Cyrus Mehta

FAQ Relating to Skilled Workers in the Green Card Backlogs during COVID-19

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Skilled workers caught in the employment-based backlogs face great uncertainty during the COVID-19 crisis. They have to continue to work for employers who have sponsored them green cards while maintaining H-1B status. As explained in my previous FAQ relating to changes in working conditions for H-1B workers, the DOL rules do not provide much flexibility to employers who may be forced to cut wages or furlough employees in order to preserve jobs. If an H-1B worker’s position is terminated, he or she has a 60 day grace period to leave the US or to change to another status.  This FAQ focuses on immigration issues facing foreign nationals who are waiting for their green cards while in H-1B status, although some may also be in L-1 status. They are mainly born in India, and as a result of the “per country limits” in the employment-based first, second and third preferences, they have faced disproportionate waiting times (going into decades) when compared to those born in other countries. But for their country of birth, they would have been green card holders, or even US citizens, by now, and would not be facing peril during COVID-19 with respect to their immigration prospects.

1. My employer can no longer afford to employ staff and terminated me yesterday. I am in H-1B status and am also the beneficiary of an I-140 petition in the employment-based second preference. I was born in India and have a January 1, 2013 priority date. While I am in the 60 day grace period, can I request an employment authorization document (EAD) under “compelling circumstances?”

An Obama era regulation entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” was promulgated  to provide modest relief to high skilled workers born mainly in India and China who were caught in the crushing backlogs in the employment-based preferences.

One significant provision in this regulation provides an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

It appears from the discussion in the preamble to the regulation that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Notwithstanding the various examples of compelling circumstances provided in the preamble to the rule, the plain language at 8 CFR 204.5(p) (iii) simply states:

USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization

Anecdotal evidence suggests that USCIS has been very niggardly in issuing EADs under compelling circumstances since the promulgation of the rule in the fading days of Obama’s presidency in January 2017. Unemployment in itself may not be a basis as stated in the preamble, but one can try to argue compelling circumstances in the COVID-19 period more forcefully. When making a case for compelling circumstances, it should be argued, that the plain language of the regulation takes precedence over the preamble or the government’s subjective interpretation of the term. Until there are formal administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored by any credible and reasonable argument by the applicant. Still, one cannot bank on the USCIS issuing an EAD under compelling circumstances as a result of unemployment even during the COVID-19 period. Something more in addition to unemployment should be shown in order to make a convincing argument for compelling circumstances.

2. How long will I be able to stay in the US if I am given a work authorization under “compelling circumstances”, and how can I still get a green card?

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date under the I-140 petition is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the beneficiary could have another employer offer a position, and sponsor the beneficiary through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the beneficiary is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The beneficiary’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the beneficiary can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. The rule, unfortunately, does not provide for routine travel through advance parole while on a compelling circumstances EAD.

3. Will my spouse and teenage child be able to also get a compelling circumstances EAD?

Yes. Derivative family members can also apply for the EAD concurrently with the principal beneficiary of the I-140 petition, but they will only be issued the EAD after the principal family member is first granted the EAD. They too must be in nonimmigrant status at the time of filing the initial application.

4. I have a pending I-485 application, although the final action date in the State Department Visa Bulletin is not current this month. My employer can no longer afford to employ me and is in the process of shutting down the business.

If the Form I-485 application has been pending for 180 days or more, you can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak during the COVID-19 era.

 5. My employer cannot afford to employ me during the COVID-19 period and has terminated my employment in H-1B status, but still wants to continue to sponsor me for the green card hoping that the economic situation will change for the better by the time my priority date becomes current. I have not yet filed for adjustment of status.

Since the employment-based green card sponsorship is based on a prospective position, your employer can still continue with the I-140. If you leave for India within the 60 day grace period after cessation of employment and have not options to remain in H-1B status through another employer or change status, you can ultimately process the immigrant visa at a US consulate overseas upon your priority date becoming current. Given the current wait times in the employment-based first, second and third preferences for India, it may take many years, even decades, before you can get back to the US as a permanent resident. However, your employer will still be able to file an H-1B petition on your behalf in the future to bring you back before you obtain the green card. This H-1B petition will not be counted against the H-1B cap as you have been previously counted against the cap, and you will be entitled to three year extensions beyond the 6 year H-1B limitation.

6. Since there are no flights to India at this time, how can I depart the US within the 60 day grace period?

You could try requesting a change of status to B-2 visitor status before the end of the 60 day grace period by filing Form I-539, and asking for an additional six months in that status. Although you are the beneficiary of the an I-140 immigrant visa petition, which must be disclosed on Form I-539, the fact that you intend to ultimately apply for permanent residence should not conflict with your request for a change of status to B-2 if you can demonstrate your genuine inability to depart the US and that it will take a long time before you even become eligible for a green card. Furthermore, you can also argue that your intention is to apply for an immigrant visa at the US Consulate before you can come to the US as a permanent resident.

 7. I am in my sixth year of H-1B status with an approved I-140 petition. If the employer who filed the I-140 petition no longer wishes to employ me now or in the future, how can I still take advantage of this I-140 petition and get a green card through another employer?

If another employer files a new labor certification and I-140 petition on your behalf, the priority date of the original I-140 petition can still be retained even if the former employer withdraws the petition. Since you have already been counted under a prior H-1B cap, the new employer can file another H-1B petition so that you can reenter the US in H-1B status. You will be eligible for 3 year extensions beyond the six year limitation of the H-1B visa until your priority date becomes current.

8. Will President Trump’s latest green card ban impact me or my family?

President Trump’s Proclamation will ban people seeking immigrant visas at a US Consulate for 60 days from April 23, 2020. Therefore, it will not impact those who are already in the US and seeking permanent residence through adjustment of status. Even if you depart the US to process for an immigrant visa at a US Consulate, the ban will not apply to one who was in the US on the effective date of the Proclamation, which was April 23, 2020. The Proclamation will nevertheless ban derivative family members who are processing for immigrant visas at a US consulate even if the principal applicant adjusted status in the US unless they were in the US on April 23, 2020.

 

Cyrus Mehta

FAQ on Changes in Salary and Other Working Conditions for Nonimmigrant Workers in L-1, O, TN, E and F-1 Status Due to COVID-19

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In continuation of my Frequently Asked Questions (FAQ) relating to the COVID-19 crisis on immigration issues, I focus on other nonimmigrant visa categories besides the H-1B visa category. Changes in employment at the workplace, especially salary reductions, continue to abound especially for other nonimmigrant visa workers in L, E, O and TN status. There are also questions relating to students in F-1 status who are under Optional Practical Training.  Although a prior FAQ covered changes in salary and working conditions for H-1B workers, where the Department of Labor imposes rigid and inflexible rules, there may be more flexibility for other nonimmigrant visa categories that are not subject to DOL rules and the Labor Condition Application. Since there are plenty of grey areas with no definitive answers, my interpretations of these rules are based on my experience in advising employers and H-1B workers during past disasters and presently during the COVID-19 crisis.

1. Can the salary of an L-1 nonimmigrant worker be reduced as a result of the adverse economic impact caused by the COVID-19 crisis?

Since the L-1 visa is not governed by the same DOL rules as the H-1B visa category, it may be permissible to reduce the compensation of a nonimmigrant worker on an L-1A or L-1B visa. So long as the nonimmigrant is working in the appropriate L-1 capacity as either an executive or manager or in a specialized knowledge capacity, a reduction in salary ought not to be considered as a violation on the part of the employer or status violation for the nonimmigrant worker. There is a long line of administrative decisions holding that the employment of an L-1 worker is not necessarily determinative upon the amount or existence of a salary. A non-salaried chairman has been able to qualify for an L-1, see Matter of Tessel, Inc., 17 I&N Dec. 631 (AAC 1981), and the salary may even emanate from the foreign entity, see Matter of Pozzoli, 14 I&N Dec. 569. While there is a legal basis for an L-1 worker’s salary to be reduced, this does not mean that the government cannot later question whether the lower salary is commensurate to the executive, managerial or specialized position under the L-1 visa. One should also note a recent decision, see Matter of I Corp, Adopted Decision 2017-02 (AAO April 12, 2017), which held that USCIS cannot approve an L-1 petition where the proffered wage violated the minimum wage under the Fair Labor Standards Act.

Changing the terms of an L-1 worker’s employment in the US from full time to part-time may also not require an amendment as it may not constitute a material change so long as the worker is still employed in the qualifying L-1 capacity.

2. Can one re-file under the L-1 “new office” rule if the business has been impacted due to COVID-19?

The USCIS rules governing the L-1 visa category detail special provisions where a new parent, subsidiary, branch or affiliate office is opened in the US within 1 year, and this new office petitions for an L-1 visa for a manager, executive or specialized knowledge worker. The petition may be approved even if there is no proof of extensive business activity. A new office is an organization which has been doing business in the US through a parent, subsidiary or branch for less than 1 year. If the business is shuttered due to a stay at home order, it may be possible to argue that it has not been doing business for 1 year, and should still be possible to obtain another extension as a new office. In the past, the USCIS has not been receptive to such arguments if the business has been in existence for 1 year, but could not function due to economic downturns. However, it would not hurt to apply as a “new office” for another year, in the alternative, when also applying for a regular 2 year extension given the most unusual economic impact COVID-19 has caused, and the fact that the business was forced to stay shut as a result of government orders and not due to the volition of the employer.

3. Is there similar salary flexibility for a nonimmigrant on an O-1, E-1, E-2 or TN visa?

I would say “Yes” since these nonimmigrant categories are also not subject to the LCA and other DOL rules. With respect to the O-1 visa, if one of the basis to establish extraordinary was to demonstrate a high salary in relation to others, then a reduction in the O-1 worker’s salary may undermine the worker’s ability to maintain status. On the other hand, if there has been an across the board reduction for all persons in that category, then the salary reduction could still be potentially justified as being in comparison to others who have demonstrated extraordinary ability in the field.

