David Isaacson

Fewer Rights in Pennsylvania than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security

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On August 29, 2016, the Court of Appeals for the Third Circuit issued its decision in Castro v. Dept. of Homeland Security, a consolidated set of habeas corpus petitions brought by asylum-seekers subject to expedited removal orders and detained within the Eastern District of Pennsylvania (likely at the Berks County Residential Center).  The Third Circuit held that the petitioners, who had been detained by U.S. Customs and Border Protection shortly after crossing the border into the United States, did not have the constitutional right to challenge their detentions in federal court other than in a very limited way under 8 U.S.C. §1252(e).  Unlike the Guantanamo Bay detainees whose habeas petitions were found by the Supreme Court to be constitutionally protected in Boumediene v. Bush, 553 U.S. 723 (2008), the Third Circuit ruled, recent unlawful entrants such as the Castro petitioners were not protected by the Suspension Clause of the U.S. Constitution, and had been stripped by Congress of their right to seek judicial review except under extremely limited circumstances not applicable here.  Given that the petitioners had no claim to be U.S. citizens or to have already been granted a lawful immigration status, they could only seek review of whether they were the persons referred to in pieces of paper signed by immigration officers that purported to be expedited removal orders.  Since they did not dispute that, the case was at an end, and the Third Circuit affirmed the district court’s order dismissing the habeas petitions for lack of subject-matter jurisdiction.

  Professor Steve Vladeck of the University of Texas School of Law (who I note, in the interest of full disclosure, was a law-school classmate of the author of this blog post) has described the Third Circuit’s opinion as “breathtaking”.  Professor Vladeck writes that it was “simply nuts” for the Third Circuit to conclude that under Boumediene “non-citizens physically present within the United States are less entitled to Suspension Clause protections than enemy belligerents captured on foreign battlefields and detained outside the territorial United States.”  This author is inclined to agree with that sentiment.  Boumediene arose because the Bush Administration had tried to keep detainees in a sort of Constitution-free zone in Guantanamo Bay, Cuba, purportedly outside the jurisdiction of U.S. courts.  (Fortunately, the Supreme Court did not let the Bush Administration “switch the Constitution . . . off” in this way, Boumediene, 553 U.S. at 765, and the ultimate outcome of Boumediene is a testament to the crucial importance of habeas review: on remand, petitioner Lakhdar Boumediene was found by the District Court to be detained without sufficient basis, was released, and as of 2012 was living in France.)  Pennsylvania is a far cry from Guantanamo Bay, and it seems very peculiar to suggest that non-citizens detained in Pennsylvania, clearly within the jurisdiction of the United States, could have a lesser constitutional right to habeas corpus than non-citizens detained in Guantanamo.

One might wonder whether the Third Circuit could have reached the same result by acknowledging the applicability of the Suspension Clause, but holding the petitioners in Castro to lack relevant constitutional rights which they could enforce through a habeas petition even if the courts had jurisdiction over such a petition.  Indeed, the government appears to have made such an argument in briefing quoted by the Third Circuit: “because Petitioners ‘have no underlying procedural due process rights to vindicate in habeas,’ Respondents’ Br. 49, the government argues that ‘the scope of habeas review is [] irrelevant.’”  Castro, slip op. at 65.   However, there would be a problem with this approach.  While applicants for admission to the United States may have limited due process rights under current Supreme Court case law, they do have some due process rights, and it appears to have been those rights which the Castro petitioners were seeking to assert.

The Supreme Court’s decision in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), cited by the Third Circuit to support its decision in Castro, held that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”  Knauff, 338 U.S. at 544.  Assuming for the sake of argument that the petitioners in Castro qualify for constitutional purposes as aliens denied entry into the United States, they would thus still be entitled, as a matter of due process, to “the procedure authorized by Congress”.  It appears that the Castro petitioners were attempting to assert that they did not receive the benefit of this Congressionally authorized procedure.

The Third Circuit’s decision in Castro describes two claims which were said to be “uniform across all Petitioners” in the case:

first, they claim that the asylum officers conducting the credible fear interviews failed to “prepare a written record” of their negative credible fear determinations that included the officers’ “analysis of why .. . the alien has not established a credible fear of persecution,” 8 U.S.C. § 1225(b)(1)(B)(iii)(II); and second, they claim that the officers and the IJs applied a higher standard for evaluating the credibility of their fear of persecution than is called for in the statute.

Castro, slip op. at 20 n.8.  These claims, grounded in the governing statute, assert that the petitioners did not receive “the procedure authorized by Congress,” Knauff, 338 U.S. at 544.  That statutory procedure includes a written record of a credible fear review, and determination according to a specified legal standard.  It is alleged by the Castro petitioners that, contrary to the statutory procedure, no such record was prepared and the specified standard was not used.  Thus, these claims would appear to be valid even under the limited degree of due process that applies under Knauff to “an alien denied entry”—even assuming for the sake of argument that this limited due process is appropriate to apply to an alien who has in fact effected an entry, albeit illegally.

Moreover, the Supreme Court in Boumediene, as acknowledged by the Third Circuit, had held that at a bare minimum any “constitutionally adequate habeas corpus proceeding” must “entitle[] the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” Boumediene, 553 U.S. at 773 (quoting INS v. St. Cyr, 533 U.S.289, 302 (2001)); Castro, slip op. at 48-49.  Thus, the constitutional habeas proceeding protected by Boumediene should, if available to the Castro petitioners, have entitled them to challenge whether their cases had been handled in accordance with 8 U.S.C. §1225(b)(1), as they were attempting to do.

To deny the Castro petitioners even the right to judicial oversight of whether they received “the procedure authorized by Congress”, therefore, the Third Circuit really did have to find them to lack Suspension Clause rights.  It was not merely a question of alternate analytic routes to the same result.  The outcome of Castro can only be justified on the basis that an applicant for asylum detained shortly after entry and held within the continental United States has less of a constitutional right to habeas corpus than an accused terrorist detained at Guantanamo Bay, and so cannot even enforce in court any constitutional or statutory rights which she may have.  This is a highly dubious proposition.

The Castro opinion’s rejection of jurisdiction over essentially statutory claims by the petitioners is particularly problematic because 8 U.S.C. §1252(e) itself can be read to permit such claims, implying that they should be allowed under the doctrine of constitutional doubt without the need to strike down the restrictions on habeas as unconstitutional.  Even the limited habeas review which §1252(e)(2) purports to allow with respect to “any determination made under section 1225(b)(1)” includes “determinations of . . . whether the petitioner was removed under such section.”  8 U.S.C. §1252(e)(2)(B).  The Third Circuit asserted in Castro that this means “review should only be for whether an immigration officer issued that piece of paper and whether the Petitioner is the same person referred to in that order.”  Castro, slip op. at 28 (quoting M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156, 1163-64 (D.N.M. 2014), vacated as moot, No. 14-769, 2015 WL 7454248 (D.N.M. Sept. 23, 2015)).  But just because an immigration officer has signed a piece of paper purporting to be an expedited removal order under section 1225(b)(1) does not necessarily mean that the order has been issued “under such section”.

Article VI of the U.S. Constitution provides that “treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” along with statutes.  No one would understand that to mean that a purported treaty, signed by the President but not ratified by the Senate, was the supreme law of the land.  This is because such a purported treaty would not truly have been made “under the authority of the United States” given the President’s failure to comply with governing procedures.  Similarly here, one could argue that a purported expedited removal order issued without compliance with the statutory requirements of a written record, a proper standard, and so on, is not actually issued “under” section 1225(b)(1), because it violates 8 U.S.C. §1225(b)(1)(B)(iii)(II) and other relevant statutory provisions.  At the least, this argument should have been enough for the Castro petitioners to invoke the doctrine of constitutional doubt.  The Third Circuit, however, held that in asserting constitutional doubt regarding the meaning of §1252(e)(5), the petitioners in Castro “were attempting to create ambiguity where none exists.”  Castro, slip op. at 26-27.

