Cyrus Mehta

Filing an EB-1 as a Multinational Manager After the Approval of an EB-2 for a Backlogged Indian Beneficiary

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It requires skill and creativity to assist Indians caught in the employment based backlogs to find ways speed up the process or ameliorative solutions. The India employment-based second preference (EB-2) and employment-based third preference (EB-3) dates have barely moved for years, and the prospects for a beneficiary of an I-140 petition born in India for obtaining permanent residence anytime soon are bleak.

One strategy is to file an I-140 petition in the employment-based first preference (EB-1) for an individual who is stuck in the EB-2.  Under the State Department November 2919 Visa Bulletin, the Final Action Date for EB-2 India is May 13, 2009. The Final Action Date for EB-1 India is January 1, 2015. Since it is possible to capture the earlier priority date of the EB-2, a successful filing under EB-1 can assist the person to escape the backlog and gain permanent residency more quickly.

Take for instance Sunil Kumar who already has an approved I-140 under EB-2 with a priority date of January 1, 2012. His employer, ACB Corp. sponsored him through the labor certification process as a Systems Analyst. ABC Corp. wishes to promote Sunil to the position of Vice President, Cloud Projects. Under the new position, Sunil will be required to manage all cloud based projects of ABC Corp’s Fortune 500 corporate clients. Sunil will oversee subordinate managers and professional employees, mainly software developers and systems analysts, in this new position of Vice President, Cloud Projects.

Before moving ahead, an important caveat: Sunil and his fact pattern is a made up for purposes of illustrating a legal strategy. Any resemblance to actual persons, entities or actual events is purely coincidental.

Prior to coming to the US, Sunil was employed with ABC Pvt. Ltd. in India, a wholly owned subsidiary of ABC Corp., in the position of Systems Analyst from January 1, 2008 to December 31, 2010. He entered the US in H-1B status on January 1, 2011 to work for ABC Corp as a Systems Analyst.

In order to sponsor an employee under INA 203(b)(1)(C) as a multinational manager or executive for permanent residency (EB-1C), not only must the proposed position in the US be managerial or executive in nature, but the prior employment in the qualifying entity in India should have also been managerial or executive in nature for one year in the past three years, which as will be explained below, can be tolled in certain circumstances. While Sunil was employed as a Systems Analyst at the qualifying entity in India with no obvious managerial duties, towards the end of his employment in India, from October 1, 2009 till December 31, 2010, due to his talent and acumen, Sunil was assigned to manage important migration projects on behalf of ABC Pvt. Ltd. clients in India even though he was not formally employed as a manager. While the title of his position remained Systems Analyst, Sunil managed other professional employees with respect to various complex migration projects that he successfully completed on behalf of his employer.

While Sunil was in H-1B status and performed his duties in an exemplary manner, ABC Corp decided to sponsor Sunil for permanent residency for the position of Systems Analyst.  A PERM labor certification was filed on Sunil’s behalf on January 1, 2012, and after it got approved, an I-140 petition under EB-2 was also filed and easily got approved. The PERM labor certification that supported the I-140 under EB-2 required a Bachelor of Computer Science degree plus five years of progressively responsible experience as a systems analyst. The five years of experience described in Column K of the PERM labor certification for Sunial included managing technology migration projects for large corporate clients. The 15 months of Sunil’s employment at ABC Pvt Ltd. in India from October 1, 2009 to December 31, 2010 could have been viewed as managerial, but an I-140 under EB-1C was not contemplated in 2012 since the position of Systems Analyst in the US was not managerial. Moreover, it was not clear then whether the duties in India during the last fifteen months of his employment would be considered managerial as he was not formally employed as a manager. It was also not conceivable then that the EB-2 would languish in the backlogs until 2019 and beyond.  At the present time, however, ABC Corp. is very keen on promoting Sunil to the position of Vice President, Cloud Projects, which is clearly a managerial position.

Sunil potentially qualifies under EB-1C based on the proposed position of Vice President in the US and his prior managerial experience in India from October 1, 2009 to December 31, 2010. Although the qualifying experience at the foreign entity must be for one year in the past 3 years, the “one of three year” requirement may be met even if the person is in the United States for more than three years if s/he is working for the same employer, affiliate, or subsidiary in the United States and was employed for at least one of the last three by company abroad before entering in valid nonimmigrant status. 8 C.F.R. §204.5(j)(3)(i)(B).  Sunil has been in valid H-1B status from January 1, 2011 till today for ABC Corp, which is a wholly owned subsidiary of ABC Pvt. Ltd in India. Although the six year limitation under H-1B has long since gone, he has been able to obtain 3 year extensions pursuant to § 104(c) of the American Competitiveness in the 21st Century Act by virtue of his approved I-140 under the India EB-2, which has not yet become current.  Thus, the experience that Sunil obtained from October 1, 2009 to December 31, 2010 would potentially be qualifying experience for classification as a multinational executive or manager under EB-1C. Although Sunil was admittedly a first level supervisor,  INA § 101(a)(44)(A)(iv) states that “[a] managerial employee must have authority over day-to-day operations beyond the level normally vested in a first-line supervisor, unless the supervised employees are professionals.” Since Sunil managed professional employees, a case can be made that he was engaged in qualifying managerial role.

Sunil also has a daughter, Sujata, who is going to turn 21 on January 1, 2020. Pursuant to the current I-140 under EB-2, there is no hope that Sunil’s daughter will be able to protect her age under the Child Status Protection Act, codified at INA §203(h). If ABC Corp. files a new I-140 under EB-1C, however, even if Suneeta crosses 21 on January 1, 2020, once the EB-1C is approved and captures the EB-2 priority date of January 1, 2012 (and the priority date of January 1, 2012 for  EB-1 India continues to remain current), any time between the filing of the I-140 petition and the approval of the I-140 petition can be subtracted from Sujata’s age pursuant to INA §203(h)(1)(A)&(B). As long as the I-140 was filed prior to her 21st birthday, even if it gets approved after her 21st birthday, that time can be subtracted from her age and artificially bring the age under 21. Sunil may also file an I-485 application for adjustment of status concurrent with the I-140 petition under EB-1C, and corresponding I-485 applications can be filed by his daughter, Sujata, and his spouse, Suneeta. The USCIS allows such an I-485 filing concurrently with an I-140 udder EB-1C if it is clearly explained that the EB-2 priority date  will be captured upon the approval of the EB-1C.  While Suneeta has work authorization under the H-4 EAD rule,  8 CFR § 214.2(h)(9)(iv), she is nervous that she will not be able to continue to have it as the Trump administration has declared its intention to rescind the rule. Suneeta will be able to obtain an EAD based on her I-485 pursuant to 8 CFR § 274a (12)(c)(9). Unlike the renewal of an H-4 EAD, an EAD obtained based through I-485 gets automatically renewed for 180 days provided the renewal is filed prior to the expiration of the initial EAD.

If the I-140 under EB-1 gets approved, the January 1, 2012 priority date of the EB-2 will transfer to the EB-1, and Sunil, Suneeta and Sujata will get permanent residency once their I-485 applications are approved.

This strategy assumes that like Sunil, a backlogged beneficiary under EB-2, had qualifying managerial experience with a related foreign entity prior to being employed in the US, and the experience indicated in the PERM labor certification is consistent with the qualifying experience that will be indicated in support of the I-140 under EB-1C. The USCIS also strictly scrutinizes the managerial role of the beneficiary at both the qualifying foreign entity and the proposed managerial role in the US. Many similar cases have been arbitrarily denied even where a strong case was made demonstrating the managerial role at both entities.  Still, those whose facts are similar to Sunil can try to file a new I-140 under EB-1. Even if the beneficiary does not have prior qualifying managerial experience at the related foreign entity, if he or she has attained recognition in cloud related projects and can qualify as a person of extraordinary ability under INA 203(b)(1)(A) (EB-1A), an I-140 petition can be attempted  under EB-1A. An EB-1A I-140 filed as a person of extraordinary ability is also very difficult to obtain, and the USCIS routinely denies such petitions. Yet another more safe approach is to transfer the employee to the foreign related entity in an executive or managerial capacity for one year, and then file an EB-1C after the completion of one year of qualifying employment. However, this strategy will not help if there is a child who is imminently aging out and uprooting a family for one year from the US is less than ideal.

Still, when one’s back is against the wall, and there is a child who is aging out, it is worth trying every legitimate measure permissible under the law. My good colleague Brent Renison has also suggested creative solutions for surviving spouses and children who will age out.  If there were no country cap, Indians would not be so badly affected and Sunil with a priority date of January 1, 2012 under EB-2 would have by now had a green card, and also likely become a US citizen, and so would his wife and daughter. Until country caps are eliminated through the passage of S386, or S2603, although S386 has a significantly better chance of passing than S2603, Indians will continue to languish in the EB backlogs. A lucky few may be able to escape the backlogs by filing EB-1 petitions, but not everybody will be eligible to do so.

(This blog is for informational purposes and is not intended to constitute legal advice).

Cora-Ann Pestaina

Court Shoots Down Embarrassing Leaps by USCIS to Justify an H-1B Denial

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Ever got that frustrating feeling that the USCIS adjudicator first decided that the H-1B petition needed to be denied and only then set about finding reasons, however shaky, to support that denial?  Ever wondered how it is possible for the adjudicator to completely ignore the preponderance of the evidence standard in favor of the criminal standard of beyond all reasonable doubt? The case of Innova Solutions, Inc. v. Kathy A. Baran, case number 2:18-cv-09732 in the US District Court for the Central District of California evokes these exact types of feelings and questions.

As background, except where a different standard is specified by law, a petitioner or applicant in administrative immigration proceedings must prove by a preponderance of evidence that he or she is eligible for the benefit sought. See e.g. Matter of Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997) (noting that the petitioner must prove eligibility by a preponderance of evidence in visa petition proceedings) . . .

The “preponderance of the evidence” standard requires that the evidence demonstrate that the applicant’s claim is “probably true,” where the determination of “truth” is made based on the factual circumstances of each individual case. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989). In evaluating the evidence, Matter of E-M- also stated that “[t]ruth is to be determined not by the quantity of evidence alone but by its quality.” Id. Thus, in adjudicating the application pursuant to the preponderance of the evidence standard, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true. Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “probably true” or “more likely than not,” the applicant or petitioner has satisfied the standard of proof.  See U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining “more likely than not” as a greater than 50 percent probability of something occurring).

Matter of Chawathe, A74 254 994 (Admin. Appeals Ofc. / USCIS Adopted Decision, Jan. 11, 2006).

Under the preponderance of the evidence standard, the adjudicating USCIS officer is supposed to approve the petition as long as it is “more likely than not” that the petitioner’s claim is true. Cases like Innova demonstrate that this standard is surely not being applied, at least not across the board.

Innova sought to employ the foreign national beneficiary as a Solutions Architect to work in-house at their corporate headquarters developing their proprietary software and hardware. USCIS issued what has become a typical RFE requesting additional information to establish the specialty occupation nature of the position; the beneficiary’s qualifications; and that an employer-employee relationship existed.  Innova’s RFE response included a cover letter explaining the type of the work in which the beneficiary would be engaged; a description of the beneficiary’s typical day by percentage; an organizational chart; a Proof of Concept for the project the beneficiary would be involved with; Innova’s tax returns; Innova’s lease for the area where the Beneficiary would work; and an overview of Innova. Still, USCIS denied the petition on the grounds that the employer-employee relationship had not been established and Innova had failed to demonstrate that the beneficiary would be working in-house and not placed with an end-client and failed to show sufficient in-house employment for the duration of the requested H-1B period.

Innova filed suit thereby allowing us to see that no argument is too weak for USCIS to rely upon.

Despite Innova’s clear statements in its initial petition and RFE response, USCIS argued that it was rendered incapable of determining whether the beneficiary would be working on Innova’s product or whether he would be working at a third party client site all because Innova’s website indicated that Innova’s main function is to provide information technology consulting services to other companies. But the court pointed out that this same website indicated that Innova provided “services” and “solutions” to its clients. Under the “solutions” portion of the website was information about software programs and applications created by Innova. The court stated that “because USCIS visited Innova’s website and relied on the website as evidence in making its findings, USCIS may not then ignore evidence on the website contradicting its position.”

Another reason for USCIS’ denial was that Innova failed to provide sufficient evidence to establish that it created its own products in-house. To justify its reasoning, USCIS pointed out that the Proof of Concept PowerPoint that Innova submitted with its RFE response merely established that the product exists and not that Innova is the company producing it or that the beneficiary would work on it. USCIS dismissed information on the project because all information about it “was submitted by petitioner or petitioner’s counsel in counsel’s cover letter”, i.e. there was no published or printed information. USCIS even went as far as to claim that despite Innova’s submission of a copy of its lease for a 450ft space, it remained unknown whether this is sufficient space to produce the information technology project or whether the space is being used to develop and produce the claimed product. USCIS also claimed that Innova’s tax returns were not sufficient to establish that the company produced a product that it sold within those tax years.