With regards to an E-2 investor, it is important for the investor to demonstrate that the enterprise is not marginal. An enterprise is marginal if it does not have present or future capacity to generate more than a minimal living for the investor and the family. Therefore, it would be important to demonstrate that a drop in revenues from the business that would otherwise sustain the investor was temporary due to COVID-19.

4. Can nonimmigrant workers in L, O and TN status perform their duties without pay and not be in danger of violating their status?

One could argue that so long as the nonimmigrant worker is performing the duties for the employer under the terms of the nonimmigrant visa category, it would not be a violation of their status even if the employer cases to pay them. The government will likely disagree, but it may be possible to counter argue that ICE has indirectly allowed F-1 students who are engaged in Optional Practical Training to serve in a voluntary capacity in work that is related to their studies so long as it is 20 or more hours (although the 20 hour minimum requirement has been relaxed during COVID-19). For instance, an F-1 who graduated with a law degree could conceivably still be legitimately maintaining status under F-1 OPT by providing pro bono representation to indigent clients. Note that ICE does not permit voluntary employment under STEM OPT. Still, employers have to be careful that they do not violate federal and state laws regarding paying the minimum wage. This sort of voluntary situation would more readily apply to an O-1 who is traditionally self-employed or an E-2 investor in a startup that has yet  to generate revenues.

5. Would nonimmigrant visa holders in E-3 and H-1B1 status have the same flexibility?

No. Since the E-3 (for Australians) and the H-1B1 (for  Singaporeans and Chileans) visa categories are subject to the LCA like the H-1B visa category, please refer to my prior FAQ relating to changes in salary and working conditions for H-1B workers.

6. Can an F-1 engage in Curricular Practical Training while overseas?

Yes. According to the latest COVID-19 Guidance for SEVP Stakeholders dated April 30, 2020, students may engage in CPT during their time abroad, provided they are:

  • Enrolled in a program of study in which CPT is integral to the program of study;
  • Their DSO authorized CPT in advance of the CPT start date; and
  • Either the employer has an office outside the United States or the employer can assess student engagement and attainment of learning objectives electronically. According to earlier March 13, 2020, COVID-19: Guidance for SEVP Stakeholders, this enrollment may be online. All other requirements at 8 CFR 214.2(f)(10)(i) still apply.

7. Can an F-1 engage in Optional Practical Training while overseas?

Although an F-1 can engage in OPT while working in the US for an employer remotely, it has not been determined by DHS whether a student can engage in OPT while overseas during the COVID-19 period. Since USCIS also adjudicates applications for employment authorization, this is not just an SEVP issue.  Since an F-1 OPT cannot be unemployed for more than 90 days, and a STEM OPT cannot be unemployed for more than 150 days, an F-1 should be prepared  to argue that working overseas for a US employer while overseas during the COVID-19 crisis did not constitute  unemployment during OPT or STEM OPT.

Fortunately, in 2010, SEVP provided the following guidance, which is likely applicable even during COVID-19:

“Time spent outside the United States during an approved period of post completion OPT counts as unemployment against the 90/120-day limits, unless the student is either:

  • Employed during a period of leave authorized by an employer; or
  • Traveling as part of his or her employment.”

While this 2010 does not directly relate to a student working remotely for an employer while overseas during the COVID-19 period, as the student is neither on authorized leave nor travelling as part of the employment, it is closely analogous and hopefully SEVP and USCIS should approve of remote OPT employment while overseas as not counting towards unemployment.

 

Cyrus Mehta

Building the Legal Case to Challenge Trump’s Immigration Ban

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President Trump’s latest Proclamation  is a brazen attempt to rewrite US immigration laws under the guise of protecting Americans during the COVID-19 pandemic. The Proclamation bans most noncitizens who will enter the United States as immigrants for 60 days from April 23, 2020.  Confirming the sham, Senior White House adviser Stephen Miller, according to a leaked private conference call recording, told supporters that Trump’s order to suspend immigration is part of a larger strategy to reduce overall immigration.  He said that “the most important thing is to turn off the faucet of new immigration labor” and that the temporary ban would limit “chains of follow-on migration.”

Following my initial reaction to the Proclamation, in this blog I point out all its inherent contradictions to make the case that it is legally infirm and is vulnerable to challenges in court.

Although the Proclamation purports to halt permanent immigration for 60 days it leaves open the possibility of revaluation on day 50 and extending the ban. The Proclamation also leaves open the possibility of introducing other measures possibly impacting the H-1B and L visa programs. There are indications that the administration will extend the Proclamation to also limit temporary work visas as well. A draft of another version of the order would have banned noncitizens seeking entry on B, H, E, J, L and O visas, and so it would not be unexpected if the ban is eventually extended to nonimmigrant visa entrants. It is ironic  that even immigration restrictionists are critical of the Proclamation as it does not go far enough, and so they will continue to exert pressure to extend the order and expand the restrictions.

Paradoxically, the Proclamation places green card holders on a lower pedestal than temporary workers tied to an employer under a pseudo economic theory that there is no way to protect Americans from the threat of competition from newly minted green card holders who can seek jobs in any sector. This false assumption is made even though some of the would be immigrants who have been banned were sponsored by employers because of their skills and who tested the US labor market for American workers prior to filing a green card application on their behalf. The Proclamation further cruelly blocks spouses and children of green card holders and even those who have won approvals based on their extraordinary ability or for being outstanding professors or researchers. Spouses and minor children of US citizens are exempted and so are physicians and nurses, along with others coming to perform work related to COVID-19.

But these exceptions are small crumbs to make it seem that the ban has a rationale, although this is clearly not so. The idea that a 60 day pause on permanent immigration will improve the unemployment situation in the US is farcical especially in light of the leaked Miller call that this is part of the administration’s long term strategy to lower immigration levels.  An editorial from of the Wall Street Journal published the day before the Proclamation was promulgated makes a compelling case that immigrants do not take away jobs, and it is in fact the reverse. Below is an extract:

Nearly all of the economic evidence shows that immigrants enhance American growth and jobs. Former Federal Reserve economist Madeline Zavodny, now at the University of North Florida, examined state employment levels and immigration for the National Foundation for American Policy in 2018. States with surges of immigration like Texas and Iowa had low jobless rates. “Having more immigrants reduces the unemployment rate and raises the labor force participation rate of U.S. natives within the same sex and education group,” she found.

Rather, the purpose of the Proclamation is political posturing to please Trump’s political base, while causing untold pain and suffering on people, both US citizens and would be immigrants, who will be prevented from uniting as a result of this ban. According to this chilling NY Times story, an angry and brooding Trump impulsively thought of issuing the order when he realized that he was not polling well in battleground states.

Although Trump claims to have derived the authority to ban immigrants under section 212(f) of the Immigration and Nationality Act (INA), which he relied upon when he issued the travel bans and the third watered down version was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamation from his prior travel ban. The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice. For example, EB-5 investors have been exempted from the ban while other would be immigrants who have properly obtained approvals under the law, and many who have waited for years in green card queues, have been improperly banned. While spouses and children of US citizens have been exempted, parents of US citizens have not. Diversity lottery winners are also included in the ban, and Trump’s hostility to them is apparent when he referred to them as hailing from “shithole” countries.  Trump’s disapproval of family-based immigration, which he pejoratively refers to chain migration, has no relation to protecting American workers during the COVID-19 crisis.

Although the Supreme Court upheld Trump’s travel ban that focused on mainly Muslim countries, and which is why it is also appropriately called the Muslim ban, it is not a foregone conclusion that courts will uphold this ban as it completely rewrites the law based on subjective opinions and pseudo economic theories that are not consistent with the INA. Trump has used INA § 212(f) to reshape immigration laws enacted by Congress that have nothing to do with travel bans and national security. These initiatives have received push back from lower courts.  On November 9, 2018, Trump issued another Proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States.  The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation. The key issue is whether INA § 212(f) allowed a president like Trump with predisposed views against granting asylum to override entire visa categories or change the US asylum system?   INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration had virtually closed the designated ports of entry for asylum seekers, which forced them to cross the border through irregular methods. In East Bay Sanctuary Covenant v. Trump, the Ninth Circuit concluded that the Trump administration had unlawfully done what the “Executive cannot do directly; amend the INA”. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus, INA § 212(f) could not be used as a justification to override INA § 208. The Supreme Court has temporarily stayed the injunction in a related case that prohibits asylum seekers on the Southern border from applying for asylum in the US if they have not applied in Mexico or Guatemala – and thus by implication East Bay Sanctuary Covenant v. Trump – from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided. There has been no ruling on the merits of the case.

On October 3, 2019, Trump yet again invoked INA § 212(f) by issuing a Proclamation to ban intending immigrants from entering the United States if they did not have health insurance within 30 days of their arrival in the United States. Under the health insurance proclamation, an intending immigrant who has satisfied all statutory requirements set out in the INA will nevertheless be permanently barred from entering the United States if that person cannot show, to the satisfaction of a consular officer, that he or she either “will be covered by approved health insurance” within 30 days of entering the United States, or “possesses the financial resources to pay for reasonably foreseeable medical costs.” In Doe v. Trump, a federal district court in Oregon temporarily  blocked the health insurance proclamation through a nationwide injunction by relying on East Bay  Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA  § 212(f) to amend the INA. In the health insurance case, Trump’s proclamation contradicts the public charge provision under INA 212(a) (4), which does not have a health insurance requirement. The Ninth Circuit has upheld the temporary order of the Oregon district court, although it has a strong dissent by Judge Bress criticizing the Oregon district court’s finding that INA $ 212(f) was unconstitutional  under the nondelegation doctrine. Under this doctrine, associated with separation of powers, Congress cannot delegate legislative powers to the president under INA § 212(f). This argument needs to be watched more closely as it is bound to play out further when the administration defends its authority under INA § 212(f) in this case and other cases.  The Supreme Court has not yet intervened in this case.

