David Isaacson

Watson v. United States: The Second Circuit Tells U.S. Citizens Improperly Detained by ICE to File Their Claims for Damages While Their Immigration Court Case is Ongoing

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In its July 31, 2017, opinion in Watson v. United States, a panel of the U.S. Court of Appeals for the Second Circuit, over the dissent of Chief Judge Robert A. Katzmann, declared untimely the claim of false imprisonment brought by a U.S. citizen, Davino Watson, who had been detained by immigration authorities for nearly three years. A district court had awarded Mr. Watson compensation for the initial portion of this detention, although not for the portion of his detention when he was being prosecuted negligently in proceedings before an immigration judge (on the theory that malicious prosecution under New York law requires actual malice rather than mere negligence). According to the Second Circuit panel majority, however, Mr. Watson’s claim of false imprisonment needed to have been brought soon after the proceedings against him began, or at least within two years of the time he was first incorrectly found to be a removable noncitizen by an immigration judge.  The implication is that many people with plausible claims of U.S. citizenship who are detained by immigration authorities should file an administrative claim regarding their detention, and likely sue in federal court regarding that detention, even before their immigration proceedings are over.

Davino Watson had been born in Jamaica to unmarried parents, and had come to the United States as a lawful permanent resident (LPR) in 1998, at the age of thirteen, to live with his father.  Watson’s father then became a U.S. citizen on September 17, 2002, when Watson was only seventeen years old.  Watson also became a U.S. citizen at that time under section 320(a) of the Immigration and Nationality Act (INA), 8 U.S.C. §1431(a), which bestows U.S. citizenship on the child of a U.S. citizen, under the age of eighteen, who is “residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.” INA §320(a)(3), 8 U.S.C. §1431(a)(3).

After Watson pleaded guilty in New York State court in 2007 to sale of cocaine, agents of Immigration and Customs Enforcement (ICE), as the Second Circuit recounted, “investigated his citizenship status to determine whether he was deportable.” This investigation, however, was, as the panel majority acknowledged, “beset by errors.”  That is putting it mildly.  Watson told ICE he was a U.S. citizen during his very first interview, and gave them the phone number of his father and stepmother, but the ICE agents never called that number, even though the same number had been listed in Watson’s pre-sentence report.  ICE did make some attempt to look up Watson’s parents in a government database, but it appears to have been an extremely slipshod attempt.  Instead of Watson’s father, Hopeton Ulando Watson, who lived in New York and whom Watson had told them was married, ICE found records for an unmarried man named Hopeton Livingston Watson, who lived in Connecticut, “did not have a child named Davino, and became a lawful permanent resident three years after the date of Davino Watson’s lawful permanent residency.”  (ICE also confused Watson’s mother, Clare Watson, with a “Calrie Dale Watson” in their database, although Calrie Dale Watson was married not to anyone with a name remotely resembling Hopeton Watson but rather  to a man named Gabriel Miller.)   This despite the fact that Davino Watson’s own file contained an affidavit from his father, submitted in connection with Davino’s application for lawful permanent residence, which “contained Hopeton Ulando Watson’s date of birth, alien number, and social security number, none of which matched the corresponding file data for Hopeton Livingston Watson.”  Relying on the (irrelevant) fact that Hopeton Livingston Watson was not a U.S. citizen, a supervisory ICE officer drafted a Notice to Appear, and another supervisor, the district court found, “mindlessly signed” it and forwarded it to ICE officers who took Watson into custody.

Watson was detained by ICE for nineteen days before his Notice to Appear was filed with the Immigration Court, and “he first appeared before an immigration judge about a month afterward.”  In total, that is, Watson was detained for forty-eight days before he even saw an immigration judge.  He again asserted his U.S. citizenship, and filed an application for a certificate of citizenship with U.S. Citizenship and Immigration Services (USCIS).

Watson’s application for a certificate of citizenship was denied on the basis of the then-recent decision of the Board of Immigration Appeals (BIA) in Matter of Hines, 24 I&N Dec. 544 (BIA 2008), which had held that a child born in Jamaica could only have his paternity established “by legitimation” if the child’s parents married. Because being “legitimated” is a prerequisite for someone born out of wedlock to qualify, with respect to their father, as a “child” for purposes of INA §320(a) under the definition of “child” in INA §101(c)(1), 8 U.S.C. §1101(c)(1), USCIS determined based on Hines that Davino Watson did not qualify as his father’s “child” and so could not have acquired citizenship under INA §320. The Immigration Judge agreed, and ordered Watson’s removal on November 13, 2008.

The application of Matter of Hines to deny Watson’s claim to U.S. citizenship was problematic for a number of reasons, and the BIA ultimately concluded that Watson was indeed a U.S. citizen, although as the Second Circuit panel majority noted, “[t]he government’s precise views on the application of Hines to Watson’s case are somewhat obscure.” Matter of Hines may, as ICE suggested in a memorandum and Chief Judge Katzmann emphasized in his dissent, never have been meant to apply retroactively to those like Watson who would have been citizens under the previous precedent of Matter of Clahar, 18 I&N Dec. 1 (BIA 1981). The general rule is that citizenship is acquired based on the law in effect when the last of the conditions for it is met—which, in Watson’s case, would have been in 2002 when his father naturalized, after Clahar was decided and long before Hines was decided.  In addition, the Hines definition of “paternity by legitimation” for purposes of a different INA provision may not, as the BIA indicated in an unpublished opinion in Watson’s case, have applied to the word “legitimated” in INA §101(c)(1). After Watson’s case had been resolved, the BIA partly overruled Matter of Hines in a published opinion, Matter of Cross, 26 I&N Dec. 485 (BIA 2015), which reinstated and reaffirmed Matter of Clahar and confirmed that Hines should not be applied to prevent a child born to unmarried parents in Jamaica from qualifying as a “child” under INA §101(c)(1) and §320(a). Rather, all children born or residing in Jamaica after the 1976 effective date of the Jamaican Status of Children Act, which gave equal rights to children born out of wedlock, are considered legitimated for purposes of INA §101(c)(1) and §320(a).

The Second Circuit remanded Watson’s removal case to the BIA for clarification regarding the legitimation issue on May 31, 2011, in Watson v. Holder, 643 F.3d 367 (2d Cir. 2011). Watson was released from ICE custody in November 2011, evidently on the basis of his claim to U.S. citizenship, although he was released “into rural Alabama (where he knew nobody), without money, and without being told the reason for his release.”  His removal proceedings formally continued for more than a year after that, until the BIA ruled that he was a citizen and terminated his removal proceedings.  He then finally received a certificate of citizenship on November 26, 2013.

Having been recognized as a U.S. citizen, Mr. Watson sought compensation for his legally unjustified detention by filing an administrative claim for damages with the Department of Homeland Security (DHS) on October 30, 2013, under the Federal Tort Claims Act (FTCA).  After that claim was denied, he brought a lawsuit in the U.S. District Court for the Eastern District of New York on October 31, 2014.  While the district court rejected his malicious-prosecution claim because, as noted above, such claims under New York law (incorporated by reference through the FTCA) require actual malice and not mere negligence of the sort exhibited in Mr. Watson’s case by ICE, the district court found that Mr. Watson had a meritorious claim for false imprisonment regarding the initial period of his detention.  That claim was subject to a two-year statute of limitations, but the district court found that this statute of limitations had not begun to run until Watson received his certificate of citizenship in November 2013, or in the alternative that Watson’s claim was saved by equitable tolling of the statute of limitations.  The Second Circuit panel majority, however, over the vehement dissent of Chief Judge Katzmann, disagreed on both points.

The two-year clock for Watson to file his claim, the Second Circuit held, began at the latest in November 2008, when the Immigration Judge ordered Watson’s removal. At that point, if not earlier, the false imprisonment ended, the Second Circuit held, because Watson was held “pursuant to legal process.”  This was more than two years before Watson filed his claim in 2011.

The Second Circuit panel majority also overruled the district judge’s finding that Watson was entitled to equitable tolling of the limitations period.  According to the majority, Watson had not shown that “some extraordinary circumstance stood in his way” and prevented him from timely making his claim.  The district court had granted equitable tolling, as the majority explained, “based on Watson’s lack of education and legal training, his unawareness that he could bring an FTCA claim until being advised by appointed counsel, his depression, and ‘most significantly,’ the fact that government officials told Watson that he was not a U.S. citizen.” The Second Circuit panel majority found that “[n]one of these reasons justifies equitable tolling.”  Given Watson’s ability to fight his case in immigration court, the panel majority held, he could not show that his depression or his having been repeatedly told he was not a U.S. citizen prevented him from bringing an FTCA claim.  And because Watson’s lack of education and legal training were “an entirely common state of affairs,” they were not sufficiently extraordinary to justify equitable tolling, even though Watson had not had legal counsel during most of his time in detention.

