Cyrus Mehta

USCIS’ Change in CSPA Policy Can Help Aged Out Children Who Missed Out During the October 2020 Visa Bulletin EB-3 Advance for India

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By Cyrus D. Mehta and Kaitlyn Box

On September 25, 2024, USCIS announced that it had updated guidance in the USCIS Policy Manual Child Status Protection Act (CSPA) age for noncitizens who demonstrate extraordinary circumstances. The new guidance:

“Clarifies that the CSPA age calculation of an applicant who established extraordinary circumstances and is excused from the ‘sought to acquire’ requirement uses the date that the immigrant visa first became available when the immigrant visa is continuously available for a 1-year period without any intervening visa unavailability; and

Clarifies that under circumstances where the immigrant visa became available and then unavailable, the CSPA age calculation may use the date an immigrant visa first became available if the applicant demonstrates extraordinary circumstances for not applying for adjustment of status before the immigrant visa became unavailable.”

USCIS’ latest guidance builds on policy guidance it previously issued on February 14,  2023, clarifying that it “considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application”. In August 2023, USCIS issued further policy guidance which:

“Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the ‘sought to acquire’ requirement;

Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and

Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.”

In a previous blog, we discussed USCIS’ 2023 guidance at length. Due to USCIS’ pre- February 14, 2023 guidance, some noncitizen children may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens applied to adjust their status under the February 14, 2023 guidance, they could claim an exception to the one-year “sought to acquire” requirement if the delay in filing was the result extraordinary circumstances.

USCIS’ 2023 guidance left unclear what it would consider to be the date an immigrant visa first became available in the case of retrogression. In the October 2020 visa bulletin, for example, priority dates (which were the Dates for Filing) for many India-born beneficiaries with approved EB-3 I-140 petitions became current, only to retrogress a few months later. In its latest guidance, USCIS addresses this scenario, clarifying that October 1 would be considered the date the visa first became available for CSPA age calculation purposes. The USCIS Policy Manual provides the following hypothetical:

A visa first becomes available to the prospective applicant for accepting and processing their application on October 1, 2020, and the visa remains available to the prospective applicant until December 31, 2020. The visa was only available for 3 months and was therefore not available for a continuous 1-year period. As of January 1, 2021, the prospective applicant cannot apply for adjustment of status because a visa is no longer available.

A visa becomes available again to the prospective applicant on July 1, 2021. The prospective applicant applies for adjustment of status within 1 year, on June 15, 2022. Although USCIS provides the applicant with another 1-year period to seek to acquire because the visa was first available for less than a year, the applicant includes an explanation and evidence demonstrating extraordinary circumstances for not applying for adjustment of status during the first visa availability period between October 1 and December 31, 2020. USCIS determines, as a matter of discretion, that the applicant established extraordinary circumstances and calculates the applicant’s CSPA age using the date the visa first became available, which was October 1, 2020.

On October 1, 2020 when the India EB-3  Dates for Filing advanced to January 1, 2015, thousands of India born beneficiaries in the EB-2 and EB-3 filed I-485 applications along with their derivative family members (those in EB-2 downgraded to EB-3 first). By January 1, 2020 the beneficiaries under the India EB-2 and EB-3 could no longer take advantage of India  EB-3 Dates for Filing. Then, on July 1, 2021 the India EB-3 Final Action Dates advanced again, but only until  January 1, 2013. In October 2020, applicants for adjustment of status would have had no idea that the Dates for Filing would be used to calculate a child’s CSPA age. Thus, some noncitizen children may have missed out on applying for adjustment of status along with their family members in October 2020 because a visa was not available to calculate their CSPA age under USCIS’ prior policy or their CSPA age would have been calculated to be over 21 years old. The advance of the Final Action Dates on July 1, 2021 may not have helped the children if the earlier, more advantageous Dates for Filing on October 1, 2020 were not recognized for protecting the age of the child until the USCIS policy change on February 14, 2023.  Even when the USCIS allowed the filing of I-485 adjustment of status applications on February 1, 2023 under Dates for Filing, the Dates for Filing from February 1, 2023 till September 1, 2024 were not as advanced as the Dates for Filing established under the October 2020 Visa Bulletin.

But on October 2024, the EB-3 India Dates for Filing  has advanced to June 8, 2013, affording some noncitizens who have not been eligible to submit their adjustment of status applications since October 2020 another opportunity to do so. Noncitizen children who missed out on applying in  October 2020 can do so now, asserting that the change in USCIS’ policy is an extraordinary circumstance excusing their failure to file when a visa first became available.

The latest update will  thus help many previously ineligible individuals qualify under the previous 2023 CSPA update. As the EB-3 India Date for Filing continues to advance until it reaches January 1, 2015, which is what it was under the October and November 2020 Visa Bulletins, all children who missed out under those visa bulletins  in 2020 may be able to benefit from this salutary  policy change today and beyond.

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

Kaitlyn Box is a Senior Associate at Cyrus D Mehta & Partners PLLC  

 

Cyrus Mehta

Making the Case of the Manager under the L-1A Visa Whose Subordinates are AI Bots

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When the Administrative Appeals Office (AAO) designated Matter of Z-A- Inc. as an “Adopted Decision” in 2016 it was seen as a breakthrough as it recognized that a US company can rely on its resources outside the United States to produce products or provide services. Matter of Z-A-, Inc. held that an L-1A intracompany manager who primarily manages an essential function can be supported by personnel outside the United States within an international organization and also recognizing that such support was possible with the advent of internet technologies. A USCIS officer could no longer deny L-1A classification to such a manager because they were not supported by personnel within the United States.

Generative AI -data-trained technology that uses prompts to create content—has seen a massive uptick in adoption since the introduction of ChatGPT on November 30, 2002. As AI enabled chatbots can perform both complex and routine tasks within an organization, a credible case can be made that an L-1A manager may be supported by chat bots to manage an essential function within an organization rather than by humans. A recent estimate by Goldman Sachs found that generative AI could eventually automate activities that amount to the equivalent of some 300 million full-time jobs globally — many of these in office roles like administrators and middle managers.

The noncitizen manager seeking an L-1A visa extension in Matter of Z-A-, Inc. was the President and Chief Operating Officer of the US petitioning entity whose parent company was in Japan. His duties included: directing and managing the Petitioner’s financial, legal, trade, administrative, and sales activities; establishing financial and budgetary plans and goals; reviewing and monitoring sales activities performed by the Petitioner’s sales manager; liaising with the parent company; and interacting with customers and outside service providers. The Petitioner in the US only employed a sales manager and an administrative specialist. However, eight staff members within the parent company’s headquarters in Japan also exclusively supported the work of this manager.

The key issue  in Matter of Z-A-, Inc. is whether the Petitioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA 101(a)(44)(A). The Petitioner asserted that this manager would manage an essential function of the organization, which is permitted under the statute, as opposed to managing other personnel. A functional manager under the L-1A visa classification must primarily manage the function as opposed to perform the essential function, and must also be senior in the organizational hierarchy. An employee who primarily performs the tasks necessary to produce a product or a service is not considered to be employed in primarily a managerial or executive capacity.

In reversing the denial of the L-1A petition in Matter of Z-A-, Inc. the  AAO stated:

Here the record shows that the Beneficiary, in his role as Vice President, will continue to rely on the support of the eight staff members in Japan and two employees in the United States to accomplish non-managerial duties, and that the purpose of his transfer is to oversee the short-term and long-term expansion of the Petitioner’s presence in what is a new market. Given the overall purpose of the organization and the organization’s stage of development, the Petitioner has established a reasonable need for a senior-level employee to manage the essential function of developing its brands and presence in the United States, notwithstanding that the Petitioner employs directly only two other employees in the United States. While the Beneficiary may be required to perform some operational or administrative tasks from time to time, the Petitioner has established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined staff of 10 employees of the Petitioner and its parent company, located in the United States and Japan, respectively.

In a 2016 blog written shortly after Matter of Z-A-, Inc. it was observed that “[i]n a globalized world, where people are easily connected to each other by the internet, it is no longer necessary for a manager to rely on personnel in one location, namely in the United States. It is now common for teams of personnel within one organization to easily collaborate across different countries to produce a product or provide a service using cloud technology and even able to video conference on one’s smart phone through Skype or FaceTime.”