On January 31, 2020, Trump used his extraordinary broad powers under INA § 212(f) to expand his travel ban to six additional countries.  The affected countries are Nigeria, Eritrea, Sudan, Tanzania, Kyrgyzstan and Myanmar. The expanded ban comes about three years after the prior ban that was upheld by Trump v. Hawaii. Most of the countries targeted in this ban, like the prior travel ban, are countries with significant Muslim populations. Even Myanmar, where Buddhists constitute the majority, has a significant minority population comprising Muslims including the persecuted Rohingya people.  The administration spuriously argued that the new travel ban is vital to national security and the ban will remain “until those countries address their identified deficiencies” related to security and information-sharing issues. Unlike the prior travel ban, the more recent travel ban only restricts immigrants from Burma, Eritrea, Kyrgyzstan and Nigeria. The restrictions on Sudan and Tanzania are narrower as they only apply to immigrants who have won green cards under the diversity program. Like Trump’s latest Proclamation, this travel ban does not apply to nonimmigrants who visit the US temporarily such as tourists, students or workers under specialized work visa programs such as the H-1B for specialty occupations or L-1 for intracompany transferees. As explained in a prior blog, the justification that the administration  provided was that it is harder remove immigrants from the US is also spurious from a security perspective since all noncitizens are subject to the same removal process, able to contest the charges against them and are eligible for relief from removal. People placed in removal can remain in the US until they exhaust all their appeals.   Also the justification to restrict immigrants from Tanzania and Sudan who have won green card lotteries makes even less sense. Why would one who has won the lottery in Sudan and Tanzania pose more of a risk than someone who is immigrating on another basis? The January 31, 2020 travel ban reflects Trump’s abhorrence against DV lottery winners from poorer countries, and again, like the most recent Proclamation devalues permanent immigration to the US.

Notwithstanding the prior Trump v. Hawaii ruling, it is imperative that the limits to INA § 212(f) be challenged as Trump can use this provision to radically transform immigration laws enacted by Congress, and without going through Congress to amend laws that he does not like. A challenge to the expanded ban will again give courts the ability to examine INA § 212(f).   The Supreme Court, disappointingly, held in Trump v. Hawaii   that INA § 212(f) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.” One should however  still give credit to prior lower federal court decisions that blocked the first and second versions of the travel ban, on the grounds that Trump exceeded INA § 212(f), which were far worse than the watered down third version that was finally upheld. Although the Supreme Court may have stayed the injunction in East Bay Sanctuary Covenant v. Trump, it has not ruled on the merits of the Ninth Circuit’s reasoning that Trump could not use INA § 212(f) to rewrite asylum law in the INA. The Supreme Court is yet to hear any challenge to the health insurance proclamation. The Ninth Circuit in both these cases did not disapprove of the reasoning by district court judges that Trump overstepped his authority notwithstanding the powers given to him under INA § 212(f). The latest Proclamation banning permanent immigration, if extended  beyond 60 days and even expanded  to other nonimmigrant visa categories, would provide another basis to test the limits of INA § 212(f) in federal court. Trump has rewritten the immigration law in the Proclamation according to whim and caprice that conflict with existing provisions in the INA. While the INA allows US citizens to sponsor spouses, minor children and parents as immediate relatives, Trump has rewritten the law to exclude parents of US citizens. Under the Proclamation, even adult children and siblings of US citizens have been banned.  Similarly, while the INA specifically allows permanent residents to sponsor spouses, minor children and adult unmarried children, the Proclamation excludes them all together. The exception of EB-5 investors from the ban is hardly surprising given the Trump and Kushner family’s involvement in real estate development, which attracts funding from foreign investors.

The first challenge to the Proclamation was filed on April 25, 2020 in the form of an emergency Temporary Restraining Order as part of  the challenge to the health insurance proclamation in  Doe v. Trump as plaintiffs in the class. They are underaged children of lawful permanent residents who will be adversely impacted by the latest Proclamation if they are unable to obtain immigrant visas before they age out. This is only the opening salvo attacking the Proclamation on a narrow basis, which will inspire others, including state attorney generals to also legally challenge it. In approving Trump’s first travel ban, the majority in Trump v. Hawaii made reference to Korematsu v. United States, This was the shameful Supreme Court case that allowed the internment of Japanese Americans after the attack on Pearl Harbor in 1941. Justice Sonia Sotomayor referencing this decision in her powerful dissent in Trump v. Hawaii. Justice Sotomayor found striking parallels between Korematsu and Trump’s travel ban. For example, they were both based on dangerous stereotypes about particular groups’ inability to assimilate and their intent to harm the United States.  In both cases, there were scant national security justifications. In both cases, there was strong evidence that there was impermissible animus and hostility that motivated the government’s policy. The majority rejected the dissent’s comparison of Trump’s supposedly facially neutral travel ban to Korematsu, but still took this opportunity to overrule Korematsu. Yet, when one carefully reviews Trump’s motivations behind the travel bans, especially after the second one and this Proclamation, they are not too different from the motivations that resulted in the forced internment of Japanese Americans. Indeed, Justice Sotomayor astutely reaffirmed that “[t]he United States of America is a Nation built upon the promise of religious liberty.” In her rejection of the legality of the travel ban, she observed that “[t]he Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.”

It is time to revisit the Supreme Court’s overruling of Korematsu in Trump v. Hawaii. In that case, the Supreme Court opined that the first travel ban was facially neutral and took pains to distinguish it from the repugnant Korematsu decision. The subsequent use of Trump’s authority under INA § 212(f) confirms that the first travel ban was not neutral, and this Proclamation, along with other executive orders under INA § 212(f), are strikingly similar to Korematsu as they lack any rationale. Since the first travel ban took effect, thousands of intending immigrants from the banned countries, from infants to elderly parents, have been needlessly impacted and they pose no threat to national security.  The latest Proclamation’s justification is economic – the millions of job losses – than health related. The president should not be allowed to rewrite the INA based on periodic downturns in the economy since the last time Congress fixed the number of visas was in 1990, and there have been quite a few economic downturns since. Moreover, the waivers in the travel bans are a sham and are seldom granted. There are no waivers in the most recent Proclamation to those impacted, only exceptions.   INA § 212(f) must have limits, courts must hold, including the Supreme Court someday. Miller’s conference call to Trump’s supporters is the smoking gun, and Exhibit A, to show in court that Trump’s latest Proclamation is a chimera – it has nothing to do with COVID-19 but is part of the long term goal of this administration to reduce immigration levels. As president of the United States, Trump is still subject to laws enacted by the US Congress. He cannot be allowed to be King and change them through whim and caprice.

 

Cyrus Mehta

FAQ for Green Card Holders during the COVID-19 Period

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I have received inquiries from lawful permanent residents, or green card holders, who are outside the United States and have been unable to return to the United States in the COVID-19 period. They are unable to return either because there are no flights out of the country to the US or they feel vulnerable to contracting the infection or they may have unfortunately contracted the infection.

These green card holders are understandably concerned as their inability to return to the US is due to no fault of their own.  If a lawful permanent resident is unable to return to the US within a year, the green card technically becomes invalid for reentry to the US. This does not mean that the person ceases to be a lawful permanent resident, and it can still be asserted that lawful permanent residence has not been abandoned.

Similarly, a reentry permit allows a green card holder to remain outside the US for two years. One who is outside the US with a reentry permit must return back prior to the expiration of the reentry permit. Otherwise, if the person remains outside the US beyond the date of the reentry permit, the reentry permit is technically invalid as a travel document, although the person can still claim to be a lawful permanent resident.

Green card holders stuck outside the US have to also be mindful about their eligibility for naturalization. The eligible applicant must have at least 2.5 years of physical presence in the US in the past 5 years prior to filing the application. If the applicant has been married to a US citizen for 3 years, then the eligible applicant must have 1.5 years of physical presence in the US.  Spouses and children who obtained lawful permanent residence as a result of being subject to extreme cruelty by a US citizen are also allowed to apply for naturalization after 3 years. Furthermore, the applicant must be continuously residing in the US during the relevant 5 or 3 year period. An applicant who has been outside the US for more than six months is deemed to have broken continuity of residence. This presumption of breaking continuous residence can be rebutted if the applicant can show that the applicant did not terminate his or her employment in the United States or obtain employment while abroad; the applicant’s immediate family members remained in the United States; and the applicant retained full access to or continued to own or lease a home in the United States.

Below are my brief answers to Frequently Asked Questions (FAQ) by concerned green card holders during the COVID-19 crisis.

1.I am unable to return to the US as all flights have been cancelled in my country. Will I have any problems if I return to the US in excess of 180 days from my last departure?

If a green card holder seeks admission to the US after being outside for more than 180 days, he or she will again be considered as an applicant seeking admission into the US under INA 101(a)(13)(C)(ii). While you may be subject to more scrutiny at the port of entry as an applicant seeking admission, you will likely not be denied admission for abandoning permanent residency especially if the reason for not travelling back within 180 days was due to COVID-19 restrictions. Regardless of whether you are returning within or in excess of 180 days, there may be other grounds under which you will be treated as an applicant for admission pursuant to INA 101(a)(13)(C).

2. I am unable to return to the US as all flights have been cancelled in my country. Will I have any problems if I return to the US in excess of 1 year from my last departure?

The green card (Form I-551) is technically invalid for reentry into the US if you have spent in excess of 1 year outside the US from your last departure. If your reason for not coming back was related to COVID-19, you should apply for a Returning Resident (SB-1) Visa at the US Consulate as soon as it reopens to the public and explain that your inability to return was due to circumstances beyond your control. You must still demonstrate that you never abandoned permanent residence by demonstrating that you are returning from a temporary visit abroad, continued to  maintain ties with the US and that you always harbored an intention to resume permanent residency.

The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) of what constitutes a temporary visit abroad is generally followed:

A trip is a temporary visit abroad if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

3. What if the US Consulate refused the SB-1 Visa, or has not resumed operations soon enough, and I have spent in excess of 1 year overseas from my last departure?

