Cora-Ann Pestaina

The Government’s “Nasty” Treatment Of Expert Opinions In Support Of H-1B Visa Petitions

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USCIS’ current ferocious attack on H-1B petitions has been discussed here, here and here. Backed by the Trump administration, USCIS has openly declared war on H-1Bs. What is most frustrating, in my opinion, is not only the fact that there appears to be a concerted effort to find some way to reject each and every logical, rational, legal argument presented in response to one of the USCIS’ Requests for Evidence (RFE) but that it appears that no argument is too baseless for USCIS to present when issuing a denial of an H-1B petition. Case in point is USCIS’ rejections of expert opinions presented to bolster an employer’s argument that an H-1B position is classifiable as a specialty occupation.

As a reminder, in order to hire a foreign worker in a specialty occupation under the H-1B category, the employer must show in its petition that the proffered position meets at least one of the following criteria:

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

8 CFR 214.2(h)(4)(iii)(A)

After USCIS issued its first wave of attack on H-1B petitions filed and selected under the FY 2018 H-1B visa lottery claiming that any position where the H-1B worker would be paid an entry-level (Level 1) wage did not appear to be a specialty occupation, previously blogged about here, this groundless claim was met with mass pushback. Without a legal leg to stand on, USCIS has largely circumvented the issue of the wage levels (although still denying some petitions on that basis) by finding ways to deny the H-1B petition on a claim that the proffered H-1B position simply fails to qualify under any of the specialty occupation prongs listed in 8 CFR 214.2(h)(4)(iii)(A). In doing so, USCIS has been rejecting expert opinion letters written by qualified experts expounding on how and why the proffered position qualifies as a specialty occupation. The arguments presented in USCIS’ rejection of these expert opinions are quite maddening.

In an effort to demonstrate that a baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position under prongs 1, 2 and/or 4 of 8 CFR 214.2(h)(4)(iii)(A), H-1B employers quite frequently solicit the opinion of an expert. This expert is usually a college professor with a rich background in the specific specialty area, who is well-experienced in reviewing and evaluating academic and experience qualifications; and who has had an opportunity to observe and compare the abilities of numerous talented students in the specialty fields, and to analyze the ways in which the educational backgrounds of these students have been applied in the professional industry. Typically, this expert has also offered opinions and analyses of the academic and professional credentials of candidates in connection with university admissions and employment positions. The expert is usually also someone who has been engaged in the preparation of equivalency evaluations and position evaluations, primarily for use with connection to immigration-related procedures, for many years, and has prepared hundreds, sometimes over 1,000 such evaluations. Accordingly, the expert is typically someone well positioned to opine on whether or not a proffered position, in his/her particular specialty field, is a specialty occupation. Pre-Trump, USCIS gave such expert opinions the respect they deserved.

However, USCIS now seeks to discredit these opinions and what’s most frustrating are the rejections reasons presented. Here are a few that this author has had the opportunity to review:

  • The professor did not base his opinion on any objective evidence but instead restated the proffered position as provided by the employer;
  • The professor’s opinion is not supported by citations of research material;
  • The professor did not rely on a specific study of the employer’s organization. There is no evidence that the professor knew more about the proffered position than what the employer provided. There is no indication that the professor visited the employer’s business, observed its employees, interviewed them about the nature of their work, or documented the knowledge that they apply to their jobs.
  • The professor’s opinion does not relate the professor’s conclusions to specific, concrete aspects of the employer’s business operations so as to demonstrate a sound factual basis for the professor’s conclusions about the educational requirements for the proffered position.
  • Given the professor’s limited review of the duties of the position, based largely on the job descriptions furnished by you, USCIS gives less weight to the professor’s opinion.
  • It was held in Matter of Caron International, Inc. 19 I&N Dec. 791 (Comm 1988) that legacy INS, now USCIS, may in its discretion use advisory opinion statements from universities, professional organizations, or other sources submitted in evidence as expert testimony. However, where an opinion is not in accord with other information, or is in any way questionable, USCIS is not required to accept or may give less weight to that evidence.

With some of the reasons for rejection of an expert opinion, USCIS doesn’t make it clear whether they’re expressing doubt as to whether the duties of the proffered position will actually be performed as stated, i.e. whether they think the expert is relying on facts they find not credible, or whether they’re challenging the professor’s overall credibility as an expert. In any event, whatever standard is presently being used to reject the expert opinions, it is not the preponderance of the evidence standard.

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

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

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

Under the preponderance of the evidence standard, the adjudicating USCIS officer is supposed to approve the petition as long as it is “more likely than not” that their claim is true. USCIS’ recent denials rejecting expert opinions show that this standard is surely not being applied. As an expert, a professor may review the job duties of the proffered position and formulate his opinion based on his expert knowledge of the specialty field, which knowledge would have been explained at length in his opinion letter. The expert need not conduct a specific study of an employer’s organization. He need not visit an employer’s business or observe its employees. His expertise is typically set forth in his opinion letter and he need not provide the USCIS with copies or citations of research material.

Under the Federal Rules of Evidence, which are not binding on H-1B adjudications but may be a useful analogy, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Federal Rules of Evidence (FRE) Rule 702, https://www.law.cornell.edu/rules/fre/rule_702. Moreover, an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. FRE Rule 703 https://www.law.cornell.edu/rules/fre/rule_703. Thus, even under the Federal Rules of Evidence, first-hand knowledge is not necessarily required even if the expert were testifying in federal court!  An expert can legitimately have an opinion about “facts or data in the case that the expert has been made aware of”, (such as the job duties of a proffered H-1B petition) not merely those which he has “personally observed”.  Immigration proceedings don’t follow the Federal Rules of Evidence, but rather the rules of evidence ought to be more relaxed, not stricter!

So why is USCIS suddenly stretching to find fault with these expert opinions? The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the Administrative Appeals Office (AAO) held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue. In that case, the AAO specifically pointed out that the director did not question the credentials of the experts, take issue with their knowledge or otherwise find reason to doubt the veracity of their testimony.  But when it comes to the denials of H-1B petitions, it is all too easy to claim doubt, to take issue with the expert’s knowledge and to coolly dismiss the expert opinion.

So are expert opinions still worth it? I would argue that they are. First, H-1B adjudications are still haphazard. There is always a chance that the opinion may be accepted. With the submission of any expert opinion it might be beneficial to include an argument on why the opinion ought to be accepted reminding USCIS of the applicable standard. While in most cases it may not benefit the H-1B employer or beneficiary in the short run, H-1B practitioners must continue to fight back. We cannot go gentle into that good night. A rejection of the expert opinion would lead to a conclusion that USCIS is setting a standard for expert opinions that is even higher than the Federal Rules of Evidence and that would contravene the applicable preponderance of the evidence standard. These denials need to be appealed to the AAO. If the AAO denies, the denial can also be challenged in federal court. In Fred 26 Importers, Inc. v. DHS, 445 F.Supp.2d 1174, 1180-81 (C.D. Cal. 2006) the federal court reversed the Administrative Appeals Office (AAO) where it failed to address expert affidavits and other evidence that a human resource manager position was sufficiently complex and rejected the H-1B because it was a small company.  The court held that the AAO abused its discretion when it did not take into account the expert opinion evidence presented by the petitioner to prove that the position required a broad range of skills acquired through a four-year university degree. It is only through continued pushback that these erroneous denials will come to an end.

Cyrus Mehta

Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention

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By Cyrus D. Mehta and Sophia Genovese-Halvorson

On November 7, 2017, voters in New York will get an opportunity to decide whether to hold a Constitutional Convention in order to improve New York’s Constitution. The next opportunity to engage in this unique democratic experiment will arise in 2037.

The latest polls have shown that large numbers of voters want changes in New York’s Constitution that the legislature has failed to enact – e.g. an entitlement to healthy air and clean water, strict limits on the outside employment of legislators, independent ethics enforcement, an end to gerrymandering, making it easier to register and vote, closing campaign finance loopholes, term limits, and the expansion of immigrants’ rights and protections. At the same time, a poll is showing that New Yorkers oppose calling for the Convention.  Many reasonable people oppose voting for a New York Constitutional Convention in the age of Trump, dark money and Brexit. But when we run away from democracy itself out of fear, we will never be able to improve the rights of New Yorkers even beyond the US Constitution, including immigrants.  We have this opportunity only once every 20 years.

Some say the path forward is to replace New York’s elected representatives with others who will make the needed reforms.  However, as the late Governor Mario Cuomo observed, our elected representatives live in a cocoon of unaccountability and incumbent protection.   The system is designed to secure their reelection.  That system needs to be changed, and it will take an outside force to do it. Short of calling a Constitutional Convention, the only way to amend the Constitution, or to pass any law, is with the approval of the legislature. But as just explained, elected officials are in favor of maintaining the status quo.

There is also an understandable, but misguided, fear that certain protections, such as the labor bill of rights, the duty of the legislature to care for the needy, the right to a free public education, and the preservation of the Adirondack Park will be at stake. However, these are indeed rights and protections that were created through the Constitutional Convention process. The New York Times, while unfortunately coming out against the Convention, has called these concerns “overwrought.” The history of the Convention has not been one of stripping rights; rather, it has a rich history of creating radical advancements in human rights for all New Yorkers. The 1938 Constitutional Convention affirmed the duty of the state to aid the needy, promote public health, educate its children, and care for the physically and mentally handicapped. It is not as if a vote in favor of a Constitutional Convention would give a carte blanche to delegates to adopt any reforms of their choosing. The last state Constitutional Convention was in 1967, where voters ultimately rejected the proposed changes created by the Convention Committee. Then there is the claim that reform minded delegates won’t get elected and that the Convention will be “hack filled.”  The strikes us as having too little trust in voters who having called for a Convention to effect reform would supposedly turn around and elect people opposed to reform.  Voters in a progressive state like New York are much smarter than how they are perceived by opponents to the Convention.

The 2017 Convention Vote will again provide New Yorkers with the opportunity to continue the tradition of expanding rights in the New York Constitution, including the expansion of rights and protections afforded to immigrants. Albany had not been able to bring about any meaningful reforms for immigrants. Our “gerrymandered” elected representatives are so entrenched that only a criminal conviction, rather than votes, can dislodge them.  If we can broaden equal rights for all New York residents, including immigrants regardless of status, we will not need to rely on Albany that is in a perpetual logjam and stalemate. For example, New York’s Department of Motor Vehicles will be compelled to issue drivers licenses to all New York residents, regardless of immigration status, based on the broader equal protection clause in the New York Constitution that can be developed through a Constitution Convention.

Cyrus Mehta’s Op-Ed in The New York Daily News forcefully and eloquently advocates for expanded equal rights for all New York residents, including immigrants. It is reproduced below:

“The N.Y. constitutional convention immigrants need”

As the federal government threatens undocumented immigrants, New Yorkers have an opportunity to provide vital protections to those immigrants living in the state. On Election Day, voters can choose to convene a constitutional convention where the rights of those immigrants could be strengthened in ways that the federal government cannot erase.