Practitioners may wish to advocate that generative AI can also enable the L-1A manager to primarily manage an essential function as opposed to primarily perform the tasks necessary to produce a product or service. In Matter of Z-A-, Inc., the AAO recognized that resources overseas could support the role of the L-1A manager. This sets the groundwork to argue that external resources, not limited to human employees, can be considered in evaluating the managerial capacity of the beneficiary. The L-1A petition can potentially include details of the organizational structure and staffing levels, showing that AI chatbots effectively supplement the limited human resources. The supporting evidence can further illustrate how AI chatbots handle routine tasks by interfacing with customers, thereby allowing the L-1A manager to focus on higher-level managerial duties. The evidence provided can further demonstrate that  AI chatbots relieve the L-1A manager from performing the routine day to day operational and administrative duties. This aligns with the requirement that the manager primarily manages an essential function rather than perform it with the help of AI technology.

Following Matter of Z-A, Inc. the AAO in  Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), provided important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization. In Matter of G, the AAO noted that “essential function” is not defined anywhere in the INA. Instead, it relied on the Merriam-Webster Dictionary definitions of “essential” and “function” in proceeding with its analysis, concluding that an essential function must be a core activity of a petitioning organization. Relying on these definitions, the AAO first found that the Petitioner must “(1) describe with specificity the activity to be manage, and (2) establish that the function is core to the organization.”  The AAO further recognized that an organization could have more than one core activity “such as the manufacture or provision of an end product or service, and research and development into other products or services.”

Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Immigration and Nationality Act (INA).

INA § 101(a)(44)(A) defines “managerial capacity” as:

[A]n assignment within an organization in which the employee primarily-

(i) manages the organization, or a department, subdivision, function, or component of the organization;

(ii) supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

(iii) if another employee or other employees are directly supervised, has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and

(iv) exercises discretion over the day- to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.

 

The foreign manager seeking immigrant classification under INA § 203(b)(1)(C) in Matter of G- was the Director, Financial Planning and Analysis (FP&A) at a large multinational technology corporation. The company first transferred the Beneficiary to the U.S. on an L-1A visa to seek business opportunities and foster growth of the company in the U.S. markets. After a few years of success, the company decided to petition for the worker to permanently reside in the U.S. under INA § 203(b)(1)(C). The Petitioner explained in their I-140 petition that the Beneficiary would continue to direct and develop revenue forecasts and analysis for the entire company, lead mergers and acquisitions, and oversee strategic pricing analyses, among other managerial duties. However, the USCIS denied Form I-140, finding that the Petitioner did not establish that the Beneficiary would be employed in a managerial role. It is not unusual for one Service Center of the USCIS to approve the L-1A visa and another Service Center to deny the I-140 petition.  Upon review, the AAO reversed, and sought to clarify the role of a function manager.

In applying their new function manager analysis to the case at bar, the AAO found that the FP&A Director was clearly a function manager under INA §101(a)(44)(A). First, it found that “financial planning and analysis” qualified as a function within the organization as it was clearly defined with specificity and indicated a clear goal of generating data to assess the company’s revenue. Second, the AAO found that the FP&A function was essential to the company, where the Beneficiary’s work would be relied upon by the company’s executives and board of directors in making strategic decisions in mergers and acquisitions. Third, the AAO found that the Beneficiary would primarily manage the function where he would “develop and direct revenue forecasts and analysis for the worldwide organization, lead mergers and acquisitions, and oversee strategic pricing analysis.”  The AAO continues that the Beneficiary will be supported by six direct and three indirect reports who will “perform the routine duties associated with the FP&A function.”  Critically, the AAO finds that even though the Beneficiary directly supervises some of his subordinates, he still primarily manages the function. Fourthly, the AAO found that the Beneficiary will act at a senior level within the organization and with respect to the function, where he reported only to the CFO and CEO and worked closely with other senior executives and managers. Finally, the AAO found that the Petitioner clearly established that the Beneficiary will have discretionary authority over day-to-day operations where the Beneficiary will establish policies, goals, and oversee mergers and acquisitions.

Using the same analysis as in Matter of G,  and as set forth in the USCIS Policy Manual, a company can establish that its AI technology is an essential or core function of the organization. It can further be established that the beneficiary will primarily manage this function, and will be supported by AI bots when managing the function. This would be analogous to Matter of Z-A, Inc. which recognized the ability of foreign personnel outside the United States to support the L-1A manager in the US.  It can also be established that the L-1 manager is employed at a senior level within the organizational hierarchy and that they have discretionary authority over the day to day operations.

A Forbes article that provides examples of how brands are replacing their employees with AI technology. It provides examples of how Klarna, the Swedish-based “buy now pay later service”,was using an OpenAI powered customer service chatbot that was doing the work of 700 customer service agents faster and more efficiently than human workers. The article also notes that large financial service companies like Goldman Sachs and Morgan Stanley are introducing AI tools that can replace much of the entry level white collar work such as preparing spreadsheets, creating PowerPoints and analyzing financial data. BestBuy is replacing its geek squad agents with generative AI technology to provide customers with personalized, best in class tech support experiences. Even local governments are resorting to AI. The Texas Education Agency is rolling out a “new artificial intelligence-powered scoring system set to replace a majority of human graders in the region.” If a petitioning entity is using similar AI technology a case can be made that AI is relieving the manager from performing the day to day tasks while the manager manages the essential function. An organization that relies on bots may have a smaller number of employees, but one should push back against a negative finding only because of the small size.  In Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that although size is a relevant factor in assessing whether a company’s operations are substantial enough to support a manager, “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity.” See also INA 101(a)(44)(C) (“[i]f staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.”).

While it would be more feasible to build the L-1A case for a functional manager who is supported by AI technology, the next step in the evolution of L-1A jurisprudence would be to establish that even a people manager might qualify for this visa classification if they supervise AI chatbots rather than humans. These AI bots can take the place of other “supervisory, professional, or managerial employees” under INA 101(a)(44)(A)(ii) who are supervised and controlled by the L-1A manager. Under  INA 101(a)(44)(A)(iii) the manager must also have “the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization)” of the employees they supervise. Admittedly the L-1A manager may not have the authority to hire and fire bots or take other personnel actions as they are not employees. The manager, however, could have equivalent authority such as the ability to upgrade the AI technology or replace the bots with other bots to comply with INA 101(a)(44)(A)(ii) and 101(a)(44)(A)(iii). This may seem far fetched for now, there may come a time when the USCIS might be persuaded to approve an L-1A petition for a people manager who will be managing and supervising AI bots rather than humans.

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

 

 

 

 

Cyrus Mehta

While the Dogs and Cats of Springfield, OH Are Safe, the Haitian immigrants Are Not

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By Cyrus D. Mehta and Kaitlyn Box*

This past week, Trump and J.D. Vance have gone viral for some particularly bizarre rhetoric, alleging that Haitian immigrants in Springfield, Ohio were eating people’s pets. On September 9, 2024, J.D. Vance posted on X: “Months ago, I raised the issue of Haitian illegal immigrants draining social services and generally causing chaos all over Springfield, Ohio. Reports now show that people have had their pets abducted and eaten by people who shouldn’t be in this country. Where is our border czar?” Trump repeated these claims in his September 10, 2024 debate with Vice President Kamala Harris, stating “In Springfield, they’re eating the dogs. The people that came in. They’re eating the cats. They’re eating — they’re eating the pets of the people that live there.” These allegations were widely recognized as entirely baseless, including by Springfield, Ohio mayor Bob Rue, who in an interview called Trump and Vance’s statements “just untrue” and assured residents that their “pets are safe in Springfield, Ohio”. These anti-immigrant sentiments come after Laura Loomer, a far-right activist and internet personality, stated in a post on X “If @KamalaHarris wins, the White House will smell like curry & White House speeches will be facilitated via a call center and the American people will only be able to convey their feedback through a customer satisfaction survey at the end of the call that nobody will understand.”

Unfortunately, xenophobic statements like these can have real world negative consequences. In Springfield, Ohio, credible bomb threats related to Trump and Vance’s comments forced schools and offices to close. Haitian immigrants in the area, many of whom are Temporary Protected Status (TPS) recipients, report feeling unsafe and even being targeted for property damage as a result of this hostility. Notwithstanding the harm caused to communities in Ohio, the Trump campaign has doubled down on its anti-immigrant rhetoric, with J.D. Vance stating in a CNN interview, “I’m still going to keep on talking about what the migrants have done to Springfield, Ohio, and what Kamala Harris’ open border has done to Springfield, Ohio”. Vance also had the audacity to state that  “If I have to create stories so that the American media actually pays attention to the suffering of the American people, then that’s what I’m going to do.”