The courts may not be able, under the statute, to review “whether the alien is actually inadmissible or entitled to any relief from removal,” 8 U.S.C. §1252(e)(5), as the Third Circuit pointed out.  Castro, slip op. at 26.  However, “[i]n determining whether an alien has been ordered removed under section 1225(b)(1),” the courts are authorized by the statute to review whether “such an order in fact was issued and whether it relates to the petitioner.”  8 U.S.C. §1252(e)(5).  The reference to “such an order” relates back to another reference to removal “under section 1225(b)(1)”—and, once again, 8 U.S.C. § 1225(b)(1)(B)(iii)(II), relating to the necessity of a written record, is just as much a part of 1225(b)(1) as any other part, so that it is at least unclear whether an order issued in violation of 8 U.S.C. § 1225(b)(1)(B)(iii)(II) is issued “under section 1225(b)(1)”.  In its assertion that there is no relevant ambiguity in the statute, as in its constitutional analysis, the Castro panel opinion strikes this author as unpersuasive.

Depressing though the decision in Castro may be, however, it is important to note that even the Third Circuit’s decision in Castro does not foreclose all habeas corpus petitions brought to review expedited removal orders.  Beyond the restricted review that it saw as permitted by 8 U.S.C. §1252(e), the Castro opinion conceded that the statutory limitations on habeas corpus might be unconstitutional as applied to, for example, “an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1).”  Castro, slip op. at 34-35 n.13.  For reasons explained by this author in a previous article, some long-term nonimmigrant residents may have the sorts of constitutional rights to which the Third Circuit referred here even if returning from a brief trip abroad, along the lines of the rights possessed by the permanent resident who was placed in exclusion proceedings after returning from a brief trip abroad in Landon v. Plasencia, 459 U.S. 21 (1982).  Thus, even under Castro, there may be scope for habeas review of an expedited removal proceeding against a long-term nonimmigrant resident.  In that sense, for some potential habeas petitioners, all is not yet lost.

Asylum applicants who are not returning residents, however, should also have rights under the Suspension Clause, no less than the detainees at Guantanamo Bay who were held to have such rights in Boumediene.  And in exercising those rights, they should have resort to the courts to ensure that they have at least received “the procedure authorized by Congress”—as it appears the petitioners in Castro did not.

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child.  The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law.  We can hope, however, that the Third Circuit on rehearing en banc, or the Supreme Court on certiorari, may restore it to them.

Cyrus Mehta

Harmonious Coexistence: New Parole for International Entrepreneurs and Old Entrepreneur Pathways Portal

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U.S. Citizenship and Immigration Services (USCIS)  proposed a rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States. This is not the first administrative initiative for entrepreneurs. In 2011 the USCIS provided guidance on how foreign entrepreneurs could use the existing nonimmigrant visa system to establish startups in the United States, which culminated in the Entrepreneur Pathways portal. Both the parole rule and the Entrepreneur Pathways should exist alongside each other. Neither is perfect, especially in the absence of a Congressionally mandated startup visa, but if an entrepreneur cannot qualify under the parole policy, every encouragement must be given for the entrepreneur to qualify for a visa through his or her startup under the existing visa system, such as through an H-1B visa.

First, we introduce the proposed parole rule for international entrepreneurs.

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

– Receiving significant investment of capital (at least $345,000) from certain qualified U.S.  investors with established records of successful investments;

– Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or

– Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.

USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the United States to be granted parole; they may not change to nonimmigrant status within the United States. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and approve or deny the application with no right of rehearing or appeal. Meanwhile, the notice of proposed rulemaking in the Federal Register invites public comment  on or before October 17, 2016, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when it is published in the Federal Register.

While the proposed rule comes as a long needed respite to a foreign national entrepreneur in the absence of an actual startup visa, it may not meet the needs of all entrepreneurs who aspire to build great companies in the US. For example, a foreign student on F-1 OPT, who has developed an innovative mobile phone application, and who wants to market it and sell it through his or her own company, may not be able to attract investment capital of $345,000 or receive a governmental grant of $100,000. Many startups can be established for far less than $345,000.  In some situations, a family member may invest money in the enterprise on behalf of the foreign student, but under the proposed rule, investment from a family member does not count. Also, the parole rule will only allow a 5 year period in the United States with no pathway to permanent residence. The USCIS can revoke parole, and there will be no administrative or judicial review over a denial or a revocation. Of course, the final rule can be substantially improved based on comments from interested parties and stakeholders.

Still, if an entrepreneur cannot qualify under the parole rule,  it is vitally important for this individual to try his or her luck under the H-1B visa via the policy set forth in Entrepreneur Pathways. If a foreign student has a “Facebook” type of idea, he or she can start a business, according to Entrepreneur Pathways, while in F-1 Optional Practical Training provided the business is directly related to the student’s major area of study. After completing F-1 OPT, and note that the new STEM OPT rule requires the entrepreneur to be part of a training program, even through his or her own startup, this student can potentially switch to H-1B visa status (provided there are H-1B visa numbers at that time). Regarding the startup owner being able to sponsor himself or herself on an H-1B, the Entrepreneur Pathways  insists that there must be a valid employer-employee relationship  under the Neufeld Memo,  and that the entity has a right to control the employment. This can be a challenge if the founder exercises total control over the startup.  Still, the USCIS suggests that a startup may be able to demonstrate this if the ownership and control of the company are different. This can be shown through a board of directors, preferred shareholders, other investors, or other factors that the organization has the right to control the terms and conditions of the beneficiary’s employment (such as the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment). Some of the suggested evidence could include a term sheet, capitalization table, stock purchase agreement, investor rights agreement, voting agreement or organization documents and operating agreements. Further details on how an entrepreneur can successfully petition for an H-1B visa are provided in a prior blog entitled The Sweet Smell of Success: H-1B Visas for Entrepreneurs. Although there is a shortage of H-1B visas each year, certain H-1B visas would be cap-exempt if filed concurrently with employment through a cap-exempt university or non-profit affiliated with a university, or if the beneficiary works at cap-exempt university even though the petitioner is a cap-subject private H-1B employer. Many local governments have started programs to attract foreign entrepreneurs through cap-exempt H-1B collaborations with universities, the most recent being the initiative launched by New York City and the City University of New York.

We hope that H-1B petitions filed pursuant to Entrepreneur Pathways continue to be approved fairly despite the existence of the parole rule for entrepreneurs. USCIS adjudicators should not now be of the mindset that just because there is a parole rule for entrepreneurs, the H-1B visa program is no longer open for business to them. It should further be noted that Entrepreneur Pathways also provides guidance for entrepreneurs to use other existing visa classifications, such as the L-1, O, and E visas. Many of these visa categories could be more advantageous to the entrepreneur than the parole rule, and so adjudicators must continue to approve petitions in the spirit of the generous guidance set forth in Entrepreneur Pathways. The unique requirements under the parole rule, such as a set investment amount, should not be allowed to bleed into the adjudicatory process concerning visas that have been traditionally used by entrepreneurs.   Every effort must be made to encourage foreign entrepreneurs to establish their startups in the United States, and so it is important that the parole rule and the Entrepreneur Pathways coexist and complement each other like Siamese twins joined together at the hip.  Indeed, the Entrepreneurs Pathways is recognized in the preamble to the parole rule, as well as the acknowledgement that many will remain on a traditional visa “because the ability to be admitted to the United States as a nonimmigrant offers materially more benefits and protection than parole.” Moreover, there are ancillary conditions that must be fulfilled under the parole rule, such as maintaining a household income of greater than 400 percent of the poverty line and that the qualifying startup capital cannot come from family members. These limitations do not exist when entrepreneurs use the  L, O and E visas, although with respect to the H-1B visa, the entrepreneur must be paid at least the prevailing wage through the startup.

Finally, it will still not be a perfect world even if both the parole rule and Entrepreneur Pathways coexist harmoniously. There must also be a pathway for permanent residence. The parole rule has a maximum validity of only five years; the H-1B is for six years. The DOL does not encourage a labor certification to be filed if the beneficiary is also a substantial owner.  There must also be guidance to allow entrepreneurs to apply for permanent residence through the extraordinary ability and national interest waiver green card categories.   It is therefore encouraging that the While House blog indicates that the DHS will soon publish guidance as to when an entrepreneur can self-petition for a green card. While such administrative efforts are small steps in the right direction, it is important for Congress to ultimately pass legislation that would allow entrepreneurs of all stripes, so long as their enterprises hold out promise, to be able to easily enter on a visa and shortly thereafter apply for permanent residence.