It’s an opportunity we must not miss.

New York has always been a magnet for immigrants. The Statue of Liberty is here — not in Washington, D.C. — for a reason. Yet the state Constitution has never addressed the discrimination immigrants face.

It addresses only discrimination based on race and religion, not on country of origin or immigration status. Notably, it does not even prevent discrimination based on gender.

That’s a misfit for the character of our state. In 2015, more than 4.5 million foreign-born individuals constituted 22.9% of New York’s population. Only California has a higher count.

More than 3 million foreign-born immigrants live in New York City, more than in any other city in the world. They represent over 37% of the city’s residents.

Among these immigrants are an estimated 817,000 in New York State, including 575,000 in New York City, without valid federal authorization. These undocumented immigrants — who pay taxes, otherwise observe our laws, and enrich our communities — contributed $40 billion to New York’s economy and $1.1 billion to state and local taxes in 2015.

While the equal protection clause of the U.S. Constitution covers all persons within the jurisdiction of any state, the U.S. Supreme Court has applied a relaxed standard of review to discrimination against undocumented immigrants. As a result, laws depriving those immigrants of basic civil rights have been upheld.

An amendment to the state Constitution could prohibit such discrimination — and finally reflect the values of New York, where over the decades governors and mayors, Republican and Democratic alike, have consistently defended the rights of undocumented residents.

While it’s federal laws that mandate that undocumented immigrants be removed — subject to the executive branch’s priorities, which are at least in theory supposed to be focused on threats to public safety — the likelihood is uncertain. Even if the federal government initiates removal, proceedings can take years.

More importantly, immigration status is often uncertain. Immigrants can gain authorization to remain by falling in love with and marrying an American. More than 800,000 young undocumented people who came into the United States before the age of 16 received authorization to remain under Deferred Action for Childhood Arrivals — an Obama-era program.

President Trump has canceled DACA, but suggested in a tweet that “Congress can legalize DACA,” and added that, if not, he “will revisit the issue.”

Basic rights should not hinge on such vagaries.

People are undocumented because the federal immigration system, desperately in need of sensible reform, has not provided meaningful pathways to legal status for many who have family or jobs in the United States. As New York will continue to be home to undocumented immigrants, it is only fair that the state Constitution provide equal civil rights to all, regardless of immigration status.

Once such equal rights are established, they will preclude discrimination against New York residents based on their immigration status.

For example, New York would have to grant driver’s licenses to undocumented immigrants. That would help ensure that our roads are safe and provide a boon to those who need to drive in order to work or take their children to school.

Such an expanded protection against discrimination in our state Constitution could not be erased by the federal government.

In specific areas, federal law may preempt the states — but, under our federal system, state law governs most civil rights, such as the right to contract, to an education, to buy a home, to drive and more.

At a time when the federal government seeks to force state and local law enforcement to punish undocumented immigrants in ways that go beyond valid federal preemption and financial incentives, asserting New York’s sovereign lawmaking and enforcement rights is vital.

The first step in getting from here to there is voting yes on a constitutional convention.

(This blog represents the personal views of the authors and not necessarily those of any organizations that they may be a part of)

Cyrus Mehta

The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests

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The Trump administration is deriving great pleasure in causing pain to people who wish to lawfully come to the United States and remain here lawfully. It has caused H-1B carnage as more H-1B visa petitions are being denied than ever before on legally baseless grounds.

Continuing to rub salt in the wound, the USCIS issued a Policy Memorandum dated October 23, 2017 that rescinds its prior guidance of deferring to prior approvals when adjudicating extension requests involving the same parties and underlying facts as the initial determination. Despite the deference policy, there were broad exceptions under which it would not apply if it was 1) determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there was new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

The new Policy Memorandum in rescinding the prior policy instructs adjudicators with respect to extension requests to thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The Policy Memorandum further reminds that the burden of proof in establishing eligibility is, at all times, on the petitioner under INA § 291 and criticizes the former deference policy for “appear[ing] to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.” The Policy Memorandum also vaguely notes that “[the prior policy] was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

The Policy Memorandum also rescinds a similar deference policy that was set forth in the USCIS L-1B Policy Guidance of 2015 with respect to L-1B extensions.  Under that policy too, adjudicators were reminded to defer to prior L-1B adjudications, unless the exceptions applied. This aspect of the L-1B Guidance is no longer applicable. The Policy Memorandum does not affect the deference given to prior favorable adjudications in the EB-5 program, as described in the EB-5 Policy Memorandum of 2013.

On the one hand, the Policy Memorandum rescinding deference does not change much as the USCIS was in any event not giving deference to prior approvals. The exceptions in deferring to prior approvals were broad. It was routine for an adjudicator to invoke that there may have been a material error in approving the prior petition, or there was a substantial change in circumstances, or that there was new material information that substantially impacted eligibility. It has always been the practice of most petitioners filing extension petitions, and the attorneys who represent them, to not take for granted that the USCIS adjudicator would give deference to the prior approval. Therefore, it has always been a best practice to provide substantial supporting information and evidence at the time of filing an extension as if it was being filed for the first time.

Still, on the other hand, the Policy Memorandum will incentivize adjudicators to issue unnecessary Requests for Evidence (RFE) that will not just cause uncertainty to petitioning employers but will cause havoc in the lives of foreign nationals. Many of these RFEs will likely be preludes to denials of extension requests on behalf of foreign nationals who have been living in the United States for many years, and were used to getting approvals on extension requests. The USCIS has been reading out entire occupations from the H-1B law that would have otherwise been easily approvable. The USCIS relies on the description of the occupation in the Occupational Outlook Handbook (OOH) to justify its denials. For example, with respect to Computer Systems Analysts, the OOH states that a “bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.” The USCIS has often used this as a justification to deny an H-1B petition filed on behalf of a Computer Systems Analyst, and now that the deference policy no longer exits, will be used even if the USCIS had previously approved the H-1B petition on behalf of the Computer Systems Analyst.

There are foreign nationals who have been patiently waiting for permanent residency for several years due to backlogs in the employment second and third preferences. They may be applying for yet another H-1B extension beyond the sixth year (and in many instances, this may either be their 10th or 12th year in H-1B status), and they risk the prospect of the USCIS suddenly pulling out the rug from under their feet. In prior years, many entrepreneurs received H-1B or O-1A/1B approvals through their own startups based on guidance in what used to be a very informative Entrepreneur Pathways Portal.  To this author’s dismay, that portal has been replaced with  basic plain vanilla information about different visas. Gone out of existence is the thoughtful guidance for entrepreneurs on how they can legitimately use H-1B, L-1 or O visas. Since an adjudicator need not pay deference to the earlier approval, and since the guidance on entrepreneurs no longer exists, extensions requests of a startup on behalf of its founder may also be subject to additional scrutiny and thus greater peril.

It is no coincidence that the Policy Memorandum was issued shortly after Francis Cissna was confirmed as USCIS Director on October 8, 2017. Although Mr. Cissna is highly experienced, having worked in various capacities within the DHS from 2005 until 2017, he was also detailed by the DHS to the Senate Judiciary Committee, specifically to the office of Chairman Chuck Grassley, R-Iowa, where he spent two years, from 2015 to 2017. It was during this time that Grassley wrote critical letters to the agency on immigration issues, many of which were authored by Mr. Cissna. Mr. Cissna also assisted the Trump presidential campaign on immigration issues. Trump’s stance against both legal and undocumented immigration as taking away American jobs is well known. This is now being translated into action on behalf of the president by people like Mr. Cissna and Steve Miller. The anti-immigrant movement, like the evil Galactic Empire in the Star War movie series, has struck back hard. The Policy Memorandum rescinding deference resembles one of those devastating attacks against good people ordered by Darth Vader on behalf of the Empire.

The prior deference policy was good policy as it was in harmony with regulations that clearly instruct that in extension H-1B, O-1, L-1 and P petitions, petitioners need not submit the same supporting evidence as they did when filing the new petition.

8 CFR § 214.2(h)(14), with respect to H-1B extensions, provides:

(14) Extension of visa petition validity. The petitioner shall file a request for a petition extension on Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. Supporting evidence is not required unless requested by the director. A request for a petition extension may be filed only if the validity of the original petition has not expired.

The same language indicating that supporting evidence is not required exists with respect to L visa extensions at 8 CFR 214.2(l)(14)(i); O extensions at 8 CFR 214.2(o)(11) and P extensions at 8 CFR 214.2(p)(13).

The Policy Memorandum acknowledges the existence of these regulations, and tries to clumsily skirt around them by instructing adjudicators as follows:

However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.

There is clearly tension between the Policy Memorandum and the regulations that do not require supporting evidence when filing extension petitions through the same employer. If a petitioner does not need to file any initial evidence, and the adjudicator is giving no deference to prior adjudications, how will adjudicators know what to do? Will they simply request an RFE in every case? Is that really consistent with a regulation explicitly stating that you do not need to file any evidence unless requested?  This could provide a legal basis to challenge the Policy Memorandum in federal court as violating the regulations that explicitly do not require supporting evidence. The regulations have more legal force than the Policy Memorandum, which appears to be rescinding the regulations. If petitioners who file routine extensions are faced with a blizzard of RFEs that ultimately lead to denials, they should challenge the Policy Memorandum in federal court.

The Policy Memorandum also states that it is consistent with the “agency’s current priorities and also advances policies that protect the interests of U.S. workers.” These priorities did not exist when the initial petition was approved. Like all the other restrictive polices implemented under the Trump administration, the rescission of the deference policy is to further Trump’s Buy American Hire American (BAHA) Executive Order. The BAHA Executive Order was also not in existence when Congress created the H-B, L, E, O or P visa provisions in the Immigration and Nationality Act. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.).  There is also no indication in the plain text of INA 101(a)(15)(L) that the purpose of the L visa  was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Even with respect to H-1B visas, Congress specifically required employers to make attestations with relating to wages with the Department of Labor, but they were not required to conduct recruitment of US workers unless they were H-1B dependent employers who did not have exempt workers. Therefore, if Congress desired the same purpose as enshrined in the BAHA Executive Order for the L, the H-1B (at least for non-dependent employers who do not have exempt employees), O or P visa, as it did for the H-2B visa, it would have said so. It is inconsistent not just with the regulations, but with the provisions in the INA to rescind deference because the USCIS wishes to adjudicate extension petitions consistent with BAHA.

This provides a further basis to challenge the Policy Memorandum in federal court, in addition to contradicting the above stated regulations, if it leads to denials of extension requests that were previously readily approved. The new Policy Memorandum appears to insist on deference to BAHA over a prior approval under the INA, which stems from Trump’s America First campaign slogan. BAHA deserves no deference as it is nativism in another name and has also been linked to Anti-Semitism in America’s not too distant past. Adjudicators must faithfully implement the plain meaning of the provisions in the INA without regard to Trump’s America First doctrine, which views immigrants as job stealers rather than recognizes their amazing contributions to the US. Immigration lawyers, like the Jedi Knights who ultimately prevail over Darth Vader and his evil empire, must be prepared to challenge adverse decisions stemming from the Policy Memorandum in order to restore fairness and balance in our immigration system.

