Cyrus Mehta

The AAO Finds That Entry Level Wages Do Not Automatically Preclude H-1B Visa Classification

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By Cyrus D. Mehta and Sophia Genovese

As we have previously blogged, many of the Requests for Evidence (RFEs) issued to petitions filed under the FY 2018 H-1B visa lottery objected to the H-1B worker being paid an entry level wage.

The AAO recently took up the issue of Level I wages in two decisions, Matter of B-C-, Inc., ID #1139516 (AAO Jan 25, 2018); and Matter of G-J-S-USA, Inc., ID# 1182139 (AAO Jan. 25, 2018), concluding in both cases that Level I wages are not determinative of whether a position is indeed a specialty occupation.

In Matter of B-C-, the Petitioner sought to temporarily employ the Beneficiary as a geotechnical engineer-in-training (EIT) under the H-1B classification. The Director of the Vermont Service Center denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition. The Director determined that the Level 1 wage was incorrect by comparing the proffered duties directly with DOL’s generic definition of a Level I wage. Id. at 3. According to the DOL’s Prevailing Wage Policy Guidance, referenced in the Matter of B-C- decision, Level I (entry) wage rates

…are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

U.S. Dep’t of Labor, Emp’t & Training Admin., Prevailing Wage Determination Policy Guidance, Nonagric. Immigration Programs (rev. Nov. 2009).

The AAO, however, found that this was not the correct analysis for assessing whether or not an LCA properly corresponds with the petition. The Director, instead, should have compared the proffered job duties to those associated with the appropriate Occupational Information Network (O*NET) occupation.  On appeal, Petitioner asserted that an EIT is entry level by its very definition. The AAO acknowledged that by its plain terms, an EIT appeared to be entry-level, but a hasty review would be insufficient. In order to determine whether Petitioner properly selected a Level I wage, the AAO analyzed whether Petitioner selected the most relevant standard occupational classification (SOC) code, and then compared the experience, education, special skills required, and any other requirements provided in the petition and O*Net classification. Here, the description and tasks in O*NET for civil engineer generally coincided with the proffered job duties, concluding that the Petitioner selected the appropriate SOC code.  Next, the AAO analyzed whether the proffered position required experience, education, special skills, or supervisory duties beyond those listed in the related O*NET occupation. Here, the AAO found that the proffered position did not require more education, experience, special skills or supervisory duties beyond what was listed on O*Net, and, thus, was properly classified as a Level I wage.  The appeal was sustained.

In Matter of G-J-S-USA, Inc., the Petitioner sought to temporarily employ the Beneficiary as an investment banking analyst under the H-1B classification. Matter of G-J-S-USA, Inc.  The Director denied the petition concluding that the Petitioner did not establish that the submitted LCA corresponded with the H-1B petition where (s)he believed that the designated Level I wage was incorrect.  On appeal, the Petitioner asserted that an incorrect methodology was used. Id. Although the AAO found that USCIS erred in its methodology by comparing the job duties of the proffered position to the definition of a Level I wage given in the DOL’s guidance, the AAO ultimately held that the Level I wage assignment was indeed improper.

The AAO explained that the Director should have applied the five-step process outlined in the DOL’s prevailing wage guidance which required comparing the experience, education, special skills, and supervisory duties described in the O*NET description to those required by the employer for the proffered position. After employing the proper analysis, the AAO found that the assignment of a Level I wage was improper, and that the petition was thus not approvable. The Petitioner had specifically failed on step three, which involved a comparison of the education requirements. The Petitioner’s stated minimum education requirement was a master’s degree in finance or a related field. Appendix D of the DOL guidance, however, indicates that the usual education level for a financial analyst was a bachelor’s degree. According to the AAO, the master’s degree requirement warranted a one level increase in the wage and the appeal was dismissed. Id.

Critically, the AAO highlighted in both cases that there is no inherent inconsistency between an entry-level position and a specialty occupation. Most professionals begin their careers in entry-level positions; however, this does not preclude USCIS from classifying the entry-level position as a specialty occupation. Conversely, a Level IV wage does not inherently mean that an occupation qualifies as a specialty occupation if the position has not satisfied the requirements of a specialty occupation. As the AAO stated, while wage levels are indeed relevant, wages do not by themselves define or change the character of the occupation. On the other hand, according to the AAO, the key issue is whether the LCA corresponds to the H-1B petition. If the wage on the LCA does not correspond to duties and requirements described in the H-1B petition, then the H-1B petition can be denied.

It is indeed salutary that the AAO confirms that H-1B eligibility cannot be denied solely on the ground that a proffered position is classified as a Level I wage. There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. Still, the AAO substituting its purported expertise for the DOL’s expertise in determining wage levels on the LCA is of great concern. The AAO stated, “When assessing the wage level indicated on the LCA, USCIS does not purport to supplant DOL’s responsibility with respect to wage determinations.” But the AAO did precisely just that in Matter of G-S-J-USA, Inc. by usurping what DOL knows how to do best, which is making a wage determination.

The AAO relied on Appendix D in the prevailing wage guidance that provides a list of professional occupations with their corresponding usual education. If an occupation requires only a bachelor’s degree in Appendix D, and the employer requires a Master’s degree, which was the case in Matter of G-S-J-USA, Inc., then according to the DOL guidance, the employer is required to increase the wage level by one notch even if there is no experience requirement. It is not clear from the AAO decision whether it selected the appropriate occupation under Appendix D, which again is in the realm of DOL’s expertise. Even assuming the AAO arrived at the correct comparable occupation under Appendix D and the employer did not bump up the wage level, this ought to be considered as an LCA violation, which the DOL to deal with in the event of an LCA audit, and should not undermine the employer’s ability to employer the worker in a specialty occupation, resulting in USCIS outright denying the H-1B petition.

The two new AAO decisions teach that it may be a best practice for an employer to request and obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center prior to filing an LCA. As a practical matter, though, obtaining such a prevailing wage determination can take several weeks, and employers must timely file H-1B petitions within the first five business days of April each year to be considered under the H-1B lottery, or in the case of an extension, before the current H-1B status expires, or before the H-1B worker wishes to port to a new employer. In the event the employer disagrees with the NPWC determination, an appeal to the Board of Alien Labor Certification can take several months.  It is thus important to check Appendix D before the employer decides to require a Master’s degree and still pay a Level 1 wage.  On occasion, a position may require, at a minimum, an advanced degree. For example, a law degree is required for minimum entry into legal profession. However, an employer seeking to employ a new graduate would still be allowed to pay an entry level wage to the prospective employee under the DOL guidance. For lawyers, the DOL acknowledges that prospective employees need a professional degree prior to entering the profession, and thus a Level I wage is appropriate for an entry-level attorney position. Similarly, Market Research Analysts, Economists, and Urban Planners, among others, typically require a Master’s degree, for entry into the field. Attention should also be paid to other factors that may cause a bump up in the wage level, such as special skills or language requirements that may not be consistent with the skills listed in O*Net for a specific occupation. Thus, if the employer requires a foreign language skill, it may or may not need to bump up the wage level depending on whether a foreign language is inherently required for the job but which does not increase the complexity or seniority of the position. All this further confirms the point we make that assessing whether there is an excessive educational requirement or a skill lies within DOL’s rather than USCIS’s expertise.

Still, until the AAO changes its position, employers must carefully review the DOL Wage Guidance and Appendix D when assigning a wage on the LCA in the brave new world of H-1B adjudications in order to stave off a needless denial!

(The authors acknowledge the assistance of Eleyteria Diakopoulous who is a student in the JD program at Brooklyn Law School and is presently an Extern at Cyrus D. Mehta & Partners PLLC)

Cyrus Mehta

The American Dream Is For Everyone

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By Cyrus D. Mehta & Sophia Genovese

The Trump Administration has announced an immigration proposal that pits the lives of Dreamers against other immigrant populations. Dreamers are young people who came to the United States prior to the age of 16, and fell out of status of status through no fault of their own. They were granted authorization to remain in the United States under an Obama-era program known as Consideration of Deferred Action for Childhood Arrivals (DACA). The Trump White House has stated that they are willing to provide a pathway to citizenship for Dreamers in exchange for fewer family-based immigration categories, the elimination of the Diversity Visa Program, and $25 million in funding for the infamous wall. President Trump had previously cancelled DACA on September 5, 2017.

DACA recipients have strongly opposed the White House’s proposal, arguing that they refuse to benefit from a bill that will disrupt the lives of millions. A pathway to citizenship for Dreamers is desperately needed, but even Dreamers realize that they’re not the only ones whose lives remain in the balance. H-4 spouses are set to lose their ability to work, and H-4 dependents could age out if their parent continues to be stuck in the employment-based backlogs. TPS recipients are being forced to return to countries where poverty and violence remain the norm. Foreign nationals of banned countries anxiously await the ability to come to the US and join their families or begin working in their fields. Foreign students nearing graduation fear the H-1B lottery cap and USCIS’s increased scrutiny of level one wages and IT-related positions. Skilled workers from India and China stuck in the backlogs recently feared being sent back home while they await their green cards. Although this proposal has been pulled back, the fact that it was made heightens the fragility of an immigration system that keeps skilled workers waiting for decades on end because of the unavailability of immigrant visas. Undocumented populations are increasingly fearful of the lack of ICE enforcement priorities and the increased number of non-criminal immigrants being arrested on buses, at schools, or courthouses. Although Dreamers stand to gain from the White House proposal, they do not, in good conscience, accept the trade-offs. At the same time, it would be perfectly understandable if a DACA recipient wanted to accept the Trump Administration’s deal so long as it would benefit her. It is natural for each group of immigrants to want to get their own benefit without regards to whether the enactment of legislation would improve the immigration system as a whole. However tempting this might be, it would clearly be in the interest of all immigrants, including Dreamers, if they united and steadfastly demand an immigration deal that fixes the immigration system to help everyone, which in turn benefits the national interest. Otherwise, what may seem to benefit you but hurt others, will come back to also ultimately hurt you.

