Cyrus Mehta

In Honor of Justice Ginsburg: Disfavoring Piepowder Courts Against Permanent Residents in Vartelas v. Holder

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Saddened by the death of Justice Ginsburg, I searched through the blogs I have written on her opinions in immigration cases. I was again reminded not only about her brilliance but how forcefully she advanced the rights of immigrants that was consistent with the Constitution and the Immigration and Nationality Act. I wrote Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder in 2012 with Gary Endelman when he was in private practice and is now an Immigration Judge.  Upon re-reading  the blog  after  the  announcement  of  her  death last evening, it deeply resonated in me as this blog was inspired by the same passion as Justice Ginsburg’s forceful opinion in Vartelas v. Holder upholding the rights of permanent residents (LPR) as they existed before the 1996 Act. An LPR who was convicted of a crime prior to 1996 should not be found inadmissible if the trip outside the US was brief, casual and innocent.  Piepowder, or dusty feet courts, as Justice Ginsburg quaintly observed in a footnote, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe while the merchants’ feet were still dusty.  Since  the law  post- 1996  could  not  be  applied  retroactively,  a CBP  officer  may not  set  up  a  “dusty  feet” court  at  the  airport  to  determine  whether a returning  LPR committed  crimes in the past and then find  him or her inadmissible.  Vartelas  v. Holder  partially  restored  the  rights  of  LPRs  only  for  crimes  convicted  prior  to  the  1996  law. In 2017, the Second Circuit in Centurion v. Sessions expanded the retroactive application of the pre-1996 entry doctrine to the commission of crimes even if the conviction of that crime occurred after after 1996.   The  project  remains  unfinished.  The pre-1996 entry  doctrine  must  be  restored  completely  so  that  LPRs , who have due process rights long recognized by the Supreme Court,  are  not  placed  in  jeopardy at the airport  for inadmissible crimes  committed  even after 1996  if  their  trip  abroad  was  brief,  casual  and  innocent. A future  Justice  in  the  same  mold  as  Justice  Ginsburg  will  need  to  write  the next decision.

Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder

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By Gary Endelman and Cyrus D. Mehta 

In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority,   made an interesting reference to piepowder courts. For an explanation of the potential significance of Vartelas v. Holder, we refer readers to our previous blog entitled Fleuti Lives! Restoration of A Constitutional Decision.

Piepowder, or dusty feet courts, as Justice Ginsburg’s decision explains in footnote 12, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe. These courts were set up to resolve disputes while the merchants’ feet were still dusty.

Justice Ginsburg made this reference to piepowder courts in the immigration context in our modern era, stating that an immigration official at the border would not set up a piepowder court to determine whether an LPR committed an offense identified in INA § 212(a)(2) to determine whether he or she was inadmissible. This is what Justice Ginsburg said: “Ordinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.”

The Supreme Court’s observation on quaint “dusty feet” courts, although charming, is also extremely significant. Most lawyers who do not practice immigration law, and of course everyone else, will be surprised to know that a non-citizen, including an LPR, can be found inadmissible under INA § 212(a)(2) for being convicted or who admits having committed certain crimes, such as crimes involving moral turpitude or controlled substance offenses.  Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible, he or she can be equally snared for having admitted to the commission of a crime. Clearly, with respect to an LPR travelling from abroad, Justice Ginsburg’s observation appears to restrict a CBP officer’s ability at an airport from trying to obtain a confession regarding the commission of a CIMT. A CBP official cannot set up a piepowder court at the airport, like the merchants of a bygone era, to try an LPR who has travelled through many time zones, and who instead of having dusty feet may have bleary eyes, for the purposes of bludgeoning him or her into an admission for having committed a crime.

Admittedly, the observation on piepowder courts was obiter dictum. It  was made in the context of whether INA § 101(a)(13)(C), enacted by the Illegal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows the government to charge a long term LPR as an arriving alien for having committed an offense under 212(a)(2), could be applied retroactively.  The Supreme Court in Vartelas v. Holder held that the  doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that an LPR who made a brief, casual and innocent trip abroad should  not be charged as an arriving alien,  still applies to LPRs with pre- IIRIRA criminal conduct. Noting that there was a presumption against retroactive legislation under Landgraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court  in Vartelas concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Court criticized the Second Circuit in the same case below, which did not find INA §101(a)(13)(C)(v) retroactive since it did not reference a conviction but only the commission of a crime, which if pleaded to prior to 1996 in reliance of more favorable treatment under pre-1996 law, would have been impermissibly retroactive as in INS v. St. Cyr, 533 U.S. 289 (2001). It was at this point that Justice Ginsburg said that “[t]he practical difference (between a conviction and commission of a crime), so far as retroactivity is concerned, escapes our grasp” and then made her observation that an immigration official would in any event need to determine under the clear and convincing standard at the border by checking the record of conviction, rather than convene a piepowder court, to determine whether the alien committed the crime.

It is also significant that Justice Ginsburg in her observation on piepowder courts affirmed that the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. This burden applies to all LPRs regardless of whether they have pre-1996 or post-1996 criminal convictions. Thus, under a Woodby analysis too, since the government bears a heavy burden of proof, it would be turning the tables on the LPR if the government tried to extract a confession regarding the commission of a crime and thus be able to escape from the heavy burden it bears under the “clear, unequivocal and convincing” standard. This can potentially happen with an LPR who may have had the charges dismissed or reduced, but a nasty CBP official still wants to know the real story via a hypothetical piepowder court at the airport. Indeed, the Board of Immigration Appeals held many years ago in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the Woodby standard, in the absence of other evidence, to establish deportability. The following extract from Matter of Guevara is worth noting:

The legal concept of a “burden of proof” requires that the party upon whom the burden rests carry such burden by presenting evidence. If the only evidence necessary to satisfy this burden were the silence of the other party, then for all practical purposes, the burden would actually fall upon the silent party from the outset. Under this standard, every deportation proceeding would begin with an adverse inference which the respondent be required to rebut. We cannot rewrite the Act to reflect such a shift in the burden of proof. [citing Woodby v. INS, supra; other citations omitted]

Of course, an LPR can still voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

Justice Ginsburg’s piepowder observation in Vartelas v. Holder, together with Matter of K and Matter of Guevara, provide more arsenal to an LPR who is charged as an arriving alien based on the commission rather than the conviction of a crime under INA § 212(a)(2). Beyond this, the disinclination to sanction ad hoc investigation through a “dusty feet” court conducted without legal sanction or moral restraint reflects a commendable preference for the stability of the written record as the framework for informed decision.

The conceptual framework that governs any discussion of retroactivity is the traditional two-step formula announced in Landgraf v. USI Film Products, supra. Since Congress did not expressly instruct on how far back IIRIRA could go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor “reasonably relied.” When in doubt, retroactivity is disfavored. The Supreme Court got it right. “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 US at 265.

Justice Ginsburg’s admonition reflects a profound appreciation of the due process rights that returning LPR’s have traditionally enjoyed.   While Woodby may not have been a constitutional decision, the warning against piepowder courts can only be understood in a constitutional context.  Remember the returning LPR seaman in Kwong Hai Chew v Colding, 349 US 590(1953) that authorities sought to exclude without a hearing; the Supreme Court reminded us that he deserved full constitutional rights to a fair hearing with all the due process protection that would have been his had he never left. Remember what Rosenberg v Fleuti, 374 US 449, 460(1963) taught us: “A resident alien who leaves this country is to be regarded as retaining certain basic rights.” Remember the ringing injunction of Shaughnessy v. US ex rel Mezei, 345 US 206, 213(1953): “A lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.”  In essence, behind Justice Ginsburg’s distaste for piepowder courts when applied to returning resident aliens, regardless of when their conviction or admission took place, is nothing less than the right “ to stay in this land of freedom.” Landon v. Plasencia, 459 US 21, 36 (1982) quoting Bridges v. Wixon, 306 US 135, 154 (1945).

The refusal to sanction IIRIRA retroactivity in Vartelas v. Holder provides the kind of predictability that LPRs need and deserve before they leave the USA and seek to return.  This, after all, is why retroactivity is disfavored .This is precisely why a piepowder court is not allowed; an LPR should know what this status means, what his or her rights are and should be able to leave the US with the confidence that an uneventful return is not only possible but entirely to be expected. In this sense, the refusal to embrace IIRIRA retroactivity and the caution against a piepowder court spring from the same place and say the same thing- predictability is at the very essence of a lawful society.  After all, to borrow Einstein’s happy phrase, God does not play dice with the universe.

(The views expressed by guest author, Gary Endelman, are his own and not of his firm, FosterQuan, LLP)

Cyrus Mehta

The Future of Work and Visa Rules in the Age of COVID-19

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Since COVID-19 afflicted the world, people have learned to work remotely from home and the office seems to be less relevant. Most white collared work can be carried out remotely through Zoom Video or Microsoft Teams. Jack Dorsey, the head of Twitter, said that the company’s employees can work from home “forever.” This view may not be shared by all. 85% of French office workers are back at their desks. Reed Hastings, the founder of Netflix, said that working from home is a pure negative. Facebook recently leased an iconic building in Manhattan in the hope that New York’s business will spring back to life.