Trump’s animus towards immigrants is hardly new. In 2018, he infamously referred to migrants from Haiti and elsewhere as “people from shithole countries” and has stated that Haitian migrants “all have AIDS”. Sentiments like these no doubt contributed to the Trump administrations efforts to terminate TPS designations for Haiti, Sudan, Nicaragua, and El Salvador, a decision that was challenged by TPS beneficiaries and their U.S. citizen children in federal court in Ramos v. Nielsen. The U.S. District Court for the Northern District of California found that Trump’s animus towards “non-white, non-European” immigrants had influenced the decision to end these TPS distinctions, cataloguing a series of anti-immigrant remarks he has made since 2015, including characterizing Mexican immigrants as criminals and rapists, and calling for “a total and complete shutdown of Muslims entering the United States.” The court ultimately struck down the Trump administration’s effort to rescind these TPS designations, holding that the decision was made “without any explanation or justification in violation of the Administrative Procedure Act”, and that that it may have been “influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution”. The court’s decision to issue a preliminary injunction was later overturned by the Ninth Circuit, which upheld the Trump administration’s TPS rescissions, and the designations were ultimately restored under the Biden administration.  Despite the Ninth Circuit’s decision to overturn the preliminary injunction and the Biden administration restoring TPS, the litigation is not entirely resolved. The en banc Ninth Circuit Court of Appeals granted Plaintiffs’ petition for rehearing and vacated the opinion of the three-judge panel. Plaintiffs filed an opening brief opposing the motion to dismiss.

Although the pets are safe, the rhetoric advanced by Trump and Vance proves that the immigrant community is decidedly not. Baseless anti-immigrant sentiments have the potential to sow discord and violence, as illustrated by recent events in Ohio communities. Moreover, Trump’s antipathy toward immigrants shaped policy decisions while he was president, including the rescission of TPS protections for vulnerable populations.

Indeed, Trump has promised to deport Haitian immigrants in Springfield, OH by again attempting to rescind their TPS status. Trump has repeatedly stated that his administration will create a deportation force that would deport 15 million undocumented immigrants. Radley Balko’s  newsletter on substack,  Trump’s Deportation Army,  provides chilling details on how this deportation would be executed, which would be an unmitigated disaster for families, the US economy and the standing of the United States. The Trump immigration plan would be the second largest forced displacement of human beings in human history, on par with Britain’s disastrous partition of India, and second only to total forced displacement during World War II,”Balko states.

In light of the second assassination attempt on Trump at the time of going to press, his supporters accuse critics of allegedly creating  a climate that encourages people to perpetrate such acts of violence. Although there is no place for political violence in America, and all political differences, however heated, must be settled through ballots and not bullets, Trump should also realize that his baseless claims against Haitians immigrants result in violence towards them too, even if they may whip up votes in his favor. There is no excuse for politicians like Trump, and Vance, who is also the sitting Senator from Ohio, to instigate violence against people here in the US whom they have a solemn duty to protect. Notwithstanding any sympathy that Trump may be generating after the assassination attempts, his dangerous rhetoric towards Haitians who are legally in the US has crossed an unacceptable line and he fully deserves to be completely and frontally defeated in this election.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

237(a)(1)(H) Waiver After Denial of Naturalization Application?

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By Cyrus D. Mehta

At the naturalization interview the noncitizen applicant could face a rude shock if the examiner reveals that they made a misrepresentation in a long forgotten application for an immigration benefit filed in the distant past.

For example, the applicant could have been misled by an unauthorized practitioner when she first came to the US three decades back in filing a fabricated asylum application who did not inform her about the asylum interview. This ultimately resulted in the issuance of a Notice to Appear resulting in the applicant being placed in a removal proceeding. At the Master Calendar Hearing the noncitizen withdrew the asylum application in exchange for receiving voluntary departure from the Immigration Judge and the asylum application was never adjudicated on its merits, leave alone reviewed by the judge or the government opposing counsel. The noncitizen timely left the US timely under voluntary departure, and a few years later, came to the US in H-1B status and ultimately obtained permanent residence through the employer who filed a labor certification, an I-140 petition and subsequently an I-485 adjustment of status application.

At the time of filing the I-485 application the noncitizen failed to mention  in the I-485 application that she had made a misrepresentation to obtain an immigration benefit through the asylum application. Although in the asylum application she had  claimed to be a member of a political party that resulted in her arrest for political reasons, the noncitizen failed to indicate in the I-485 application that she had ever been a member of a political party or that she had been arrested. On the other hand, the noncitizen disclosed in the I-485 application that she had been placed in removal proceedings and had left the US pursuant to voluntary departure.

This individual retains an immigration attorney who in good faith prepares and files the N-400 application. The attorney inquired about how his client obtained permanent residency and is satisfied with the explanation from the client that she was sponsored by her employer through a bona fide labor certification, I-140 petition and I-485 application. The client desires that the N-400 application be filed quickly so that she can become a US citizen in time to vote in the presidential election and indicates to her attorney that it would not be necessary to file a request for her records under the Freedom of Information Act. When preparing the N-400 application, the attorney disclosed that his client had been placed in removal proceedings, but relying in good faith on what his client told him, he did not acknowledge in the N-400 that his client gave any information that was false, fraudulent or misleading or had lied to a government official to obtain an immigration benefit.

At the naturalization interview, the examiner goes through the questions on the N-400 and then confronts the client for not admitting that she had been a member of a political party as she had stated in her asylum application. The examiner also questions the client for not admitting that she had been arrested. The attorney is caught by surprise and asks for a short break to speak to the client. The client confesses to the attorney that she vaguely remembers that she was mislead into filing a fabricated asylum application, but she did not think much about it, as she withdrew the asylum application before an IJ in exchange for voluntary departure.

The attorney explains all of this to the naturalization examiner after conversing with his client. The examiner believes that if the client had filed a false asylum application, she should have disclosed that she had sought an immigration benefit by lying in her I-485 application and should have  sought a waiver under INA § 212(i) prior to adjusting status and obtaining permanent residence. The attorney argues that his client withdrew the application under the supervision of the Immigration Judge who granted her voluntary departure. She was also misled into filing this asylum application.

Notwithstanding the attorney’s pleas on behalf of his client, the USCIS issued a denial of the N-400 application on the ground that she had not met all the requirements for naturalization including having been lawfully admitted for permanent residence under INA §316. The client appealed the denial by filing Form N-336,  and a more senior naturalization officer again affirmed the original denial.

Although the USCIS asserted that the client has not been lawfully admitted for permanent residence, she sill technically remains a permanent resident until she is subject to a final order of removal. She can continue to remain in the US as a permanent resident as well as use the I-551 card if she needs to verify her status with a new employer as well as travel in and out of the US. And herein lies the paradox. If the USCIS issues a Notice to Appear (NTA)  and places the client in removal proceedings, it will benefit her as she will be eligible for a waiver under INA § 237(a)(1)(H), which provides:

Waiver authorized for certain misrepresentations. The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in Section 1182(a)(6)(C)(i) of this title, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

  1. (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
    (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation. OR
  2. is a VAWA self-petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

A noncitizen in removal proceedings may apply for this waiver under INA § 237(a)(1)(H) after being inadmissible for fraud or willful misrepresentation under INA  § 212(a)(6)(C)(i). The waiver would apply whether the noncitizen filed at application for an immigrant visa at a consular post or even during adjustment of status. See Matter of Agour, 26 I&N Dec. 566 (BIA 2015). The waiver also applies even if the misrepresentation was not willful such as if the noncitizen mistakenly received an immigrant visa after the petitioner died and is not even charged under INA 212(a)(6)(C)(i) and instead under the more general INA 212(a)(7)(A)(i)(I) for lack of a valid visa or entry document. See Matter of Fu, 23 I&N Dec. 985 (BIA 2006). This sort of innocent misrepresentation can occur if the USICS adjusts an applicant for permanent residence under an employment-based preference when the final action date was not current. At the naturalization interview, the applicant’s N-400 can be denied because he was not properly admitted as a lawful permanent resident. It may also occur if a diplomat who is subject to diplomatic immunity adjusts status to permanent residence without submitting a waiver of diplomatic privileges and immunities.

If the noncitizen is placed in removal proceeding, and has the requisite qualifying relative, which is she must be the spouse, parent, son, or daughter of a citizen of the United States or of a lawful permanent resident, she can request a waiver before an Immigrant Judge.  There is no form to file a § 237(a)(1)(H) waiver. The IJ has discretion to grant or deny the waiver after taking into consideration all the favorable an adverse factors. The initial fraud can also be considered as a factor in considering the waiver. See Matter of Tijam, 22 I&N Dec. 408 (BIA 1998).  If the waiver is granted and removal proceedings are terminated, the applicant can get quickly naturalized provided she met all the other requirements for naturalization.