The Trump Administration’s proposal is cruel and nothing short of xenophobic. While fixing DACA is urgently needed, such a fix will not resolve all the other problems in the immigration system. It is not worth getting a fix for DACA, without other urgently needed fixes, in exchange for immigration restrictions that would fulfill the wish list of a nativist. America has nothing to gain, and much to lose, from such a limited immigration policy. We have repeatedly argued that immigration is a net positive for the economy and society. Immigrants keep America competitive in STEM fields and other industries. Closing the doors to talented immigrants will undoubtedly make the US less competitive globally.

In stark contrast to the Trump Administration’s xenophobic wish-list is the Immigration Innovation (“I-Squared”) Act of 2018, introduced by two Republican Senators, Orrin Hatch (R-UT) and Jeff Flake (R-AZ). The bill would increase the H-1B visas from 65,000 to 85,000 a year and proposes lifting the existing cap of 20,000 additional H-1B visas reserved for those with master’s degrees if their employers agree to sponsor their green cards. The bill includes a “market-based escalator” so the supply can meet increased demand. That means granting up to 110,000 additional visas (a total of 195,000), and prioritizing visas for those with master’s degrees, foreign Ph.D.’s or U.S. STEM bachelor degrees. The bill would also eliminate per-country caps on employment-based green cards and allow H-4 visa holders the ability to work. It will also not count derivative family members, which if implemented upon enactment, will quickly drain the decades long backlogs in the employment-based preferences. The bill does not address Dreamers, but rather focuses on employment-based visas. Although imperfect, the bill serves as a proper starting point when discussing sensible immigration policy. Specifically, the bill acknowledges the utility and benefit of foreign skilled workers, especially in the IT field. Hatch and Flake have both realized that these workers not only benefit US industries, but also help create jobs for American workers. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The people who run immigration policy in the Trump administration care about American workers but do not effectively express such concern. Instead, they have created policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. I-Squared does provide the opening salvo. This bill has all the right ingredients – elimination of per country limits, not counting derivative family members that have till now clogged up the employment-based preferences and increasing the H-1B visa cap. We need I-Squared as much as a fix for DACA recipients.

Congresswomen and men need to similarly create a comprehensive bill that provides a pathway to citizenship for Dreamers without throwing other immigrant populations under the bus. Even requiring Dreamers – who only know America as their country – to wait 10-12 years on a probationary basis before they can apply for permanent residence and citizenship is unnecessary and cruel. Although Dreamers are under no obligation to prove their worth, as their humanity alone entitles them to respect, we nevertheless see DACA recipients thriving in the respective fields and substantially benefiting the United States. The proposed legislation should also not undermine family immigration since family unification has been the cornerstone of US immigration policy since its inception. Family members of the principal immigrant support each other, and thus create more stability and bring about more prosperity. It is also not necessarily the case that a skilled immigrant in a STEM field will only benefit the United States. The nation’s immigration history is replete with examples of immigrants from all walks of life succeeding in the country through their hard work, grit and determination. Objecting to family-based migration, including cutting off the ability of a US citizen to sponsor a parent, means that you are advocating a total shut-down of immigration and the cruel separation of families. It is also immoral to do so.

With the exception of descendants of indigenous peoples, every American is a descendant of immigrants. Everyone’s mother, grandmother, great-grandmother, etc. came to the United States from a foreign land in the hopes of creating a better life. The American Dream is for everyone, whether your family has been here for generations or if your family just arrived yesterday. It is senseless to close the doors to immigrants seeking opportunity in a nation whose identity is intimately intertwined with migration.

Cyrus Mehta

Potential Adjustment of Status Options After the Termination of TPS

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As President Trump restricts immigration, it is incumbent upon immigration lawyers to assist their clients with creative solutions available under law. The most recent example of Trump’s attack on immigration is the cancellation of Temporary Protected Status for more than 200,000 Salvadorans. David Isaacson’s What Comes Next: Potential Relief Options After the Termination of TPS comprehensively provides tips on how to represent TPS recipients whose authorization will soon expire with respect to asylum, cancellation or removal and adjustment of status.

I focus specifically on how TPS recipients can potentially adjust their status within the United States through either a family-based I-130 petition or an I-140 employment-based petition for permanent residency. A September 2017 practice advisory from the American Immigration Council points to two decisions from the Ninth and Sixth Circuit, Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017) and Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), holding that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a).

In both these cases, the plaintiffs previously entered the United States without inspection, and then became recipients of TPS grants and subsequently married US citizens. At issue in both those cases was whether they were eligible for adjustment of status under INA 245(a) as beneficiaries of immediate relative I-130 petitions filed by their US citizen spouses. Both the decisions answered this question in the affirmative.

A foreign national who enters the United States without inspection does not qualify for adjustment of status even if married to a US citizen since s/he does not meet the key requirement of INA 245(a), which is to “have been inspected and admitted or paroled into the United States.” However, both Ramirez and Flores held that as a matter of statutory interpretation, Congress intended TPS recipients to be considered “admitted” for purposes of INA 245(a). Thus, even if the foreign national entered without inspection, the grant of TPS constituted an admission thus rendering the TPS recipient eligible for adjustment of status. Of course, the other conditions of INA 245(a) must also be met, which is to be eligible to receive a visa and not be inadmissible as well as have a visa that is immediately available. The disqualifications to adjustment of status in INA 245(c)(2) such as working without authorization, being in unlawful status or failing to maintain lawful status since entry are not applicable to immediate relatives of US citizens, who are spouses, minor children and parents.

The courts in Ramirez and Flores relied on INA 244 (f)(4), which provides:

(f) Benefits and Status During Period of Protected Status – During a period in which an alien is granted temporary protected status under this section-

(4) for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant

Both courts read the above phrase, especially “for purposes of adjustment of status under section 245 and change of status under section 248” to be in harmony with being “admitted” for purposes of adjustment of status. As INA 244(f)(4) bestows nonimmigrant status on a TPS recipient, an alien who has obtained nonimmigrant status is deemed to be “admitted.” Thus, at least in places that fall under the jurisdiction of the Sixth and Ninth Circuits, TPS recipients who have been granted nonimmigrant status under INA 244(f)(4) could potentially adjust status to permanent residence as immediate relatives of US citizens.

The next question is whether a TPS recipient can also adjust status to permanent residence if s/he is the beneficiary of an approved I-140 petition under the employment-based first, second, third and fourth preferences. The answer arguably is “yes” provided the applicant resides in a place that falls under the jurisdiction of the Sixth and Ninth Circuits. INA 245(k) will come to their rescue, which applies to the employment-based first to fourth preferences.

A TPS recipient from El Salvador who is concerned that her TPS designation will terminate on September 9, 2019 may wish to request her employ to file a labor certification on her behalf. If the labor certification is approved, after an unsuccessful test of the US labor market for her experience and skills, the employer may file an I-140 petition and potentially a concurrent I-485 adjustment of status application. The EB-2 and EB-3 priority dates for a person born in El Salvador are current in the February 2018 visa bulletin, and likely to remain current over the foreseeable future.

INA 245(k) exempts applicants for adjustment who are otherwise subject to the INA 245(c)(2) bar based on unauthorized employment or for not maintaining lawful status provided they are present in the United States pursuant to a lawful admission and subsequent to such admission have not failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days. Thus, even if the TPS recipient may have not been in lawful status prior to the grant of TPS, the grant of TPS resulted in the individual being admitted into the US. If this person files within the TPS validity period, 245(k) should allow this person to adjust to permanent residence.

I would posit that this person would be eligible under 245(k) to apply for adjustment of status within 180 days from the expiration of the TPS status. This may well be the case if there is a delay in the processing of the labor certification or if there is a retrogression in the priority date.  Although INA 244(f)(4) bestows lawful nonimmigrant status to a current TPS recipient, that grant of nonimmigrant status also previously admitted her into the United States. The fact that she was once admitted through the TPS grant cannot vanish just because she is no longer a TPS recipient, and she ought to be eligible to adjust status under 245(k) so long as she has not stayed in the US greater than 180 days from the termination of TPS designation. Once a person has been admitted, the person is still considered to have been admitted for 245(a) purposes even if the period of stay under TPS expires. I would argue that this should apply to a INA 244(f)(4) implied admission as much as it does to any other kind of admission. If you are necessarily admitted because you have gone from having entered without inspection to being in nonimmigrant status, that does not cease to have been the case because your nonimmigrant status later goes away.

A person who was previously admitted in a nonimmigrant status, but who then fell out of status prior to the grant of TPS, may also arguably be considered admitted once again under 245(k) upon receiving a grant of TPS. One could argue that the TPS is the last admission for 245(k).  However, the argument is probably stronger for one who entered without inspection, since traditionally only the granting of status to someone previously not admitted is a new “admission”—going out of status and back in doesn’t have the same tradition of being characterized that way.

