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To Leave Or Not To Leave: The Devastating Impact of USCIS’s Unlawful Presence Policy on Foreign Students

January 28, 2019/0 Comments/in Blog/by Cyrus Mehta

The new USCIS Policy on Unlawful Presence for F, J and M Nonimmigrants took effect on August 9, 2018. This policy has had the effect of rendering nonimmigrants in F, J and M status, mainly students, unlawfully present upon being found to have violated their status.

Under the new policy, unlawful presence started accruing on August 9, 2018 based upon a prior finding of a violation of status. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II).

February 5, 2019, will be the 180^th day from August 9, 2018 according to a web based date calculator. If the USCIS has determined that the foreign student violated status at some point in the past, even prior to August 9, 2018, this individual who does not depart on or before February 5, 2019, will face a 3-year bar from re-entering the US. In order to play safe, the individual should leave the US even before February 5 to avoid risks with flight delays or a difference of opinion with a consular official regarding the exact date and time of departure from the US. Those who violated their status after August 9, 2018 should start counting the 180 days from the date of the status violation, which will now be after February 5, 2019.

Individuals have been found to have been in violation of their status for a number of reasons, and at times the reason may not be so readily obvious. The determination is often even erroneous, but since August 9, 2018, the student would have begun to accrue unlawful presence and will face a 3 -year bar upon departure from the US after February 5, 2019. It is one thing when a student drops out of school and engages in unauthorized unemployment. This is an obvious violation of F-1 status. One instance of a less obvious violation is when an F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by USCIS to have violated F-1 status and thus ineligible to be granted a change of status in the US. 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however, “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002.

This supposed finding of a status violation is erroneous as 8 CFR § 214.2(f)(10)(i) clearly contemplates a student to be authorized to receive more than 1 year of CPT. The school authorizes it, and this authorization is entered in the student’s SEVIS, which in turn is administered by ICE. If ICE authorizes more than 12 months of CPT, it is clearly erroneous and contradictory on the part of the USCIS to find that the student violated status.

Still, if one’s change of status request from F-1 to H-1B has already been denied, this student should leave the US by February 5, 2019. A departure after February 5, 2019, would likely result in a 3 year bar to reentry to the US. If an applicant for change of status has received a Request for Evidence (RFE) accusing him or her for not maintaining status for exceeding one year of practical training, then the dilemma to leave or not to leave becomes more acute. Not all allegations of violation of status based on being issued more than 1 year of CPT result in denials. Many have been able to overcome this finding in the RFE and successfully obtain a change of status from F-1 to H-1B. Thus, one who decides to remain in the US must carefully evaluate the risk in the likelihood of success or failure in overcoming an RFE of this sort. As there is some risk that the request for change of status may be denied, the student may feel that it is safer to leave the US by February 5 rather than take a chance and overcome the objection. If the student cannot overcome the objection, and leaves after February 5, the 3 year bar would have triggered. However, this is a decision that each individual must make with his or her immigration attorney.

Others face different challenges. A student in F-1 Optional Practical Training may have been thought to have been unemployed for more than 90 days. Such an individual who is unemployed for more than 90 days ceases to be in F-1 OPT status (and if in STEM OPT more than 150 days). See 8 CFR 214.2(f)(10)(ii)(E). However, whether one is employed or unemployed may not be so readily obvious. The individual may be treated as an employee by the employer listed on the I-20, but the employer may not have paid her because there was no work during the 90 day period. But the student could have still been viewed as an employee by the employer. Again, one who faces an allegation of not maintaining status due to unemployment for more than 90 days has to make a risk assessment whether to stay in the US beyond February 5, 2019 or whether to leave by February 5.

Those who have found to have violated their status can salvage the situation by leaving the US by February 5, 2019. They still have time to do this. They can return again on another visa, such as the H-1B visa. If one wants to return again in F-1 status, and on the existing F-1 visa, care should be taken as the student may start accruing a new period of unlawful presence if he or she was not properly admitted into the US. If the student received a new I-20 to correct the violation prior to departure, then arguably the student would have been properly admitted and may not start accruing unlawful presence again. However, after February 5, those who were found to have violated their status prior to August 9, 2018 will be trapped. If they leave after February 5, 2019, they will face a 3-year bar. If they leave after August 9, 2019, and if the violation occurred on or prior to August 8, 2018, they will face a 10-year bar. The USCIS unlawful policy memo’s devastating impact on foreign students has already begun to unfold, and will become more acute after February 5.

The only silver lining in the horizon is a lawsuit, Guildford College et al v. Nielson, that has been filed to challenge the unlawful presence policy. The plaintiffs have also subsequently moved for a preliminary injunction on December 14, 2018 to take effect on February 4, 2019. If the preliminary injunction is granted by February 4, 2019, students who have been accused of violating their status, especially those contesting erroneous allegations, can breathe easy for now as they do not have to make plans to depart by February 5.

Update – January 28, 2019: The court in Guildford College v. Nielson granted a temporary restraining order in favor of the two individual plaintiffs who would otherwise be impacted by the unlawful presence policy. This is a positive development. Thus far, the the TRO only positively impacts the two plaintiffs and does not apply globally to all students who may be adversely impacted by the policy. The court has granted a date on March 26, 2019 on the motion for preliminary hearing. If plaintiffs win on the merits at this hearing, that relief should provided global protection.

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

Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders

January 14, 2019/0 Comments/in Blog/by Cyrus Mehta

On Friday, January 11, 2019, many were intrigued by President Trump’s tweet assuring H-1B visas that they should expect a potential path to citizenship. This is what he tweeted:

“H1-B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship. We want to encourage talented and highly skilled people to pursue career options in the U.S.”

There is no direct path to citizenship for H-1B visa holders. They first have to obtain permanent residence, and must then wait for at least 5 years, in most cases, before they become eligible for naturalization.

Trump’s appointee, USCIS Director Cissna, has made life extremely difficult for H-1B visa holders, and thus this tweet was seen like rubbing salt on an open wound. In recent times, even routine requests for extensions of H-1B status for occupations, which should have traditionally been recognized for H-1B classification, have been denied. These arbitrary denials by no means bring simplicity and certainty in the life of an H-1B visa holder, leave alone providing a path to citizenship. To add further insult to injury, the Trump administration is proposing a rule that would rescind the grant of work authorization to H-4 spouses.

Indeed, the goal of the Trump administration, inspired by restrictionists like Steve Miller, is to restrict legal immigration to the United States. This is to appeal to Trump’s base that feel threatened by immigrants of all stripes, whether they are legal, undocumented or refugee.

Some thought that Trump was referring to a proposed rule that would allow employers to preregister for the H-1B lottery, and would be skewed in favor of those with advanced degrees, but this rule too does nothing for existing H-1B visa holders and also does nothing to put them on the path to citizenship.