Cyrus Mehta

Stopping H-1B Carnage

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In his inaugural address, President Trump pledged to end what he referred to as “American carnage,” depicting the United States bleakly—as a “land of abandoned factories, economic angst, rising crime”—while pledging “a new era in American politics.”

To reverse what Trump sees as American carnage, his administration has unleashed carnage on the H-1B visa program.  The H-1B visa has become the visible symbol of an immigration program that is thought to no longer protect American jobs and favors the foreign worker. Whether this is factually true is beside the point – it is good for optics and in furtherance of Trump’s campaign slogan of America First.   It does not matter that H-1B visas help American firms remain globally competitive, or that foreign workers complement the US workforce rather than replace them, resulting in greater overall efficiency, productivity and jobs. The H-1B visa is the low hanging fruit that the administration uses for target practice by shooting out a Request for Evidence (RFE), which is often a prelude to the denial.

Consistent with his view of American First, on April 18, 2017, President Trump signed the “Buy American and Hire American” Executive Order No. 13788. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

Although the administration has yet to influence any legislation in Congress or change rules, the impact of the EO has hit the H-1B visa program the hardest. It has been seen in the increased number of Requests for Evidence (RFEs) challenging the paying of Level 1 wages, even though employers have legitimately offered positions to entry-level workers under the H-1B visa program. Despite the wage challenges, a well-crafted response can overcome the suspicion that an entry-level 1 wage cannot be sustained under the H-1B visa. Anecdotal evidence suggests that the USCIS is approving cases after a level 1 wage challenge, although at the same time the USCIS challenges  whether the occupation qualifies for H-1B classification. Therefore, winning the level 1 wage challenge may be a pyrrhic victory if the USCIS reads out the occupation from the H-1B law. It is necessary to not just overcome the level 1 wage challenge, but also the challenge as to whether the occupation in question qualifies for H-1B visa classification.

At first, the Trump administration focused its attack on programmers. On  March 31, 2017, on the eve of the FY 2018 H-1B Cap filing season, the USCIS issued a policy memorandum stating that computer programmer positions are not always “specialty occupations” that would render the occupation eligible under the H-1B visa. This memo rescinded an earlier memo of the Nebraska Service Center from 2000, which acknowledged that computer programming occupations were specialty occupations for H-1B purposes. The new guidance references the relevant part on computer programmers in the DOL’s Occupational Outlook Handbook (OOH) that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questions whether a computer programmer position that is offered an entry-level wage could qualify for an H-1B specialty occupation because, as the OOH suggests, an associate’s degree is sufficient to enter into the field.

It has now become evident that USCIS is not just challenging programmers, but relying on the OOH to attack other computer occupations, especially at the California Service Center. It does not matter whether the employer is paying a level 1 wage or higher.  For example, when challenging a Computer Systems Analyst, the USCIS uses the OOH as a basis to issue the RFE and then the denial. USCIS recognizes, in many unpublished AAO decisions, “OOH as an authoritative source on the duties and educational requirements of the wide variety of occupations that it addresses.” When justifying its challenge to an occupation, the USCIS cites the section in the OOH relating to education and training. For example, with respect to Computer Systems Analysts, it reproduces the following extract from the OOH (often underlining the parts USCIS thinks are relevant to support the decision):

A bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.

Education

Most computer systems analysts have a bachelor’s degree in a computer-related field. Because computer systems analysts are also heavily involved in the business side of a company, it may be helpful to take business courses or major in management information systems (MIS).

Some employers prefer applicants who have a Master of Business Administration (MBA) with a concentration in information systems. For more technically complex jobs, a master’s degree in computer science may be more appropriate.

Although many analysts have technical degrees, such a degree is not always a requirement. Many systems analysts have liberal arts degrees and have gained programming or technical expertise elsewhere.

Some analysts have an associate’s degree and experience in a related occupation.

Many systems analysts continue to take classes throughout their careers so that they can learn about new and innovative technologies and keep their skills competitive. Technological advances come so rapidly in the computer field that continual study is necessary to remain competitive.

Systems analysts must also understand the business field they are working in. For example, a hospital may want an analyst with a background or coursework in health management. An analyst working for a bank may need to understand finance.

After citing the OOH section, the USCIS typically asserts that although a bachelor’s degree is often sufficient for computer systems analyst position, the OOH does not specify a specific educational background required for this occupation. USCIS then goes on to conclude that as the requirements appear to vary by employer as to what course of study might be appropriate or preferred, a Computer Systems Analyst cannot qualify for the H-1B visa.

A decision based on the OOH ought to be challenged. It is not appropriate to treat the OOH as the gospel truth, without regard to the evidence that was submitted by the petitioning employer, and to twist the meaning of the words in order to justify a denial.

The regulations define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.”  8 CFR § 214.2(h)(4)(ii).  The regulations go onto provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation (and if the USCIS can underline what it believes is relevant, so will this author!):

  • A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.  See 8 CFR §214.2(h)(4)(iii)(A).

It is clear from the plain meaning of these regulations that there is no requirement that a bachelor’s degree is always a requirement. Nowhere in the regulation does it require that a bachelor’s degree must “always” be a minimum requirement.  In fact, if the OOH uses terms such as “most” or “typically” or “common”, that should meet the requirement of the regulations.

USCIS also selectively cites portions from the OOH, and conveniently neglects to cite this concluding important paragraph in the education and training part of Computer Systems Analysts:

Systems analysts must understand the business field they are working in. For example, a hospital may want an analyst with a thorough understanding of health plans and programs such as Medicare and Medicaid, and an analyst working for a bank may need to understand finance. Having knowledge of their industry helps systems analysts communicate with managers to determine the role of the information technology (IT) systems in an organization.

The employer may rely on this section in the OOH to demonstrate that the computer professional is working in the niche business field, which could be health care or computer security. Therefore, the systems analyst would also need to have a thorough understanding of the business field, such as finance, besides being able to perform the generic duties of a systems analyst. By emphasizing the need for the computer systems analyst to be performing in a niche business area, the employer may have more of a legal justification for requiring a specialized degree in the field. When relying on prong 4 under 8 CFR §214.2(h)(4)(iii)(A), it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex. It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such an opinion if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

The AAO in an unpublished decision in 2006 reversed a denial of an H-1B petition that was filed by an action film entertainment company on behalf of a foreign national who would be employed as a Film and Video Director. Although this is not a precedential decision, it can be used as a template to respond to a challenge when the USCIS relies on the OOH to deny that a specialty occupation is classifiable under the H-1B visa. In reversing the denial of the H-1B petition by the California Service Center, the AAO listed in great detail the foreign national’s proposed duties as Film and Video Director. The duties included interpreting the screenplay, communicating with actors and camera personnel, development of script with the producer, selecting locations, work out all camera angles, directing the actors and directing performance of all on-camera talent, to name a few.

The AAO concluded that despite the fact that the USCIS made reference to the OOH not mentioning that a baccalaureate education in a specific specialty is normally the minimum for entry into such positions, this position was sufficiently complex to require a bachelor’s degree. The AAO, therefore, relied on the 4th prong of the regulation, 8 C.F.R. § 214.2(h)(4)(iii)(A)(4), analyzing that the position was so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. The relevant extract from the AAO’s decision is worth noting:

Much of the work performed by the petitioner involves the transformation of live-action (photographed “reality”) into special effect animated digital media. That process utilizes “motion-capture,” a process involving computerized capturing and digitizing of live-action for the purpose of integrating this information into video game development and Internet applications. Motion- capture is an area of expertise that requires the use of specialized equipment and personnel. Further, the beneficiary is involved in virtually all areas of project production and development, including the editing of the final project. Under these circumstances, the petitioner has established the criterion at 8 C.F.R. § 214.2(h)(4)(iii)(A)(4)

The AAO’s rejection of the official job description in the OOH is salutary, and petitioners should continue to convince the USCIS, and the AAO if there an appeal, that completely relying on the OOH is inappropriate, and it is also necessary to consider the complexity of the duties described by the petitioner in the H-1B petition. The AAO decision is striking because the OOH entry for the occupation of film and video director was more equivocal than computer systems analyst with respect to employers requiring a bachelor’s degree in the occupation. Petitioning employers should take great pains in fleshing out the duties of the position when filing an H-1B petition in showing that they are different from the standardized duties in the OOH. In the event that the OOH does not state that the occupation in question always requires a bachelor’s degree, it is imperative that the employer be able to justify that the position is complex and specialized to require a bachelor’s degree. It would also be helpful for the employer to show that it has hired others in the past with the same degree requirements, provide industry articles and other information about the minimum entry requirements into these occupations as well as descriptions of US college programs leading to degrees in the specialty occupation.

If an industry or occupation does not always require a bachelor’s degree, as confirmed in the OOH, and the employer is unable to establish that the position is more specialized and complex than the industry standard, the H-1B petition may fail. For instance, an H-1B petition filed on behalf of a violinist by a symphony orchestra did not succeed as the employer was unable to establish that the position always, rather than usually, required a bachelor’s degree. See Louisiana Philharmonic Orchestra v. INS, 44 F.Supp, 2d 800 (E.D. Lou. 1999); denial upheld after remand 2000 U.S. Dist. LEXIS 3331 (Mar. 18, 2000). Therefore, it is important to demonstrate that the duties are more specialized and complex than the norm, while keeping in mind that the argument should also be consistent with the fact that an entry-level wage, if that is the case, can also justify such duties.  Also, a “specific specialty” does not mean a degree in only one field.  A specialty occupation may justify several common or related degree fields.  If the OOH adds a few degree fields to a description, that does not mean than the position no longer qualifies for H-1B classification. Even when the minimum requirements are in two disparate fields, such as philosophy and engineering, then, as stated in an unpublished AAO decision, the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the particular position such that the ‘body of highly specialized knowledge’ is essentially an amalgamation of these different specialties.”

In the event that the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office (AAO). Once the appeal is filed, the USCIS Service Center which denied the petition has 45 days within which to conduct an initial field review and decide whether to treat the appeal as a motion to reopen and/or reconsider and approve the petition; or forward the appeal and the related record of proceedings to the AAO. If the AAO denies, the denial can also be challenged in federal court. If USCIS seeks to reinterpret H-1B provisions in light of the Buy American Hire American EO resulting in denials, those decisions ought to be challenged as they are contrary to the plain meaning of the statute as well as Congressional intent. There is nothing in the law or the regulations that clearly indicate that the government can wholesale deny H-1B classification for an occupation just because the OOH indicates that most employers, rather than all employers, require a bachelor’s degree. Similarly, there is nothing in the INA that suggests that an H-1B visa petition cannot be approved solely because the prospective H-1B worker will be paid an entry level wage. Indeed, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. The Trump administration cannot read out entire occupations from the H-1B law based on slavish reliance of the OOH. If the AAO does not relent, then perhaps a federal court will be able to stop the H-1B carnage.