Chief Judge Katzmann, in his dissent, disagreed with both the panel majority’s ruling regarding the initiation of “legal process” in immigration court as beginning the running of the statute of limitations on Watson’s false-imprisonment claim, and the majority’s decision to overturn the grant of equitable tolling.  On the “legal process” point, Chief Judge Katzmann objected to the significance that the panel majority attached to a hearing process in which the detained person was not entitled to, and did not have, the assistance of counsel.  In the criminal context, the procedural landmarks upon which “legal process” has been held to commence and cut off a false-imprisonment claim are also times at which a criminal defendant is entitled to the assistance of counsel.  Here, on the other hand, the government was arguing that Watson’s false-imprisonment claim should end because of a legal proceeding at which he, alone and without an attorney, bore the burden of making a complex argument regarding the significance of legitimation.  Chief Judge Katzmann observed that “if there is any case where meaningful legal process cannot be said to have begun without the assistance of counsel, this, surely, is one.”  As for equitable tolling, Chief Judge Katzmann found that the district judge had not abused his discretion in holding it to be warranted.  As he concluded:

I would hope that nothing about Watson’s 1,273‐day detention can be said to have been “an entirely common state of affairs.” Maj. Op. at 14–15. If it were, we should all be deeply troubled. An American citizen was detained on the basis of a “grossly negligent” investigation that “led to [his] wrongful detention.” The government, the IJ, and the BIA all misapplied clear precedents of law, which, coupled with Watson’s lack of counsel until mid‐2011, resulted in his three‐and-a‐half‐year detention. Watson had an eleventh‐grade education, suffered from depression as a result of his detention, and was repeatedly told by ICE officials, government lawyers, the IJ, and the BIA that he was not a U.S. citizen and that he would be removed from the country he had known as his home from the time he was 14 years old. Given all this, I cannot conclude that the “legal process” Watson experienced should extirpate his legal claims, nor can I draw the conclusion that the district court abused its discretion in determining that Watson’s case merited equitable tolling.

Watson, slip op. at 18 (Katzmann, C.J., dissenting) (internal citations omitted).

As a practical matter, it seems to this author unfair to fault Mr. Watson for not filing an administrative claim sooner.  Chief Judge Katzmann appears to me to have the better of the argument with the panel majority regarding the impropriety of overturning the district judge’s fact-specific finding of equitable tolling under these circumstances.  Beyond that, however, the Second Circuit’s decision has created a legal situation that DHS may come to regret.

According to the Second Circuit’s decision in Watson, it appears that any immigration detainee who believes that he or she is a U.S. citizen and has been improperly detained should commence the process of filing an FTCA claim, and if necessary suing the government in federal court, before the removal proceedings against him or her are resolved.  At least in the Second Circuit, the government cannot object in response to such a filing that the claim cannot be brought until the removal proceedings are terminated.  The Second Circuit majority in Watson has rejected that analysis, which the district court had followed based on an analogy to Heck v. Humphrey, 512 U.S. 477 (1994) (requiring that a criminal conviction be set aside or declared invalid in some way before one can seek damages relating to an unconstitutional conviction or sentence). Rather, according to Watson, the government must defend the FTCA claim, and the related lawsuit, in parallel with the removal proceedings.

Moreover, a federal court judgment in the FTCA action declaring that the detainee was a citizen and thus unlawfully detained should, it seems, have preclusive effect on the removal proceedings. Thus, a claimed U.S. citizen would not have to wait for the judicial review of this citizenship claim that would be available under 8 U.S.C. §1252(b)(5) after the Immigration Court and BIA had addressed his case. Rather, by pursuing the FTCA action, it would be possible to obtain judicial review of the U.S. citizenship claim before the removal proceedings had otherwise run their course.

This earlier judicial attention to a U.S. citizenship claim might also have the salutary effect of provoking a quicker release of the detainee from custody. Faced with possible liability on the part of the United States, one would hope that an Assistant U.S. Attorney or an attorney from the Department of Justice’s Office of Immigration Litigation might intervene with DHS to get a detainee released more quickly.

Ultimately, the troubling decision in Watson may still result in more lost redress for unjustly imprisoned U.S. citizens, who lacked legal counsel, than it does additional opportunities for counseled detainees.  However, there is a possible silver lining to the cloud, and it is one the government may find itself displeased to have created.

Cyrus Mehta

RAISE Act Will Hurt Immigrants, Americans and America

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Last week, President Trump lent full throated support towards the Reforming American Immigration for a Strong Economy Act (RAISE Act), which will dramatically alter the immigration system in the United States the way we know it. Although this bill, proposed by Republican Senators Cotton and Purdue has little chance of moving through Congress, it has drawn significant attention as it intends to redefine America’s immigration experience over the last two centuries.

The RAISE Act deemphasizes immigration through the family, and instead creates a points system based on skills. A successful applicant must get at least 30 points.  The bill insists on English language proficiency, and allocates 0 to 12 points based on test scores. Those with US professional degrees or a doctorate in a STEM field will get the maximum of 13 points for education. By contrast, a high school diploma gets 1 point, a foreign bachelor’s degree gets 5 points, a US bachelor’s degree gets 6 points, a foreign master’s degree in a STEM field will get 7 points, a US master’s degree in a STEM field will get 8 points and a foreign professional degree or doctorate in a STEM field will get 10 points.

The younger one is the more points he or she will get, and those within the 26-30 years age range will get the maximum of 10 points. 25 big points are given for extraordinary achievement, but you must have won a Nobel prize or gained comparable recognition in a field of scientific or social scientific study. There are no comparable points for extraordinary achievement in the arts or business fields. For sportspeople, you will get 15 points if you won an Olympic medal or placed first in an international sporting event in which the best athletes in an Olympic sport were represented. Those with job offers, based on how much the offered wage will be over the median salary in the state where the job is located, will also get points ranging from 5 to 13. Investment in a new commercial enterprise at $1,350,000 will fetch 6 points; and an investment of $1, 800,000 will fetch 12 points.

The bill eliminates the diversity lottery program, or green card lottery, which awards 50,000 visas annually through a lottery from countries with low rates of immigration to the United States. It caps the number of refugees granted permanent visas to the United States at 50,000 per year. Most devastatingly, the RAISE Act eliminates all the family preferences, and only maintains the preferences for spouses and minor children of permanent residents. Parents of US citizens will no longer be treated as immediate relatives, but can come on renewable temporary visas. The definition of a minor child is changed from 21 to 18. The worldwide family quota is cut from 480,000 to 88,000 minus the number of people paroled into the United States who have not departed within 365 days and have not received a green card within 2 years of getting parole status. Pending family based petitions are voided except for those that are scheduled to get green cards within one year and entry into the United States must happen within one year of the bill’s enactment.

Most pro-immigration reform advocates have not supported this bill, except for some notable  exceptions like Vivek Wadhwa who wrote Why As An Immigrant, I am Not Outraged By Trump’s Immigration Proposal. On the other hand, restrictionist immigration organizations such as FAIR and Numbers USA have readily embraced the bill. The reason for their ready embrace is that the RAISE Act drastically cuts immigration levels, and the points system will prove to be unworkable.  Steven Miller, a senior White House aide and one of the architects of RAISE Act and the travel ban, famously got into a heated exchange with CNN’s Jim Acosta. Acosta asked Miller if the bill would violate the spirit of the poem New Colossus, inscribed at the base the Statue of Liberty, which includes the famous line: “Give me your tired, your poor, Your huddled masses yearning to breathe free.” Miller retorted that the statue is “a symbol of American liberty lighting the world” and the “the poem that you were referring to was added later and was not part of the original Statue of Liberty”, and then went on to combatively quiz Acosta on what level of immigration would violate his “Statue of Liberty law of the land”.  The RAISE Act also appears to be a xenophobe’s delight as its main aim is to restrict immigration levels. Mr. Wadhwa, who is not a xenophobe and is pro-immigrant, approaches his embrace of the bill differently by arguing that the US immigration system needs to attract skilled talent on green cards, rather than temporary H-1B visas, so that they can start the next generation of great companies in the United States rather than depart the United States under our current imperfect system and start companies in competitor nations like China.

Wadhwa certainly has a point. We need to reform our immigration system to keep skilled talent, but not at the expense of decimating everything else, including the values represented by the Statute of Liberty. Most economists credibly argue that more immigrants create more jobs, and that restricting immigrants will not necessarily create more jobs for American workers. The RAISE Act keeps intact the annual 140,000 limit for employment-based immigrants that was set in the Immigration Act of 1990, in addition to drastically restricting all other visa categories. Although per country limits are abolished, derivative family members are counted as part of the 140,000 limit which will eat into the pie.  It provides no pathway to permanent residence for lower skilled but essential workers who support the American economy. Despite conflicts of interest, even President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. These are for temporary H-2B visas with no green cards at the end of their temporary stay.

Worse still, RAISE Act is cruel to the hundreds of thousands of beneficiaries of approved I-140 petitions from India and China who are caught in the crushing employment-based second and third preference employment backlogs. The bill does not grandfather them, implying that they will need to re-apply under the new points system after waiting for over a decade. Since they have gotten older by 10 or more years, they will lose out on maximum points for age. If their approved I-140 immigrant visa petitions are based on non-STEM degrees, even if they have PhDs, they will not get the same points for education as those with master’s degrees in STEM fields. Even people caught in the China EB-5 backlog will unduly suffer. When they reapply, they will not get any points on the $500,000 investments they have already made as the investment threshold in the RAISE Act that will fetch points have been substantially increased, and they will also likely lose out on English skills.  One can also imagine the backlogs that will be created when hundreds of thousands of in the existing employment-based preferences apply under the points system of the RAISE Act. People will be re-applying over and over again.  The RAISE Act points system, which seems to be a bastardized version of the Canadian and Australian point systems, could lead to other absurd results. If you are 46-50, have English scores in the 6th or 7th decile, have a foreign bachelor’s degree, and have a lucrative job offer, you are flatly disqualified from coming under this system.  Even if you’re age 41-45, and so get 4 points for age rather than 2, you would have only 28 points total and be completely ineligible.  No wonder that FAIR and Numbers USA love the RAISE Act. Mr. Wadhwa ought to rethink his position.