While the debate on the relevancy of the office will continue even after the pandemic, US visa rules have not been able to cope with remote work. As a result,  they can be used against remote workers, especially by the Trump administration that has been hostile to  foreign workers as they have been perceived, albeit erroneously,  as a threat to the US labor market. This has been more so during COVID-19.

President Trump has imposed a broad work visa ban under Proclamation 10052.    In the State Department’s National Interest Exceptions to President Trump’s  work visa ban under Proclamation 10052, one of the exceptions for banned H-1B visa entrants is if the employer can demonstrate that it has a continuing need for their services.  Even if the employer can demonstrate a continuing need for a specialized H-1B worker, the State Department guidance goes on to state that “if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.”

The  Trump administration ought not be allowed to negate  immigration to the US under the assumption that work can be carried out remotely. It is for the employer in the US to decide whether the services of a skilled worker is needed in the US. Even if the office is being used less or none at all since the pandemic, this does not mean that there will be no need for an office,  and  workers may still need to congregate  occasionally so that they can collaborate, share ideas, mentor and train. Even if the work is completely remote during the COVID-19 period, it makes sense to have people work during the same time zone in the US.

Another conundrum arises when H-1B workers have been forced to work remotely from their home during the pandemic. The DOL rules technically consider the home to also constitute  a place of employment (as that is where the work is being actually being performed), and thus there is a need to post the Labor Condition Application in two conspicuous locations, which in the home would likely be on the refrigerator and bathroom mirror (see LCA Posting Requirements at Home During the COVID-19 Pandemic: Should I Post on the Refrigerator and Bathroom Mirror)  This  is silly as the whole purpose of the LCA is to inform US workers about the H-1B position. There are no US workers at the home of an H-1B worker. It makes no sense to force an H-1B worker to post an LCA in the home, which might trigger a time consuming and costly amendment of the H-1B petition. If the LCA is not posted, it could result in penalties for the employer and maintenance of status issues for the H-1B worker.

A final observation applies to people who are in the United States as visitors for pleasure and have not been able to leave due  to the pandemic. This visitor could have a normal 8 hour work day in the US over Zoom video on behalf of an employer who has no connection with the US.  The tourist visa does not allow any sort of work to be performed in the US.  If one who is on B-2 visitor visa works remotely in the US for a job based outside the US, could remote work while in B-2 status be used against an unwitting visitor to find that she violated her status.  It should clearly not as the visitor is not working for an employer in the US or is even being paid from a US source. Even prior  to remote work becoming fashionable,  a visitor for pleasure could have attended to work e mails relating to a job outside the US  and would not be considered to be violating status.  It is common for visitors to another country to keep in touch with their work even when they visit another country.  Even before the age of smart phones,  nothing prevented a tourist in the United States from jotting notes on a yellow pad in preparation for a business meeting that would take place in her home country after he returned.

While working during the pandemic seems to be changing the paradigm about how we think about work, it is hoped that visa rules will be applied in a commonsensical fashion. People should not be penalized for engaging in unauthorized work if their  work has  no connection to the US. The same should be true for a US worker who is stranded in another country and engages in full time remote work for the US employer. That country’s visa laws should not penalize this person.  Similarly, an H-1B worker forced to work at home should not be required to post an LCA on the refrigerator, and then penalized along with the employer, for failure to do so. Finally, even if remote work has become more prevalent, this does not in any way justify the barring of people to the US on legitimate visas under the assumption that the work can be performed remotely.

Cyrus Mehta

Gomez v. Trump: Welcome to the Brave New World of Made Up Law Under INA 212(f)

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Before President Trump, one could hardly imagine that an American president would use INA § 212(f) to rewrite immigration law in a manner he saw fit and with whatever prejudices might be harboring in his mind. While INA § 212(f) does give extraordinary power to a president, Trump has exploited these powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate

President Trump, in addition to various travel bans, sought to bar various immigrants and nonimmigrants from entering the US through Proclamations 10014 and 10052 under the pretext that they pose a threat to the US labor market during COVID-19. Several plaintiffs challenged the proclamations through by seeking a preliminary injunction, which resulted in Gomez v. Trump in the District Court of the District of Columbia. Judge Amit Mehta, who wrote the decision, upheld the validity of the proclamations under INA 212(f), but still ordered the State Department to process the visas of Diversity (DV) lottery winners before the Congressionally mandated deadline of September 30, 2020. The judge said that the government had “unreasonably delayed processing” of their visas.  Others subject to the proclamation did not suffer the same irreparable harm as their visas could be processed even after September 30, but DV lottery winners needed to be issued by the hard deadline of September 30 deadline. Judge Mehta drew a distinction between processing of the visas of DV lottery winners, which were not affected by the proclamations, and their ultimate entry into the US, which would still be prohibited under them.

Trump’s proclamations will still bar immigrants and nonimmigrants from entering the US, including DV winners. The only saving grace is that DV lottery winners may some day hope to enter the US once the proclamations expire as their visas got processed before September 30. If Trump gets reelected, the ban may continue and DV winners, along with all the other immigrants and nonimmigrants, would likely still be barred from entering the US.

Apart from this narrow victory for DV winners, Judge Mehta’s decision was a disappointment.  Judge Mehta confirmed that  INA 212(f) exudes deference under Trump v. Hawaii. This was the decision of the Supreme Court that upheld what has come to be known as Trump’s Muslim ban since it fulfilled a campaign promise that he would ban Muslims if he became president. The watered down version of the proclamation that was upheld by the Supreme Court in Trump v. Hawaii banned nationals of Iran, Sudan, Somalia, Libya, Yemen, Chad and Syria, along with Venezuela and North Korea. Although the Ninth Circuit in Doe v. Trump distinguished the president’s authority under 212(f) in domestic matters – as that involved a ban on  immigrants who were unable to obtain specific health insurance – Judge Mehta gave short shrift to this distinction (see Trump is Not King, Cannot Rewrite Public Charge Law through Executive Fiat).  Judge Mehta also did not discuss the other Ninth Circuit decision in East Bay Sanctuary Covenant v. Trump, where the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. In that case Trump through INA 212(f) prohibited asylum seekers from applying for asylum who crossed outside a designated port of entry even though INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of the manner of entry and even though it was not through a designated  port of arrival. According to Judge Mehta, the plain language of INA 212(f) simply speaks in terms of restricting entry of aliens “detrimental to the United States”; and this  detriment is not limited to any  sphere, foreign or domestic. Since COVID-19 has resulted in changed economic circumstances, a court is not well equipped to evaluate the policy choices of the administration to restrict the entry of certain classes of aliens, according to Judge Mehta. Even if President Trump based these restrictions on false pretenses, Judge Mehta held that the court’s role in evaluating even this is constrained under INA 212(f). “Congress possesses ample powers to right that wrong. The scope of judicial review is circumscribed,” according to Judge Mehta.

Judge Mehta also disagreed that the proclamations overrode the INA, and the exceptions and waivers in the proclamations still allowed noncitizens to enter the US. Judge Mehta, unfortunately,  did not analyze that these exceptions, especially the State Department’s National Interest Exceptions,  imposed additional requirements that had no basis in the INA (see Trump’s Work Visa Ban Violates the Immigration and Nationality Act And So Do the Exceptions). Take, for example, the requirement that: “The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.” This additional wage requirement is entirely absent from the INA. Another example is a provision in the guidance which states that “L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.” The requirement that petitioners employ five or more U.S. workers also has no basis in the INA or in 8 Code of Federal Regulations. For L-1B applicants, the need to demonstrate significant and unique contributions to the petitioning company, that the specialized knowledge is specifically related to a critical infrastructure need and that the applicant has spent multiple years with the same company has no basis in the law or regulations. Under the existing INA and regulations, the L-1B applicant must demonstrate that he has had one year of qualifying experience in a managerial, executive or specialized knowledge capacity. Judge Mehta’s decision is devoid of any analysis on how these exceptions have no basis in the INA, and instead, he held that they did not  “expressly override” any “particular” provision of the INA and “[a]liens still may travel to the United States under the visa categories established by Congress. “

Welcome to the new world of INA 212(f) jurisprudence under which law can be simply be made up without going through the arduous process of proposing bills in Congress and having them voted in both the chambers. Indeed, this law can be invented through the stroke of a xenophobe’s pen. Arch xenophobe Stephen Miller has been the architect of Trump’s proclamations under 212(f). Either entire countries can be banned or entire visa categories pursuant to 212(f). The exceptions to these restrictions, based on national interest, can also be made up with no bearing on the actual visa category and subject to a consular officer’s caprice and whim.