Cyrus Mehta

Musings On Our Asylum System – After AG Sessions’ Remarks on ‘Dirty Immigration Lawyers’

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Attorney General Sessions who has been hostile towards increased immigration and views the asylum system as a loophole for unauthorized entry into the US said in recent remarks that “over the years, smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”  He got even more animated as he went on his diatribe about how the credible fear interview process is being gamed by those who would otherwise be expeditious removed.  “We also have dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to clients to make false claims to asylum providing them with the magic words needed to trigger the credible fear process,” he said.

Sure enough, there have been a few lawyers who have filed fraudulent asylum claims and have deservedly faced punishment through criminal convictions. However, the vast majority of these supposedly dirty immigration lawyers are some of the finest people I have known who work with passion to ensure due process, fairness and justice.  Mr. Sessions was appropriately rebuked by AILA President Annaluisa Padilla who said,  “Attorney General Sessions chose today to deride the American asylum system, the vulnerable populations who seek safety here, and the immigration attorneys who work tirelessly to ensure due process is afforded to everyone,”

The law surrounding political asylum is extremely complex, and one who fears persecution needs competent representation – and a lot of representation in the asylum arena is pro bono. An asylum applicant’s chances improve exponentially when he or she is represented by a good lawyer. Indeed, Judge Katzmann who spearheaded a study in 2010, and who is today the chief judge of the Court of Appeals of the Second Circuit, found that detained immigrants with attorneys were 500 percent more likely to win their cases than those without.  Judge Katzmann is more on the mark than Mr. Sessions. Representing asylum applicants with bona fide claims is one of the most honorable things that a lawyer can do. It is part of the ethical duty of a “dirty lawyer” to establish that the client has a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. This is especially true when the government is always represented by skilled counsel, and in order to level the playing field, an applicant also deserves equally skilled representation.

Mr. Sessions seemed to aim his ire against lawyers who attempt to broaden  asylum based on theories under the membership in a particular social group ground. Establishing that an applicant belongs to a social group is a legal minefield, and even if the persecution is based on the applicant being a family member of the one who is targeted, more has to be demonstrated in order to qualify for asylum. A case in point in the Board of Immigration Appeals recent decision in Matter of L-E-A–, 27 I&N Dec. 40 (BIA 2017). Although persecution on account of membership is a family has been recognized as a basis for asylum, the BIA in Matter of L-E-A explicitly confirms this but also requires a nexus and further holds that applicants whose claims are based on membership in a particular social group composed of family members must “demonstrate that the family relationship is at least one central reason for the claimed harm to establish eligibility for asylum on that basis.” Id. at 40. As the BIA explains, “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” Id. at 43-44.

In L-E-A the respondent was a native and citizen of Mexico whose father owned a store in Mexico City that sold groceries and general merchandise. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to grab him and put him in their car, but he was able to get away. The respondent left for the border and successfully crossed into the United States.

The BIA in L-E-A acknowledged that members of an immediate family may constitute a social group. There is a long line of cases that have suggested this, but L-E-A held so explicitly. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic . . . such as . . .  kinship ties.” Matter of C-A-, 23 I. & N. Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993).

The BIA could have concluded at this point, but then went onto state that there must also be a showing of nexus. In other words, a persecution claim cannot be established if there is no proof that the applicant or other members of the family were targeted because of that family relationship. If the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established asylum on this ground. The BIA provided an example of clear nexus based on family membership where the persecutor is seeking to harm the family members because of an animus against the family itself. An example given was the assignation of Czar Nicholas II, his wife and their five children after he abdicated the throne in 1917. This, according to the BIA, was a classic example, of the persecution based on family membership as one of the central reasons for the persecution.

Unfortunately, despite affirming that family was a social group, it did not work out favorably for the respondent in L-E-A. The BIA held that even if the persecutor harmed the respondent, but if it was done so as a means to an end, that in itself was insufficient to establish a claim, especially if the end is not connected to another protected ground. In L-E-A, according to the BIA, the cartel’s objective was to sell drugs in the store owned by his father, which is why they approached the respondent and harmed him. The central reason for the persecutor to harm the respondent was because the cartel wanted to increase profits by selling drugs in the store and there was no evidence to indicate that the persecutors had any animus against the family. The cartel would have gone after any family who owned a business there.

Jeffrey Chase , an astute blogger on asylum law, observed that the BIA missed an opportunity in L-E-A to simply affirm that showing persecution based on family was a sufficient nexus in itself. There was no need to also include a “means to an end” requirement. “Under the fact patterns we commonly see from Mexico and the “northern triangle” countries of Central America, claims based on family as a particular social group will continue to be denied, as such fears will inevitably be deemed to be a means to some criminal motive of gangs and cartels (i.e. to obtain money through extortion or as ransom; to increase their ranks; to avoid arrest) as opposed to a desire to punish the family itself.”

Mr. Sessions would also cynically welcome the outcome in L-E-A, although he would have been probably happier if the BIA had not acknowledged family as a social group!  L-E-A provides an ability for the adjudicator to deny asylum claims based on family under a means to an end analysis, especially those fleeing Central America based on gang based violence. The Trump administration, consistent with Mr. Session’s remarks, has proposed restricting asylum claims of young people from Central America in exchange  for preserving DACA, in addition to many other onerous demands. In any event, the lawyer representing the asylum applicant has an ethical obligation to convincingly demonstrate that the family relationship was the central reason for the persecution. That could have been the outcome in L-E-A too, as it was reasonable to infer that the cartel went after the respondent because his father owned the store, but the lawyer must now take pains to distinguish the facts of her case from L-E-A. Indeed, the lawyer must show like in the case of the Romanovs after the Russian revolution that there was an animus against the family that caused the persecution. 

Contrary to Mr. Session’s assertion, there is a great need for an ethical lawyer to advance the best possible argument on behalf of his client in the hope that the law could change that would be consistent with the definition of social group in the 1951 Refugee Convention and the 1967 Protocol. The term “particular social group” was added as an afterthought and was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of a refugee. See Matter of Acosta, supra. Consistent with this view, the BIA in Matter of Acosta interpreted the phrase “persecution on account of membership in a particular social group” to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. Over the years, the Acosta definition of “immutable characteristic” has been qualified to also require that the group is “defined with particularity” and is “socially distinct.”  See Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014) (“Society can consider persons to comprise a group without being able to identify the group’s members on sight”) and Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Even then, some Circuit courts have rejected this new definition.

If Mr. Sessions was not so blinded by his animus against asylum seekers, he may appreciate the lawyer’s role in interpreting and advancing the definition of a social group to protect people fearing persecution if they are unable to establish a nexus on account of race, religion, nationality or political opinion.  The challenge has become even greater after the Acosta definition was limited by also requiring that the social group is defined with particularity and is socially distinct.  This includes those who were unable to seek protection in their countries if they suffered domestic violence or because of their sexual orientation. The lawyers that Mr. Sessions derides are not exploiting loopholes but protecting people from harm, unjust imprisonment or death. If this is what Mr. Sessions means by a dirty immigration lawyer, then lawyers endeavoring to broaden protections for vulnerable people under our asylum system ought to feel extremely proud.

David Isaacson

From Bad to Worse: Why We Should Not Let the Trump Administration’s Outrageous Immigration Demands Make the SUCCEED Act Seem Like a Reasonable Alternative

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Following the Trump Administration’s decision in September to end the Deferred Action for Childhood Arrivals (DACA) program, President Trump suggested in a Tweet that Congress should “legalize DACA” within the next six months. There have been a number of proposals for how to address the status of the “Dreamers” who would otherwise be left by the termination of DACA without protection from removal, or work authorization, despite having lived in the United States since their childhood.

The Democratic Party’s leadership in Congress, including Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi, has supported passage of the bipartisan Dream Act of 2017, S.1615/H.R. 3440. The Senate version of the Dream Act is co-sponsored not only by leading Senate Democrats such as Minority Leader Schumer and Dick Durbin (D-IL), but also by several Republican Senators including Lindsey Graham (R-SC), Jeff Flake (R-AZ), and Cory Gardner (R-CO). The House version is co-sponsored by nearly all House Democrats as well as several Republicans: Ileana Ros-Lehtinen (R-FL-27), Mike Coffman (R-CO-6), Jeff Denham (R-CA-10), David Valadao (R-CA-21) and Joe Barton (R-TX-6).

The Dream Act of 2017 would allow conditional permanent residence for those who have been in the United States since before age 18, have been continuously present here for at least 4 years before the law is passed, lack any significant criminal record, and meet an educational criterion: applicants for conditional residence would need to be admitted to an institution of higher education, have obtained a high school diploma or GED, or be enrolled in an educational program leading to the attainment of such a diploma or GED. The conditions on permanent residence could then be removed following the attainment of a degree from an institution of higher education, at least two years of progress towards a bachelor’s degree, 2 years of honorable service in the U.S. Armed Forces, or at least 3 years of employment that comprised at least 75% of the time the applicant had a valid employment authorization, along with passage of the same civics and English tests required under section 312 of the INA for naturalization.

The Dream Act of 2017 is currently the subject of a discharge petition which could force a vote on it in the House of Representatives, if the signatures of a majority of the members of the House can be obtained. (The discharge petition technically applies to a rule that would allow the discharge of another bill from committee and its amendment with the text of the Dream Act of 2017, because of procedural issues relating to the required waiting period before a discharge petition can be filed.) Currently, 218 signatures would be needed to comprise a majority of the usually 435-member House because there is only one vacancy, although after the impending resignation of Representative Tim Murphy (R-PA) takes effect on October 21, there will be two vacancies, and 217 signatures will suffice for a majority until at least one of the vacancies is filled by a special election. So far, the discharge petition has 195 signatures. Of those, 194 signatures are from Democrats, and only one is from a Republican, Rep. Mike Coffman (R-CO).  Even the other four House Republican co-sponsors of the Dream Act have been thus far unwilling to buck their leadership and sign the discharge petition.

As the American Immigration Council has explained, various members of Congress have introduced variations on the Dream Act, some more restrictive and at least one more generous. Recently, the “SUCCEED Act”, S. 1852, sponsored by James Lankford (R-OK), Thom Tillis (R-NC), and Orrin Hatch (R-UT) attracted significant media attention. The SUCCEED Act was then overshadowed by the Trump Administration’s release Sunday night of a long list of extreme demands regarding other aspects of immigration law that the Administration wishes to see radically changed in conjunction with any resolution of the status of DACA recipients.

