Cyrus Mehta

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

/0 Comments/in /by

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

/0 Comments/in /by

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?

/0 Comments/in /by

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

/0 Comments/in /by

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

/1 Comment/in /by

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

/0 Comments/in /by

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

/0 Comments/in /by

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.

 

 

 

 

 

Cora-Ann Pestaina

Recent H-1B Case Brings Hope that Reliance of the Umbrella “All Other” Occupational Classification Need Not Be Fatal

/0 Comments/in /by

As the U.S. Citizenship and Immigration Services (USCIS) continues its shameful and relentless attack on the H-1B visa program under the misguided “Buy American Hire American” Executive Order, it is important that we continue to fight back and cases like Relx Inc. v. Baran give us the hope that we need in order to do so.

As background, with every H-1B petition, the petitioner must file a Labor Condition Application (LCA) with the Department of Labor (DOL) listing the most appropriate occupational classification for the offered position. This classification is represented by the Standard Occupational Classification (SOC) code. Naturally, there isn’t an SOC code for every single occupation. Therefore, H-1B petitioners must choose from a limited list of SOC codes. Recognizing that it could not realistically cover every single occupation, the DOL created certain umbrella categories called “All Other” which represent occupations with a wide range of characteristics that do not fit into a specific detailed SOC. USCIS will often pounce on H-1B petitions where the petitioner has chosen an SOC code representing an “All Other” classification. There are times when the employer has no choice as the  occupation, especially emerging ones, fit under “All Other” only. USCIS often issues a Request for Evidence (RFE) stating that the DOL’s Occupational Outlook Handbook (OOH) “does not contain descriptions for this position” and therefore it has not been established that a minimum of a Bachelor’s degree in a specific field in required for entry into the occupation.

In order for a petitioner to hire a foreign worker in a specialty occupation under the H-1B visa program, the proffered position must meet the regulatory definition as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 8 CFR § 214.2(h)(4)(ii). This definition is met by satisfying at least one of the following criteria:

  1. A baccalaureate or higher degree or its equivalent is normallythe minimum requirement for entry into the particular position;
  2. The degree requirement is commonto 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 normallyrequires 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).

We have blogged extensively, see here, here, and here,   about the H-1B specialty occupation criteria and the difficulties faced by H-1B petitioners in demonstrating that an offered position is indeed a specialty occupation. Despite the fact that there is no existing regulation designating the OOH as the bible on specialty occupations and the OOH even includes its own disclaimer advising that it should not be used for any legal purpose, the USCIS nevertheless frequently issues RFEs and denials on H-1B petitions based on the fact that the OOH does not include a definitive statement that a minimum of a Bachelor’s degree in a specific field in required for entry into the occupation.

In Relx, the plaintiffs, RELX, Inc., d/b/a LexisNexis USA, and a Data Analyst for Lexis Nexis in F-1 student status, alleged that USCIS; the Department of Homeland Security; and others violated the Administrative Procedure Act (APA) when they denied LexisNexis’ H-1B petition on behalf of the Data Analyst concluding that the position was not a specialty occupation. The U.S. District Court for the District of Columbia granted summary judgment for plaintiffs and denied defendants’ motion to dismiss. The proffered position had been classified under the occupational title of Business Intelligence Analysts which bears the SOC code of 15-1199.08 and falls under the more general occupational title of “Computer Occupations, All Other” with the SOC code of 15-1199. The USCIS is well aware that because the DOL has not amended its LCA to also accept 8 digit SOC codes, H-1B petitioners are not able to classify their offered positions using 8 digit SOC codes and must instead utilize the more general occupational title bearing a 6-digit SOC code. Accordingly, in Relx, the petitioner used the SOC code for “Computer Occupations, All Other” but explained that the most specific classification was Business Intelligence Analysts. The petitioner also referenced O*NET, which contains a detailed description of the Business Intelligence Analyst occupation relevant to the inquiry on whether or not the position is a specialty occupation. Similar to the OOH, O*NET is a database which serves as a library for information on the working world and it includes information on the knowledge, skills, abilities, interests, preparation, contexts, and tasks associated with over 1,000 occupations.

In a typical move, USCIS disregarded all this and in its denial of the petition stated that the OOH does not contain detailed profiles for the computer occupations category and that the petitioner’s reference to O*NET, standing alone, failed to establish that the occupation was a specialty occupation. The court found this conclusion to be “factually inaccurate and not supported by the record.” The court pointed out that the OOH does explain that that the typical entry level education for “Computer Occupations, All Other” is a “Bachelor’s Degree (see here) and inasmuch as the OOH did not contain a detailed profile for the computer occupations category, it contained an explicit O*NET crosswalk reference and O*NET stated that “most of these occupations require a four-year bachelor’s degree but some do not” with further detail that more than 90% of employees in the occupation require at least a bachelor’s degree.