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Until Further Notice! Why PERM Applications Must Continue To Be Error-Free?

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By:  Anand G. Sinha*

In a recent decision, Matter of Cisco Systems, Inc. 2012-PER-01179 (June 9, 2016), the Board of Alien Labor Certification Appeals (BALCA) reaffirmed its hardline stance that modifications cannot be made to filed labor certification applications under Program Electronic Review Management (PERM). Although this decision hardly comes as a surprise as the mandate that PERM applications must be “letter-perfect” is commonly accepted, it serves as an important reminder to employers and practitioners alike, that the ETA Form 9089 must always be prepared with tremendous care and diligence.

Matter of Cisco Systems, Inc. involved a denied PERM application filed by the employer for a “software engineer” position. The PERM was denied on the grounds that the employer failed to state the position’s actual requirements.  As a brief background on the case, the employer had attested on the ETA Form 9089 that its minimum requirements included twenty-four months of relevant work experience.  The employer failed to demonstrate in the description of the foreign national’s work experience that the he actually possessed the twenty-four months of relevant experience at the time of hire.  Subsequently, the Certifying Officer (CO) denied the application on the grounds that since the employer was willing to hire a foreign worker who did not possess the requisite twenty-four months of experience then this could not be the employer’s actual minimum requirement.  The employer had not presented any evidence of an applicable exception such as experience gained with the employer in a substantially different occupation or an infeasibility to train a worker for the position.

The employer appealed the denial on a number of grounds including an argument that a typo-graphical error had caused some of the foreign national’s pre-hire work experience to be omitted from the ETA Form 9089 and that the foreign national actually met the minimum requirements of the position, and therefore the CO should have allowed a modification to the application in light of procedural due process rights and fundamental fairness. Although BALCA upheld the CO’s denial and rejected the numerous arguments advanced by the employer, it was BALCA’s dismissal of the due process and fundamental fairness violations accompanied by an extensive discussion of its own litany of cases on this issue that was most troubling.  In fact, in a rather nonchalant manner, the Board held, “It is well settled that an employer may not modify its application post-filing.”

This blanket statement by BALCA denotes the relative inability for an employer to respond to the PERM audit or denial, including those denials arising from the “fatal” typographical error. A brief overview of the evolving nature of law on this topic may be appropriate at this stage.  One of the most seminal decisions in this realm is the very first decision rendered by BALCA.  Over ten years ago, BALCA issued its decision in HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006) which posited the concept of “harmless error.”  In this case, BALCA held that the denial of the PERM application based on a typographical error was unwarranted but warned that its holding was applicable to the particular facts at hand.  In 2007 however, the DOL’s Employment and Training Administration amended the PERM regulations and issued a final rule codified at 20 C.F.R. § 656.11(b) which as of July 16, 2007, prohibited any requests for modifications to an application once it had been submitted.  Since the issuance of the final rule in 2007, employment-based practitioners have tested the waters by attempting to save PERM applications that had been submitted with some type of error or discrepancy.

A review of the case law, as BALCA has delineated in Cisco Systems, would tend to support the proposition that harmless error has become less viable over time.  Two of my colleagues have written on the changing legal landscape with respect to post-filing modifications in PERM applications since the Final Rule was implemented in in past blogs.  In his 2010 blog, Cyrus Mehta explained how BALCA’s decision in Mater of Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) may allow for additional opportunities for an employer to provide supplemental evidence once the PERM has been denied.  In this case, and as the Board also referenced in Cisco Systems, there may be an opportunity to present additional evidence in response to a PERM denial.  If the employer received a denial without first receiving an audit, then the Board has held that employers may provide supplemental evidence that supports a correction of the error at issue.  As noted by the Board, this opportunity to present supplemental evidence is only applicable in a small set of circumstances.  The employer must have maintained the supplemental evidence as part of their regular record-keeping file for PERM applications, it must have existed at the time the PERM was filed, and the employer was not provided with prior opportunity to provide this evidence through an audit response.

In addition, Cora-Ann Pestaina’s 2013 blog expounded upon BALCA’s narrowed acceptance of attempts to make post-filing modifications to PERM applications as posited by the PERM denial in Matter of Sushi Shogun 2011-PER-02677 (May 28, 2013).  That case involved the denial of an application because of a 10-cent difference between the offered wage on the relevant prevailing wage determination and the corresponding ETA Form 9089.  BALCA enforced the doctrine of strict compliance in that PERM applications adhere to the regulations and essentially be error-free and letter perfect and held that its hands were tied as a result of the final rule.

In Cisco Systems, BALCA pointed to decisions that have sometimes been used by practitioners in a strategic attempt to respond to a PERM denial.  The Board distinguished them to further demonstrate that HealthAmerica is no longer viable. These cases have proven to be a source of hope in the past for those PERM applications that would otherwise appear to be doomed. Yet BALCA’s insistence on being letter-perfect has been the prevailing viewpoint as articulated in Cisco Systems.   For example, BALCA distinguished the decision in Matter of Pa’Lante, 2008 PER 00209 (May 7, 2009), a case that arguably dealt with an analogous fact pattern as Cisco Systems and in which BALCA forgave the error made by the employer.  For a detailed discussion of Matter of Pa’Lante, please see Cyrus Mehta’s blog here. The error omitted the foreign worker’s prior work experience but BALCA allowed the employer’s modification based on the fact that the underlying PERM application was filed prior to the effective date of the 2007 final rule.  Other BALCA decisions were also carefully written off as inapplicable to support a post-filing modification to a PERM application including Moreta & Associates, Int. 2009-PER-00008 (August 6, 2009), O’Connor Hospital, 2011-PER-76 (Mar. 5, 2012), and Subhashini Software Solutions 2007-PER-00043 (Dec. 18, 2007).  Through its holding in Cisco Systems BALCA has effectively maintained its hardline stance against modifications and this once again serves as a warning to employers and practitioners to be letter-perfect and error free in their preparation of the ETA Form 9089.

Nonetheless, employers and practitioners should not be utterly discouraged in the event that a typographical error was made on a submitted ETA Form 9089. For example, in Matter of Heso Electric, 2010-PER-00670 (April 21, 2011), BALCA vacated and remanded a PERM that was issued a denial by the CO.  In this particular case, the employer failed to make a selection for box M-1, which asked whether or not the application was completed by the employer.  However, BALCA reasoned that the employer did provide the name and signature of the preparer later on in the ETA Form 9089, and therefore asked the CO to reconsider the issue.

Moreover, this author has also anecdotally had a positive experience with a labor certification denial. A Request for Reconsideration was filed on a PERM denial issued without having been issued an audit. The underlying typographical error on the ETA 9089 concerned the wrong box checked off on question H.13 which asked if knowledge of a foreign language was required to perform the job duties of the position.  The employer inadvertently marked yes instead of no, and the CO denied the PERM on the grounds that it could not determine the actual minimum requirements of the position as there was no indication of the foreign national possessing knowledge of a foreign language.  In the Request for Reconsideration, the typographical error was acknowledged and the employer stated that a foreign language requirement was never an actual minimum requirement for the position.  The denial was clearly issued in error and fundamental fairness and good faith arguments won the day.  Despite the reality of strict compliance being the de-facto rule of law that particular PERM application was subsequently approved by the CO.  This experience demonstrates that fundamental fairness is not an argument that should ever be completely cast aside.  Although the nature of the error and the existence of relevant evidence to rebut the error are important factors to consider, there are limited circumstances through which HealthAmerica lives on.

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

* Anand G. Sinha has recently joined Cyrus D. Mehta & Partners PLLC as an Associate.

Cyrus Mehta

Who Should Get Notice When An I-140 Petition Is Revoked? It’s The Worker, Stupid!

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The ability for a foreign national worker to move to a new job is crucial in an age of never ending backlogs in the employment-based (EB) immigrant visa preferences. If an I-485 application for adjustment of status has been filed and been pending for more than 180 days, under INA 204(j), the I-140 immigrant visa petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer.