Note that 245(k) is only applicable to I-485 applications filed under the employment-based first, second, third and fourth preferences. With respect to family-based preference petitions, USCIS has taken the position that anyone who has ever failed to maintain continuously a lawful status will not be eligible for adjustment of status. Hence, the beneficiary of an I-130 filed by a permanent resident on behalf of his spouse will not be able to adjust status if he was not in status prior to the grant of TPS. The AIC practice advisory cites Figueroa v. Rodriguez, No. CV-16-8218 -PA, 2017 U.S. Dist. LEXIS 128120 (C.D. Cal. Aug. 10, 2017), which held to the contrary that TPS cures the prior lack of status for a family preference beneficiary, but since this is a decision from a district court it has no precedential value and should not be relied upon.  Of course, if his spouse becomes a US citizen, then he qualifies as an immediate relative and also eligible to adjust status if admissible despite having not maintained status prior to the TPS grant, or even if the TPS terminates, as immediate relatives are exempt from the 245(c)(2) bar.

Those who do not reside in the Sixth and Ninth Circuit can also adjust by availing of Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Under this decision, a departure under advance parole does not trigger the 3 and 10-year unlawful presence bars pursuant to INA 212(a)(9)(B). Thus, a TPS recipient may apply for advance parole, leave the United States and be paroled back into the United States (although beware that under the Trump administration, CBP could deny entry to one with advance parole). The departure would not trigger the unlawful presence bars and the parole would be recognized for purposes of adjusting under INA 245(a) as having been “inspected and admitted or paroled.” Note, though, that the entry into the United States under parole would only render one eligible for adjustment of status as an immediate relative, and not under an approved I-140 preference petition since INA 245(k) only applies to one who has been admitted rather than paroled into the United States. The parole entry would also not help a preference beneficiary under an approved I-130. Although parole could be considered a lawful status (as the INA 245(c)(7) bar only applies to employment-based I-140s that are not subject to the 245(k) exception) for purposes of adjustment of status based on a family preference I-130, the applicant must demonstrate that s/he never previously violated lawful status. Proceeding overseas for consular processing, where filing an adjustment of status application may not be possible, may trigger the 3 and 10-year bars if the TPS recipient previously accrued unlawful presence prior to the grant of TPS. Even if the TPS recipient departs the United States pursuant to a grant of advance parole, it is not clear whether the US Consulate will recognize Matter of Arrabelly and Yerrabelly in situations where the person departs under advance parole but intends to return on an immigrant visa. Thus, those who plan to proceed for consular processing who have accrued the requisite unlawful presence to trigger the 3 and 10-year bars should only proceed if they can obtain a provisional waiver of the bars based on extreme hardship to a qualifying relative.

What is quite certain presently is the ability to adjust status as an immediate relative if the TPS recipient resides within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). It is also important to note that the Eleventh Circuit in Serrano v. Unites States Attorney General, 655 F.3d 1260 (11th Cir. 2011) held that TPS was not an admission for purposes of adjustment under INA 245(a).  As David pointed out in his blog, those who reside outside those two Circuits, except in the Eleventh Circuit,  might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials. An applicant can litigate by bringing an action under the Administrative Procedure Act, 5 U.S.C.  701 in federal district court. Alternatively, if the applicant is placed in removal proceedings, s/he can argue these theories before an Immigration Judge, and if unsuccessful to the Board of Immigration Appeals and subsequently in a Court of Appeals. Further details on various litigation strategies may be provided in a subsequent blog.  Even if a TPS recipient resides within the jurisdiction of the Sixth or Ninth Circuit, it is not clear whether the USCIS will accept an argument for adjustment of status through an I-140 employment-based petition under INA 245(k). This uncertainty gets exacerbated where the TPS grant has already expired and the I-485 is being filed within 180 days of its final expiration date.  Hence, the TPS recipient planning to deploy an adjustment of status strategy under 245(k) must also be prepared to litigate even if residing within the jurisdiction of the Sixth or Ninth Circuit. Under the Trump administration, when immigration benefits have suddenly been curtailed for long time TPS recipients, it may be worth adopting creating adjustment of status strategies, and if USCIS does not accept them, to consider litigating until there is success as was the case in the Ramirez and Flores decisions.

(This blog is for informational purposes only and should not be considered as a substitute for independent legal advice supplied by a lawyer familiar with a client’s case.)

David Isaacson

What Comes Next: Potential Relief Options After the Termination of TPS

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With the recent announcement that the Trump Administration will terminate Temporary Protected Status (TPS) for more than 200,000 citizens of El Salvador effective September 2019 after previously terminating TPS for Haiti, Nicaragua, and Sudan, it seems appropriate to examine alternate forms of immigration relief that may become available to those whose TPS is terminated. Of course, we may hope that Congress will provide some relief to TPS holders, but as things stand now, that appears to be an eventuality which should not be counted on at least in the short run.

One possibility for some TPS holders may be adjustment of status under INA §245.  As explained in a September 2017 practice advisory from the American Immigration Council, the Courts of Appeals for the Sixth and Ninth Circuits have held that TPS constitutes an admission for purposes of eligibility for adjustment under INA §245(a). TPS holders who are immediate relatives of U.S. citizens can take advantage of this holding most simply, if they reside within the jurisdiction of the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) or the Ninth Circuit (California, Arizona, Nevada, Washington, Oregon, Idaho, Montana, Alaska, Hawaii, Guam and the Northern Mariana Islands). Those who reside outside those two Circuits might still be able to pursue adjustment of status on the same theory if they are willing to litigate in federal court following any denials.  The situation with respect to applicants for adjustment based on other family relationships or employment is more complex, as explained in the linked American Immigration Council practice advisory, but that sort of adjustment of status will be potentially available to TPS recipients under at least some limited circumstances.

Another possibility for many TPS-holders, if they are placed in removal proceedings, might be seeking cancellation of removal for non-permanent residents under INA §240A(b). It has been reported that many TPS recipients from El Salvador have U.S. citizen children, for example: there are reported to be “nearly 200,000 US citizen children of Salvadoran parents with TPS.” Many TPS holders may be able to show that one or more of their U.S. citizen children (or Lawful Permanent Resident children or U.S. citizen or Lawful Permanent Resident spouses or parents) will suffer “exceptional and extremely unusual hardship” upon removal of the parent, although this is admittedly a very high bar.  If such TPS holders, with qualifying relatives who would suffer such hardship, have been continuously physically present in the United States for ten years before being placed in removal proceedings – which El Salvadoran TPS holders, for example, generally will have been, since TPS for El Salvador commenced in 2001 – then, if certain other criteria regarding good moral character and lack of disqualifying criminal convictions are met, they can seek cancellation of removal in Immigration Court under §240A(b), which would result in Lawful Permanent Resident status.

It is important to note, in this context, that time in TPS counts towards the ten-year minimum for cancellation under INA §240A(b). It is only in the distinct context of cancellation of removal for lawful permanent residents under INA §240A(a) that INA §244(e) excludes from continuous presence one’s time in TPS, and there only “unless the Attorney General determines that extreme hardship exists.” A footnote on the USCIS webpage reproduction of this INA section suggests that the restriction was actually meant to apply to §240A(b) cancellation, but besides being contrary to the text of the statute, this would have little practical impact even if it were true: any case in which “exceptional and extremely unusual hardship” exists for purposes of §240A(b) cancellation would presumably be a case in which extreme hardship exists for the purposes of the exception.

Admittedly, some TPS holders will presumably be unable to establish a sufficiently high level of hardship to their children—although given the atrocious violence and other country conditions in El Salvador, where the State Department has notably advised U.S. citizens not to travel, it is not clear what proportion of U.S. citizen children could relocate there without suffering exceptional and extremely unusual hardship. Even so, however, one wonders how the Trump Administration thinks the already-overburdened immigration court system is going to deal with determining which of the nearly-200,000 U.S. citizen children involved will suffer such exceptional and extremely unusual hardship.  Perhaps the answer is that they do not intend to place former TPS beneficiaries into removal proceedings.  But that could give rise to the peculiar spectacle of a large population seeking to be placed into removal proceedings, where they can have the hardship to their children taken into account under the statutes enacted by Congress, while the Administration insists that the members of that population should leave, but refuses to commence the proceedings that under INA §240(a)(3) are the “sole and exclusive procedure” for compelling them to do so.

Some TPS holders may also be eligible for asylum under INA §208. Asylum is typically thought of as a form of relief available to those who fear persecution on a protected ground in their home countries, and some citizens of El Salvador and the other countries whose TPS is being terminated may indeed meet that description.  However, while a fear of future persecution is the archetypical case for asylum, it is not the only one, under the governing regulations.  As the BIA explained in Matter of L-S-, 25 I&N Dec. 705 (BIA 2012), pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(B), asylum can be granted to one who has suffered persecution in the past and “has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.”

While “other serious harm” must equal the severity of persecution, it may be wholly unrelated to the past harm. Moreover, pursuant to the regulation, the asylum applicant need only establish a “reasonable possibility” of such “other serious harm”; a showing of “compelling reasons” is not required under this provision. We also emphasize that no nexus between the “other serious harm” and an asylum ground protected under the Act need be shown.

Matter of L-S-, 25 I&N Dec. at 714. The BIA further explained that “adjudicators considering “other serious harm” should be cognizant of conditions in the applicant’s country of return and should pay particular attention to major problems that large segments of the population face or conditions that might not significantly harm others but that could severely affect the applicant.” Id. This may be particularly relevant to TPS recipients from countries like El Salvador which do, as discussed above, have major problems faced by large segments of the population, such as widespread violence.