Overall, the Relx case also demonstrates how determined USCIS can be in its effort to deny these H-1B petitions. Upon receipt of the denial, plaintiffs filed suit but shortly before they filed their opening motion, the government reopened the petition without providing any notification or reason and issued a second RFE. Plaintiffs then moved for summary judgment, seeking an order from the court directing USCIS to grant the H-1B petition, but the government filed a motion to dismiss in light of the fact that it had already reopened the case! Among other things, the court noted that the government’s failure to set forth its reasons for a decision to reopen the denial constitutes arbitrary and capricious action, and the court must undo the agency action. The court pointed out that the government issued another RFE requesting nearly identical information as it did when it last reviewed the petition. Also, the Data Analyst’s F-1 visa was set to expire and she would have lost her job and been required to leave the United States for an extended period of time, thus causing “significant hardship.” The court found the government’s reopening of the case to be “highly suspect and contrary to the regulations” since no new information was requested and that the petitioner had already submitted a “mountain of evidence” that “more than meets the preponderance of the evidence standard.” The court held that the USCIS “acted arbitrarily, capriciously, and abused its discretion in denying employer’s petition for H-1B visa status” on behalf of the Data Analyst.

In our past blogs (for example, here), we have encouraged H-1B petitioners facing these challenges to be fearless and to go directly to federal court. Under Darby v. Cisneros, 509 U.S. 137 (1993) it is permissible to bypass the Administrative Appeals Office (AAO) and challenge the denial in federal court where exhaustion of administrative remedies is not required by law. Most recently, we followed our own advice and filed a complaint in federal court in a case, very similar to Relx in that it involved the petitioner’s use of the “Computer Occupations, All Other” category; a foreign national in F-1 status and an arbitrary and capricious denial that, among other things, stated that where the occupation listed on the certified LCA was not listed in the OOH,  the petitioner could not support its assertion that the position was a specialty occupation by reference to the O*NET. Even the expert opinion of a college professor was rejected. Despite the duties being described in a detailed manner to demonstrate their complexity, the USCIS cherry picked a few words and phrases from the job duties to erroneously conclude that they did not require the qualified person to possess a Bachelor’s degree or higher in the enumerated fields.  In the end, USCIS reopened the case and issued a second RFE, basically identical to the first one. Petitioner responded to the RFE in great detail, with additional expert opinions, and the case was approved.

Based on the number of denials that employers have experienced in recent times, the H-1B process can seem daunting especially when filing cases which must be classified under one of the “All Other” umbrella categories. In these cases, an RFE is expected and that may be followed by a denial. Hopefully not anymore, as we now include a discussion of the court’s decision in Relx. But at the end of the day, these cases demonstrate that we mustn’t be afraid to sue. The Relx decision proves that federal judges can very well have a different reaction than the typical USCIS adjudicator and may be shocked and angry at USCIS’ actions.

 

David Isaacson

“An Act of Cruel Injustice”: If the Trump Administration is Relying on Grudging Court Acceptance of Cruel Results as Support for the New Public Charge Rule, What Does That Say About the Rule?

/0 Comments/in /by

The Trump Administration’s new public charge rule has already been the subject of at least five different lawsuits, including one from a coalition of 13 states led by Washington, another from a California-led coalition of 4 states and the District of Columbia, and another from a coalition of 3 states led by New York, plus one from a coalition of nonprofit organizations.  There is a lot to say about the rule, which spans 217 pages of the Federal Register, and the various plaintiffs as well as a number of commentators and organizations have already said a great deal of it.  In this blog post, however, I want to focus on one particular thing I noticed while reading through the rule and checking some of its citations: the harsh terms in which the sorts of actions sought to be justified by the rule were described even by one of the authorities relied upon by the Administration to support it.

At page 77 of the above-linked PDF version of the rule, which is page 41,368 of Volume 84 (No. 157) of the Federal Register, the rule cites four cases in footnote 407 in defense of the proposition that considering disability in public charge determinations “is not new and has been part of public charge determinations historically.”  One of those cases is United States ex rel. Canfora v. Williams, 186 F. 354 (S.D.N.Y. 1911), which is described in the citation as “ruling that an amputated leg was sufficient to justify the exclusion of a sixty year old man even though the man had adult children who were able and willing to support him.”  Lest the reader think I am unfairly cherry-picking an antique citation, the other three cases cited in the same footnote are from the years 1911, 1919, and 1922.