If President Trump is reelected, one should expect that he will continue to wholesale rewrite the INA and restrict immigration.  If on the other hand Joe Biden is elected, the broad bans that Trump issued under 212(f) could be eliminated on January 21. In the meantime, even though Gomez v. Trump upheld Trump’s power to rewrite the law under 212(f), it remains to be seen how other courts will interpret 212(f) with respect to Proclamations 10014 and 10052. The hearing for the  preliminary injunction in NAM v. Trump is scheduled for a hearing on September 11 in the Norther District of California, which is in the Ninth Circuit where Doe v. Trump and East Bay Sanctuary Covenant v. Trump should still have sway. Let us hope that the court will rule differently in that case and the desired preliminary injunction will ensue.

 

 

Cyrus Mehta

The Impossible Feat of Determining Who is an “Illegal Alien” Under Trump’s Unconstitutional Census Executive Order

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In line with other xenophobic actions too numerous to keep tabs on, President Trump issued a Presidential Memorandum dated July 21, 2020 entitled “Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census.” From the title itself, it is readily obvious that the Trump administration does not intend to count undocumented or unauthorized immigrations in the 2020 census, which it pejoratively refers to as illegal aliens. Who is legal or illegal defies an easy definition. US immigration law is so paradoxical that even if one has been ordered removed, this individual may still be authorized to remain in the US and obtain work authorization.

Not only is this executive order unlawful and completely unconstitutional, but it boggles the mind regarding how the administration will ever be able to determine who is authorized or not in the US in order to be counted in the 2020 census.

It is vitally important to count population numbers to divide up seats in Congress among the states. Excluding undocumented immigrants will result in less seats in Congress for Democratic states. If unauthorized immigrants are left out of the apportionment count, according to the Pew Research Center, California, Florida and Texas are each likely to end up with one less House seat, while Alabama, Minnesota and Ohio are each likely to hold onto a seat they would have otherwise lost after the 2020 Census. Since the first Census of the United States in 1790, counts that include both citizens and noncitizens have been used to apportion seats in the House of Representatives, with states gaining or losing based on population change over the previous decade.

Lawsuits have been filed – here, here and here,  justifiably challenging the exclusion of unauthorized immigrants from the census counts on constitutional and other grounds. The Presidential Memorandum follows the Supreme Court’s decision in New York v. Department of Commerce , 588 U.S. ___ (2019) that held that the Trump’s administration’s prior reasoning to include the citizenship question in the Census was “contrived” and thus arbitrary and capricious under the Administrative Procedure Act (see Can the Arbitrary and Capricious Standard under the Administrative Procedure Act Save DACA). Hopefully, the courts will also smack down this Presidential Memorandum for its blatant disregard of the Constitution’s mandate under the Fourteenth Amendment to count all residents in a state.

Section 2 of the Presidential Memorandum excludes “aliens who are not in a lawful immigration status under the Immigration and Nationality Act.” But this too is broad and vague. One who is in the US in temporary B-2 visitor status for three months is in a lawful immigration status. On the other hand, a person who has resided in the US for a decade and whose  status  expired a long time ago could  be authorized to remain in the US upon filing an I-485 application to adjust status to permanent residence by virtue of a recent marriage to a US citizen. The Presidential Memorandum provides the following false rationale for excluding undocumented immigrants:

Excluding these illegal aliens from the apportionment base is more consonant with the principles of representative democracy underpinning our system of Government.  Affording congressional representation, and therefore formal political influence, to States on account of the presence within their borders of aliens who have not followed the steps to secure a lawful immigration status under our laws undermines those principles.  Many of these aliens entered the country illegally in the first place.  Increasing congressional representation based on the presence of aliens who are not in a lawful immigration status would also create perverse incentives encouraging violations of Federal law.  States adopting policies that encourage illegal aliens to enter this country and that hobble Federal efforts to enforce the immigration laws passed by the Congress should not be rewarded with greater representation in the House of Representatives.  Current estimates suggest that one State is home to more than 2.2 million illegal aliens, constituting more than 6 percent of the State’s entire population.  Including these illegal aliens in the population of the State for the purpose of apportionment could result in the allocation of two or three more congressional seats than would otherwise be allocated.

However, the rationale still does not explain whether one who entered without inspection, but is now authorized to remain in the US through the filing of an I-360 petition under the Violence against Women Act and a concurrent I-485 application will be included or not in the census. It does not appear that whoever drafted this document really had any idea about how “legal” or “illegal” is considered under the INA.

“Lawful immigration status” is specifically defined in the implementing regulations at 8 CFR 245.1(d)(1) rather than in  the Immigration and Nationality Act (INA) itself,  for purposes of determining who is eligible to adjust status under  INA 245(c)(2). It provides for the following categories of persons who are in “lawful immigration status”:

(i) In lawful permanent resident status;

(ii) An alien admitted to the United States in nonimmigrant status as defined in section 101(a)(15) of the Act, whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of this chapter;

(iii) In refugee status under section 207 of the Act, such status not having been revoked;

(iv) In asylee status under section 208 of the Act, such status not having been revoked;

(v) In parole status which has not expired, been revoked or terminated; or

(vi) Eligible for the benefits of Public Law 101-238 (the Immigration Nursing Relief Act of 1989) and files an application for adjustment of status on or before October 17, 1991.

It is unlikely, however, that this is what the drafters of the Presidential Memorandum within the Trump administration had in mind in deciding who is in lawful status and who isn’t. As already explained, there is a large universe of persons who are authorized to remain in the United States but who do not fall into any of the above categories pursuant to 8 CFR 245.1(d)(1). Perhaps, one is giving the Trump administration too much credit about thinking through this definition and the drafters just assumed, albeit erroneously, that there are discrete classes of those in lawful status and those who are not.  Immigration law is far more nuanced. One may not have been granted asylum, and thus qualify as an asylee under 8 CFR 245.1(d)(1)(iii), but an applicant for asylum is nevertheless authorized to remain in the US and can also obtain employment authorization after 365 days of filing the application. Similarly, one who files an I-485 application to adjust status is authorized to remain in the US even if the underlying nonimmigrant status has expired.

Any attempt to define who is unauthorized in order to exclude them in something as crucially vital as the decennial census count will get it wrong. Even Chief Justice Roberts got it wrong in Chamber of Commerce v. Whiting, 563 U.S. 582 (2011),  when he wrote for the majority that  an individual  who “had been ordered removed” would establish that individual’s lack of authorization to work. In that case, the Supreme Court upheld an Arizona state law suspending business licenses if businesses hired people without work authorization.  David Isaacson in his blog,  If Even the Chief Justice Can Misunderstand Immigration Law, How Can We Expect States to Enforce It Properly?   Removal Orders and Work Authorization,  cites many other instances when a person with a removal order is still entitled to work authorization. For example,  an asylum applicant who has been ordered removed but has filed a petition for review in circuit court can nevertheless apply for work authorization and is authorized to reside in the US during the pendency of the appeal.  8 C.F.R. § 274a.12(c)(18) also contemplates the issuance of work authorization to one who has been ordered removed if the person cannot be removed or where it is impractical to remove him or her.  A DACA recipient who may have been the subject of a removal order at some point is now authorized to reside in the US without fear of removal.

The sheer inability to define who is a so called “illegal alien” further opens up the Presidential Memorandum to challenge in the courts. Persons whom the government may arbitrarily decide are unauthorized may be left out of the count even if they have been in the US for years, paid taxes and been authorized to reside and work under the law. These persons have also been denied their basic humanity by not being treated as persons. This executive action will also deter noncitizens from completing the census as most – unless they are lawful permanent residents -will not know whether they are documented or not.  Four decades ago,  the Supreme Court reaffirmed that an undocumented individual living in the United States “is surely ‘a person’ in any ordinary sense of that term,” “[w]hatever his status under the immigration laws.” Plyler v. Doe, 457 U.S. 202, 210 (1982). It is axiomatic that undocumented individuals are human beings and President Trump cannot change this. Given the sheer impossibility of determining who is and who is not legal, President Trump must be compelled by a court to count all persons for the census regardless of their immigration status. This is also mandated by the Constitution.

Cyrus Mehta

Trump’s Work Visa Ban Violates the Immigration and Nationality Act and So Do the Exceptions

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By Cyrus D. Mehta and Kaitlyn Box*

Trump’s Proclamation 10052  has imposed a ban on foreign nationals seeking to enter the United States on H-1B, H-2B, L and J visas. Trump derived the authority to impose the ban from INA 212(f), which authorizes the President to suspend the entry into the United States of certain categories of individuals whenever he “finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States”. Trump has relied on this provision to issue numerous proclamations that practically rewrite the immigration laws of the United States.

Proclamation 10052 has been subject to a slew of lawsuits such as Gomez v. Trump, NAM v. Trump, and Panda v. Wolf. These lawsuits challenge Trump’s authority to use INA 212(f) to alter the immigration laws, particularly where the administration has attempted to rewrite broad provisions of the INA by proclamation. For our prior commentary on Proclamation 10052, please see The Real Threat  to the US Economy is Trump’s Proclamation, Not the Workers It Bans, https://blog.cyrusmehta.com/2020/06/therealthreattotheuseconomyistrumpsproclamation.html and Trump’s Visa Ban Causing Havoc to Families and Children, https://blog.cyrusmehta.com/2020/07/trumps-work-visa-ban-causing-havoc-to-families-including-children.html.