Thank goodness for the existence of rational judges. The court held that it was illogical for USCIS to dismiss Innova’s PowerPoint in its entirety just because there was an absence of printed work published about the product. The product is nonexistent and Innova consistently stated that the beneficiary was needed to produce the product. Regarding USCIS’ purported lack of knowledge as to whether the corporate headquarters would be able accommodate the work on the project, the court pointed out that it was entirely clear that the beneficiary would only require a desk and a computer! And, as for the tax returns, the court reminded USCIS that these were only submitted to prove that the company had sufficient work available for the beneficiary and not to prove it sold goods. Further, the product on which the beneficiary would work was intended to be used in-house to provide solutions to Innova’s clients and there was no stated intention to sell it.

Overall, USCIS claimed that it had to deny the case due to “numerous inaccuracies and contradictions.” Thankfully, the court did not find these to be plausible. The court shot down USCIS’ claim that there was an inaccuracy in Innova’s statement that it had 177 employees because the organizational chart it submitted showed only 7 people. The court pointed out that Innova never claimed that the chart listed every single employee. It was actually submitted to show that the beneficiary would report to the Vice President of the company.  USCIS also isolated one job duty that indicated the beneficiary would “clarify the ambiguities and issues with the business stakeholders and help the team in proper execution of the project” and used this to state that it appeared he may be working with clients. The court found that there was no evidence that he would not be doing this in-house as the company stated.

And, in its biggest leap, USCIS took Innova old job advertisements, submitted to prove that Innova typically required a Bachelor’s degree for the offered position, wherein Innova had stated a requirement for travel to client sites, and used these to support its argument that the beneficiary would be traveling to client sites.  The court had to point out that a showing relevant to the specialty occupation argument did not demonstrate that the beneficiary would also be required to travel.

The jumps and leaps that USCIS made to deny this case truly indicate a complete disregard for the preponderance of the evidence standard. Rather than adhering to the rule of law, USCIS is blatantly more concerned with its agenda to maintain its steady attack on the H-1B visa category. With all the evidence submitted by Innova, it was unquestionably “more likely than not” that its claims were true. While the court didn’t go as far as to state this, it appears that USCIS applied the “beyond all reasonable doubt” standard, the highest standard of proof possible. Thankfully, they were not allowed to get away with it in this instance.  Hopefully, more and more employers are finding the courage to fight back and illuminate for the rest of us, how far USCIS will sometimes go and to provide us with case law that can be cited to prevent future, similar casualties, especially for employers who simply cannot finance a federal law suit. Plucky Innova deserved to win this one even though it has lost previously in other H-1B matters.  RFE responses should remind USCIS that it needs to consider the record as a whole; that USCIS cannot isolate specific statements to try to justify its claims; and that there must be a rational connection between any stated reasons for denial and the actual facts of the case. And, as if H-1B petitions haven’t gotten hard enough, it may behoove us to sit with each piece of evidence and try to imagine how it could possibly be misinterpreted or reimagined to justify a denial. Although, try as we might, some things are just unimaginable.

 

 

Cyrus Mehta

Trump Is Not King, Cannot Rewrite Public Charge Law Through Executive Fiat

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Can President Trump act like a king by rewriting US immigration law through the invocation of INA 212(f)? Although America shrugged itself from the yoke of King George III in 1776, Trump issued a Proclamation on October 4, 2019 in total disregard of a Congressional statute – defining who is likely to become a public charge – that would bar intending immigrants from the United States if they do not have health insurance lined up within 30 days of their admission. A federal court in Oregon in Doe v. Trump issued a Temporary Restraining Order on November 2, 2019, one day before the Proclamation was to take effect. Although the TRO is only valid for 28 days, it is still a significant victory in the opening salvo of yet another challenge to thwart Trump’s ability to rewrite large swaths of the Immigration and Nationality Act.

While INA § 212(f) does give extraordinary power to a president, Trump has tried to use his powers beyond what could have been imagined when Congress enacted this provision.  INA §212(f) states:

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

Trump soon after becoming president invoked INA § 212(f) through presidential proclamations to impose his travel ban against nationals of mainly Muslim countries. This was done to fulfill a campaign promise to impose a ban on Muslims, which is also why it is known as a Muslim ban.  He decided without foundation that the entry of Iranian nationals (one of the countries subject to the ban) would be detrimental to the interests of the United States even though they came to marry a US citizen or visit relatives.   The Supreme Court, disappointingly,  upheld the third version of the ban in  Trump v. Hawaii  in June 2018 stating 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 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.

Trump got more emboldened. On November 9, 2018, he 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 authoritarian impulses 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, 932 F.3d 742 (2018),  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. Although the Supreme Court has temporarily blocked East Bay Sanctuary Covenant from taking effect until the government’s appeal in the Ninth Circuit and Supreme Court is decided, Supreme Court has not passed any judgment 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 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.” Except for certain special Immigrant Visa applicants specifically from Iraq and Afghanistan, and unaccompanied biological and adopted children, the Proclamation will be applied to all intending immigrants. The Proclamation, which was to take effect on November 3, 2019, was expected to affect nearly two-thirds of all legal immigrants, with a disproportionate impact on immigrants from Latin America, Africa, and Asia.

The Proclamation provides eight specific types of “approved health insurance” for an intending immigrant: (1) an employer-sponsored plan; (2) an “unsubsidized health plan offered in the individual market within a State;” (3) a short-term limited duration insurance (“STLDI”) plan “effective for a minimum of 364 days;” (4) a catastrophic plan; (5) a family member’s plan; (6) TRICARE and similar plans made available to the U.S. military; (7) a visitor health insurance plan “that provides adequate coverage for medical care for a minimum of 364 days;” and (8) Medicare. A prospective immigrant may also obtain a “health plan that provides adequate coverage for medical care as determined by the Secretary of Health and Human Services or his designee,” but the Proclamation provides no guidance as to how “adequate coverage” is defined.

The Proclamation excludes from the scope of  “approved health insurance” any “subsidized” healthcare offered in the individual market within a State under the Affordable Care Act, as well as Medicaid for individuals over 18 years of age, even though some states have chosen to make Medicaid available to certain adults over 18 years of age, including certain new and recently arrived immigrants. The Proclamation relies on a single dispositive factor—the health care insurance status of an individual—to determine whether the individual will “financially burden” the United States. It is designed to exclude a large number of otherwise qualified immigrants because in reality only an STDI plan and a visitor health insurance plan would be available to one who has yet to enter the United States. Even if such plans were available, they would exclude people with preexisting conditions and would not have the essential health benefits as required under the ACA to which a new immigrant could access, but which would not qualify under the Proclamation.

Based on the likelihood of success on the merits standard that applicable for the grant of a TRO, Judge Michael Simon  in Doe v. Trump found that the Proclamation’s reliance on the health care insurance status of an individual as the sole factor for determining inadmissibility as a public charge conflicted with INA § 212(a)(4) in at least five ways.

First, Congress in INA §212(a)(4)(A) has spoken directly to the circumstances in which an individual may be deemed to become a “financial burden” to the United States and has rejected the Proclamation’s core premise of lack of health insurance being the sole factor. This provision states that “[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.” When determining whether an individual may become a public charge, the statute enumerates the factors that are to be considered “at a minimum” to include the applicant’s age; health; family status; assets, resources, and financial status; and education and skills. The statute outlines the permissible factors in the public charge determination and nowhere mentions an individual’s health care insurance status as one of the permissible factors, according to Judge Simon. Given the statute’s enumeration of age and health, the statute’s omission of “health care insurance status” is important.

Second the statute precludes any single factor from being a dispositive factor, which requires a totality of the circumstances test to be applied. The totality of the circumstances test has long been a feature of the public charge ground even before Congress statutorily mandated it in 1996. The court in Doe v. Trump cited Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974) in support of the long use of the totality of circumstances test. The Proclamation, on the other hand, conflicts with the statutory text by deeming an individual to be a financial burden based solely on her health care insurance status and eschewing all the other statutory factors including, perhaps most incongruously, the health of the individual herself.

Third, the Proclamation’s dispositive reliance on health care insurance status contravenes decades of agency interpretation.

Fourth, the Proclamation’s reliance on an individual’s accessing short-term health care benefits as a reason to find the person a “financial burden” has been expressly rejected. Citing City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs., (N.D. Cal. Oct. 11, 2019) (the public charge statute has had a “longstanding allowance for short-term aid”).

Fifth, the Proclamation revives a test for financial burden—the receipt of non-cash benefits—that Congress has rejected. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 531, 110 Stat. 3009, 3674-75 (1996), which amended the INA by codifying five factors relevant to a public charge determination. The Senate rejected the effort to include previously unconsidered, non-cash public benefits in the public charge test and to create a bright-line framework of considering whether the immigrant has received public benefits for an aggregate of twelve months as “too quick to label people as public charges for utilizing the same public assistance that many Americans need to get on their feet.” S. Rep. No. 104-249, at *63-64 (1996) (Senator Leahy’s remarks). Accordingly, in its final bill, Congress did not include the receipt of Medicaid, Security Income, and other means-tested public benefits as determinative of a public charge.

Based on these five reasons, the court in Doe v. Trump issued the TRO on the ground that plaintiffs were able to show a substantial likelihood of success on the merits.  The court specifically relied on East Bay Sanctuary Covenant v. Trump, supra, which specifically held that a president cannot rely on INA 212(f) to amend the INA. The court also held that notwithstanding this being a presidential proclamation, it was “not in accordance with the law” under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A). Further, the court also noted that the Plaintiffs have satisfied their burden of showing Defendants’ implementation of the Proclamation likely constitutes final agency action, thus akin to a final substantive rule, that is “arbitrary, capricious, [or] an abuse of discretion.” While the government has yet to submit arguments, and another hearing is scheduled shortly, it is remarkable that once again a court has struck down Trump’s use of INA §212(f) to rewrite the immigration law. In the instant case, Trump has undermined provisions that Congress has specifically enacted to determine who is likely to become a public charge. If courts do not check the president’s use of INA §212(f) to issue policies that reflect his racist views, there will be no limit with what Trump can do with our immigration laws without having to go through Congress to change them, or even issuing regulations under the Administrative Procedures Act.

There are other arguments that can be advanced to show how utterly incompatible the Proclamation is to specific provisions of the INA. The Proclamation would also bar immigrants based on approved self-petitions under the Violence Against Women Act.  Congress specifically indicated that VAWA self-petitioners will be excepted from the public charge requirements in INA 212(a)(4)(A)-(C).  How can the Proclamation override these provisions in the INA that created an exception for VAWA petitioners and require them to have health insurance?

In addition, the Proclamation is also a gross violation of the APA as the Proclamation is ultra vires of the INA. This argument can be further bolstered if the court considers Justice Robert’s invocation of Justice Friendly in the census case,  Department of Commerce v. New York, favoring judicial  review of executive actions:

Our review is deferential, but we are “not required to exhibit a naiveté from which ordinary citizens are free.” United States v. Stanchich, 550 F. 2d 1294, 1300 (CA2 1977) (Friendly, J.). The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Furthermore, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not.

It is also no secret that the Proclamation is designed to exclude immigrants from poorer countries from Latin America, Asia and Africa, which Trump has derided as “shithole countries.” The President’s derisive language towards Muslims was successfully used against him in the Fourth Circuit decision in IRAP v. Trump, to demonstrate that the Muslim ban violated the Establishment Clause of the US Constitution. It has also been used against him in litigation opposing the termination of Temporary Protected Status.  Although the Supreme Court did not consider violation of the Establishment Clause argument, it does not mean that plaintiffs cannot pursue constitutional arguments in Doe v. Trump. Here, the Proclamation has violated the Equal Protection Clause as it discriminates against immigrants from poorer countries who will not be able to afford the health insurance or will be forced to buy substandard insurance plans. The healthcare exchanges under the Affordable Care Act clearly allows a new immigrant to buy into a subsidized healthcare plan, which they cannot decline under a particular income level. This is inconsistent with the statutory and regulatory structure that directs a lawful permanent resident to do so under the ACA.

The American Immigration Lawyers Association along with a coalition of civil rights groups under Latino Network inspired the lawsuit, which makes me feel proud to be a member of AILA and especially AILA’s Administrative Litigation Task Force. We have a long road ahead as the government will respond with arguments in favor of presidential power, but now is the time to make the most compelling arguments to stop a president like Trump from invoking INA § 212(f) to rewrite immigration law in a way that is both inconsistent with the INA and with the foundational principle of America being a nation of immigrants.