The Administration’s demands, which would do immense damage to the U.S. immigration system in a variety of ways, have already been condemned by, among others, immigrants’ rights groups and the Democratic leadership in the House and Senate. Minority Leaders Schumer and Pelosi were quoted by the New York Times as observing that “The administration can’t be serious about compromise or helping the Dreamers if they begin with a list that is anathema to the Dreamers, to the immigrant community and to the vast majority of Americans.” Former AILA President David Leopold aptly described the Administration’s demands as “read[ing] like a white supremacist wish list,” including as it does a crackdown on refugee children; gutting other aspects of asylum law; removing due process to allow people to be deported more quickly and detained indefinitely if their countries will not take them back; building Trump’s infamous border wall; penalizing local governments who decline to detain people at DHS’s request without probable cause; deporting purported “gang members” that US authorities have already shown a tendency to believe include anyone with a tattoo; and replacing the family-based immigration system with a purportedly “merit-based” one, among many other things.   There is a danger that compared to this list, virtually anything else might come to seem like a reasonable compromise position.

It is important, however, not to be lured by the aggressive atrociousness of the Administration’s recent wish list into mistaking the SUCCEED Act for a reasonable compromise. As the Center for American Progress and National Immigration Law Center have already observed, the SUCCEED Act, as well, contains deeply troubling features.

The most obvious problems with the SUCCEED Act relate to its treatment of the Dreamers themselves. Applicants would need to spend 10 years in conditional permanent resident status, and then another 5 as lawful permanent residents, before naturalizing—even if they qualified for what would otherwise be an exemption from the normal wait time before naturalization, such as that given to those in active military service during a time of hostilities under INA §329. Even upon becoming lawful permanent residents, they would be unable to sponsor family members.  And as conditional permanent residents, they would have to waive all rights to seek “any form of relief or immigration benefit under this Act or other immigration laws other than withholding of removal under [INA] section 241(b)(3), or relief from removal based on a claim under the Convention Against Torture” if they were found to have “violate[d] a term for conditional permanent resident status”.

The SUCCEED Act does not stop, however, at imposing onerous conditions on the Dreamers who are its ostensible subjects. It also provides that all future applicants for nonimmigrant visas (other than certain diplomatic visas and other very limited exceptions) will be required to waive all rights to contest removal, and all rights to seek common forms of immigration relief including adjustment of status, if the visa-holder “(1) violates a term or condition of his or her nonimmigrant status; or “(2) fails to depart the United States at the end of the alien’s authorized period of stay.”  That is, anyone who is thought to have exceeded the parameters of their work authorization, or overstayed their admission by a single day, could be removed without a hearing before a neutral adjudicator and without the right to apply for most forms of immigration relief.

Defenders of the SUCCEED Act might point out that similar restrictions, although not quite as onerous in regard to relief from removal, already apply to those admitted under the Visa Waiver Program. Visa Waiver admissions under INA §217, however, are only for visitors from certain qualifying countries who will be admitted to the United States for 90 days. Nonimmigrants admitted on visas, on the other hand, can legitimately stay in the United States for a much longer time, becoming integrated into American society in ways that it would be highly inappropriate to disrupt without even a hearing or the opportunity to apply for relief.

An H-1B nonimmigrant temporary worker can be authorized to remain in the United States for six years, and for substantially more time, pursuant to the American Competitiveness in the 21st Century Act (“AC21”) if an application for labor certification was filed more than one year before the expiration of H-1B status or an I-140 petition has been approved but adjustment of status is not yet possible. Given current immigrant visa number backlogs, many H-1B visa-holders, particularly those born in India or China, can remain in H-1B status for well over ten years pursuant to AC21.  O-1 aliens of extraordinary ability in the sciences or arts, E-1 treaty traders, or E-2 treaty investors are not subjected to any strict time limit, and can renew their nonimmigrant status for decades on end if they continue to qualify for it.

Such H-1B, O-1, E-1 or E-2 nonimmigrants may have lawfully resided in the United States for a decade or more, and perhaps had children here who are U.S. citizens. Under current immigration law, if there is an allegation that they have violated their status in some way, and the government seeks to remove them from the United States as a result, they can resist the charge before an Immigration Judge (unless they are stopped at an airport and subjected to expedited removal proceedings, although in the event this occurs after a brief trip abroad, federal court review may be available as I have previously discussed). In the event of minor, short-term overstays and status violations, such nonimmigrants may still be able to adjust their status under INA §245(k), which provides limited forgiveness for up to 180 days of unauthorized employment or status violation in the context of employment-based adjustment, or if they acquire an immediate relative who is a U.S. citizen. The SUCCEED Act would take away these options for future nonimmigrants, subjecting such long-term nonimmigrant residents to summary removal without eligibility for adjustment of status. By prohibiting such nonimmigrants from “contesting removal”, it could also prevent them from seeking cancellation of removal for nonpermanent residents under INA §240A(b) even if they have been in the United States for more than 10 straight years and have U.S. citizen children who would suffer exceptional and extremely unusual hardship if their parents were removed. (Although §240A(b) is not specifically listed among the forms of relief for which nonimmigrants would be ineligible, it would be impossible to seek it as a practical matter if one was removed without full removal proceedings pursuant to a forced waiver of the right to contest removal.)

It is one thing to say that a tourist or business visitor who comes to the United States for 90 days without a visa can be subjected to summary removal upon overstay or violation of that brief visit status. It is quite another thing to subject long-term legal residents to such treatment, and make them agree to it before they are permitted to come to the United States as a nonimmigrant worker or in some other long-term nonimmigrant status.  This lesser-known feature of the SUCCEED Act is another reason why it should not be enacted.

There is a saying that one should not let the best be the enemy of the good. Equally, though, one should not let the worst be the facilitator of the merely bad.  The SUCCEED Act may not be as horrible as the wish list recently published by the Trump Administration, but it is nonetheless bad enough that it should not be accepted as a supposed compromise.

Cyrus Mehta

Dealing With The Dreaded RFE – Reflections Of An Immigration Lawyer

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RFE is the acronym for Request for Evidence. It is dreaded by immigration lawyers who file H-1B visa petitions and other applications for immigration benefits. The RFE is essentially a challenge by the immigration agency, United States Citizenship and Immigration Services (USCIS), asserting that the applicant does not appear to be qualified for the visa classification, and therefore requests additional information to adjudicate. The time given to respond to an RFE is generally 87 days. The RFE can consist of several pages of objections. Upon receiving it, the immigration lawyer must meticulously strategize a response in conjunction with the client. Responding to the RFE can take several hours, and at times days on end. It requires coordinating with others for an expert evaluation, as well as for corroborative letters from other employers and trade organizations. Although responding to an RFE is part of a routine administrative process, it feels like one is writing a brief to an appellate court. There is a lot of tension for both the lawyer and the client. If the response to the RFE cannot be overcome in the eyes of a faceless bureaucrat in a remote immigration service center, the petition is denied. The consequences can be drastic. The foreign national beneficiary falls out of status, and may have to leave the United States with family in tow. If the case was filed under the H-1B cap, filing a new one will not be possible until the employer waits for H-1B cap filing period next year, and then too there is no assurance that the H-1B will get selected under next year’s lottery.

It is not a surprise, therefore, that when the Administration does not favor a particular visa, the RFE rate increases. A case in point is the H-1B visa that has become the favorite whipping boy over several administrations. An article in Reuters by Yeganeh Torbati entitled “Trump administration red tape tangles up visas for skilled foreigners, data shows,” where I have been quoted, brilliantly shines the torch on the dreaded RFE and how it is used to distort a visa program even though this was not the intention of Congress. This article has made the RFE a household name. What the government cannot change through Congress or by amending the rules through notice and comment, it does through the RFE. If it wishes to bring about a new policy, such as insisting on the employer demonstrating an employer-employee relationship, or as seen more recently under the Trump administration, insisting on higher wages under the H-1B visa, it does so through the RFE. Even if there be no legal basis for insisting that only one who is paid more than an entry level wage can qualify for the H-1B visa, the administration tries to bring about this change through the RFE. To get a better understanding of the recent RFE trend based on entry level wages, read my prior blog H-1B Entry Level Wage Blues.

The following extract from the Reuters article is worth reproducing:

The Trump administration is making it more difficult for skilled foreigners to work in the United States, challenging visa applications more often than at nearly any point in the Obama era, according to data reviewed by Reuters.

The more intense scrutiny of the applications for H-1B visas comes after President Donald Trump called for changes to the visa program so that it benefits the highest-paid workers, though he has not enacted any such reforms.

Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.

The challenges, which can slow down the issuance of visas by months, were issued at a greater rate in 2017 than at any time in the Obama administration except for one year, 2009, according to the USCIS data, which has not been previously reported.

The trend is likely to cheer supporters of Trump’s hardline stance on immigration. They say visas for skilled foreigners undercut American workers by replacing them with low-paid employees shipped in from abroad. But major tech companies, universities and hospitals contend the visas allow them to fill highly specialized jobs for which there are sometimes few qualified Americans.

H-1B visas allow foreign workers, generally with bachelor’s degrees or higher, to work for three years at a time, often in the technology, healthcare and education sectors. Microsoft (MSFT.O), Amazon (AMZN.O), Google (GOOGL.O), Apple (AAPL.O), Intel (INTC.O), Oracle (ORCL.N) and Facebook (FB.O) were heavy users of H-1B visas in 2016, according to USCIS data.

The USCIS inquiries typically challenge the basis of the original petitions and assert that the employers do not qualify for the visas. Employers and their lawyers must then provide further evidence to prove their need and eligibility for the visas.

To be sure, the Obama administration also issued a large number of H-1B challenges – nearly 59,000 – from January through August 2016, and a similar number in 2015.

Immigration attorneys have for years complained about redundant and burdensome challenges to high-skilled employment visas. But they say they are seeing a new trend in the Trump era.

In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.

Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.

“One way to have an immigration policy that’s consistent with the policy that’s been articulated by the Trump administration is to put more scrutiny on H-1B cases,” said Cyrus Mehta, a New York-based immigration attorney.

 You can continue to read the entire article here.

It is no accident that the issuance of 85,000 RFEs between January 1 and August 31, 2017 on H-1B visa petitions, coincided with Trump’s America First policy that got crystalized in the Buy American Hire American Executive Order. While not official, it is widely believed that the goal of the Trump administration is to curb legal immigration. Since it is difficult to meet this objective through Congress, the Administration has resorted to the issuance of RFEs on the spurious and legally unsustainable ground that a person who is offered a Level 1 wage cannot be classified for an H-1B visa. A spate of RFEs were also issued during the Obama administration on H-1B visas, after the issuance of the Neufeld Memo on January 8, 2010, which set forth the standards for determining an employer-employee relationship under 8 CFR 214.2(h)(4)(ii). However, those RFEs were issued against IT consulting firms whose business models were to place H-1B workers at third party client sites. The RFEs being issued under the Trump administration seem to curb the entire H-1B visa program.