But if Trump really wants, he can make his tweet become reality without the need to even go through Congress. It has become de riguer for presidential administrations to bring about seismic policy shifts in immigration through executive actions such as President Obama’s DACA or Trump’s travel ban. Even if frowned upon, bypassing Congress to provide benefits to foreign nationals like Obama did is far more preferable than Trump’s travel ban that potentially prevents mothers from banned countries to see their dying child in the United States.

Trump could immediately order Director Cissna to adjudicate H-1B visas in the way that Congress intended, with the goal of approving rather than denying the visa, bringing about much needed simplicity and certainty to both employers and H-1B visa holders. This used to be the case, where the supporting letter for an H-1B petition seldom exceeded a page or two. Presently, employers must brief an H-1B visa petition as if they are filing a brief in federal court. This is quite unnecessary for a routine work visa application.

If H-1B processing resumes in a fair and rational manner, most nationals not born in India and China should be able to obtain permanent residency relatively quickly upon being sponsored by their employers through the labor certification process. Unfortunately, the situation is different for people born in India and China. Due to the per country limits in the employment preferences, they have to wait for several decades even after the employer’s labor certification has been approved. One study predicts that the wait time could be 151 years for Indian born beneficiaries in the employment based second preference.

The outrageous waiting times are due to the excess demand and limited supply of visas, further compounded by the per country cap, set by Congress each year. On first brush, only Congress can change this and not Trump. As Congress is divided, such changes for H-1B visa holders are unlikely for now. There have been proposals in Congress to eliminate the per country caps, which have yet to pass. However, if he wanted to and had the guts, Trump could change the way we count dependents that would dramatically decrease, and ultimately eliminate the backlogs, thus providing a pathway for citizenship to H-1B visa holders.

Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa numbers under the family and employment preferences.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states:

“A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

If Trump wanted to give meaning to his tweet so as to truly assure H-1B visa holders, even if he may not have known what he was saying, he does have room under INA 203(d) to order the State Department and USCIS to count both the principal beneficiary and the family members as one. This will greatly reduce the backlogs and put H-1B visa holders, born in India and China, on a path to permanent residency and citizenship.

In Wang v. Pompeo a group of EB-5 investor arguments made the same argument that the State Department was counting visa numbers incorrectly. Their request for preliminary injunction was recently denied, although the case has to yet be decided on the merits. Still, this is a setback as the judge did not accept the plaintiff’s argument that the administration was counting visas incorrectly under INA 203(d). Even if plaintiffs were denied the preliminary injunction, the Trump administration could cease opposing the plaintiffs in this litigation and start counting the principal and derivative beneficiaries as one unit. There is sufficient ambiguity in INA 203(d) for the administration to count in this new way, and a government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.

Admittedly, hoping that Trump would put H-1B visa holders on a pathway to citizenship is really a pipe dream. So long as restricitonists like Stephen Miller continue to make the United States hostile to immigrants, there is no chance that Trump’s tweet would ever become reality. If he really wanted to carry out his proposal, it might anger his base. He may have to also fire Miller. But if Trump ever wants to follow through on his tweet, this blog shows him a way to do so.

The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference

December 17, 2018/0 Comments/in Blog/by Cyrus Mehta

When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down. If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary.

As background, an individual can obtain permanent residence in the US under the employment-based first preference (EB-1) by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

Receipt of lesser nationally or internationally recognized prizes or awards.
Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
Published material about the person in professional or major trade publications or other major media.
Participation as a judge of the work of others.
Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
Authorship of scholarly articles in the field, in professional or major trade publications or other media.
Artistic exhibitions or showcases.
Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
High salary or remuneration in relation to others in the field.
Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field, in professional or major trade publications or other media.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that the new Kazarian decision reversed, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Unfortunately after the initial victory, Kazarian, as interpreted by the USCIS, has resulted in a two part test. In the first part of the test, the USCIS has to determine whether the individual has met three of the 10 criteria to establish extraordinary ability. However, that is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now – and the focus of this article is to suggest ways to confront it and still win petitions for persons of extraordinary ability or outstanding professors and researchers.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum”), USCIS implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (vi), the Service seized on the following dicta in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and

(2) …[W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d at 1121.

Under this two part test, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h) (3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this extra evidentiary factor into consideration, namely, the lack of reaction in the research community, during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS can still do under the “final merits determination.”

Post Kazarian decisions have generally affirmed the two-part test and final merits determination analysis notwithstanding the holding in a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234. Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts onto the Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was fraudulent or too dated and stale. Moreover, even while courts have adopted the final merits analysis, they seem to also be upholding the USCIS’s conflation of the step one analysis with the step two analysis.

Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) is a decision that explicitly follows the Policy Memorandum, ignored the burden shifting approach as set forth in Buletini and conflated the two steps. Although the petitioner in Rijal, a Nepali documentary film maker, submitted a UNICEF prize, the USCIS concluded that it did not meet the evidentiary criterion of “lesser nationally or internationally recognized prizes or awards of excellence” as it was awarded more than 4 years ago and did not provide evidence of the alien’s sustained acclaim. While the court criticized the USICS for failing to consider this evidence under 8 CFR §204.5(h)(3)(i) and for similar errors under other evidentiary criteria, it nevertheless held that the petitioner did not suffer prejudice from these errors as “it made those errors with an eye toward the ultimate merits determination.” Rijal at 1347. Based on a holistic determination of the petitioner’s evidence, the court held that the USCIS appropriately found that the petitioner did not demonstrate sustained national or international acclaim. It is clear that the court in Rijal affirmed the two step test set forth in the Policy Memorandum even though the suggestion of a “final merits determination” was mere dicta in Kazarian. However, instead of remanding the case because of the USCIS’s faulty step one analysis in rejecting the evidence, the Rijal court held these errors to be harmless under the step two final merits determination.