Immigrants with all sorts of backgrounds contribute to the United States, and it is fallacious to think that only those with STEM degree will. If a famous restaurant specializing in North Indian cuisine cannot hire a good tandoori chef on a permanent basis, then the restaurant will not be able to prosper and hire additional restaurant managers, catering supervisors and bartenders from among the US workforce. America, therefore, needs both STEM graduates and Tandoor chefs! Moreover, a nation needs both social justice and good economics; indeed, social justice is the best economics. Therefore, cutting refugee admissions is not a good idea.  A good example of the synergy between social justice and economics is Sergey Brin, who is the co-founder of Google. He came to the United States with his parents at the age of six because they faced anti-Semitism in their native Russia. Although Brin graduated from Stanford in computer science, he did not come to the US on an H-1B visa or would have benefitted under a hypothetical RAISE Act points system.  His parents were able to come into the United States based on an immigration program that was designed to protect foreign nationals from intolerance in their native countries. Still, Brin after coming to the US as a youngster was able to go on to found Google, considered one of America’s best and most innovative companies today. The insistence on learning English before one arrives is also not necessary. Indeed, culture through dance, food and music is best preserved through the language of the country where it emanates, and America will be that much more enriched if it embraces the authentic cultures of immigrants who in good time will learn English – surely, their descendants will speak English.

We should have immigration reform that admits more immigrants rather than less, as David Bier has cogently argued in a recent NY Times Op-Ed. A points system is fine if it compliments other existing immigrant visa categories. A good example was S. 744 that was passed by the Senate in 2013 in a bipartisan manner that comprehensively reformed the immigration system by expanding pathways to permanent residence, and also included a merits system. The RAISE Act does not do this and  is a terrible idea, and furthers Trump’s America First agenda, which like his proposed wall on the Mexico-US border, is based on dubious economics and has not yet proven to have any merit.  While the RAISE Act bans low skilled workers, it may also attract PhDs who may drive Ubers in America. This has been the experience in Canada under the points system, where highly qualified people have immigrated without being matched with jobs. Unlike Mr. Wadhwa,  I am justifiably outraged as an immigrant by Trump’s immigration proposal.

Cyrus Mehta

H-1B Entry Level Wage Blues

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Those who filed under the FY 2018 H-1B visa lottery and were selected must have been pleased. As premium processing was eliminated, the approvals have just started coming in this summer. Cases that are not readily approved receive Requests for Evidence (RFE). Many of the RFEs object to the H-1B worker being paid an entry level wage.

The RFE attempts to trap the employer. It challenges whether the Labor Condition Application, if it indicates a Level 1 wage, appropriately supports the H-1B petition. According to the DOL’s prevailing wage policy guidance,  a Level 1 (entry) wage is assigned to positions that require a basic understanding of the occupation, and such an employee performs routine tasks that require limited, if any, exercise of judgment. Such an employee also works under close supervision and receive specific instructions on required tasks and results expected.

The RFE – which meticulously parrots the Level 1 duties from the DOL’s wage guidance – then asserts that the position described in the H-1B petition appears to be more complex than a position that is assigned a Level 1 wage. Therefore, the RFE asserts that the employer has not sufficiently established that the H-1B is supported by a certified LCA that corresponds to the petition.

Employers who receive such an RFE should not panic. Just because the position is assigned an entry level wage does not necessarily mean that the position cannot qualify as an H-1B specialty occupation. Moreover, even an occupation assigned with an entry level wage can be complex and thus require a bachelor’s degree in a specialized field. The DOL’s worksheet within its wage guidance indicates that if the occupation requires a bachelor’s degree and up to two years of experience, it will be assigned a Level 1 wage to a corresponding Job Zone 4 occupation. In the event that the job requires skills, would that bump up the wage to Level 2?  Unless the job requires skills that are not encompassed in the O*NET tasks, work activities, knowledge, and Job Zone examples for the selected occupation, the position can still remain in Level 1, according to the DOL’s wage guidance.

Hence, the corresponding tasks of an occupation requiring a bachelor’s degree and up to two years of experience can still be complex, even if the wage remains at Level 1 and the position requires supervision. For example, it would be difficult for the USCIS to argue that an entry level doctor, lawyer or architect cannot qualify for H-1B visa classification. These occupations need underlying degrees in the specialty as a minimum for entry into the profession. Even if the lawyer is closely supervised, he or she still needs to perform complex tasks relating to the underlying Juris Doctor degree. The same logic ought to apply to other occupations that are readily classifiable under the H-1B visa such as engineers or computer systems analysts. The job duties at any wage level correspond to the knowledge that is acquired through a specialized degree such as a degree in engineering or computer science.

Indeed, the wage level assigned to the occupation ought not determine whether it is eligible for H-1B visa classification or not. If the position does not require a minimum of a bachelor’s degree for entry into the occupation, such as a plumber or welder, then even a Level 4 wage assignment would not be able to salvage this occupation for purposes of H-1B classification.

In  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 computer programmers in the  DOL’s Occupational Outlook Handbook that states, “Most computer programmers have a bachelor’s degree; however, some employers hire workers who have an associate’s degree.”  The guidance also questioned 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.  While this policy memorandum only applied to entry level computer programmers, practitioners are now seeing that any occupation that is assigned a Level 1 wage, even if it is not related to computer programmer, gets an RFE. It may be worth noting that even an entry level computer occupation should be eligible for H-1B classification if it can be demonstrated that the skills necessary to perform the duties require the minimum of a bachelor’s degree.

President Trump’s Executive Order on Buy American Hire American may also be responsible for this trend, which provides in relevant part:

In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries

Even if the administration has not been able to promulgate new regulations to achieve its stated goals under the executive order, these RFEs are indirectly implementing President Trump’s “Buy American Hire American” policy by thwarting H-1B petitions filed for entry level positions. While H-1B petitions with Level 1 wages have run into trouble prior to the Trump administration, RFEs are now being issued more frequently whenever a Level 1 wage has been noticed. Immigration attorneys must fight back on behalf of their clients. Otherwise, the government could potentially exclude entry-level professionals from using the H-1B visa, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. Paying such an entry wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision. Another argument that can be made is that if an employer is forced to pay a legitimate entry level worker on an H-1B visa at a wage level higher than the entry level wage, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer is forced to pay a higher wage to an H-1B worker at the entry level, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is as a result of reading out H-1B visas from the INA for entry level workers in acknowledged professions, it could also have the effect of artificially distorting wages that could ultimately hurt competitiveness. If the wage paid is well above the minimum wage  in Level 1, but slightly under Level 2, and at times there is at least a $20,000 or $30,000 difference between Level 1 and Level 2, then that too can be used to argue that the higher wage being paid is commensurate to the more complex duties in the H-1B petition, despite the RFE asserting that the duties are basic, even if this higher wage is still within Level 1.

There is nothing in the INA or in the implementing regulations that suggest that a position that commands an entry level wage is ineligible for H-1B visa classification. All that is required is for the petitioning employer to demonstrate that the proffered position requires the “theoretical and practical application of a body of highly specialized knowledge” and “attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”  INA §214(i)(l).  The regulations further 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 then provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation:

  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.  See 8 CFR §214.2(h)(4)(iii)(A).

All of the criteria in 8 CFR §214.2(h)(4)(iii)(A) suggest that the bachelor’s degree is the minimum requirement for entry into the occupation or for purposes of performing the duties of the position. However, if one is relying on prong 4 to establish H-1B eligibility because it is unusually complex or specialized, the AAO in an unpublished decision has noted that this would create an issue of credibility if the LCA only identifies a Level 1 wage. Therefore, practitioners should be prepared to either assert that the duties can be specialized and complex even if a Level 1 wage is being paid, or alternatively, argue under prongs 1, the first part of prong 2 or prong 3. In a different decision, the AAO recognized that a Level 1 wage in certain occupations, such as doctors or lawyers, would not preclude a finding that they qualified as specialty occupations. Of course, if the position required more than 2 years of experience, then it will be harder for the employer to argue, if not impossible, that an entry level wage was justified. On the other hand, if the beneficiary was demonstrating possession of a degree through work experience, it should be carefully explained that this experience is not part of the job requirement, but is being used by the beneficiary to obtain the equivalent of a specialized degree through training or work experience.

Lawyers must use every argument in their legal arsenal to overcome RFEs intending to deny H-1B petitions that contain a Level 1 wage, and if there is a denial, to seek either administrative or judicial review. The law did not intend to impose a Catch-22 on employers who legitimately hire H-1B workers for entry level positions. If the employer argues that the duties are routine and comport to the Level 1 wage definition then the USCIS will play “gotcha” by asserting that the occupation does not qualify for H-1B classification. If, on the other hand, the employer argues that the duties are complex and specialized, then the USCIS will likely continue to delight in playing “gotcha” by asserting that the LCA does not correspond to the H-1B petition. There is a way to avoid this trap.  An employer can demonstrate that routine entry level duties that still need to rely on skills acquired from a specialized bachelor’s degree program would qualify the occupation for H-1B classification. Alternatively, an employer may also be able to demonstrate that certain duties can be complex and specialized in occupations even at an entry level.  The employer must choose the best argument based on the specific occupation being challenged and facts of the case.

There was a time when obtaining an H-1B visa was considered routine and easy. Not so any longer.

Cyrus Mehta

Trump’s H-2B Visa Conflict: How We Can Take Advantage Of It To Gain Broader Immigration Reform

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On July 19, 2017, the Trump administration increased the H-2B cap from 66,000 to 81,000 by promulgating a final rule. H-2B visas are annually capped at 66,000 under the law. Due to an increase in demand of essential workers to serve landscapers, hotels, restaurants and seafood processors each year, the H-2B cap gets hit earlier each year.