If your green card (Form I-551) has not expired, you may wish to travel directly to the US and assert at the port of entry that you never abandoned permanent residency. While this is more risky than applying for an SB-1 visa, the Customs and Border Protection official has discretion to waive you into the US even without a technically valid I-551. The CBP official may ask you to complete Form I-193, Application for Waiver of Passport and/or Visa and pay the requisite filing fee. In the event that the CBP official does not waive you into the US, as a lawful permanent resident you have the right to have an Immigration Judge review your claim, and the burden of proof is on the government through clear and convincing evidence that you abandondoned permanent residency.

4. As a result of being unable to travel back to the US, I have gone beyond the expiration date of my reentry permit?

My responses to Questions 2 and 3 are equally applicable to one who has stayed beyond the expiration date of the reentry permit.

5. Can I attempt to renew the reentry permit while stuck overseas?

No. You can only apply for a reentry permit while you are physically in the US.

6. How will my being stuck outside the US in excess of 180 days but less than 1 year impact my ability to naturalize?

You have to demonstrate that you have been physically present in the US for half of the relevant period – 5 years or 3 years (if married to a US citizen for 3 years) – preceding the filing of the N-400 application. In other words, you must demonstrate that you have physically spent at least half of 5 or 3 years in the US. Each day you spend outside the US may erase the time you have already accumulated until you get readmitted into the US and gain more days. Of course, if you have already accumulated days that exceed the threshold, you would still have sufficient time to spare.

If you are on the cusp, and will likely have less than half of the required time of physical presence in the US because of your forced stay outside the US, then you may wish to consider filing the N-400 application from overseas in order to lock in the required physical presence.

If you meet the physical presence test, you have to also demonstrate that you did not break continuity of residence, and so remaining outside the US in excess of six months will lead to a rebuttable presumption that you broke continuous residence. Under current law, one can rebut the presumption by demonstrating that you did not move your residence or seek employment overseas, or your immediate family members remained in the US. There is no accommodation in the existing rules regarding remaining outside the US due to circumstances beyond your control. Still, an applicant is nevertheless encouraged to use a COVID-19 related ground to also rebut the presumption of breaking continuity of residence.

7. How will my being stuck outside the US in excess of 1 year impact my ability to naturalize?

Unfortunately, whatever physical presence that was accumulated will be erased, and you will need to wait 4 years and 1 day before you can file Form N-400 again, provided you have the requisite physical presence as discussed above, and you have also been continuously residing during the relevant period. The USCIS Policy Manual suggests that an applicant apply after 4 years and 6 months to avoid the presumption of a break in continuity of residence.

8. Are there any exceptions if I am unable to meet the requirements of naturalization if I am stranded overseas?

Yes. Spouses of US citizens who are employed abroad for certain organizations may not need to meet the physical presence of residence requirement. Most people who avail of this exception are spouses of US citizens working for an American corporation or its subsidiary abroad that is engaged in the development of foreign trade or commerce of the US,  but see Chapter 4 – Spouses of US Citizens Employed Abroad of the USCIS Policy Manual for further details and other exceptions.

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

 

 

 

 

 

 

 

 

 

 

 

Cora-Ann Pestaina

LCA Posting Requirements at Home During the COVID-19 Pandemic: Do I Post on the Refrigerator or Bathroom Mirror?

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“The LCA is to an H-1B worker like a leash is to a dog.” (Cyrus Mehta and Myriam Jaidi, The LCA in the Age of Telecommuting). In the midst of the global pandemic that is COVID-19, these words have never seemed truer.  Across the US, employers of H-1B workers are understandably very concerned about how to handle forced changes in the employment of their H-1B workers. Employers have had to make the difficult decisions such as to shut down completely, lay off employees, lower salaries, reduce employees’ hours of work, place employees on furlough or have them work from home. In last week’s blog, FAQ on Changes in Salary and Other Working Conditions for H-1B Workers During the COVID-19 Crisis, Cyrus Mehta provided a list of frequently asked questions (FAQ) seeking to provide some guidance to US employers. But one issue keeps on rearing its ugly head, how exactly can an employer ensure compliance with the Labor Condition Application (LCA) posting requirements when the H-1B worker is forced to work from a worksite (such as his/her home) that was not intended at the time the LCA was filed?

As background, the LCA ensures that notice is provided to US workers about the fact that an H-1B worker is being sought, the occupational classification, the wages offered, the period of employment, locations at which the H-1B worker will be employed, and that the LCA and accompanying documents are available for public inspection. See 20 CFR § 655.734. The notice must be posted at the “place of employment”, which means the worksite or physical location where the work actually is performed by the H–1B, H–1B1, or E–3 nonimmigrant. See 20 CFR § 655.715. So one’s home in the age of virtual cloud-based desktops and Zoom video can conceivably constitute “place of employment.”

As explained in the FAQ, if the H-1B worker relocates to the home within the area of commuting distance from the original workplace, a new LCA need not be obtained, but notice must still be given at the new place of employment. If the H-1B worker relocates to a home outside the area of intended employment, a new LCA has to be obtained and the employer must file an amended petition. “Area of intended employment” means the area within normal commuting distance of the place (address) of employment where the H–1B nonimmigrant is or will be employed. See 20 CFR §655.715.

Employers have run into issues due to the fact that employees are hesitant to post LCAs at their home. They are understandably resistant to the idea of broadcasting their yearly salary to everyone currently sheltering in place due to COVID-19 (e.g. in-laws or au pairs) and they may also be unable to even print the LCA at home due to lack of a printer. There is constant pushback from employers and pleas for an alternative. Unfortunately, the Department of Labor (DOL) has not set forth any guidance upon which the employer can confidently rely. In the above referenced blog, The LCA in the Age of Telecommuting, the authors discussed the fact that however absurd it may sound, it might still be advisable to file an LCA for the worker who telecommutes (if the home location was not contemplated when the LCA was filed), and have the worker post the LCA in two conspicuous locations in his or her home or the location from which he or she is telecommuting. In the alternative, the LCA notice provision may be satisfied by an electronic posting directed to employees in the relevant occupation classification. Pursuant to 20 CFR 655.734(a)(ii)(B), such electronic posting may be accomplished:

by any means [the employer] ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board” to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer’s newsletter. Where affected employees at the place of employment are not on the “intranet” which provides direct access to the home page or other electronic site but do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as e-mail (i.e., a single, personal e-mail message to each such employee) or by arranging to have the notice appear for 10 days on an intranet which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees).

Electronic posting is not foolproof. The rules governing electronic posting do not make clear who has to be notified – all employees everywhere and anywhere who fall within the same “occupational classification” (how narrowly or broadly should that be interpreted?) or only those in the “area of intended employment.” But, on how to effectuate a compliant electronic notification, see Cyrus Mehta’s blog, “Nuts and Bolts of Complying with the H-1B Notice Requirements”. An employer can post notice on its own website or on a web portal of an LCA hosting service, but must still inform affected workers of the existence of this web posting through notification via e-mail, the company intranet, through Slack channels or by providing hard copy notification of the existence of the notice on the website.

Then, in the minutes of an October 13, 2017 meeting between the American Immigration Lawyers Association (AILA) and the DOL Wage and Hour Division (WHD) there was this question and answer:

10. Many H-1B workers are now working remotely from their homes, instead of the employer’s office. If the employer has an LCA for its office but then will allow the H-1B worker to work remotely from home in a geographic area of employment that is not covered by the LCA, is the employer required to file a new LCA prior to the H-1B worker being allowed to work from home (assuming that the short-term placement option does not apply)? Is an employer required to complete the LCA notifications for an H-1B worker who will be working from home? If so, how/where should these notifications be posted at the H-1B employee’s home?

WHD Response: WHD does not expect employees to post at their houses. If the worker will be working at HQ and at home, the employer should post at HQ. Unless one of the short-term placement exceptions apply, the employer will need to file a new LCA for the employee’s home location if the employee will be working at a home location that is not within normal commuting distance of the location on the existing LCA covering the employee.

That unclear response provided no comfort that there would be no future penalty for failing to post an LCA at an employee’s home during the COVID-19 pandemic.

Most recently, on March 20, 2020 the DOL’s Office of Foreign Labor Certification answered FAQs that addressed COVID-19 impacts to OFLC operations and employers. The following question and answer was included:

4. I am an employer with an approved Labor Condition Application (LCA). Due to the impact of the COVID-19 pandemic, I may need to move workers on an H-1B, H-1B1, and/or E-3 visa to worksite locations unintended at the time I submitted the LCA for processing by OFLC. Do I need to file a new LCA if the worksites are located in the same area of intended employment? If not, what are my notice obligations for moving the workers to the new worksite locations?

If an employer’s H-1B employee is simply moving to a new job location within the same area of intended employment, a new LCA is not generally required. See 20 CFR 655.734. Therefore, provided there are no changes in the terms and conditions of employment that may affect the validity of the existing LCA, employers do not need to file a new LCA. Employers with an approved LCA may move workers to other worksite locations, which were unintended at the time of filing the LCA, without needing to file a new LCA, provided that the worksite locations are within the same area of intended employment covered by the approved LCA. Under 20 CFR 655.734(a)(2), the employer must provide either electronic or hard-copy notice at those worksite locations meeting the content requirements at 20 CFR 655.734(a)(1) and for 10 calendar days total, unless direct notice is provided, such as an email notice. It is important to note that if the move includes a material change in the terms and conditions of employment, the employer may need to file an amended petition with USCIS. Notice is required to be provided on or before the date any worker on an H-1B, H-1B1, or E3 visa employed under the approved LCA begins work at the new worksite locations. Because OFLC acknowledges employers affected by the COVID-19 pandemic may experience various service disruptions, the notice will be considered timely when placed as soon as practical and no later than 30 calendar days after the worker begins work at the new worksite locations. Employers with an approved LCA may also move H-1B workers to unintended worksite locations outside of the area(s) of intended employment on the LCA using the short-term placement provisions. As required for all short-term placements, the employer’s placement must meet the requirements of 20 CFR 655.735. The short-term placement provisions only apply to H-1B workers.