The problem is that the USCIS these days seldom places noncitizens who have been denied naturalization based on not being admitted as lawful permanent residents in removal proceedings. Even repeatedly requesting USCIS to issue an NTA falls upon deaf ears.  The reason could either be that the DHS does not have the resources to process NTAs, or it could be more cynical, which is that the DHS does not wish to place them in removal proceedings so that they may then seek a benefit. As a result, noncitizens whose applications have been denied will forever remain lawful permanent residents and never be able to become US citizens unless they can successfully challenge the denial of the N-400 application in federal court.

DHS may wish to consider promulgating a rule that would allow noncitizens to apply for §237(a)(1)(H) waivers administratively outside removal proceedings. Historically, 8 CFR 212.3(a) and (c) has allowed for the filing of waivers under INA § 212(c) with the USCIS. Under § 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA),  eligible individuals could apply for cancellation of removal administratively, which got implemented under 8 CFR §1240.66. Allowing administrative filings of § 237(a)(1)(h)  waivers would increase efficiency in the immigration system and provide a more humane approach for individuals who have demonstrated eligibility as well as compelling equities and humanitarian factors. It would also reduce the burdens on the already backlogged courts, allowing them to focus on more complex cases.

 

 

 

 

Cyrus Mehta

Parole in Place – A Means to an End or An End in Itself?

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By Cyrus D. Mehta and Kaitlyn Box*

 On June 18, 2024, President Biden announced new measures aimed at ensuring that “U.S. citizens with noncitizen spouses and children can keep their families together”. One of these measures provides a discretionary grant of parole in place (“PIP”) to individuals who: are present in the United States without admission or parole; have been continuously physically present in the United States since at least June 17, 2014; have a legally valid marriage to a U.S. citizen on or before June 17, 2024; have no disqualifying criminal history and otherwise are not deemed to be a threat to public safety, national security, or border security; and submit biometrics and undergo required background checks and national security and public safety vetting. Individuals whose PIP applications are approved will be able to remain in the U.S. and apply for work authorization. Moreover, the intent of the program is to provide a path to permanent residence. A grant of parole in place “satisfies the requirement under INA section 245(a) that the requestor has been inspected and paroled by an immigration officer”. Qualifying family members of noncitizens granted PIP can file I-130 petitions on their behalf, and the noncitizens can then apply for adjustment of status.

PIP under DHS’s Implementation of the Keeping Families Together program in the Federal Register poses a philosophical question, however – is the measure a means to an end or an end in itself?  The intent of the program is for a noncitizen granted PIP to ultimately be able to be able to adjust status under INA 245(a). When PIP is granted, though, DHS does not require requestors to establish that they are not inadmissible or ineligible for adjustment of status. Although the grant of PIP is only for 3 years, unless extended, requestors can remain in the U.S. and apply for employment authorization upon being granted in PIP. This in itself is a benefit, albeit temporary, and may allow requestors who face grounds of inadmissibility or ineligibility for adjustment of status additional time to overcome these barriers before they file an I-485 adjustment of status application.

There are clearly explicit criminal grounds that would disqualify a PIP application. On the other hand, if a requestor may be potentially inadmissible that in itself would not preclude them from requesting PIP.

The Federal Register notice implementing PIP states the following regarding inadmissibility:

DHS additionally considered requiring the requestor to demonstrate that they are not inadmissible under any ground set forth in INA section 212(a), 8 U.S.C. 1182(a), to be granted parole under this process. This parole in place process is meant for those requestors who are otherwise eligible to adjust status. As noted elsewhere in this notice, serious criminal convictions, including certain convictions that would render the requestor inadmissible and therefore ineligible for adjustment of status, will be disqualifying for this process; other criminal convictions, as well as prior, unexecuted removal orders, will trigger a rebuttable presumption of ineligibility for this process. However, detailed consideration of grounds of inadmissibility—including whether applicable grounds can be waived—is a complex analysis undertaken during the Form I-485 adjustment of status adjudication. Requiring parole in place adjudicators to conduct the inadmissibility analysis that is normally conducted at the adjustment of status stage would be an inefficient, duplicative, and costly use of USCIS resources. Therefore, when assessing eligibility for parole in place, while DHS will consider the requestor’s criminal and immigration history and any other adverse factors that could bear upon admissibility, it will not import the admissibility analysis conducted at the Form I-485 stage into the parole adjudication.

Therefore, requestors who are likely inadmissible but feel that they will be able to overcome these grounds can still apply for PIP. A requestor, for example, who believes that they will not at present be able to overcome the public charge grounds of inadmissibility because the petitioner lacks sufficient income, for example, can still apply for PIP as they may hope that the petitioner’s future tax returns will reflect an income that exceeds 125% of the relevant poverty guideline. Similarly, a requestor who has committed fraud, such as filing a fraudulent asylum applicant in the past, can still apply for PIP and file an I-601 waiver with the I-485, even if the high standard for demonstrating extreme hardship to a qualifying relevant may not be met at the time of requesting PIP but may be satisfied at a later point. For example, having additional US citizen children in the near future would render it more difficult for the US citizen spouse to take care of children if the noncitizen spouse is hypothetically removed from the US. Requestors in these scenarios would still derive the benefits of PIP in good faith and be able to apply for EADs.

An individual requesting PIP could also be prima facie ineligible for adjustment of status if they are subject to an unexecuted removal order for example. The requestor would need to reopen the removal order, most likely though a joint motion with the government, which may or may not occur. Even though a certain fact pattern presented by the requestor could make it difficult to convince an ICE OPLA attorney to agree to join in a motion to reopen, the requestor can still apply for PIP. The Federal Register notice states the following with regards to prior removal orders:

DHS considered whether noncitizens with unexecuted final removal orders should be eligible for this process. DHS determined that noncitizens with unexecuted final removal orders will be presumptively ineligible for parole under this process. DHS recognizes that a noncitizen may have grounds to request that an immigration judge or the BIA reopen their immigration proceedings when they are otherwise eligible for adjustment of status, and thus determined that categorical ineligibility for this parole process would be inappropriate. As a result, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order and all other mitigating factors presented in determining whether the noncitizen may overcome the rebuttable presumption of ineligibility and be granted parole in place.

 Of course, each noncitizen considering requesting PIP must make these assessments themselves. Even if there is no chance that the I-485 will ever get approved, it may be beneficial to request PIP for a 3 year period along with a grant of employment authorization. On the other hand, the Federal Register notice clearly states that there is no assurance that the information provided by the noncitizen in the PIP request will not be used against them:

DHS generally will not use information contained in a request for parole in place under this process for the purpose of initiating immigration enforcement action against the requestor unless DHS determines, in its discretion, the requestor poses a threat to national security, public safety, or border security.[162] This process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate, in accordance with the INA and consistent with governing policies and practices, against noncitizens who may be eligible or who have pending applications for parole under this process. Information provided under this process may be otherwise disclosed consistent with statutory authorities, obligations, and restrictions, as well as governing privacy and information-sharing policies.

Requestors need to decide on a case by case basis whether it is worth obtaining  PIP and work authorization for at least a 3 year period even if they do not ultimately get permanent residence through adjustment of status, and instead get removed from the US. Indeed, there are other risks that could expose the requestor to enforcement action independent of whether the I-485 may be filed and approved. On August 23, 2024, Texas and 15 other Republican states filed a lawsuit in federal court on the ground that the PIP has violated the INA,  the Administrative Procedure Act and the Take Care Clause of the US Constitution. Although in the opinion of the authors the lawsuit is not meritorious as parole is clearly authorized under INA 212(d)(5), it is likely that a judge may preliminarily enjoin the program and a higher court may find it unlawful. Under this circumstance, information provided in the PIP could potentially be used against the noncitizen in an enforcement action regardless of whether the I-485 application may get granted or not.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

  

Cyrus Mehta

The Perils of Claiming the Foreign Earned Income Exclusion When Sponsoring an Immigrant on an Affidavit of Support

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By Cyrus D. Mehta and Kaitlyn Box*

 Although most U.S. citizens and lawful permanent residents must pay U.S. taxes on their worldwide income, the foreign earned inclusion exclusion (“FEIE”) allows some U.S. citizens and residents to exempt income earned outside the country from U.S. taxes. In order to avail of the FEIE, the taxpayer must be “a U.S. citizen who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year, a U.S. resident alien who is a citizen or national of a country with which the United States has an income tax treaty in effect and who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire tax year, or a U.S. citizen or a U.S. resident alien who is physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive months”. Salaries, wages, and self-employment income may be excluded as foreign-earned income, but other types of income, such as pay received from the U.S. government, may not. In 2023, those to whom the FEIE applies may exclude a portion of their foreign-earned income – up to $120,000 for 2023 – from their worldwide income.

