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.

Cyrus Mehta

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

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By Cyrus D. Mehta

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

Section 5 of the BAHA EO stated:

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

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

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

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

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

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

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

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

 

 

 

Cyrus Mehta

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

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By Cyrus D. Mehta & Kaitlyn Box*

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

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

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

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

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

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

Below is a summary of the legislative proposals:

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

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

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

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

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

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

 

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

Cyrus Mehta

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

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By Cyrus D. Mehta & Kaitlyn Box* 

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

Reissuance of DOL Wage Rule

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Cyrus Mehta

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

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By Cyrus D. Mehta & Kaitlyn Box*

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

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

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

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

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

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

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

 

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

 

 

 

Cyrus Mehta

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

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

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

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

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

A new dawn for immigration in 2021

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

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

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

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

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