Requiring the H-1B worker to post at home makes no sense as there are no other workers in that home. Some of our esteemed colleagues believe that since the H-1B worker is the only worker at the home location, e-mailing the LCA notification to that worker, without requiring a posting in two ridiculous conspicuous locations – such as one on the refrigerator and the other on the bathroom mirror – would be the most appropriate way to handle it.

At the end of the day, the lack of various concessions in the midst of a global pandemic does nothing to ease fears that employers who fail (with good reason) to properly post the LCA for their H-1B workers could be penalized following a DOL audit. Knowing the various issues employers face during the pandemic, will the chances of an audit actually increase once everyone is able to go back to work? Will the DOL seize the opportunity to say “gotcha?” It remains to be seen and of course, the hope is that any DOL auditor will exercise discretion and not impose any penalty against an employer with a history of compliance. But, at this point, it is still a significant risk. Unless and until the DOL says otherwise, the refrigerator and the bathroom mirror may have to come into play.

 

 

 

Cyrus Mehta

FAQ on Changes in Salary and Other Working Conditions for H-1B Workers During the COVID-19 Crisis

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The novel coronavirus (SARS-CoV-2), which causes the disease COVID-19, is a pandemic threatening populations in the United States and worldwide. The US economy has virtually shut down.   Many employers who have been forced to shut down or modify their businesses have been severely impacted and may no longer be able to afford to pay H-1B workers the required wage.  Based on my recent observations, many employers fortunately still view H-1B workers as a vital resource and do not wish to terminate their H-1B workers. They, however, do want to know whether they can temporarily reduce wages or temporarily suspend employment or put them on furlough. Likewise, H-1B workers fearful of termination also have questions about grace periods and unemployment benefits.

Although none of us have seen a pandemic as fast moving and horrific as COVID-19 in our lifetimes, we have experienced the rigidity of DOL rules governing H-1B workers in other disasters such as 9/11, the Great Recession of 2008 and Hurricane Sandy. For instance, an employer is not permitted to bench an H-1B worker for a temporary period due to economic hardships without risking liability for back wages and other draconian sanctions. Correspondingly, the H-1B worker could also be in danger of falling out of status if no longer employed.  In prior disasters, the inflexibility of the DOL rules governing the wages and other working conditions of H-1B workers came into sharp focus and caused great hardship to employers and the H-1B workers. These rules have not changed, and the same inflexible rules unfortunately equally apply with equal force today during the COVID-19 crisis, which appears to be far worse than other recent disasters.

Below are frequently asked questions (FAQ), which I will endeavor to answer. Since there are plenty of grey areas with no definitive answers, my interpretations of these rules are based on my experience in advising employers and H-1B workers during past disasters and presently during the COVID-19 crisis.  I also refer readers to two excellent AILA practice advisories on this topic, here and here. It is hoped that the DOL and USCIS will provide more flexibility and compassion given that the COVID-19 crisis is worsening. But until that happens, here are my responses.

1. Must I Pay H-1B Workers Even if I Want to Temporarily Suspend Employment During the COVID-19 Crisis?

An employer can incur liability if an H-1B worker is in nonproductive status. According to 20 CFR 655.731(c)(7)(i),   if the H-1B worker is in nonproductive status due to a decision of the employer, such as lack of work or lack of a permit or license, the employer must still pay the H-1B worker the required wage. Thus, if the employer decides to temporarily suspend employment, bench or furlough the employee, the required wage must still be paid notwithstanding the sudden economic downturn caused by the COVID-19 pandemic. Failure to pay the required wage can result in fines, back wage obligations, and in some serious cases debarment from the DOL’s temporary and permanent immigration programs for a period of time. Pursuant to 20 CFR 655.810(d), DOL can also notify USCIS to no longer approve immigrant and non-immigrant petitions filed by the employer.

2. What if the H-1B worker voluntarily requests leave?

Under 20 CFR 655.731(c)(7)(ii), an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience, such as taking an extended holiday or caring for ill relative,  or because they are unable to work, as a result of maternity leave or automobile accident which temporarily incapacitates the H-1B worker due to a reason which is not directly work related and required by the employer. 20 CFR 655.731(c)(7)(ii) nevertheless requires the employer  to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).

While leave based on a COVID-19 illness or related need to quarantine will also be considered a leave upon the behest of the employee, employers will most likely need to treat H-1B workers in the same way as they would with other employees under their COVID-19 leave policies, and will also be subject to the CARES Act that guarantees extended paid leave to all employees relating to COVID-19 illness or quarantine.

So long as the H-1B worker is employed, being on leave, paid or unpaid, will not undermine their ability to maintain H-1B status.

The DOL will carefully investigate whether the employee’s request for leave is genuine. The leave should not be forced upon the employee as a pretext for the employer’s inability to pay the required wage due to lack of work. Such contrived leave would be viewed as a decision by the employer to place the worker in unproductive status, thus rendering the employer liable for sanctions.

3. Can the employer temporarily reduce the wage?

The required wage should be the higher of the actual or prevailing wage, which is determined at the time of filing the Labor Condition Application (LCA). The actual wage is the wage paid to similarly situated workers in the employer’s organization within the area of intended employment. The prevailing wage is the wage rate for the occupational classification in the area of employment, which is generally based on a wage survey of a cross section of employers.

What if the employer wishes to drop the required wage below what was indicated in the LCA and the I-129 petition for H-1B classification? This supposes that the required wage is still at or above the prevailing wage, although the actual wage paid to similarly situated workers has dropped. Since the employer represented on the forms that it would pay a specific required wage, it may not be prudent to reduce the wage even if it is still meets the definition of the required wage. Under these circumstances, the safest course of action is to file an amendment to the H-1B petition.

Another argument that can be made against amending the H-1B petition when there is a reduction in the required wage from what was stated on the forms is that when the required wage increases during the validity period of the H-1B, an employer is not required to file an amendment to the H-1B petition and so the same argument can be made against an amendment when there is a reduction in the wage, so long as it still is the required wage. This argument would have greater force if the H-1B worker’s salary went up after the LCA was filed and it is  now  being reduced to the wage that was stated on the LCA and Form I-129.

4. Can the employer convert the employment of the H-1B worker from full time to part time employment?

Yes, although the employer will be required to file an amended H-1B petition. Converting the employment from full time to part-time employment would be considered a material change as the employer must obtain a new LCA reflecting the part time wage and employment, and thus file an amendment to the H-1B petition under USCIS guidance based on Matter of Simeio Solutions. The H-1B worker can commence with the part-time employment upon the filing of the amended H-1B petition.

5. Can the employer reduce the wage during the COVID-19 period, but still guarantee a bonus to the H-1B worker later on to make up the deficit?

If the employer lowers the salaries for H-1B employees below the required wage, according to 20 CFR 655.731(c)(2)(v), an employer can give a guaranteed bonus in the future that may be credited toward satisfaction of the required wage obligation. The bonus cannot be conditional or contingent on some event such as the employer’s annual profits.  While I would never advise this in normal times, I believe in these unusually hard COVID-19 times, this may be defensible but one cannot tell for sure how DOL will view it if there is an investigation. Once the bonus is paid, it must be paid as a salary and reported as earnings with appropriate taxes and FICA contributions withheld and paid.

6. May the employer reduce the required wage and instead offer the equivalent value of the deficit in stock options?

No. The employer is required to guarantee the required wage, and this must be paid in the form of wages reported to the Internal Revenue Service (IRS) as the employee’s earnings, with appropriate withholding for the employee’s tax paid to the IRS and as required under the Federal Insurance Contributions Act (FICA). A stock option would not guarantee the required wage as the value of a stock option can go up or down. A stock option also does not comply with the requirement that the compensation must be paid as a wage that is reported to the IRS, and appropriate tax and FICA contributions be withheld.

7. Does the employer’s obligations to pay the H-1B worker end when the H-1B worker’s employment is terminated?

The H-1B worker need not get paid if there has been a bona fide termination of the employment relationship. DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled (8 CFR 214.2(h)(11)), and require the employer to provide the employee with payment for transportation home under certain circumstances (8 CFR 214.2(h)(4)(iii)(E)). If the employer does not notify the USCIS about the termination and provide the employee with payment for the return transportation home, the DOL will not consider it as a bona fide termination and may still hold the employer liable for back wages. However, note that in Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

For further details on effectuating a bona fide termination and the exceptions to meeting all the requirements, see “Employer Not Always Obligated to Pay Return Transportation Costs of Terminated Worker”, https://blog.cyrusmehta.com/2017/03/employer-not-always-obligated-to-pay-return-transportation-cost-of-terminated-h-1b-worker.html

8. Is the H-1B worker entitled to a grace period upon termination of employment?

8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

When an H-1B worker is terminated, it is a common practice for a highly compensated employee to first be put in inactive status, known as “garden leave” but still considered as an employee and paid the full salary. The final termination date occurs at a later point. Although one needs to view these scenarios on a case by case basis, a good argument can be made that the 60 day grace period starts running from the final termination date and not from the date when the H-1B worker was placed on garden leave.

For further details on the 60 day grace period, see “Analysis of the 60 Day Grace Period for Nonimmigrant Workers”, https://blog.cyrusmehta.com/2017/07/analysis-of-the-60-day-grace-period-for-nonimmigrant-workers.html

9. Can the employer rehire the H-1B employee within 60 days of the termination?

If the H-1B worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, the same employer would need to file a new H-1B petition within the 60-day grace period.

10. Since most H-1B workers are required to work from home, what rules govern and what actions does the employer need to take?

Employers who have instructed their employees to work from home must ensure they still comply with Department of Labor rules about the geographic scope of positions; for example, as specified for H-1B (specialty occupation) employees on the labor condition application.