It is important to note that this other-serious-harm asylum requires that an applicant have previously suffered qualifying past persecution on a protected ground.  The full definition of such past persecution is beyond the scope of this blog, but it is a difficult threshold to meet. The Second Circuit has explained in Baba v. Holder that to constitute persecution “conduct must rise above mere harassment” and that persecution includes “threats to life or freedom” and also extends to “non-life-threatening violence and physical abuse.” The Second Circuit has also, as explained in Baba with a quotation of Guan Shan Liao v. U.S. Dept. of Justice, “found that persecution may also take the form of non-physical harm, such as ‘the deliberate imposition of a substantial economic disadvantage.’” As for the protected grounds, there are many subtleties, but the basic statutory requirement under INA 208(b)(1)(B)(i) (largely restating INA §101(a)(42)(A) with some added stringency per the REAL ID Act of 2005) is that “the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”

However, such qualifying past persecution could have taken place many years ago, under very different political conditions than are now present. Moreover, the Court of Appeals for the Second Circuit has recognized that under some circumstances, children may suffer qualifying past persecution from actions primarily directed at other family or community members.  In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006), the Second Circuit explained that massacres in a child’s persecuted ethnic Mayan community could constitute persecution of the child even if not directed at the child specifically:

Jorge-Tzoc was a child at the time of the massacres and thus necessarily dependent on both his family and his community.   He also offered substantial evidence of a pervasive campaign carried out by the army against Mayans in the area in which he lived.   The CEH documented two 1982 army killings of persons named Tzoc in Jorge-Tzoc’s village.   Further, while the family remained in their village, Jorge-Tzoc’s mother was afraid to go out of their home to obtain needed groceries, and Jorge-Tzoc viewed the bullet-ridden body of his cousin lying on the ground.   The army’s campaign, according to Jorge-Tzoc’s testimony, resulted in his relocation, along with many family members to one room in Quiche where they struggled to survive.   In addition, Jorge-Tzoc’s father lost his land and his animals as a result of the move.   This combination of circumstances could well constitute persecution to a small child totally dependent on his family and community.

The Court of Appeals for the First and Ninth Circuits have similarly concluded that persecution of a child’s family can constitute persecution of that child, in Ordonez-Quino v. Holder and Hernandez-Ortiz v. Gonzales. The Second Circuit narrowed Jorge-Tzoc somewhat in Jiang v. Gonzales, requiring that the persecuted child “share – or [be] imputed to share – the characteristic that motivated the persecution.” (There is also additional discussion in Jiang, arguably nonbinding dicta, regarding how such persecution would “presumably” require that the child, as in Jorge-Tzoc, “was also within the zone of risk when the family member was harmed, and suffered some continuing hardship after the incident.”) Nonetheless, there may be TPS recipients who would have a reasonable past-persecution claim based on events that occurred many years ago when they were children, which could then ground an application for asylum based on the reasonable possibility of other serious harm due to current country conditions.

Another issue in regard to a possible asylum application by a TPS recipient would be the one-year filing deadline of INA §208(a)(2)(B). Ordinarily, one who wishes to apply for asylum must do so within a year of their last arrival in the United States.  However, INA §208(a)(2)(D) exempts from the one-year deadline cases in which an applicant can establish “extraordinary circumstances relating to the delay in filing the application within the period”, and the regulations at 8 C.F.R. §208.4(a)(5)(iv) clarify that such extraordinary circumstances may include maintenance of TPS or other lawful status “until a reasonable period before the filing of the asylum application”. As a recent AILA practice pointer has noted, this may not solve the one-year problem for those who were present in the United States for more than a year between the time the one-year deadline was created in 1997 and the onset of their TPS. However, the TPS exception it does mean that some TPS beneficiaries will not have a problem with the one-year deadline even if the events giving rise to an asylum claim occurred long ago.

Moreover, changed circumstances “materially affecting the applicant’s eligibility for asylum” can also excuse late filing under INA §208(a)(2)(D) and 8 C.F.R. §208.4(a)(4)(i) as long as the applicant files within a reasonable time given those changed circumstances. Where a claim is based on a combination of past persecution and a reasonable possibility of other serious harm in the future, there would be a strong argument that a change in circumstances materially affecting the other-serious-harm prong of eligibility would qualify under this exception even if the past persecution remained constant.  Thus, some TPS recipients who had suffered past persecution might be able to excuse an otherwise untimely asylum claim based on changed circumstances relating to the other serious harm they would suffer if returned to their home country.

In cases where a reasonable asylum claim could be made under one of these various theories, it could also have the incidental effect of solving the problem discussed above of TPS recipients being left in limbo by a refusal to place them in removal proceedings. By regulation, pursuant to 8 C.F.R. §208.14(c)(1), where an affirmatively-filed asylum application is not granted and the applicant is considered to be inadmissible or deportable, the application will generally be referred into removal proceedings, where the applicant can renew the asylum application and also apply for other available relief (such as, if applicable, cancellation of removal for non-permanent residents). Such placement in removal proceedings is of course a dangerous outcome, but for some people it may be preferred to indefinite limbo.

Another defense against removal that might be available to TPS beneficiaries placed in removal proceedings would be to challenge, in federal court, the de-designation of their countries for TPS.  This is difficult outside the context of removal proceedings, because INA §244(b)(5)(A) states that “There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” There may be some argument that this jurisdictional bar should be interpreted to exclude bona fide constitutional claims as discussed in Calcano-Martinez v. INS, 533 U.S. 348 (2001) in the context of a different jurisdictional bar, although this is not completely clear. Once TPS becomes at issue in a removal order, however, the scope for federal court review would be broader, because a petition for judicial review of that order would fall under the protection of INA §242(a)(2)(D), which states that

Nothing in . . . any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

INA §242(a)(2)(D), 8 U.S.C. §1252(a)(2)(D) (referring to “this chapter” rather than “this Act”). Under this provision, a former TPS holder who was ordered removed ought to be able to challenge the de-designation of their country of nationality as legally inappropriate—perhaps, for example, on the basis that the de-designation, albeit nominally accomplished by DHS, had been inappropriately influenced by the views of the Chief Executive regarding people from “shithole countries.”

All of these potential courses of action are complex and fraught with risk, and TPS holders would be well advised to consult a qualified immigration attorney before proceeding with any of them.  It is important to know, however, that the termination of TPS may not equate to the termination of all ability to remain lawfully in the United States.

Cyrus Mehta

Top 10 Most Viewed Posts On The Insightful Immigration Blog In 2017

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Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2017. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.

2017 was marked by President Trump’s turbulent impact on the immigration system. It started with the travel ban aimed against countries with mainly Muslim populations and enhanced interior enforcement, but then went onto undermining legal immigration, including attacks on H-1B visas. Although the Trump administration has not been able to slow down immigration through legislative changes in Congress or through rule making, it has achieved its stated objectives through shifts in policy that create more obstacles in the immigration process. The DACA program was cancelled and refugee admissions have been virtually halted. Immigrants have also been stereotyped, without basis, by conflating them with crime or by viewing them as taking away American jobs.  Our blogs critically reflect on all these developments and also endeavor to portray immigration as being in the national interests of America. We have not feared voicing our criticism as we believe it is the right thing to do on behalf of our clients and the nation. The Trump administration’s move to restrict immigration is not based on a rational policy, but driven solely by fear, xenophobia and stemming out of a eugenics movement sanctioned by the President. This was evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy, and the most effective way to react is to condemn them on grounds that they are not in keeping with long cherished American values as a nation of immigrants.

Our blogs also educate readers on new developments, such as on various aspects of the high skilled worker rule or on new decisions clarifying L-1 visas for functional managers or the national interest waiver. It is important to inform people on how they can maximize opportunities while the Trump administration is trying its best to restrict them.

The good news is that the Trump administration’s efforts to destabilize the immigration system have met with effective resistance through the courts, media, and advocacy. We proudly believe that our blogs are also part of this effort.

We do hope that 2018 bodes better for immigration, and wish all of our supporters and well-wishers a very happy New Year notwithstanding the challenges that lie ahead!

  1. Entry Level Wage Blues
  2. Analysis of the 60-Day Grace Period for Nonimmigrant Workers
  3. A Few Suggestions to Defend Oneself Against the 90-Day Rule
  4. Is There a Hidden Agenda? Suspension of Premium Process for All H-1B Petitions
  5. Matter of Dhanasar: The New National Interest Waiver Standard
  6. Raise Act Will Hurt Immigration, Americans and America
  7. Stopping H-1B Carnage
  8. 7 Points to Remember Regarding Resume Review in the PERM Process
  9. Filing Under the FY2018 H-1B Cap; New Developments in H-1B Cap Exemption
  10. Dealing with the Dreaded RFE – Reflections of an Immigration Lawyer
Cyrus Mehta

Calling Out President Trump’s Hoax: The Green Card Lottery and Family Fourth Preference Have No Connection To Terrorism

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By Cyrus D. Mehta & Sophia Genovese

Despite the President’s most recent comments, individuals that immigrate to the United States via the Diversity Visa program and family-based petitions are not chosen out of a bin and are certainly not the “worst of the worst.” To the contrary, individuals who come to the United States through these mechanisms undergo rigorous screenings and can face several years, sometimes decades, of processing and waiting.

Trump’s most recent anti-immigration comments were sparked by the Halloween attack in New York City resulting in the tragic death of eight individuals, as well as the failed bomb attack in Times Square last week. The alleged Halloween attacker, Sayfullo Saipov, entered through the Diversity Visa program in 2010. Ceasing this political opportunity to further propel his anti-immigrant rhetoric, Trump declared that the Diversity Visa program brings in “the worst of the worst” and called on Congress to end the program. The individual who attempted to bomb the New York City subway at Times Square, Akayed Ullah, had entered through a fourth preference family-based petition. He was the child of the beneficiary of an approved I-130 petition filed by his parent’s US citizen sibling. Trump again jumped on the opportunity to criticize another lawful method of immigration and declared that such “extended-family chain migration” is “incompatible with national security.”