 

Cyrus Mehta

Supreme Court Agrees to Hear Constitutionality of Smuggling Statute That Could Impact Immigration Lawyers

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The Supreme Court has agreed to review the constitutionality of a smuggling statute under the Immigration and Nationality Act. United States v. Sineneng-Smith, No. 19-67. The statutory provision in question, INA §274(a)(1)(A)(iv),  permits a felony prosecution of anyone who “encourages or induces an alien to come to, enter, or reside in the United States” if the encourager knew or recklessly disregarded “the fact  that such coming to, entry, or residence is or will be in violation of the law.”

INA §274(a)(1)(A)(iv), which involves encourage a non-citizen to reside in the United States in violation of law, is a companion to other related smuggling provisions such as “brings to” or “smuggling” (INA §274(a)(1)(A)(i)), “transportation” (INA §274(a)(1)(A)(ii)), and “harboring” (§274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete, the “encouraging” provision is far broader and can potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. This provision could thus also potentially reach ethical lawyers who advise and represent undocumented clients.

The Ninth Circuit in United States v. Evelyn Sineneng-Smith ruled last year that INA §274(a)(1)(A)(iv) was so broad and vague that it could criminalize speech protected under the First Amendment. The following examples were provided in the Ninth Circuit’s decision that could potentially constitute criminal conduct under this provision:

  • A loving grandmother who urges her grandson to overstay his visa by telling him “I encourage you to stay”
  • A speech addressed to a gathered crowd or directed to undocumented individuals on social media in which the speaker says something such as “I encourage all you folks out there without legal status to stay in the US! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization”
  • An attorney tells her client that she should remain in the country while contesting removal – because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed.

The government, on the other hand, argued that INA §274(a)(1)(A)(iv) should be read narrowly to target unscrupulous lawyers and unauthorized practitioners who dupe migrants into staying in the United States in violation of the law.  Despite the broadness of INA §274(a)(1)(A)(iv), the government asserted that it was not its intention to prosecute people in the above examples who were exercising free speech. Indeed, United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sinseneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She also got convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits conduct and a narrow band of unprotected free speech. Because the provision was so overbroad, the Ninth Circuit refused to construe it narrowly as the Third Circuit in DelRio-Mocci v. Connolly Properties had done by holding that encouraging or inducing an alien to reside in the United States did not mean just general advice but some more substantial assurance that would make someone lacking lawful status more likely to enter or remain in the United States.

The Supreme Court granted the government’s petition for a writ of certiorari. According to the Crimigration blog, the “Supreme Court’s decision to hear this case is … fascinating” as there was not really a circuit split. Typically, the Court agrees to hear a case when there is a sharp conflict in the lower courts regarding the proper interpretation of a statute. Here there is hardly a split between the Ninth Circuit in United States v. Sinseneng-Smith and the Third Circuit in DelRio-Mocci as the latter does not involve First Amendment. Instead, the Third Circuit’s holding was based on a private lawsuit claiming that an apartment property management company violated the Racketeer Influenced and Corrupt Organizations Act by encouraging undocumented people to reside in the United States unlawfully in their property as tenants. Sinseneng-Smith  claimed in opposition to the government’s certiorari petition that the government asserting that the circuits are in conflict is nothing more than an “attempt to conjure a limited circuit split.” It will also be interesting to see how Justice Gorsuch rules in this case as he is averse to laws that are void for void for vagueness as he did in demolishing “crimes of violence” in  Sessions v. Dimaya. Although the Ninth Circuit did not have to deal with the void for vagueness challenge as it found the statutory provision unconstitutional under First Amendment overbreadth analysis, both sorts of challenges might be of interest to Justice Gorsuch that might potentially  align him with the four liberal justices.

Whatever may have been the motivations of the Supreme Court to take up the case, how the Supreme Court will rule carries important implications especially for immigration lawyers. If the Supreme Court reverses the Ninth Circuit and upholds the constitutionality of the provision, would an immigration attorney advising unauthorized individuals to remain in the United States to seek adjustment of status at a later point in time, whenever they become eligible, be within the scope of the prohibition against encouragement or inducement under INA §274(a)(1)(A)(iv)? Granted that the facts in Sineneng-Smith are bad as she advised clients as an unauthorized practitioner, but even if Sineneng-Smith was a lawyer, she would have still been convicted under the provision. Even if this lawyer had provided more appropriate advice when filing the labor certification such that the clients would have to return to their home country for consular processing, assuming an I-601A would be approved based on extreme hardship to a qualifying relative, the lawyer could have still been potentially implicated by advising the unauthorized person to remain in the US during the processing of the labor certification, I-140 petition and the I-601A waiver.

It is indeed salutary that the government strenuously argued in United States v. Sineneng-Smith that it would not prosecute cases cited  in the above three examples or with respect to lawyers giving legitimate advice to clients. But there is no guarantee that if the statute remains intact an overzealous prosecutor cannot try to prosecute attorneys providing legitimate advice to their clients in other examples, as I have discussed with Alan Goldfarb in AILA’s practice advisory,  Executive Disorder: Ethical Challenges for Immigration Lawyers Under the Trump Administration. A lawyer may advise a client whose citizen child is turning 21 in two years to remain so that she can adjust status in the United States. Even if the client may not have a citizen child who is turning 21, there is a possibility that the client may marry a US citizen some day and likewise be eligible for adjustment of status. Alternatively, if this client entered without inspection and is not eligible for adjustment of status, he may be eligible to file an advance I-601A waiver application of the 3 or 10 year bar based on a qualifying relationship with the prospective citizen spouse, and return to the home country for consular processing upon the approval of the I-601A application. A lawyer who may competently advise the client to remain in the United States during the pendency of the I-601A application could get snared for encouraging the unauthorized client to remain in the United States in violation of the law. In yet another example, lawyers represent clients who have outstanding orders of removal and have not departed the United States. Failure to depart within 90 days after a removal order pursuant to INA §237(a) under INA §243 renders such conduct a criminal felony. However, even here, INA §243(a)(2) provides for an exception: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” The competent lawyer will advise the client with the removal order to remain in the United States while every effort is made to reopen the removal order. A person with a final order of removal may attempt to reopen a removal order after several years if the government consents to reopening and there is available relief against deportation. See 8 C.F.R. §1003.2(c)(iii); 8 C.F.R. §1003.23(b)(4)(iv). Yet, under INA §274(a)(1)(A)(iv) an ethical lawyer, who exercises great competence and diligence in representing a vulnerable client with a removal order, could get snared for encouraging the client to remain in the United States in violation of the law even if there is a game plan down the road to render the client’s stay lawful.

The most prudent approach is for a lawyer to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to clients if they to remain in the United States in violation of the law. Such an approach would also be prudent if the Supreme Court upholds the constitutionality of §274(a)(1)(A)(iv) even if the government has asserted in its pleadings that it will enforce the law in a limited manner. Regardless of whether §274(a)(1)(A)(iv) is upheld or not, a lawyer’s conduct should be guided by rules of professional responsibility. Significantly, ABA Model Rule 1.2(d) states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” Please note that this is only a Model Rule, and readers should check the analog to Rule 1.2(d) within the rules of professional responsibility within their own state.

In the immigration law context, a disciplinary authority would be hard pressed to conclude that a lawyer who advises an unauthorized client to remain in the United States due to the likelihood of benefiting at some point in the future would be engaging in conduct that is criminal or fraudulent. Still, there is still a possibility of criminal prosecution under the broad ambit of §274(a)(1)(A)(iv), and  a lawyer who practices within the confines of Model Rule 1.2(d) – such as presenting the legal consequences of remaining in the United States or not rather than explicitly advising the client to remain –  should be more insulated than a lawyer who does not.

 

 

 

Cyrus Mehta

Denial of H-1B Cases: The Occupational Outlook Handbook is Not the Holy Grail

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By Cyrus D. Mehta and Gianna Boccanfuso∗

The USCIS continues to strictly scrutinize H-1B petitions. According to an NFAP report, denial rates for H-1B petitions have increased significantly, rising from 6% in FY 2015 to 33% through the second quarter of FY 2019 for new H-1B petitions for initial employment. In recent times, seeking review of an H-1B denial in federal district court has led to successful outcomes such as in Relx v. Baran.  Often times, after filing a complaint in federal court under the Administrative Procedures Act alleging that the decision was arbitrary and capricious, the USCIS reopens the denial and approves the case, or issues another Request for Evidence (RFE). Upon responding to the RFE, as has been our experience in one matter, the USCIS approved the H-1B.

While many have experienced success, there have also been a spate of H-1B decisions mostly from federal district courts in California that have gone the other way. In these denials, the courts have upheld the USCIS’ interpretation of the description of the occupation in the Occupational Outlook Handbook. For example, in Xiaotong Liu v. Baran, 2018 U.S. Dist. LEXIS 222796, the Central District of California upheld the USCIS’ denial of an H-1B petition for an Event Manager to oversee the functions of business conference coordination and event gathering for the petitioning company, Innsight. The USCIS decision concluded that:

As shown in the OOH, although a baccalaureate level training is generally required, the position of Meeting, Convention or Event Planner is an occupation that does not require a baccalaureate level of education in a specific specialty as a normal, minimum for entry into the occupation. There is no apparent standard for how one prepares for a career as a Meeting, Convention or Event Planner and no requirement for a degree in a specific specialty. The requirements appear to vary by employer as to what a course of study might be appropriate or preferred.

As in most decisions, the District Court of the Central District of California analyzed whether the Plaintiff satisfied one of the four prongs of the following regulatory criteria:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

8 CFR § 214.2(h) (4) (iii) (A).

Looking at only the first and second criteria of 8 C.F.R. §214.2(h) (4) (iii) (A) the court found that the USCIS’ denial of Innsight’s H-1B petition was not arbitrary and capricious and therefore granted Defendant’s motion for summary judgment.  The court  held that the  government’s denial was not arbitrary and capricious in regards to the first criterion, a bachelor’s degree as a minimum requirement, because there was a rational basis for the conclusion that the position of Event Manager did not require a degree in a specific field or its equivalent when the OOH demonstrates a preference for prerequisite course work that does not amount to a necessity when it states that “other common fields of study include communications, business, and business management” but does not mention particular course work as essential.

The court also acknowledged that “[d]istrict courts appear somewhat split on whether the fact that some positions do not require a bachelor’s degree is enough to provide a rational connection between the OOH language and a failure to prove that a position is a specialty occupation. Compare Ajit Healthcare Inc. v. United States Dep’t of Homeland Sec., No. CV131133GAFJPRX, 2014 U.S. Dist. LEXIS 186258, 2014 WL 11412671, at *4 (C.D. Cal. Feb. 7, 2014) (finding “a ‘rational  connection’ between the Handbook description of the job in question and the conclusion that a [position] would not normally require a baccalaureate degree or higher” when the OOH provided that “[a]lthough bachelor’s and master’s degrees are the most common educational pathways work in this field, some facilities may hire those with on the-job experience instead of formal education”) (internal citation omitted) with Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (“Even affording appropriate deference to the Government’s interpretation of the statutory and regulatory requirements, this Court is at a loss to see a ‘rational connection’ between the evidence indicating that ‘most computer programmers have a bachelor’s degree’ and USCIS’ determination that ‘computer programmers are not normally required to have a bachelor’s degree.'”).” In Xiaotong Liu v. Baran, unfortunately, the court sided with the USCIS’s interpretation of the OOH.

On the second criterion, the court found based on job postings from similar organizations submitted by the Plaintiff, that a reasonable fact finder could have concluded that job requirements vary based on employee when only two out of four listings required a bachelor’s degrees in hospitality or even management therefore making the USCIS decision, that a specific degree is not required in parallel positions among similar employers, not arbitrary or capricious.