Congress provided for a one time increase in FY 2017 through section 543 of the Consolidated Appropriations Act of 2017, signed by President Trump,  which allows the Department of Homeland Security and the Department of Labor to increase H-2B visas this fiscal year based on a complex formula. As a result, the DHS and DOL increased the H-2B cap by 15,000 on July 19. The long sought for increase is too little and is also too late as the 2017 year will be ending by September 30, 2017. The temporary rule also places an onerous standard. Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request for this fiscal year may file under this one-time increase in the H-2B cap.

A day later, on Thursday, July 20, President Trump’s Mar-a-Lago filed labor applications with the Department of Labor for 15 housekeepers, 20 cooks and 35 servers. Trump’s golf course in Jupiter, FL filed labor applications for 6 cooks. Contrary to media reports, Trump’s businesses sought these H-2B visas for the next fiscal year quota and not under the temporary additional 15,000 H-2B increase for the remainder of 2017. Still, it is quite a coincidence that his businesses sought additional H-2B visas when his own administration issued a rule temporarily increasing H-2B visas a day earlier

The DOL that will process and approve these applications reports to Trump. Once the DOL has issued labor certifications, H-2B visa petitions will need to be filed with United States Citizenship and Immigration Services of the DHS. The DHS reports to Trump. Once the USCIS approves the H-2B visa petitions, the foreign workers will apply for H-2B visas at US consulates in their home countries. The US consulates, who will say yea or nay, are under the purview of the Department of State, which also reports to Trump.

If Trump’s business files for H-2B visas under the temporary 15,000 H-2B quota for the 2017 year, they will have to demonstrate “irreparable harm (that is permanent and severe financial loss), if [they] cannot employ H-2B nonimmigrant workers in fiscal year 2017.” It remains to be seen whether Trump’s businesses can credibly make such a case. Will Mar-a-Lago, promoted as the “winter White House”, which is frequently used by Trump to conduct business on behalf of the United States, and to also entertain visiting dignitaries, suffer irreparable harm including permanent and severe financial loss if it cannot bring in cooks and housekeepers on H-2B visas? If the DOL approved the case for Mar-a-Lago under this heightened standard, it would be hard to pass the laugh test. The heightened standard may even be ultra vires the statute, and it may be interesting to see Trump consider challenging a rule made by his own administration!

Trump’s businesses clearly rely on the H-2B visa. His administration temporarily increased the H-2B visa by 15,000 (even though Trump’s businesses have not yet applied for visas under this increase). The government agencies that will more likely approve rather than deny H-2B visa applications all report to Trump. The move to file H-2B visa petitions for foreign workers also defies Trump’s America First rhetoric that intends to provide jobs to Americans over foreign workers. Indeed, these H-2B visas were filed in Trump’s much publicized “Made in America” week. Just as in every other case where Trump has retained his businesses while serving as president, here too there is a clear conflict of interest if his businesses utilize the H-2B visa program. The conflict will be even more staggering if Trump’s businesses use one of the 15,000 H-2B visas under the temporary increase.

Looking at the bright side, Trump realizes the need for foreign workers on H-2B visas to run his businesses. Although H-2B visas are essential, they only represent a narrow slice of the pie. If Trump does not want this to appear as a conflict of interest, and he is already being accused of being the most conflicted president in modern history, he should view immigration in the same way that he views the H-2B visa program for his businesses. Just as his businesses benefit from foreign workers, so would other businesses as well as the US economy through an expansion of visas. If his businesses cannot hire foreign cooks and housekeepers, the business will not run as profitably and other American workers cannot be hired to manage the H-2B workers. Therefore, the hiring of foreign H-2B workers can create more jobs for Americans. Foreign workers, rather than replacing domestic workers, compliment them. It is this complementariness between American and foreign workers that keeps businesses ticking and profitable.

There are many businesses that are crying out for higher skilled professional H-1B workers. The H-1B visa program is also annually capped at 65,000, with an additional 20,000 H-1B visas for those who have graduated with advanced degrees from US institutions. There is no flexibility to add another 15,000 H-1B visa numbers as with the H-2B visa program. Only Congress can raise the limit, but Trump can persuade Congress to do so. It makes no sense for our universities to educate and graduate top notch foreign students, who then cannot work in the United States because of an arbitrary H-1B cap. If they are forced to return to other countries, they will compete with the United States instead of contributing to it.  US based global corporations must also be given access to tap into pools of global talent so that they can remain competitive, which in turn will benefit consumers in the United States – and ultimately create more jobs for Americans.

There are also entrepreneurs who would love to start up innovative companies in the United States, but there is no startup visa. Instead, the Trump administration just shelved the entrepreneur parole rule that was promulgated by the prior Obama administration. In a podcast where Professor David Hsu of Wharton and I were the guests, we both wondered why Trump really needed to put this rule on ice. It would have benefitted a small group of entrepreneurs, as the threshold of receiving a $250,000 investment was high, but the upsides to the United States could have been tremendous. If one of these foreign entrepreneurs succeeded and his or her startup became a Google, it would result in a paradigm shift in terms of job creation and benefitting US competitiveness. A lot of immigrants have dreams and they want to start their own business and make it big in the U.S. The rule provided one pathway for immigrants to do so, and by not having it and freezing it, we are being less competitive. America needs to realize that it is not the only game in town. There are other countries that want to compete, and we need to be up there — and we are not, unfortunately, by freezing this rule.

In the podcast, now posted on Knowledge@Wharton, Professor Hsu noted that countries like Canada, France and Argentina have provisions that lower the barriers for immigrant entrepreneurs. Immigrants make up about 12% of the U.S. working population, he added. Among STEM (science, technology, engineering and math) workers, immigrants make up 24% of bachelors and 47% of doctorates, he continued. “So [immigrant entrepreneurs] are punching above their weight in the talent pool for the workforce that we desire in the U.S.,” he said. He pointed to one much-cited statistic: foreign-born entrepreneurs make up about half the founders in the so-called “billion dollar club” of startups that are worth at least a billion dollars each.

President Trump ought to also pay attention to the plight of skilled workers who are caught in the employment-based immigrant visa backlogs, mainly those born in India and China. Eliminating the per country limits or not counting derivative family members would go a long way in alleviating their plight, some of whom are trapped in decades long backlogs. Once they get their green cards, they too will be able to unleash far more dynamism in the US economy.

Finally, even undocumented workers are contributing to the United States. Let’s first start with Dreamers who have received work authorization under the Deferred Action for Childhood Arrivals (DACA) program. I have personally seen my own clients embark on successful professional careers after they received DACA authorization, and thus contribute to their fields and the US economy. At this time, DACA seems to be imperiled. It would be a tragedy if young people with a bright future are deported. Other undocumented workers also aspire to do well for themselves and their families. Deporting DACA recipients could result in a loss of $433.4 billion to our GDP besides being politically unpopular. Trump should lend his support to the bipartisan DREAM Act of 2017. One simple way for the US economy to achieve a 4% growth rate, as President Trump desires, is to take in more immigrants. Adam Ozimek and Mark Zandi at Moody’s Analytics, an independent economics firm, estimated for ProPublica that for every 1 percent increase in U.S. population made of immigrants, GDP rises 1.15 percent. Therefore, a simple way to get to Trump’s 4 percent GDP bump is to take in about 8 million net immigrants per year.

All this might be wishful thinking in the age of Trump, who got an electoral college victory largely because of his rhetoric against immigrants as job stealers and criminals. Trump desires to erect a big wall. He has also imposed a travel ban against countries with mainly Muslim populations. At the same time, Trump has realized the need for the H-2B visa so that his businesses can run more profitably. He obtained the forbidden fruit by raising the H-2B limit from 66,000 to 81,000, which he could do as president of the United States. He also wishes to create more jobs in the United States. What better way to do that is for Trump to realize that more immigration is consistent with his goal for creating more American jobs. Trump changes his mind all the time. At one point, he was against NATO and China, but he is not so today. He should also change his mind about immigrants and immigration, especially now that he has felt the need for H-2B visa workers to benefit his own businesses.

Cyrus Mehta

Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply To All Immigration Benefits

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Form N-400, Application for Naturalization, asks broadly “Have you EVER committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Another broad question is “Have you EVER been a member of, involved in, or in any way associated with, any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?”  It would be difficult for an applicant to answer this question accurately or remember every instance of membership in his or her life. For instance, does the applicant need to include membership in a school club in 8th grade? Until recently, an inaccurate but immaterial response to these two questions could have resulted in both criminal liability and revocation of naturalization.

On June 22, 2017, in Maslenjak v. United States,  the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship under 18 USC 1425(a). Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

This ruling is significant. It prohibits a government official from revoking a naturalized American’s citizenship based on an insignificant omission or misrepresentation. If the applicant did not indicate that she was a member of her school club to the question on the naturalization application asking about membership in any club at anytime and anywhere in the world, a vindictive prosecutor can no longer use this as a basis to indict her under 18 USC 1425(a), seek a conviction and then revoke her citizenship.

What is even more significant is that the Supreme Court sets a higher standard for demonstrating a connection between the violation and naturalization under 18 USC 1425(a) than the earlier standard of determining materiality under 8 USC 1451(a), the civil revocation statute, and elaborated at length in Kungys v. United States.  At issue in Kungys v. United States was whether the failure to indicate the correct date and place of birth was material to justify the revocation of Kugys’s citizenship under the civil provision. Justice Scalia writing for the majority held that the test of whether Kungys’ concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the former Immigration and Naturalization Service. The formulation in Kungys v. United States has been adopted in the State Department’s Foreign Affairs Manual to determine whether a visa applicant made a material misrepresentation that would render him or her ineligible for fraud or misrepresentation under INA 212(a)(6)(C)(i):

The word “tends” as used in “tended to cut off a line of inquiry” means that the misrepresentation must be of such a nature as to be reasonably expected to foreclose certain information from your knowledge. It does not mean that the misrepresentation must have been successful in foreclosing further investigation by you in order to be deemed material; it means only that the misrepresentation must reasonably have had the capacity of foreclosing further investigation.