Perhaps as a way to moot out the lawsuits, the Department of State recently issued a list of circumstances under which waivers are likely to be issued for Presidential Proclamation 10052 restricting the entry of nonimmigrants.  The full list is at https://travel.state.gov/content/travel/en/News/visas-news/exceptions-to-p-p-10014-10052-suspending-entry-of-immigrants-non-immigrants-presenting-risk-to-us-labor-market-during-economic-recovery.html, and the most significant parts for H-1B and L-1 cases are reproduced below.

Those seeking to resume ongoing employment in the United States in the same position  with the same employer  and same H-1B or L-1  classification are most likely to benefit from the exceptions, assuming that they were not already exempted.

For H-1B applicants not seeking to resume on going employment in the same position and same employer, the most likely exceptions to apply are any two of number 1, 3, and 4 below.  That is, new H-1B petitions filed during or after July where the wage is 15% above the prevailing wage or the applicant has a doctorate or professional degree or many years of experience; or pre-July petitions where the wage is 15% above the prevailing wage and the applicant has a doctorate or professional degree or many years of experience.

  • For travel as a public health or healthcare professional, or researcher to alleviate the effects of the COVID-19 pandemic, or to conduct ongoing medical research in an area with a substantial public health benefit (e.g. cancer or communicable disease research). This includes those traveling to alleviate effects of the COVID-19 pandemic that may be a secondary effect of the pandemic (e.g., travel by a public health or healthcare professional, or researcher in an area of public health or healthcare that is not directly related to COVID-19, but which has been adversely impacted by the COVID-19 pandemic).
  • Travel supported by a request from a U.S. government agency or entity to meet critical U.S. foreign policy objectives or to satisfy treaty or contractual obligations. This would include individuals, identified by the Department of Defense or another U.S. government agency, performing research, providing IT support/services, or engaging other similar projects essential to a U.S. government agency.
  • Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification.  Forcing employers to replace employees in this situation may cause financial hardship.  Consular officers can refer to Part II, Question 2 of the approved Form I-129 to determine if the applicant is continuing in “previously approved employment without change with the same employer.”
  • Travel by technical specialists, senior level managers, and other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the United States.  Consular officers may determine that an H-1B applicant falls into this category when at least two of the following five indicators are present:
  1. The petitioning employer has a continued need for the services or labor to be performed by the H-1B nonimmigrant in the United States.  Labor Condition Applications (LCAs) approved by DOL during or after July 2020 are more likely to account for the effects of the COVID-19 pandemic on the U.S. labor market and the petitioner’s business; therefore, this indicator is only present for cases with an LCA approved during or after July 2020 as there is an indication that the petitioner still has a need for the H-1B worker.  For LCAs approved by DOL before July 2020, this indicator is only met if the consular officer is able to determine from the visa application the continuing need of petitioned workers with the U.S. employer.  Regardless of when the LCA was approved, if an applicant is currently performing or is able to perform the essential functions of the position for the prospective employer remotely from outside the United States, then this indicator is not present.
  2. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need.  Critical infrastructure sectors are chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  Employment in a critical infrastructure sector alone is not sufficient; the consular officers must establish that the applicant holds one of the two types of positions noted below:a.)    Senior level placement within the petitioning organization or job duties reflecting performance of functions that are both unique and vital to the management and success of the overall business enterprise; OR

    b.)    The applicant’s proposed job duties and specialized qualifications indicate the individual will provide significant and unique contributions to the petitioning company.

  3. The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.
  4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed.  For example, an H-1B applicant with a doctorate or professional degree, or many years of relevant work experience, may have such advanced expertise in the relevant occupation as to make it more likely that he or she will perform critically important work for the petitioning employer.
  5. Denial of the visa pursuant to P.P. 10052 will cause financial hardship to the U.S. employer.  The following examples, to be assessed based on information from the visa application, are illustrative of what may constitute a financial hardship for an employer if a visa is denied: the employer’s inability to meet financial or contractual obligations; the employer’s inability to continue its business; or a delay or other impediment to the employer’s ability to return to its pre-COVID-19 level of operations.

Essentially the same public-health, government-supported, and ongoing-employment exceptions (the first three unnumbered bullet points) are in place for L-1A and L-1B cases, but the other exceptions are a bit narrower for them.

For an L-1A, the additional exception is:

  • Travel by a senior level executive or manager filling a critical business need of an employer meeting a critical infrastructure need. Critical infrastructure sectors include chemical, communications, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, transportation, and water systems.  An L-1A applicant falls into this category when at least two of the following three indicators are present AND the L-1A applicant is not seeking to establish a new office in the United States:
  1. Will be a senior-level executive or manager;
  2. Has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship; or
  3. Will fill a critical business need for a company meeting a critical infrastructure need.

L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.

For L-1B cases, the additional exception is:

  • Travel as a technical expert or specialist meeting a critical infrastructure need.  The consular officer may determine that an L-1B applicant falls into this category if all three of the following indicators are present:
  1. The applicant’s proposed job duties and specialized knowledge indicate the individual will provide significant and unique contributions to the petitioning company;
  2. The applicant’s specialized knowledge is specifically related to a critical infrastructure need; AND
  3. The applicant has spent multiple years with the company overseas, indicating a substantial knowledge and expertise within the organization that can only be replicated by a new employee within the company following extensive training that would cause the employer financial hardship.

Although the State Department guidance offers welcome exceptions for some H-1B and L-1 visa holders (as well as H-2B and J visa holders) who are seeking to overcome the latest ban, the guidance suffers from the same problem as the original proclamation – it amounts to a rewrite of the INA in violation of the Administrative Procedure Act. Take, for example, the requirement that: “The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15 percent (see Part F, Questions 10 and 11 of the LCA) by at least 15 percent.  When an H-1B applicant will receive a wage that meaningfully exceeds the prevailing wage, it suggests that the employee fills an important business need where an American worker is not available.” This additional wage requirement is entirely absent from the INA.

Another example is a provision in the guidance which states that “L-1A applicants seeking to establish a new office in the United States likely do NOT fall into this category, unless two of the three criteria are met AND the new office will employ, directly or indirectly, five or more U.S. workers.” The requirement that petitioners employ five or more U.S. workers also has no basis in the INA or in 8 Code of Federal Regulations. For L-1B applicants, the need to demonstrate significant and unique contributions to the petitioning company, that the  specialized knowledge is specifically related to a critical infrastructure need and that the applicant has spent multiple years with the same company has no basis in the law or regulations. Under the existing INA and regulations, the L-1B applicant must demonstrate that he has had one year of qualifying experience in a managerial, executive or specialized knowledge capacity.

Despite the fact that Proclamation 10052 still places significant restrictions on the H-1B and L-1 visa categories, the new guidance may provide exceptions for several categories of individuals who would have been banned under the original proclamation. For example, the new guidance exempts many healthcare workers and medical researchers, not just those treating COVID-19 patients. Additionally, the exemptions might allow H-1B employees who were trapped outside the United States when the proclamation was issued to reenter. See Stuart Anderson, “New State Dept. H-1B Visa Guidance Won’t Stop Immigration Lawsuits”, Forbes (Aug. 13, 2020, 12:37 AM EDT), available at: https://www.forbes.com/sites/stuartanderson/2020/08/13/new-state-dept-h-1b-visa-guidance-wont-stop-immigration-lawsuits/#703a38fa4f47.

Even if an H-1B or L-1 visa holder is able to overcome the proclamation through a national interest exception, however, that individual could still be unable to reenter the United States if she had recently been present in one of the countries included in the proclamations banning travelers coming from certain countries due to COVID-19, such as Brazil or the Schengen Area. The new guidance does not include any exceptions to the proclamations banning travelers from Brazil and the Schengen Area, so employees prevented from entering the United States under these proclamations would likely need a separate exception. It is hoped that the State Department apply the same national interest exception under all the proclamations that a traveler has been subjected to during Covid-19.

The new Department of State guidance is the latest example of the Trump administration attempting to rewrite the immigration laws in circumvention of the APA. The original proclamation is a rewrite of the law and so is the latest guidance that requires an applicant to qualify under the national interest exception.  So long at this policy continues, lawsuits challenging Trump’s authority to rewrite the INA in this way will likely be a key tool in ensuring the protection of visa holders and their U.S. employers.

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

(The authors thank David Isaacson for his input and assistance)

David Isaacson

Implementation of Safe Third Country Agreement Held to Violate Canadian Charter of Rights and Freedoms—So Why Will Prior U.S. Asylum Claimants Be Denied a Hearing at the Refugee Protection Division in Canada Even After This Takes Effect?