Noroozi and Assadi v. Napolitano is another decision, albeit unpublished, from the Southern District of New York that has agreed with the Kazarian two-step analysis, but also seemed to agree with the USCIS’s conflation of the two. Petitioner Noroozi represented Iran in table tennis at the 2008 Olympics in Beijing. Although neither Noroozi nor the Iranian table tennis team won any medal at the Olympics, the USICS initially approved the EB-1 petition, but then subsequently revoked it. A second EB-1 petition was filed, which was denied on the ground that Noroorzi only met two of the criteria, but not three. The court agreed with the USCIS that there was no evidence to substantiate that he played a “leading or critical role” for his team and nor did the “published material” about him pass muster since it focused more on the team and only briefly mentioned Noroozi. Although the failure to meet the evidentiary criteria could have ended the analysis, the court also discussed how Noroozi did not merit a favorable judgment under the second part “final merits determination.” Since Noroozi ranked 284th in the world in table tennis, and finished 65th place in table tennis in the 2008 Olympics, the court noted that this would oblige the USCIS to hypothetically grant EB-1 petitions to the 283 higher ranked table tennis players, and also to the 283 higher ranked players in other sports, assuming they were non-US citizens, as well as to the 64 table tennis players who outperformed Noroozi in the 2008 Olympics. The court’s “final merits determination” in Noroozi is troubling as the EB-1 was never intended only for the number one player in a sporting field, and this decision should be contrasted with a pre-Kazarian decision involving an ice hockey player in the National Hockey League whose team won the Stanley Cup, but was not an all-stars or one of the highest paid players, but was still found to be qualified under EB-1. See Muni v. INS, 891 F. Supp. 440 (N.D. Ill 1995). The “final merits determination” permits USCIS to set subjective baselines with respect to rankings of players in sports even if they would potentially qualify under the ten evidentiary criteria as Muni did after he sought reversal of the denial of his EB-1 petition in federal court. Interestingly, in Noroozi, the attorney also became a plaintiff along with the petitioner on the ground that the USCIS denied the EB-1 petition based on the petitioner’s association with the attorney who had been unfairly singled out in a DOS cable. That strategy too failed since the court rejected that there was any bad faith on the part of the USCIS in denying Noroozi’s EB-1 petition.

Various unpublished AAO decisions [See e.g. AILA InfoNet Document Nos. 12062752 and 12062753] suggest that the government’s final merits determination will consider evidence whether or not the petitioner has demonstrated : 1) a “level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the[ir] field of endeavor,” 8 CFR § 204.5(h)(2); and 2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” § INA 203(b)(1)(A); 8 CFR § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20. While it makes sense to preserve the argument in the record that the final merits determination is inapplicable and to propose the burden shifting approach under Buletini instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis given that it has been blessed in post-Kazarian decisions. The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria. For instance, if a petitioner has met 3 out of 10 evidentiary criteria, the agile practitioner may be able to argue that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination. Moreover, under the final merits determination, a petitioner may be able to point to other evidence that may not categorically fall under the 10 evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s stellar academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then the practitioner must not rest on these laurels and take pains to highlight this for the final merits determination. Finally, the practitioner must always remind the USICS that the final merits determination is governed by the preponderance of evidence standard, as suggested in the Policy Memorandum too, which requires only 51% certainty.

In more recent cases, the USCIS has continued to conflate the step one with the step two analysis by rejecting that the petitioner met the evidentiary criteria and thus bypassing the step two final merits determination altogether. A petitioner may seek review under the Administrative Procedure Act asking a federal court to find that the USCIS decision was arbitrary and capricious by conflating the two steps. Therefore, if we in any event have to deal with Kazarian, one strategy is to force USCIS to adopt the two steps if it only denied the case under step one. Thus, in Eguchi v. Kelly, another unpublished decision, the USCIS denied an EB-1 petition of a Brazilian bullfighter. Eguchi submitted evidence that he won Brazil’s PBR Rookie of the Year in 2008. USCIS rejected the award on the ground that “such an award by its very nature is limited to neophytes, excluding more experienced bull riders. And therefore, such an honor does not measure your standing or selection from among those who are well established in the field or show your extraordinary ability under this criterion.” The court disagreed since USCIS was conflating the step two final merits determination when the regulation only required Eguchi to submit evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor, which he did. Eguchi also submitted articles from various publications, including Yahoo! Sports, ESPN, and PBR’s website. The articles acknowledge Eguchi’s high rankings, victories, and earnings in PBR events. USCIS concluded that Eguchi submitted no evidence that PBR’s website is a major trade publication. The court held that it was self-evident that the website of the world’s premier professional bull riding association is a major publication for professional bull riding. The court also cited Muni v. INS., supra, at 444 which concluded that the petitioner did not need to show that National Hockey League’s (“NHL’s”) own magazine was major trade publication. Eguchi submitted evidence that he had earned over $700,000 in PBR events and ranked 44th on the association’s all-time money list—a ranking of the top earners in PBR history. He also submitted a history of PBR, which states that “[m]ore than 1,200 bull riders from the U.S., Australia, Brazil, Canada, and Mexico hold PBR memberships. But USCIS disputed this evidence on the ground that Eguchi’s earnings did not compare with the top 3 earners, whose earning have grossed between 3.9 and 5.15 million dollars, thus failing to establish that he is one of that small percentage who have risen to the very top of their endeavor. The court again smacked down USCIS that it impermissibly conflated step 1 with step 2. At step one, according to the court, Eguchi was not obligated to prove that his salary illustrates that he is one of a small percentage who have risen to the very top of the field of endeavor and enjoy sustained national or international acclaim. Rather, Eguchi need only provide documentation showing that he has commanded a high salary or other significantly high remuneration for services, in relation to others in the field. According to the court, USCIS only focused on the top 2 or 3 earners in the sport but ignored the earnings of 1,200 PBR members.

Although the court in Eguchi v. Kelly found the USCIS’s denial to be arbitrary and capricious, and remanded, this author is unaware of the outcome of this case after it got remanded. It remains to be seen whether USCIS in similar cases will find a way to deny the petition again under the step two final merits determination analysis after a court has remanded based on the faulty analysis under step one. However, it still at least behooves the practitioner have a court hold the USCIS to the two step analysis rather than let USCIS conveniently deny the petition under step one. This is precisely what happened in Visinscaia v. Beers, 4 F. Supp. 3d 126 (D.D.C. December 16, 2013) involving an EB-1 petition for a ballroom dancer from Moldova. The court agreed with the USCIS that the petitioner failed to provide evidence that she influenced the field with her dance techniques, although it seemed that the USCIS conflated step two with step one. The court also agreed with USCIS that the petitioner had not played a leading role in a dance club in Moldova, which petitioner claimed had a distinguished reputation in Moldova, but USCIS countered that the club’s reputation did not extend beyond the borders of Moldova. Here too, the USCIS conflated step two with step one, which the Court endorsed. Finally, the USCIS interpreted the artistic exhibitions criterion as only including “visual arts”, where “tangible pieces of art … were on display” and not dance performances. This was a strained interpretation of the regulation, but the court still gave deference to the agency’s interpretation. Finally, the court also agreed with the rejection of the USCIS’s strained interpretation that “lesser national and international awards” must involve winning more than one such award, and the petitioner in that case only won one world championship in the World Dance Sport Federation Junior II Ten category.