An imperfect copy of the U.S. ex rel Canfora v. Williams decision, with typographical errors possibly resulting from the use of Optical Character Recognition to convert scanned pages into text, is available from the Caselaw Access Project of Harvard Law School, although for a completely accurate copy it appears necessary to consult a paid service like Westlaw or Lexis.  The only error in the portion of the ruling which I am about to quote is one minor misspelling, however, so what I am about to say can be verified from freely available public sources.

In a strictly technical sense, it is perhaps defensible for the Administration to have described U.S. ex rel. Canfora v. Williams as holding that the habeas petitioner’s amputated leg was “sufficient” to justify his exclusion, but this only tells part of the story.  The opinion in the case also says:

I consider that, if this order of deportation is carried out, it will be an act of cruel injustice. If this alien had remained in this country, he probably never would have been molested. If he had not lost his leg, he probably would not have been detained on his return. No offense is charged against him. It is proposed to deport him because he has suffered a pitiable misfortune, and notwithstanding a proposition to give a satisfactory bond, which would appear to be a complete protection to the government from his becoming a public charge. But the immigration acts confer exclusive power upon the immigration officials to determine such questions, and the courts, so long as the procedure prescribed by the immigration acts’ and the rules established for their administration is substantially followed, have under the decisions of the United States Supreme Court no jurisdiction to interfere. I am therefore compelled to dismiss this writ. But I desire to express the hope that the immigration authorities will reconsider this case. I cannot believe that on a candid reconsideration of this record this man, who is charged with no offense, will [b]e sent away, because he has suffered a grievous calamity and has been denounced by a malicious enemy, to pass his last years and to die in a distant land, far from his wife and children, and from the home in this country in which he has lived a blameless life for so many years.

Canfora, 186 F. at 356-357.

This is hardly a ringing endorsement of the decision to exclude the unfortunate sixty-year-old man in question following his trip to Italy to visit his mother.  It is, rather, a grudging acquiescence on account of a narrow view of the courts’ jurisdiction to review the action of the immigration authorities.  The law of judicial review of agency action has come a long way in the 108 years since Canfora was decided, however, and it does not appear that the Administration was relying on Canfora for that point.  Rather, the citation in the public charge rule seems to suggest that the court in Canfora found the exclusion substantively justified.  That is, to put it mildly, a tendentious reading of the court’s opinion.

What does it say about the new public-charge rule that among the authorities relied upon in support of it is a case describing the relied-upon outcome as “an act of cruel injustice” which the author of the opinion “cannot believe” would survive a “candid reconsideration” of the record?  There are a few alternatives that I can think of, but none of them reflect well on the rule.

Perhaps the authors of the rule were sloppy in their haste to get the rule published: it has been reported that White House adviser Stephen Miller was anxious for the rule to be finalized and told one official working on the rule that “I don’t care what you need to do to finish it on time.”  Perhaps they were scraping the bottom of the proverbial barrel looking for authority which they could use to defend the indefensible.  Or perhaps, as Adam Serwer wrote in an Atlantic article regarding other Trump Administration policies, the cruelty is the point.  Whatever the explanation, the fact that the public charge rule would resort to citing a case like Canfora for support is further evidence of its deeply problematic nature.

Cora-Ann Pestaina

Recent BALCA Cases Highlight the Importance of Choosing the Right Sunday Newspaper

/0 Comments/in /by

In June 2019, the Board of Alien Labor Certifications Appeals (BALCA) issued at least ten decisions that addressed the employers’ choice of Sunday newspaper in the PERM labor certification recruitment process. So maybe they wanted to make a point? Let’s discuss.

As background, an employer must conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. The PERM recruitment process, whether for a professional or a nonprofessional position, requires employers to place two Sunday advertisements in a newspaper of general circulation. As PERM practitioners, having read the regulations, how confident are we on advising employers regarding which newspaper to use for Sunday ads? Some New York practitioners say that they always advise employers to use the New York Times. Others say they’ve successfully used the Daily News but have felt scared each time. What about the New York Post?  Over the years the question just keeps coming up. The Department of Labor (DOL) has not provided any specific guidance. One FAQ contains the following question and answer:

Question:         What is considered an acceptable newspaper and/or acceptable journal and is there a published list?

Answer:            There is no published list of acceptable publications.

Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers…that are most likely to bring responses from able, willing, qualified and available U.S. workers.

I am not sure if the newspapers are as readily identifiable as the DOL expects.

For nonprofessional positions, 20 C.F.R. 656.17(e)(2)(ii) requires that the employer place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity.” For professional occupations, there is the added requirement that the newspaper be “most likely to bring responses from able, willing, qualified, and available U.S. workers.” See 20 C.F.R. 656.17(e)(1)(i)(B)(I). A nonprofessional occupation is defined as any occupation for which the attainment of a bachelor’s or higher degree is not a usual requirement for the occupation. A professional occupation is an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement. See 20 C.F.R. 656.3.

The ten recent BALCA decisions each involved the posting of Sunday ads in the Washington Examiner which was a free newspaper of general circulation in Maryland, D.C. and Virginia (it no longer publishes a Sunday newspaper). Eight of the decisions involved nonprofessional positions and two involved professional positions. In Matter of Fernando Lawn Services, LLC, 212-PER-01989 (Jun 6, 2019) the employer recruited for the position of Assistant Manager which required 2 years of experience as an assistant manager and a high school diploma. The CO denied the application on the sole ground that the Washington Examiner was “not a newspaper of general circulation most likely to bring responses from available U.S. workers.”  As authority, the CO cited 20 C.F.R. 656.17(e)(1)(i)(B)(l) which relates to professional occupations. The employer requested reconsideration or review and argued that the job was nonprofessional; the Washington Examiner was a newspaper of general circulation in the intended area of employment and was most likely to bring responses from able, willing, qualified, and available U.S. workers. However, the CO denied the motion for reconsideration on the same sole ground even though he cited the regulations relating to both professional and nonprofessional occupations thereby conflating the standards applicable to professional advertising with those applicable to nonprofessional positions.   The case was then forwarded to BALCA.

BALCA reexamined existing, inconsistent case law that involved the Washington Examiner. Capital Building Services, Inc., 2012-PER-01971 (Feb. 12, 2013) involved the position of Cleaning Supervisor. The job requirements were two years of experience and therefore the position was nonprofessional. The CO denied certification because the employer used the Washington Examiner as its newspaper of general circulation. The majority BALCA panel disagreed with the CO and ordered certification.  They distinguished the case from Intercontinental Enterprises, Inc., 2011-PER-02756 (July 30, 2012). In Intercontinental Enterprises, the CO denied certification, finding that the Washington Examiner was not the newspaper of general circulation most appropriate to the occupation and the workers likely to apply for the job opportunity because it involved the professional position of Senior Food Technologist. The BALCA panel noted that the regulatory history of the regulations recognized a distinction between professional and nonprofessional occupations. Specifically, when the regulations were being promulgated, the Employment and Training Administration explained in the proposed rule:

Under the current system [i.e., the pre-PERM regulations], the employer may advertise, when a newspaper of general circulation is designated as the appropriate advertising medium, in any newspaper of general circulation. However, our experience has shown that some employers routinely place newspaper advertisements in those newspapers with the lowest circulation and that these publications are often the least likely to be read by qualified U.S. workers. Therefore, in order for the employer’s job opening to receive appropriate exposure, the proposed regulation requires that the mandatory advertisements appear in the newspaper of general circulation most appropriate to the occupation and the workers most likely to apply for the job opportunity in the area of intended employment. For example, in a relatively large metropolitan area such as Philadelphia, Pennsylvania or Washington, DC, it would not be appropriate to place an advertisement for a computer professional in a suburban newspaper of general circulation since workers interested in professional jobs consult the metropolitan newspapers in the area of intended employment with the largest circulation rather than the suburban newspapers of general circulation. On the other hand, it would be appropriate to advertise in a suburban newspaper of general circulation for nonprofessional occupations, such as jewelers, houseworkers or drivers.

ETA, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 C.F.R. Part 656, 67 Fed. Reg. 30466, 30471 (May 6, 2002).

The Intercontinental Enterprises panel acknowledged that The Washington Examiner was not a mere suburban newspaper, but found that the employer failed to establish that it was the newspaper in the Washington, D.C. area most appropriate to the occupation in question and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. Essentially, The Washington Examiner was not appropriate to recruit for professional positions.

The panel in Capital Building Services found that the case was distinguishable from Intercontinental Enterprises because it presented an application involving a nonprofessional position and thus, the persons likely to apply are different types of job seekers. However, in his dissent, then Associate Chief Administrative Law Judge Johnson agreed with the majority that The Washington Examiner is a newspaper of general circulation and that the regulatory history indicates that a suburban newspaper of general circulation would be appropriate for certain nonprofessional occupations. But he disagreed with majority panel’s implication, by way of their grant of certification, that an employer may base its newspaper selection on less than the best newspaper choice for the occupation and the area of intended employment.