Difficulties can arise, however, when a U.S. citizen or lawful permanent resident who can avail of the FEIE intends to sponsor a family member for permanent residence and must submit Form I-864, Affidavit of Support, in order to demonstrate that they have the financial means to support the individual they are sponsoring. Most sponsors must demonstrate that their income meets 125% of the HHS Poverty Guidelines for the relevant year and household size. The USCIS looks to see the “total income” indicated in item # 9 on Form 1040, US Individual Tax Return.  The FEIE, however, could result in a sponsor’s total income appearing as a negative number on the tax return even if the wages reported in item # 1 of Form 1040. This may be the case even if the wage income indicated in item # 1 of the Form 1040 may be sufficient.   Moreover, a sponsor who qualifies for the FEIE at the time of filing the I-864 may not even be considered domiciled in the US for purposes of the I-864 under 8 CFR 213a.2(c)(1)(ii), which requires that their principal place of residence be in the U.S. A sponsor who finds themselves in this scenario would need to show that they have taken steps to make the U.S. his immediate principal place of abode. It would be preferable if a sponsor who has taken advantage of the FEIR in a previous year is presently residing in the U.S. at the time of filing the I-864 and no longer claiming the FEIR for the current tax year.

Based on anecdotal experience, even if it is explained that the total income was negative because of the FEIE but the wages reported in item #1 of the 1040 were sufficient to meet the income requirements, both the USICS in cases where an I-485 adjustment of status is being filed or the National Visa Center (NVC) of the State Department in cases where the  applicant is consular processing overseas for the immigrant visa, reject the sponsor’s I-864 when the total income in item # 9 is insufficient because of the FEIE. It would be unfortunate for a sponsor who is legitimately entitled to take the sizable deduction from their taxable income afforded by the FEIE to forego it in order to demonstrate that they have sufficient income to meet 125% of the poverty line to satisfy the income requirement for Form I-864.

Sponsors who are in this predicament may want to rely on their assets in addition to the income and report those assets on Form I-864. If the sponsor is unable to meet the income requirement through income or assets, then it may need to be necessary to include an I-864 from a joint sponsor. Many joint sponsors are reluctant to file I-864 applications as they are fearful of being held liable in case the beneficiary of the petition becomes reliant on public benefits.

If the sponsor on an I-864 claiming the FEIE is a lawful permanent resident, this LPR may also be jeopardizing their ability to naturalize in addition to not being able to show sufficient income if the FFIE takes up a large proportion of the reported income in item # 1 of Form 1040. IRS Form 2555 allows taxpayers to indicate whether they are making an election under the bona fide residence test or the physical presence test. An LPR who is claiming the FEIE based on being a bona fide resident must be a citizen of a country that has a treaty with the U.S.  According to a previous blog posted on October 1,  2012,  claiming the FEIE based on being a bona fide resident for one year in the foreign country is more harmful than claiming the FEIE based on being physically present for 330 days in a foreign country for maintaining continuous residence for naturalization purposes. This blog was based on the guidance in the USCIS Adjudicator’s Field Manual (AFM) at 74(g)(9)(B). On the other hand, the newer USCIS Policy Manual, which is replacing the AFM does not include any caveats on claiming the FEIE for maintaining continuous residence although USCIS could still consider its prior policy in determining whether an applicant has demonstrated continuous residence to qualify for naturalization.   Thus, for the permanent resident sponsor of an I-864 who has claimed the FEIE, there is a double whammy as they may not be able to sponsor an intending immigrant and may have also jeopardized their ability to naturalize.

It makes no sense for both the USCIS and State Department to take such a rigid position. If the sponsor can show that they earned an income through wages or other means that was sufficient to meet 125% of the HHS Poverty Guidelines, why should it matter if the income gets deducted based on the FEIE? This is a paper deduction as the sponsor has received the requisite income in hand already and can support the noncitizen beneficiary of an I-130 petition, and in some cases, and I-140 petition. We do hope that the USCIS and DOS will pay heed and stop rejecting I-864s if the total income in the 1040 income appears to be insufficient, when it is actually not. There is no statute or regulation authorizing the government to take such an arbitrary and irrational position, which deprives noncitizen beneficiaries of approved I-130 and I-140 petitions from being able to immigrate to the US as permanent residents.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Court Upholds Regulation Issuing Employment Authorization to H-4 Spouses Even After the Demise of Chevron Deference

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By Cyrus D. Mehta and Kaitlyn Box*

On August 2, 2024, the D.C. Court of Appeals issued its opinion in Save Jobs USA v. DHS, upholding the regulation that provides employment authorization to certain H-4 spouses of H-1B nonimmigrants. Save Jobs USA, an organization aiming to “address the problems American workers face from foreign labor entering the United States job market through visa programs” had challenged this regulatory provision, 8 C.F.R. §§ 214.2, 274a, arguing that it “exceeded the [DHS]’s statutory authority, and that, in adopting it, [DHS] acted arbitrarily and capriciously.”

The DC Circuit found that DHS is authorized to extend employment authorization to H-4 spouses under 8 USC 1184(a)(1), INA 214(a)(1) (stating that “The admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…”) and 8 USC 1103(a)(3), INA 103(a)(3) (stating that the DHS Secretary “…shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this chapter.”). Moreover, the court held it had already “interpreted the relevant provisions of the INA to answer a similar question in favor of DHS in Washington Alliance of Technology Workers v. DHS, 50 F.4th 164 (D.C. Cir. 2022) (“Washtech”). As discussed in a prior blog, Washtech involved a challenge to the 24 month Optional Practical Training (OPT) extension for STEM graduates by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech further asserted INA § 101(a)(15)(F)(i) authorizes DHS to allow F-1 students to remain in the U.S. only until they have completed degree program, not to pursue post-graduation practical training. The DC Circuit upheld DHS’ STEM OPT rules, reasoning that the STEM OPT extension is a valid exercise of DHS’ authority under INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation, noting that practical training is critical to STEM students’ ability to apply skills learned during their degree programs once they return to their home countries. Judge Pillard, who authored the opinion, noted that the U.S. has long permitted foreign students to remain in the country for practical training, beginning with a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training was authorized even prior to the enactment of the INA in 1952.

Because Save Jobs USA did not meaningfully distinguish its case against H-4 work authorization from the precedent established in Washtech, the DC Circuit affirmed the district court’s grant of summary judgment in favor of DHS. Save Jobs USA argued that Washtech should be disregarded because it did not address the major questions doctrine established by the Supreme Court in West Virginia v. EPA, 597 U.S. 697, 716 (2022), which holds that courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” The DC Circuit gave short shrift to this argument, though, stating that the purpose of the major questions doctrine is a tool of statutory construction “to help courts figure out what a statute means”. Because Washtech had already interpreted the relevant regulations after West Virginia v. EPA, the court found that there was no need to overturn Save Jobs USA v. DHS as Washtech remained good law. Under stare decisis a future court lacks the authority to say a previous court was wrong about how it resolved the actual legal issue before it. As Washtech was decided after the major questions doctrine was established by the Supreme Court in West Virginia v. EPA, it was assumed that Washtech already considered it and there was no need to upset the Court’s holding in Save Jobs USA, which relied on Washtech.

Save Jobs USA v. DHS also represents one of the first instances of a federal court upholding a regulatory provision notwithstanding the demise of Chevron deference. In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine, which held that courts were required to defer to the government agency’s reasonable interpretation of an ambiguous statute. We have discussed Loper Bright at length in a previous blog. In footnote 2 in Save Jobs USA v. DHS, the DC Circuit stated that “Washtech did not depend on Chevron” because Washtech had applied Chevron as a “counter-factual, fallback argument”, but this did not alter Washtech’s holding that INA 214(a)(1) and INA 101(a)(3) were not ambiguous in the first place.

Save Jobs USA v. DHS affirms that courts can rely on direct authorization from DHS to promulgate regulation to issue employment authorization to noncitizens. Despite the evisceration of Chevron deference, courts need not rely on an agency’s interpretation of an INA provision in order to provide noncitizens with work authorization, such as the INA provisions that extend STEM OPT work authorization to F-1 students or provide work authorization to H-4 spouses, because these statutory provisions are not ambiguous in the first instance.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Obtaining Advance Parole on a Pending Adjustment of Status Application

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By Cyrus D. Mehta

Those who have filed an I-485 application adjustment of status must obtain advance parole before they travel outside the US while their I-485 application. Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, at his or her discretion, to “parole into the United States temporarily under such conditions as he [or she] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission into the United States.” Travelling outside the US without advance parole will result in abandonment of the application. It may also result in a finding of inadmissibility at the port of entry.  Nonimmigrants who are in H-1B or L-1 status do not need to apply for advance parole and can return to the US on the underlying H-1B or L-1 visa in their passports. Those in H-1B or L nonimmigrant status who travel on advance parole may be paroled to resume in H-1B and L status under USCIS policy established in the Cronin memo.  Nonimmigrants in valid V-1 or V-2/V-3 status or K-3/K-4 status who have an I-485 application pending also do not need advance parole.