If an employee works from a home which is within commuting distance of the workplace, then there is no need to file an amendment. However, a copy of the original posting should be posted again in two places in the employee’s home, although it does not make sense to do so since the posting cannot be seen by other employees. Until the DOL provides clarification, following this procedure would be in compliance.  Alternatively, the employer may provide electronic notification to affected workers in the area of intended employment.

If an employee works from a home which is NOT within commuting distance from the workplace, the employer should obtain a new LCA for that location and file an H-1B amendment. Since there is a 30 working day short term placement exception (per year), the employer can file the amendment within 30 working days of the move to a home location that is not within commuting distance.

On how to effectuate a compliant electronic notification, see the “Nuts and Bolts of Complying with the H-1B Notice Requirements”, https://blog.cyrusmehta.com/2019/03/the-nuts-and-bolts-of-complying-with-the-h-1b-notice-requirements.html . An employer can post notice on its own website or on a web portal of an LCA hosting service, but must still inform affected workers of the existence of this web posting through notification via e mail, the company intranet,  through Slack channels or by providing hard copy notification of the existence of the notice on the website.

Although notice must be provided before the H-1B worker begins work at the new location, the DOL has allowed to a 30 day extended period to provide such notice. For further details see # 4 of DOL’s recently issued COVID-19 guidance at https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

 

11. Do these regulations apply to other workers in nonimmigrant statuses who may be employed?

They would apply to any nonimmigrant visa statuses that require an underlying LCA such as the E-3 for Australians and the H-1B1 for  nationals of Singapore and Chile. The same rules governing wages and other working conditions for H-1B workers would apply to workers in E-3 or H-1B1 status.

There is more flexibility with respect to workers in nonimmigrant statuses. For example, if an intracompany transferee’s in L-1A or L-1B status is reduced, it may not have an adverse impact so long as the L-1 worker is still working under the appropriate L-1 classification as an executive or manager, or as a specialized knowledge employee.

However, if there is cessation of employment, other nonimmigrant workers will fall out of status after the 60 day grace period.

12. Can Terminated H-1B Workers Claim Unemployment Benefits?

Although one must look at state rules, generally speaking, H-1B visa holders cannot claim unemployment benefits because they will not be able to work in the future due to the loss of their status as a result of the loss of the job. The legal status of an H-1B workers is based on employment, and once the H-1B worker is terminated, they are not able to work in the future due to lack of that status.

On the other hand, unemployment benefits may work for an H-4 spouse with an EAD if the H-1B spouse is in status. The H-4 spouse’s ability to work in the future is linked to the H-1B status of the spouse, and if the H-4 spouse is terminated, s/he can work in the future if the H-1B spouse continues to maintain that H-1B status. Of course, one has to look at the state rules concerning unemployment insurance regarding how long one will be able to work in the future in order to be eligible to make such a claim.

If an H-4 spouses can claim unemployment benefits, they will likely not be impacted by the new public charge definition as unemployment is not a public benefit. One has earned the unemployment insurance by contributing to it while employed.

This blog is for informational purposes and should not be relied upon as a substitute for legal advice. 

Cyrus Mehta

How USCIS Can Remain True to its Mission by Exercising Compassion During the COVID-19 Period

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Although the United States Citizenship and Immigration Services is mandated by Congress to grant benefits, it has become an enforcement oriented agency under the Trump administration that has displayed remarkable hostility towards immigrants.    During the period when people are mandated to stay confined and practice social distancing in order to prevent the spread of the coronavirus, and many will unfortunately also fall sick, the USCIS ought to become compassionate and true to its mission of  being a benefits granting agency.

The USCIS has admittedly made some changes in a niggardly fashion. Although the public charge rule got rolled out last month, which is intended to deny immigration benefits under a more expansive interpretation of who is likely to become a public charge, it made one small exception on March 13, 2020 by encouraging noncitizens with symptoms resembling COVID-19 to seek medical treatment or preventive services. “Such treatment or preventive services will not negatively affect any alien as part of a future public charge analysis,” the agency said in a statement.  The exception goes beyond treatment and preventive services, and the USCIS goes onto state: “[I]f the alien is prevented from working or attending school, and must rely on public benefits for the duration of the COVID-19 outbreak and recovery phase, the alien can provide an explanation and relevant supporting documentation.” The USCIS has also allowed applicants to reschedule appointments if they have travelled internationally to any country within the past 14 days of their appointment, believe they have been exposed to the COVID 19 virus or are experiencing flu like symptoms. Separately, DHS has notified that foreign students  should be able to maintain status even if the program goes online so long as the school makes the notification within 10 days.

While these fixes are steps in the right direction, USCIS ought to make more bold changes to provide ameliorative relief to noncitizens that would be in the best interests of the nation. Below are some suggestions:

  1. As employers and law firms have allowed their staff to work remotely, USICS should immediately allow all filings with USCIS to be made online, and also allow scanned or electronic signatures. The electronic H-1B Registration is a good example of how this can be implemented for all USCIS filings.
  2. While an H-1B workers who works from home in the same area of intended employment or within commuting distance does not need a new LCA, eliminate the need to file a new LCA and H-1B amendment even if the home is located outside the MSA or beyond the area of commuting distance. The DOL rules governing LCAs never contemplated telecommuting, and it makes no sense for affected workers to post the LCA on their refrigerator.  The telecommuting is tied to the location where the work is actually performed and for which the LCA was originally obtained and where the posting already occurred.
  3. While the USCIS should give a blanket 90 day extension for filing extension and change of status requests (and this is beyond the 60 day grace period that is given to certain nonimmigrants upon cessation of employment); any delay beyond the 90 days can still be deemed an extraordinary circumstance, and thus excused, under 8 CFR 214.1(c)(4) or 248.1(c) if it is based on a corona virus circumstance.
  4. Coronavirus issues should be deemed technical reasons for INA 245(c)(2) purposes to allow delayed adjustment filings when necessary.
  5. Similar extensions ought to be given with respect to filing responses to RFEs and I-290B appeals or motions as well as filing an I-140 beyond 180 days of the grant of labor certification.
  6. Auto-extend EADs, Advance Paroles and I-551s to eliminate the need to file I-765, I-131 and I-90 extensions.
  7. Automatically reschedule all missed USCIS appointments (biometrics, adjustment and naturalization interviews and oath ceremonies) rather than deem that the application has been deemed abandoned. Also, if possible, develop technology for noncitizens to securely process their biometrics through their own phone devices.
  8. The filing of a meritorious and nonfrivolous I-290B should no longer trigger unlawful presence for purposes of the 3 and 10 year bars.
  9. Have a policy of granting parole in place to one otherwise eligible to adjust status if it can be demonstrated that it would be impossible or harmful for a person to return to the home country.
  10. Advance the Chart B filing dates to Current or close to Current as the notion of an “immigrant visa is immediately available” under INA 245(a)(3) has always been viewed with elasticity, especially in the case of the July 2007 visa bulletin and more recently in the implementation of Chart B filing dates. In the same vein, rescind the USCIS policy that requires the CSPA age to be triggered only if the final action date becomes current rather than the filing date becoming current.
  11. Allow for video interviews for adjustment of status and naturalization applications, as well as with respect to an oath swearing ceremony. If that is not feasible in the short run, at least minimize the interviews. For example, employment-based adjustment cases do not need interviews, which was the case before.
  12. Relax the standard for competent representation at 8 CFR 1003.102(o) and diligent representation at 8 CFR 1003.102(q), as well as the duty to communicate at 8 CFR 1003.102(r), if an attorney is affected by the coronavirus and is forced to be quarantined for several weeks and has no other attorneys who can act on his or her behalf.

These are a few suggestions for USCIS to revert to its historic role of viewing its mission as providing benefits rather than being a junior partner to Immigration and Customs Enforcement. Other agencies also need to step up to also take appropriate actions, and this blog only focuses on USCIS fixes. If God forbid the situation goes out of hand,  bolder action would need to be taken. There is statutory authority to grant mass Temporary Protected Status under INA 244(b). There is also authority to grant deferred action to large groups of noncitizens who may be at grave risk to themselves and others if they are asked to leave the US. The President has broad powers in times of a national emergency. Now is not the time for restrictionists to oppose such measures that benefit noncitizens, and it would also be perverse for them to advocate that the President use these powers to hurt noncitizens. The health and safety of everyone is paramount, and all people living in this nation, whether citizen or non-citizen, are intractably connected and the administration must take all measures to protect everyone.

 

 

 

 

 

 

 

 

 

 

 

Cora-Ann Pestaina

H-1B Registration Update

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Since my last blog on  the upcoming H-1B registration, USCIS has hosted a few webinars where stakeholders – prospective H-1B petitioners and attorneys/representatives – were able to familiarize themselves with the new process. USCIS has since posted copies of the PowerPoint from these webinars in their Electronic Reading Room.

Prospective H-1B petitioners were, as of February 24, 2020, able to create H-1B “registrant” accounts through the MyUSCIS portal at https://my.uscis.gov/.  They need to select “I am an H-1B registrant” when creating the account. Attorneys/representatives are able to use the same type of representative account that was already available on the same site and may use an existing account. This account should have been created by selecting “I am a Legal Representative.”

USCIS will open an initial registration period from noon ET March 1, 2020, through noon ET March 20, 2020, for the FY 2021 H-1B numerical allocations. Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 at noon ET to enter beneficiary information, submit registrations, and pay the $10 non-refundable registration fee for each beneficiary. This fee will be collected via the Pay.gov portal and can be made from a bank checking or savings account or a credit or debit card. It will not be possible to pay the registration fee using money orders, certified checks or cash.

