge Katzmann emphasized that it passed the House by a unanimous 416-0 vote, then passed the Senate by a unanimous vote and again passed the House again by a unanimous vote. “Penalizing people for becoming citizens runs counter to the entire family-based visa scheme,” Judge Katzmann said. Finally, Judge Katzmann also did not give Chevron deference to a prior decision of the Board of Immigration Appeals, Matter of Zamora-Molina, 25 I&N Dec. 606, 611 (BIA 2011), in which the BIA adopted the same flawed interpretation as the government tried to unsuccessfully advance in Cuthill. When the intent of Congress is clear, a court need not give deference to an agency’s interpretation of the statute.

The Second Circuit in Cuthill v. Blinken follows the Ninth Circuit’s decision in Tovar v. Sessions that also held that the naturalization of a parent ought not to adversely impact the protected age of the child under the CSPA. Both these courts of appeals have ruled correctly and consistently with the purpose of the CSPA. Rather than appealing to the Supreme Court, it is about time that the DHS and the State Department under President Biden issue a policy to ensure that the holdings of the Second and Ninth Circuits be uniformly implemented – at the USCIS and State Department – for all children whose age is protected under F2A and whose parents subsequently naturalize.

If these decisions are not implemented uniformly, parents of children whose age is protected under the F2A will be inhibited from naturalizing to US citizenship. If they go ahead and naturalize, children will be involuntarily converted into the F1 category, which is hopelessly backlogged. Such a result could not have been the intent of Congress when it spoke with one voice to pass the CSPA, and two courts of appeals, the Second Circuit and the Ninth Circuit, have correctly held that INA 203(h)(1) and INA 201(f)(2), when read together, unambiguously provide a pathway for children to gain permanent residency as immediate relatives even when their parents become US citizens.

President Biden Must Reject Trump Era H-1B Lottery Rule and Work Visa Travel Ban

March 6, 2021/0 Comments/in Blog/by Cyrus Mehta

By: Cyrus D. Mehta and Kaitlyn Box*

On March 3, 2021, Democratic Senator Dick Durbin and Republican Charles Grassley submitted a letter to new DHS Secretary Alejandro Mayorkas urging the DHS to implement the Trump administration’s H-1B lottery final rule entitled “Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions”, which was published in the Federal Register on January 8, 2021. The final rule would replace the current H-1B lottery system with a preference-based system that prioritizes workers earning higher wages. Originally set to go into effect on March 9, 2021, implementation of the rule was postponed until at least December 31, 2021. It is a shame that Senator Durbin would throw his support behind a clearly ultra vires regulation of the Trump era that is designed to hurt small businesses, start-up companies and keep the U.S. from retaining the best and brightest foreign students from entering the U.S. workforce. If allowed to go into effect during this year’s H-1B lottery, the rule will have a devastating impact on international students, entry-level workers, and employees of non-profits, all of whom tend to earn modest salaries.

The Biden administration’s welcoming immigration policies have been a breath of fresh air, but one must keep in mind that certain members of the administration disfavor the H-1B visa program, viewing it erroneously as a source of “cheap labor” that threatens the interests of U.S. workers. The H-1B visa indeed requires employers to pay the higher of the prevailing wage or actual wage paid to similarly situated workers in the company. Distrust of the H-1B program could explain why President Biden selectively rescinded Proclamation 10014, but not Proclamation 10052, which restricts the entry of individuals who were outside the United States without a visa or other immigration document on the effective date of the Proclamation, June 24, 2020, and are seeking to obtain an H-1B visa, among other categories. We have discussed Proclamation 10052 in detail in a previous blog. In its last days, the Trump administration extended Proclamation 10052 to March 31, 2021.

Given the tremendous hardship it causes to noncitizens subject to the ban, the Biden administration ought to allow Proclamation 10052 to expire on March 31 rather than further extending it. Better still, the Biden administration should rescind it even before March 31 as every day causes hardship to those who have been adversely impacted. The affirmative rejection of 10052 would symbolically also demonstrate that Proclamation 10052 is based on the same xenophobic premise that led to the rejection of Proclamation 10014. The Proclamation already conflicts with several of the Biden administration’s early immigration policies. Proclamation 10052 was based on the same tired and xenophobic narratives as Proclamation 10014, which Biden has already rescinded. Section 5(c)(iii) of the Proclamation, which aims to prevent “aliens” (a term the Biden administration has pointedly avoided using) with final orders of removal from obtaining eligibility to work in the United States does not comport with Biden’s new priorities memo, which would allow such noncitizens to seek work authorization under an order of supervision. A provision at Section 5(b) in Proclamation 10052 requires measures to prevent noncitizens seeking admission under the EB-2 or EB-3 categories from disadvantaging U.S. workers under INA 212(a)(5)(A). Biden’s February 2, 2021 Executive Order entitled “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”, on the other hand, lauds the contributions of immigrants to the U.S. economy and promised to reduce barriers to naturalization.

Biden’s U.S. Citizenship Act of 2021 also reflects a certain reluctance on the part of the Biden administration to address the H-1B visa program. The sweeping bill is largely favorable to immigrants, featuring as its keystone a path to legal status for undocumented noncitizens who were present in the United States as of January 1, 2021. The bill also endeavors to reduce the backlogs in the employment and family based categories by adding additional numbers and not counting dependent family members, among other ameliorative measures. However, the bill had comparatively little to say about H-1B visas. One of the few provisions that did address the program empowers DHS to “issue regulations to establish procedures for prioritizing such [nonimmigrant] visas based on the wages offered by employers”, which concerningly echoes Trump’s H-1B lottery rule. While the issuing of more green cards to skilled workers is indeed welcome and absolutely necessary, there also needs to be a complimentary work visa program that allows employers to quickly employ much needed skilled workers and which also provides a bridge to the green card. Also another glaring lacuna in the bill is the absence of the much needed startup visa that would incentivize foreign national entrepreneurs to found companies in the US, which in turn could grow and create jobs for Americans in addition to creating paradigm shifting technologies.