Petitioners must at least try to get USICS to accept that the petitioner meets 3 out of the 10 criteria, and then fight USCIS under step 2 final merits determination. If the USCIS can knock out the petitioner under step 1, the game is over. The author highly recommends the reader to Recent Trends in EB 1 Extraordinary Ability and Outstanding Professor/Researcher Green Card Petitions by Dan Berger, Emma Binder, Philip Katz, David Wilks, and Stephen Yale‑Loehr. This insightful article surveys recent decisions of the AAO in the EB-1 extraordinary ability and Outstanding Professor/Researcher arena. It provides useful guidance regarding what kinds of evidence will be accepted under the 10 evidentiary criteria. Under the outstanding contributions of major significance evidentiary criterion, the authors point to AAO decisions that suggest that the contribution must have “measurably” expanded the scholarship such as in the case of an insect researcher whose discovery of ninety‑six new species of jumping spiders represented “10% of the overall documented information regarding certain spider families.” With respect to the authorship of scholarly articles prong, the authors have analyzed decisions where the “AAO is critical of inconsistent and declining publication records. According to the AAO, a publication rate that has declined in the past five years or so may indicate a lack of sustained acclaim, even if the individual published prolifically in prior years.”

Still, this begs the question that Kazarian sought to clarify, which is that the evidence submitted by the petitioner need not inherently be extraordinary under step one. That has to be determined in the step two final merits determination analysis. But, unfortunately, the Kazarian two step analysis is fundamentally flawed for it will continue to confuse and confound USCIS adjudicators and courts where the merits determination is often made under step one, and if it is not, the evidence is rejected under step two. If only one can convince a federal court to adopt the clearer standard in Buletini v. INS, the two step analysis under Kazarian will continue to roil EB-1 extraordinary ability adjudications.

A prior version of this blog, How Extraordinary Must One Be to Qualify as a Person of Extraordinary Ability, was published on The Insightful Immigration Blog on July 5, 2013, https://blog.cyrusmehta.com/2013/07/how-much-more-extraordinary-does-one.html

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution

December 10, 2018/0 Comments/in Blog/by Sophia Genovese

Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”

As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.

As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.

It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.

As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.

Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.

Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.

H-1B Visa Contest: US Master’s Degree v. Foreign Degree

December 2, 2018/0 Comments/in Blog/by Cyrus Mehta

The Trump Administration has proposed a rule that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. USCIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption, with the goal of increasing the number of beneficiaries with master’s or higher degrees from U.S. institutions of higher education to be selected for H-1B cap numbers and introducing “a more meritorious selection of beneficiaries.”

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted toward the number of petitions projected as needed to reach the cap.

Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries. The proposed rule would reverse the selection order and count all registrations or petitions toward the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions toward the advanced degree exemption. This proposed change “would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries,” USCIS said. The proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education, the agency noted.

USCIS said it expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for the agency. The proposed rule would “help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process,” USCIS said. “This would help reduce wait times for cap selection notifications.” The proposed rule also would limit the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration, “which would protect the integrity of this registration system.”

On the one hand, there are compelling policy justifications to skew the allocation of scarce H-1B visas towards employers who hire foreign nationals with advanced degrees from US educational institutions. The H-1B reform Act of 2004 exempted the first 20,000 from the H-1B cap who had a US master’s or higher degree. After the first 20,000 were exempted, the remaining applicants with master’s degrees are considered under the overall 65,000 cap minus the H-1B1 numbers for Singapore and Chile. This counting methodology, deployed since 2004, is a faithful interpretation of INA § 214(g)(5)(C), which exempts an applicant master’s or higher degree from the H-1B cap “until the number of aliens who are exempted from such numerical limitations during such year exceeds 20,000.”

It remains to be seen whether the proposed methodology of counting all petitions first under the 65,000 cap, and then selecting those left out under the regular cap to qualify under the 20,000 master’s degree exception, would still be a faithful interpretation of both INA § 214(g)(5)(C) and the overall H-1B visa program as defined in INA § 101(a)(15)(H)(i)(b) and § 214(i)(1). If there is a lawsuit, a federal court would have to make that determination

Under INA § 214(i)(1), the H-1B visa requires the qualified foreign national to perform services in a specialty occupation, which requires “theoretical and practical application of a body of highly specialized knowledge” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Thus, the minimum threshold degree to qualify for H-1B visa classification is a bachelor’s degree and not a master’s degree.

Moreover, INA § 214(i)(1) contemplates one who has a foreign degree to be able to qualify by establishing that it is equivalent to a US bachelor’s degree. See also 8 C.F.R. § 214.2(h)(4)(iii)(C). Even experience can count as equivalent to a bachelor’s degree. See INA § 214(i)(2)(C). The skewing of H-1B visas towards those with master’s degrees from US institutions may in some senses be counter to Congressional intent, which was to permit those with foreign degrees, and equivalent work experience, to qualify for H-1B classification. Hence, a foreign physician with a master’s degree in medicine from a foreign university who intends to provide critical medical services in a shortage area in the United States may have less chances of nabbing an H-1B visa under the new proposal. So would a highly skilled IT worker with a bachelor’s degree in computer science from a reputed Indian institution such as the Indian Institute of Technology. Both the physician and the IT worker with foreign degrees have the potential of making contributions to the US in the same way, or even greater, as one who has graduated with an MBA from a US university.

In recent times, H-1B workers from India have in IT fields have been perceived to be taking away the jobs of US workers notwithstanding their acknowledged contributions to US businesses. Whether intentional or unintentional, the proposed rule will adversely impact the ability of IT consulting companies to sponsor such workers from India, even though the use of IT consulting companies is widespread in America (and even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (AVWIA) by creating onerous additional attestations for H-1B dependent employers. It is this very business model has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development.

The new rule, unfortunately, has begun to create divisions within the H-1B community. Those who have paid tuition fees to US universities to earn master’s degrees feel that they are entitled to get preference in the H-1B lottery. At the same time, those who have earned bachelor’s degrees in the US will not get a preference, although US universities also gain from fees paid by foreign undergraduate students. Others with degrees from abroad, including their employers who have sought them out for specialized skills that may not be found in the United States, feel equally entitled. Moreover, it is not always the case that one with a master’s degree will be paid a higher wage than others. A skilled professional with a bachelor’s degree and many years of experience could be paid more than an entry level worker with a master’s degree. Also, as noted before, applicants are selected under the H-1B advanced degree exception not because they are entering into a specialty occupation that requires a minimum of a master’s degree, but only because they graduated with an advanced degree from a specified US institution under INA § 214(g)(5)(C). The position may require a bachelor’s degree even though the H-1B worker possesses a higher degree, and will thus get the commensurate wage that would be paid to a comparable US worker with a bachelor’s degree. In a perfect world, the solution is for Congress to create more H-1B visa numbers that would serve all constituencies, which in turn, would also serve the US national interest. Unfortunately, the national interest is defined differently by the Trump administration. The proposed rule is being issued in response to the Buy American Hire American (BAHA) executive order instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” The executive order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” BAHA has already been deployed to wreak havoc to the legal immigration system by either delaying the processing of visa applications or denying them, and this rule may also cause more harm than good in the long run.