There are many who filed I-485 applications when the July 2007 visa bulletin was current, and then retrogressed, who are still waiting in the never ending EB-3 India backlog. For them, 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice o the USCIS’s intent to revoke?

Courts seem to be agreeing that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-495 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

These were indeed the facts in the recent Seventh Circuit decision of Musunuru v. Lynch. Like the Second Circuit in Mantena v. Johnson, the Seventh Circuit agreed that the original employer should not be getting notice of the revocation despite the government asserting that under 8 CFR 103.3(a)(1)(iii)(B) only the petitioner is considered an “affected party.” While in Mantena, the Second Circuit left open whether the new employer or the beneficiary of the I-140 petition should get notice,  the Seventh circuit in Musunuru quite adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

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

While the Seventh Circuit is yet one more court that has held that the original employer is not exclusively entitled to notice of the revocation, it is disappointing that the court insisted that the new employer must be treated as a de facto petitioner. There is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

While the USICS has yet to promulgate a rule implementing INA 204(j), the current policy of the USCIS is to transfer ownership of the pending green card application to the foreign worker who can demonstrate that s/he has moved to a job in a same or similar occupational classification under INA 204(j). Indeed, according to USCIS policy, such a worker can also port to self-employment. The most recent USCIS guidance on 204(j) portability in footnote 4 confirms long standing USCIS policy that allows a foreign worker to move to self-employment:

An alien may port to self -employment under section 204(j) of the INA as long as all eligibility requirements are satisfied. First, as with all other portability determinations, the employment must be in a “same or similar” occupational classification as the job for which the original I-140 petition was filed. Second, the adjustment applicant should provide sufficient evidence to confirm that the new employer and the job offer are legitimate. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must also have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 petition and supporting documents themselves as evidence of such intent, but in certain cases additional evidence or investigation may be appropriate. See Memorandum of Michael Aytes, Acting Director of Domestic Operations, USCIS, “Interim Guidance for Processing I-140 Employment-Based Immigrant Petitions and I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty -first Century Act of 2000 (AC21) (Public Law 106-313)” (Dec.27, 2005).

The holding in Musunuru does not square with USCIS policy that allows a worker to be self-employed under INA 204(j). In the context of self-employment, the worker can set up his or own company, but may also exercise 204(j) portability as a sole proprietor. Under these circumstances, there may not be a separate employer who has become the de facto new petitioner, unless the USCIS recognizes under these circumstances that the worker is the de facto petitioner. The Seventh Circuit’s holding is also not in line with the Sixth and the Eleventh Circuits. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b) makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Even older decisions have recognized standing for the beneficiary in a labor certification application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the beneficiary’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory,  it recognized the standing of the worker to seek review of the denial of a labor certification.  An even older case, Gladysz v. Donovan,  provided further basis for worker standing regarding a labor certification application. In Gladysz, the worker sought judicial review after the employer’s labor certification had been denied, rather than challenged his inability to seek administrative review under the applicable DOL regulations, and the court agreed that the worker had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The Seventh Circuit decision in Musunuru, while good in principle as it allows someone other than the original petitioner form exclusively getting notification, may create additional burdens on new employers, thus hindering job mobility for backlogged workers. There is a possibility that if the new employer is treated as the de facto I-140 petition, it may have to continue to demonstrate ability to pay the worker, and may be subject to filing a new I-140 petition on behalf of the alien beneficiary. All this would run counter to the spirit and intention behind INA 204(j), which is clearly alien centric in nature and focuses on the ability of the foreign worker to exercise job mobility, and for the worker to demonstrate that he or she has sought a new job in an occupational classification that is same or similar to the one that was the subject of the I-140 petition. Already in the proposed rule, Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers, there is an unnecessary imposition on the new employer at new 8 CFR 245.25(b)(12)(i) and (ii) when the worker exercises 204(j) portability. The proposed rule requires the new employer to sign a written attestation describing the new employment offer, stating that the employer intends the applicant to commence employment within a reasonable period upon adjustment of status, and that the employment offer and the employment offer under the approved petition are in the same occupational classification.

This imposition on the new employer is quite unnecessary as it is the foreign worker who has been making the 204(j) case till now, supported by a new job offer letter from the new employer. The new employer is not required to make a 204(j) argument on behalf of the worker. Still, the new employer is not recognized as the de facto petitioner in the proposed rule. The Seventh Circuit’s decision in Musunuru may change this, and possibly incentivize USCIS to impose further burdens on the de facto petitioner such as demonstrating the new employer’s financial ability to pay the proffered wage. It is thus important to ensure that other courts do not follow the precise holding of Musunuru, and insist that the worker as the beneficiary of the I-140 petition be primarily entitled to notification. As advocated in a prior blog, the proposed rule must include that the beneficiary of an I-140 petition has the right to receive and respond to any notice regarding potential revocation of the I-140 petition. The rule must specify that it is the beneficiary who should have this right, and not the new employer as the de facto petitioner. Such a regulatory change would once and for all settle the matter in favor of the worker who ought to be able to exercise job mobility unfettered under INA 204(j).

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Close, But No Cigar! Meaning Of Affiliation For Purposes Of H-1B Cap Exemption

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By Anand G. Sinha*

The annual numeric limitation on the issuance of H-1B visas has been written about extensively in prior posts.  It is no secret that the H-1B cap, as it is commonly referred to, has crushed the dreams of both prospective foreign employees and disappointed employers trying to secure high-skilled labor.  In an attempt to relieve pressure from the cap, Congress carved out certain exemptions to the H-1B cap, including for institutions of higher education and “related or affiliated nonprofit” entities.  Interestingly enough, due to a lack of clear guidance and improper rulemaking by USCIS, the meaning of the word “affiliation” still lies in murky waters.

The origin of the H-1B cap exemption regulations traces its roots to the American Competitiveness in the Twenty-First Century Act (AC21) passed in October 2000. As a result, pursuant to § 214(g)(5)(A) of the Immigration and Nationality Act, the annual numerical limitations on issuance of H-1B visas do not apply to a non-immigrant alien who “is employed (or has received an offer of employment) at an institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a))), or a related or affiliated nonprofit entity.” AC21 was meant to be and is virtually universally recognized as a “generous” or “remedial” provision.  Since Congress did not specifically define the terms “related or affiliated” in the context of H-1B cap exemption for nonprofits that demonstrated affiliation with an institution of higher education, USCIS took it upon itself to hunt for a definition of these terms.

Subsequently, on June 6, 2006, Michael Aytes, the Associate Director of Domestic Operations of USCIS at the time, issued an Interoffice Memorandum entitled, “Guidance Regarding Eligibility for Exemption from the H-1B Cap Based on §103 of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313).” In this memo, Aytes decided that the most obvious place to search for a definition of “related or affiliated” would be the H-1B regulations themselves.  Although this may seem to be a logical decision, its actual implementation has backfired.  This memo inexplicably instructed field offices to apply the definition of “related or affiliated” found in the American Competitiveness and Workforce Improvement Act (ACWIA).

ACWIA, in contrast to AC21 was a restrictive statute issued in November 1998 (more than two years prior to the issuance of AC21), implementing the ACWIA training fee. Following the statutory mandate of ACWIA, the regulation imposed a $500 fee on H-1B petitioners (which has since been increased through subsequent amendments), excluding institutions of higher education, their related or affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations. ACWIA provided a definition of those nonprofit entities that are affiliated with or related to institutions of higher education for fee exemption purposes and the definition is now codified in the regulation found at 8.C.F.R. § 214.2(h)(19)(iii)(B), which provides: “A nonprofit entity (including but not limited to hospitals and medical or research institutions) that is connected or associated with an institution of higher education, through shared ownership or control by the same board or federation operated by an institution of higher education, or attached to an institution of higher education as a member, branch, cooperative or subsidiary.” It appears that the affiliated non-profit entity has to truly be part of the institutional of higher education, such as a teaching hospital within a university. Demonstrating affiliation in other ways, such as joint programs between a university and a non-profit entity, have otherwise been scrutinized by the USCIS and not been readily approved, although this should not discourage petitioners from creatively trying to make a claim for affiliation especially when the H-1B cap has been reached.

