Cyrus Mehta

Proposal for the Biden Administration: Using the Dual Date Visa Bulletin to Allow the Maximum Number of Adjustment of Status Filings

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

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

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

The January 1, 2015 DFF in the November 2020 Visa Bulletin continue to remain at January 1, 2015 date for the India EB-3, thus enabling many more in the backlogs to file I-485 applications and take advantage of job portability. While the advance to January 1, 2015 was a positive development, there is a legal basis to advance the DFF even further, perhaps to as close as current. The Biden administration should seriously consider this proposal.

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

 

Protecting the Age of Child Under the Filing Date

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the FAD protects the age of the child under the Child Status Protection Act (CSPA). Using the DFF to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the final date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the final date becomes available while the child’s application gets denied.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: “If an applicant files based on the filing date chart prior to the date of visa availability according to the final date chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the final date chart. Applicants who file based on the filing date chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the final dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

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

References

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

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

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

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

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

 

Cyrus Mehta

What If the Job Has Changed Since the Labor Certification Application Was Approved Many Years Ago?

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Foreign national workers who have been waiting in the employment-based second and third preference green card backlogs for many years have fortuitously become eligible to file I-485 adjustment of status applications due to the advancement of filing dates in the October 2020 Visa Bulletin.

Many of the labor certifications were filed between 2009 and 2014. A labor certification filed on behalf of a software engineer years ago may have been required to use very different technologies from today. Even the SOC Code 15-1031 for Software Engineer is now defunct and cross walks to SOC Code 15-1132 for Software Developer, Applications. In addition, the wage being paid is probably higher than what was indicated on the labor certification and the title may have changed to Vice President of Software Engineering or Director of Software Projects. While it is good news for the foreign national and the US employer when a skilled foreign national worker advances up the ladder, the employment-based immigration system requires that the duties still comply with what was indicated in the fossilized labor certification many years ago.

It is truly unfortunate that there has never been an expansion in the visa numbers in the employment based green card categories since the Immigration Act of 1990. Due to the per country limits within each employment preference, beneficiaries of approved labor certifications and I-140 petitions born in India are destined to wait in backlogs that can stretch over decades. The wait for the green card stalls careers and precludes job mobility.  It is thus fortunate that the India EB-3 Dates of Filing in the October 2020 Visa Bulletin advanced to January 1, 2015 allowing tens of thousands of beneficiaries of approved I-140 petitions to become eligible to file I-485 adjustment of status applications.

Many are now finding that their job descriptions have changed since the approval of the labor certification and they have also been promoted a few times over. While section 204(j) of the Immigration and Nationality Act (INA) allows the worker to exercise job portability to a same or similar occupation if the I-485 application has been pending for 180 days or more, such job mobility is not available at the time of filing the I-485. Whether the I-485 is being filed with either a concurrent I-140 petition, which may be a downgrade EB-3 petition, or by itself based on an old approved I-140 petition that is now current, it must be supported by a job offer from the employer that is substantially similar to the job described in the labor certification.

If the job has drastically changed, then the employer may need to file a new labor certification describing the new position, and if approved, a new I-140 petition that recaptures the old priority date. Alternatively, the employer may still offer the position in accordance with the terms of the approved labor certification. But the old job may have become obsolete due to a rapid advance in technology and it would also be unfair to expect the foreign worker to regress to the old job after a natural career progression. Yesterday’s programmer may have today become a machine learning engineer. Or the automotive engineer involved with the internal combustion engine is now a high voltage battery test engineer.   There is little USCIS guidance on dealing with career progression after a labor certification has been approved although it has been established USCIS  policy  that any material changes in the terms and conditions of employment requires an amended petition.  Unfortunately, a future visa bulletin may no longer have current filing dates by the time a new labor certification is granted, and there is a risk that in the current economic downturn, the new labor certification may not even get approved.

On the other hand, if the job role remains the same and requires the same skills set, but only the technologies have changed, it is still possible to rely on the previously approved labor certification. In the case of the software engineer, if the duties still include involvement in all phases of the life cycle development process, but the technology has changed and the position has more responsibility than before, it may be possible to describe the new position as being similar to the old position, but that the beneficiary is using updated technologies of those listed in the labor certification. An increase in the salary would not be of concern if it is generally for the same job described in the labor certification. Even a change in the job title should not be considered material so long as the position remains in the same SOC occupational code.