The current trend in RFEs on H-1B visas do not just challenge the Level 1 wage, but also whether the position qualifies as a specialty occupation. The RFE also questions the beneficiary’s maintenance of F-1 status under Curricular Practical Training challenging whether the CPT constituted an integral part of the program. At times, evidence is also requested to establish that the company is doing business as stated in the H-1B petition. Many RFEs also challenge the employer-employee relationship under the Neufeld Memo. Even if the H-1B worker is not working at a client site, the RFE still asks for proof that there is sufficient work to employ the H-1B worker in the specialty occupation at the employer’s place of business. Although there has been a general upswing in the issuance of RFEs, H-1Bs appear to be getting hit the hardest.

When such an RFE is received, one should take a deep breath and respond appropriately. Imagine yourself feeding the beast in order to tame it or make it go away. If you feed the beast well, it will go away satisfied. If you do not feed it well, it will still be hungry and will come back for more. Respond to every issue raised in the RFE even if you believe that you submitted the evidence previously. If there is a silly request, still respond. For example, RFEs often ask for a weekly percentage breakdown of the duties listed in the job description. This is a rather flawed and ridiculous request, as it is rare that modern employers keep tabs of such breakdowns. Most people occupying professional positions tend to multitask, and are expected to be creative and motivated, thus going beyond what is expected of them in the official job description. You may wish to preface the response by stating that such a request has no bearing to the reality of the job, although a good faith attempt has still been made to approximately breakdown the duties into percentages. Be forewarned that if you feed the beast offal, it will not be satisfied. You need to feed it the choicest bits of meat. For example, the RFE at times erroneously asks that all of the four regulatory prongs to show that the position qualifies as a specialty occupation be satisfied, when only one needs to be satisfied:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

The employer normally requires a degree or its equivalent for the position; or

The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

See 8 CFR §214.2(h)(4)(iii)(A).

Thus, petitioners and their attorneys should strategically decide whether to address all four prongs or only one or more of the four prongs. At times, responding to prong 4, when there is also a challenge to the Level 1 wage, could backfire. If you demonstrate that the position is so specialized and unique, then the USCIS can hit back asserting that if the job was “so specialized and complex,” then the position could not have commanded an entry level 1 wage. On the other hand, a petitioner may have no choice but to rely on prong 4 if it is not acknowledged in the Occupational Outlook Handbook that employers always require a bachelor’s degree in the specialty occupation. For example, the OOH with respect to Computer Programmers states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers with an associate’s degree.” It may be risky to rely on the first prong for the position of computer programmer since the OOH acknowledges that some are hired with an associate degree.

Even if the employer normally hires computer programmers with bachelor’s degrees under prong 3, the employer’s requirements in isolation cannot be given deference if a bachelor’s degree is not normally required by all employers, according to the holding in a Fifth Circuit Court of Appeals decision in Defensor v. Meissner, which the USCIS loves to cite in the RFE.

When relying on prong 4, it is important to justify that complex duties may be performed even with the Level 1 wage. In other words, the job duties of the challenged occupation remain complex in the O*Net, regardless of the H-1B worker performing at an entry level and being closely supervised. The reason why a Level 1 wage was assigned is because the prospective worker met the entry level wage under the DOL’s prevailing wage guidance based on less than two years of experience required for the job and not possessing unusual skills – not because the duties were any less complex.  It may also be imperative to obtain an expert opinion from a professor in the same field to justify the essentiality of a bachelor’s degree, even at the entry level. The USCIS may disregard the expert opinion, but it may only reject such testimony if it is not in accord with other information in the record or is otherwise questionable. In Matter of Skirball Cultural Center, the AAO held that uncontroverted testimony of an expert is reliable, relevant, and probative as to the specific facts in issue.

In this author’s experience, most RFEs can be overcome and the H-1B visa petition is approved. It is difficult to predict whether this trend will continue under the Trump Administration’s Buy American Hire American Executive Order. The EO aims to create higher wages and employment rates for U.S. workers, and directs the Secretaries of State, Labor, and Homeland Security, as well as the Attorney General, to issue new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The EO highlights the H-1B visa program and directs the agencies to ensure that H-1B visas are awarded to the most skilled and highest-paid beneficiaries.

If the H-1B is denied, it is not the end of the road. The denial can be appealed to the Administrative Appeals Office, and it is also possible that the USCIS can reconsider the denial before it is sent to the AAO. If the AAO denies, the denial can also be challenged in federal court. In fact, it is also permissible under Darby v. Cisneros to bypass the AAO and challenge the denial directly in federal court. It is quite likely that if there is a pattern and practice of denials on the Level 1 wage issue, there will be challenges in federal court that will review the case with a different lens from the USCIS or AAO.

There was a time when it was thought that RFEs issued under the Neufeld Memo were insurmountable. Soon, upon meticulously addressing those RFEs, employers and their lawyers were able to overcome the objections and get an H-1B approval by establishing the employer-employee relationship. Likewise, there are even stronger arguments to demonstrate that the mere offering of a level 1 wage does not disqualify a foreign national form H-1B classification, which should hopefully overcome the recent spate of RFEs.

Cyrus Mehta

A Few Suggestions To Defend Oneself Against A Misrepresentation Finding Under The 90-Day Rule

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By Cyrus D. Mehta and Sophia Genovese-Halvorson

The State Department has abruptly amended the Foreign Affairs Manual to provide broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

The updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

    1. Engaging in unauthorized employment;
    2. Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);
    3. A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or
    4. Undertaking any other activity for which a change of status or an adjustment of status would be requied, without the benefit of such a change or adjustment.

This amendment replaces the former 30/60 day rule, which still exists in the USCIS policy manual, but is likely to be replaced. Under the 30/60 day rule, if a foreign national filed an adjustment or change of status application within 30 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions. If the conduct happened more than 30 days but less than 60 days after entry, no presumption of misrepresentation arose, although the government could infer from the facts that there was an intent to misrepresent. If the conduct occurred more than 60 days after entry, there was no basis for a misrepresentation finding.

The new 90-day rule that replaces the 30/60 rule is clearly harsher as the presumption that the person misrepresented his or her intentions is for a 90-day period as opposed to a 30-day period. Still, like under the old guidance, the key issue is what the intention of the person was at the time of issuance of the visa or at the time of admission into the United States. If they were inconsistent at those points in time under the applicable visa, then it does not make a difference whether there is a 30-day or a 90-day rule. The applicant must also be given an opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it. The new 90-day rule will admittedly greatly affect people entering under the Visa Waiver Program that admits visitors for a 90-day period. If such a person is admitted into the United States and gets married to a US citizen, that conduct in itself should not be inconsistent with one’s admission into the United States as a visitor. But if this person files an application for adjustment of status within the 90-day period, it could be presumed that this person misrepresented his or her intentions at the time of admission into the United States. The same reasoning would apply to someone who is admitted on a B-2 visa for six months, and if within 90 days, this person contacts a school, gains admission and files a change of status from B-2 to F-1.

Even if there was allegedly inconsistent conduct within the 90 days, there are ways to rebut the presumption. Both practitioners and applicants should not reflexively take extreme actions such as withdrawing an already filed adjustment application and switch to consular processing, or refrain from filing such an application within 90 days. Rather, they should deploy the following analysis to determine whether there could be defense to a potential allegation of misrepresentation. While it is not clear whether the 90-day rule will be applied retroactively, applicants can take a deep breath and use the same analysis even if it is applied retroactively.

The FAM guidance at 9 FAM 302.9-4(B)(3)(h) insists that “there must be evidence that, at the time of the visa application, admission into the United States or in a filing for an immigration benefit (e.g., an application to change or extend stay in nonimmigrant status), the alien stated orally or in writing to a consular or immigration officer that the purpose of the visit or the immigration benefit was inconsistent with intended nonimmigrant visa classification.” If the government is unable to establish that there is evidence of an admission to a consular or immigration officer that was made orally or in writing, then that would be grounds to argue that there was no misrepresentation.

The FAM guidance also explicitly instructs the consular officer that “[y]ou must give the alien the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” Thus, if the applicant can demonstrate that it was not her intention to apply for adjustment of status at the time of her admission to the United States, but she changed her mind after her entry, that could be a basis to rebut the presumption. A good example is an elderly parent of a US citizen who genuinely comes to the United States to visit, but then has a medical emergency that impedes her ability to travel, which renders adjustment of status more convenient than consular processing. Another example is someone who is dating a US citizen, and visits the United States to pursue that romantic interest. There is no intention of getting married at the time of her entry in the United States. After several weeks, they decide to get married and apply for adjustment of status. Even though this conduct occurred within 90 days from the entry, it can be demonstrated that there was never an intent at the time of admission to apply for adjustment of status in the US.

Also, a misrepresentation must be both willful and material. INA § 212(a)(6)(C)(i). A misrepresentation is material under INA § 212(a)(6)(C)(i) when it tends to shut off a line of inquiry that is relevant to the alien’s inadmissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa or other benefit. See Matter of D-R–, 27 I&N Dec. 105 (BIA 2017). If the applicant can establish that the misrepresentation was not material, then that too would be a defense against a misrepresentation finding. Such an instance may include an Applicant who works for ABC Company in their home country but misrepresents that he works for XYZ Company, because ABC Company is not willing to issue him a letter, and so he obtains a false letter from XYZ. Such a misrepresentation is not material as the Applicant was in any event working in the home country and can show ties. Moreover, if the misrepresentation is not willful, but an innocent misrepresentation, it should not result in a finding of inadmissibility under INA § 212(a)(6)(C)(i). Cf.  In re Guang Li FU, 23 I&N Dec. 985 (BIA 2006).

The 90-day rule will clearly not apply to people who enter the United States under visas that allow for dual intent. Therefore, one who enters the United States in H-1B or L classification would not be implicated if he files an application for adjustment of status within 90 days as there is a clear carve out for H and L visa applicants in INA § 214(b). Dual intent is also recognized by regulation for the O, P and E visa categories. See 9 FAM 402.13-10(B) citing to 9 FAM 402.13-5(C) (“‘dual intent’ is permissible for O-1 visa holders”); 9 FAM 402.14-10(C) (“the approval of a permanent labor certification or the filing of an immigrant visa petition for an alien shall not be a basis for denying a P petition”); and 9 FAM 402.9-4(C) (“an [E visa] applicant might be a beneficiary of an immigrant visa petition filed on his or her behalf.”) However, in the O, P, and E visa categories, while there is no requirement that they maintain a foreign residence, the intent to file an adjustment of status application at the time of entry may still not be contemplated.

Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even to the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1).

Finally, with respect to preconceived intent being a discretionary ground for granting or denying adjustment of status, the BIA has held that an application for adjustment of status as an immediate relative should generally be granted in the exercise of discretion notwithstanding the fact that the applicant entered the United States as a nonimmigrant with a preconceived intent to remain. Matter of Ibrahim, 18 I&N Dec. 59 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215 (1980).