It is thus important for the adjustment applicants who are not exempt to obtain advance parole before departing the US by filing Form I-131. The processing times for an advance parole can be maddeningly long and can vary from one USCIS service center to another. The processing time for an I-131 at the Texas Service Center is 26.5 months and only 4 months at the Nebraska Service Center. It is 8.5 months at the Vermont Service Center, 12.5 months at the National Benefits Center and 14 months at the California Service Center. One cannot select the USCIS Service Center that takes the fastest time. You are required to file at a centralized location and the I-131 then application gets randomly designated to a Service Center. It is the luck of the draw if the I-131 gets sent to the Nebraska Service Center, which has a 4 months processing time, as compared to the Texas Service Center, which is 26.5 months.

These processing times are published on https://egov.uscis.gov/processing-times/. They are not exact processing times as the USCIS qualifies them by stating that 80% of cases are completed within the published processing time. Hence, the processing time may take longer or shorter  than the published processing time.

The ability to travel while the I-485 application is pending is important for many applicants, resulting in  hardship and inconvenience if the applicant must wait for 26.5 months before they can travel due to a family emergency or a social trip like attending a wedding. It is possible to request to expedite the processing of an I-131 application for advance parole as well as request for emergency parole under limited circumstances. Even so, the likelihood of the request for expedite or emergency parole being granted is uncertain. On the other hand, outside the expedite and emergency context, the USCIS issues advance parole rather routinely without the need for a lengthy justification with the Form I-131.

While this blog focuses on obtaining advance parole when an I-485 application is pending, advance parole can also be obtained when one has a pending Form I-181 application for Temporary Protected Status (although travel under TPS has a separate statutory basis), or has been granted T or U nonimmigrant status. Advance parole can also be granted to one who has been paroled pursuant to INA 212(d)(5) or to one who has been granted deferred action under the Deferred Action for Childhood Arrivals (DACA). The instructions to From I-131 provides details under which travel permission is granted under various situations. It should also be noted that if an individual who has been unlawfully present and is subject to the 3 or 10 year bar upon departing the United States, leaving the US under advance parole is not considered a departure for triggering the 3 or 10 year bars under INA  212(a)(9)(B) pursuant to Matter of Arrabally and Yerrabelly.

Expedited Processing

 The USCIS has published criteria at https://www.uscis.gov/forms/filing-guidance/expedite-requests  to expedite the processing of a number of applications including the I-131 application for advance parole. These include

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to timely file the benefit request or to timely respond to any requests for evidence;Emergencies or urgent humanitarian situations;
  • Nonprofit organization (as designated by the Internal Revenue Service (IRS)) whose request is in furtherance of the cultural or social interests of the United States;
  • Government interests, including cases identified by the government as urgent because they involve the public interest, public safety, national interest, or national security interests; and
  • Clear USCIS error. The USCIS has included certain travel related requests  under “emergencies or urgent humanitarian situations” as follows:

Expedited processing of a travel document may be warranted when there is an unexpected need to travel outside the United States for an unplanned event, such as for a funeral. Expedited processing of a travel document may also be warranted when there is a pressing or critical need to travel outside the United States for a planned event, but processing times prevent USCIS from issuing the travel document by the planned date of departure. When there is a request to expedite processing of a travel document for a planned event, we will consider whether the applicant timely filed Form I-131 or timely responded to a request for evidence.

NOTE:  A benefit requestor’s desire to travel solely for vacation generally does not meet the definition of a pressing or critical need to travel.

Examples of evidence depending on the travel related event are listed in the above mentioned expedited criteria portal.

The best way to contact USCIS is by contacting the customer support number at 800-375-5283 once the I-131 receipt notice has been issued with the appropriate case number. There are other suggested ways too, set forth at https://www.uscis.gov/contactcenter in addition to calling the telephone number such as contacting USCIS’s chatbot, Emma. Submitting documents in support of the request in the USCIS online account is also required prior to contacting the USCIS.

Emergency Advance Parole

An alternate way to request faster processing of advance parole is by requesting an emergency appointment if there is a pressing need to travel in less than 15 days. See https://www.uscis.gov/greencard/greencardprocesses/traveldocuments/emergencytravel for further details. The USCIS includes the following examples that qualify for emergency parole:

  • A requestor who has a pressing or critical need to travel to obtain medical treatment in a limited amount of time.
  • A requestor who has a pressing or critical need to travel due to the death or grave illness of a family member or close friend.
  • A requestor who timely applied for a travel document and requested expedited processing, but their case remains pending, and they now must travel within 15 days for a pressing or critical professional, academic, or personal commitment.

The emergency advance parole will be issued for only 30 days although the previously filed I-131 application will continue to process even if the emergency parole is granted for 30 days. The applicant must have gone through the biometrics procedure. Even if there is already a pending I-131 application that was previously filed, the requestor must submit a completed I-131 application during the appointment at the local USCIS office along with supporting documentation that is listed under the USCIS’s above mentioned expedited criteria.

Advance Parole is an Unnecessary Bureaucratic and Time Consuming Obstacle

There is really no need to establish such a complex, time consuming and expensive procedure for I-485 adjustment applicants to apply for and obtain advance parole. The USCIS ought to automatically issue travel permission when issuing the receipt notice upon filing the I-131 application. The applicant has filed an application for lawful permanent residence through Form I-485, and it is quite unnecessary to require yet another interim application for advance parole with absurdly long and uncertain processing times.

Advance parole is generally issued for one year although recently some applicants receive a 5 year advance parole along with a 5 year employment authorization. If further travel is necessary, the advance parole must be renewed if the I-485 application is still pending after the initial authorization has expired. If the applicant travels on the already issued advance parole after the new I-131 has been filed, the USCIS may needlessly deny the new advance parole.

Although this blog informs readers about the advance parole procedures while the I-485 application is pending, this author advocates for the abolition of a separate time consuming and unnecessary advance parole  request procedure. USCIS must automatically issue advance parole with the I-485 receipt notice.

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

 

 

 

 

Cyrus Mehta

SEC v. Jarkesy and Loper Bright v. Raimondo: How the Supreme Court’s Dismantling of the Administrative State Impacts Immigration Law

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By Cyrus D. Mehta and Kaitlyn Box*

The conservative Supreme Court majority recently issued two decisions that will have a major impact on the administrative state by transferring power from administrative agencies to the courts. We discuss both these cases and their impact on immigration law.

SEC v. Jarkesy

On June 27, 2024 the Supreme Court issued its decision in Securities and Exchange Commission v. Jarkesy. As discussed in our previous blog, Jarkesy involved an investment advisor who was charged with violations of securities law and challenged the SEC’s enforcement action on the grounds that he was deprived of his constitutional right to a jury trial, that “Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power”, and that restrictions on the removal of Administrative Law Judges (ALJs) violate Article II. It was feared that the outcome of Jarkesy could significantly impact the immigration court system, as the authority of Immigration Judges (IJs) could be challenged using the same arguments advanced by Jarkesy.

The Supreme Court ultimately held that defendants are entitled to jury trials when the SEC seeks civil penalties against them for securities fraud. However, this holding appears unlikely to impede the ability of IJs to hear cases. In its opinion, the Supreme Court addressed concerns that its holding could reach beyond SEC administrative enforcement proceedings that replicate common law fraud. Citing Oceanic Steam Navigation Co. v. Stranahan, 214 U. S. 320 (1909), a case that involved the imposi­tion of a monetary penalty on a steamship company accused of transporting immigrants afflicted with “loathsome or dangerous contagious diseases” to the United States, the Supreme Court clarified that Congress has the power to regulate immigration and even impose monetary fines for violations without triggering the right to a jury trial under the plenary power doctrine. Justice Robert’s majority opinion cited this case as on of the category of cases concerning public rights, including immigration law, which do not include a jury trial.  This discussion seems to exclude most, if not all, immigration-related matters from the Supreme Court’s holding in Jarkesy. On the other hand, one provision resembling common law fraud is the document fraud provision at INA 274C. An individual who is subject to an INA 274C hearing before an ALJ may wish to try to invoke Jarkesy to invalidate the hearing because it is a violation of their Seventh Amendment right to a jury trial. Similarly, if there is an discrimination hearing under INA 274B based on an employee’s complaint, an employer may seek to invoke its right to a jury trial.