A recent AILA practice advisory suggests that when a promotion results in a substantial change “e.g., when a Software Engineer is promoted to Director of Engineering or a Biostatistician becomes a Manager, Machine Learning,” then a new labor certification and consequently a new I-140 petition is required. An incremental promotion, on the other hand, which does not alter the basic position duties or qualifications in any significant way, may not require a new labor certification. The AILA practice advisory provides the example of a “Biostatistician I who becomes a Biostatistician III with a salary increase but no substantial changes to duties or responsibilities. In this scenario, an employer may file a new I-140 based on the original Labor Certification to either upgrade or downgrade the beneficiary’s classification depending on which visa category is current.”

It is indeed a sad state of affairs that the tyrannical priority dates in the employment green card system have not just held up lives and careers of skilled immigrants for so many years, but the long waits also have the potential to render the prized labor certification approved years ago obsolete. It is hoped that the USCIS adopts a more flexible approach and makes allowances for job promotions and changes, even if the change is substantial, and even if the change has been from analyst to manager,  so long as the foreign national worker’s job description uses the same baseline skills and education, and is within the same or related SOC occupational code. Those who have waited patiently for so many years and played by the rules ought to be rewarded with a green card based on an old labor certification even if the job has naturally and incrementally progressed over time.

 

 

 

 

Cyrus Mehta

Killing the H-1B Visa Also Kills the US Economy

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By Cyrus D. Mehta & Kaitlyn Box

Last week the Department of Labor (DOL) and the Department of Homeland Security (DHS) each issued new rules aimed at further attacking the H-1B visa program. The DOL rule, which was issued without affording the public an opportunity for notice and comment, significantly raises the minimum required wage that employers must pay to H-1B employees. The new rule could increase prevailing wages for some positions by as much as 40% or more.  The rule goes into effect immediately. The rule’s stated purpose is to ensure that U.S. workers are not forced out of their jobs by cheap foreign labor, but it advances no support for the outdated notion that H-1B workers are systematically underpaid. It was promulgated without any notice and comment as required under the Administrative Procedures Act. The DOL’s spurious justification for this unfair surprise was to prevent employers from rushing to filing Labor Condition Applications under the old wage rates that would have been valid for three years.

The rule, which was likely aimed at making H-1B employees too costly for U.S. employers to hire, poses several legal quandaries.  As pointed out by Stuart Anderson in a Forbes article, U.S. employers, for example, could be forced to pay H-1B employees significantly higher wages than their American counterparts, causing them to run afoul of equal pay laws that require employees who are in a protected class, including nationality, to be paid wages that are equivalent to those earned by employees who are not members of the protected class. Take, for example, New York’s New York State’s Pay Equity Law, which prohibits employers from paying an employee who is a member of one of the protected classes less than a worker without protected status for equal or substantially similar work. N.Y. Labor Law art. 6, § 194 (1) (2019). “Protected Class” is defined to include gender, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim.

By promulgating this latest rule, the DOL could also be forcing employers to violate its own rules regarding the payment of wages to H-1B workers. Under 20 CFR § 656.731(a), employers must pay H-1B workers the higher of the prevailing or the actual wage. The actual wage is the wage paid to all other individuals with similar experience and qualifications for the specific employment in question. An employer could be forced to pay new hires significantly higher wages than those paid to existing H-1B workers holding the same position, resulting in the existing employees being paid less than the actual wage in violation of 20 CFR § 656.731(a). Employers could raise wages across the board to avoid this situation, but increasing wages substantially and with little warning is unlikely to be feasible for most, and could ultimately result in layoffs and damage to the U.S. economy.

The DHS rule, which goes into effect on December 7, 2020, makes it more difficult yet for U.S. employers to win H-1B approvals by imposing language requiring a direct relationship between the specialized degree and the occupation. Under the new rule, a position does not qualify as a “specialty occupation” unless:

“(1) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into the particular occupation in which the beneficiary will be employed;

(2) A U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, is the minimum requirement for entry into parallel positions at similar organizations in the employer’s United States industry;

(3) The employer has an established practice of requiring a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent, for the position. The petitioner must also establish that the proffered position requires such a directly related specialty degree, or its equivalent, to perform its duties; or

(4) The specific duties of the proffered position are so specialized, complex, or unique that they can only be performed by an individual with a U.S. baccalaureate or higher degree in a directly related specific specialty, or its equivalent.”