See 9 FAM 40.63 N6.3-1

In Maslenjak v. United States, the Supreme Court built on the formulation in Kungys to create a heightened standard for the government to prove that a person committed a crime pursuant to 18 U.S.C. 1425(a), which provides: “knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship.” Justice Kagan developed the following standard:

[T]he Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation [citation omitted]. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit.

As to the second link in the casual chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation “would predictably have disclosed” some legal disqualification (citation omitted).   If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think §1425(a) requires.

Justice Kagan’s opinion went on to state that “[e]ven when the Government can make its two-part showing, however, the defendant may be able to overcome it. §1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”

Justice Gorsuch with whom Justice Thomas joined, issued a concurring opinion stating that there was no need for the Supreme Court to create a new formulation, and that the Court of Appeals could do just that.  “This Court often speaks most wisely when it speaks last, ” according to Justice Gorsuch.  In a separate concurring opinion, Justice Alito suggested that the formulation in Kungys v. United States should apply equally to §1425(a).  According to Justice Alito, “§1425(a) does not require proof that a false statement actually had some effect on the naturalization decision.” But this is pivotal to Justice Kagan’s new formulation. The illegal act must have somehow contributed to obtaining citizenship. Take Justice Kagan’s example of John obtaining a painting illegally. This would connote that John stole the painting from the museum or impersonated the true buyer when the auction house delivered it. But if John did something illegal on his way to buy the painting legally, such as excessively violating the speed limit or purchasing an illegal weapon, those acts did not contribute to obtaining the painting illegally. Justice Alito would see it differently. A runner who holds the world record wants to ensure that she gets the gold medal at the Olympics, and takes a performance enhancing drug. She wins the race and is disqualified. The second-place time is slow and sportswriters speculate that she would have come first anyway even without taking the drug. According to Justice Alito, she cannot argue that her illegal act of taking drugs did not make a difference and was not material to her performance in the race.

Justice Kagan’s logic should have more force over Justice Alito’s. A naturalization applicant who stole bread when he was desperately hungry, but was never arrested and does not answer “Yes” to the question of whether he had ever committed a crime for which he was never arrested, should not have his citizenship revoked. First, determining whether a criminal defendant has committed a crime is based on the applicable law where the alleged conduct occurred and whether a prosecutor was able to prove beyond reasonable doubt that the defendant met all the elements of the offense. If the applicable law provides defenses, such as the doctrine of necessity, then no crime would have occurred. This defense too – that the defendant stole bread to avoid death through starvation – also has to be established within the penal system.  It would not be appropriate for an applicant to judge himself guilty on an immigration form – or for his immigration lawyer to condemn him for theft. Even with respect to making an admission, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.  Justice Kagan’s heightened standard to demonstrate materiality should not just apply to 18 USC §1425(a), but ought to also apply to 8 USC §1451(a) cases as well as cases involving willful misrepresentation under INA §212(a)(6)(C)(i). The following words of Justice Kagan’s in Maslenjak v. United States are prescient:

Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen.  That would give prosecutors nearly limitless leverage – and afford newly naturalized American precious little security.

The need for a uniform heightened standard becomes even more urgent in light of questions in immigration forms becoming increasingly broad and ambiguous.   For example, the latest Form I-485 asks whether an applicant intends to “engage in any activity that would endanger the welfare, safety or security of the United States.”  The next question in Form I-485 asks whether the applicant intends to “engage in any other unlawful activity?”  If the applicant answered “No” to the latter question and was later found to have engaged in an unlawful activity that would have no bearing on either the procurement of the green card or on the naturalization, such as participating in a peaceful protest that resulted in an unlawful road blockage, a vindictive prosecutor could still potentially use this to revoke either permanent residence or citizenship. This would not be a just outcome. A lie told out of embarrassment, fear, a desire for privacy or lack of comprehension of the question asked – which is not relevant to naturalization, the green card or a visa –  should never result in revocation.

Cyrus Mehta

Analysis of the 60-Day Grace Period for Nonimmigrant Workers

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The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. The rule took effect on January 17, 2017. My prior blog analyzed the key provisions of the rule. This blog examines the provision that authorizes a 60-day grace period for workers whose jobs get terminated while employed in nonimmigrant status.

The rule provides two grace periods to nonimmigrant visa holders. 8 CFR 214.1(l)(1) provides for a 10-day grace period at the start and end of the validity period for E-1, E-2, E-3, H-1B, L-1 and TN nonimmigrant workers [note that H-2B, H-3, O and P nonimmigrants already enjoy 10-day grace periods in existing regulations].  8 CFR 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days based upon a cessation of their employment. The 60-day grace period is indeed a salutary feature. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR 214 .1(c)(4) and 8 CFR 248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Several questions have come up relating to when the 60-day grace period will trigger and how often can it be used. It would be useful to reproduce the provisions authorizing grace periods in their entirety for purposes of analyzing these questions.

§214.1 Requirements for admission, extension, and maintenance of status

(l) Period of stay. (1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.

(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien’s classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.

(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.

The answers to the questions I raise are not definitive as all of them involve a case of first impression, although some are based on the DHS’s responses to comments in the preamble, and USCIS may disagree. I do hope, however, that my attempted responses will be helpful for those who need to claim the grace period in situations that are not so clear cut.

How many times can I use the 60-day grace period?

The rule at 214.1(l)(2) states that you are entitled to the 60-day grace period “once during each authorized validity period.” 214.1(l)(1) defines validity period as a nonimmigrant who “may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends.”

It thus appears that you are entitled to the 60-day grace period once during each validity period of the petition. Take for example an individual who has been admitted into the US under an H-1B visa petition with a validity period till December 31, 2017. If she gets terminated from her job with Company A, she will be entitled to the 60-day grace period that allows her to maintain H-1B status despite the cessation of employment. She finds a new job with Company B, which files an H-1B petition and extension of status within this 60-day period, resulting in an H-1B petition that is valid from August 1, 2017 to August 1, 2020. She arguably is now within a new validity period. If she gets terminated again by Company B, she should be able to seek another 60-day grace period.

The following extract from the preamble can aid us in this interpretation:

An individual may benefit from the 60-day grace period multiple times during hir or her total time in the United States; however, this grace period may only apply one time per authorized nonimmigrant validity period.

What if the new validity period filed by new employer Company B ends on the same date as the validity period of the petition filed by Company A?

Let’s now assume that December 31, 2017 is the final sixth year of this individual’s time spent in H-1B status. When the new employer, Company B, files the H-1B petition during the 60-day grace period, she is only entitled to H-1B status until December 31, 2017, which is the same validity period as the prior H-1B petition of Company A. If Company B terminates her, will she be entitled to a new 60-day grace period? The preamble to the final rule provides this guidance: “DHS clarifies that, while the grace period may only be used by an individual once during any single authorized validity period, it may apply to each authorized validity period the individual receives.” Although the end date of Company B’s H-1B petition, December 31, 2017, is the same as Company A’s, this is arguably still a new validity period even though it ends on the same day as the prior validity period. Therefore, she can argue that she is entitled to a new 60-day grace period. A new validity period should not be defined as having a different time frame from the older validity period; rather a new validity period resulted because of an extension request through a different petition. However, it is possible that USCIS may reach a different conclusion.

I got laid off by my employer while in H-1B status because the employer did not have enough business. Within 60 days, the employer got new business and rehired me again. Can I just resume employment with that employer without filing a new extension of status petition or leaving and returning to US again in H-1B status?

The purpose of the rule, especially at 214.1(l)(3), is to allow a worker to change or extend status within the 60-day period or to depart the US. However, if the worker is still within the validity period under H-1B classification, then arguably this worker can resume employment with the same employer. The worker never lost status during that 60-day grace period, and if joining the same employer, may not need to file an extension with the same employer. This is also a situation where the worker would most likely not be able to get a second 60-day grace period within the validity period of the same petition or admission. Legacy INS has indicated that when an H-1B worker returns to the former employer after a new extension of status has been filed through the new employer, the first company need not file a new H-1B petition upon the H-1B worker’s return as the first petition remains valid. See Letter, LaFluer, Chief, Business and Trade Branch, Benefits Division, INS, HQ 70/6.2.8 (Apr. 29, 1996); Letter, Hernandez, Director, Business and Trade Services, INS (April. 24, 2002).

Note, however, that if the employer laid off the H-1B worker, and did not notify USCIS regarding the termination, the employer could still potentially be liable for back wages under its obligation to pay the required wage under the Labor Condition Application for failing to effectuate a bona fide termination. See Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). Therefore, if the employer notified the USCIS, which resulted in the withdrawal of the H-1B petition, and the same employer files a new H-1B petition within the 60-day grace period, it could arguably create a new validity period. If the employee is terminated for a second time, it may be possible to argue that he is entitled to a new 60-day grace period.

Can I carry over unused days if I do not use all 60 days of the grace period?

The 60 days must be used consecutively and any unused days may not be used later in the same validity period or carried over into a subsequent validity period.

What if my job gets terminated when there are less than 60 days left of my nonimmigrant status?

The rule clearly states that you are entitled to a grace period of 60 consecutive days or until the end of the authorized validity period, whichever is shorter.