The registration form will only request basic information about the prospective H-1B petitioner and beneficiary. Based on the USCIS PowerPoint presentations during their recent webinars, it appears that no information regarding the offered position will be required for the registration process, not even the job title of the offered position. The prospective H-1B petitioner will only need to provide the following:

  • Company’s legal name
  • Company’s Doing Business As (dba) name(s) if applicable
  • Company’s employer identification number (EIN)
  • Company’s primary U.S. office address
  • The legal name, title, and contact information (daytime phone number and email address) of the company’s authorized signatory
  • Beneficiary’s legal name
  • Beneficiary’s gender
  • Beneficiary’s date of birth
  • Whether the prospective H-1B petitioner is requesting consideration under the Master’s cap because the beneficiary has already earned or will earn a Master’s degree from a U.S. institution of higher education prior to the filing of the H-1B petition
  • Beneficiary’s country of birth
  • Beneficiary’s country of citizenship
  • Beneficiary’s passport number

During the registration period, representatives and registrants will be able to review and edit the registrations of beneficiaries as many times as needed before the registration is submitted. Once the registration has been submitted, each beneficiary will be assigned a 19-digit confirmation number. If necessary, a registration containing an error may be deleted and resubmitted.

The authorized signatory of the prospective H-1B petitioner must be able to read and understand English. Before submitting the registration form, the company’s authorized signatory will be required to certify, under penalty of perjury, that they have reviewed the registration and that all of the information contained in the registration is complete, true and correct and that the company intends to file an H-1B on behalf of the beneficiary named in the registration (if the beneficiary is selected). This is an important attestation since DHS has indicated in the preamble to its January 31, 2010 regulation that it will investigate cases that demonstrate a pattern and practice of potential abuse of the registration system on a case by case basis, including any mitigating facts or circumstances. Registrants that have been found to engage in a pattern and practice of submitting registrations for which they do not file a petition following selection could be subject to monetary fines or criminal penalties pursuant to 18 U.S.C. 1001(a)(3) for making false statements and misrepresentations to the government.  The authorized signatory will also be required to provide their electronic signature confirming they have read and agree to the above statement by typing their full legal name into a box provided and they must also confirm that they can read and understand English and that they have read and understand every question and instruction on the registration.

Selections will take place after the initial registration period closes, so there is no requirement to register on March 1. If USCIS receives enough registrations by March 20, the agency will randomly select registrations and send selection notifications via users’ USCIS online accounts. USCIS said it intends to notify account holders by March 31, 2020. An H-1B cap-subject petition may only be filed by an H-1B petitioner whose registration for that beneficiary was selected in the H-1B registration process. The petitioner must include a copy of the selection notice with the H-1B filing. The filing period for submitting H-1B petitions begins on April 1, 2020, and will end no earlier than June 30, 2020. USCIS will not accept late filings.

As indicated in a previous blog on H-1B registration, this author believes that it makes the most sense to conduct a complete evaluation of the potential H-1B petition prior to submitting the registration. There are specific strategic decisions that may need to be made such as determining whether or not to file the Labor Condition Application (LCA) for the H-1B cap petition prior to receiving notification of selection from USCIS. Having a certified LCA would allow the H-1B petitioner to more quickly file the H-1B cap subject petition, a timeline that could be very important if the beneficiary is the holder of an F-1 visa with authorized Optional Practical Training (OPT) set to expire in early April 2020. H-1B cap-gap benefits only attach upon the timely filing of the H-1B cap petition and not upon the submission of the H-1B registration. It would make sense for a potential H-1B petitioner to have the LCA ready so as to be able to file the H-1B cap petition prior to the expiration of the beneficiary’s OPT which filing would extend the beneficiary’s duration of status and employment authorization until September 30, 2020 unless the H-1B petition is ultimately rejected, denied, revoked or withdrawn prior to this date.

During its webinars, USCIS had no prepared response regarding a plan of action for a possible system crash and would only indicate that they would inform stakeholders of what to do if there is a crash. Also of some concern is the fact that USCIS indicated it will not set up a separate phone line for the H-1B registration and that registrants and representatives experiencing technical issues should call the USCIS Contact Center at 1-800-375-5283 for assistance. Based only on experience calling this number for other filing issues, one can only wonder what type of assistance would actually be available through this channel. At this point, March 1, 2020 is just around the corner and all we can do now is wait and hope that the process, once underway, will work as intended.

 

 

 

 

Cyrus Mehta

Guilford College v. Wolf: Reflecting on the Nationwide Injunction in Immigration Cases

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In a stunning victory for F, J, and M nonimmigrant students battling unlawful presence policy, a federal district court in North Carolina has granted a permanent injunction preventing USCIS from enforcing its problematic August 9, 2018 policy memo. The Trump Administration’s August 2018 policy would have rendered students in F, J and M status unlawfully present for minor technical violations thus subjecting them to 3 and 10 year bars from reentering the United States.

The February 6, 2020  Guilford College et al v. Chad Wolf et al opinion, issued by the Honorable Loretta C. Biggs, is an extraordinary nationwide injunction holding the  August 2018 policy unlawful not just for the Plaintiffs “but for all those subject to its terms.” In addition to summarizing the Court’s well-reasoned justifications for granting Plaintiff’s summary motion in Guilford College, I also reflect on the Court’s justification for granting a nationwide injunction shortly following Justice Gorsuch’s disapproval of such nationwide injunctions in Department of Homeland Security v. New York on January 27, 2020.

As background, the August 2018 policy changed over 20 years of established practice by recalculating how ‘unlawful presence’ time is accrued for foreign students and exchange visitors. In doing so, USCIS blurred the line between established concepts of ‘unlawful presence’ and ‘unlawful status’, and instead made the two terms synonymous as it related to F, J, and M nonimmigrants.

Prior to the August 2018 policy, unlawful presence time would not begin to accrue until the day, or day after, a formal finding was found that the nonimmigrant was out of status. In contrast, under the new policy nonimmigrants would begin accruing unlawful presence time the moment any violation of status occurred. Further, nonimmigrants would not receive any formal notice of a status violation, and any past violation that had been discovered would have begun accrual of unlawful presence. This drastic recalculation of unlawful presence time put many who would be unaware of any status violations at risk of being subject to 3-year or 10-year bars of admission should they accrue more than 180 days of unlawful presence. See INA §212(a)(9)(B)(i)&(II). Mistakes due to technicalities, human error, miscommunication, or ambiguity of rules would cause a nonimmigrant to fall out of status and accrue unlawful presence without their knowledge and without opportunity to cure the violation.

This decision makes permanent a preliminary injunction that was granted on May 3, 2019 on grounds that 1) USCIS had issued the August 2018 policy in violation of the Administrative Procedure Act (APA) for failure to observe the APA’s notice and comment procedures, and 2) the August 2018 policy conflicted with statutory language of the Immigration and Nationality Act (INA).

The Court agreed with the Plaintiffs showing that the language, purpose, context, and effect of the August 2018 USCIS policy rendered it a legislative rule. For a legislative rule to be valid it must have been promulgated in compliance with the APA’s notice and comment procedures under U.S.C. § 553. Thus, in failing to publish notice of its proposed policy change in the Federal Register, USCIS violated the APA, thus invalidating the policy. While acknowledging that the distinction between legislative and interpretive rules is “enshrouded in considerable smog”, the Court found the August 2018 policy to be a legislative rule rather than an interpretive rule as it changed the policy for calculating unlawful presence. It established a binding norm for adjudicators to start calculating unlawful presence from the date of the status violation.

With respect to Plaintiff’s contention that the August 2018 policy violated the statute at INA §212(a)(9)(B)(ii), the provision is reproduced in its entirety to better explain the Court’s reasoning:

“Construction of unlawful presence – For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.”

The Court opined that it was clear that unlawful presence accrued “after the expiration of the period of stay authorized” in §212(a)(9)(B)(ii). Since F, M and J nonimmigrants were admitted under “duration of status” there is no express expiration date. Under the August 2019 policy, the nonimmigrant “starts accruing unlawful presence…the day after he or she engages in an unauthorized activity.”  The August 2019 policy, according to the Court,  “improperly dissolves the distinction between the ‘expiration of the period of stay authorized’ and the violation of lawful status.” The second ground for setting aside the August 2019 is significant. Even if the administration promulgated a rule under the APA, as it appears to be proposing to do so, it may still potentially be set aside as violating §212(a)(9)(B)(ii).

On top of the Court’s reasons for granting a permanent injunction, it also grants a nationwide injunction despite Justice Gorsuch’s scolding against this practice in DHS v. New York a week earlier. Justice Gorsuch complained that a single judge enjoined the government from applying the new definition of public charge to everyone without regarding to participation in this lawsuit, and that they are “patently unworkable” and sow chaos. Earlier, Justice Thomas too complained in his concurrence in Trump v. Hawaii that universal injunctions are a recent phenomenon and that federal courts’ equitable powers were constrained after the country’s founding. Hence, nationwide injunctions are constitutionally suspect. Mila Sohoni, a professor at the University of San Diego law school, argues in the Harvard Law Journal that nationwide injunctions are not a recent phenomenon and this practice goes all the way back to the 19th century. Because nationwide injunctions have a long pedigree, moves today by judges, lawyers in the Trump administration, members of Congress and legal scholars to do away with the universal injunction would be a sharp departure from precedent and practice.

The Court in Guilford College properly reasoned that the scope of an injunction is dictated by “the extent of the violation established, and not by the geographical extent of the plaintiff class.” The Court further held that “Plaintiffs seek a remedy that applies not just anywhere, but to anyone who would otherwise be subject to the policy implemented by the August 2018 PM.” Moreover, as Professor Sohoni has argued, if the policy is violative of the APA, then it must be set aside under 5 USC 706(2). The Fourth Circuit has also explained in IRAP v. Trump that nationwide injunctions are especially appropriate in the immigration context, as Congress has made clear that federal immigration laws must be enforced vigorously and uniformly. Moreover, the plaintiffs in Guilford College were dispersed throughout the US further justifying a nationwide injunction. And to counter Justice Gorsuch’s point that nationwide injunctions sow chaos, could it also not be argued that the lifting of a nationwide injunction would sow even greater chaos if a law that is potentially inconsistent with a statute or unconstitutional is implemented until it is found so by a court – thus causing needless hardship to hundreds of thousands, even millions, of would be immigrants? Another legal scholar Amanda Frost agrees that “nationwide injunctions are the only means to provide plaintiffs with complete relief, or to prevent harm to thousands of individuals similarly situated to the plaintiffs who cannot quickly bring their own cases before the courts.” As the executive has been steadily expanding its powers, a nationwide injunction can act as an important check against the executive branch especially when a polarized and ineffective Congress is unable to do so, according to yet another legal scholar Suzette Malveaux.