In making its determination, the court distinguished Tapis Int’l v. I.N.S. 94 F. Supp. 2d 172, 176 (D. Mass. 2000) and Residential Fin. Corp. v. U.S. Citizenship & Immigration Servs., 839 F. Supp. 2d 985, 996 (S.D. Ohio 2012). In Tapis the court determined that the INS abused its discretion when it found that a Showroom Manager position at an interior design firm was not a specialty occupation even when the record indicated that the position “required a bachelor’s degree from a limited number of academic fields in addition to design experience.” However, the court also held that “a generalized bachelor’s degree requirement, without more, is not enough to make the position a ‘specialty occupation.’” Tapis Int’l v.I.N.S., 94 F. Supp. 2d 172, 176 (D. Mass. 2000).The Xiaotong Liu court found that the reasoning in Tapis is not relevant or applicable since in Tapis no specific degree was available in the field of interior design showroom management but there is a specific degree in the field of event management. In Residential Finance, the court found USCIS’ denial of Plaintiff’s petition due to its failure to prove that the Market Research Analyst position was a specialty occupation was arbitrary, capricious and an abuse of power. USCIS had acknowledged several errors in the denial and the record in the case indicated that “a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields.” 839 F. Supp. 2d 996-97. The Xiaotong Liu court distinguished the finding in Residential Finance, finding that the OOH did not suggest that any particular course work is essential for the position of Event Manager, but rather it stated that “planners who have studied meeting and event management or hospitality management may start out with greater responsibilities than those from other academic disciplines.”  The court also used the First Circuit holding in Royal Siam Corp. v Chertoff, 484 F.3d 139 ((1st Cir 2007) against Plaintiff. In Royal Siam, the court rejected the argument that a restaurant manager required a degree in business administration, even though Plaintiff in Xia0tong Liu valiantly demonstrated that a bachelor’s degree is normally required for an Event Planner under the OOH and Liu in fact had a bachelor’s degree in business management with a degree in hospitality management. Additionally, the court held that while USCIS did not explicitly analyze the expert opinion letter under the complexity of the position prong, it did not abuse its discretion when finding that Innsight failed to meet its burden of proof because USCIS demonstrated review of the letter through its use of the content in its analysis of other prongs. Therefore the court found that the conclusion did not rise to the level of arbitrary and capricious. In regard to the prior use of the expert letter by USCIS, the court stated that USCIS should weigh the probative value of an expert opinion as one factor in determining whether an industry requires a degree even when it may conflict with the OOH since the OOH is also but one factor in making the determination. However, the court did find that USCIS had a rational basis for concluding that the expert letter did not explain how the expert opinion from a business professor “determined that a bachelor’s degree in hospitality management or a related field is a standard requirement within the industry for parallel positions among  similar organizations” when he stated that he “observed standard hiring practices as they pertain to a variety of positions in … event planning” but only indicated that he was familiar with the general related field and not practices  specifically among similar employers.

Unfortunately, every argument that Plaintiff made was shot down because it could not overcome the obstacle imposed on the event planner occupation in the OOH, or at least the faulty USCIS’ interpretation of it that a bachelor’s degree in a specific specialty was a normal requirement for entry into the event planning field. In that sense the court’s decision was also faulty. Hotel management, which is analogous to event management, has long been considered a professional position in Matter of Sun, Interim Dec. 1816 (1966). The reasoning in Matter of Sun justifying hotel management was far more elegant in 1966 than in Xiaotong Liu in 2019 as there was a recognition that occupations continue to expand from the traditional professions of law, medicine and theology. This sort of commonsensical and pragmatic reasoning was conspicuously absent for the occupation of Event Planner in Xiaotong Liu.

In Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, the District Court for the Northern District of California found that the Plaintiff’s (Innova) position of Programming Analyst, falling under the OOH’s Computer Programmer classification, did not satisfy the requirements of a specialty occupation when the OOH’s description for Computer Programmer did not describe the normal minimum educational requirement in a categorical  fashion instead stating that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree” Id at 17. The court then found that USCIS’ conclusion that Innova failed to show the position of Programmer Analyst normally required a bachelor’s degree was not arbitrary or capricious when the Plaintiff did not challenge the decision in their motion for summary judgment nor present any evidence showing a common degree requirement in the industry in parallel positions among similar organizations. Further, the court found that evidence provided by Innova to prove the position of Programmer Analyst is so complex or unique that it can only be performed by an individual with a degree, was not probative and therefore USCIS was not arbitrary and capricious in concluding that Innova failed to present sufficient evidence. The court found that Innova submitted a letter from their attorney describing the anticipated duties and a letter from the end client which incorrectly identified  the position and listed duties inconsistent with those in the attorney’s letter. The end client letter also described the beneficiary as leading and directing the work of others, although this contradicted with the duties described in the attorney letter and also because the beneficiary was being paid a Level 1 entry level wage.  The court also cast doubt whether an attorney could make representations on behalf of clients.  The court then turned to the third criterion under 8 CFR § 214.2(h)(4)(iii)(A), whether the employer normally requires a degree or its equivalent for the position, and found that since Innova did not challenge USCIS’ decision they did not have a basis to conclude whether the decision was arbitrary or capricious or constituted an abuse of discretion. With respect to the fourth criterion, whether nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree, the court found that, in their respective briefs, the parties discussed it together with the second clause of the second criterion and therefore for the same reasons the court found that Innova had not shown the USCIS’ denial to be arbitrary and capricious or an abuse of discretion.

The facts were weak and contradictory in Innova, and thus it is hardly surprising that the court affirmed the USCIS’ denial, even though the court accepted USCIS’ interpretation of the OOH entry for Programmers  as not always requiring a bachelor’s degree. The other  arguments made by Plaintiffs under the second and fourth criteria were not strong enough to overcome the OOH description for Programmers.

Finally, in Altimetrik Corp. v. USCIS, 2019 U.S. Dist. LEXIS 141512, the District Court for the Eastern District of Michigan, Southern Division found that USCIS’ decision was not arbitrary or capricious, nor an abuse of its discretion when it determined that that Plaintiff actually sought the beneficiary as a Systems Analyst even though the position in the H-1B petition was for a Software Developer. The USCIS found that the duties matched those of a Systems Analyst, and according to the OOH entry for systems analysts, “a bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.” The court did not seem to disagree with the USCIS’s change of occupation.  This tactic of switching occupations is often used by USCIS as the description for Computer Systems Analyst in the OOH, with respect to educational requirements,  is not as favorable as Software Developers, thus providing more ammunition to USCIS to disagree that that it is a specialty occupation.  The court also  did not find that the duties were complex and unique under the second criterion or specialized and complex under the fourth criterion. With respect to the third criteria, although Plaintiff provided proof of educational and pay documents for 20 of the 70 employees whom it hired as software developers, the court agreed with the USCIS’s reliance on Defensor v. Meissner, 201 F.3d 384 (5th Cir. 2000) that the Plaintiff did not provide proof of the client entity’s requirement of a bachelor’s degree for the position. Plaintiff also  failed to establish by a preponderance of the evidence that the beneficiary would be preforming actual work that would qualify his job as a specialty occupation and therefore denied the petition. The court found that USCIS was correct in determining the evidence provided did not establish that beneficiary would be preforming actual duties requiring the skills of someone with a bachelor’s degree or higher when the only project the beneficiary was assigned to had ended, the description of the second project that the beneficiary would be working on did not align with the job duties listed by the Plaintiff, and that promotional material referenced by Altimetrik as proof of various projects that the company was engaged in did not indicate if the projects were ongoing, whether the specific office the beneficiary would be working in was involved or that there were positions on the projects for the beneficiary that involved qualifying specialty occupation work.

In Altimetrik Corp, it was problematic that the court agreed with the USICS’s characterization of the position being akin to that of a systems analyst even though the Plaintiff had designated it as a software developer. Also problematic was that the court relied on Defensor v. Meissner in shooting down Plaintiff’s contention that it has hired other employees with the similar educational qualifications because it was not able to prove the educational requirements of the client that would ultimately employ the beneficiary. Defensor v. Meissner involved a nurse staffing agency where the nurses were always assigned to hospitals that were clients of the staffing agency, and the Fifth Circuit considered the hospitals as the actual employers of the nurses. Unfortunately, Defensor v. Meissner  is used broadly to nix claims by employers that they hire others with the same educational credentials even where they can show they are the actual employers who control the employment. Indeed, in all H-1B petitions, it is the petitioner that must demonstrate an employer-employee relationship with the H-1B worker, and this has been affirmed by the Neufeld Memo. If the client is the actual employer and not the petitioner, then the H-1B petition can never be filed by the petitioning entity ever.  Defensor v. Meissner is thus a contradiction as it considered the client as the employer rather than the petitioner, which  is now liberally used by USCIS, and also affirmed by courts, to deny H-1B petitions even where the petitioner is the actual employer. Of course, the facts in Altimetrik regarding its inability to show continuing employment were less than ideal, and this was not the appropriate case to overcome objections under Defensor v. Meissner, leave alone challenge the USCIS’s reliance on the OOH with respect to systems analysts.

Though Xiaotong Liu, Innova and Altimetrik may paint a bleak picture for challenges to H-1B denials in federal court, with petitioners being defeated by the deference given to USCIS’ determinations, there have been recent cases which provide guidance and hope. In Next Generation Tech. Inc. v. Johnson the U.S. District Court for the Southern District of New York found that USCIS disregarded or failed to explain why it discounted substantial evidence in the record that could have supported a determination that petitioner had met the requirements for an H-1B visa and therefore its decision to revoke the initial petition and denial of petitioner’s second amended petition were arbitrary and capricious. Starting with the first criterion, the position’s requirement of theoretical and practical application of a body of specialized knowledge, the court found that USCIS failed to give adequate reasons as to why the position description did not require theoretical and practical application of a body of highly specialized knowledge by failing to articulate why the enumerated duties were incompatible with a specialty occupation  when petitioner provided a bulleted list of duties and subsequently a project description that described the roles and responsibilities for each position needed for the project, specifically stating that beneficiary’s role would be that of “ Sr. Programmer/Programmer” and would include “technical program coding; developing the functional program; algorithm development; and debugging the existing programs.” Id at 26. Turning to the second criterion, the position requirement of attainment of a bachelor’s or higher degree in the specific specialty, the court found that USCIS’ determination was arbitrary and capricious when the USCIS disregarded pertinent evidence in the record and failed to articulate a satisfactory explanation for its action when determining that the programmer position being offered was not a specialty occupation. The court stated that there was no rational connection between evidence from the OOH stating that “most computer programmers have a bachelor’s degree” and USCIS determining that computer programmers are not normally required to have a bachelor’s degree.  Additionally, the court noted that USCIS acted in direct contradiction to an internal USCIS memorandum which stated that USCIS will “generally consider the position of programmer to qualify as a specialty occupation.”  The court additionally evaluated USCIS’ determination that petitioner and beneficiary would not be in a valid employer-employee relationship. In doing so, the court went through all eleven factors in the  Neufeld Memo to find that based on evidence provided by Next Generation Tech, many if not all of the factors weighed in their favor and USCIS seemingly did not gather all the evidence or consider all the relevant factors in analyzing it.  The decision in Next Generation helps to combat the decision in Innova specifically in regard to USCIS’ use of the OOH. While it is advisable to build a case on the other prongs of the statutory requirement and not simply on the OOH, the decision in Next Generation displays a common sense approach to the language used in OOH listings by recognizing the use of most when speaking to those who have bachelor’s degrees in a position can rationally constitute a normal requirement.

In Raj & Co. v. United States Citizenship & Immigration Servs., 85 F. Supp. 3d 1241, the court came down with another positive decision. The court in Raj found that USCIS had abused its discretion when it impermissibly narrowed the plain language of the statute by requiring a single specifically tailored and titled degree and therefore reading plain language out of the statue when determining, “although a baccalaureate level of training is typical, the position of a Market Research Analyst is an occupation that does not require a baccalaureate level of education is a specific specialty as a normal, minimum for entry into the occupation,” The court went on to say that there was evidence in the record which showed that the proffered position required a specialized degree in “market research” or an equivalent technical degree accompanied by relevant coursework in “statistics, research methods, and marketing” as a minimum for entry. Furthermore, the court noted that “While judicial review of agency decisions is highly deferential, it is not without teeth. Agency action cannot survive judicial review where the agency fails to ‘articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’” Another positive outcome for H-1B petitioners came in Relx v. Baran, Case No. 19-cv-1993. In Relx the court found that USCIS was arbitrary and capricious in its determination that the offered position of Data Analyst under the occupational title of Business Intelligence Analysts was not a specialty occupation solely on the fact that the OOH did not contain a detailed profile for the position and the use of O*NET, therefore standing alone, failed to establish the occupation as a specialty occupation. The court pointed out that the OOH did in fact provide the information needed to classify the position as a specialty occupation, and contained the O*NET cross reference, therefore holding that USCIS’ conclusion to be “factually inaccurate and not supported by the record.” Furthermore, in response to USCIS’ claim that the position of Data Analyst would never be specialized because multiple fields of education appear to be acceptable for entry into the position, the court stated that, “there is no requirement in the statute that only one type of degree be accepted for a position to be specialized.” Both cases provide reassuring reminders on the limits of deference especially following the decisions in Xiaotong Liu, Innova and Altimetrik.