There is some chance that the proposed rule may not take effect by April 1, 2019, which is when H-1B petitions may be filed for FY2020 commencing October 1, 2019. It includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS “may experience technical challenges with the H-1B registration process and/or the new electronic system.” The proposed temporary suspension provision would also allow USCIS to “up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process.” If the rule is finalized as proposed but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS said it would likely suspend the proposed registration requirement for the FY 2020 cap season.

Trump Is Not King. He Cannot Change the US Asylum System Through Executive Orders.

November 26, 2018/0 Comments/in Blog/by Cyrus Mehta & Sophia Genovese

Donald Trump probably thinks that section 212(f) of the Immigration and Nationality Act (INA) makes him king as far as immigration matters are concerned. As a president with autocratic impulses, INA § 212(f) gives him leeway to act out these impulses on immigrants, which he may not be able to do so readily on US citizens.

INA § 212(f) states,

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

Trump invoked INA § 212(f) through presidential proclamations to impose his travel ban against nationals of mainly Muslim countries. This was done to fulfill a campaign promise to impose a ban on Muslims. He decided without foundation that the entry of Iranian nationals (one of the countries subject to the ban) would be detrimental to the interests of the United States even though they came to pursue studies, marry a US citizen or visit relatives. The Supreme Court, unfortunately, upheld the third version of the ban in Trump v. Hawaii stating that INA § 212(f) “exudes deference to the President” and thus empowers him to deny entry of noncitizens if he determines that allowing entry “would be detrimental to the interests of the United States.”

Trump got more emboldened. On November 9, 2018, he issued another proclamation invoking INA § 212(f), which banned people who cross the Southern border outside a designated port of entry from applying for asylum in the United States. The Department of Justice and Department of Homeland Security followed by jointly issuing a rule implementing the proclamation.

The key issue is whether INA § 212(f) allows a president like Trump with authoritarian impulses to override entire visa categories or change the US asylum system? Can Trump use INA § 212(f) to reorder the asylum system because he believes that the people in a caravan heading to the United States to apply for asylum are detrimental to the interests of the United States? INA § 208(a)(1) categorically allows any alien who is physically present in the United States to apply for asylum regardless of his or her manner of arrival in the United States “whether or not at a designated port of arrival.” Trump has attempted to change that by virtue of the authority given to him in INA § 212(f) by not allowing people who cross outside a port of entry from applying for asylum. Never mind that the administration has virtually closed the designated ports of entry for asylum seekers, which forces them to cross the border through irregular methods.

In East Bay Sanctuary Covenant v. Trump, Judge Tigar on November 19, 2018 forcefully ruled that the president could not use INA § 212(f) to override Congress’s clearly expressed legislative intent. Indeed, even in Trump v. Hawaii, the administration successfully argued that INA § 212(f) only supplanted other provisions that allowed the administration to bar aliens from entering the United States, but did not expressly override statutory provisions. Thus, INA § 212(f) could not be used as a justification to override INA § 208.

Trump was obviously displeased with the ruling and branded Judge Tigar, who was appointed by President Obama, as an “Obama judge.” This resulted in an unusually strong rebuke from Chief Justice Robert who stated, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

Trump then attacked Justice Robert in a tweet on Thanksgiving day:

“Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security…

……and Safety at the Border, or anywhere else. They know nothing about it and are making our Country unsafe. Our great Law Enforcement professionals MUST BE ALLOWED TO DO THEIR JOB! If not there will be only bedlam, chaos, injury and death. We want the Constitution as written”

Trump is wrong. The judge was not legislating, but rather, was correctly interpreting INA § 208(a)(1), which allows any person physically present in the United States to apply for asylum regardless of whether they arrived through a port of entry or not. It is likely that even a judge appointed by President Bush or even Trump could have ruled the same way. Even the Supreme Court may find it easier to smack this proclamation down than the travel ban, which it found facially neutral on its face.

But Trump is still determined to stop the caravan. The media has reported that the US has won the support of the incoming Mexican government under Andrés Manuel López Obrador to let asylum claimants wait in Mexico while their claims are heard in the US. There are also reports now claiming that Mexican officials have denied that there is such a plan, but this is not inconsistent with the fact that negotiations are still underway even though a deal is not yet finalized. If the deal is put into place, which is being called “Remain in Mexico”, Mexico will become a waiting room for America’s asylum system.

It is not clear how this will work. If asylum claimants need to pass the credible fear interview, they will then have to wait for their cases for several years on end in Mexico and may be subject to the continued abuse of smugglers who brought them to the US border as well as drug cartels who are predominant in the Mexican border towns. While the scheme will also allow the applicant to show that they have a reasonable fear of staying in Mexico, demonstrating that will require a higher standard than the credible fear standard. Many will not meet this standard and will unfortunately be subjected to persecution and abuse in Mexico while they wait out the outcome of their asylum claims in the US. Most claimants who base their asylum claims on gang based persecution or domestic violence will also likely lose, and they will be then directly deported to their country of origin. They will have difficulty in accessing US trained lawyers to assist them in the preparation of their asylum claims. There is also a good chance that Mexico may deport an asylum claimant under its own laws on grounds that may not even constitute deportable offenses under US law.

What would the legal authority be for such a scheme? It is unclear, but INA § 235(b)(2)(C) provides that an alien who is arriving by land, whether or not from a designated port of entry, from a foreign territory contiguous to the US may be returned to that territory pending a proceeding under INA § 240.

A section 240 hearing offers the full panoply of rights of a removal hearing, including the right to appeal, as opposed to a limited asylum hearing before an Immigration Judge after an applicant passes the credible fear interview. INA § 235(b)(2)(C) does not contemplate a credible fear interview set forth in INA § 235(b)(1). Even a reasonable fear of remaining in Mexico is not contemplated and may be ultra vires the INA. The administration could try to bypass the credible fear interview process and issues a Notice to Appear that would initiate a removal proceeding under INA § 240. But this will create far more work for the administration. INA § 235(b)(2)(C) arguably applies to inspection of “other aliens” as opposed to those found inadmissible under sections 212(a)(6)(C) or 212(a)(7) under § 235(b)(1). Thus, INA § 235(b)(2)(C) provides dubious legal authority for a “Remain in Mexico” scheme.

Any new proclamation and rule to set into effect this new policy will most likely be successfully challenged in federal court. Instead of creating an orderly procedure to process a few thousand asylum claims under the INA, Trump seems hell bent on creating chaos and disorder. If he loses in court, Trump attacks the judge and also blames the media by calling in “fake news.” On November 25, 2018, the administration closed the San Ysidro port of entry near San Diego and fired tear gas shells at people seeking asylum, including children in diapers. Cruelty is part of Trump’s nature. He also systematically separated migrant children from their parents as a stated deterrent policy. The morning after the tear gassing episode, Trump tweeted that he wants to close the border to asylum seekers, and without foundation, stated that “many of them are stone cold criminals.” The law does not allow him to even do that. To imagine an American president acting so cruelly before November 2016 was inconceivable. We only write in the faint hope that in addition to our courts, America will come to its senses and not tolerate this man any longer. We can only hope!