If the Biden administration truly wishes to act in the best interest of the U.S. economy it must reject the idea, whether it is championed by opponents of skilled immigration on the left or the right, that H-1B workers are a threat to the United States. The administration must seek to delay the implementation of the H-1B lottery rule and rescind it notwithstanding Senator Durbin’s support for it. Indeed, Senator Durbin, teaming up with known immigration foe Senator Grassley (who has never repudiated Trump), has been a constant and irrational foe of the H-1B program for over two decades and his opposition to the H-1B is not a reasoned voice and lacks credibility. Proclamation 10052 also does not benefit U.S. workers by separating talented H-1B employees from their families and preventing them from performing critical jobs in the United States. As Stuart Anderson points out in a recent Forbes article, many H-1B workers are employed in the computer and tech field, which has not seen significant increases in unemployment during the COVID-19 pandemic. In fact, large numbers of positions remain open in this field and would likely go unfilled without highly skilled H-1B workers. With no cogent economic justification remaining to support it, it is hoped that Proclamation 10052 soon goes the way of Proclamation 10014.

According to an earlier Forbes article, “H-1B visas are important because they generally represent the only practical way for high-skilled foreign nationals, including international students, to work long-term in the United Sates and have the chance to become employment-based immigrants and U.S. Citizens. In short, without H-1B visas nearly everyone from the founders of billion-dollar companies to the people responsible for the vaccines and medical care saving American lives would never have been in the United States.”. The H-1B lottery rule, if implemented, will clearly provide a disincentive for international students to pursue higher education in the US. By eliminating the chances of entry level students from obtaining H-1B visas, they will pursue educational opportunities in other countries, which in turn will adversely impact American universities. As AILA’s comment to the H-1B lottery rule points out, international students comprise over 5% of the total number of students enrolled in higher education in the U.S., and contribute billions of dollars to the American economy. See “AILA and the Council Submit Comments Opposing USCIS Proposal to Create Wage-Based Selection Process for H-1Bs”, AILA Doc. 20120234 (Dec. 2, 2020). Talented foreign students have long flocked to U.S. universities, so losing this population would not only financially devastate American educational institutions, but also result in the loss of this source of talented entry-level workers. The notion that foreign students after completing a year or two of OPT or STEM OPT will be able to command Level 4 wages and thus compete for H-1B visas under the new rule is a canard.

United States companies, too, depend on H-1B workers. U.S. employers have long recruited highly skilled and highly education H-1B visa holders to fill entry-level STEM positions. With foreign students comprising the vast majority of graduates of some STEM programs in the United States, there are simply not enough qualified U.S. workers to fill all open positions in many fields. See AILA Doc. 20120234, supra. By effectively foreclosing the H-1B visa as an option for entry-level workers who are not yet earning enormous salaries, the H-1B lottery rule will cause untold disruption and economic harm to U.S. employers who rely on H-1B talent. With some H-1B workers filling critical roles in healthcare and research to combat COVID-19, the potential for harm extends beyond the mere economic and could further delay the United States’ recovery from the pandemic. See AILA Doc. 20120234, supra. If talented H-1B workers go elsewhere for employment, the United States would also lose its ability to attract the “best and brightest” who have made contributions of untold significance to the United States. When the Immigration Act of 1990 revised the H-1B visa and set a 65,000 cap, the internet had not taken off. Since then there have been immense technological leaps, while the H-1B cap continues to remain at 65,000 with a paltry 20,000 added for those with master’s degrees in 2004. Still, it is H-1B visa holders who have contributed to advances in technology and who have ultimately become CEOs of companies like Google and Microsoft. The new H-1B lottery rule will kill the ability of attracting talented foreign nationals on H-1B visas who will ultimately greatly contribute to the US.

Finally, the fact that the H-1B visa is used by IT consulting companies should not be a justification to promulgate the new H-1B lottery rule. The use of IT consulting companies is widespread in America (and even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (AVWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors. IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. Even the Durbin-Grassley letter falsely accuses outsourcing companies for gaming the H-1B lottery system without taking into account the limited supply of H-1B visa numbers and the increased demand for skilled workers each year. However, it is this very business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” or “outsourcing company” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.

By continuing to limit and stifle the H-1B program, either through a new H-1B lottery rule or by perpetuating Proclamation 10052, U.S. employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at an IT consulting company, as they too wish to abide by the law and to pursue their dreams in America. The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly. H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it by making it harder to win the H-1B lottery.

The comment period closes on THIS WEDNESDAY March 10 at 11:59 pm ET. We would highly recommend that everyone submit their own comment supporting the delay of the rule and the need for further review of the rule, underscoring why a delay is necessary because implementation cannot be rushed through right before cap season, why the rule is unlawful, and why the economic data does not support the rule as written. You can submit your own comment here:

https://www.federalregister.gov/documents/2021/02/08/2021-02665/modification-of-registration-requirement-for-petitioners-seeking-to-file-cap-subject-h-1b-petitions#open-comment

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