Given the backlogs in family-based preference categories and the rigorous screenings in both family-based petitions and the Diversity Visa program, it is difficult to understand how the President believes they are easily manipulated processes for dangerous individuals to enter the United States. Logically speaking, if someone truly wanted to exert harm on Americans, there are several other ways to do so without having to go through the hassle of the diversity visa program or family-based petitions.

The modern-day Diversity Visa program was created by Congress through passage of the Immigration Act of 1990 and officially went into effect October 1, 1994. The purpose of the program is to “further enhance and promote diversity” by allowing individuals from countries with low rates of immigration to the United States the opportunity to obtain a green card. There have been many examples of immigrants who have succeeded and benefitted America through this program. In order to apply for the program, an individual must be from a low-sending country and have a high-school education or its equivalent. For FY 2019, individuals from every country but Bangladesh, Brazil, Canada, China (mainland), Colombia, the Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, the Philippines, South Kora, the United Kingdom, and Vietnam are eligible to apply. If applicants fail to submit their registration within the rigid timelines, fail to meet the requirements explained above (i.e. do not possess a high-school education or its equivalent), or generally fail to follow the instructions in the application carefully, they will immediately be disqualified from consideration. Even being one of the nearly 100,000 individuals initially selected in the lottery is not a guarantee for admission, especially if the applicant has triggered one of the many grounds of inadmissibility in the Immigration and Nationality Act. Instead, lottery winners undergo rigorous background checks and interviews, all of which must be completed within a strict timeframe.

There was a time in our history where immigrants came to the country without being subjected to rigorous selection criteria, and only with a dream of starting a new life and doing well through sheer determination and hard work. This was America’s secret sauce – its ability to attract and assimilate people regardless of their status in society and only with a burning desire to succeed. The Diversity Visa program is redolent of America’s past, which still gives anyone who can qualify subject to rigorous screening – whether from Scandinavia or sub-Saharan Africa – a chance to dream, work hard and succeed in America.

Similarly, individuals seeking to immigrate through family-based petitions face crippling backlogs, in addition to the comprehensive security screenings prior to entering the United States. For many of these families, the process of immigrating to the United States can take upwards of several years or even decades. For example, if a US citizen originally from Mexico filed an I-130 on behalf of their married son or daughter, their child can expect to wait at least another 21 years, if not longer, before they can apply for their immigrant visas. And even once their priority date becomes current, there is no guarantee that a consular officer will find them admissible for entry into the United States. It has now become fashionable, even by the likes of USCIS Director Francis Cessna, to criticize so called chain migration as not being desirable and providing a conduit for immigrants to come to the United States to do harm. But this is just subterfuge by immigration restrictionists to curtail family-based immigration in exchange for the proposed RAISE Act. Although the RAISE Act purportedly promotes merit based immigration through a points system, it will keep out most, even many highly skilled individuals, and it is thus no wonder that mostly xenophobes have welcomed it so far.

Chain migration is not a legal term, it is a political term, which is conveniently bandied around by those who oppose immigration, including Trump appointed officials like the USCIS Director who should be objectively administering the law rather than infecting it with Trump’s and his own personal biases. For any rational immigration system to work, minor children of the sponsored person, whether through employment or family-based immigration, along with the spouse, must also be let in. If only the principal beneficiary is admitted on a permanent basis, no one will ever want to immigrate to the United States. While this may be the dream of xenophobes, to deny spouses and children of the sponsored immigrant to get green cards would be cruel and create an unworkable system. The honest xenophobic politician or government official should just advocate shutting down immigration altogether rather than hypocritically espouse it, but only object to chain migration. Objecting to chain migration means that you are advocating a total shut down of immigration. Moreover, every foreign national who has been admitted into the United States as a permanent resident can ultimately naturalize provided they meet the eligibility criteria. A citizen, whether naturalized or born in the United States, should be able to sponsor family members. If there was a sub-class of citizens who could not under law sponsor relatives out of fear that it would foster chain migration, there would be two tiers of citizens in America. This would go against the values of this country that treats all its citizens equally and gives them equal opportunities in all spheres of life. Worse still, it would Balkanize America. The second-class citizens would not feel integrated and assimilated into the fabric of the country. America has succeeded brilliantly and has become great because all citizens are considered Americans no matter who their parents are or where they came from.

An individual with a vendetta against the United States and seeking to exert harm on Americans is not going to go through the pain of such a process. Putting logic aside, as this Administration has done from the start, Trump has nevertheless deemed these methods of lawful entry to be incompatible with national security and avenues through which terrorists are able to sneak in. Immigration, through the chain migration bogeyman, has unfortunately become a focal point of this Administration’s racist and xenophobic rhetoric. They have and will continue to cling on to any and all violent acts committed by immigrants and use it as justification to severely limit immigration to the United States, despite the fact that immigrants are less likely to commit violent crimes than native born Americans.

Ascribing an entire population for the acts of an isolated few, who likely became radicalized in the United States long after their initial admission as immigrants, is ludicrous. Even a native born US citizen can become radicalized. Indeed, we do not see outrage against white American men every time a native-born white male shoots up a school, church, movie theater, concert, or literally any other venue imaginable. Nor have we seen substantive gun reform in an era of alarmingly high rates of deadly shootings. But yet, on the rare occasion that an immigrant does commit a crime, suddenly all immigrants have to answer for it and any avenue through which the violent individual entered the United States is criticized.   While there is clearly a logical nexus between a gun and a person’s evil intent, it is hard to find such a similar nexus with a person’s propensity to do harm and congressionally mandated visa programs. This is another one of Trump’s many hoaxes. Recall the one when he claimed that he would have won the popular vote against Clinton had 3 million illegal voters not voted in her favor.

Simply closing the door to all immigrants because a few individuals committed crimes will do nothing but hurt America in the long run. We have provided exhaustive evidence throughout our blogs describing the various ways in which immigrants have benefited the United States. Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with limited skills contemplated under the RAISE Act will. It is unclear why we have to continue justifying immigration in the face of such clear evidence. The solution will ultimately lie at the ballot box. Trump repeatedly criticized Ralph Northam in Virginia and Doug Jones in Alabama for being weak on the border and not supporting his wall. Yet, both defeated the candidates that Trump repeatedly promoted on Twitter as being tough on illegal immigration and supporting the wall. Scapegoating immigrants for electoral advantage may have succeeded once for Trump, but might not every time. The tide will turn as people realize that America’s greatness is being diminished if it no longer has access to its secret sauce.

Cyrus Mehta

New York State Bar Association v Avvo: Will the Uberization of Immigration Law Practice Overcome Outdated Advertising Rules Governing Lawyers

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Companies like Avvo are using their marketing platform to provide more opportunities for younger and solo lawyers to gain clients and thus level the playing field.  Avvo Legal Services seeks to disrupt the traditional legal model where a client seeks out a lawyer based on his or her reputation rather than on a web-based network, and the lawyer sets the fee. One of the immigration services Avvo offers is a “family based green card” for $2995 that involves preparing and filing the requisite forms, but no representation at an adjustment of status interview or to respond to a Request for Evidence.  The consumer pays $2995 to Avvo directly, but may choose the attorney in the Avvo network that they want to work with. That attorney has 24 hours to directly contact the consumer/client, and do the work as they would any other client. When the work is completed, Avvo releases the funds to the attorney, and in a separate transaction withdraws from the attorney’s account a $400 marketing fee.

Under this unique business model, which I have termed as the Uberization of immigration practice in a prior blog,  the immigration attorney is contracting with Avvo as a vendor to gain clients and business through its superior marketing reach. Avvo views this new service as benefitting both lawyers and clients. The lawyer will rely on Avvo to get business and also get paid easily, without keeping track of billable hours or worrying about trust accounts. It would also help lawyers build their practices as it would lead to further work by the same client, according to Avvo.  The client is also benefitted as s/he will get access to a legal service that is both affordable and fixed, and will also understand exactly what legal service is being purchased. Avvo Legal Service should be distinguished from the “Avvo rating” a lawyer may receive, which is ethically permissible.

The question is whether paying the marketing fee to Avvo is ethically impermissible when an attorney receives a matter through the Avvo legal services platform.  The New York State Bar Association issued Ethics Opinion 1132 holding that a lawyer may not pay the current marketing fee to participate in Avvo Legal Services because the fee includes an improper payment for a recommendation in violation of New York Rule 7.2(a). Under 7.2(a), “a lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client…” At issue for the NYSBA Committee on Professional Ethics was whether the lawyer is paying the fee to obtain marketing and advertising services from Avvo or whether it was giving Avvo something of value to recommend the lawyer to clients. The former scenario would not be a violation of Rule 7.2(a) while the latter would be. The NYSBA, in concluding that paying a marketing fee violated Rule 7.2(a),  analyzed Avvo’s business model in great detail. Avvo gives each lawyer a rating from a scale of 1 to 10. While Avvo never describes a rating as a recommendation, the NYSBA opined that the Avvo website extols the benefits of being able to work with highly-rated lawyers.  While a lawyer is not precluded from advertising bona fide professional ratings generated by third parties in advertisements, Avvo is not a third party, according to the NYSBA,  as it benefits financially if potential clients hire the lawyers rated by Avvo. The NYSBA’s conclusion was bolstered by Avvo’s satisfaction guarantee by which the client is guaranteed a refund of the full amount, even Avvo’s marketing fee, if the client is not satisfied. “This guarantee contributes to the impression that Avvo is ‘recommending’ the lawyers on its service because it stands behind them to the extent of refunding payment if the client is not satisfied,” according to the NYSBA.