New Mutant H-1B Gene – Undifferentiated Engineering Degrees

November 19, 2018/0 Comments/in Blog/by Cyrus Mehta

It has become harder to obtain an approval of an H-1B visa petition under the Trump administration. The USCIS insists that an occupation must require a degree in a specific specialty. It constantly moves the goalposts to deny H-1B petitions, even if the occupation was previously readily approvable. A position that requires an engineering degree may now not be so readily approvable for H-1B classification.

Take for example the position of Operations Research Analyst. The Occupational Outlook Handbook, which the USCIS slavishly relies upon, describes the training and educational requirements for an Operations Research Analyst as follows:

“Many entry-level positions are available for those with a bachelor’s degree. However, some employers may prefer to hire applicants with a master’s degree.

Because operations research is based on quantitative analysis, students need extensive coursework in mathematics. Courses include statistics, calculus, and linear algebra. Coursework in computer science is important because analysts rely on advanced statistical and database software to analyze and model data. Courses in other areas, such as engineering, economics, and political science, are useful because operations research is a multidisciplinary field with a wide variety of applications. “

Winning an H-1B for an Operations Research Analyst should be a no brainer. It is clear that a specialized degree is required to enter the field. As the operations research is based on quantitative analysis, an engineering degree can provide the knowledge base for a qualified candidate to enter the field. The USCIS then plays “gotcha” when an operations research position requires an engineering degrees or because of the reference to an engineering degree in the OOH. This is the verbiage that the USCIS includes in its decisions to deny an occupation that may require an engineering degree:

“According to publicly available Internet resources, there are approximately forty (40) different types of engineering degrees ranging in specialties to include but not limited to Mechanical, Ceramics, Civil, Electrical, Environmental, Agricultural, Marine, to Electronics Engineering. As such, it can be determines that the OOH does not indicate that a baccalaureate degree in a specific field of study is the minimum educational requirement for Operations Research Analysts as needed in order to qualify the proffered position as a specialty occupation.”

Till now, it was presumed that an occupation that requires an engineering degree should qualify for H-1B classification. Although there are many types of engineering disciplines, the basic quantitative skills gained in an engineering degree program should equip the worker to perform the technical duties of a specialty occupation whether it is for the position of Operations Research Analyst, Software Developer or Computer Systems Analyst.

Even if the OOH does not refer to an engineering degree, the USCIS tends to object if the employer requires an engineering degree to qualify for the position. Thus, the OOH, with respect to Software Developers, states that “[s]oftware developers usually have a bachelor’s degree in computer science and strong computer programming skills.” But if the prospective H-1B beneficiary qualifies with an engineering degree rather than a degree in computer science, the USCIS will use that to either issue a request for evidence or deny the petition.

It seems that the engineering degree is suffering the same fate as the business degree. Requiring a general purpose business degree without more has never fared too well. The H-1B petition filed by an upscale Thai restaurant that required its manager to have a general purpose business degree was shot down. See e.g. Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1^st Cir 2007). Still, the Appeals Administrative Office in a recent non-precedential decision, Matter of C-B-S- Inc., ID# 1308199 (AAO Sept. 6, 2018), has stated that “a bachelor’s or higher degree in business administration combined with relevant education, training, and/or experience may, in certain instances, qualify the proffered position as a specialty occupation.” The same logic should apply more so for an engineering degree. In fact, it can more be easily shown that the technical knowledge gained from an engineering degree, whether it is electrical or mechanical, ought to qualify the H-1B worker to be a software developer or an operations research analyst.

Both petitioners and beneficiaries should not take these denials lying down. As explained in a prior blog, such denials are in contravention to how a specialty occupation is defined under the INA. Under INA § 214(i)(1) a “specialty occupation” is defined as an occupation that requires

Theoretical and practical application of a body of highly specialized knowledge, and
Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

It is not so obvious from a reading of INA 214(i)(1) that only occupations such as law or medicine would qualify for an H-1B visa on the assumption that only degrees in law or medicine would allow entry into the occupation. Even in law, a law degree may not always be required. One can qualify to take the bar exam in some states through an apprenticeship in a law office. A physician may also qualify through either a Doctor of Medicine (MD) degree or through a Doctor of Osteopathic Medicine (DO). If the USCIS reads INA 214(i)(1) as applying to an occupation that requires a degree in one single specialty, as it is tending to with engineering degrees, then no occupation will qualify for the H-1B visa. This is clearly not what Congress intended. INA § 214(i)(1) ought to be read more broadly.

The USCIS should revert to a more commonsensical reading of the H-1B visa provision. In Tapis International v INS, 94 F. Supp. 2d 172, the court held that a “position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass …….various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.” The USCIS should be forced to adhere to holding in Tapis International.

Even if an employer requires a degree in engineering, in conjunction with a degree in computer science, it is atrocious for the USCIS to deny the H-1B petition because the engineering degree cannot qualify the worker for H-1B classification. The USCIS cannot categorically deny H-1B petitions because there exist 40 disciplines within engineering without considering the employer’s justification for such disciplines and how the prospective H-1B worker qualifies for the position. The USCIS must review this requirement in the context of the employer’s business. If a small mom and pop general retail store requires an engineering degree, the USICIS would be justified in looking at such an H-1B petition with skepticism. On the other hand, a company that requires an analyst to design and develop a sophisticated artificial intelligence marketing tool should be able to justify degrees in computer science, engineering, math, business analysis or marketing. Each of these fields, and the specific coursework that was taken, would potentially equip an H-1B beneficiary to perform different aspects of the duties of the position. An employer should also not be expected to specify the engineering field or limit the degree requirement to one specialty. The employer can have a general engineering degree requirement, and then assert in each petition, why the H-1B worker through the knowledge gained in his or her engineering degree program, whether it is electronics, civil or ceramic, equips the worker to perform the duties of the specialty occupation.

If the mutant H-1B gene afflicting engineering degrees is not excised, what is there to stop the USCIS from asserting the same logic to degrees in law or medicine? Could the USCIS assert that a JD degree or equivalent foreign law degree requirement is so general purpose that the employer must demonstrate the specialization within the law degree that would equip the H-1B worker to perform the duties of the position of a corporate attorney? Of course, that would make no sense. The knowledge developed from a law degree allows the prospective attorney to perform his or her duties in any legal specialization, be it corporate, tax or immigration law. This should be the case even if the attorney never took a course in corporate or immigration law in law school. The same logic should apply to the knowledge developed in an engineering degree that would equip the H-1B worker to perform the specialized duties of a software developer position or an operations research position. If both positions rely on quantitative skills, those skills could be gained through an engineering degree program whether it was in civil or aeronautical engineering. If the USCIS wholesale turns down H-1B petitions for positions that require an engineering degree, an employer should seek to challenge the denials in federal court, which like aggressive chemo therapy could potentially place the cancer in remission.