Can I get an additional 10 days grace period beyond the 60-day grace period?

In most cases the answer is “No”. However, there may be an exception where the cessation of employment was within the last 60 days of the validity period, and the worker was provided with a grace period of 10 days upon his last admission to the US. Under this limited case, the DHS will consider the nonimmigrant to have maintained status for 60 days immediately preceding the expiration of the validity period plus an additional 10 days. If the cessation of employment occurred when there were only 30 days left before the end of the validity period, then the individual should conceivably be able to claim a 30-day grace period plus 10 days.

Prior to my validity period ending in L-1A status, the same employer filed an extension of status, which got denied after the end of the prior validity period in L-1A status. Am I entitled to the 60-day grace period?

No. There is no grace period after an approved validity period has ended and when an extension of stay has been denied after that period. The 60-day grace period is intended to apply to individuals whose employment ends prior to the end of their approved validity period.

I ported while in H-1B status from Company A to Company B, and the petition for new employment is denied prior to the expiration of the validity period of the previous petition. Am I entitled to a 60-day grace period?

Yes. In this scenario, and as the preamble to the rule suggests, you will be entitled to a 60-day grace period. However, you will not be entitled to the grace period if the extension request is denied after the expiration of the validity period of the H-1B petition of Company A.

At issue is whether the grace period will be available if the same Company B files the H-1B again or must a new Company C file the new employer and extension petition? Since the grace period is applicable to the worker upon cessation of employment, it should not matter whether Company B or Company C files the new H-1B extension. However, readers should be forewarned that the USCIS still has discretion in determining whether the 60-day grace period is applicable or not. If Company B’s petition was denied for egregious reasons relating to fraud, the USCIS may likely not exercise its discretion favorably with respect to honoring the grace period.

Does it matter whether the employer terminates me or I leave the employer in order to be entitled to the 60-day grace period?

214.1(l)(2) states that the 60-day grace period triggers “on the basis of a cessation of the employment on which the alien’s classification was based.” Therefore, arguably it should not matter whether the termination occurred on the employer’s or the employee’s initiative. Again, the USCIS has discretion to decide whether a grace period will be applicable on a case by case basis.

Can I work during either the 60-day or 10-day grace period?

No. Because the rule was meant to facilitate the ability of nonimmigrants to transition to new employment, seek a change of status or depart the US, the rule clearly prohibits any form of employment.

The preamble to the rule even suggests that a nonimmigrant worker may not use the 60-day or 10-day period to work to start their own businesses too. However, if the activities for starting a business do not constitute work, especially if they would be permissible “non-work” activities under the B-1 visa, then one could argue that the person did not engage in prohibited activity during the grace period. However, this is risky given that the preamble has not made any distinction between work and non-work activities relating to the startup of a business.

Can I travel during either the 60-day or 10-day grace period in case of an emergency?

Although the rule is silent about travel, it is strongly advised that the nonimmigrant worker not travel during any of the grace periods. When the individual returns from the trip abroad, he or she will not be coming to join an employer and CBP will most likely not admit her. One of the purposes of the grace period is to facilitate departure from the US, and so it will be going against the intent of the rule if the individual departs and then tried to seek admission again. In the F-1 context, which provides a 60-day grace period to prepare for departure, see 8 CFR 214.2(f)(5)(iv), travelling back to the US is clearly not contemplated during this period.

Can I port to a new employer who files an H-1B petition during the 60-day grace period after my job was terminated by the old employer?

Yes. You are still considered to be maintain H-1B status during the grace period. If a new employer files the H-1B petition, you can exercise portability pursuant to INA 214(n) by commencing employment for the second employer after the H-1B petition has been filed with USCIS.

Can I request employment authorization in compelling circumstances while within the grace period?

Yes. The rule at 204.5(p) clearly states that the principal beneficiary of an approved petition when the priority date is not current can request a work authorization under compelling circumstances if the individual is in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status, “including the periods authorized by 214.1(l)(1) and (2)…..”

If I am unable to find a new job within the 60-day grace period, and find one after 60 days, and the new employer files the H-1B petition 80 days after the cessation of employment with my first employer, am I still eligible for an extension of H-1B status with the new employer?

The USCIS always has discretion to accept late filings based on extraordinary circumstances pursuant to 8 CFR 214.1(c)(4).

Can the USCIS give me less than 60 or 10 days of the grace period?

As noted, the USCIS can always exercise its discretion and will determine whether the facts and circumstances warrant shortening a grace period on a case by case basis. The following extract from the preamble is worth noting:

At the time a petitioner files a nonimmigrant visa petition requesting an extension of stay or change of status, DHS will determine whether facts and circumstances may warrant shortening or refusing the 60- day period on a case-by-case basis. If DHS determines credible evidence supports authorizing the grace period, DHS may consider the individual to have maintained valid nonimmigrant status for up to 60 days following cessation of employment and grant a discretionary extension of stay or a change of status to another nonimmigrant classification. See 8 CFR 214.1(c)(4) and 248.1(b). Such adjudications require individualized assessments that consider the totality of the circumstances surrounding the cessation of employment and the beneficiary’s activities after such cessation. While many cases might result in grants of 60-day grace periods, some cases may present factors that do not support the favorable exercise of this discretion. Circumstances that may lead DHS to make a discretionary determination to shorten or entirely refuse the 60-day grace period may include violations of status, unauthorized employment during the grace period, fraud or national security concerns, or criminal convictions, among other reasons.

The same logic would apply to the USCIS’s ability to exercise discretion with respect to the 10-day grace period.

How do I apply for the 60-day grace period?

There is no specific application or form. The USCIS will make an after the fact determination when you apply for an extension of status or change of status upon the cessation of employment. It is advisable to explain that you are using the grace period in a letter or affidavit.

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

Cyrus Mehta

Supreme Court May Have Bolstered Rights of Foreign Nationals with Ties to the United States

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While disappointing that the Supreme Court allowed the ban to apply on visa applicants with no ties with the US from the banned countries, it may have permanently bolstered the rights of visa applicants who have ties to the US to challenge visa denials, which hitherto was not possible. This is the silver lining from yesterday’s court order.

In Trump v. IRAP, the Supreme Court decided to review the preliminary injunctions of President Trump’s travel ban in its next term. As an interim measure, however, the Court granted the government’s application to stay the injunctions of the Fourth and Ninth Circuits, but created a broad exception. The travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Through this statement, the Court overnight fashioned a new standard for determining against whom the ban would apply or not apply. The following extract from the Court’s order is worth noting:

The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

What constitutes a “bona fide relationship with a person or entity in the United States” will spawn plenty of litigation over the summer. Justice Thomas’s dissent also predicted this. The broad exception will fortunately still allow many impacted by the ban to still travel to the United States, and so the order is by no means a win for President Trump as he falsely boasts. Still, potential entrants who do not readily have ties with the United States will get impacted, and the image of the United States will take a further bashing as it would attract fewer visitors. For instance, would a tourist who has already made a booking with a hotel in the US with a non-refundable deposit be able to claim to have a bona fide relationship with an entity in the United States? What about an E-2 investor who is the 100% owner of his LLC in the United States, which served the legal basis of her investment to obtain the E-2 visa? An argument can be made that the E-2 visa holder has a bona fide relationship with the LLC, even if he wholly owns it, as a corporation enjoys its own existence separate and apart from its owner. One would hope that a battered spouse who has filed a self-petition from overseas under the Violence Against Women Act would not get affected even though she has severed ties with the US citizen abuser in the United States. Since one has to establish a bona fide relationship with a “person” rather than a US citizen, it can be argued that a nonimmigrant derivative spouse and child would be able to enter the United States to be with the principal nonimmigrant visa holder. Conversely, if the US citizen spouse lives overseas, the I-130 petition that she may have filed for her spouse should still be processed as the US citizen ultimately needs to have an intent to reside in the United States as a sponsor on Form I-864, Affidavit of Support.

Even beyond the travel ban, the Court’s new standard has overnight bolstered the chances of visa applicants to seek judicial review who have been refused a visa or admission if they have ties with the United States. In Kerry v. Din, both the opinions of the plurality and the concurrence gave short shrift to the fact that the beneficiary of an I-130 petition filed by his US citizen spouse could not claim a due process liberty interest because of his significant familial ties with a US citizen spouse. Instead, the long-held standard in Kleindienst v. Mandel was invoked, which is that so long as the visa refusal was facially legitimate and bona fide, the courts would not look behind the consular officer’s decision. Of course, if the refusal, while legitimate, suffers from a constitutional infirmity amounting to bad faith, as the Fourth Circuit analyzed in Trump’s travel ban, then the refusal may still not be bona fide. However, this is still a high burden to meet.

But when a plaintiff can show ties as the Court fashioned – through a bona fide relationship with a person or entity in the United States – it raises the specter of more meaningful liberty interests that deserve greater due process protections than the broad “facially legitimate and bona fide standard” in Kleindienst v. Mandel. The plaintiff with sufficient US ties can request for the factual basis behind a denial so that it can be addressed more effectively. Justice Breyer’s dissent in Kerry v. Din may have more force after yesterday:

Rather, here, the Government makes individualized visa determinations through the application of a legal rule to particular facts. Individualized adjudication normally calls for the ordinary application of Due Process Clause procedures. Londoner v. City and County of Denver, 210 U.S. 373, 385-386, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). And those procedures normally include notice of an adverse action, an opportunity to present relevant proofs and arguments, before a neutral decisionmaker, and reasoned decision making. See Hamdi v. Rumsfeld, 542 U.S. 507, 533, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion); see also Friendly, Some Kind of a Hearing, 123 U. Pa. L. Rev. 1267, 1278-1281 (1975). These procedural protections help to guarantee that government will not make a decision directly affecting an individual arbitrarily but will do so through the reasoned application of a rule of law. It is that rule of law, stretching back at least 800 years to Magna Carta, which in major part the Due Process Clause seeks to protect. Hurtado v. California, 110 U.S. 516, 527, 4 S.Ct. 292, 28 L.Ed. 232 (1884).