While the NYSBA dwelt a lot on what constitutes a recommendation under Rule 7.2(a), it skirted discussing whether the Avvo service would in reality compromise the attorney’s ability to competently represent the client. That analysis is more relevant than whether there was a violation of an archaic advertising rule.  There is a growing recognition that the advertising rules governing lawyers are outdated and need an update in light of the use of social media by attorneys to both market and communicate with clients. Many immigration lawyers, firms, and non-profits providing legal services to indigent clients rely on social media such as LinkedIn, Twitter and Facebook. They use social media not just for advertising but also as part of advocacy efforts to raise awareness on immigration issues. If any message disseminated on social media constitutes an attorney advertisement, it triggers additional requirements that may be impossible to comply with in a social media post. Reform of the advertising rules should focus primarily on lawyer communications that are false or misleading. All other requirements in an advertisement such as requiring the words “Attorney Advertising” and requiring the name, principal law office address and telephone number of the law firm are outdated in an era dominated by tweets.

Rather than focus on the advertising rules that are outdated, including splitting hairs on what constituted a recommendation under Rule 7.2(a), the NYSBA could have opined on other aspects of the Avvo service that limits both the competence and independence of the attorney.

The NYSBA highlighted three salient issues, which it said it was not deciding on:

  • The fact that Avvo sets the amount of the legal fee for each service raises questions about whether a participating lawyer can deliver competent legal services for Avvo’s chosen price and whether a lawyer is allowing Avvo to interfere in the lawyer’s independent professional judgment regarding how much time to spend on a matter.
  • The marketing fee raises questions about whether lawyers who participate in Avvo Legal Services are improperly sharing legal fees with a nonlawyer.
  • Avvo’s satisfaction guarantee raises questions about confidentiality. If clients call Avvo to complain, does the “documentation” that Avvo asks for or receives include “confidential information” within the meaning of Rule 1.6(a)?  How does Avvo avoid receiving confidential information when evaluating whether to refund the legal fee a client has paid through Avvo?

Even if we leave alone the concerns of fee splitting with a non-lawyer, a “family -based green card” is not like ordering a ride through Uber, where you know that any driver in a functioning vehicle and GPS, will take you to your destination.  But unlike an Uber car ride, there are many traps and pitfalls in family -based immigration practice, even when it appears relatively straight forward. One’s eligibility for adjustment of status based on a marriage to a US citizen spouse is also subject to variables. If the client’s arrival in the US was not through a straight forward inspection at a port of entry, then the case immediately becomes more complex. If the client is potentially inadmissible for a host of reasons, including claiming to be a US citizen when seeking employment many years ago, that too would throw the Avvo $2,995 family based green card package out of the window. The client will disappointingly realize that the Avvo family green card package and price is virtually meaningless, and would rather seek out an attorney who has the reputation and expertise to handle difficult family -based immigration cases. There are other variations even if the client appears prima facie eligible to adjust status. For example, the marriage may have been bona fide at its inception, but the spouses are quarreling and living separately, and still desire to cooperate on the green card for the sake of the children. This too requires the agile immigration attorney to appropriately advocate for the client by educating and allaying the suspicion of malevolent intent by a USCIS examiner that the marriage presently under consideration not be viable so long as it was bona fide at its inception. See Matter of Boromand, 17 I&N Dec. 450 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

There are other problematic aspects of immigration legal services provided by Avvo.  It offers a 15-minute immigration advice session for $39. After 15 minutes, the telephone line gets cut off. It is difficult to provide a comprehensive consultation on an immigration law issue in 15 minutes. While the client may have the option of following up with the attorney, the very fact that Avvo suggests that a 15-minute consultation can satisfy the client’s need in a complex area of the law may be misleading. Avvo also provides a service where an attorney will review immigration applications that the client has prepared pro se, but that is fraught with dangers and pitfalls as referenced in the marriage example preceding. 8 CFR 1003.102(t) provides for sanction of an immigration practitioner who fails to submit a Notice of Entry of Appearance as Attorney or Representative who has engaged in practice or preparation. Under the terms of the Avvo arrangement, since the client will be filing pro se after the attorney reviews it, the attorney will not be able to submit a Notice of Appearance if the attorney’s review of the form is considered to be “practice or preparation.” Presumably Avvo, as an intermediary in connecting a potential client to a lawyer and as a non -legal entity, would not be entering a Notice of Appearance.

The NYSBA opinion has been issued by a voluntary organization and is non-binding. To the best of this author’s knowledge, no New York lawyers have been disciplined because they paid a marketing fee to Avvo. Other state bars have also issued opinions,  here, here and here,  that raise concerns about fee splitting. Fee splitting is a concern if it undermines the independence of the lawyer. Avvo says it does not as it is made totally transparent to the consumer of legal services and could be a violation of the First Amendment. The key issue is that a client who uses Avvo Legal Services should be made completely aware of the scope of the services and its variation, which at least in the immigration context, may not be the case. Perhaps, one way to alleviate the concern of a bar association’s professional ethics committee is to make sure that the lawyer and prospective client have a phone call first to discuss the scope of the matter before the client purchases the service on the Avvo platform. If the issues presented by the prospective client are more complex than advertised, then Avvo should provide the ability for the lawyer to modify the fees based on the new scope of representation. As Avvo has pointed out, the NYSBA opinion “actively discourages lawyers from using technology to reach out to clients who see an increasing gap between them and meaningful access to the legal system.”     This may be true, but the consumer must also be made aware whether his or her case fits the service that Avvo markets on behalf of the law. A lawyer may undertake limited representation and unbundle legal services, which Avvo facilitates, but the limitation must be reasonable under the circumstances pursuant to New York Rule 1.2(c). Thus, the 15-minute consultation should probably be extended to at least 30 minutes or even longer. Perhaps, the service promoted by Avvo of reviewing a pro se client’s naturalization or I-130 petition should be halted unless some understanding is reached by the disciplinary counsel in the Department of Homeland Security and the Executive Office for Immigration Review regarding the scope of 8 CFR 1003.102(t).

NYSBA Formal Opinion 1132 against Avvo will not be the last word. The professional ethics committee of the NYSBA too acknowledges that the “lawyers and clients who are using Avvo Legal Services suggest that the company fills a need that more traditional methods of marketing and providing legal services are not meeting” and “[f]uture changes to Avvo’s mode of operations – or future changes to the Rules of Professional Conduct – could lead us to alter our conclusion.” For now, at least, lawyers who choose to pay a marketing fee to Avvo after they connect with a client through its platform do so at their own peril. Avvo, though, has promised to defend these lawyers if disciplinary action is taken against them.

Cyrus Mehta

Making Sense of the Acquittal in Kate Steinle’s Case: Why Anti-Immigrant Rhetoric Equating Immigrants with Criminals Must Stop

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Kate Steinle’s death was a senseless tragedy. On July 1, 2015, as she was walking along San Francisco’s Pier 14, a gun goes off and cuts her life short. She died in her father’s arms.

The accused, Jose Ines Garcia Zarate, is an undocumented Mexican immigrant who had been deported five times before, and each time, has illegally come back into the United States. He was charged with murder and manslaughter, but the jury recently acquitted him of the charges. His acquittal has inflamed President Trump who calls the verdict a travesty of justice. He uses the acquittal as another reason to build the wall. If Mr. Garcia Zarate did not cross the border illegally, Kate would still be alive today, Trump and his supporters argue.

But Mr. Garcia Zarate’s immigration status was not relevant. In the criminal justice system, the twelve jurors were asked to look at the facts and deliberated hard for six days. The key issue was whether the defendant intentionally killed the victim? Immigration status was not part of the jury’s deliberations and should not have been, however much Trump and his supporters may insist. Evidence was presented in the trial that the bullet had ricocheted before killing Ms. Steinle. The jury determined that  Mr. Garcia Zarate did not intentionally kill her.  Mr. Garcia Zarate was nevertheless convicted for felony possession of a weapon and will face prison time. After he completes his sentence, Mr. Garcia Zarate will presumably be deported to Mexico for the sixth time.

In order to have a fair criminal trial, which the United States ensures for all defendants, immigration status should never be relevant and thus not admissible evidence. The only question in court was whether the defendant intentionally fired the gun. As the facts were presented, Mr. Garcia Zarate, a homeless immigrant living in the country illegally, unwrapped a cloth object under a bench on a San Francisco pier. Inside the cloth was a gun that had been stolen days before.  During the presidential campaign, Trump exploited Kate’s unfortunate death to conflate immigrants with criminals, foment hate, inspire a mass deportation program and to catapult him into the presidency. Trump continues to rage and exploit Ms. Steinle’s unfortunate death to further his anti-immigration policies. He says this in a recent tweet:

The Kate Steinle killer came back and back over the weakly protected Obama border, always committing crimes and being violent, and yet this info was not used in court. His exoneration is a complete travesty of justice. BUILD THE WALL!

Mr. Garcia Zarate may have been an undocumented person who illegally crossed the border many times. But that fact would not have changed the outcome as Mr. Garcia Zarate’s border crossings in violation of law were not the proximate cause of Ms. Steinle’s death. If Mr. Garcia Zarate had not picked up the gun at that fateful moment, and if another homeless person born in the United States picked up the same gun, Ms. Steinle may have still been killed. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. The criminal justice system can fairly deal with people accused of crimes, whether they may be immigrants or US citizens.

To be clear, Mr. Garcia Zarate is no model immigrant. He is not a Dreamer or a STEM graduate. Still, he got a fair trial in our criminal justice system even though he was unable to afford fancy lawyers. Most immigrants, however, are hardworking and honest, trying to make better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. It is irresponsible to use this tragic incident to scapegoat all immigrants or to drum up support for mass deportations of millions of people. It would also not be in keeping with Ms. Steinle’s memory if her death results in hate and misery fomented by white nationalist groups.