USCIS Denying Change Of Status For F-1 Students With Over 12 Months Of Curricular Practical Training

October 23, 2018/0 Comments/in Blog/by Cora-Ann Pestaina

An F-1 student who has received more than 12 months of Curricular Practical Training (CPT) may be found by United States Citizenship & Immigration Services (USCIS), to have violated F-1 status and thus ineligible to be granted a change of status in the US. This is yet another disturbing trend that we first mentioned in an earlier blog where we indicated that USCIS had started challenging F-1 maintenance of status through CPT by issuing Requests for Evidence on pending H-1B petitions requesting a change of status in the US.

Essentially, 8 CFR § 214.2(f)(10) provides that a student may be authorized a total of 12 months of practical training, and becomes eligible for another 12 months when the student changes to a higher educational level. Under 8 CFR § 214.2(f)(10)(i), however, “students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training.” Note that the inclusion of “academic training” appears to be an obvious typographical error, and it ought to have been “practical training” when the rule was last promulgated on 12/11/2002. [revised 10/25/2018] This could clearly be interpreted to mean that a student can receive more than one year of CPT and, if so granted, this student would simply become ineligible to receive any practical training after graduation. This appears to have been the prevailing interpretation by all government agencies and CPT has continued to be routinely granted by Designated Student Officers (DSO) through the Student and Exchange Visitor Information System (SEVIS) that is administered by Immigration and Customs Enforcement (ICE). Enter the new USCIS in the era of Trump. Suddenly, USCIS has begun to interpret the regulations to mean that a student may only be granted a total of 12 months of any type of practical training. This, despite the fact that ICE, its sister agency, authorized more than 12 months of CPT. USCIS is choosing to completely disregard the unmistakable indication in 8 CFR § 214.2(f)(10)(i) that students may legitimately receive “one year or more” of CPT.

It is painfully obvious that the intent behind the regulation was only to prohibit students who had received more than 12 months of CPT from then also receiving Optional Practical Training (OPT) after graduation. The intent was not to penalize a student for receiving more than 12 months of CPT. First, the student could not receive more than 12 months of CPT if the CPT weren’t actually granted by a school DSO and entered into SEVIS. Accordingly, if there were any violation, it should be on the part of the school and not the student. The student should not be punished for failure to maintain status when that student followed all the appropriate steps to maintain status. Second, why is USCIS making a determination that such a student failed to maintain status when ICE is the agency that administers the Student and Exchange Visitor Program (SEVP)? If ICE has not determined that a student failed to maintain status and if SEVIS indicates that the student is currently in status, then USCIS ought to acknowledge that. If there had truly been a violation of status then SEVIS would have so indicated. And third, the regulations at 8 CFR § 214.2(f)(10) are simply outdated. In March 2016, the Department of Homeland Security (DHS) amended its F-1 student visa regulations on OPT for certain students with degrees in science, technology, engineering, or mathematics (STEM) from SEVP-certified and accredited U.S. colleges and universities. Specifically, the final rule allows such F-1 STEM students who have elected to pursue 12 months of OPT in the U.S. to extend the OPT period by 24 months (STEM OPT extension). See 8 CFR § 214.2(f)(10)(ii)(C). Perhaps DHS could have also amended the regulations and removed all outdated sentences. Unfortunately, USCIS is now seizing upon such a sentence and using it to launch another attack on F-1 students.

In the case of the H-1B petition, USCIS can approve the underlying H-1B but deny the request for a change of status. In order to obtain H-1B status, the student would need to leave the US and apply for an H-1B visa at a US Consulate or Embassy abroad. At this point in time, upon receipt of a USCIS denial of a request for a change of status on an H-1B petition, the F-1 student would only have accrued unlawful presence from August 9, 2018 under USCIS’ unlawful presence policy for F, J and M nonimmigrants. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II). Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Very few students will trigger the permanent bar as they generally do not try to reenter the US without being admitted or paroled. Students in receipt of a denial of a change of status can take advantage of the current grace period until February 5, 2019. However, if the student departs the US later than February 5, 2019, he or she will be barred from re-entering for 3 or 10 years.

So what can be done? More so than ever before, F-1 students really need to be proactive about their maintenance of status and need to seek legal advice in the event that any rules are unclear or even just to ensure that they are on the right track. It will not be enough to rely on the DSO’s advice as the student will be the one punished in the end. But the bottom line is that this USCIS policy must be challenged in federal court! It is simply unconscionable to inflict the 3 and 10 year bars on a student who has diligently sought to maintain status in the US.

The Vulnerable Returning Green Card Holder Under the Proposed Public Charge Rule

October 15, 2018/0 Comments/in Blog/by Cyrus Mehta

The notion of public charge has existed in our immigration laws since more than a century. The Trump administration’s new proposed public charge rule, however, interprets “is likely at any time to become a public charge” under INA 212(a)(4) in a way that would make it more difficult for people with lower incomes or less education, or who have received public benefits, to become permanent residents, obtain visas, or extend or change/adjust their nonimmigrant visa status. Consistent with other policy changes to restrict legal immigration by the Trump administration, the proposed public charge rule will reorder our immigration system without going through Congress in favor of affluent and younger immigrants.

The rule essentially applies to applicants for admission to the United States. These include people seeking admission at ports of entry, seeking an extension or change of status as well as those applying for adjustment of status. As a general matter, lawful permanent residents, or green card holders, are not considered applicants for admission and are not subject to the rule. However, certain returning lawful permanent residents may be considered applicants for admission and thus subject to the proposed rule.

Take the example of an elderly parent of a US citizen who got her green card a little over five years ago. She has the usual chronic health problems that a person of her age usually has such as a heart condition and diabetes. She does not speak English too well and has a basic high school education. She has been a homemaker all her life. She spent a little over six months in China to dispose valuable ancestral property, and then returned to the United States where she stays with her US citizen daughter, spouse and their minor children. She devotes her time in taking loving care of her grandchildren, and attending to all their needs, while their parents pursue high powered productive careers in the US. As a returning resident whose trip abroad was over 180 days, she could potentially be deemed likely to become a public charge when she travels back to the US.

Currently, those who are likely to become a burden on the government can already be excluded if they accept certain cash benefits. The proposed rule would greatly expand the definition of public benefits to include in kind benefits. The public benefits proposed to be designated in this rule include federal, state, local, or tribal cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and public housing. The first three benefits listed above are cash benefits that are already covered under current policy.