Moreover, when liberty interests are implicated, a plaintiff can claim that being denied access to counsel deprived her of her ability to properly challenge the denial. Presently, foreign nationals do not have access to counsel, leave alone the right to counsel, at consular interviews and ports of entry. AILA and AIC have filed a petition for rulemaking to allow access to counsel precisely based on one’s ties with the United States.

While the outcome of the case in the Supreme Court is unclear, the interim order has for the time being bolstered the rights of foreign nationals with ties to the United States even outside the context of Trump’s travel ban. This is clearly a positive development in the long run.

David Isaacson

Sessions v. Morales-Santana: The Problems of Leveling Down

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On June 12, 2017, the Supreme Court issued its decision in Sessions v. Morales-Santana, holding that the different treatment of unmarried mothers in INA §309(c), 8 U.S.C. §1409(c), was unconstitutional as a violation of equal protection.  Unfortunately, while the Court agreed with the Court of Appeals for the Second Circuit that there had been such a violation, the Court selected a different remedy for this violation that appears not to have helped Mr. Morales-Santana himself or, at least from a concrete perspective, anyone else.  This decision creates a number of problems, some obvious and some less so.

Luis Ramon Morales-Santana was born in the Dominican Republic in 1962 to a Dominican mother, Yrma Santana Morilla, and a U.S. citizen father, José Morales, who had been born in Puerto Rico in 1900.  “After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday,” as the Supreme Court explained, in order to work “for a U.S. company in the then-U.S.-occupied Dominican Republic.”  José and Yrma were married in 1970, and Luis Ramon Morales-Santana moved to Puerto Rico when he was 13 and then to the Bronx later in his childhood.

Mr. Morales-Santana was placed in removal proceedings in 2000 based on several criminal convictions, and his claim to U.S. citizenship was rejected by an immigration judge on the basis that his father did not have sufficient physical presence in the United States prior to Morales-Santana’s birth to transmit U.S. citizenship to him.  Under INA §301, 8 U.S.C. §1401, and specifically the provision of that statute which was formerly INA §301(a)(7) and now appears at INA §301(g), an unmarried U.S. citizen father, or a married U.S. citizen parent of either gender, must have accrued a relatively lengthy period of physical presence in the United States (or constructive physical presence based on certain qualifying employment by them or by their parent) in order to transmit citizenship to a child whose other parent is not a U.S. citizen or national.  The version of INA §301(a)(7) in effect when Morales-Santana was born in 1962 required that the father have been present for ten years, five of which had to have been after the age of fourteen, and so José Morales was held to have fallen short by 20 days, having left the United States 20 days before his nineteenth birthday.  The current version of INA §301(g) requires only five years of physical presence by the U.S. citizen parent, two of which must be after the age of fourteen, but it does not operate retroactively and so was no help to Morales-Santana.

If Morales-Santana had been born to an unmarried U.S. citizen mother rather than an unmarried U.S. citizen father, however, the applicable rule under the statute would have been different.  Under INA §309(c), as it existed at the time of Morales-Santana’s birth and as it exists (at least in the statute books) today, a U.S. citizen mother need only have one continuous year of physical presence in the United States in order to transmit citizenship to her out-of-wedlock child.  José Morales would easily have satisfied this requirement.

Before the Second Circuit, Morales-Santana argued first that he was actually entitled to U.S. citizenship under the statute as written, because his father’s time working for a U.S. company in the U.S.-occupied Dominican Republic should count towards the physical-presence requirement, and second that the distinction between the §301(a)(7) requirement for unmarried fathers and the shorter §309(c) requirement for unmarried mothers was unconstitutional gender discrimination.  The Second Circuit rejected the former argument, holding that José Morales’s employment with the South Porto Rico Sugar Company was not the sort of employment with the U.S. government or a public international organization that would qualify as constructive physical presence under §301(a)(7), and that the Dominican Republic was not a U.S. possession for these purposes in 1919 even though it was occupied by the U.S. military.  It accepted the latter argument, however, and held that to remedy the gender discrimination inherent in the statute, Morales-Santana should receive the benefit of §309(c) and be deemed a U.S. citizen as of his birth.

The Supreme Court in Morales-Santana agreed that the different treatment of unmarried fathers and unmarried mothers with regard to the required length of physical presence was an equal-protection violation, but disagreed with the Second Circuit on the appropriate remedy for this violation.  Rather than choosing to extend the benefits of INA §309(c) / 8 U.S.C. §1409(c) to Mr. Morales-Santana and others disadvantaged by the equal-protection violation, what commentator Michael Dorf referred to as “levelling up”, the Court determined that “levelling down”  and withdrawing the benefits of §309(c) from those to whom it applied was more consistent with Congressional intent, because §309(c) was merely an exception to the broader and stricter rule of INA §301(a)(7) / 8 U.S.C. §1401(a)(7).  “Going forward,” the Court said, “Congress may address the issue and settle on a uniform prescription that neither favors nor disadvantages any person on the basis of gender.”  Until Congress does so, however, the Court held that “[i]n the interim . . . §1401(a)(7)’s now-five-year requirement should apply, prospectively, to children born to unwed U.S.-citizen mothers.”  It seems very likely, although the decision did not make this explicit, that prospective application in this context refers to children born after the date of the Court’s decision, since those born before the decision to whom §309(c) applied would already have acquired citizenship at birth as a matter of law, whether this citizenship had yet been recognized by any administrative agency or not.

The Court’s choice of remedy, which Professor Ian Samuel described as “the mean remedy”, has attracted a great deal of commentary, much of it critical. This commentary is worth the reader’s time, but it is my hope that I may have some additional observations which have not previously been addressed by other commentators.

One problem caused by the Court’s choice of remedy in Morales-Santana, which has been hinted at in some other commentaries but not fully explored, is that the specific equal-protection violation at issue in the case has not actually been remedied by the Court’s decision.  If Mr. Morales-Santana had been the out-of-wedlock child of a woman named Josephine Morales rather than a man named José Morales, but every other fact of his case had remained the same, then he would be a citizen today.  Sons and daughters born in 1962 to unmarried women who met the one-year physical presence requirement are now citizens, under existing law.  But Mr. Morales-Santana is not a citizen.  He, or his father, has in a very real sense been denied the equal protection of the laws, and nothing about the Court’s decision changes this.

The difficulty is that true leveling down was not feasible in Morales-Santana as a matter of practicality or justice.  The Court could not reasonably have declared that every person who gained U.S. citizenship under §309(c), or even every person who did so after Morales-Santana himself was born, was no longer a citizen.  The U.S. citizenship of such people has already engendered truly immense reliance interests in many cases, and taking it away, after those people have structured their lives for decades based on the knowledge that they are U.S. citizens, would be a travesty.  The resulting chaos and disruption would be horrific.  This is presumably why the Court declared that its revision of the statute would operate only prospectively.  As a result, however, Mr. Morales-Santana, or perhaps more precisely his father, continues to suffer from gender-based discrimination relative to children born to unmarried women before 2017 and their mothers.   Other similarly-situated people continue to suffer from this gender-based discrimination as well.

A more subtle problem is that it is not completely clear when, exactly, the new rule displacing INA §309(c) is supposed to take effect.  Does it apply to all children born to unmarried women after June 12, 2017?  To all children born after the precise time that day that the Supreme Court announced its decision from the bench and handed out copies of the slip opinion to the press, if that time was even tracked by the Court or any other government agency?  (There is precedent for looking to time of birth to determine whether citizenship has been acquired: see Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010).)  To all children born after the Supreme Court issues its mandate in the case, which will occur after the disposition of any timely-filed petition for rehearing?  To all children born after the final version of the opinion is published in the U.S. Reports?

Also, whenever the new rule takes effect, how exactly are pregnant unwed U.S. citizens supposed to learn of it?  The statute itself still contains INA §309(c).  The State Department’s Foreign Affairs Manual (FAM), specifically 7 FAM 1133.4-3, still describes it as applicable.  Anyone who has not themselves been reading Supreme Court slip opinions, and is not being advised by a lawyer who has done so, will not know that the rule has changed.  This is significant because a pregnant U.S. citizen might in many cases have the option of traveling to the United States to give birth, making her child a U.S. citizen under INA §301(a) and Section 1 of the Fourteenth Amendment to the U.S. Constitution.  One who relies on the statute to say what it means, or even checks the FAM or speaks to a consular officer who checks the FAM, will not know of the necessity of giving birth in the United States, and may give up the opportunity to bestow U.S. citizenship on her child because she is unaware that such citizenship will not pass automatically.

The Court justified its choice of remedy in Morales-Santana partly by indicating that, if §309(c) were extended to unmarried fathers, that would still leave possibly unconstitutional discrimination, in that instance against all married parents as compared to all unmarried parents.  But there would be a relatively straightforward solution to that problem: the Court could remedy that unconstitutional discrimination by holding §309(c) to be an option available to all parents, married or unmarried, unless and until the statute were changed by Congress.  Going forward, Congress would still be free to choose a different requirement applicable to all genders and all marital statuses.