Ms. Steinle’s death was also used as a basis for the Trump administration to oppose sanctuary jurisdictions. Mr. Garcia Zarate had completed a nearly four-year federal prison sentence for illegally reentering the country. He was turned over to San Francisco law enforcement officials because of an outstanding warrant for a marijuana-related charge that was immediately dismissed. Local officials released him, despite a request from federal authorities to keep him in custody because of his immigration status, according to a wrongful-death lawsuit filed by Steinle’s family. The Trump administration issued an executive order in January 2017 to articulate its broadened enforcement policy against undocumented immigrants, which among other things sought to  block federal funds from “sanctuary jurisdictions.”

The January executive order stated, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.” The executive order said, among other things, that the policy of the executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The order further said that the Secretary of Homeland Security has the authority to designate a jurisdiction as a sanctuary jurisdiction, and that the Attorney General can take “appropriate enforcement action” against any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

Following lawsuits by the counties of San Francisco and Santa Clara, California, federal district Judge William H. Orrick ruled against a provision of the Trump administration’s executive order issued in January 2017 to block federal funds from “sanctuary jurisdictions.”  The counties challenging the executive order argued that the relevant provision of the Trump executive order violated the separation of powers doctrine in the Constitution because it improperly sought to wield congressional spending powers. The counties said it was so overbroad and coercive that even if the President had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions. Further, the counties argued that the provision was so vague that it violated the Fifth Amendment’s Due Process Clause and was void for vagueness. And because it sought to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violated the procedural due process requirements of the Fifth Amendment.

The federal government responded that the counties could not demonstrate that the executive order’s sanctuary provision was invalid under all circumstances. It also claimed, among other things, that the provision was consistent with the Constitution’s separation of powers and did not apply to funding in which the county might have a constitutionally protectable interest.

The court noted that the provision in question, by its plain language, attempted to reach all federal grants. The rest of the executive order was broader still, the court noted, addressing all federal funding. And if there was any doubt about the scope of the executive order, the court observed, the President and Attorney General “erased it with their public comments.” The court noted that the President has called the order “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded, the court noted.

The court said that the Constitution vests spending powers in Congress, not the President, so the executive order “cannot constitutionally place new conditions on federal funds.” Further, the court noted, the Tenth Amendment “requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive.” Federal funding that bears no meaningful relationship to immigration enforcement “cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves,” the court said. Because the executive order violates the separation of powers doctrine and deprives the counties of their Tenth and Fifth Amendment rights, the court granted the counties’ motions for summary judgment and permanently enjoined the defunding and enforcement provisions of the executive order.

Despite the injunction, and following the acquittal verdict in the Stienle case, anti-immigrant rhetoric equating immigrants with criminals continues to intensify as the Administration ramps up its deportation force, doubles down on cruel deportation tactics, and attacks policies put in place by local police and sheriffs to keep their communities safe. The hateful rhetoric must stop. Entangling local law enforcement with deportations undermines trust and safety.  Local law enforcement has repeatedly come out in favor of so-called “sanctuary” policies, not the least because honoring detainers issued by ICE has led to counties being liable when courts have found that a person’s constitutional rights under the Fourth Amendment were abridged when someone was detained without a judicial warrant or court order. When immigrants come to view their local police and sheriffs with distrust because they fear deportation, it encourages criminals to prey upon victims and witnesses alike. Victims of domestic and other violence choose to suffer in silence rather than seek assistance; key witnesses of crime refuse to come forward out of fear that they themselves will be treated as a criminal; and a climate of fear grips entire neighborhoods. Regardless of the passions generated in the Steinle case, cities and localities need to make pragmatic, rational choices about how to best make and keep their city/locality safe. The decision to disentangle local policing from immigration enforcement promotes community trust and the federal government should not interfere with this local policy making. Indeed, such a disentanglement will be more effective in preventing crime.

America has been a nation of immigrants since its inception over 240 years ago, while it has been just over a year since ugly anti-immigration sentiment has been unleashed through Trump’s rise. Over these two centuries, there has also been a recognition that those who are accused of crimes face a fair trial in the United States regardless of where they come from or their immigration status. It is hoped that these bedrock principles grounded in the nation’s history and character will withstand the xenophobic stirrings of the moment.

Cyrus Mehta

Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked

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The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3).  A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now  recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017.  We previously advocated for this outcome here, here and here, and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. Some I-485 applications have been pending for more than a decade, such as those in the class of July 2007, after the employment second (EB-2) and third preferences (EB-3) for India became current and then retrogressed. Even in the Trump era, I-485 applications  filed are likely to remain pending for over 180 days as the beneficiary will be scheduled for personal interviews at the local USCIS office.   This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer. INA 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice of the USCIS’s intent to revoke?

Matter of V-S-G-Inc. recognizes that a beneficiary who has ported is within the statute’s zone of interests following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects.    Courts have agreed that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. Beneficiaries who have ported to new employers fall within INA 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson and Kurupati v. USCIS.  The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-485 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

The AAO in Matter of V-S-G- while endorsing the holdings in Mantena v. Johnson and Kurupati v. USCIS, disagreed with the Seventh Circuit’s holding in in Musunuru v. Lynch. In Musunuru, while recognizing the beneficiary of an approved I-140 petition as an affected party,   adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

We so hold because Congress intends for a nonimmigrant worker’s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress’s intention, the new employer must be treated as the de facto petitioner for the old employer’s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.

In a prior blog, I had argued against the holding in Musumuru that there is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

I am glad that the AAO in Matter of V-S-G- agrees with this position. The AAO correctly noted, “The new employer did not pay for the filing, is not responsible for maintaining the petition, is not liable for the original petitioner’s compliance or malfeasance associated with it, and cannot withdraw the petition if it no longer requires the beneficiary’s services. Nor can the new employer prevent the beneficiary from porting to yet another employer (as happened here).” The fact that the new employer has to sign an I-485J Supplement J does not give it more interests in the original employer’s petition. The new employer would in any event need to provide a letter confirming the new job offer. Form I-485J merely captures the same information that the new employer would provide in a letter relating to the job offer.

While the outcome in Matter of V-S-G- is positive for beneficiaries who have ported and who are entitled to notification, it did not go far enough. Matter of V-S-G- only recognized the beneficiary as an affected party in cases where he or she has exercised portability under INA 204(j). The AAO disagreed with the Sixth Circuit’s holding in Patel v. USCIS, which held that the beneficiary of an I-140 petition even outside the porting context had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b), according to the Sixth Circuit in Patel, makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. While a pending I-485 may bolster the beneficiary’s interest in an I-140, it is not necessary. There exist old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, an even older 1984 case, Gladysz v. Donovan,  provides further basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The final Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Workers rule (“High Skilled Worker Rule”), which took effect on January 17, 2017, did not address notice and standing for I-140 beneficiaries under INA 204(j). Matter of V-S-G- now fills this gap. 8 CFR 205.1(b) and 205.2(b) and (c), which provide that automatic and notice-based revocations go solely to the petitioner, are no longer applicable when beneficiaries have pending I-485 applications under INA 204(j). The USCIS has instructed that revocation notices be sent to both the petitioner and beneficiary. The USCIS, however, does caution that when sending notification, certain non-public information cannot be shared with both parties such as the petitioner’s non-public financial information, including federal tax returns or information about I-140s being filed on behalf of multiple beneficiaries. Under these circumstances, the beneficiary is supposed to get more generalized information. Whether this will be advantageous to the beneficiary who is provided modified information for purposes of rebutting an intention to revoke an I-140 petition remains to be seen. However, it would be a ground for appeal to the beneficiary whose I-140 was denied because he or she did not get sufficient information in order to provide an effective rebuttal. Still, the examples given in the Policy Memorandum under which the USCIS can revoke an approved I-140 are broad and under the following headings: material error in approving the petition; fraud or willful misrepresentation of material fact; lack of a bona fide job offer; adverse new information (from a site visit or adjustment interview; and invalidation of a labor certification. One can see this as an invitation for USCIS examiners to issue more NOIRs of approved I-140 petitions especially under the Trump administration, which has sought to curb or slow down legal immigration by imposing mandatory adjustment interviews and increasing site visits.

Matter of V-S-G and the accompanying policy guidance only deal with notification to beneficiaries who have approved I-140 petitions, which the USCIS seeks to revoke. It does not deal with beneficiaries who are porting off unadjudicated I-140 petitions and concurrently filed pending I-485 applications. 8 CFR 245.25 of the High Skilled Worker Rule clarifies and codifies long standing policies regarding how a beneficiary may port under INA 204(j). With respect to porting off an unadjudicated I-140 petition, 8 CFR 245.25(a)(2)(ii)(B) clearly provides for this by stating that the I-140 must still ultimately be approved by demonstrating that it was approvable at the time of filing and until the I-485 was pending for 180 days. The rule insists that it must still be demonstrated that the original petitioner had the ability to pay the proffered wage at the time of filing the I-140 petition, but the original petitioner need not continue to show its ability to pay after filing and until the beneficiary obtains permanent residency. This makes sense since once the beneficiary has ported, the original petitioning employer should not be required to demonstrate its continued ability to pay the proffered wage after the filing of the I-140 petition and once the 180 days since the filing of the I-485 have passed.