(emphasis added)

Among the DHS rule’s most significant changes is the reduction of the H-1B visa validity period from the current three years to just one year when the H-1B worker will work at a third-party worksite. Additionally, the rule inserts the requirement that only positions requiring education or experience in a “directly related specific specialty” will qualify as specialty occupations, greatly limiting the number of individuals who can successfully qualify for an H-1B visa. Employees in IT-related fields, who often hold general degrees in engineering or computer science, are likely to have particular difficulty meeting this new requirement.

The rule also imposes burdens on employers who send H-1B workers to third-party worksites, apparently reviving some of the onerous requirements struck down in IT Serve Alliance v. Cissna. In assessing whether an employer-employee relationship exists, the new rule encourages closer scrutiny as to whether the requisite level of employee supervision exists when the employee is stationed at a third-party worksite. Additionally, employers who employ H-1B workers at third-party worksites must submit additional evidence such as “contracts, work orders, or other similar corroborating evidence showing that the beneficiary will perform services in a specialty occupation at the third-party worksite(s), and that the petitioner will have an employer-employee relationship with the beneficiary”.

These new rules pose the potential for serious harm to both H-1B workers and the U.S. companies who employ them. Employers must file an extension for an H-1B worker whose status is expiring, but if they are not able to pay the employee the new, artificially inflated wages imposed by the DOL rule, the request for an extension may not be filed. Limitations in OES data have resulted in wages for some positions being entirely unavailable. For example, no wage data has been listed for a Software Developer, Systems in San Francisco since the new rule was promulgated on October 8, 2020. The default wage for Software Developer, Systems is $208,000. Similarly, little wage data is listed for physicians so they too must be paid the $208,000 default wage. Employers are forced to either pay the default wage, an exorbitant salary for many positions, or wait until wage data is available, potentially risking an untimely filing of the employee’s H-1B extension. If an extension is not filed, the H-1B employee would then be forced to rapidly depart the United States in the midst of a pandemic. Employers, particularly those in IT-related fields who employ numerous H-1B workers, who are unable to pay the new, substantially higher wages could be forced to lay off workers, or move their operations overseas. Foreign students graduating from US schools will not be hired by US employers if the entry level wage is ridiculously high. This will result in foreign students paying tuition fees to universities in other countries if their career prospects in the US will be diminished by these rules.  Nonprofits and startups will also find it impossible to pay these artificially inflated wages, which have no bearing whatsoever on the prevailing market wage.

Although litigation may soon challenge the new rules, putting U.S. employers in this difficult position for the time being does not bode well for the American economy’s chances of recovering from the effects of COVID-19. Forcing U.S. companies to reduce their workforce or move overseas to keep costs down also threatens the employment prospects of American workers who look to these same companies for jobs – ironic, as this is the very group whose interests the new rules are aimed at protecting.  Aspiring immigrants desire to come to America to succeed, and this in turn also benefits the US economy as they innovate and start or lead great companies. This is America’s secret sauce.  Nobody is denying that some aspects of the H-1B visa program should not be reformed, such as providing more job mobility to H-1B workers and providing them with a faster path to the green card, but these two new rules poison the secret sauce that keeps America so successful.

 

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

Frequently Asked Questions on Filing a “Downgrade” EB-3 petition under the October 2020 Visa Bulletin

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The October 2020 Visa Bulletin significantly advanced the  Filing Date of the employment-based third preference (EB-3) for India to January 1, 2015. This would make many beneficiaries with approved I-140 petitions caught in the EB-3 backlog eligible to file I-485 adjustment of status applications. Even those with approved I-140 petitions under the employment-based second preference (EB-2) could potentially file a downgrade I-140 petition under EB-3 and concurrently file I-485 applications.   Following the posting of our blog last week, Downgrading from EB-2 to EB-3 Under the October 2020 Visa Bulletin, we have received many questions, which I address below:

 

1. I have an approved I-140 petition under EB-2 with a priority date of May 15, 2013. Am I able to file a downgrade I-140 under EB-3 along with a concurrent I-485 application for myself, spouse and minor child?

Since the Filing Date for EB-2 India is May 15, 2011 in the October 2020 Visa Bulletin, and the priority date on your I-140 petition is May 15, 2013, you cannot file an I-485 with your I-140 petition under EB-2. However, your employ will be able to file a new downgrade I-140 petition under EB-3 (as a petition approved under EB-2 should meet the lower threshold requirement of EB-3 and the EB-3 date is January 1, 2015), based upon which you will be able to file a concurrent I-485, and your spouse and child will also be able to file I-485  applications as derivatives with your I-485  application.