Since the Supreme Court did not review an appointments clause violation involving an ALJ, Jarkesy may not have impacted the Space X and Walmart lawsuits that have thus far successfully invalidate proceedings before the Office of the Chief Administrative Hearing Officer, which handles cases involving unfair employment practices, document fraud and noncompliance record keeping requirements. These will be dealt with at a later time in another case. However, the Supreme Court’s holding in Jarkesy could impact immigration lawyers who have an EB-5 practice, as they can be subjected to SEC enforcement actions. As discussed in a prior blog, the SEC has initiated enforcement actions against immigration lawyers who it claimed had offered investments without registering as a broker or received commissions from their clients’ investments. The SEC often imposes monetary sanctions on immigration lawyers found to have committed a securities violation. Thus, Jarkesy could provide immigration lawyers accused of securities fraud a means of challenging the enforcement proceedings brought against them by the SEC on the grounds that they are entitled to a jury trial.

Although Jarkesy only struck down as unconstitutional the lack of a civil jury trial for civil penalties under securities law, Justice Sotomayor in her dissent identified at least two dozen agencies that impose civil penalties in administrative proceedings including CFPB, CFTC, EPA, FCC, FDA, FMC, FMSHRC, FRA, DOJ, DOT, FERC, HHS, HUD, MSPB, OSHA, Treasury, USDA, and USPS.

Loper Bright Enterprises v. Raimondo

Another recent Supreme Court decision may, on the other hand, have wide reaching impacts on immigration. In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine.  Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled. It is likely that courts will revert to Skidmore deference, the lower-level framework that preceded Chevron, which asserts that the level of deference an agency’s decision merits depends on “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U. S. 134 (1944).

In a previous blog, we discussed the possible impacts of the elimination of Chevron deference, including the idea that it may open the door for challenges to a number of unfavorable immigration policies. For example, 20 CFR 656, which requires employers to place outdated print advertisements in Sunday newspapers as part of the labor certification recruitment process could now be vulnerable to challenges. INA §212(a)(5) states only that a noncitizen is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient [U.S.] workers who are able, willing, qualified…and available at the time of application”, and imposes no requirement on employers to conduct recruitment to establish a lack of U.S. workers. Post Chevron deference, courts may be more reluctant to defer to DOL’s interpretation of INA § 212(a)(5) as set forth in 20 CFR 656, which requires compliance with onerous recruitment steps including the placement of print ads. Moreover, the Supreme Court also issued Corner Post v. Board of Governors of the Federal Reserve System further widening the window to challenge regulations beyond the 6-year statute of limitations until the plaintiff is injured b final agency action.

USCIS’ “final merits determination”, the second component of a two-part test for determining whether an applicant has satisfied the criteria for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions may now be more ripe for legal challenges, as well. This requirement arose from USCIS’ interpretation of dicta referencing a “final merits determination” in the Ninth Circuit’s opinion in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). However, the Ninth Circuit’s holding in Kazarian does not actually impose a final merits determination, nor does this requirement appear anywhere in the relevant regulatory criteria. It may now be possible to attack unfavorable interpretations such as the  BIA’s restrictive definition of “particular social group” under Matter of M-E-V-G , or the BIA’s narrow interpretation of INA §203(h)(3) under Matter of Wang, which precludes many derivative beneficiaries of visa petitions who did not get protection under the Child Status Protection Act (CSPA) from retaining their parents’ priority dates. The Supreme Court affirmed Matter of Wang purely under Chevron deference in Scialabba v. Osorio.

On the other hand, the future of other, beneficial immigration policies is rendered uncertain without Chevron deference. F-1 OPT is an exercise of DHS’ discretion and not explicitly authorized by statute. F-1 OPT has already been challenged, and was upheld by the First Circuit in 2022 in WashTech v. U.S. under Chevron deference. Deferred Action for Childhood Arrivals (DACA), a discretionary benefit that has been the subject of numerous legal challenges, could also be vulnerable without Chevron. Even if Chevron no longer helps, there is a statutory basis for the USCIS to issue work authorization to noncitizens under INA § 274A(h)(3) and to set time and other conditions for nonimmigrants under INA § 214(a)(1).

The demise of Chevron also brings about the fall of Brand X. As discussed in our prior blog, the Supreme Court in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) held that an agency’s interpretation of an ambiguous statute may still be afforded deference even if a circuit court has interpreted the statute in a conflicting way. Brand X has been a double edged sword – although allowed agencies to interpret statutes in a way that was detrimental to immigration, it also allowed for the possibility of creative beneficial interpretations notwithstanding contradictory circuit court precedent. Brand X could have been harnessed to allow derivative family members to be counted together with principal applicants in the employment-based (EB) and family based (FB) visa preference categories under INA § 203(d), as the plain text of §203(d) does not require separate counting of derivatives. Although Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021) held that derivative family members must be counted separately in the EB-5 context, Brand X could have allowed an immigrant-friendly presidential administration to issue a policy memorandum overruling the case everywhere else.

Brand X has  also been employed to the detriment of immigrants. In his concurrence in Loper Bright v. Raimondo, Justice Gorsuch pointed to De Niz Robles v. Lynch, 803 F. 3d 1165 (CA10 2015), in which the BIA had invoked Chevron to “overrule a judicial precedent on which many immigrants had relied” in the 10th Circuit. That precedent was Padilla–Caldera v. Gonzales, 426 F. 3d 1294 (CA10 2005), which held that a noncitizen subject to the permanent bar could nonetheless adjust pursuant to INA § 245(i). According to Justice Gorsuch, who clearly dislikes Brand X:

“The agency then sought to apply its new interpretation retroactively to punish those immigrants—including Alfonzo De Niz Robles, who had relied on that judicial precedent as authority to remain in this country with his U. S. wife and four children…Our court ruled that this retrospective application of the BIA’s new interpretation of the law violated Mr. De Niz Robles’s due process rights…But as a lower court, we could treat only the symptom, not the disease. So Chevron permitted the agency going forward to overrule a judicial decision about the best reading of the law with its own different ‘reasonable’ one and in that way deny relief to countless future immigrants.”

Its problematic aspects aside, Brand X was a tool for reversing unfavorable circuit court decisions, but has now fallen along with Chevron. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock). Also  in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6. With the fall of Chevron, Arrabally might also be vulnerable although it remains to be seen whether a state or organization, which tries to challenge Arrabally  and other immigration policies may get standing to sue. In United States v.  Texas, the Supreme Court held that Texas and Louisiana had no standing to challenge the Biden administration’s enforcement priorities. Writing for the majority, Justice Kavanaugh said: “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.” In the face of United States v. Texas, it could be harder for states to argue that they have standing to challenge Arrabally or other policies.

While many are fearing that the undoing of Chevron will unleash an environmental, consumer, food and drug safety free for all, AILA is viewing the decision in a more positive light. AILA’s president Kelly Stump responded to Loper Bright as follows:

“The Loper Bright and Relentless cases had nothing to do with immigration law and policy, but SCOTUS overturning the longstanding Chevron doctrine will have a significant impact on many immigration adjudications. This now means that an agency’s interpretation of the INA doesn’t automatically prevail, which could level the playing field for immigrants and their families and employers. In removal cases, those seeking review of immigration judges’ or Board of Immigration Appeals decisions should now have more opportunity to do so. Employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker may also benefit. We note possible negative consequences as well, as the decision has severely handicapped the executive branch’s power to modernize our immigration system through policy updates or regulations. Valuable immigration benefits created by regulations may be threatened if not clearly based on statutory language. With this ruling, SCOTUS is punting the rule making process back to Congress. We hope Congress takes the initiative to come together in a bipartisan fashion to legislate sensible solutions that make our immigration system reflective of our modern-day realities.”

Notwithstanding Stump’s upbeat view, not everybody will benefit from the fall of Chevron. The most vulnerable being DACA recipients whose cases is being heard at the Fifth Circuit Court of Appeals, and Stump too acknowledges that “valuable immigration benefits created by regulations may be threatened if not clearly based in statutory language. “ If the Fifth Circuit and then the Supreme Court find DACA unlawful, Congress will need to step in to save DACA recipients. This remains wishful thinking as Congress has never been able to pass meaningful immigration reform in recent times. Chevron provided the bulwark for an immigrant friendly administration to pass meaningful immigration reform through executive action  thus providing ameliorative relief to hundreds of thousands of nonimmigrants. Some programs involving parole have a statutory basis under INA 212(d)(5) and will continue but other programs without explicit statutory language may be susceptible to challenge.  Without Chevron and Congress stepping up, the rug has been pulled under the feet of vulnerable noncitizens.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Uncertain Path of the D-3 Waiver for DACA Recipients under Biden’s New Immigration Initiative  

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By Cyrus D. Mehta and Kaitlyn Box*

On June 18, 2024, the Biden administration announced two new immigration initiatives aimed at keeping families together. The first is a “parole in place” program which will provide a pathway for undocumented spouses of U.S. citizens to become lawful permanent residents (LPRs). In order to be eligible, the noncitizen spouse must have entered the U.S. without admission or parole and hold no immigrant or nonimmigrant status, and “must – as of June 17, 2024 – have resided in the United States for 10 or more years and be legally married to a U.S. citizen, while satisfying all applicable legal requirements.” DHS will evaluate these applications on a case-by-case basis, and will afford approved applicants a three-year period in which to apply for permanent residence.