Interestingly enough, at the time 8 C.F.R. § 214.2(h)(19)(iii)(B) was published the AC21 had not yet been enacted and hence, there were no exemptions from the H-1B cap at that time and this regulation was clearly not meant to govern H-1B cap exemptions. To date, there has been no regulation published to define which nonprofits are “affiliated” or “related” to an institution of higher education as it relates to AC21.  Moreover, the June 6, 2006 memo was issued without going through the rulemaking process required by the Administrative Procedures Act (APA), including publication of the proposed rule in the Federal Register and accepting and considering any submitted comments prior to issuing a final rule.

AC21 was a remedial statute enacted to fix problems that plagued employers and foreign nationals alike. In enacting AC21, Congress liberalized H-1B law, easing up on prior restrictions and roadblocks by substantially increasing the numerical cap. This begs the conclusion that when Congress wrote the H-1B cap provision, it meant the statute to have broad application and impact and that it meant what it plainly said: nonprofit entities related to or affiliated with institutions of higher education are exempt from the cap. Accordingly, USCIS ought to give the H-1B cap exemption provision the broad and liberal construction that Congress intended it to have.  Through the June 6, 2006 Memo as well as an Interim Policy Memorandum issued on April 28, 2011 entitled, “Additional Guidance to the Field on Giving Deference to Prior Determinations of H-1B Cap Exemption Based on Affiliation”, USCIS adopted a narrow, restrictive definition of “affiliated” and “related,” which runs counter to both the presumed liberal and broad definition Congress intended, as well as to the reality of the higher education system in the United States and their relationships with nonprofits.

 In recent years, the American Immigration Lawyers Association (AILA) has advocated that USCIS look for definitions of “affiliation” and “affiliated” elsewhere and has suggested that instead of looking at ACWIA, which did not involve numerical limitations from the H-1B cap, USCIS could easily have found a definition of the term consistent with Congressional intent elsewhere in the Immigration and Nationality Act (INA). For instance, Congress has defined the term “affiliation” in INA § 101(e)(2), which provides: (e) For the purposes of this Act— (2) The giving, loaning, or promising of support or of money or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation.

AILA also referenced the fact that the term “affiliated” is broadly interpreted in other immigration regulations including those concerning student visas and permissible employment authorization as well as those governing special immigrant religious workers. For example under 8 C.F.R. § 214.2(f)(9)(i), on-campus employment may be performed at an off-campus location and still be deemed as on-campus employment if the off-campus location is shown to be “educationally affiliated” with the school. This is demonstrated only if the off-campus entity is “associated with the school’s established curriculum” or “related” to contractually funded research projects at the post-graduate level. Similarly, under INA § 1101(a)(27)(C)(ii)(III), an immigrant may qualify as a religious worker if he seeks entry to work for “a bona fide organization which is affiliated with the religious denomination.” Under 8 C.F.R. §204.5(m)(2)(5), the term bona fide organization which is affiliated with the religious denomination is defined as a nonprofit organization which is “closely associated with the religious denomination.” These two regulatory provisions do not even slightly suggest that the organization must be controlled by the same board or federation as the religious denomination, or be attached as a member, branch, cooperative, or subsidiary.

In an effort to address the lack of proper guidance on this issue, DHS issued a proposed rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” which suggest that a broader interpretation of the terms “related or affiliated nonprofit entity” be used as related to INA § 214(g)(5)(A).  In the preamble to the proposed rules, DHS emphatically acknowledges the lack of adequate guidance having been issued regarding the definition of “affiliated or related nonprofit entities.”

“DHS intends to improve on current policy, however, by proposing additional means by which nonprofit entities may establish a sufficient relation or affiliation with an institution of higher education….In particular, based on its experience in this area, DHS believes that the current definition for ‘affiliated or related nonprofit entities’ does not sufficiently account for the nature and scope of the common, bona fide affiliations between nonprofit entities and institutions of higher education. To better account for such relationships, DHS proposes to expand on the current definition by including nonprofit entities that have entered into formal written affiliation agreements with institutions of higher education and are able to meet two additional criteria.  First, such entities must establish an active working relationship with the institution of higher education.  Second, they must establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education”

The proposed fourth prong to 8.C.F.R. § 214.2(h)(19)(iii)(B) would read as follows: “A nonprofit entity shall be considered to be related to or affiliated with an institution of higher education if: “(4) The nonprofit entity has, absent shared ownership or control, entered into a written affiliation agreement with institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education for the purposes of research and/or education, and a primary purpose of the nonprofit entity is to directly contribute to the research or education mission of the institution of the institution of higher education.“ This proposed change casts a wider net on the nonprofit entities that would be entitled to cap exemption, and should be readily adopted.

If the true meaning and purpose behind AC21 and the advent of cap exemption is to be realized, USCIS should look to define affiliation in broader terms as the proposed rules aim to do. Only then will nonprofits that further the mission of the institutions of higher education to which they are affiliated with, be afforded the opportunity to hire the high-skilled labor they are in desperate need of.

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

*Anand G. Sinha has recently joined Cyrus D. Mehta & Partners PLLC as an Associate.

 

Cyrus Mehta

Trump vs. Outstanding Immigrant Khizr Khan

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It is poetic justice that Khizr Khan, a Muslim and an immigrant, has been able to take on Trump and trounce him. Trump has derided both Muslims and immigrants with the objective of pandering to his base of white male voters.  After Mr. Khan’s strong repudiation of Trump, he is no longer looking as invincible as he did before.

Mr. Khan, and his wife Ghazala Khan, are the parents of Captain Humayun Khan who was killed in combat in Iraq in 2004. After ordering his subordinates away from a suspicious vehicle, Captain Khan bravely ran forward 10–15 steps and was killed by a suicide car bomber. He was posthumously awarded the Bronze Star Medal and the Purple Heart, and is buried in Arlington National Cemetery.

Mr. Khan, with Mrs. Khan by his side, gave a stirring speech at the Democratic National Convention. He rebuked Trump for his proposed ban on Muslims, and he famously took out a copy of the US Constitution from his jacket pocket and asked Trump whether he had ever read the document. Following the speech, Trump insinuated that Mrs. Khan did not speak because she may have not been allowed to do so as a Muslim. Mrs. Khan, who taught Persian at a college in Pakistan before immigrating to the United States and was perfectly capable of speaking, later explained that she was too grief stricken to speak about her dead son, but she still stood nobly by Mr. Khan’s side while he spoke in his honor. After Mr. Khan’s speech and Trump’s criticism of the Khans having backfired, Trump’s standing in recent polls has slumped. Mr. Khan has been able to achieve what no one else has been able to do as effectively, including the unsuccessful efforts of several outstanding Republican candidates whom Trump trounced in the primaries. When Trump spoke at a rally in Portland, Maine, on Thursday night, he was met with at least 50 protestors, inspired by Mr. Khan, who held pocket-sized constitutions.

Mr. Khan is an outstanding immigrant who has done a great service to America by exposing how antithetical Trump’s values are to long cherished American values of freedom, liberty and equality.  We often extol about how foreign graduates in Science, Technology, Engineering and Math (STEM) fields benefit America, but Mr. Khan has shown that an immigrant lawyer can also make outstanding contributions. He has driven the point home with amazing courage, grace and conviction that anyone in America can stand up, make a point and be heard – be it in public life or other fields of endeavor.  Immigrants from all walks of life, whether they are scientists, journalists or chefs, make contributions and provide a different point of view, which ultimately benefit their adopted country. While on first brush, Trump can legally institute deportation proceedings against the 11 million who are here in an undocumented capacity, Mr. Khan pointed out in a CNN interview with Don Lemon on Monday night that this would cause a constitutional crisis. I first scratched my head, but then Mr. Khan added that Trump would have to rely on state enforcement – sheriffs and police – to apprehend all the millions of undocumented, and I realized that this would violate the Preemption Clause in the US Constitution. The enforcement will likely be uneven with Muslims being targeted more than others. There will be mistakes as US citizen children of undocumented parents will get picked up. Targeted immigrants will likely be sloppily served with notices to appear before an Immigration Judge, and may miss their hearing resulting in a deportation order in absentia.