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In Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2020 FC 770 (July 22, 2020), the Federal Court of Canada recently ruled that the statute and regulations implementing the Safe Third Country Agreement (STCA) between Canada and the United States regarding the processing of asylum and refugee claims were of no force or effect because they violated section 7 of the Canadian Charter of Rights and Freedoms.  This is good news for those in the United States who may want to claim refugee status at a Canadian land port of entry in the future, which the STCA ordinarily prohibits, but it is not as good as it may seem at first glance.  The ruling was suspended for six months, so the STCA rules remain in effect at least until January 22 (possibly longer if the suspension is extended pending appeal).  The ruling also does not affect a different restriction on making refugee claims in Canada if one has previously applied for asylum in the U.S. or certain other countries, section 101(1)(c.1) of the Immigration and Refugee Protection Act (IRPA), which was recently upheld against a Charter challenge.  As I will explain, however, the reasoning in Canadian Council for Refugees severely undermines the policy basis for section 101(1)(c.1), suggesting that it should be repealed even if it is not void as violative of the Charter.

The STCA, which I have discussed in prior posts, ordinarily precludes asylum-seekers who are present in one of the United States or Canada from making a claim for asylum or refugee status at a land border port of entry of the other country.  Some claimants with qualifying family members may still make refugee claims at a Canadian port of entry, as may unaccompanied minors and a few other categories of people.  (The STCA does not apply to those who enter between ports of entry, although such entries in order to apply for refugee status are currently forbidden during the COVID-19 pandemic by an Order in Council under the Quarantine Act.)  In general, however, one who comes to a Canadian land port of entry to make a refugee claim, and is not exempt from the STCA, will be sent back to the United States.

Upon being sent back to the United States, however, such claimants are often detained under unacceptably harsh conditions, just like other asylum claimants at a U.S. port of entry.  As the Court in Canadian Council for Refugees explained of one such claimant returned to the United States, who was an applicant in the case and had provided an affidavit:

Ms. Mustefa, upon being found ineligible . . . was returned to the US by CBSA officers and immediately taken into custody by US authorities.  She was detained at the Clinton Correctional Facility for one month and held in solitary confinement for one week.  She was released on bond on May 9, 2017.

[96]  Ms. Mustfa’s imprisonment evidence is compelling.  In her Affidavit she explains not knowing how long she would be detained or how long she would be kept in solitary confinement.  She describes her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.”  Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons.  Ms. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds.  Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside people who had criminal convictions.  She explains the facility as “freezing cold” and states that they were not allowed to use blankets during the day.  Ms. Mustefa states that she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released, if at all.”

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 95-96.  There were also similar, although anonymized, affidavits provided by other rejected asylum claimants, further confirmed by “affidavit evidence of lawyers who provide assistance to those detained.”  Id. at ¶ 98.

Because this deprivation of liberty and the hardship resulting from detention result when refugee applicants covered by the STCA are returned to the United States under the implementing statute and regulations and are handed over to U.S. officials by Canadian officials, they were held to engage Section 7 of the Charter, which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  They were also found not to be justified under Section 1 of the Charter, which provides that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Court therefore held that the STCA implementing provisions, “s. 101(1)(e) of the IRPA and s. 159.3 of the Regulations are of no force or effect pursuant to section 52 of the Constitution Act, 1982, because they violate s. 7 of the Charter.”  Canadian Council for Refugees, 2020 FC 770 at ¶ 162.  This holding was not made immediately effective, however.  Rather, the Court stated in the conclusion of its opinion that “To allow time for Parliament to respond, I am suspending this declaration of invalidity for a period of 6 months from the date of this decision.”  Id. at ¶ 163.

Even if the declaration of invalidity takes effect, however, this unfortunately will not mean that all those coming to Canada from the United States to seek protection will be entitled to the full refugee status determination process.  Under section 101(1)(c.1) of IRPA, enacted just last year,

A claim is ineligible to be referred to the Refugee Protection Division if

. . . .

the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;

IRPA s. 101(1)(c.1).  There are several countries with which Canada has such information-sharing agreements, including the United Kingdom, Australia, and New Zealand as well as the United States, but the creation of IRPA section 101(1)(c.1) appears to have been primarily targeted at people who had previously made asylum claims in the United States.

As I discussed in a previous blog post, the measure that became IRPA section 101(1)(c.1) was based on the incorrect premise (publicly stated by a spokesman for the then-Immigration Minister) that the U.S. and Canadian asylum systems were “similar enough” that an application rejected by the U.S. would likely be rejected by Canada as well.  Claimants covered by section 101(1)(c.1) will, under IRPA section 113.01, have access to a somewhat enhanced version of a Pre-Removal Risk Assessment (PRRA) that comes with a right to an oral hearing, but the PRRA process is a poor substitute for a full Refugee Protection Division hearing and traditionally has a lower approval rate.

Unfortunately, in a decision the day after the Canadian Council for Refugees ruling that received less publicity, a judge of the Federal Court upheld IRPA section 101(1)(c.1) against a Charter challenge.  In Seklani v. Canada (Public Safety and Emergency Preparedness), 2020 FC 778 (July 23, 2020), the Court held that section 101(1)(c.1) did not violate Section 7 of the Charter, because Section 7 was only engaged at the point of actual removal and a possible application to defer this removal, not an earlier stage when access to Refugee Protection Division proceedings was being determined.   Those subject to section 101(1)(c.1) would not be immediately removed to the United States, or anywhere else, when their claims were found ineligible to be referred to the Refugee Protection Division.  Rather, they would still have access to the PRRA process before removal (although the applicant in Seklani did not immediately have such access because his home country of Libya was subject to an Administrative Deferral of Removals and so he was not subject to imminent removal in any event), would still be able to seek a deferral of removal from the Canada Border Services Agency (CBSA), and would be able to seek judicial review and a stay of removal in connection with a denial of the PRRA or the deferral of removal.  Their Section 7 rights were thus found not to be engaged by the ineligibility determination.

Whether or not the holding in Seklani that section 101(1)(c.1) does not violate the Charter is correct, the judgment regarding the STCA in Canadian Council for Refugees further supports the argument that section 101(1)(c.1) is bad policy and should be repealed.  The U.S. policy regarding detention of asylum-seekers at the border that underlay the judgment in Canadian Council for Refugees is itself a substantial distinction between the U.S. asylum system and the Canadian refugee system—one that further undercuts the suggestion in support of section 101(1)(c.1) that the two systems are the same and failure in the U.S. asylum system would likely portend failure in the Canadian refugee system.

If an asylum applicant is detained upon reaching the United States in the way that Ms. Mustefa was, and in the way that many other asylum applicants are when they seek to enter the United States, this can significantly impact their chances of success on their asylum claim.  It is more difficult to find counsel, gather evidence, or contact potential witnesses when one is in detention. It is not even merely an issue of a one-month detention such as Ms. Mustefa experienced, although that is bad enough; being released from detention has become sufficiently difficult that it has inspired a number of class-action lawsuits, such as Damus v. McAleenan, which addressed the extremely low rates of parole from custody by several ICE field offices around the United States, and Velesaca v. Wolf, which addressed the near-universal denial of release on bond by the ICE New York City Field Office.

The Canadian Council for Refugees judgment itself recognized the difficulties in pursuing an asylum claim that are caused by detention, in the course of finding an increased risk of return to harm for one of the applicants that implicated the Section 7 interest in security of the person.  As the Court explained:

In the case of ABC, I am satisfied that the evidence supports a finding that the risk of refoulement for her is real and not speculative had she been detained in the US.  I find this based upon the evidence documenting the challenges in advancing an asylum claims for those detained.  There is evidence of the barriers in accessing legal advice and acquiring the necessary documents to establish an asylum claim in the US.

[107]  Professor Hughes describes the difficulties faced by those who are detained including: detainees not being able to afford phone calls, people from outside the detention facility not being able to contact detainees because they cannot call them, evidence being lost due to transfers between detention centres, and detainees not having access to translators they may need to fill in the necessary forms.

[108]  Mr. Witmer, a lawyer working with detainees, describes issues with “basic communication” as an impediment to the making of an asylum case.  He notes that detainees are unable to leave messages with a call back number.  He also notes that while many detainees are accustomed to communicating with family using email, social media and internet-based communication apps, they do not have access to these services in detention.

[109]  Further, lawyer Timothy Warden-Hertz estimates that, at the detention centres his organization services, the Northwest Detention Center (NWDC), 80-85% of those detained do not have a lawyer and must represent themselves.  He estimates that 75% of asylum claims from the NWDC are denied as compared to the national average of 52% of claims being denied.

Canadian Council for Refugees, 2020 FC 770 at ¶¶ 106-109.

Those who make refugee claims under Canadian law at a port of entry (if exempt from the STCA) or otherwise, in contrast, are not generally automatically detained as in the United States.  They may obtain counsel, communicate with friends and relatives to gather evidence, and prepare for their hearings without being hindered in these efforts by incarceration.