In conclusion, it is inappropriate for the USCIS to blindly defer to the OOH as a basis to deny an H-1B petition. We have blogged about this particular behavior previously, here, calling attention to the fact that there is no existing regulation designating the OOH as sole authority for classifying specialty occupations and that the OOH itself includes a disclaimer stating that, “the OOH, therefore, is not intended to, and should never, be used for any legal purpose.” Our previous post on the matter also details the way in which the OOH is a cumbersome tool. With the DOL having not amended its LCA to accept 8 digit SOC codes, it therefore forces petitioners to rely on more general occupational titles with 6 digit SOC codes, such as Computer Occupations, All Other , which results in inappropriate denials from USCIS, as we saw in Relx. Even the authors of the OOH, which is the DOL, did not intend for USCIS to use the OOH in this manner. A DOL FOIA response found at AILA Doc # 19101011 states: “In response to your request for ‘guidance,’ the BLS OOH program provides staff who receive inquires on this topic with the following guidance: we have known for several years that the U.S. Customs and Immigration Service (USCIS) occasionally uses education and training information in the OOH to establish strict education requirements for H-1B eligibility. This is an incorrect use of the OOH information and we discourage this practice.”  Additionally, in correspondence provided in the FOIA, BLS employees include the OOH disclaimer linked above in their responses to inquiries about OOH and even explicitly state that, “making legal decisions about whether a position qualifies as a specialty occupation is an erroneous use of the OOH. The purpose of the OOH is for use by students and adult jobseekers in the United States for career planning.”  It is unfortunately clear that USCIS’ reliance on the OOH as a basis to deny H-1B petitions, though inappropriate and contrary to the purpose of the OOH, will continue. While there are some cases which have correctly overturned USCIS due to this practice, it would be beneficial for more petitioners to challenge these denials in court – of course bring cases only with strong facts –  in hopes of obtaining more positive holdings overturning USCIS decisions that uphold its slavish reliance on the OOH.

∗Gianna Boccanfuso is a JD student at Brooklyn Law School and is currently an Extern at Cyrus D. Mehta & Partners PLLC

 

 

David Isaacson

Residence in the Twilight Zone: Are USCIS and the State Department Trying to Encourage Some U.S. Citizen Parents to Get Divorced?

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Under section 301(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1401(c), a child born outside the United States is a citizen when born “of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.”  Unlike some other provisions of the INA, no minimum required period of residence is specified.

Historically, this provision has been interpreted as applying whenever either parent had been present in the United States for any significant period of time, excluding only very brief presence in transit and the like.  (I believe this was set out in former section 1133.5 of volume 7 of the State Department’s Foreign Affairs Manual, but have so far been able to find on the Internet Archive only a reference to the February 2016 guidance that first sought to exclude the sorts of less-brief but still non-permanent stays discussed further below.)  This makes sense, because residence is defined in INA § 101(a)(33), as one’s “principal, actual dwelling place in fact, without regard to intent”, 8 U.S.C. § 1101(a)(33). Any time one dwells and sleeps in the United States for a period of time, whether this is days, weeks, or months, the dwelling place in the United States would seem to have become one’s residence under this definition for that period of time, since what distinguishes that dwelling place from any other more permanent residence one may have is primarily one’s intent to return abroad, and the definitional provision (as opposed to other parts of the INA) specifically deems intent irrelevant.

On August 28, 2019, however, USCIS issued new guidance in the form of a Policy Alert, PA-2019-05, effective October 29, 2019, which will update the USCIS Policy Manual to impose a stricter interpretation of “residence” for purposes of INA § 301(c) and other provisions of the INA which use the term.  According to the new guidance in PA-2019-05, even spending two months at a time in the United States may not qualify as having ever had a “residence” there, if one lived outside the United States for the rest of the year and came to the United States to attend a summer camp or stay for a couple of weeks at a time with different relatives.  There is a specific example given where “As a child, U.S. citizen parent came to the United States for 3 consecutive summers to attend a 2-month long camp. The parent lived and went to school in a foreign country for the rest of the year.”  PA-2019-05 at 3.  It is said that this parent did not show past residence in the United States to enable transmission of citizenship under INA 301(c).

This follows on the heels of similar guidance from the State Department, which amended the Foreign Affairs Manual, specifically 8 FAM 301.7-4(B) (last amended June 27, 2018), to describe residence as a “very fact-specific test” that “takes into account the nature and quality of the person’s connection to the place.”  According to the current version of 8 FAM 301.7-4(B), “Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c).”  8 FAM 301.7-4(B)(h.) elaborates: “While the definition of residence is not dependent on a specific time period in the United States, the longer the duration of a person’s stay in a particular place in the United States (e.g., six months or more), the more likely it is that that place can be characterized as the person’s residence.  On the other hand, if the stay at a place in the United States was relatively brief (e.g., a few months or less), then in order for that place to be considered a “residence” additional evidence may be required to show why the stay, though brief, was other than a temporary visit.” The U.S. District Court for the District of Columbia recently upheld some State Department findings of lack of citizenship under this policy in Chacoty v. Pompeo.

This stricter interpretation of INA § 301(c), however, has some truly bizarre implications when it is read in the context of the rules governing transmission of citizenship to children born to one U.S. citizen parent and one non-citizen parent, and the rules governing citizenship to children born out of wedlock.  Counting periods of presence of “a few months or less” as not establishing residence even if repeated, as PA-2019-05 and the current version of 8 FAM 301.7-4(B) do, implies that certain U.S. citizen women who are contemplating giving birth to a child outside the United States ought to divorce their spouses, and leave them, in order to ensure that their children will be U.S. citizens.  It also implies that certain U.S. citizens contemplating starting families outside the United States should reject some U.S. citizen spouses in favor of non-citizen spouses, again to ensure that their future children will be U.S. citizens.

To see why, we need to turn first to INA § 301(g), 8 U.S.C. § 1401(g), which confers U.S. citizenship at birth on

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph.

That is, when a U.S. citizen parent has a child with someone who is not a U.S. citizen or national (what the statute calls an “alien”, although some immigration lawyers try to avoid using a word that makes noncitizens sound like they are from another planet), the basic rule is that the U.S. citizen can transmit citizenship if he or she has been actually or constructively physically present in the United States for a total of five years, at least two of which are after the age of 14.  This physical presence, even USCIS and the State Department recognize, is not limited to periods of time qualifying as “residence”; it covers any time spent in the United States (or spent abroad serving in the armed forces, or employed by the U.S. government or a qualifying international organization, or as the dependent unmarried son or daughter and household member of someone so serving or employed).  Indeed, the chart on page 3 of PA-2019-05 specifically credits its hypothetical purportedly non-resident U.S. citizen parents with the amount of physical presence they had accrued during their trips to the United States.

The next piece of the puzzle is INA § 309(a), 8 U.S.C. § 1409(a), which describes the circumstances under which fathers of a child born out of wedlock are considered for purposes of transmission of U.S. citizenship.  According to the statute:

The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if-

(1) a blood relationship between the person and the father is established by clear and convincing evidence,

(2) the father had the nationality of the United States at the time of the person’s birth,

(3) the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

(4) while the person is under the age of 18 years-

(A) the person is legitimated under the law of the person’s residence or domicile,

(B) the father acknowledges paternity of ‘the person in writing under oath, or

(C) the paternity of the person is established by adjudication of a competent court.

Children born out-of-wedlock to U.S. citizen mothers were formerly treated differently under INA § 309(c), 8 U.S.C. § 1409(c), which required a single year of continuous physical presence in the United States by the mother, but the Supreme Court declared this different treatment of mothers and fathers unconstitutional in its June 12, 2017 decision in Sessions v. Morales-Santana, and prospectively struck it down for children born after the Court’s decision.

With these legal background rules in mind, consider the situation of a U.S. citizen prospective parent who was born abroad and grew up primarily in a foreign country, but has come to the United States for two months every year—to visit relatives, to attend summer camp as a child, to serve as a counselor at that same summer camp as an adult, and so on.  By the time he or she is over age 30, he or she will have more than 60 months of combined physical presence, that is to say, five years, and more than two of those years of physical presence will have been after the age of 14.  According to PA-2019-05 and the current version of 8 FAM 301.7-4(B), however, it appears that USCIS and the State Department will consider such a U.S. citizen never to have had a “residence” in the United States.  The perverse effect of disregarding, as “residence”, periods of physical presence sufficiently substantial to add up to more than 5 years, is to leave such a U.S. citizen parent worse off under INA § 301(c) than under INA § 301(g), even though § 301(c) was apparently intended to be more lenient than §301(g).

Assume that such a U.S. citizen is contemplating marriage, and that one potential suitor is a U.S. citizen who does not meet the residence requirement (either because he or she has never been to the United States or because he or she fails the new stricter residence test), while another is not a U.S. citizen or national.  A child born outside the United States to this purportedly “non-resident” U.S. citizen and another non-resident U.S. citizen will not be a U.S. citizen, under the PA-2019-05 / 8 FAM 301.7-4(B) interpretation of INA § 301(c).  A child born in wedlock to this same U.S. citizen parent and a foreign parent, on the other hand, will be a U.S. citizen under INA § 301(g), because the U.S. citizen parent has accumulated at least five years of physical presence, at least two of which were after the age of 14.  So it appears that USCIS and the Department of State would suggest, at least implicitly, that our hypothetical U.S. citizen parent should make sure to marry the foreign prospective spouse and not the non-resident U.S. citizen prospective spouse.

This is bizarre enough, but it gets worse.  Assume that our hypothetical U.S. citizen prospective parent, with more than 60 months of physical presence accrued in two-month increments, is a woman who has already married a never-resident U.S. husband, presumably not having done the above analysis, and has become pregnant.  She would like to give birth to her child outside the United States, perhaps because that is where more of her relatives live, but she would like the child to be a U.S. citizen.  It appears that what she needs to do is divorce her U.S. citizen husband before the child is born, and make sure that the father does not take the steps prescribed by INA § 309(a), such as promising in writing to support the child as required by INA § 309(a)(3).

As a single parent, our hypothetical U.S. citizen mother presumably ought to again be subject to the rules of INA § 301(g), under which she qualifies to transmit citizenship.  As the Supreme Court put it in Sessions v. Morales-Santana, the “five- year requirement should apply, prospectively, to children born to unwed U. S.-citizen mothers.”  Morales-Santana, slip op. at 28.  State Department guidance asks a consular officer encountering the situation of an out-of-wedlock child born to U.S. citizen parents after June 2017, where the father has not satisfied the requirements of INA § 309(a), to “please refer to AskPPTAdjudication@state.gov”, but it is difficult to see how that office could reject a claim valid under INA § 301(g) on the basis that the existence of the father, who could not be counted as relevant under the statute, should leave the mother and her child worse off than if the father was a non-citizen or was simply unknown (or was claimed to be unknown).  Indeed, the Foreign Affairs Manual specifically states at 8 FAM 301.7-4(E)(3)(g.) that

An individual born abroad out of wedlock on or after June 12, 2017 to a U.S. citizen mother and alien father acquires U.S. citizenship at birth if the U.S. citizen mother has been physically present in the United States for five years, two of which are after the age of 14, prior to the child’s birth.

Regardless of what AskPPTAdjudication@state.gov would say if confronted with affirmative documentation of a known U.S. citizen father who did not satisfy INA § 309(a), it is difficult to picture an interrogation regarding the identity of the father followed by a denial of U.S. citizenship because the suspected father was thought to be a U.S. citizen himself.

Nor is this the end of the absurdities created by the current interpretation.  There is the concept in immigration law of a sham divorce, if the parties to a former marriage do not actually separate but continue to reside together and have divorced only for immigration purposes, as described in Matter of Aldecoaotalora, 18 I&N Dec. 430 (BIA 1983).  Such a divorce is not considered valid for immigration purposes.  Thus, it appears that our hypothetical U.S. citizen mother should not merely divorce her husband, but also actually leave him, if she wishes to be able to transmit U.S. citizenship, lest her divorce be deemed a sham under Matter of Aldecoaotalora.

There is a certain amount of déjà vu in all of this for the author of this blog, who wrote a law journal article more than a decade ago that discussed a similar anomaly formerly applicable to a mother born in the United States who left after the age of one year and before the age of sixteen, due to the separate provision of INA § 309(c), 8 U.S.C. § 1409(c), for children born out of wedlock to U.S. citizen mothers.  With its 2017 decision in Sessions v. Morales-Santana striking the separate rule of INA § 309(c) as unconstitutional, however, the Supreme Court has eliminated that anomaly for children born on or after June 12, 2017.  USCIS and the State Department appear determined to create another one.