Mr. Trump’s Muslim ban, which has now been replaced with a ban against people from countries that have been compromised by terrorism, will cripple the US immigration system. Mr. Khan blasted Trump by stating that if his ban were implemented, his son “never would have been in America.” The ban would cover many countries, including potentially countries in Europe such as France and Belgium. It would require a massive bureaucracy to interrogate would be applicants to America regarding their religious views and beliefs. In addition to being a bureaucratic nightmare, it would undermine America’s strongly held notion of religious freedom. The simple act of pulling out a US constitution from his jacket pocket during Mr. Khan’s speech in defiance of Trump’s blighted worldview resonated deeply in the hearts of millions of Americans.

I will continue to cheer Mr. Khan for his courage and audacity in exposing a presidential candidate who has made scapegoats of immigrants, and cast them in such a derogatory light. Trump has also branded refugees fleeing persecution as terrorists, even though America since its very inception has been the beacon of hope for people fleeing persecution. Trump’s idea of a wall on the Mexican border will do nothing to fix the broken immigration system, and the billions of dollars spent on the wall could be better spent on other public infrastructure projects, including high speed rail and other 21st century cutting edge transportation systems.  Such projects would also benefit through partnerships with innovative companies founded by immigrants.  Cheering for the Khans is no longer a partisan issue. Whether one is Democrat or Republican, all should be concerned about Trump’s undermining of the basic values of decency, compassion and the diminution of America’s exalted status as a nation of immigrants. While Trump’s poll numbers may be down, fair minded people who care for America should not become complacent. Mr. Khan started the movement against Trump with his speech, and we must continue to repudiate Trump. The only way America can restore its reputation, now sullied by the way Trump so ineptly and mean-spiritedly views the world, is to ensure that he is not just defeated on Election Day, but he loses so badly that future Trumps will have no chance of rising again.

Mr. Khan will be given many awards, but we immigration lawyers must also honor him. I therefore urge that the American Immigration Lawyers Association bestow Mr. Khan one of its highest awards at its next annual awards ceremony, and the American Immigration Council honor both Mr. and Mrs. Khan at its next gala event that honors immigrant achievement.

Cyrus Mehta

Don’t Forget Skilled Workers Who May Have to Wait For A Few Centuries Before Getting the Green Card

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Hillary Clinton’s acceptance speech was so warm and embracing of immigrants when compared to Donald Trump’s acceptance speech a week earlier. These were some of her key remarks on immigration:

We will not build a wall. Instead, we will build an economy where everyone who wants a good-paying job can get one. And we’ll build a path to citizenship for millions of immigrants who are already contributing to our economy. We will not ban a religion. We will work with all Americans and our allies to fight terrorism.

I believe that when we have millions of hardworking immigrants contributing to our economy, it would be self-defeating and inhumane to kick them out.

Comprehensive immigration reform will grow our economy and keep families together – and it’s the right thing to do.

Compare these words to Trump’s speech when he only spoke about how immigrants would bring doom and gloom, and thundered that “nearly 180,000 people with criminal records ordered deported from our country are tonight roaming free to threaten peaceful citizens.”

All this is so refreshing and noble when Clinton speaks about building a path to citizenship for millions of immigrants, enacting comprehensive immigration reform and not profiling a group of immigrants solely because of their religion. However, not a word was said about skilled immigrants who are already in the pipeline for a green card, but for the fact that their priority dates have not yet become current. Most of these skilled immigrants were born in India and China who are caught in endless backlogs because of a limited supply of green cards each year set by Congress in 1990, and further stymied by annual caps for each country. We hope that Clinton also would include these immigrants in her forthcoming speeches referencing immigration, who have always been legal and are employed in good paying jobs, as part of comprehensive immigration reform.

David Bier at the Cato Institute has emerged as a fresh and new scholarly voice on immigration. It has always been known that an individual who got sponsored by an employer today in the India employment-based third preference (EB-3) would need to wait for about 60 years before he or she got the green card. In Bier’s new report, No One Knows How Long Legal Immigrants Will Have To Wait, he calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” Ironically, if these workers, by some stroke of luck were able to file I-485 applications in the past, such as the class of 2007 adjustment applicants, their children whose age was artificially frozen below 21 under the Child Status Protection Act will be mature adults before they can immigrate with their parents as “derivative children”. On the other hand, if a child’s age could not be frozen through the filing of an adjustment of status application in past years when the priority date may have become current, they will not be able to remain “derivative children” under the CSPA in the unlikely event that their parents may qualify for green cards in their life time and if the children are still alive.

It is readily obvious that Congress needs to infuse a greater supply of green cards each year in the EB categories, and even lift the country limits, as countries like India and China get more adversely impacted than Lithuania or Finland. While it is desirable that Congress fix this problem immediately, we know that Congress is mostly paralyzed at present. However, one should at least be giving these unfortunate skilled workers top priority in any comprehensive immigration deal if Clinton becomes president and can achieve her stated goal to implement reform within the first 100 days of her presidency. Trump, on the other hand, with his America first policy may be more inclined to curb legal immigration rather than fix it, leave alone expanding it.

While different groups of immigrants justly advocate for expanded immigration benefits, it is important that they all remain united. It may be tempting for skilled legal workers to only seek immigration reform for their group as they have been legal while undocumented immigrants broke the law. However, it is not that undocumented people choose to remain undocumented. They too want to become legal but the current immigration system does not provide adequate pathways for different categories of immigrants to become legal and get onto a pathway to permanent residence. And for those who are here legally and on the pathway to permanent residence, they have to wait impossibly for decades, and now Bier shockingly speculates that it may be centuries. Legal skilled workers, many of whom are on H-1B visas, should not be jettisoned because it has become fashionable to think that they away jobs from US workers. They compliment the US workforce, and most have gone through the labor certification process that required their employers to first test the US labor market before proceeding with their green card applications. Once they get green cards, there will be a surge of entrepreneurial talent in the nation’s economic blood stream.  Finally, immigrants already in the US should not pull up the drawbridge behind them and block new H-1B workers. It is important for fresh and talented immigrants to come to the US to achieve their dreams. All we need is an immigration system that has many more pathways to America and is consistent with the needs of the nation in the 21st century.

The present immigration system is broken and can be likened to a terminally ill patient who is suffering from multiple organ failure. The goal for treating such a patient is not just to repair one organ, such as the heart, and leave the other organs in a state of disrepair. This approach will certainly not nurse the patient back to health. All the vital organs in the patient must be revived at the same time. The same holds true for our immigration system, which is like a terminally ill patient. All its components, like body organs, must be repaired. This includes but is not limited to more visas for skilled immigrants and entrepreneurs, faster pathways for loved ones to unite with their family in the US, more opportunities for investors and essential workers, and also a path for the 11 million undocumented to legalize their status. We must also not forget to reform the system for those seeking refuge in America from persecution and other kinds of crimes such as trafficking and sexual violence, and provide more waivers for those who would otherwise be deportable if they have ties with the US or can demonstrate rehabilitation. While Clinton’s message for immigrants is positive and upbeat, she must remember to include all affected immigrant groups, especially legal skilled workers who have been hopelessly waiting for their green cards.

Cyrus Mehta

No Longer So Fast! An Examination of EB-1 Retrogression For Indian And Chinese Born Foreign Nationals

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By Cyrus D. Mehta and *Anand G. Sinha

One does not need a degree in public policy or law to understand the basic premise behind the concept that the United States ought to make the attraction of the best and brightest individuals a paramount immigration policy. By enabling the most talented and gifted individuals in the world to come to and work in the United States, the positive impact on society both economically and culturally ought to seem self-evident.  However, on July 11, 2016, the Department of State (DOS) issued a visa bulletin which bodes poorly for many of those Indian and Chinese born foreign nationals the country should be actively recruiting.

The Employment-Based First Preference Category (EB-1), the visa category encompassing “priority workers” pursuant to section 203(b)(1) of the Immigration and Nationality Act, has retrogressed for the first time in nine years. The EB-1 category includes foreign nationals of extraordinary ability, outstanding professors or researchers, and multinational executives and managers.  Retrogression refers to the backward movement of the “cut off” or “priority date” used by the DOS to determine when an immigrant visa will be made available to the alien.