In this regard, as in the other respects discussed in my previous post, U.S. asylum proceedings are simply not “similar enough” to Canadian refugee proceedings.  Accordingly, it is inappropriate to presume, as IRPA section 101(1)(c.1) does, that those whose U.S. asylum claims are denied, would have little chance of succeeding in Canadian refugee claims.  Section 101(1)(c.1) should be repealed, and those whose claims were denied under the inappropriately detention-intensive U.S. asylum system should be given a full opportunity to pursue their refugee claims in Canada.

Cyrus Mehta

Extending Visitor Visa Status During Covid-19 and after the Birth Tourism Rule

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Visitors who have been admitted in B-2 visa status may extend their status while in the United States. Even if a visitor has a multiple entry visa in the passport for a duration of ten years, the visitor is admitted into the US for a more limited time at a port of entry, which is generally a period of six months in B-2 status.

Since the COVID-19 pandemic, many visitors have sought to extend their status as flights are not yet plying to their home country or they may wish to avoid flying out of fear of contracting the infection. Some countries have put restrictions on travelers from the US. A request to extend B-2 status may be made by filing Form I-539 pursuant to 8 CFR 214.1(c)(1) either electronically or through a paper-based application. Although this blog’s focus is on filing an extension for B-2 status, it is also possible to change from another nonimmigrant status to B-2 status pursuant to 8 CFR 248.1. Many nonimmigrants in H-1B or L status who have lost their jobs due to the economic downturn caused by Covid-19 have had to resort to changing to B-2 status due to non-availability of flights to their home country. Note that one who was admitted under the Visa Waiver as a visitor for 90 days is not eligible for filing for an extension of status, although a Visa Waiver entrant may apply for a 30 day extension directly wither with USCIS or CBP called Satisfactory Departure.

In order to be eligible to request an extension of B-2 status or a change to B-2 status, it is important for the applicant to have maintained her current nonimmigrant status. If the visitor has engaged in unauthorized employment, he will be ineligible to request an extension of status. Although the extension or change of status request must be filed timely, the USCIS has authority to exercise its discretion in excusing an untimely filing based on extraordinary circumstances beyond the control of the applicant. The applicant must also demonstrate that she has not otherwise violated nonimmigrant status, continues to remain a bona fide nonimmigrant and is not the subject of removal proceedings. The USCIS has indicated that it will consider late filings caused as a result of Covid-19. See 8 CFR 214.1(c)(4) for authority for excusing untimely filings for extensions of status and 8 CFR 248(b) for excusing untimely filings for change of status.

There are very harsh consequences if the applicant overstays the terms of his stay in the US. Overstaying one’s visa results in the automatic voidance of the multiple entry visa on the passport under INA 222(g). Overstaying beyond the expiration of the nonimmigrant status, governed by the I-94, for more than 180 days results in a 3-year bar against re-entry under INA 212(a)(9)(B)(i)(I). Furthermore, overstaying the visa for more than one-year results in a 10-year bar against re-entry under INA 212(a)(9)(B)(i)(II). Therefore, ensuring that the I-539 is timely submitted (of if not timely submitted, it is at least excused by USCIS) will toll the accrual of unlawful presence, and thus avoid the triggering of automatic voidance of the visa stamp or the accrual of unlawful presence that will result in the 3- or 10-year bars to reentry into the United States.

At the time of submission, Form I-539 must be accompanied by evidence that the reason for the extension is consistent with the purpose of the visitor visa, and the visitor continues to maintain a residence in the home country as well as ties with that country. It is also strongly recommended that a sworn statement is included that clearly indicates the need for the extension and the change of intention since the initial admission to stay longer, along with an I-94 printout and other evidence of financial sufficiency and support. A Form I-134, Affidavit of Support, may also be submitted to bolster the evidence of financial support. The new public charge rule took effect on February 24, 2020 and applies to extension and change of status requests. The USCIS will consider whether an applicant seeking an extension of stay or change of status has received, since obtaining the nonimmigrant status she seeks to extend or from which he or she seeks to change, public benefits for more than 12 months, in total, within any 36-month period, such that, for instance, the receipt of two benefits in one month counts as two months.  Among the prohibited benefits is federally funded Medicaid, although Medicaid funding for an emergency medical condition will not be considered, which includes emergency labor and delivery. Noncitizens regardless of status are eligible to receive Medicaid for an emergency medical condition. See 42 CFR 440.255A. Form I-539 has new sections that require applicants to check off whether they have accepted prohibited benefits.

Notwithstanding the Medicaid exception for emergency medical conditions, including pregnancy and birth, applicants have to be very careful regarding applying for extensions based on health reasons, especially relating to pregnancy and birth. The Trump administration has amended the definition of visitor for pleasure at 22 CFR 41.31(b)(2) to prohibit so called birth tourism. The original version of this rule, before it was amended on January 24, 2020, defined “pleasure” as stated in INA 101(a)(15(B) “to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature.” Now 22 CFR 41.31(b)(2)(i) includes the old definition for pleasure but adds that the term “pleasure” does not include obtaining a visa for the primary purpose of obtaining US citizenship for a child by giving birth in the United States. The new rule at 22 CFR 41.31(b)(2) is reproduced in verbatim below:

(i) The term pleasure, as used in INA 101(a)(15)(B) for the purpose of visa issuance, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature, and does not include obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.

(ii) Any visa applicant who seeks medical treatment in the United States under this provision shall be denied a visa under INA section 214(b) if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, that a medical practitioner or facility in the United States has agreed to provide treatment, and that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant also shall be denied a visa under INA section 214(b) if unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.

iii) Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.

President Trump has always intended to abolish birthright citizenship even though it is protected under the Fourteenth Amendment of the US Constitution. Knowing fully well that the abolition of birthright citizenship would require a constitutional amendment, the Trump administration quietly amended the State Department regulation as a step towards discouraging pregnant women from entering the US to give birth to children who then automatically become US citizens. While birthright citizenship has advantages, and abolishing it will be a bureaucratic nightmare as it may be applied retroactively (see Why Birthright Citizenship is so Wonderful for America), visa applicants now have to confront needless scrutiny while applying for a tourist visa. A pregnant person may be denied a visa even if the primary goal is not to give birth to a child in the US for the purpose of conferring US citizenship. The applicant may wish to seek the best medical care for a potentially complicated pregnancy, or may be more comfortable with a doctor and hospital facility in the US than in her own country. An applicant may be travelling purely for business or a holiday and intending to return to her home country to give birth, and could still be denied the visa. Even if the applicant wishes to seek a visa for pursuing medical treatment, even if it is not associated with pregnancy and birth, the rule now requires a demonstration that the applicant will be able to pay for the costs of the medical treatment, and has the ability to pay for them through lawful sources.

Although 22 CFR 41.31(b)(2) applies to a visa issuance at a US Consulate, the USCIS would also likely refer to it when applying for an extension of status even though an applicant previously was issued the B-2 visa at the US consulate. The USCIS routinely issues a Request for Evidence (RFE) asking for further evidence of ties with the home country and financial sufficiency after a request for an extension if filed. An extension request based on medical reasons will result in more scrutiny as a result of 22 CFR 41.31(b)(2). This author has seen RFEs asking for a detailed letter from the applicant’s physician regarding the medical condition, the prescribed treatment and its duration, the physician’s opinion on the applicant’s ability to travel, and the availability of similar treatment in the applicant’s home country. The RFE may also ask for the stated reason for the trip when applying for the B-2 visa at the US Consulate. If the applicant was already suffering from symptoms of the medical condition, the RFE may question whether this was disclosed to the Consular Officer, and if not, an explanation for why the applicant did not disclose the possibility of her seeking treatment in the US. The RFE may also demand extensive proof of financial ability of the applicant to pay the medical bills. Finally, the RFE will also ask for proof of foreign residence when the applicant departs the US.

The timely filing of the I-539 application tolls the accrual of unlawful presence for purposes of the 3- and 10-year bars to reentry into the US if the applicant stays beyond the expiration of the validity date on the I-94. If the I-539 remains pending beyond the requested date, as the request can be made for up to 6 months, another I-539 application must be filed before the date the first extension if granted would have expired even if there has been no decision on the first I-539. The applicant may, however, depart the US during the pendency of the I-539 application. If the application is denied, there is no right of appeal, although the applicant may request a motion to reopen or reconsider. Requesting a reopening or reconsideration will not toll unlawful presence for purposes of the 3- and 10-year bars. If the extension is granted, it is imperative that the applicant depart the US timely prior to the expiration of the extended date. While there is no limit in seeking additional extensions, the USCIS will take issue with immigrant intent.

Finally, even if all goes well and the applicant timely departs the US, the Consular Officer could still question why the applicant sought an extension at the time of next applying for a renewal of the B-2 visa at the US Consulate. Given all the risks and pitfalls, one should avoid seeking an extension or change of status to B-2 unless it is truly necessary and made in good faith.