Finally, why are people in favor of restrictionist immigration policies within the Trump administration making a fuss about nationwide injunctions? It already happened the other way when Judge Hanen issued a nationwide injunction in Texas v. USA  against President Obama’s expansion of deferred action to parents of US citizen children. Judge Hanen justified the grant of a nationwide preliminary injunction on the ground that if millions began to benefit from a policy that was potentially in violation of the APA or the INA, there would be no effective way of “putting the toothpaste back in the tube should the plaintiffs prevail on the merits.”  When Judge Hanen issued a nationwide injunction, the very same people who are now in charge of implementing hurtful immigration policy cheered. Today, they are critical of the nationwide injunction when courts block their immigration policies.   They cannot have it both ways!

 

 

Cyrus Mehta

Ethical Dimensions to Federal Court Litigation in Immigration Matters

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In light of the higher possibility of denials of routine H-1B and L-1 petitions, immigration lawyers may want to consider stepping out of their comfort zones. They should consider thinking about representing the client beyond the motion to reopen or appeal to the Appeals Administrative Office (AAO) in the event of a denial. Seeking judicial review of a denial under the Administrative Procedures Act is a very viable route to challenge a denial. Immigration lawyers may wish to structure the engagement to contemplate federal court action too, and also discuss this possibility with clients at the very outset. Sure enough, not all lawyers, especially business immigration lawyers, may wish to become federal court litigators. Even if they do not wish to do so, they must still provide that option to the client and be willing to refer the federal court matter to another firm.

Before representing a client in federal court, immigration lawyers must be mindful of some key ethical rules, which will be discussed in greater detail below: ABA Model Rule 1.1 – a lawyer must provide competent representation. ABA Model Rule 1.2(a) – a lawyer shall abide by client’s decisions concerning the objectives of representation, and shall consult with client as to means by which they are pursued. ABA Model Rule 1.2(c) – a lawyer may limit the scope of the representation.  ABA Model Rule 1.3 – a lawyer shall act with reasonable diligence and promptness in representing a client.  ABA Model Rule 1.4 – lawyer is obligated to communicate with client with respect to which the client’s informed consent is required (e.g. lawyer must communicate pros and cons of administrative v. judicial review). ABA Model Rule 1.7 – a lawyer may represent two clients even if there is a conflict of interest if the lawyer reasonably believes that he can provide competent and diligent representation to both affected parties.

Immigration lawyers should have federal court litigation in their sights at the very outset of the representation as it is possible to altogether bypass the AAO upon denial and seek review in federal court.  Under Darby v. Cisneros, 509 U.S. 137 (1993),  exhaustion of administrative remedies is not required when the agency’s regulation does not mandate it, which is the case with AAO appeals. Still, judicial review may not always be the optimum strategy. If the administrative record is not adequately developed, then seeking administrative review may also allow the lawyer to supplement the record on behalf of the client. The lawyer must competently advise on the pros and cons of seeking judicial review over administrative review, which has been addressed in Administrative Review Versus Judicial Review When an Employment-based Petition is Denied. The lawyer may then proceed based on the client’s wishes, and in immigration cases there will generally be two clients, after obtaining informed consent.

The immigration lawyer normally undertakes dual representation of the employer and the employee. Representing both employer and employee is permissible so long as the goals are aligned, which they normally are in the pursuit of an H-1B or L-1 petition by the employer on behalf of the foreign national employee. Under ABA Model Rule 1.7, even if there is a potential for conflict of interest, lawyers may represent both client so long as they provide competent and diligent representation to both. The risk for conflict may become more acute after a denial when one client may wish to seek judicial review while the other client doesn’t. The lawyer must be able to manage such a conflict or withdraw from the representation of both clients.

Lawyers should objectively evaluate the pros and cons of federal court litigation with their clients. They must adequately communicate with the client, in accordance with ABA Model Rule 1.4, so that the client can give informed consent regarding whether to litigate in federal court or not. Most employer clients are hesitant to litigate because they may fear government retaliation. The lawyer should assure the client that the government does not have a policy of retaliating if the employer chooses to litigate. An employer may also be dissuaded from litigating because of potential adverse publicity. If the employer is gun shy about litigating, and the employee desires to litigate, a lawyer can resolve the conflict by having the beneficiary as plaintiff so long as the employer supports litigation and keeps the job open. Of course, the lawyer must research the case law in the circuit regarding whether the beneficiary can serve as a plaintiff and also  be prepared to face more resistance from the government if the beneficiary as opposed to the employer is the plaintiff.

One aspect of managing conflicts at the time of federal court litigation is determining who can pay fees involved in litigation?  As noted, there are times when the foreign national beneficiary may wish to sue while the employer takes a back seat. In such cases, the employee wishes to pay the fee rather than the employer. As the APA potentially gives the beneficiary standing to seek review over a denied labor certification and H-1B, fee restricting rules such as 20 CFR 656.12(b) (concerning labor certifications)  and 20 CFR 655.731(c)(9)(ii) (concerning H-1Bs) cannot thwart the foreign national’s right under the APA to challenge the denial. Therefore, it may arguably not be a violation of these rules prohibiting the foreign national from paying the fee in the context of a law suit filed under the APA. This has been addressed in  Can the Beneficiary Pay the Fee in Federal Court Litigation Challenging an H-1B or Labor Certification Denial?

Lawyers may also claim fees under the Equal Access Justice Act, which may give them the incentive to take on a case on behalf of a client who may not be able to afford to pay the fees. The EAJA authorizes the payment of attorney’s fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation “was substantially justified.” The engagement agreement should be able to address how fees under the EAJA will be addressed. A lawyer may have the client pay all the fees and then let the client get the EAJA fees if victorious in the action. Alternatively, the lawyer may charge no fee or a low fee, but the client agrees to give the EAJA fee to the lawyer. It must be clearly indicated in the engagement agreement when the lawyer will claim the EAJA fee and when lawyer will give back EAJA fee to client.

Here are some other nuggets regarding the ethics of financing litigation that might be useful for immigration lawyers. Pursuant to DC Bar Ethics Opinion 375  lawyers are generally free to represent clients who pay for legal services through crowdfunding. However, the lawyer must be mindful of the source of the funds because of the heightened risk in the event that the funds are obtained through illegal means.  The lawyer may also wish to counsel the client about the risk of sharing confidential information to third parties funding the litigation. But when the lawyer directs the crowdfunding, the lawyer must be aware of the ethical rules relating to payment of fees by third parties, management of client funds, communications with third parties, and fee agreements. Also note that under ABA Model Rule 1.8(e), a lawyer is prohibited from providing financial assistance to a client in contemplation of pending or contemplated litigation, except with respect to advancing court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter. With respect to indigent clients, lawyers may pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted.

The lawyer must be mindful of ABA Model Rule 1.1 regarding competence. If a lawyer knows that she is not competent to handle a federal litigation matter, she should associate with a lawyer who is competent to handle it. Rule 1.1, however, does not preclude new lawyers from handling a matter for the first time provided they become competent. Comment 2 to ABA Model Rule 1.1 is worth noting:

A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

Moreover, part of being a competent lawyer is to also be prepared to carry forward federal court litigation to completion. While most lawyers have been able to reverse an adverse decision through settlement with the Assistant US Attorney, some have had to be litigated to conclusion. While there are many reported cases of a district court judge overturning a denial, many district courts have also upheld USCIS denials. The lawyer should not take the position that because she is comfortable with only seeking administrative review with the AAO, she will not litigate, consider litigation or provide any advice regarding litigation. While a lawyer may stay within his comfort zone by not litigating, and can also limit representation under ABA Model Rule1.2(c), it is incumbent upon this lawyer to recommend client(s) to another counsel who will be able to litigate the matter.

The lawyer may also have to get pro hac vice admission or get admitted in new jurisdiction. The lawyer must then not subsequently become administratively ineligible by failing to pay annual fees, either intentionally or inadvertently,  or complying with CLE requirements in that jurisdiction.  The lawyer can be sanctioned under 8 CFR 1003.102(f) for knowingly misstating his/her qualifications on a G-28 or EOIR 27/28.

There are other considerations prior to undertaking federal court litigation.  The lawyer must check whether underlying basis of denied H-1B petition still exists. Has the job site changed so that the  LCA is no longer valid (as one cannot do a Simeio amendment on a denied H-1B)? Is there still a job offer? Otherwise, the lawyer could be sanctioned under ABA Model Rule 3.1, non-meritorious claims, or Rule 11of Federal Rules of Civil Procedure (FRCP) if the factual contentions in a pleading do not have evidentiary support. However, if the facts change after litigation has commenced, such as the loss of the job, it may still be ethical to proceed with litigation as a successful outcome can impact positively impact the ability of the beneficiary to change status or to port to a new employer.

Finally, since immigration lawyers started filing APA actions in the past two years, most of the cases have settled favorably. After filing a complaint in federal district court, the case has often settled through the USCIS reopening the case and outright reversing the denial or through the issuance of another Request for Evidence.  Still, it is not prudent to undertake federal court action with the objective to solely to settle as FRCP 42 only allows withdrawal if defendant has not filed any pleading. Otherwise, an action may be dismissed upon the plaintiff’s request only by court order and on terms that the court considers proper. The lawyer must manage the expectations of the client in this regard, and charge appropriate fees to cover the entire duration of the court action rather than just the first phase in the hope that the case will settle.

While undertaking judicial review of denials, immigration lawyers must not just learn new rules, skills and procedures, but must also be cognizant of the ethical dimensions. This blog provides some pointers.