If the U.S. government does not really mean to be encouraging some prospective mothers to divorce and leave their husbands, and encouraging other prospective U.S. citizen parents to make sure to marry foreigners rather than U.S. citizens, it should reconsider the guidance contained in as PA-2019-05 and the current version of 8 FAM 301.7-4(B), and return to the earlier, more liberal construction of “residence”.  Indeed, the bizarre result produced by the current guidance suggest that it may be incompatible with the legislative intent behind the statute, since one doubts that the Congresses that enacted the relevant sections of the INA intended to encourage divorce or the favoring of foreign spouses over U.S. citizen spouses.  Courts adjudicating future litigation regarding INA § 301(c), and lawyers litigating cases regarding INA § 301(c), would be well advised to consider this.

Cyrus Mehta

The Ethics of Law Reform Activities Affecting Client Interests in Light of the Fairness for High Skilled Immigrants Act

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The Fairness for High Skilled Immigrants Act has divided the immigrant community as well as immigration attorneys. The bill seeks to eliminate per-country caps without expanding the number of visas in the EB categories.  The House version, HR 1044, has already passed with an overwhelming majority on February 7, 2019. The Senate version, S. 386, has not yet passed through unanimous consent.  A Senator has objected each time it has come up for unanimous consent. Senator Durbin is the latest Senator to object.

If the country caps are eliminated, the queue for Indian EB-2 and EB-3 beneficiaries will lessen substantially, which currently is several decades long. One Cato Institute study anticipates that the wait time could be 150 years.  The elimination of the per-country limits will allow visas to be taken up on a first come first served basis.  Those backlogged in the EB-2 and EB-3, mainly Indian nationals, are fervently hoping for S. 386 to pass. By eliminating the per-country limits, Indian nationals may ultimately face a wait time of just a few years as compared to several decades.  On the other hand, those from the Rest of the World (ROW) may face waiting times under the first come first served basis. Many are opposed to the passage of S. 386 as even waiting a few years will make them worse off than now. At present, they do not have any wait time in the EB-2 and EB-3 while Indians may wait for several decades.

Most immigration attorneys have clients from India and the rest of the world. Some attorneys are torn and are taking a neutral position. Other attorneys are opposing S. 386 while some are in support. Given the division among its members, AILA has taken a neutral position on the bill.

At issue is whether an attorney can ethically support or oppose S. 386, or take a neutral position, even though under any of these positions, some clients may benefit while others may not.

The starting point is ABA Model Rule 6.4 entitled Law Reform Activities Affecting Client Interests, which provides:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

Note that ABA Model Rule 6.4 is non-binding, and an attorney needs to also consult the analog of 6.4 within their state rule of professional conduct. Model Rule 6.4, which provides the analytical framework for this blog, explains that a lawyer can be a member of an organization, such as a bar association or a trade association, that is advocating for law reform even though it may affect the interests of the lawyer’s client, positively or adversely. While Model Rule 6.4 allows the lawyer to take a position even though it may affect the interests of the client, the lawyer is nevertheless required to disclose to the organization whether any decision materially benefited the client, but there is no need to identify the client. The requirement to disclose any material benefit to a client ought to be interpreted in a reasonable manner. AILA, for example, takes many positions that benefit the lawyer’s client, but if each lawyer were to make disclosure, it would become too impractical. Therefore, the reference to benefits in Model Rule 6.4 is, implicitly, to benefits unlikely to be obvious to the rest of the organization or leadership. Most of the time, the client benefits we deal with in AILA are obvious and widespread, such that repeated disclosure would be both pointless and unwieldy.

Let’s suppose a lawyer is a member of a trade association that advocates for an increase in visa numbers for the EB-5 category. This organization, which we will call “EB-5 Trade Association” is actively lobbying for an increase in the annual 10,000 limitation in the EB-5 by suggesting that some of the numbers can come from the 50,000 visas reserved under the Green Card Diversity Lottery Program. This lawyer, who has mainly EB-5 clients, also has clients who may benefit if they win a lottery under the Diversity Program. By advocating that the visa numbers in the Diversity Lottery Program be reduced and given to EB-5, if Congress amends the law, it will reduce the chances of this lawyer’s clients to win the lottery.  Still, under Model Rule 6.4, this lawyer can ethically advocate for the reduction in visa numbers in the Diversity Program in favor of the EB-5 category.

What if EB-5 Trade Association also advocates for a reduction in visa numbers in the family fourth preference category (F4) and the lawyer has clients who have I-130 petitions for some clients under the F4? Under Rule 6.4, a lawyer can even advocate for a reduction in the F4 too in favor of an increase in visas under EB-5 as a member of EB-5 Trade Association. As a practical matter, any advocacy of this sort will most likely include a proviso that existing F4 beneficiaries be protected and that the abolition of F4s would only occur for new applicants. Still, there is no way to predict the end result of such advocacy. In most instances, advocacy efforts do not result in a change of law. Or if there is a change in law, the end result may be very different from what was essentially advocated by the organization.

The next question is whether the lawyer’s advocacy efforts could create a conflict of interest? Let’s examine the Comment to Model Rule 6.4:

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.

The key take away from the Comment to Model Rule 6.4 is that a lawyer does not have a lawyer-client relationship with EB-5 Trade Association by virtue of being a member. Even if the lawyer is the head of a task force within EB-5 Trade Association actively putting forward position papers, it does not result in a lawyer-client relationship with the organization. However, the Comment to Model Rule 6.4 still cautions that “a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.”

Rule 1.7(a) states;

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In the context of the lawyer’s membership in the EB-5 Trade Association, there is no question of the representation of one client being directly adverse to another under Rule 1.7(a) (1). EB-5 Trade Association is not the lawyer’s client. However, under Rule 1.7(a)(2), there is a possibility that the lawyer’s representation may be materially limited to the F4 client by a personal interest of the lawyer. Let’s assume that the lawyer is so passionately involved in the EB-5 reform effort to take numbers from the F4 and give them to the EB-5 that the lawyer begins to abhor the F4 client and loses interest in representing the F4 client. The lawyer’s representation of the F4 client is now materially limited by the lawyer’s passionate zeal in bringing about EB-5 reform.

On the other hand, even if the lawyer is consumed by zeal in the EB-5 reform effort, under Rule 1.7(b)(1),  the lawyer can still represent the F4 client if the lawyer reasonably believes that she will be able to provide competent and diligent representation to the affected client. In most cases, that will be so, but if the lawyer develops an abhorrence toward the F4 client and fails to represent the client competently and diligently, the lawyer clearly has a personal interest conflict and must withdraw from that representation.

Model Rule 6.4 only speaks to reform efforts of the lawyer within the context of an organization. What about personal capacity lobbying or advocacy efforts by a lawyer? AILA is not taking a stand with respect to S. 386 and most lawyers are advocating one way or the other in their personal capacities. There is no comparable ethical rule like Rule 6.4 governing a lawyer’s personal capacity lobbying or advocacy efforts. However, one can use the same framework of Rule 6.4 in arguing that just as a lawyer can engage in law reform efforts as a member of an organization even if it materially affects the interest of a client, a lawyer can do so even in a personal capacity. The lawyer by virtue of doing so in a personal capacity would not have a disclosure requirement, as under Rule 6.4, if the reform effort materially benefitted a client.  Regardless, the lawyer must still be mindful of personal interest conflicts under Rule 1.7(a) (2) as illustrated above.

With respect to S. 386, whatever position one adopts, it is likely to adversely affect the interest of a client in the event that the lawyer has both Indian and rest of the world clients. By lobbying against S. 386 in favor of ROW clients, the lawyer’s advocacy adversely affect the interests of Indian clients who will not benefit if S. 386 does pass. Conversely, when the lawyer advocates for S. 386, the lawyer’s ROW clients could get adversely affected. Of course, the evaluation of harm to the client is not black and white. A lawyer who opposes S.386 is doing so in the hope that the bill will improve and include more visa numbers for all, although the likelihood of S.386 passing will lessen in today’s polarized environment and Indians will continue to remain backlogged in the per country caps with their children also likely to age out. A lawyer who favors S.386 realizes that while the bill is not perfect, this is an incremental first step where discriminatory per-country quotas get eliminated with the possibility of creating a fair system for all in the long run. Given other failed reform efforts over the past 10 years, this bill has the best chance of passage with the hope that it will serve as down payment for further reform such as adding more visas through not counting derivatives in the future (in the interest of full disclosure, this has been my reason for supporting an otherwise imperfect bill).

In the end, all of these positions that the lawyer may take with respect to the Fairness in Immigrant Worker Act are ethical – for, against or remaining neutral. In addition to any potential personal conflict of interest, the lawyer would also need to take business and reputational considerations into account, which are quite separate from the ethical consideration. Restrictionist organizations are also not supporting S. 386 for different reasons, and if the lawyer relies on the positions of these organizations in also advocating against S. 386, such as retweeting Breitbart twitter posts against the ill effects of Indian immigration,  the lawyer should be mindful of any reputational damage that may result through such tactics, including motivating USCIS to view H-1Bs from Indian IT firms more harshly.  If S. 386 passes, then all lawyers must come together to further improve the law (and there will surely be such an incentive when people other than Indians are in a waiting line), and if it does not pass, then all lawyers should still come together to improve the law for Indians. Note that even if the EB-2 and EB-3 ROW are current, the EB-1 for India, China or ROW are not current. The EB-5 too for China, Indian and Vietnam are not current.  The present system is broken and is badly in need for reform.

In conclusion, a lawyer can adopt different positions regarding the Fairness for High Skilled Immigrants Act  even if it may not immediately benefit all their clients.  If a lawyer is constrained in undertaking law reform efforts either through an organization or in a personal capacity, it would surely chill the lawyer’s ability to take positions on proposed legislation as well as undermine the lawyer’s exercise of free speech under the First Amendment.

 

Cyrus Mehta

Musings on the October 2019 State Department Visa Bulletin in Light of the Fairness for High Skilled Immigrants Act

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The State Department Visa Bulletin for October 2019 reflects forward movement as anticipated with the beginning of the federal fiscal year, except for the employment-based first preference (EB-1). It also does not look promising for many EB categories involving India.  According to Charlie Oppenheim, there is normally full recovery or almost full recovery of the Final Action Dates from the previous year. Low level of demand would allow for thousands of unused numbers from the EB-4 and EB-5 of the previous year to become available for use in the EB-1.  Those numbers unfortunately have not been available in recent years, and the high demand for numbers has required the application of Final Action Dates for all countries, and the dates for China and India have actually retrogressed during the past year in EB-1. Mr. Oppenheim forecasts for the upcoming fiscal year that there is no expectation that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future, and he further anticipates that both EB-1 India and EB-1 China will be subject to their minimum statutory limits of (approximately) 2,803 visa numbers for at least the first half of fiscal year (FY) 2020.

Mr. Oppenheim also reminds AILA members that for planning purposes they should not expect any of the EB-1 categories to become current at any time in the foreseeable future. He further predicts that there will not be any movement for EB-1 India until January 2020 at the earliest. There has been little movement in the EB-2 and EB-3 for India as well as the EB-5. On the other hand, the EB-2 and EB-3 for the rest of the world have become current. The Family 2A continues to remain a bright spot and is current for all countries.

In another interesting development, USCIS has designated the filing charts for both family-sponsored and employment-based preference cases for October 2019. For the F2A category, there is a cutoff date listed on the Dates for Filing chart. However, the category is “current” on the Final Action Dates chart. USCIS has indicated that applicants in the F2A category may file using the Final Action Dates chart for October 2019. T

This is development is most welcome. One who is caught in the India EB-5 retrogression can nevertheless file an I-485 adjustment of status application under the EB-5 Filing Dates, which is current for India. By filing an I-485 application, the applicant can obtain employment authorization and travel permission while waiting for permanent residence in the United States. Despite the broader use of Filing Dates from October 2019, it is odd that the USCIS does not allow the freezing of the age of the child under the Child Status Protection Act based on the Filing Date being current rather than the Final Action Date. As explained in a prior blog, if the Filing Date cannot be used under the CSPA, a child would still be able to file an I-485 application under the Filing Date, but if the child ages out before the Final Action Date become current, the I-485  application of the child will get denied and this will put the child in serious jeopardy.