 

2. How will filing an I-485 application benefit me?

Filing an I-485 application under a Filing Date will not result in permanent residency or the green card. The Final Action Date in the Visa Bulletin needs to become current for you to be eligible to receive the green card. The Filing Date is a prediction of where the Final Action Date will be at the end of the fiscal year. As this is just an estimate, there is a possibility that if the advance in dates results in many I-485 filings, the Filing Date can also retrogress rather than move forward. While your I-485 is pending, you and your derivative family members will be eligible to apply for an employment authorization document and advance parole or travel permission. If the I-485 application is pending for 180 days, you will also be able to exercise job portability under INA 204(j) in a same or similar occupation either with the same or another employer.

 

3. Must I be in a nonimmigrant status in order to be eligible to file the I-485?    What if I am in violation of my H-1B status since my last entry because my employer terminated me during the Covid-19 economic downturn 120 days ago, but now wishes to hire me back?

Yes. You need to be in a lawful nonimmigrant status as a condition to filing an I-485 application, but with an exception. If your employer terminated you 120 days back, you have been out of status for 60 days (as you were entitled to a 60 day grace period upon termination). Fortunately, under INA 245(k), you may still be eligible to file an I-485 as 245(k) renders one ineligible to apply for adjustment of status who has failed to maintain status for more than 180 days from your last admission. Since you failed to maintain status for 60 days from your last admission, you will still be able to file an I-485 application if your employer files the downgrade I-140. 245(k) will also apply to your spouse and child if they too fell out of status for less than 180 days.

Upon filing the I-485, you can also apply for an Employment Authorization Document. Upon receiving the EAD, your employer will be able to employ you.

 

4. Assuming that I was in H-1B status at the time of filing the I-485 application, do I still need to remain in H-1B status after I file the I-485 application?

While it is always prudent to remain in H-1B status (as one who is maintaining status cannot be placed in removal proceedings), it is not required as being an I-485 applicant authorizes you to remain in the US. However, an I-485 applicant without the underlying H-1B status can theoretically be placed in removal proceedings, although as a practical matter this rarely happens.  For instance, if you wish to port to a new employer, and the new employer is not willing to file an H-1B extension, you can rely on the employment authorization document that was issued to you as a pending I-485 applicant. Likewise, you may also rely on the advance parole for purposes of travel, and this would even obviate the need for you to seek a new H-1B visa from the US Consulate during the Covid-19 period, which may only issue emergency visa appointments.

 

5. What if the Final Action Date on my prior EB-2 I-140 becomes current before the Final Action Date on my EB-3 becomes current?

The USCIS does have the ability to use the most appropriate I-140 – whether under EB-2 or EB-3 – when the visa becomes available for the appropriate preference category. If the USCIS does not do this on its own volition, you can write to the USCIS to request that the I-485 application be transferred from one basis to another, see https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-8 .  Alternatively, you can also try calling the USCIS Contact Center at i-800-375-5283 and request a transfer of the I-485 from one basis to another. There is no need to file a new I-485 based on the EB-2 I-140 if the EB-2 Final Action Date becomes current.

 

6. My son is 18, will his age be protected under the Child Status Protection Act if he turns 21 and our I-485 applications are still pending?

Under current USCIS policy, the Filing Date does not freeze the age of the child based on the Filing Date (see Recipe for Confusion: USCIS Says Only the Final Action Date in the Visa Bulletin Protects a Child’s Age under the Child Status Protection Act). So, if the Final Action Date does not become current before your child turns 21, your child will not be able to adjust to permanent residence with you.  Note, however, that under the CSPA, you can subtract the number of days the I-140 petition remained pending from the age of your child if he is over 21 at the time the Final Action Date becomes current.

The lack of CSPA protection based on a Filing Date is erroneous policy. My colleague Brent Renison has filed a lawsuit to force USCIS to accept the Filing Date for CSPA protection, and you can visit his website, http://www.entrylaw.com/backlogcspalawsuit, to join the lawsuit in case your child will be impacted by this policy.

 

7. Should I request premium processing on the downgrade I-140 petition?

The USCIS has specifically indicated that premium processing for an I-140 will be precluded if the original labor certification was filed with the previous I-140 under EB-2, although some have requested premium and USCIS accepted request. If a child is involved who may need CSPA protection, then requesting premium on the I-140 is not advisable as you will be able to subtract more time (as the I-140 petition will take longer to get approved) from the child’s age in case the child turns 21.