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

 

 

 

 

 

 

Cyrus Mehta

The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans

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By Cyrus D. Mehta and Kaitlyn Box*

President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications and limits highly skilled workers and several nonimmigrant visa categories. The proclamation is effective as of June 24, 2020 and expires on December 31, 2020. The proclamation may be modified during this period as deemed necessary.

The Proclamation supposedly cites a desire to preserve jobs for American workers and high unemployment rates in the face of the COVID-19 pandemic as a rationale for suspending the entry of certain green card applicants and highly skilled workers. It states without any foundation “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work.  Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.  Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers”. In reality, however, both this Proclamation and the April Proclamation that it expands upon are part of a broader strategy by the Trump administration aimed at curtailing all immigration.

Foreign nationals who were outside the United States on the effective date of the proclamation (June 24, 2020), do not have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on that date, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa are barred. Additionally, accompanying or following to join dependents seeking to obtain H-4, L-2, or J-2 visas who were outside the U.S. on the effective date are also barred. However, if the principal H-1B, H-2B, J-1, or L-1 beneficiary is already in the United States, or otherwise exempt (see below), it is unclear at this time whether this bar will apply to dependents who will subsequently apply for H-4, L-2, or J-2 visas at the U.S. Consulate.

The Proclamation does not apply to: anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State. CBP headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the proclamation.

The Proclamation also seems to leave open the door for other measures aimed at restricting the entry of certain categories of immigrants, or even taking action against individuals who have already been admitted. Section 5(b) of the Proclamation states that: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1))”.  INA 212(a)(5) renders a foreign national who seeks to enter the United States to perform skilled or unskilled labor is inadmissible unless it has determined that there are not a sufficient number of US workers who are qualified for the same job and the employment of such foreign nationals will not affect the wages and working conditions of US workers. Most foreign nationals have already received labor certifications after their employers unsuccessfully conducted a recruitment of U.S. workers in the labor market.   Though this provision does not have any present effect, it seems to enable the administration to take further actions to limit the number of immigrant visa workers in the United States. One could even imagine the provision being invoked to rescind some individuals’ approved labor certifications and I-140 visa petitions, should the administration decide to do so in the future. This would have a devastating impact on the hundreds of thousands of people born in India who have been waiting for green cards in the EB-2 and EB-3 backlogs. Of course, such an action would be challenged in court since INA 204(j) has specifically allowed adjustment of status applicants whose applications have been pending for more than 180 days to “port” to new employers and still keep intact their labor certifications and I-140 visa petitions. Thus, there are provisions in the INA that contemplate that once the labor market has been tested, the test need not be repeated over and over again, even if the foreign national’s green card has been delayed due to  EB-2 and EB-3 backlogs.

Another insidious provision in the Proclamation, section 4(c)(ii), directs the DHS consistent with applicable law to “prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States.” While there are existing provisions in the INA that deem foreign nationals inadmissible for all of the above reasons, one who has been charged or arrested of a criminal offense should not be deprived of eligibility to work in the United States if the charges were dismissed or proved baseless, and the foreign national did not admit to the essential elements of a crime that would render him/her inadmissible.

The Proclamation stands to have a devastating impact on individuals in a variety of scenarios.  Due to numerous travel restrictions that have been put in place as a result of COVID-19, many individuals may have left the United States with a valid visa that has expired while that have been trapped outside the country. Under the new Proclamation, these individuals would not be able to reenter the United States. Family members of a principal visa holder are likely to be similarly impacted. One such situation arises when a principal visa holder was in the United States on the effective date of the Proclamation, but has dependent family members who are currently outside the U.S. without a valid visa. Because individuals who were inside the United States on June 24th, 2020 are exempt from the proclamation, David Isaacson is of the opinion that  family members of an individual who is in the United States are not “accompanying or following to join” an individual whose entry is suspended. Thus, spouses and children of an individual who is exempt from the Proclamation should arguably be able to reenter the United States, but one does not have any faith whether Trump’s State Department will agree with this perfectly reasonable interpretation. Indeed, although the proclamation clearly states that it will not apply to one who was present in the United States on June 24, 2020, the State Department seems to be indicating on Twitter that if such a person leaves, a visa will not be issued during the validity of the proclamation. This seems to be inconsistent with a plain reading of Section 3(i) that states that the proclamation will apply to an individual who “is outside the United States on the effective date of this proclamation.”

The situation is more complicated when reversed, however, with a principal visa holder, for example an H-1B, abroad and his/her H-4 spouse is in the United States. It is unclear how the Proclamation would apply to the H-4 spouse in this situation. Even if the H-4 spouse currently is in valid status, they would only be able to remain in the United States for a limited period of time before being deemed to be in violation of their status. The USCIS allows dependents of nonimmigrant visa holders to remain in the United States while the principal is temporarily outside the country. At the same time, USCIS prevent the “parking” of dependents in the United States for extended periods of time if the principal nonimmigrant worker only comes for occasional work visits.    Thus, if the H-1B is stranded abroad for several months until the end of the ban, which could potentially be extended beyond the end of 2020 depending on who wins in the presidential election this November, the H-4 spouse may no longer be considered to be in valid status. If the principal H-1B spouse’s job has been terminated, this would imperil the status of the H-4 spouse and children even sooner.

As with the April Proclamation, Trump relied on section 212(f) of the Immigration and Nationality Act (INA) to ban nonimmigrant workers. Although Trump also derived authority from 212(f) to issue the travel bans, the third iteration of which was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamations from the travel bans (see Building the Case to Challenge Trump’s Immigration Bans). The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice (see also  Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans. In its recent decision on DACA, the Supreme Court held that the administration has to factor in reliance interests before rescinding a benefit under the APA). This most recent Proclamation represents another attempt by the administration to draw artificial distinctions between certain categories of immigrants. The J visa category, for example, is impacted only “to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program”. Other categories of J visas were exempted from the proclamation, including the student and alien physician categories. The Proclamation also excludes other categories of nonimmigrant visas, including treaty trader (E-1) and investor (E-2) categories, entirely. Lawsuits are bound to be filed not just by H-1B visa holders separated from their families, as they would be the most sympathetic plaintiffs, but also by large multinational corporations whose highly placed executive who would otherwise be able to enter on the L-1A visa has been banned.

In conclusion, this proclamation disproportionately impacts Indians the most as they are the largest users of the H-1B visa. It is no coincidence that in 2016 Steve Bannon, who was then a strategist  to Trump and chairman of Brietbart News expressed concern that too many  CEOs of successful Silicon Valley tech companies were immigrants from Asia. Many of them came to the United on an H-1B, which has been targeted by this proclamation. This sort of hostility against immigrants has been expressed frequently by Trump and his senior advisor Stephen Miller. Brietbart News, from which Miller and other xenophobes in the Trump administration draw inspiration, has consistently railed against Indian immigrants and H-1B visa holders.  The proclamation will not protect American jobs by cruelly separating the H-1B worker from the H-4 spouse and children, many of them who have been in the US for many years waiting for their green cards in the EB-2 and EB-3 backlogs. Nor will this proclamation bring back American jobs when it bans a specialized knowledge intracompany transferee on an L-1 visa who had in depth knowledge of a company’s products and can help it to grow in the United States, which in turn would create more jobs.   While the proclamation flunks the economic test, for the xenophobe it is a dream come true as it incorporates an exhaustive wish list for restricting immigration under the cover of the pandemic that would otherwise have been impossible to pass through Congress.

*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

Ethics for Immigration Lawyers During COVID-19

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Based on my video presentation at a  Practising Law Institute One Hour Briefing  entitled Ethics and Immigration: Spotlight on Select Rules and Client Representation during Covid-19, I drew up some frequently answered questions (FAQs) that might be helpful to  immigration lawyers. Immigration lawyers have adapted to work remotely from home during the Covid-19 pandemic, which may require the lawyer to pay attention to ethical issues. Even if many parts of the country are reopening, remote work is likely to continue into the foreseeable future.

Remote work does raise potential conundrums for immigration lawyers as some of the work might still need to be performed at the office. Although USCIS has relaxed some deadlines, voluminous paper based filings may still be required to be printed from commercial copying machines at a lawyer’s office to be filed by a deadline to preserve status. Mail from immigration agencies is being sent to the office too. Filing fees are mostly drawn on checks and attached to the petition or application. What are the ethical implications for immigration lawyers in this new era?

My PowerPoint puts a spotlight on select ethical issues and citations to the relevant ethical rules,  https://blog.cyrusmehta.com/andromeda/wp-content/uploads/2020/06/05-19-20_1500_124921_Mehta-003v1.pptx. The PLI program, which got excellent reviews,  is available on demand and there will be no charge for registration if done before June 30, 2020.