Prior to the issuance of the August 2016 Visa Bulletin by the DOS, the priority date for Indian and Chinese nationals in the EB-1 category had remained “current” since October, 2007. In essence, this meant that foreign nationals who qualified under the EB-1 category, as will be detailed below, could immediately apply for an immigrant visa and adjust their status.  However, in this Visa Bulletin, the application final action dates (the dates that are generally used for determining whether a green card can be issued, and also more recently for determining whether an adjustment of status application can even be filed), retrogressed to January 01, 2010 for nationals of India and China.  In the last 25 years, the EB-1 priority date has only retrogressed three and six times for India and China, respectively.  This new retrogression means that as of August 01, 2016, if a foreign national did not submit their EB-1 immigrant petitions before January 01, 2010, then USCIS will not accept their adjustment of status applications until the backlog is cleared.

In addition to the priority date retrogression, the DOS and USCIS have created another layer of confusion to the unwary reader of the Visa Bulletin. In the October 2015 Visa Bulletin, two separate charts were provided regarding the filing dates for employment-based visa petitions. The relevant dates are the “Application Final Action Dates” and the “Filing Dates.”  Simply put, the pertinent idea relative to this blog was that early-filings of Form I-485, Applications for Adjustment of Status based on an employment-based category may have been possible under the Filing Date even if the actual green card could not be issued. However, the implementation of this program has been confusing.  As the USCIS guidance demonstrates, the definitive ruling on which of the two dates is to be relied on for purposes of filing an adjustment of status application, can theoretically change on a monthly basis, and therefore has created both tremendous confusion and uncertainty regarding the adjustment process for many foreign nationals. Thus, even if the Filing Date for EB-1 is current for all countries, including India and China, the USCIS has indicated that only the Final Action Dates can be used for purposes of filing an adjustment of status application.

One may ask, what are the practical implications for those Indian and Chinese born nationals who wish to adjust their status on the basis of an EB-1 petition? For starters, if the adjustment of status application is received at USCIS before the end of July 2016, the category will technically be current and the application will be accepted for processing.  Although not much time remains, for qualified foreign nationals, a strategic filing before the end of July 2016 (note that July 30 and 31 fall on a Saturday and Sunday, and so it would be best if the application is received on Friday, July 29) could help save time waiting on the imminent backlog and would allow the applicant to take advantage of all the benefits that an applicant for adjustment of status is entitled to, such as work authorization, travel permission and job portability.  That being said, one should always take precautionary steps prior to filing an adjustment of status application.  For instance, the idea of arriving in the United States on a visitor’s visa and quickly applying for adjustment of status is highly unadvisable as it is important for the holder of a visitor’s visa to demonstrate nonimmigrant intent.  On the other hand, if one possesses a dual intent visa, such as an H-1B or L-1 visa, then it might be a good idea to enter the United States and apply for adjustment of status.  Also, if there is a child aging out, it would make sense to also file the adjustment application prior to August 1, 2016 so as to freeze the age of a child under the Child Status Protection Act. If the child is based outside the US, and adjustment of status is not possible, one can also argue that the Filing Date, although not applicable for filing an adjustment of status application, can still be utilized for purposes of freezing the age of a child under CSPA by initiating and filing an application through the National Visa Center, as explained in this blog. Finally, if an Indian or Chinese born applicant can cross charge to the spouse’s or parent’s country, other than India or China, then the EB-1 is still current for all of the other countries of the world.

The silver lining is that India and China born foreign nationals can look forward to October 1, 2016, when the new yearly allotment of green cards under the EB-1 category will be issued and the August 2016 Visa Bulletin has announced that the categories will again become current.  In summation, the EB-1 retrogression for Indian and Chinese nationals may foreshadow an alarming trend, although in the past the EB-1 moved to current quite rapidly after it had retrogressed.  The visa category which was dubbed the “fast-track” to an employment-based green card, may be slowing down. The EB-2 and EB-3 for India and China in recent years have been hopelessly backlogged, and the EB-1 provided a pathway to quick lawful permanent residence, provided one qualified. Let us hope that the EB-1 for India and China reverts to current and stays current from October 1, 2016 onwards. Otherwise, we will fast be going downhill in a broken immigration system!

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

*Anand G. Sinha has recently joined Cyrus D. Mehta & Partners PLLC as an Associate.

Michelle S. Velasco

Avoid The Confusion: Complying With The Simeio Decision One Year Later

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Employers of roving H-1B employees have scratched their heads in confusion over the Administrative Appeals Office’s April 9, 2015 decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), discussed in detail in this blog here, here and here.  This is because while the decision lays out the requirements for filing an amendment when an H-1B worker’s worksite changes, but is mute on a variety of other situations that employers may face.

Briefly, the Simeio decision, formalized in a USCIS final guidance on July 14, 2016, requires H-1B employers to file an amended petition when there is a change in the H-1B employee’s place of employment requiring a new LCA to be certified, with the following exceptions:

  • When it is a move within the same “area of intended employment”
  • When the move is a short term placement pursuant to 20 CFR 655.735
  • When the move is to a non-worksite location, such as in cases where:
    • The H-1B employee is going to a location merely to participate in developmental activity, such as attending conferences or seminars;
    • The H-1B employee spends little time at any one location; or
    • The job is “peripatetic in nature” per 20 CFR 655.715.

The same final guidance from USCIS provided for a safe harbor period for employers to comply with the decision’s rules so that for any moves made prior to the Simeio decision or that took place after April 9, 2015 but before August 19, 2015, employers would be able to file an amendment by January 15, 2016.  But for any moves that take place after August 19, 2015 the employer must first file an amendment before the H-1B employee starts at the new worksite.

Now that it has been more than 1 year since the decision and at least six months since the safe harbor due date in January 2016, it would be helpful to assess compliance in various situations including those where it may not be entirely clear whether an amendment pursuant to Simeio is required.  To that end, here are some fact patterns where some H-1B employers may wonder whether precisely an amendment is warranted.

Fact Pattern #1: Employee Edgar has been at worksite A since January 2015. Worksite A is in New York City.  His employer ABC Company now wishes to assign him to a project for a new client located at worksite B, in Piscataway, NJ.  Must ABC Company file an amendment?

Here, the analysis turns on whether Piscataway, NJ and New York City are in the same “area of intended employment.” According to the National Bureau of Statistics (BLS)’s definitions of Metropolitan Statistical Areas (MSAs) as designated by the Office of Management and Budget, Piscataway and New York City are indeed within the same MSA.  But does this mean that they are within the same area of intended employment?  It is not very clear.  The Final Guidance provides as an example a change in worksite within the New York City metropolitan area as one that does not require an amendment.  According to 20 CFR 655.1300, an area of intended employment is defined, within the regulations for an H-2A filing as:

the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which certification is sought. There is no rigid measure of distance which constitutes a normal commuting distance or normal commuting area, because there may be widely varying factual circumstances among different areas (e.g., average commuting times, barriers to reaching the worksite, quality of the regional transportation network, etc.). If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. The borders of MSAs are not controlling in the identification of the normal commuting area; a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA.

Based on the definition above, Piscataway and New York City would arguably be in the same area of intended employment as they are within the same multistate MSA. Here, the employer could reasonably decide not to file an amendment, though it would have to post the LCA at the new worksite for the required ten days.

Fact Pattern #2: Employee Edgar has been at worksite A since January 2015. Worksite A is in New York City.  His employer ABC Company now wishes to assign him to a project for a new client located at worksite B, in Chicago, IL.  However, he will only be there for about 24 days and then he will return to work at worksite A.  Must ABC Company file an amendment?