The returning resident who receives any of the above public benefits could potentially be found to likely become a public charge at the airport. She would be deemed inadmissible and placed in removal proceedings by a Customs and Border Protection officer, and would have to contest the public charge determination before an Immigration Judge. Although the rule was initiated by the USCIS, it is still a DHS rule and the CBP is bound by it. The EOIR has not yet proposed a companion rule, but an IJ could potentially find the rule persuasive after CBP places the returning resident in removal proceedings.

Even if the elderly returning resident in our example is not receiving these benefits, she would still be at risk. The proposed rule would also require an immigrant to earn at least 125 percent of the federal poverty guidelines, and states that a household income of 250 percent of that level would be deemed “heavily positive.” Heavily weighted positive factors would include “significant income, assets, and resources.” Income and financial status would be considered as part of the “totality of the circumstances.” Heavily weighed negative factors include inability to demonstrate current or prospect of future employment, receipt of one or more public benefits, as described above, being diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization, or that the person is uninsured and does not have the ability to obtain private health insurance.

The proposed rule indicates that an applicant’s education and skills “are mandatory statutory factors that must be considered when determining whether an alien is likely to become a public charge in the future.” Our grandmother may not make it. In general, someone with educational credentials and skills “is more employable and less likely to become a public charge.” DHS, therefore, proposes that when considering this factor, the agency would consider “whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge, if authorized for employment,” to include consideration of the applicant’s history of employment, English proficiency, licenses, certifications, and academic degrees. Age would also be considered, with an age of less than 18 or greater than 61 requiring a demonstration of employment or sufficient household assets and resources. Negative considerations would include limited English proficiency and adverse physical or mental health. Some deemed inadmissible on public charge grounds might be allowed to pay for a public charge bond at the risk of losing it if they use any of the listed benefits.

The preamble to the proposed rule at footnote 176, and elsewhere at footnotes 66 and 72, ominously points out that lawful permanent residents would be considered applicants for admission under INA 101(a)(13)(C). Proposed 8 CFR 212.20 states that the provisions of the rule are applicable to “an applicant for admission or adjustment of status to lawful permanent resident.” Reproduced, below, is the text of INA 101(a)(13)(C):

“ An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien –

has abandoned or relinquished that status,
has been absent from the United States for a continuous period in excess of 180 days,
has engaged in illegal activity after having departed the United States,
has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.”

The returning permanent resident in our example who returns from a trip abroad that was more than 180 days would be treated as an applicant for admission under INA 101(a)(13)(C)(ii), and thus vulnerable to being considered inadmissible pursuant to INA 212(a)(4). INA 240(c)(2) requires an applicant for admission to demonstrate by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.” Indeed, INA 240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible. On the other hand, with respect to non-citizens being placed in removal proceedings, INA 240(c)(3), also enacted by IIRIRA, keeps the burden on the government to establish deportability by “clear and convincing” evidence.

If a returning resident is placed in removal proceedings, she should not accept that the burden of proof is on her to demonstrate that she is not inadmissible notwithstanding INA 240(c)(2). Rather, she must advocate that the burden is on the government to establish through clear and convincing evidence that she is inadmissible. If she is asked to fill out the humongous Form I-944, or a similar form that the CBP may issue, the government is placing the burden on the permanent resident, which would be in violation of her rights as a permanent resident.

It has historically been the case that when an applicant for admission has a colorable claim to lawful permanent resident status, the burden is on the government to show that he or she is not entitled to that status by clear, unequivocal and convincing evidence. This standard was established by the Supreme Court in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the permanent should be deported from the United States. Subsequent to Woodby, in Landon v. Plasencia, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to a permanent resident in exclusion proceedings.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) introduced the notion of “admission” in INA §101(a)(13)(C). “Admission” replaced the pre-IIRIRA “entry” doctrine as enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held that a permanent resident was not considered making an entry into the US if his or her departure was “brief, innocent or casual.” Under §101(a)(13)(C), an LPR shall not be regarded as seeking admission “unless” he or she meets six specific criteria, which include the permanent abandoning or relinquishing that status or having been absent for a continuous period in excess of 180 days. Fleuti has been partially restored in Vartelas v. Holder with respect to grounds of inadmissibility that got triggered prior to the enactment of IIRIRA. If Fleuti is someday completely restored, as has been argued in a prior blog, then the permanent resident will no longer be considered an applicant for admission.

Notwithstanding the introduction of INA 101(a)(13)(C), the Woodby standard still prevails and nothing in 101(a)(13(C) overrules it, and the burden of proof is still on the government. This was established in 2011 by the Board of Immigration Appeals in Matter of Rivens, which held:

“Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense identified in section 212(a)(2).”

What Rivens left open is that once the government has met its burden of establishing that the returning resident is an applicant for admission, whether the burden shifts to the applicant that she is not inadmissible or whether the burden still rests on the government. In Rivens, INA 101(a)(13)(C)(v) coincided with the ground of inadmissibility under INA 212(a)(2), a criminal ground, and therefore the BIA did not have to decide the question. With respect to a returning resident in our example, who has been deemed to be an applicant for admission under INA 101(a)(13)(C)(ii), the ground of inadmissibility will not coincide as it will be the public charge ground under INA 212(a)(4). Although INA §240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible, it ought to be argued that with respect to returning permanent residents, under Woodby, which has survived I01(a)(13)(C), the clear and convincing standard pursuant to INA 240(c)(3) ought to apply.

A returning resident who travels back to the US after a trip of more than 180 days, and is charged with inadmissibility under 212(a)(4) must assert, in removal proceedings, that the burden of proof is still on the government under Woodby. The government ought to be able to establish this through clear and convincing evidence. The permanent resident should thus be able to remain silent, not complete any form or questionnaire, and it would be on the government to prove that the person sought disqualifying benefits to establish that she is likely to become a public charge. The proposed rule appears to presume that the burden is on the returning resident that she is not inadmissible as a public charge, which clearly violates the Woodby standard and thus the due process right of the permanent resident.

It is strongly recommended that all those who are concerned about the proposed rule should send in comments by December 10, 2018. Although this blog focuses on the vulnerability of returning permanent residents, a good summary of the rule and how it will adversely impact applicants for visa benefits and permanent residency is available here, https://immigrationforum.org/article/public-charge-proposed-regulations-summary/. The proposed rule is going to be challenged on a number of grounds in federal court. The rule should also be challenged on the ground that it violates the due process rights of lawful permanent residents by shifting the burden of proof onto them contrary to what the Supreme Court held in Woodby v. INS and Landon v. Plasencia, and as affirmed more recently by the BIA in Matter of Rivens.