Further, in Millenniumsoft, 2012-PER-00636 (Nov. 23, 2015), regarding the position of Programmer Analyst, BALCA found that the use of the Washington Examiner was not appropriate for professional positions under either Intercontinental or Capital Building. The panel questioned the majority’s statement in Capital Building that the publication was a good choice for nonprofessional positions, noting that the statement did not seem consistent with the employer’s obligation under the regulation to use the newspaper “most likely” to attract domestic applicants. The “most likely” provision applies only to professional positions but the language “most appropriate to the occupation and the workers likely to apply for the job opportunity” appears in the criteria for both professional and nonprofessional positions. Several other BALCA panels go back and forth on finding the Washington Examiner to be either appropriate or inappropriate for recruitment for nonprofessional positions.

The panel in Fernando Lawn Services, after reviewing all the case law, agreed with the majority in Capital Building Services and held that the Washington Examiner is a newspaper of general circulation that may be a good choice for advertising certain types of jobs in the Washington, DC area; and the regulatory history indicates that a suburban newspaper of general circulation would be an appropriate choice for certain nonprofessional positions. BALCA held that an employer does not need to establish that its chosen newspaper is the best publication or has the greatest circulation where a nonprofessional occupation is involved. Rather, it must be established that it was “most appropriate to the occupation and the workers likely to apply for the job opportunity.” Since the employer asserted that the Washington Examiner was most appropriate and the CO offered nothing to refute this and did not identify the newspaper in which the Sunday ads should have been placed and explain why that paper would have been a better choice, the CO erred in denying the application.

Of the remaining nine recent cases, BALCA found the Washington Examiner to be the appropriate for nonprofessional positions such as Pipelayer, Server, Maintenance Repairer, Mason, Mechanic, and Cook and called out the CO for applying the standard applicable to professional positions to labor certification applications for these positions. See Eastern Pool Co. Inc., 2012-PER-01849; Fil Parong, 2012-PER-01167; Mount Vernon country Club, Inc., 2012-PER-02764; Daco Construction Corporation, 2012-PER-03333 and 2012-PER-03539; City Concrete Corp., 212-PER-02516 and Nova Europa Restaurant, 212-PER-03442, all issued on June 6, 2019.

In Georgetown Hill Early School, 2012-PER-03334, the offered position was that of a Teaching Assistant and required a Bachelor’s degree. The CO denied the application upon concluding that the Washington Examiner was not appropriate for recruitment for a professional position. In the end, BALCA did not accept the employer argument that the publication was targeted at young urban professionals and commuters and was widely read by white collar professionals and stated that this is not the standard but rather, it must be the newspaper “most likely to bring responses from able, willing, qualified and available U.S. workers” under the criteria for professional occupations appearing in 20 C.F.R. 656.17(e)(1)(i)(B)(1). See also, Software Catalysts, LLC, 2012-PER-01899 (Jun, 6, 2019).

BALCA cases can often serve as a warning of what is to come. Could the DOL soon start to focus more of its attention on the Sunday paper? While these recent cases focus on one paper in one geographic area, they are very important to highlight the importance of careful consideration when deciding on a Sunday newspaper of general circulation especially in relatively large metropolitan areas such as New York where there may be several newspapers that qualify as a “newspaper of general circulation.” It may not suffice to use the New York Times for a nonprofessional position such as a Nanny if the New York Times is not the paper “most appropriate to the occupation and the workers likely to apply for the job opportunity.” An argument that the New York Times has the highest circulation may not be successful if it cannot be proven that an out of work Nanny would likely search for a job in the New York Times as opposed to other newspapers of general circulation such as the New York Post or Daily News. In several of the ten cases discussed above, the CO actually checked the classified sections on the newspaper tear sheets provided by the employer and observed that the Washington Examiner’s classified sections included “no more than 30 total job listings over two pages, while they included nine pages of legal notices.” As practitioners, we ought to pay close attention to the types of advertisements that appear in different newspapers so that we are prepared to demonstrate that the employer has chosen the correct newspaper and to be able refute potential assertions made by a Certifying Officer in denying an application. There is no perfect method for making these determinations but in the end, the application ought to be certified as long as the employer has abided by the regulations and has demonstrated good faith recruitment. Hopefully.