The other process will enable Deferred Action for Childhood Arrivals (DACA) recipients to more easily obtain employment-based visas. The measure will allow “DACA recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas.” Although many details about this measure are still forthcoming, it appears to involve the expedited issuance of an INA § 212(d)(3) waiver (D-3), which waives many grounds of inadmissibility, including the 3 and 10 year bars that arise from unlawful presence. In a news release corresponding with the Biden administration’s announcement, the U.S. Department of State – Bureau of Consular Affairs stated: “As part of this initiative, the Department will clarify existing guidance to consular officers related to when they should consider recommending that DHS grant a waiver of ineligibility, where applicable… These clarifications will describe when consular officers should consider recommending that the Department of Homeland Security waive ineligibility for these applicants on an expedited basis, in conjunction with visa applications overseas.  However, the processing steps will remain the same.” The Foreign Affairs Manual (FAM) will also be updated to “encourage consular officers to consider recommending expedited review of waiver requests in conjunction with certain nonimmigrant visa applications overseas, consistent with existing Department regulations and guidance…This will result in certain individuals to potentially more quickly receive work visas if DHS approves a waiver of ineligibility.”

Although DACA recipients can at present apply for a D-3 waiver in order to obtain an employment-based nonimmigrant visa, this process is rarely used in practice. When a DACA recipient who has been unlawfully present in the United States for a lengthy period of time leaves the United States to apply for an employment-based visa at a U.S. consulate abroad, they are likely to trigger the 3- or 10-year bars pursuant to INA § 212(a)(9)(B).Under INA § 212(a)(9)(B)(i)(I) a person who is unlawfully present for more than 180 days but less than 1 year, and who voluntarily departs the US prior to the commencement of proceeding is inadmissible if they seek admission within 3 years from the date of departure. Under INA § 212(a)(9)(B)(i)(II) a person who has been unlawfully present for more than one year, and who again seeks admission within 10 years from the date of the departure is inadmissible.

Minors do not accrue unlawful presence under INA§ 212(a)(9)(B)(iii)(I), so a DACA recipient who applied for and received DACA before the age of 18.5 years would not trigger the 3- or 10- year bars. Since the grant of DACA stops the accrual of unlawful presence, they would have accrued less than 180 days of unlawful presence. An individual who obtained DACA after the age of 18.5 years and before 19 would trigger only the 3- year bar, having accrued more than 180 days but less than one year of unlawful presence. DACA recipients who obtained the benefit after the age of 19 would have been unlawfully present in the U.S. for a year or more, and would face the 10-year bar. Individuals could enroll in the DACA program up until they reach age 31, and participation in the program was  highest among those who were well over 18, so many DACA recipients will unfortunately face the full 10-year bar.

The question of whether or not the waiver will be granted is also a purely discretionary determination made by a consular officer, and the waiver application can take months to be adjudicated. The Foreign Affairs Manual directs consular officers to “consider the following factors, among others, when deciding whether to recommend a waiver: The recency and seriousness of the activity or condition causing the applicant’s ineligibility; The reasons for the proposed travel to the United States; and The positive or negative effect, if any, of the planned travel on U.S. public interests. Whether there is a single, isolated incident or a pattern of misconduct; and Evidence of reformation or rehabilitation.”  Thus, DACA recipients, and their prospective employers, currently have little assurance that a D-3 waiver will be granted when they leave the country for consular processing. If the waiver is not granted, the DACA recipient could be stranded outside the U.S. for up to 10 years.

Importantly, an individual can typically only spend a limited amount of time in an employment-based nonimmigrant status – for an H-1B nonimmigrant the maximum is 6 years – so DACA recipients who obtain an employment-based visa such as an H-1B will also need to find a path to remain in the U.S. on a long-term basis, including being sponsored for permanent residence by their employer. Even if the DACA recipient has received the D-3 waiver, this waiver only waives the ground of inadmissibility for the temporary nonimmigrant admission. If the DACA recipient is sponsored for permanent residence, the bars at INA § 212(a)(9)(B) will continue to trigger if the applicant applies for adjustment of status or applies for an immigrant visa overseas. Hence, they will need to wait for 3 or 10 years before they can get admitted as lawful permanent residents. Under USCIS policy, the 3 and 10 year bars can be spent in the US, which we have extensively discussed in a prior blog. The question is how can one wait for 10 years in lawful nonimmigrant status in the US before they can apply for adjustment of status?

Many DACA recipients are natives and citizens of Mexico or South American countries such as Guatemala, Honduras, or El Salvador, so they are likely to be eligible to file an employment-based adjustment of status application much more quickly than a beneficiary from a backlogged country such as India or China. In the June 2024 Visa Bulletin, for example, the Final Action Date for the employment-based third preference category (EB-3) is November 22, 2022 for India and the “rest of world”, but for India it is August 22, 2012. However, §104(c)  the American Competitiveness in the Twenty-First Century Act of 2000 (AC21)  allows a beneficiary’s H-1B status to be extended for three years at a time if they are the beneficiary of an employment-based I-140 immigrant visa petition, and are eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. The H-1B status can be extended every three years until the backlogs caused by the per country limitation clears.  Because the priority date is likely to become current far more quickly for former DACA recipient not born in India who are the beneficiaries of I-140 petitions, they will be at a disadvantage when it comes to obtaining H-1B extensions beyond the sixth year, as they need to spend 10 years in the US before they can overcome the 212(a)(9)(B) ground of inadmissibility, which could complicate the process of remaining in a valid nonimmigrant status while they wait to apply for adjustment of status. An H-1B worker can also obtain a one year H-1B extension under AC21 §106(a) if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. See 8 CFR § 214.2(h)(13)(iii)(D). However, noncitizens are precluded from availing of this extension if they do not file for adjustment of status within one year of visa availability. 8 CFR § 214.2(h)(13)(iii)(D)(10). DACA recipients waiting to overcome 212(a)(9)(B) inadmissibility are thus unlikely to benefit from this provision.

Some DACA recipients may opt for the L-1 nonimmigrant path if they spend one year abroad for a subsidiary, parent, or branch of their US employer in a qualifying executive, managerial or specialized knowledge capacity. However, beware, that unlike one in H-1B status who may be able to keep on applying for extensions under AC 21, the shelf life of the L-1A status is 7 years, and 5 years for the L-1B status, as AC21 does not apply to L-1s. One way to get around spending 10 years in the US to overcome 212(a)(9)(B) inadmissibility is if the applicant is eligible for a waiver under INA §212(a)(b)(b)(v), which is based on a showing of extreme hardship to a qualifying relative such as a spouse or parent is a US citizen or lawful permanent resident. If an applicant has such a qualifying relative, they need not wait out the entire 10 years and can waive the ground of inadmissibility.

In conclusion, obtaining the D-3 waiver only allows the DACA recipient who faces the 3 or10 year bar to be admitted into the US as a nonimmigrant. If the DACA recipient needs to obtain permanent residence, they must either wait it out for 3 or 10 years in a nonimmigrant status before they can get admitted as permanent residents, or they need to qualify for a second waiver under INA 212(a)(b)(b)(v). Most DACA recipients may be better off remaining in DACA status rather than exchanging it for H-1B nonimmigrant status. Once they are in H-1B nonimmigrant status, they will have to remain with the employer who sponsored them and will not be able to seek employment in the open market so readily. Of course, the calculus of giving up DACA in exchange for the H-1B nonimmigrant status may change if the Fifth Circuit or Supreme Court deem DACA unlawful, or if President Trump is reelected and yanks DACA. It remains to be seen whether DACA could survive rescission efforts by a future Trump administration. When upholding DACA in 2020 in Department of Homeland Security v. Regents of the University of California, the Supreme Court found that the “reliance interests” of DACA recipients, who have enrolled in college, embarked on careers, started businesses, purchased homes, and married and had children in reliance on the DACA program, must be taken into consideration when deciding the future of the program. This case was discussed at length in a prior blog.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.