 

8. I have an approved EB-3 I-140 filed by a prior employer with a priority date of January 1, 2014. My new employer has just filed my labor certification and is hoping to capture the priority date of the prior I-140 after the labor certification gets approved. Can I use the prior I-140 to file an I-485 application?

The prior employer would have to offer the job to you on an I-485 Supplement J. It has to be a bona fide offer of employment based on the terms of the underlying labor certification of that I-140. If is not a bona fide offer of employment, it would certainly not be advisable to go ahead and file the I-485 application based on the previously approved I-140. Rather, it would be prudent to wait for the labor certification to get approved and recapture the old priority date when the current employer is able to file the I-140 petition. However, there is no way of knowing whether the Filing Date will continue to be current by the time the new labor certification is approved. Still, this would be the only approach if the prior employer’s offer of employment is not bonafide.

 

9. Can the EB-3 I-140 downgrade be denied?

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. However, one cannot foreclose the possibility of a USCIS examiner inventing erroneous reasons to deny an EB-3 I-140 based on the same labor certification that supported an I-140 under EB-2.

Still, an I-140 downgrade can be denied on legitimate legal grounds such as if the employer cannot demonstrate ability to pay the proffered wage to the beneficiary if the tax returns show losses, or if the USCIS revisits an issue that it did not pay attention to while adjudicating the prior I-140 petition such as whether the foreign degree was a single source degree.

 

10. If the EB-3 I-140 gets denied, will my previously I-140 EB-2 be safe?

If the grounds for denying the EB-3 were based on issues that were relevant to the approval of the EB-2, such as whether the beneficiary possesses a single source degree or whether the employer had the ability to pay the proffered wage at the time the labor certification was filed, then there is a risk that the I-140 under EB-2 can also get revoked.

 

Cyrus Mehta

Downgrading from EB-2 to EB-3 under the October 2020 Visa Bulletin

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2020, the Department of State released the October 2020 Visa Bulletin. Importantly, the Filing Date for an EB-3 from India has advanced to January 1, 2015 from February 1, 2010 in the September 2020 Visa Bulletin, while the Filing Date for an EB-1 from India advanced to September 1, 2020 from July 1, 2018.  By contrast the Filing Date for EB-2 India advanced to only May 15, 2011 from August 15, 2009.

Significantly, however, the USCIS issued guidance on the same day  that the Filing Date, rather than the Final Action Date, applies to employment-based I-485 adjustment of status applications. Historically, USCIS has been very reluctant to allow applicants to use the Filing Date, only doing so in very limited instances. The last time USCIS used the Filing Date for most visa categories was in March 2020. In 2019, USCIS used the Filing Date only four times – in January, October, November, and December. Otherwise, applicants must use the Final Action Date to determine when to submit their I-485. According to earlier guidance from USCIS, applicants may use the Filing Date to determine when to submit an I-485 when the USCIS determines that there are more immigrants visas available for the fiscal year than there are applicants. The Filing Date only allows the filing of an I-485 application when permitted by the USCIS. The Final Action Date determines when lawful permanent residence is issued.  USCIS’s decision to apply the Filing Date comes as a surprise under the October 2020 Visa Bulletin, albeit a pleasant one, given the agency’s previous unwillingness to allow applicants to use the Filing Date.

Since USCIS will accept I-485 filing, a new I-140 will need to be filed for an individual who, for example, wants to downgrade from EB-2 to EB-3. Since the EB-3 Filing Date has significantly overtaken the EB-2 Filing Date, a beneficiary of an approved EB-2 petition may want to re-file, or downgrade to EB-3.  If the beneficiary qualified under EB-2, the beneficiary should be able to qualify for EB-3, and the appropriate “professional”, or “skilled worker” will need to be checked on the form. The individual may still rely on an old labor certification when filing the I-140 under EB-3. The I-140 can be filed concurrently with the I-485, so the I-140 need not be approved at the time the I-485 is filed with USCIS.

