Cyrus Mehta

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

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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 14th. 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.

Cyrus Mehta

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

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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.

 

Cyrus Mehta

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

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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.

Cyrus Mehta

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

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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.

 

David Isaacson

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

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“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.

Cyrus Mehta

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

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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.

 

 

Cyrus Mehta

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

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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.

Cyrus Mehta

Overcoming a COVID Travel Ban Through the National Interest Exception

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By Cyrus D. Mehta & Kaitlyn Box*

Although the Trump era has ended, some of its draconian immigration policies continue to linger, including the COVID travel bans. On January 25, 2021, President Biden issued Presidential Proclamation 10143, entitled “Proclamation on the Suspension of Entry as Immigrants and Non-Immigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus Disease”, which effectively extends many of the Trump administration’s COVID bans. Proclamation 10143 suspends the entry into the United States of noncitizens who were physically present in the Schengen Area, the United Kingdom, Ireland, Brazil, or South Africa within the 14 days preceding their attempted entry into the United States. As with the Trump-era COVID bans, Proclamation 10143 outlines several categories of individuals who are exempt from the ban, including certain relatives of U.S. citizens and LPRs, diplomats, members of the Armed Forces, and those working to treat or contain COVID-19. Importantly, “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” is also exempt from the ban.

The DOS further clarified this exception, issuing guidance which stated that “certain business travelers, investors, treaty traders, academics, students, and journalists may qualify for national interest exceptions under the Presidential Proclamation (PP) covering travelers from the Schengen Area, United Kingdom, and Ireland”. F-1 and M-1 students who have valid visas may enter the United States without a national interest exception (NIE) waiver, while business travelers, investors, academics, J-1 students, journalists, and treaty traders must seek an NIE before traveling, whether they currently hold a valid visa or are seeking one. H-2A and certain H-2B travelers who have been present in South Africa may qualify for an NIE “if they are providing temporary labor or services essential to the United States food supply chain.”

Despite the exceptions, Proclamation 10143 still has enormous potential to snare unwary travelers. One might assume that a noncitizen flying back to the United States from a country not enumerated in the Proclamation would be exempt from the ban. However, if individuals have a layover, however brief, in a Schengen country’s airport in Frankfurt or Paris,  they become subject to the ban. Ideally, travelers want to ensure that they are not passing through the countries listed in the ban at all. Once this complication arises, though, the noncitizen can travel to a second country that is not subject to the ban and spend at least 14 days there before attempting to reenter the United States. Someone who lives in a country subject to the Proclamation, though, this might not be possible. It could cause an individual living in Brazil, for example, undue hardship to have to spend 14 days in a second country before coming to the United States. During the pandemic, each country has imposed its own travel restrictions and it may not be easy to hop from one country to another before entering the U.S.

The other way that a noncitizen subject to the ban may reenter the United States is by obtaining a national interest exception waiver. To do so, one needs to contact the relevant consulate, usually by email, to request a waiver. The email must state the noncitizen’s biographical details, contact information, and proposed itinerary. A copy of the noncitizen’s passport biographical page and visa page should be attached. Most importantly, an NIE request must outline the justification for the waiver. It may be especially helpful to demonstrate that the noncitizen is working in a significant role in critical infrastructure. One may reference the CISA guidelines for a list of essential infrastructure, which includes healthcare, education, transportation, financial services, and communications and IT, to highlight only a few industries. The consulate may approve or deny the waiver straight way, or may request that additional information be provided.

In some instances, an NIE waiver request may also be made to CBP rather than a consulate. CBP at JFK airport, for example, requires that a noncitizen first request a waiver through DOS. If 14 days have passed without a response from DOS, CBP will entertain the waiver request. The noncitizen may be required to demonstrate proof that they have attempted to follow up with DOS beyond the initial waiver request. CBP at JFK will also take NIE waiver request in emergency or humanitarian cases. Other ports of entry may have similar policies. For a list of the policies of other ports of entry on regarding the NIE, see Practice Alert: National Interest Exemption (NIE) and Satisfactory Departure (SD) Procedure Spreadsheet for Requests at CBP Ports and Preclearance Locations Due to COVID-19, AILA InfoNet at Doc. No. 20032043 (July 22, 2020).

The COVID bans are not the only Trump era immigration policies that remain in effect. Although Biden recently rescinded Proclamation 10014, which suspended certain green card applications, and restricted some nonimmigrant visa categories, Proclamation 10052 is very much alive. Proclamation 10052, an extension of Proclamation 10014, 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, H-2B visa, L visa or certain categories of the J visa. We have discussed both Proclamation 10014 and Proclamation 10052 in our previous blogs. Proclamation 10052 was extended to March 31, 2021 at the end of the Trump administration, and will continue to impose hardship and separate families until that date if it is not rescinded by the Biden administration. Notably, a noncitizen who has been in one of the countries listed in Proclamation 10143 without a visa since June 24, 2020 would be subject to both Proclamations. Proclamation 10052 also exempts “any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees”, but the national interest exceptions for H-1Bs and Ls in Proclamation 10052 have different standards from the NIE in the COVID ban.

As detailed in a prior blog, it is reiterated that there are better ways to curb the spread of COVID-19 than imposing travel bans. Given the number of exceptions to these bans, it is questionable how effective they could be at controlling COVID-19, since an exempt traveler is just as likely to have contracted COVID as a noncitizen who is covered by the Proclamation. Currently the United States requires travelers to provide a recent negative COVID test before entering. Even if a negative COVID test is not considered a sufficient safeguard against the spread of COVID-19, however, other measures could be imposed, such as requiring travelers to quarantine for a few days before entering the United States. As the vaccine becomes more readily available, noncitizens who provide proof of vaccination should also be able to freely enter the United States.

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

 

Cora-Ann Pestaina

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

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

Change in Work Location

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

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

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

Furloughs

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

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

Reduction in the Number of Hours Worked

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

Salary Reduction

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

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

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

Cyrus Mehta

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

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

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

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

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

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

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

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

Is There a Better Way?

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

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

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