As this author has previously explained, the text of INA §301 and §309 and the administrative interpretations of those statutes that existed before the Supreme Court’s decision give rise to many potential serious anomalies.  There is a good argument to be made that the text should be revised, going forward, to fix these anomalies.  The Supreme Court’s choice of judicial alteration to the statute in the interim, however, creates more problems than it solves.

David Isaacson

The “politically correct version”: What Donald Trump’s Recent Tweet and Previous Use of the Term “Politically Correct” Tell Us About His Revised Executive Order

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Donald Trump weighed in earlier today via Twitter regarding the litigation about his travel-ban executive orders, tweeting among other things that “The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.”  It is, as others have pointed out, a bit odd that Mr. Trump, to whom the Justice Department ultimately reports given his current status as President of the United States, is expressing his disagreement with them via Twitter.  These tweets also, as the media has noted, undermine the Administration’s court defenses of the ban.

One point that does not yet seem to have been made is that Mr. Trump’s reference to the current version of the travel ban being “politically correct” has special significance in light of his past usage of that term. ACLU attorney Omar Jadwat, quoted by the LA Times, did observe that the reference to political correctness undercuts the government’s arguments:

Lawyers for the government “have made a diligent effort to demonstrate that this was not about religious animus,” he said, no[r] was it an effort to fulfill Trump’s campaign pledge to enact a “Muslim ban.” But Trump’s tweets show the president’s belief that scaling back the travel order reflected “political correctness,” and not his true intent.

The New York Times, as well, has observed that “in calling the revised order ‘politically correct,’ Mr. Trump suggested that his goal was still to make distinctions based on religion.” This usage of the term “politically correct” would indeed be indicative of religious animus even if Trump had not used the term previously, but it is especially telling in context.

In the usage of those at Donald Trump’s end of the American political spectrum, to say that something is “politically correct” is generally to say that it is unnecessarily or inappropriately tailored to avoid speaking of a minority group in a way that liberals would consider offensive. Donald Trump himself has indicated this understanding of the term “politically correct” in at least one of his own past tweets, and has done so specifically in the context of Islam. As he tweeted on July 4, 2016, https://twitter.com/realdonaldtrump/status/749989709275885568 :

With Hillary and Obama, the terrorist attacks will only get worse. Politically correct fools, won’t even call it what it is – RADICAL ISLAM!

That is, to Donald Trump, it is “politically correct” to avoid using the term “RADICAL ISLAM” in reference to terrorist attacks. It would appear to follow that the revised travel ban Donald Trump criticizes for being “politically correct” has, in his view, refrained from using those terms to avoid being offensive.  His Justice Department and revised executive order will not, to use his words, “call it what it is”—and what it is, in reality, is his attempt to act against Islam.

This is, to say the least, problematic for the government’s position in the travel ban litigation. The Court of Appeals for the Fourth Circuit upheld an injunction against the ban in IRAP v. Trump on the basis that even the revised ban “in context drips with religious intolerance, animus, and discrimination.” The President’s position, as evidenced by his latest tweets read in the context of his earlier tweets, appears to be that the revised ban has not made its religious animus clear enough.

Cyrus Mehta

Going Beyond IRAP v. TRUMP: Challenging “Bad Faith” Governmental Actions Denying Non-Citizens Admission Into The United States

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The Fourth Circuit’s decision in International Refugee Assistance Project v. Trump upholding the preliminary injunction against  President Trump’s travel ban, on the ground that it violated the Establishment Clause of the US Constitution, holds out hope for other similar challenges that have otherwise faced a high bar to overcome the Executive branch’s unbridled discretion to keep out non-citizens of the United States.

In a lengthy majority opinion, Chief Judge Roger Gregory asked whether the Constitution “protects Plaintiffs’ right to challenge an Executive Order that in the text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

Courts have continuously applied the “facially legitimate and bona fide” test of Kliendienst v. Mandel to challenges to individual visa denials. Although Mandel sets a high bar to plaintiffs, the Fourth Circuit’s majority opinion emphasized that the government’s action must both be facially legitimate as well as be bona fide. The government’s action, such as with the executive order banning nationals from six Muslim majority countries in the name of national security may have been facially legitimate, but may not have been bona fide as the President used it as a cover to fulfill his promise to ban Muslims from the United States. This constituted bad faith, according to the majority opinion, and thus the EO was not bona fide. Where the good faith has “seriously been called into question,” the court concluded it should be allowed to “look behind the stated reason for the challenged action.” The court used the test in Lemon v. Kurtzman to establish that the travel ban violated the Establishment Clause of the US Constitution by disfavoring Muslims. Relying on statements that President Trump made both during his campaign and after he became President, the travel ban was in effect a legal attempt to effectuate Trump’s promised Muslim ban rather than advance national security.

The Fourth Circuit opinion broke new ground by challenging the long-held notion that the courts must always give deference to the government’s national security justification. The following extract from the majority opinion is worth noting:

The Government argues that we should simply defer to the executive and presume that the President’s actions are lawful so long as he utters the magic words “national security.” But our system of checks and balances established by the Framers makes clear that such unquestioning deference is not the way our democracy is to operate. Although the executive branch may have authority over national security affairs, see Munaf v. Geren, 553 U.S. 674, 689 (2008) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)), it may only exercise that authority within the confines of the law, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645–46, 654–55 (1952) (Jackson, J., concurring); and, of equal importance, it has always been the duty of the judiciary to declare “what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

To what extent can IRAP v. Trump be extended to other situations where a visa may be denied in bad faith and thus not meet the “facially legitimate and bona fide” test of Mandel? In Kerry v. Din, the Supreme Court upheld the visa refusal of the beneficiary of an I-130 petition filed by his US citizen spouse under the terrorism ground of inadmissibility pursuant to INA 212(a)(3)(b). According to the concurrence by Justice Kennedy, the beneficiary, an Afghan national, who once worked for the Taliban government in Afghanistan, received sufficient notice by being provided the section number of the INA under which he was found inadmissible, and thus the government met the “facially legitimate and bona fide test” of Mandel. However, Justice Kennedy did indeed emphasize, “Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on §1182(a)(3)(B) encompassed.”

In IRAP v. Trump, the plaintiffs successfully showed bad faith by President Trump who violated the Establishment Clause of the US Constitution. What other sorts of bad faith may a plaintiff show to convince a court to look behind the “facially legitimate and bona fide” test? Perhaps, if the facts in Kerry v. Din showed that the beneficiary was unlawfully detained for hours in the US Consulate during his visa interview and forced to admit that he was involved in terrorist activities on condition of being released, even though he was not, that could arguably be tantamount to bad faith? In this hypothetical situation, the constitutional violation which gives rise to bad faith would be the violation of the beneficiary’s due process rights rather than the violation of the Establishment Clause. The beneficiary, in this situation, could potentially cite to landmark cases such as Zadvdas v. Davis (finding that the power of the Executive is “subject to important constitutional limitations,” holding that LPRs are entitled to due process rights, and that their indefinite detention is a violation of those rights), Hamdi v. Rumsfeld (noting that the President’s Article II powers are subject to review, holding that citizens held as enemy combatants must be afforded due process rights, namely the meaningful opportunity to contest the factual basis for their detention), Boumediene v. Bush, (specifically noting that the political branches cannot “switch the Constitution on or off at will” and providing the right of habeas review to a non-citizen outside the US) and INS v. Chadha (noting that Courts are empowered to review whether or not “Congress has chosen a constitutionally permissible means of implementing” the “regulation of aliens.”).

Finally, the plaintiff would also need to demonstrate standing in order to bring the claim. To establish Article III standing, a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In IRAP v. Trump, the government in an effort to object to standing to the plaintiffs asserted that in  Saavedra Bruno v. Albright, a consular official’s decision to issue or withhold a visa is not subject to judicial review, at least unless Congress says otherwise. However, the court noted that Saavedra also stands for the proposition that when cases are brought by U.S. citizens, or when statutory claims are combined with constitutional ones, judicial review is permitted.

In a fact pattern similar to Kerry v. Din, the I-130 petitioner, a US citizen, would have standing to bring the action. What about an H-1B visa holder, with three months remaining on that visa, applies for a renewal of that visa at the US consulate? The consular officer, animated by the new rhetoric flowing from the administration that H-1B workers steal jobs of US workers, badgers the H-1B applicant, under threat of many years of imprisonment, to falsely admit she is not performing the duties indicated in the perfectly bona fide H-1B petition and revokes the existing visa as well as refuses to issue a new H-1B visa. Would the H-1B worker have standing to allege bad faith on the part of the consular officer? The H-1B plaintiff can potentially assert that she is residing in the US, and also enjoys “dual intent” under the H-1B visa. [Under INA 214(b), an H-1B beneficiary is allowed to harbor an intent to remain in the US permanently even though the H-1B visa is temporary].  If the H-1B holder has also been sponsored for a green card through the employer, this would further bolster her standing, as she had not just harbored an intent to reside permanently but has taken concrete steps to do so. Finally, the US employer can also file an action as the petitioner of the H-1B who will be affected if she is unable to resume employment in the US. Still, being overaggressive, coercive, and sloppy, even to an extent that would violate due process rights assuming the targets of one’s over-aggressiveness had standing to assert such rights, may not necessarily imply bad faith, such as having a hidden agenda like Trump’s travel ban. Nevertheless, the evolving jurisprudence in IRAP v. Trump does give other plaintiffs food for thought to blow a hole through the “facially legitimate and bona fide” wall set forth in Mandel.

The government may have maximum power to deny non-citizens admission into the US, but that power is not absolute. IRAP v. Trump, and  many other successful challenges to Trump’s travel ban, may provide a pathway for a plaintiff to seek judicial review of governmental actions that have been conducted in bad faith.