It is really disappointing that the EB-1, which was designed to attract persons of extraordinary ability, outstanding professors and researchers and high level multinational executives and managers has gotten jammed. EB-1 for India will now likely suffer the same fate as EB-2 and EB-3 for India. However, since I-485 applications can be filed based on the Filing Dates, an EB-1 with a priority date up to March 15, 2017 can file an I-485 application although the EB-1 India Final Action Date is an abysmal January 1, 2015. This is why HR 1044 , Fairness for High Skilled Immigrants Act, is awaited with so much anticipation by India and China born beneficiaries. The bill will eliminate the country caps.  After it passed the House with an overwhelming majority on February 7, 2019, a similar version, S. 386, did not go through the Senate on September 19, 2019 through unanimous consent. Senator Perdue objected, and the bill’s sponsor Senator Lee has indicated that he is trying to work with Perdue to address his concerns. On the other hand, those not born in India and China were pleased that the bill has not pass. While it will shorten the backlogs for those from India and China, people from the rest of the world claim that they will all of a sudden be subject to backlogs in the EB-2, EB-3 and EB-5.

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

HR 1044/S. 386 has unfortunately led to divisiveness in immigrant communities and even among immigration attorneys. If enacted, this bill would eliminate the per-country numerical limitation for all employment-based immigrants, and increase the per-country limitation for all family-sponsored immigrants from seven percent to 15 percent. One significant feature of this bill that distinguishes it from prior versions of this legislation is a “do no harm” provision. This provision states that no one who is the beneficiary of an employment-based immigrant visa petition approved before the bill’s enactment shall receive a visa later than if the bill had never been enacted. Notably, the “do no harm” provision only applies to employment-based immigrants and does not apply to family-sponsored immigrants.  The Senate version also includes a set-aside provision for no fewer than 5,000 visas for shortage occupations, as defined in 20 C.F.R. 656.5(a), which would include nurses and physical therapists, for Fiscal Years 2020-2028. It also retains the H-1B internet posting requirement proposed in the Grassley Amendment to S. 386, with some change. Specifically, the H-1B internet posting requirements will not apply to an H-1B nonimmigrant who has been counted against the H-1B cap and is not eligible for a full 6-year period or an H-1B nonimmigrant authorized for portability under INA 214(n). It also retains the “do no harm” provision for all EB petitions approved on the date of enactment and the three-year transition period for EB-2 and EB-3 immigrants, but does not include EB-5 immigrants in the transition period.

Notwithstanding the “do no harm” provision, there are fears that people born in all countries who apply after enactment will be subject to wait times, especially in the EB-2 and EB-3, which are now current for the rest of the world. While there is no way to accurately estimate the long term effect on wait  times, a Wall Street Journal article cites a forthcoming analysis from the Migration Policy Institute indicating that “depending on the type of green card, the delay could be between 2.9 and 13.5 years.” This estimate, which has not been published,  does not take into consideration the recently introduced “do no harm” provisions or the carve outs for nurses.  AILA is not aware of a comprehensive, independent, and publicly available analysis regarding how the House and Senate versions of the Fairness for High-Skilled Immigrants Act of 2019 would impact both the current employment-based and family-sponsored immigrant visa queues as well as future immigration flows.

The 1965 Immigration Act, which eliminated the national origin quotas of the 1924 Act, is justly celebrated as a civil rights measure that opened up the United States to global migration for the first time. The intention was to set the same percentages of caps for all countries.  As a result of the limited supply of visas each year, and the increased demand from India and China, it has again indirectly created a national origins quota, where people from certain countries do not have the same opportunities as others to immigrate to the US. If you are from Mexico or the Philippines, the family-based quotas delay permanent migration to the United States to such an extent that it is virtually blocked. The categories might just as well not exist for most people. If you are from China or India with an advanced degree, the implosion of the EB-2 and EB-3 categories does not regulate your coming permanently to the United States; it makes it functionally impossible. Why should a country like India with a population of over a billion that sends many more skilled people to the US and are also in demand by US employers for those skills be subject to the same 7% per country limitation as Iceland that has 320,000 people?  India, for example, is indeed a continent like Europe or Africa, with great diversity in religions. In addition to Hindus, there are millions of Muslims and Christians along with Sikhs, Buddhists, Jains, Jews and Zoroastrians. Besides Hindi and English as official languages, there are 22 regional languages. Still, each country within Europe gets 7% of the visas while India gets only 7%. So the contention that US will lose diversity if country caps are lifted can also be rebutted, though what is the most important consideration is whether demand for skills disproportionately from India are being fairly allocated under the per country limitations. They are not. The purpose of the 1965 Immigration Act was undoubtedly noble, but due to ossified per country limits over the years has led to invidious discrimination against Indians and Chinese, which essentially amounts to national origin discrimination that the 1965 Immigration Act sought to abolish.

The immigration system as it exists today is a mess and the status quo is unacceptable. The bill is not at all perfect, but it at least aims to eliminate the invidious discrimination that has befallen Indians and Chinese in the EB categories. The easy passage of H.R. 1044 in the House in an otherwise political polarized environment, just like its predecessor HR 3012 in 2011,   shows that there is concern about the unfairness and imbalance in the system towards certain countries. Things may work out better than expected if H.R. 1044 became law, though, and the fears of the critics may be exaggerated and overwrought. No published analysis has taken into consideration the “do no harm” and carve out provisions.   We have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because the American Competitiveness in the 21st Century Act, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand  outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today.  The restrictionist organizations like CIS and FAIR know this, which is why they are opposing the passage of the bill. It is paradoxical that immigration attorneys who oppose this bill are on the same bandwagon as CIS and FAIR without fully well knowing the impact of the bills.

Even if H.R. 1044 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness. As noted, there is no credible data as yet that opponents of the bill have cited to support the waiting times that will ensue for others under the bill. Still, we are aware of the atrociously long existing waiting times that the current system imposes on Indians.  It is cruel to let someone languish for 70 years in the backlogs and then for their child to also languish for another 70 years.  Under the current system, all EB-1s are already in waiting lines. Chinese, Vietnamese and Indians are also in waiting lines under EB-5. The EB-4 is currently unavailable for the whole world. The question is whether to kill H.R. 1044, and let Indians continue to languish for the rest of their lives and their children also continue to languish for their lives  too (as it takes 150 years), or let is pass in order to provide relief to while continuing to reform the system with better solutions.  While clearly not perfect, H.R. 1044 ought to be viewed as a down payment for further improvements in the system. H.R. 1044 would have at least gotten rid of the country limits, which over time, inadvertently result in national origin discrimination. There is no moral justification in preserving country per limits as it hinders the ability of employers to hire people with the best skills, regardless of the country they come from.   In the event that  immigrants are made to wait under the new system, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the overall visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities.

The best solution is to do away with overall visa caps and country caps altogether. Let the market and employers determine who comes to the US based on their skills. The law already sets baseline standards such as a test of the labor market at the prevailing wage, or whether the person can seek an exemption by virtue of being extraordinary or working in the national interest. Quotas are thus superfluous and unnecessary.  Removing all visa caps, on the other hand,  is admittedly politically unrealistic. Then how about increasing the overall visa limits under each EB category, and also have a safety valve where the cap can increase if there is even more demand? If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to employment-based immigrants, Congress may wish to exempt certain people from the numbers such as graduates with STEM degrees and some who qualify under EB-1 or the National Interest Waiver under EB-2, or better still, to not count dependent members separately. Another idea is to allow the filing of I-485 adjustment of status applications even if the priority date is not current. Yet another idea is to grant deferred action and employment authorization to deserving beneficiaries affected by the imbalance in the immigration system.   All of these ideas have been explored in The Tyranny of Priority Dates that was published in 2011 and followed by How President Obama Can Erase Immigrant Visa Backlogs with a Stroke of a Pen in 2012, which provided for ways the administration could bring about reform without going through Congress. Since the publication of these articles, some ideas whether through uncanny coincidence or by accident came into fruition under the prior Obama administration such as the dual chart visa bulletin (that provides for a modest early adjustment filing), employment authorization under compelling circumstances and granting deferred action for certain non-citizens under DACA. In an ideal world, the same sort of deferred action could be given to children of backlogged beneficiaries who may age out.   There is only so much that can be attained through administrative measures, and they are also vulnerable to court challenges as we have seen with DACA and STEM OPT. If Congress steps in to specifically eliminate the counting of depravities and the filing of early I-485 applications, they can result in dramatic relief for those caught in the backlogs.  All this will be preferable to HR 1044, but it has not materialized despite failed attempts over several years. S. 744 and the I Square Act provided for more comprehensive fixes, but they have fallen by the wayside.  So can HR 1044 move ahead for now while there is a chance, while we all relentlessly continue to fight for further fixes please?

 

 

Cyrus Mehta

Migrant “Protection” Protocol: A Report from the Front Lines

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by Stacy Caplow and Maryellen Fullerton*

The laws and policies protecting refugees and asylum seekers in the United States are under sustained assault.  Since 1980, Congress has provided that noncitizens in the United States or at its borders “whether or not at a designated port of arrival” may apply for asylum.[1]   Disagreeing with the statute, but lacking the votes to pass revised immigration legislation, the Trump Administration has chosen to defy the law, announcing and implementing numerous doctrines, programs and policies designed to interfere with or prevent people from exercising this right.  Three new policies in particular have combined to sabotage the asylum statute and create chaotic situations for asylum seekers at the U.S.-Mexico border.

In November 2018 President Trump issued an Executive Order aimed at individuals who do not cross at a designated entry point:  they are banned from applying for asylum.[2]  In January 2019, the Trump Administration took aim at individuals who arrived at the designated ports of entry:  they must remain in Mexico while their asylum cases proceed in Immigration Courts in the United States.[3]  In July 2019 the Trump team added a new hurdle:   all people, including children, who traveled through another country en route to the United States are forbidden to apply for asylum.[4]  By August 2019, there were reports of more than 10,000 asylum seekers waiting in Tijuana, Mexico for their asylum cases in the United States.  These changes followed the highly criticized “zero tolerance” approach that separated parents and children, warehousing children in unsafe, unsanitary conditions.  Although courts have temporarily blocked many programs, every week another, heretofore unimaginable, assault on the individuals and families seeking protection in the United States appears.

As Brooklyn Law School experts in asylum law, we responded to a call for volunteers to assist asylum seekers bottled up in Tijuana.  The legal situation is bleak.  We and other lawyers spent long weekend hours working at Al Otro Lado, an indefatigable nonprofit trying to help the asylum seekers just across the border in Mexico.  We worked with asylum-seeking families from Honduras, Guatemala, Cuba, Venezuela and elsewhere, all caught in a process that is incomprehensible to them (and to us).  Mexico has allowed them to remain during the pendency of their asylum claims in the United States, but they are not authorized to work.  In Tijuana, a stone’s throw from the United States border, they live in shelters, depend on handouts for food; their children – and there are many among the group we assisted – are not enrolled in school.  They exist in limbo, and their circumstances are untenable.

The Migrant Protection Protocols, the Orwellian name that the Trump Administration has applied to its program keeping migrants away from protection, is known colloquially as the   “Remain in Mexico” policy.  Having now spent time on both sides of the border, we can report what we saw with our own eyes.  From our vantage point on the ground in Tijuana, several facts were paramount.

First, many of the asylum seekers came to the U.S.-Mexico border as families with small children.  They sought out U.S. officials to request asylum.  After detention in hieleras (ice boxes) for many days U.S. officials returned them to Mexico.  They carried with them their identity documents, their children’s birth certificates, letters from school principals about gang threats at their elementary school, news articles about gang murders of family members.  They are not the stereotypical economic migrants attempting to slip undetected across the border. Nor are they gang members bent on terrorizing Americans.

Second, the current policy whose clear aim  is to deter, delay, and discourage asylum seekers, is also a policy to defy the laws of the United States that provide for due process in the asylum determination.   At pre-dawn hours, whole families are bused across the border for an Immigration Court proceeding in San Diego.  Later that day, the U.S. bus returns them and deposits them on the Tijuana side of the border.  Almost all the asylum seekers we met had already been to San Diego Immigration Court at least once and were destined to return multiple times—in almost every case, without a lawyer, forced to articulate their claim through an interpreter they had never met before..

A typical case may involve four visits to Immigration Court, each separated by weeks or months. The first trip provides formal notice of the charge that the asylum seeker has attempted to enter the United States without prior approval.  Then, the case is adjourned for sometimes months, to give the applicant time to seek legal assistance.  This is quixotic, even cynical because it raises false hopes. There simply are no resources to provide legal representation to so many people bottled up on the Mexican side of the border. The second Immigration Court appearance, with the applicant still unrepresented, typically involves submitting a formal request for asylum, followed by another adjournment during which  the applicant can gather documents, official translations, and other evidence relevant to the asylum claim.   Al Otro Lado volunteers scramble to provide translations since the law requires English versions for even birth certificates and other obvious documents.   A third trip to San Diego Immigration Court frequently provides the asylum seeker the opportunity to submit any evidence that supports the application for asylum.  The Immigration Judge then schedules a court hearing on the merits of the asylum claim.  Finally, on the fourth (at the minimum) journey, the asylum seekers will testify—again pro se—and  the Immigration Judge will review and assess the evidence.  To date, no substantive hearings have actually taken place.  Meanwhile, the asylum seekers—adults and children—languish in Mexico.  This dilatory pace ensures that many will give up and leave Mexico.  They aren’t working; their kids aren’t in school; they have no access to medical care; they are caught in an interminable and unfathomable situation.