There is nothing in the law or regulations precluding the existence of two I-140 petitions, one under EB-2, and the other under EB-3. Still, a beneficiary who wishes to downgrade from EB-2 to EB-3 must seek legal advice. Some may be of the view,  and they have some support in the Neufeld Memo of June 1, 2007 that the new “downgraded” I-140 under EB-3 should be checked as an amendment rather than as a separate petition. The Neufeld Memo suggests that a new I-140 petition filed after a previously approved I-140 was filed within 180 days of the grant of the labor certification should be filed as an amendment where a  new visa classification is being sought.  But doing that would nullify the earlier EB-2 petition, and this may not be so desirable in case the EB-2 dates overtake the EB-3 at some point in the future. If that were to happen, then a new amendment of the EB-3 would need to be filed for upgrading to EB-2  On the other hand, 8 CFR 204.5(e)(1), which was last amended in 2017,  contemplates the existence of multiple approved petitions on behalf of a single beneficiary even if filed by the same employer, and the beneficiary is entitled to capture the earliest priority date when a subsequently filed petition is approved. This regulation does not preclude the filing of an I-140 petition subsequent to the use of the labor certification through a previously approved labor certification  Therefore, the prevalent view is in favor of filing a standalone I-140 to downgrade to EB-3 is preferable to filing it as an amendment. See Multiple I-140s, Priority Date Retention, and the 2013 China EB-2/EB-3 Anomaly, AILA Liason (Dec. 16, 2013), available at: https://www.aila.org/infonet/uscis-multiple-i-140s-priority-date-retention. However, this is not to assume  that USCIS will not insist that the I-140 should have been checked off as an amendment and may deny the EB-3 petition.

Although an I-485 filed pursuant to a current Filing Date does not confer permanent residence, the  I-485 filing confers a number of significant benefits, such as allowing the applicant to “port” to a different job or employer in the same or similar occupational classification after 180 days pursuant to INA 204(j), obtain an Employment Authorization Document (EAD) that enables them to work in the United States, and request advance parole or travel permission. Note, however, that USCIS’ use of the Filing Date will not help those who are waiting for a visa interview abroad, although the National Visa Center (NVC) will initiate the case and obtain documents before the Final Action Date becomes current.

Other complications arise under the Child Status Protection Act (CSPA), which “freezes” the age of applicants under the age 21 who would otherwise age out before being approved for LPR status due to lengthy USCIS backlogs. USCIS has made clear that only Final Action Dates, and not Filing Dates may be used to freeze a child’s age. Thus, an applicant who files an I-485 based on a Filing Date should be aware that their child will no longer be protected if the child ages out before the Final Action Date becomes available. The child’s I-485 application will be denied, and she can even be put into removal proceedings if she has no nonimmigrant status. We discussed this predicament at greater length, and argued that there is a significant legal basis to use the Filing Date to protect the age of a child under the CSPA in an earlier blog.

Additionally, a small group of EB-2 beneficiaries from India who already have pending I-485 applications (as they filed I-485s in 2012 and then the EB-2 India dates retrogressed) may decide to “downgrade” to an EB-3 from an EB-2, given the more advanced Filing and Final Action Dates for an EB-3. Individuals who find themselves in this situation will need to file a new I-140, which may not protect a child from aging out under the CSPA. CSPA applies only the “applicable” petition, which most likely means the old EB-2 I-140 petition. Individuals who want to downgrade from EB-2 to EB-3 because of the more favorable dates should be aware that their children who were protected under the CSPA under a prior I-140 may not longer receive that protection when a new I-140 is filed if the child is now over 21 years old. Please refer to our earlier blog post for a more in-depth discussion of the CSPA.

EB-1 beneficiaries from India are also in luck, and so long as the EB-1 I-140 was filed on or before September 1, 2020, a concurrent I-485 may be filed. In this case too, legal advice should be taken since the I-485 with all its attendant benefits may not survive if the pending I-140 is denied.

While the movement in the Filing Dates will give relief to many, they are quixotic and ephemeral. The EB-3 India dates have overtaken the EB-2 dates. At one point, it was always assumed that EB-2 would be ahead of EB-3. But there might be a flipflop as more people are lured into filing under EB-3, and then both EB-2 and EB-3 will be hopelessly backlogged.  But those who managed to file I-485 applications will be permitted to apply for employment authorization and can port to new jobs in same or similar occupations. While the green card may still be far away, at least I-485 applicants will be better off than being on a 12th year H-1B extension as they will have more mobility and their spouses and children will also be able to work. Ideally, the immigration system ought to be reformed by eliminating per country limits, and better still, infusing the EB preferences with more visa numbers.  For that to happen, Congress has to aligned and in today’s polarized environment, this too seems unlikely to happen until at least after the elections.

(Kaitlyn Box graduated with a JD degree from Penn State Law School and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC)

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)