Unfortunately, Matter of V-S-G- and the accompanying guidance fail to instruct USCIS on how to notify beneficiaries when the I-140 has not yet been approved, but the beneficiary has exercised portability under INA 204(j). Pursuant to Matter of V-S-G, the beneficiary has a legitimate interest in an unadjudicated I-140 too, and must be notified through a Request for Evidence (RFE) that is usually only sent to the employer.  Accordingly, beneficiaries who have ported off an unadjudicated I-140 must insist on being notified regarding any RFE that may be sent to the employer and to be given the opportunity to respond to the RFE. If the relationship has not become antagonistic, the original employer may still respond to the RFE, even if the employer does not intend to employ the beneficiary upon acquiring permanent residency, and notify the USCIS that the beneficiary has or may be porting under 204(j) but is seeing to have the I-140 approved pursuant to 8 CFR 245.25(a)(2)(ii)(B). If the original employer has decided to not respond to the RFE, the USCIS must still give the beneficiary an opportunity to respond to the RFE in the same was as it has been instructed to do under Matter of  V-S-G- with regards to an NOIR of an approved I-140 petition.

Beneficiaries have not been provided the same rights as employers in the I-140 petitioning process. Matter of V-S-G- following court decisions now recognize that an AC 21 beneficiary must be given an opportunity to be heard when the approved I-140 petition is in jeopardy. At the same time, the guidance accompanying Matter of V-S-G- could also incentivize USCIS officers to issue more NOIRs of approved I-140 petitions, although such notices would have to be provided to the original petitioner and to the beneficiary. While this is a significant first step, beneficiaries of employer-filed petitions must continue to advance their legitimate right to be heard even in other contexts, such as when the I-140 is still not yet approved or even when there is no pending I-485 application under INA 204(j).

 

Cyrus Mehta

Matter of G- Inc.: Clarifying the Role of the Function Manager Under the L-1 Visa

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By: Cyrus D. Mehta and Sophia Genovese

The Administrative Appeals Office (AAO) recently adopted a decision, Matter of G- Inc., Adopted Decision 2017-05 (AAO Nov. 8, 2017), providing important guidance to U.S. employers who transfer function managers under the L-1 intracompany visa. The L-1 visa allows a U.S. employer to transfer an executive or manager (L-1A) or a worker with specialized knowledge (L-1B) from a foreign subsidiary or affiliate.

As corporate structures are changing from hierarchical to flat in a globally interdependent world, the role of the function manager, who manages a function rather than people, has become increasingly relevant under L-A visa classification. A flat organization has few or no levels of management between management and staff level employees. The flat organization supervises employees less while promoting their increased involvement in the decision-making process. Building upon momentum gained from its decision in Matter of Z-A-, Adopted Decision 2016-02 (AAO Apr. 14, 2016), the AAO in Matter of G- held that:

(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.

(2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.

Under its prior decision in Matter of Z-A-, the AAO held that an L-1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an international organization who perform the day to day administrative and operational duties. This is possible in the internet age where communications can take place online and through Skype rather than face to face in a physical location. The foreign national manager seeking an L-1A visa extension in Matter of Z-A-, was the President and Chief Operating Officer of the U.S. Petitioner whose parent company was in Japan. The USCIS Service Center denied on the ground that only a small number of employees who worked in the U.S. would support the manager and relieve him from performing the duties of the function. The key issue on appeal was whether the Petitioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA § 101(a)(44)(A). The AAO reversed the Service Center’s decision, noting that the Beneficiary would continue to rely on the support of eight staff abroad and two in the U.S. to relieve him of day-to-day operational and administrative activities. The AAO stated that despite the fact that the Beneficiary “may be required to perform some operational or administrative tasks from time to time, the Petitioner established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined staff of 10 employees of the Petitioner and its parent company, located in the United States and Japan, respectively.” Matter of Z-A-, at 7.

In its most recent decision in Matter of G-, the AAO further elaborates upon the contours of the “function manger.” Although Matter of G- was decided within the context of INA § 203(b)(1)(C) (where a U.S. employer can petition to permanently transfer a qualified foreign employee to the United States to work in an executive or managerial capacity), the AAO stated in its decision that the function manager analysis equally applies to L-1A function managers. Matter of G-, at 2, note 6.

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

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

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

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

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

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

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

(emphasis added).

In its decision, the AAO noted that “essential function” is not defined anywhere in the INA. Instead, it relied on the Merriam-Webster Dictionary definitions of “essential” and “function” in proceeding with their analysis, concluding that an essential function must be a core activity of a petitioning organization. Relying on these definition, the AAO first found that the Petitioner must “(1) describe with specificity the activity to be manage, and (2) establish that the function is core to the organization.” Matter of G-, at 3. The AAO further recognized that an organization could have more than one core activity “such as the manufacture or provision of an end product or service, and research and development into other products or services.” Matter of G-, at 3, note 11.

Once the Petitioner can establish this essential function, it must then prove that the Beneficiary meets all of the four criteria of “managerial capacity” under INA § 101(a)(44)(A). The AAO held that in addition to defining with particularity the activity to be managed and establishing that it is a core function of the organization, the Petitioner must also show that the Beneficiary will primarily manage (and not perform) the function, that the Beneficiary will hold a senior level at the organization or with respect to the function managed, and that the Beneficiary will exercise discretion with the function’s daily operations. Matter of G-, at 4.

In applying their new function manager analysis to the case at bar, the AAO found that the FP&A Director was clearly a function manager under INA §101(a)(44)(A). First, it found that “financial planning and analysis” qualified as a function within the organization as it was clearly defined with specificity and indicated a clear goal of generating data to assess the company’s revenue. Second, the AAO found that the FP&A function was essential to the company, where the Beneficiary’s work would be relied upon by the company’s executives and board of directors in making strategic decisions in mergers and acquisitions. Third, the AAO found that the Beneficiary would primarily manage the function where he would “develop and direct revenue forecasts and analysis for the worldwide organization, lead mergers and acquisitions, and oversee strategic pricing analysis.” Matter of G-, at 5. The AAO continues that the Beneficiary will be supported by six direct and three indirect reports who will “perform the routine duties associated with the FP&A function.” Id. Critically, the AAO finds that even though the Beneficiary directly supervises some of his subordinates, he still primarily manages the function. Fourthly, the AAO found that the Beneficiary will act at a senior level within the organization and with respect to the function, where he reported only to the CFO and CEO and worked closely with other senior executives and managers. Finally, the AAO found that the Petitioner clearly established that the Beneficiary will have discretionary authority over day-to-day operations where the Beneficiary will establish policies, goals, and oversee mergers and acquisitions.

Matter of G- helps to further define the contours of the function manager, and can be used as a guide to U.S. petitioners seeking to establish that the foreign worker meets the criteria under INA § 101(a)(44)(A). While Matter of G- involved a function manager, the AAO’s interpretation of what constitutes a function within an organization could arguably also be deployed to executives under INA 101(a)(44)(B) who can qualify for an L-1A visa by directing a “major component or function of the organization.”  The Petitioner in the instant matter was a large multinational corporation with over 8000 employees worldwide. The USCIS has historically been less receptive to function manager claims of smaller corporations. It may be more challenging for a smaller entity to establish that a function is a clearly defined activity and is core to the organization as well as to demonstrate that the manager is performing at a senior level. Still, petitioners should not fear making the argument that function managers of smaller corporations also meet the criteria. In Brazil Quality Stones, Inc. v. Chertoff, 531 F.3d 1063 (9th Cir. 2008), the Ninth Circuit Court of Appeals found that although size is a relevant factor in assessing whether a company’s operations are substantial enough to support a manager, “an organization’s small size, standing alone, cannot support a finding that its employee is not acting in a managerial capacity.” See also INA § 101(a)(44)(C) (“[i]f staffing levels are used as a factor in determining whether an individual is acting in a managerial or executive capacity, the Attorney General shall take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function.”). Notwithstanding this acknowledgement, the Ninth Circuit in Brazil Quality Stones affirmed the USCIS’s denial of the L-1A petition by agreeing that the petitioner did not meet its burden in primarily managing the essential function rather than performing the day to day duties, and the small size of the entity probably undermined the manager’s ability to meet this burden. Subsequent to Brazil Quality Stones, though, the AAO issued Matter of Z-A- as an adopted decision, which has also been acknowledged in Matter of G-. It is now possible to demonstrate that the function manager is being supported by personnel in the foreign organization who perform the duties of the function, and this could be particularly helpful in a small organization with few staff in the U.S. The AAO took pains to note that INA 101(a)(44)(A)(iii) is worded in the disjunctive, requiring a function manager to occupy “a senior level within the organizational hierarchy or with respect to the function managed.” Matter of G-, at 6, note 15.  In a small organization, the function manager may establish seniority with respect to the function managed rather than within the organizational hierarchy. So long as petitioners clearly define the function, establish that the function is essential to the organization, explain how the beneficiary will primarily manage this function at either a senior level at the organization or with respect to the function managed, and that the beneficiary will act with wide discretion, the L-1A petition could stand a chance of being approved under Matter of G-.

Despite the economic benefits that accrue in fostering global corporate activities, the L-1 visa has been heavily criticized over the past few years, with opponents arguing that it threatens domestic employment and “floods the U.S with cheap foreign workers.” The Trump Administration has taken aim at the L-1 visa and has begun to publicly release data about companies who utilize the L-1 visa, increase site visits to companies that employ foreign workers, and has rescinded guidance instructing USCIS officers to give deference to previously approved petitions upon renewal.  Under President Trump’s Buy American and Hire American Executive Order, there is an emphasis on hiring American workers over foreign workers and for corporations to have their operations in America. But the reality is quite the opposite.  U.S. businesses can thrive, compete, prosper, create new jobs and benefit the American consumer through international operations, made that much easier with rapidly evolving internet technology and innovative organizational structures. It is thus refreshing that the AAO has recognized this reality by adopting Matter of G- and Matter of Z-A-. An adopted decision establishes policy guidance that applies to and binds all USCIS employees. USCIS personnel are directed to follow the reasoning in this decision in similar cases.