1. Are lawyers bound by ethical rules even during disasters?

Ethical rules are in full effect and have not been relaxed or suspended for lawyers. For a useful overview, see Michigan Bar Ethics Guidance during Covid-19, https://www.michbar.org/opinions/ethics/COVID-19 . Lawyers have been through other disasters such as 9/11, Hurricane Katrina, Hurricane Sandy  and are essential during crises to help clients with their changing legal needs. As part of competent representation under ABA Model Rule 1.1, lawyers must stay abreast of all changes in immigration policy relating to Covid-19 that may impact their clients. Lawyers must still provide diligent representation under ABA Model Rule 1.3 notwithstanding the hardships and challenges they might face. Under ABA Model Rule 1.4, the lawyer must also communicate with the client even if both lawyer and client are remote, and must keep the client reasonably informed about the status of the matter.

Lawyers are also required to have disaster preparedness plans. See ABA Formal Ethics Opinion 482, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_482.pdf

2. How are immigration lawyers working remotely during Covid-19?

Immigration lawyers have learned how to work from home since the Covid-19 crisis. Many forms, supporting letters and briefs can be prepared remotely. Some work performed by administrative staff may still have to be performed at the office, such collecting mail and printing and dispatching voluminous submissions. Client communications can mostly take place over video or the telephone.  Staff meetings and supervision can also take place remotely. USCIS has allowed for scanned signatures so long as the wet signature exists and can be produced when required.

3. What is the USCIS Wet Signature Policy?

The USCIS has announced that for forms requiring an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the national emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

It is advisable for lawyers to instruct their clients to preserve the wet signature, or alternatively, to send the form containing the wet signature to their offices even after the application has been submitted.

Further details of the USCIS signature policy are available at https://www.uscis.gov/news/alerts/uscis-announces-flexibility-submitting-required-signatures-during-covid-19-national-emergency

 

4. Are there any confidentiality concerns while working from home during Covid-19?

ABA Model Rule 1.6 provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted under one of the exceptions under 1.6(b). For recent guidance regarding working from home, see Pennsylvania Bar Association Formal Op. 2020-300, https://www.technethics.com/pennsylvania-bar-association-formal-opinion-2020-300-ethical-obligations-for-lawyers-working-remotely

The lawyer must be vigilant regarding protecting client confidentiality when working from home. Here are some pointers:

  • Ensure that client communications remain private – especially when family members are around or when Amazon’s Alexa may listen in!
  • Client related work paper product should be shredded rather than placed in the recycling basket with newspapers.
  • Use Virtual Private networks rather than Free Wi-Fi.
  • Use strong passwords and 2 factor authentication.
  • Ensure that Zoom Video Conferences are secure.

 

5. What are some of the ethical considerations regarding supervision of non-lawyers?

 

Under New York Rule 5.3:

  • A law firm shall ensure that the work of nonlawyers who work for the firm is adequately supervised, as appropriate. A lawyer with direct supervisory authority over a nonlawyer shall adequately supervise the work of the nonlawyer, as appropriate. In either case, the degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter and the likelihood that ethical problems might arise in the course of working on the matter.

Non-lawyers who print out and dispatch submissions at the office must be carefully supervised, whether onsite or remote,  as documents and exhibits can get left out or not be collated in the intended format. Printers can stop printing during the middle of big print jobs. Moreover, mail from USCIS and other agencies must be carefully reviewed and accounted for, and deadlines recorded.

 

6. What if I missed a deadline to file an extension of status for a client for a Covid-19 related reason?

UCIS has indicated that it will excuse untimely filings for extension of status pursuant to 8 CFR 214.1(c)(4)  and  change of status pursuant to  8 CFR 248.1(c) for Covid-19 related reasons.

In order to successfully invoke USCIS’s discretion to excuse a late filing, one must demonstrate that the delay was due to extraordinary circumstances beyond the control of the client and the delay was commensurate to the circumstances.  If the attorney or the client got corona virus, or had to quarantine because they were in close contact with someone who contracted the virus, this could potentially constitute an extraordinary circumstance for failing to file timely. A lawyer’s inability to file timely due to a shutdown order that prevented him or her from accessing files or the mail may also constitute an extraordinary circumstance.

8 CFR 214.1(c)(4) is reproduced below:

Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant;

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

 

7. What sort of conflicts of interests should I be concerned about between clients when the salary is reduced and working conditions change?

Immigration practice often involves representing two or more clients such as the employer and employee. If the employer wishes to reduce the salary of an H-1B worker, care should be taken that the employer is still complying with H-1B rules regarding meeting the required wage, and that the advice given to the employer will not adversely impact the employee client, unless both clients give informed consent. For example, if the employer wishes to reduce the wage below the prevailing wage, the position may have to become a part time position. The employer will have to obtain a new Labor Condition Application reflecting the part time wage and hours, and then the employer must file an amended H-1B petition. Since the H-1B worker will be adversely impact as a result of a reduced wage, the lawyer who represents the employer and H-1B worker must get the informed consent of both clients before undertaking the amendment from full time to part time employment.

For further scenarios regarding changes in working conditions, see https://blog.cyrusmehta.com/2020/03/faq-on-changes-in-salary-and-other-working-conditions-for-h-1b-workers-during-the-covid-19-crisis.html

 

8. What if I fall sick or die upon contracting the corona virus?

If the lawyer is part of a firm with other lawyers, it would be less problematic for other lawyers in the firm to take care of the lawyer’s matters. If the lawyer is a sole practitioner, Comment 5 to ABA Model Rule 1.3, Duty of Diligence, requires the lawyer to prepare a plan that would designate another competent lawyer to review client files, notify each client of the lawyer’s  death or disability, and determine whether there is a need for immediate protection action.

 

 

 

 

Cyrus Mehta

Using a Sledgehammer to Crack a Nut: Trump Proclamation Bans Chinese Students and Researchers Linked to China’s “Military-Civil Fusion Strategy”

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President Trump has issued a proclamation limiting Chinese students wishing to study in the United States to undergraduates under certain conditions, and limiting Chinese researchers. The proclamation states that the People’s Republic of China (PRC) uses some Chinese students, mostly post-graduate students and post-doctoral researchers, to operate as “non-traditional collectors of intellectual property” in the United States. President Trump said that he therefore has determined that the entry of certain PRC nationals seeking to enter the United States “pursuant to an F or J visa to study or conduct research in the United States would be detrimental to the interests of the United States.”

The proclamation specifically bans nonimmigrants who enter on an F or J visa “to study or conduct research in the United States, except for a student seeking to pursue undergraduate study, and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or has been employed by, studied at, or conducted research at or on behalf of, an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy”.  The proclamation defines the term “military-civil fusion strategy” as actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.

President Trump has again relied on INA 212(f) to issue this ban on Chinese nationals who enter the US on an F or J visa who are associated with the vague Chinese “military-civil fusion strategy.” This is another case of Trump using 212(f) to rewrite immigration law. Given the vagueness of linking students to China’s military-civil fusion strategy, it would empower consular officers, and even CBP officials, to deny a visa or admission to just about any graduate student or researcher from China as the proclamation does not set any parameters. Trump’s proclamation will unfortunately also result in needless stereotyping. Just as so many people were branded as communists during the “red scare” under the McCarthy era, graduate students from China will also be associated with China’s military-civil fusion strategy. Although the ban is thought to impact 3,000 out of 360,000 Chinese students, many more can be impacted for mere suspicion of being linked to Chinese military-civil fusion strategy.

While there is evidence that the Chinese military has sponsored military scientists to study abroad described as a process of picking flowers in foreign lands to make honey in China, the overall benefits that Chinese graduate students and researchers bring to US universities far outweigh the supposed perils of benefiting China’s military progress. American universities will get adversely impacted if they cannot attract students from China in their graduate and doctoral programs who pay the full freight in tuition fees. When Chinese researchers study in the US and write research papers, they adopt the US model and their papers are peer reviewed before being selected for publication in English that can be accessed by anyone, and not just by the Chinese military. Moreover, 90% of Chinese students are still in the US a decade since they came.

Moreover, there are enough provisions in the INA that would allow a consular officer to deny a visa. In addition to denying an F-1 visa under the usual INA 214(b) for demonstrating immigrant intent, an applicant for a student or research visa can also be denied for security grounds under INA 212(a)(3). Thus, Trump’s latest Chinese ban is akin to using a sledgehammer to crack a nut. It also bypasses Congress authority to amend the INA. In fact, there is a proposed bill sponsored by Senators Cotton and Blackburn that would be even more sweeping by prohibiting t0 Chinese nationals from receiving visas to the United States for graduate or post-graduate studies in STEM fields. The fact that it will be unlikely for these Senators to pass such a draconian bill through both houses of Congress does not justify Trump’s proclamation that rewrites the INA.

The proclamation also contemplates revoking the visas of affected Chinese students and researchers who are already in the US. Under other circumstances, when a nonimmigrant’s visa is revoked while in the US, they can continue to maintain status, but will need to obtain a new visa upon departing the US. Chinese students subject to the ban will likely not be able to apply for new F-1 or J-1 visa unless they qualify for one of the limited exceptions.

Finally, the proclamation leaves open the possibility of further restrictions as it also calls for agency review of “nonimmigrant and immigrant programs” and recommendations for “any other measures requiring Presidential action that would mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”