Third, the Remain in Mexico policy effectively undercuts the legally guaranteed right to the assistance of counsel.  Noncitizens in Immigration Court proceedings do not have the right—as do criminal defendants—to appointed counsel.  But they do have the right to have an attorney represent them in these life and death matters if they can find one.  Forcing asylum seekers to remain in Mexico guarantees that this never happens.  It ensures they will have to proceed pro se because they cannot cross into the United States to meet with an attorney to prepare their case.

We met many asylum seeker in Tijuana clutching papers they had received on their first visit to Immigration Court.  The Immigration Court, required to provide information to indigent individuals on sources for free or low-cost legal assistance, had handed out the standard list  of California nonprofit legal organizations. This is an exercise in futility.  These organizations and local pro bono lawyers do not have the capacity to handle the volume of asylum seekers in Tijuana or the ability to properly prepare the applications.  Even more fundamentally, the asylum seekers cannot cross the border to consult with U.S.-trained attorneys who might be able to help them.[5]

Al Otro Lado tries to fill this gap with know-your-rights presentations in Tijuana, some referrals to social services, document translations and—once a month—a volunteer legal clinic where lawyers who can make their way to Mexico try to help asylum seekers fill out applications.  But Al Otro Lado cannot provide direct representation to the flood of people essentially blockaded from U.S. legal assistance.  And we know how much legal representation matters:  studies show that 60% of those represented by a lawyer in Immigration Court are successful compared to 17% of those who are unrepresented.[6]

During our short time in Tijuana, we saw the dehumanizing effects of the Remain in Mexico program. The aggregation of these conditions—the hazardous journey, the apprehension, the detention, the bare survival for months in desperate conditions, the anxiety of the repeated court proceedings, the absence of a true legal advocate—makes a mockery of one of the most universally accepted norms: refugees must be protected.

Our legal assistance was a drop in the bucket, but as we stood in line waiting to walk across the border back into the United States, we understood more poignantly than ever the freedom we enjoy.  We cannot return to Tijuana every month, but, as lawyers, we are committed to continue making a contribution.  We are encouraging our students to do the same.  Our efforts to increase representation of immigrants in New York[7] have proven what a difference even a little bit of legal assistance can make.

 

* Guest authors Stacy Caplow and Maryellen Fullerton are Professors of Law, Brooklyn Law School.

[1] Immigration & Nationality Act § 208(a)(1).

[2] Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States, Nov. 9, 2018, implemented via Interim Final Rule, Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934 (Nov. 9, 2018).

[3] U.S. Dept. Homeland Security, Migrant Protection Protocols, Jan. 24, 2019.

[4] Third-Country Asylum Eligibility Rule, 84 Fed. Reg. 35409 (July 16, 2019) (partially stayed, Barr v. East Bay Sanctuary Covenant, (9th Cir. Aug. 16, 2019), appeal pending, see Amy Howe, Government Seeks Emergency Relief on Asylum Rule, SCOTUSblog, Aug. 26 2019).

[5] Early reports show that up to June 2019 only 1.2% of noncitizens subject to MPP were represented by lawyers. TRAC Immigration, Access to Attorneys Difficult for Those Required to Remain in Mexico, July 29, 2019.

[6] Ingrid Eagly & Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council (2016).

[7] Accessing Justice:  The Availability and Adequacy of Counsel in Immigration Proceedings, 33 Cardozo Law Rev. 357 (2011).

Cyrus Mehta

Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing a Denial of a National Interest Waiver

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Filing lawsuits in federal court to challenge erroneous denials of visa petitions by USCIS have become more frequent. There is more of a shot at a reversal when a federal judge reviews a denial of the USICS. Under the Administration Procedures Act, a court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. §706(2)(A). Seeking review in federal court under the APA is far more powerful that appealing a denial to the USCIS’s Administrative Appeals Office, which seldom reverses denials. Sometimes, however, a challenge in federal court can get nixed if the court finds that it has no jurisdiction to review a discretionary decision under §242(a)(2)(B)(ii) of the Immigration and Nationality Act.

In Poursina v. USCIS, the plaintiff sadly found out that a federal court had no jurisdiction to review a denial of his request for a national interest waiver under the jurisdiction stripping §242(a)(2)(B)(ii) because the granting of a national interested waiver is inherently discretionary.

INA 242(a)(2)(B) is reproduced below in its entirety:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-

(i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245, or

(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 208(a) of this title

The Ninth Circuit in Poursina v. USCIS relied on INA 242(a)(2)(B)(ii), which requires that Congress must specify n the statutory provision that the decision must be in the discretion of the Attorney General or Secretary of Homeland Security. At issue is whether Congress specified that the issuance of a national interest waiver under INA 203(b)(2)(1)(A) is a discretionary decision.

If a national interest waiver is granted, a foreign national can waive the employer’s sponsorship through a labor certification in the employment-based second preference. Specifically, INA § 203(b)(2)(1)(A) states that the “Attorney General may, when the Attorney General deems to be in the national interest, waive the requirements….that an alien’s services in the sciences, arts, professions,  or business be sought by an employer in the United States.”  Note that under the Homeland Security Act of 2002, Congress transferred this authority from the Attorney General to the Secretary of Homeland Security.

INA § 203(b)(2)(1)(A) does not contain magic words such as “in the discretion of the Attorney General” to place it within the purview of the jurisdiction stripping provision. Still, the Ninth Circuit in Poursina v. USCIS opined that words like “may” and “deems it so” suggested some measure of judgment, and thus discretion on the part of the Attorney General (now the DHS Secretary) in granting a national interest waiver.  Moreover, the Ninth Circuit was also enamored by the fact that the invocation of “national interest” inherently exudes deference to the Executive Branch, See Webster v. Doe, 486 U.S. 592 (1988),  and further invokes broader economic and national security considerations that are firmly committed to the discretion of the Executive Branch, See Trump v. Hawaii, 138 S. Ct. 2392 (2018).

But assuming the Ninth Circuit’s logic was correct, even within a discretionary decision that may be immune from judicial review under INA 242(a)(2)(B)(ii), there may be purely legal questions that are non-discretionary. Indeed, the precedent decision of the Appeals Administrative Office in Matter of Dhanasar imposed such objective criteria that required the DHS Secretary to measure the national interest claim under those criteria rather than through the exercise of unbridled discretion. A person seeking a national interest waiver mush show:

(1)that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. If these three elements are satisfied, USCIS may approve the national interest waiver as a matter of discretion.

Notwithstanding these criteria that are similar to other undisputable objective regulatory criteria in determining who is extraordinary under INA § 203(b)(1)(A) and 8 CFR § 204.5(h)(3)(i)-(x), the Ninth Circuit in Poursina v. USCIS strangely held they fell short of a legal standard, and the Dhanasar standards expressly reserved the issuance of the waiver “as a matter of discretion.” But is there not always some discretion in all agency adjudications?  Even under the extraordinary ability standard pursuant to §203(b)(1)(A) there is discretion in determining whether fulfillment of the evidentiary criteria under 8 CFR § 204.5(h)(3)(i)-(x) can survive a final merits determination. See  Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).  Yet, courts have always assumed jurisdiction over appeals challenging denials under extraordinary ability standard.

One should therefore be able to argue that a federal court is not forever precluded from reviewing a denial of a national interest waiver. If  for example the USCIS does not apply the Dhanasar standard whatsoever in a future case, would that then pose a purely legal question or will a court, following  Poursina v. USCIS, throw out the case under INA 242(a)(2)(B)(ii)?  In fact, with respect to a denial of Poursina’s second national interest waiver, Poursina claimed that he never received a request for evidence. The Ninth Circuit ultimately shot down that claim on the grounds that Poursina did not update his address with USCIS in time, but agreed that a constitutional claim, such as this, is not subject to INA §242(a)(2)(b)(ii)’s jurisdictional bar.

One Third Circuit case, Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005) is especially noteworthy and discussed in David Isaacson’s blog.  Pinho’s adjustment of status application was denied because he was found to be ineligible as a result of a disqualifying conviction. However, that conviction was vacated and the charges were dismissed, but the adjustment application was still erroneously denied on the ground that his vacated guilty plea still met the definition of “conviction” under the INA.  Pinho was not placed in removal proceedings and he sought review of the denial of his adjustment of status application in federal court under the APA despite the bar on review of discretionary decisions, including adjustment of status under INA §242(a)(2)(B)(i), which is the companion jurisdiction stripping provision to INA §242(a)(2)(B)(ii). The Third Circuit Court held that this denial was based on the legal question of whether Pinho was statutorily eligible for adjustment of status, and thus fell outside the purview of the jurisdiction stripping clause.  The Third Circuit stated, “To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.”

Hence, under Pinho, there may still be scope to review a denial of a discretionary national interest waiver denial in federal court if there was a legal error or a constitutional claim. It must be acknowledged that the facts in Pinho were different as that case clearly concerned statutory eligibility without any element of discretion.    It remains to be seen whether a plaintiff can show legal error if the standards set forth in Matter of Dhanasar are not properly evaluated by the USCIS even though the application of those standards require discretion. This argument was not successful in Poursina v. USCIS, as the Ninth Circuit was of the opinion that the Dhanasar standards still smacked of discretion.  Moreover, in Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court held that only decisions actually declared discretionary by statute can be immunized from judicial review and not decisions made discretionary by regulation. This would also apply in the reverse. A discretionary statute cannot be made non-discretionary by regulation, or by standards set forth by the AAO in precedent decision such as Dhanasar.

While Poursina v. USCIS may have immunized national interest waiver denials from judicial review, the holding should be limited to national interest waivers only and should not impact the ability to challenge denials of other visa petitions in federal court, such as H-1B, L, or EB-1 cases.  The language of INA 214(c)(1) about how a nonimmigrant petition “shall be determined by the Attorney General” is even further away from explicit discretion than the national interest waiver language , and INA §203(b)(1)(A) regarding EB-1 cases doesn’t even have that level of Attorney General authority specified. Thus, in an APA action challenging a religious worker denial under INA §203(b)(4), the Third Circuit in Soltane v. US Dep’t of Justice, 381 F.3d 143 (3rd Cir. 2004) held that the provision did not specify that the Attorney General had discretion.  In Residential Finance Corporation v. USCIS, a federal district court in Ohio reversed a denial of an H-1B case and the court also overrode the objections of the government that it did not have jurisdiction under INA §242(a)(2)(B)(ii). None of the provisions governing approval of an H-1B petition specified that granting a petition is in the discretion of the Attorney General. The court in Residential Finance distinguished the facts from those in CDI Information Services Inc. v. Reno, 278 F.3d 616 (6th Cir. 2002) which refused to review the denial of an H-1B application for extension of stay as the grant of such an extension was within the discretion of the attorney general under INA §214(a)(1).

While one may disagree with the holding in Poursina v. USCIS, seeking review of a denial of a national waiver request in federal court is more likely to fail than the review of denial of other petitions. Even the DC Court of Appeals in Zhu v. Gonzales, 411 F.3d 292 (D.C. Cir. 2005) has agreed. The Ninth Circuit even refused to extend its holding in ANA International v. Way, 393 F.3d 886 (9th Cir. 2004), which held that the visa revocation statute, INA §205, was not subject to the jurisdiction stripping provision although it was linguistically similar to the national interest waiver statute as it did not contain any language suggesting discretion. Thus, unless another circuit court disagrees with Poursina v. USICS and Zhu v. Gonzales, an APA challenge seeking review of a national interest denial, without more, may not succeed. In a future case, an argument can be made that when the statute, which in this case INA § 203(b)(2)(1)(A) does not specify that the grant of a waiver is in the discretion of the Attorney General, the court should not be able to divine discretion from other words in the statute as the Ninth Circuit did in Poursina v. USCIS. This is especially so, when unlike the companion jurisdictional stripping provision under INA §242(a)(2)(B)(i), there is no specific mention of discretionary applications that immunize them from a court’s jurisdiction such as an adjustment of status application or cancellation of removal. Until there is such success, prospective litigants should be made aware that the USCIS’s Appeals Administrative Office rather than a federal court will likely have the final word when USCIS denies a national interest waiver request.