The FAM does not have the force of a statute or a regulation. It is sub-regulatory guidance and is not binding. An inadmissibility finding based on an arbitrary 90-day rule in the FAM, or if adopted by the USCIS in its policy manual, will not be binding upon an immigration judge and will not receive Chevron deference in federal court, but the lower deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under Skidmore, the weight given to the new 90-day rule in the FAM “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” An abrupt and arbitrary change from 30 to 90 days, without regard to other countervailing factors that militate against misrepresentation, may not even get Skidmore deference in federal court.  While it is always advisable to be cautious and avoid risks that would result in an inadmissibility finding based on misrepresentation, it is incumbent upon the immigration practitioner and applicants to analyze whether such an inadmissibility finding could be imposed if there was a change in intention after the fact or if no oral or written representation was made to a governmental official. This analysis is more crucial than buckling to an arbitrary 90-day presumption of misrepresentation period.

(This blog is for informational purposes only, and must not be considered as a substitute for legal advice)

Cyrus Mehta

State Department Toughens Standard For Assessing A Foreign Student’s Ties With Home Country

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By Cyrus D. Mehta and Sophia Genovese-Halvorson

Similar to many other nonimmigrant admission requirements, under INA § 101(a)(15)(F), a foreign national must show that they have a foreign residence which they do not intend on abandoning in order to be admitted in F-1 nonimmigrant student status. As explained below, this requirement has been applied to students in various ways over the years, from strictly applying the requirement in the 1990s to a loosening of the standards under the 2005 State Department Cable.

In August 2017, the State Department yet again changed the ways in which F-1 visas are adjudicated by amending 9 FAM 402.505(E)(1) “Residence Abroad Required”, to now include the following provision:

b. Examining Residence Abroad:  General rules for examining residence abroad are outlined in 9 FAM 401.1-3(F)(2). If you are not satisfied that the applicant’s present intent is to depart the United States at the conclusion of his or her study or OPT, you must refuse the visa under INA 214(b).  To evaluate this, you should assess the applicant’s current plans following completion of his or her study or OPT.  The hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT.

The previous language provided, in relevant part,

b.  The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas. The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa. It is natural that the student does not possess ties of property, employment, family obligation, and continuity of life typical of B visa applicants. These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing his or her future plans. Student visa adjudication is made more complex by the fact that students typically stay in the United States longer than do many other nonimmigrant visitors.

c.  The residence abroad requirement for a student should therefore not be exclusively connected to ties. You must focus on the student applicant’s immediate intent. Another aspect to consider: students’ typical youth often means they do not necessarily have a long-range plan, and hence are relatively less likely to have formed an intent to abandon their homes. Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities. That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.

It has yet to be seen how this update will affect future adjudications of the F-1 student visa. Given that the previous relaxed language provided above came out of the 2005 State Department Cable, it is likely that the corresponding guidance in the Cable is void. Still, the fact that 9 FAM 402.505(E)(1) retains language that  the “hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application”  gives some room to argue for a favorable adjudication despite the elimination of the prior language. At the same time, students seeking to study in the United States should be prepared to yet again overcome stringent foreign residence requirements.

Background

The number of foreign students travelling to the United States to study has grown dramatically over the past thirty years. With the FY 2016 coming to an end, over 471,000 F-1 visas thus far have been granted; whereas in FY 1987, only 139,241 were granted. Asia by far sends the largest number of students, sending in a total 335,934 students (Chinese students constitute the vast majority of these visa holders, totaling to over 150,000 students, followed by Indian students who account for 62,537 of the visas). This large influx of foreign students has been shown to positively benefit the US education system and US economy, where foreign students add value and diversity to the classroom and also offer diverse skills that keep the US economy competitive.

Before 1952, a foreign student had to prove that the “sole purpose in coming to the United States is for study; and that he intends to leave the United States and can enter some foreign country when his studies are completed.” 22 C.F.R. § 42.228 (1949). After the enactment of the 1952 Immigration and Nationality Act, nonimmigrants are now “presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, that he is entitled to a nonimmigrant status under section 101(a)(15).” INA § 214(b). As explained, under § 101(a)(15), a foreign national must show that they have a foreign residence which they do not intend on abandoning.

Not surprisingly, young students seeking to study in the United States could not meet this strict standard because, as young students still at the beginning of their adult lives, many lacked financial assets and strong family ties to definitively prove that they would return upon completion of their studies. For example, in FY 2001, approximately 293,000 F-1 visas were granted, and nearly 112,000 were denied. Over two-thirds of the visa refusals were denied under INA § 214(b). Many foreign students seeking to study in the United Stated simply could not meet the onerous burdens set forth under INA § 214(b) and 101(a)(15).

In 2005, in response to these § 214(b) denials that became increasingly frequent especially after the September 11 terrorist attacks, the foreign residence requirement was relaxed for students. Under the Department of State cable (No.2005State274068), consular officers were directed to “evaluate the applicant’s requirement to maintain a residence abroad in the context of the student’s present circumstances… [and to consider] the residence requirement for a student… in a broader light, focusing on the student applicants’ immediate intent.” The cable effectively relaxed the foreign residence requirement for students, noting that students are typically “young, without employment, without family dependents, and without substantial personal assets.” The cable rationalizes that due to their relative youthfulness, students do not necessarily have long-term plans and are therefore “less likely to have formed an intent to abandon their homes.” The presumption, according to the Cable, was that students lacked a present immigrant intent because they were young and likely incapable of creating long-term plans, and therefore could be admitted as nonimmigrant students. The Cable was authored by the late Stephen Fischel, then a high-level State Department official in the Visa Office, who was respected for his fairness and integrity and who sought to ameliorate some of the hardships faced by foreign students after September 11, 2001.

August 2017 Update to 9 FAM 402.505(E)(1)

The State Department’s recent amendment to 9 FAM 402.505(E)(1) eliminates this favorable presumption thus reversing Fischel’s beneficial guidance, and instead directs consular officers to look at 9 FAM 401.1-3(F)(2) to evaluate the foreign student’s intent. Specifically, 9 FAM 401.1-3(F)(2) provides:

a.     The term “residence” is defined in INA 101(a)(33)as the place of general abode; the place of general abode of    a person means his principal, actual dwelling place in fact, without regard to intent.  This does not mean that an alien must maintain an independent household in order to qualify as an alien who has a residence in a foreign country and has no intention of abandoning.  If the alien customarily resides in the household of another, that household is the residence in fact…

b.     The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin.

c.     The residence in a foreign country need not be the alien’s former residence. For example, an alien who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit in the United States.

d.     `Suspicion that an alien, after admission, may be swayed to remain in the United States because of more favorable living conditions is not a sufficient ground to refuse a visa as long as the alien’s current intent is to return to a foreign residence.

9 FAM 402.505(E)(1) continues that the consular officer must assess the applicant’s “current plans following completion of his or her study or OPT,” and that the mere “hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application” if the present intent is to depart after study. The more generous language in the 2005 cable, and the prior FAM note, that gives the benefit of the doubt to the student has been eliminated. It remains to be seen whether portions of the Cable that were not incorporated in the FAM that got repealed in 2017 could still be applicable. The DOS Cable noted that even if the student was intending to undertake a course of study for which there was little opportunity in the home country, that in itself was not a basis for denying a visa. Conversely, a student visa applicant could not be denied a visa even if the country of residence can provide the equivalent quality courses in the subject matter. “The student has the right to choose where she/he will obtain an education if accepted by the school,” noted the Cable. Moreover, many students in the US dread to visit their home countries during vacations as they believe that they may encounter difficulties while applying for a new student visa stamp at the US Consulate. The Cable reassured that consular posts should facilitate the reissuance of the student visa so that students can travel freely back and forth between the US and their home countries. Such a policy makes sense since it encourages students to continue to keep ties with their home countries if they can freely go there on a regular basis.

The effects of this amendment will likely be of less concern to traditional students (i.e. students who attend college or a graduate degree program straight after high school or their undergraduate degree) who have resided with their parents or guardian throughout their studies and whose parents still reside abroad at the time of the F-1 visa application. Specifically, under 9 FAM 401.1-3(F)(2)(a), the State Department notes that one does not need to maintain an actual household to meet the foreign residence requirement. If the foreign national primarily resides in another’s dwelling, then that residence will suffice as the foreign national’s residence. Clearly these students can satisfy this requirement if they have been living with their parents or guardians, and their parents or guardians remain at the residence at the time of the F-1 application. These same students would likely also easily meet the “close family ties” provision under 401.1-3(F)(2)(b), as their close family members are still abroad at the time of the application.

Non-traditional students, or students who have been living independently and have few or no family ties abroad, may not appear to satisfy this amendment with as much ease. The 2005 Cable guidance was intended to address these very students who are “young, without employment, without family dependents, and without substantial personal assets.” The new language under 9 FAM 402.505(E)(1) provides no contemplation or acknowledgement of these youthful traits when adjudicating F-1 student visas, and instead subjects students to the general foreign residence rules under 9 FAM 401.1-3(F)(2). This revision requires the Consular Officer to “assess the applicant’s current plans following completion of his or her study or OPT.” As rationalized in the 2005 Cable, students have yet to make any formalized long-term plans, and “hence are relatively less likely to have formed an intent to abandon their homes.” This presumption appears to no longer matter in the revised F-1 adjudication process. However, the revision does state that the mere “hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application if you are satisfied that the applicant’s present intent is to depart at the conclusion of his or her study or OPT,” thus preserving the future opportunity of such a change.

These students will need to make the strongest case possible that they presently possess no intent to remain in the US after the completion of their studies or OPT, and seek to provide as much evidence as possible of their ties abroad. Such evidence, in the absence of any family ties or business connections, can include evidence of the distinct possibility of future employment in the home country, their participation in social groups or organizations, romantic relationships, or cultural, religious or ethnic affiliations, as evidence of ties abroad. The most important element to emphasize is the applicant’s intent to depart the US at the end of their studies or OPT.

There is no doubt that this Administration is seeking to curtail any and all legal immigration to the United States. This most recent revision to F-1 student visa adjudication is part of this trend. More recently, the State Department has also made it easier to deny foreign nationals immigration benefits based on fraud or misrepresentation if they undertook activities inconsistent with their visa within 90 days of their admission. Practitioners and those seeking to be admitted to the US in F-1 nonimmigrant status should therefore proceed with an abundance of caution when applying for this visa. As stated above, traditional students with guardians and parents abroad will likely be less affected by this amendment. However, non-traditional students with few ties abroad will have a more onerous presumption to overcome when applying for an F-1 visa.

(This blog is for informational purposes only, and must not be considered as a substitute for legal advice)

Cora-Ann Pestaina

How Binding Are DOL FAQs?

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As PERM practitioners, we are all familiar with Department of Labor’s (DOL) Frequently Asked Questions (FAQs). Going as far back as 2005, the year of the inception of the PERM program, there have been various rounds of DOL FAQs on a wide range of topics including on how to file or withdraw a PERM application; how to prepare a PERM Recruitment Report; on the best practices for appeals to the Board of Alien Labor Certification Appeals (BALCA); on what constitutes a familial relationship; on Supervised Recruitment; and on and on. PERM practitioners rely on these FAQs to explain DOL’s requirements and expectations in the preparation and filing of PERM applications. These FAQs can even be used to remind the DOL of its own requirements when an erroneous PERM denial has been issued. But, at the end of the day, how binding is a DOL FAQ? Can the DOL deny a PERM application solely because the instruction in an FAQ was not followed? This issue was discussed in the following cases.

In Matter of Guess?, Inc. 2015-PER-00504 (June 28, 2017) the Employer filed a PERM application seeking to sponsor the foreign national for the offered position of Senior Financial Analyst. The Employer listed the job requirements as a Bachelor’s degree in Finance and 60 months of experience in the job offered. In Box. H.14 of the Form 9089, the Employer further stated that CPA licensure is required. However, when the Employer listed the foreign national’s qualifications in Sections J and K of the Form 9089, there was no indication that the foreign national was a licensed CPA. The Certifying Officer (CO) denied the application because the foreign national’s qualifications listed on the Form 9089 failed to demonstrate that he met the requirements for the offered position, specifically CPA licensure. The CO noted that Section K of the Form 9089 instructs employers to list all jobs the sponsored foreign national has held as well as any other experience that qualifies the foreign national for the job opportunity.  The CO further pointed out that the Office of Foreign Labor Certifications (OFLC) had published guidance through an FAQ on July 28, 2014, prior to the Employer’s submission of the Form 9089. To read the FAQ, click here and scroll to “Alien Experience.” The FAQ states:

When the employer lists specific skills and other requirements for the job opportunity in Section H, Question 14, the employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requirements. In order to do so, the employer should list separately in Section K all the foreign worker’s qualifications, such as certificates, licenses, professional coursework, or other credentials that meet the requirements to perform the job opportunity listed in Section H, if those qualifications have not already been explicitly identified under information about the jobs held in the past three years. If not listed elsewhere, the list of certificates, licenses, professional coursework, or other credentials held by the foreign worker and required in order to perform the job opportunity, should be entered after all jobs held in the past three years are listed, under Question 9, “Job Details (duties performed, use of tools, machines, equipment, etc.)”

Since the Employer did not list on the Form 9089 that the foreign national possessed a CPA license, as instructed by the FAQ, the CO concluded that denial of the Form 9089 application was authorized by 20 C.F.R. §656.17(i)(1) which states that the “job requirements, as described, must represent the employer’s minimum requirements for the job opportunity.” Essentially, the CO found that by including a CPA licensure requirement the Employer had indicated requirements which exceeded the foreign national’s qualifications.

The Employer requested reconsideration of the CO’s denial and submitted evidence of the foreign national’s CPA license. The Employer also argued that Section K of the Form 9089 only allows for entry of the foreign national’s work experience and that the CPA license could not have been submitted online. The Employer also argued that since the CPA license existed prior to the submission of the PERM application and since the CO did not issue an audit to request a copy, then the CO ought to accept proof of the CPA license submitted as part of the request for reconsideration in accordance with BALCA’s decision in Denzil Gunnels, 2010-PER-00628 (Nov. 16, 2010) which we previously blogged about here.

The CO upheld the denial and stated that:

[A]n FAQ is sufficient to adequately apprise the general public of changes in the Department of Labor, Office of Foreign Labor Certification policy or processing of Permanent Employment Certification Applications (PERM). Therefore, in accordance with the Department’s FAQ published on July 28, 2014, for applications filed on or after July 28, 2014, an employer seeking Permanent Employment Certification must demonstrate the foreign worker identified on the application meets all license, certificate, and requirements listed on the ETA Form 9089, at the time the application is submitted for processing.

The Employer filed a request for Board review and argued that (1) the July 28, 2014 FAQ does not cure the deficiencies in the Form 9089 and its instructions. (2) that the DOL cannot establish a substantive new rule that applications will summarily be denied for failure to list a foreign national’s licenses because the FAQ was not promulgated through the notice and comment process required to comport with due process in rulemaking; (3) that the DOL posts and removes FAQs without notice and in an inexplicable manner and that FAQs can be hard to find; and (4) that the CO erred in refusing to consider the copy of the CPA license submitted with the Employer’s request for reconsideration.

BALCA acknowledged that its panels have consistently upheld denials of certification where the employer ignored the clear directive in the Form 9089 instructions to list “all” of the foreign national’s qualifying experience. But BALCA also acknowledged that is has also ruled that applications cannot be denied based solely on an employer’s failure to include information on the Form 9089 where it is not apparent how that information could be included on the application and cited, among other cases, Smartzip Analytics, 2016-PER-00695 (Nov. 9, 2016) and Apple Inc., 2011-PER-01669 (Jan. 20, 2015) which I previously blogged about here.

BALCA found that the July 28, 2014 FAQ was an attempt by the OFLC to correct the deficiency in the Form 9089 and its instructions in regard to listing special skills, certificates, licenses and professional coursework that are not included in the required recitation of the foreign national’s qualifying job experience and that no changes have been made to the Form 9089 to address the deficiency. BALCA noted that neither the Form 9089 nor its instructions say anything about including special skills, certificates, licenses and professional coursework that are not included in the listing of the foreign national’s qualifying job experience. BALCA also found that the FAQ was silent regarding the consequences an employer may face for non-compliance with the FAQ guidance. Finally, BALCA held that the FAQ is not an appropriate and legally effective method of correcting shortcomings in the Form 9089 and its instructions and it was therefore arbitrary and inconsistent with the requirements of due process and fundamental fairness for the CO to deny the Employer’s PERM application based on a failure to state on the Form 9089 that the foreign national has a CPA license. BALCA found that the CO should have asked the Employer to submit supplementary information/documentation through the audit procedure. In the absence of an audit request, BALCA found that the CO ought to have accepted the Employer submission of a copy of the CPA license as part of its request for reconsideration.

Similarly, in Solar Turbines, Inc., 2016-PER-00025 (June 2, 2017), the CO denied the Form 9089 application, without an audit, because the Form 9089 did not establish that the foreign national possessed the skills required to perform the job. Specifically, the Form 9089 indicated that the position required academic or industry experience in the full use and application of “heat transfer, Finite Element Analysis, drafting/CAD (Pro-E), or applied thermodynamics” and the Employer did not list these skills in Section K of the Form 9089. The Employer sought reconsideration supplying the missing information and contending that there was no space on the application form to include such information. However, the CO reaffirmed the denial noting that an FAQ issued in July 2014 explained how the information could have been added to the form. BALCA reversed the denial concluding that the CO had erred in not considering the information submitted along with reconsideration request since the employer had not had a prior opportunity to submit the information. 20 C.F.R. §656.24(g)(2)(ii). BALCA agreed with the Employer that the limitations of the Form 9089 and its instructions “effectively prevented the presentation of the documentary evidence concerning the Alien’s specific qualifications to the CO.”

BALCA also spoke on FAQs in Matter of Arbin Corporation, 2013-PER-00052 (Jun, 29, 2017). In that case, after review of the Employer’s audit response, the CO denied the Form 9089 application based on a determination that the recruitment advertisements in a newspaper and on a job search website did not provide a description of the job vacancy specific enough to apprise U.S. workers of the job opportunity as required by 20 C.F.R. § 656.17(f)(3). Specifically, the CO found that the Employer’s newspaper and job search advertisements failed to mention “delivery of products” as described in the job duties listed on the Form 9089. The CO characterized “delivery of products” as a travel requirement, and he stated that had the Employer disclosed this travel requirement “to U.S. workers for the same job description which was provided to the foreign worker, potential U.S. applicants may have been interested in a company which would afford them the opportunity to travel.”

The Employer acknowledged that its advertisements did not refer to “delivery of products” and instead contained a “shortened” description of job duties. In addition, the Employer argued that if the CO believed that a hidden travel element should be disclosed then the Employer had done so by virtue of the fact that its advertisements indicated that the job requires the applicant to “maintain and repair Arbin battery testing systems” and also by virtue of the job title of “Customer Support Engineer.” These two things, the Employer argued, fully advised potential job applicants that this position requires a certain level of travel. Finally, the Employer argued that its shortened description of the job opportunity in the advertisements complied with the requirements of Section 656.17(f) as clarified in FAQ guidance published on the OFLC website that advertisements are not required to enumerate “every job duty, job requirement, and condition of employment” and that “[a]n advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity.” To read the FAQ, click here and scroll to “Advertisement Content.”

BALCA ultimately held that the Employer’s reliance on the FAQ is misplaced. BALCA cited the case of CSI International, Inc., 2012-PER-00614 (Nov. 4, 2015) in finding that the FAQ is a merely an expansion on the requirement at Section 656.17(f)(3) that advertisements “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought….” And the fact that Section 656.17(f)(3) does not require great detail about the job opportunity does not mean that an employer is exempt from including the content requirements directed by Section 656.17(f)(4) which mandates that the Employer apprise applicants of travel requirements.

The subject of FAQs also arose in Matter of Oracle America, Inc., 2015-PER-00308 (May 4, 2017), a case in which the CO denied the PERM application, after audit, based on the Employer’s failure to properly notify and consider workers it had laid off in the occupation as required by 20 CFR §656.17(k)(1). In its audit response, regarding how it notified and considered laid off workers, the Employer stated that laid-off U.S. workers had been given a notice in their termination packet with instructions on how to view and apply to any and all labor certification job opportunities that the Employer is offering. BALCA held that §656.17(k) requires specific notice to laid off workers of a job opportunity for which the employer has sought permanent labor certification. The Employer raised the subject of an FAQ (to read the FAQ, click here and scroll to “Recruitment Report”) which it argued presented an alternative to the requirement that a specific notice be provided to laid-off workers. However, BALCA held that the Employer had not complied with the guidance in the FAQ but rather, had provided the type of notification expressly rejected in the FAQ, that is, notice that simply informs the laid-off worker to monitor the Employer’s website for future openings and inviting the worker, if interested, to apply for those openings.

To what extent can the DOL utilize its FAQs as a substitute for actual rulemaking? In these cases we see BALCA find for the Employer and hold that an FAQ does not hold the power and force of the regulations. In other cases, we see BALCA indicate that the FAQ provided the Employer with means by which to comply with the existing regulations or that the FAQ represented an expansion of the existing regulations rather than a new directive. So where does that leave us? Can PERM FAQs be ignored? Certainly not. PERM FAQs have always been and will continue to be extremely important and useful to provide PERM practitioners with much needed clarity on the DOL’s requirements and expectations in the preparation and submission of PERM applications. It would serve no practical purpose to ignore FAQs only to potentially face the hurdle of a denial and an appeal to BALCA. However, to the extent that the DOL wishes to rely on one of its FAQs to create new rules and ascribe to them the force of the regulations then the DOL ought to be reminded that FAQs cannot be used to change the regulations and the issuance of an FAQ does not rise to the level of a substantive new rule because an FAQ is not promulgated through the notice and comment process required to comport with due process in rulemaking.