Since the new worksite is not within the same area of intended employment, ABC Company could file an amendment here. However, since Edgar would only be at the new client’s site for 24 days, ABC Company could avail itself of the short-term placement option.  Pursuant to 20 CFR 655.735, an employer may place an employee for up to 30 days at a worksite on a short-term placement (and in some cases 60 days where the employee is still based at the “home” worksite”).  During the time spent at this worksite, the employee must be treated as a per diem employee, and the employer must pay all expenses such as housing and travel.  If ABC Company decides to use the short-term placement option for Edgar, then it would not have to file an amendment.  If it chooses not to use the short-term placement option, then ABC Company should file an amendment before Edgar travels to Chicago.  Since it already is aware that after this short assignment Edgar will return to New York City, ABC Company ought to place both New York City and Chicago on the LCA and provide an itinerary in the H-1B petition.

Fact Pattern #3: In the original petition, employee Edgar’s place of employment was listed as ABC Company’s headquarters located in New York City, a home office. Edgar’s position is peripatetic in nature and he must travel to various client sites constantly.  When he is not traveling, he may telecommute to employer ABC Company’s headquarters from his home located in San Antonio, Texas.  Must ABC Company file an amendment now?

Here, it is not entirely clear whether an amendment is required. Edgar’s position is peripatetic in nature and may fall into one of the exceptions under the Simeio rule.  Moreover, when he is not traveling, he is telecommuting to ABC Company’s headquarters.  However, the LCA did not list his home office as his place of employment. Simeio is silent on telecommuting and instead only discusses actual changes in the work location.  Here, ABC Company could file an amendment in an abundance of caution, providing a certified LCA listing both New York City and Edgar’s home as work locations, and explain that the ambiguity in the Simeio rules with regard to telecommuting warrants the favorable exercise of USCIS’s discretion.

Fact Pattern #4: Employee Edgar is on a TN and his coworker Emily is on an E-3. They both work for ABC Company in New York City on the same project.  ABC Company now needs them to transfer to a new project located in San Francisco, CA.  Would ABC Company need to file an amendment?

Neither Edgar nor Emily are in H-1B status. Simeio only touches upon changes in worksite location for H-1B workers, and it does not discuss whether the rule extends to similar nonimmigrant temporary employment visas such as the TN and E-3.  Furthermore, there would be nowhere that ABC Company could file an amendment since TNs and E-3s are applied for by the nonimmigrant at either port of entries or consular posts abroad.  There is therefore no petition with USCIS that ABC Company could amend.  Furthermore, in the case of a TN, no LCA is filed with the Department of Labor, and so the crux of the decision in Simeio, that a change in worksite location requiring a new certified LCA is a material change, has no bearing on a TN.  Theoretically, however, if ABC Company had filed an extension of status for Emily through USCIS by filing the Form I-129, and then a change in worksite occurred, then ABC Company could choose to, in an abundance of caution, file an amendment in the spirit of the Simeio guidance.

 Fact Pattern #5: Emily is on an H-1B and working for ABC Company. She is at a client site in Atlanta, Georgia and her employer’s headquarters is in New York City.  The LCA for the H-1B petition contained both Atlanta and New York City as places of employment.  ABC Company wishes to move her from Atlanta to work from their headquarters.  Must ABC Company file an amendment?

Here, both New York and Atlanta are on the original LCA. Even if there is a change in employment location from Atlanta to New York City, there would not be an amendment required under Simeio because no change warranted a new certified LCA and thus no material change occurred that requires an amended petition.

Fact Pattern #6: Esther is on an H-1B, and was working at a client site in Minneapolis from November 2014 until May 2015 when she was transferred to a client site in Jacksonville, Florida. Prior to that transfer, her employer obtained a new LCA for Jacksonville, but did not file an amendment.  Her employer now wishes to move her to a worksite in Philadelphia.  Must ABC Company file an amendment?

Yes! ABC Company should have filed an amendment when Esther’s worksite changed from Minneapolis to Jacksonville.  This change occurred after the Simeio decision and therefore, ABC Company should have filed an amendment by January 15, 2016.  Since it did not, it is not in compliance with the Simeio decision and may face fines and other sanctions for violating the new rule.  ABC Company may investigate whether Esther’s employment is peripatetic in nature or whether she was telecommuting in which case they may not have been required to file an amendment.  With the new planned change in worksite to Philadelphia, ABC Company very likely will need to file an amendment before Esther moves to the new worksite.  ABC Company should try to explain in its amended petition the reasons why an amendment had not been filed prior to Esther’s move to Jacksonville, discuss any extraordinary circumstances that may have led to the failure of filing the amendment, and seek favorable discretion from the USCIS pursuant to 8 CFR 214.1(c)(4).  If the extension of status is denied because Company ABC failed to file the amendment timely, then Esther could still leave the U.S. and undergo consular processing for her H-1B visa.

With regard to whether Esther may have accrued unlawful presence, we would argue that she did not since unlawful presence during a period of authorized stay only is triggered once the USCIS makes an adverse finding regarding her status. In this case, if USCIS were to deny the extension of status and make an adverse finding, the unlawful presence would only trigger from the adverse finding and not retroactively.

The above are just a few examples of scenarios that H-1B employers face that require them to analyze the best ways to comply with the Simeio decision.  Because of the complex ways in which companies conduct business in the modern world, it is imperative that H-1B employers remain up-to-date on the latest rules with regard to compliance with H-1B employment, particularly for roving employees.  It has been one year since the Simeio decision and the safe harbor period has expired.  If employers anticipate that H-1B workers will need to change worksites in the future, it is helpful to perform due diligence and plan accordingly for the H-1B amendments that it will need to file.  Some employers prepare certified LCAs for various worksites in advance, so that when changes in worksites occur, the H-1B amendment can be filed quickly without waiting the usual 7 days for the LCA to be certified.  If an LCA is prepared in advance, the employer must still comply with the attestation requirements relating to the anticipated worksite(s), including posting the LCA for 10 days at each worksite listed on the LCA.  Employers should also be ready with the required documents to demonstrate its right to control the H-1B employee’s employment (i.e. contracts, work orders, end client letters, etc.) and that there is sufficient H-1B work to be performed at the new site.  Some employers may opt to plan an itinerary and appropriate LCA if it anticipates that a single H-1B employee may move several times within the H-1B validity period so that it would not have to file multiple amendments for the same employee.  Lastly, employers that anticipate worksite changes lasting 60 days or less should examine whether it could opt for a short-term placement and budget accordingly for it.

Since the surprise decision was issued last year, it has been a costly and burdensome process for many H-1B employers who suddenly needed to file multiple amendments for their employees when before the decision new certified LCAs would suffice. It particularly hurts employers in the tech sector who rely on H-1Bs for employees who work on various projects throughout the year for different clients.  The ruling also ignores the realities of business today – which is that, often, tech employers must provide consultants for projects very quickly or else risk losing the contract with the customer.  Filing amendment after amendment cuts into companies’ bottom line, ignores the modern methods of business in IT consulting, and overall has a negative effect on this bustling field of American technology.  One sliver of a silver lining has been that employers who are subject to the super fee under Public Law 114-113 (employers who have 50 or more employees, 50% or more of whom are in H-1B or L-1 status; see our blog about this fee here) need not pay the $4000 super fee for amendments as the fee is only required for initial H-1Bs and H-1B transfer petitions.  Still, it has indeed been a year of adjustments.  Because it has indeed only been one year, no official statistics have been released about how USCIS has dealt with non-compliance with the Simeio decision.  It remains unclear whether the USCIS or DOL will issue penalties or fees against employers who have failed to comply with Simeio, whether H-1B petitions will be revoked, and exactly how much discretion USCIS will wield when there had been a good faith effort to file the amendment but it was not done timely.

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

 

Cyrus Mehta

Brexit and Xenophobia vs. Immigration and Innovation

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In the backlash against globalization, as seen in the vote in favor of Brexit, there is an even more insidious backlash against immigration. The world has prospered because of the expansion of trade and technology, and also due to the free movement of capital and people. Millions of the world’s poor people have been lifted from poverty as a result of globalization. In turn, people in richer countries have been able to buy products and services at lower cost. Businesses have also been able to sell goods and services outside beyond national boundaries, thereby becoming more profitable and hiring more people.

Politicians like Donald Trump do not see it this way, who wish to tear up trade deals such as the North American Free Trade Agreement. So does Bernie Sanders, who while speaking with a softer voice, appears to be in harmony with Trump in his critic of globalization and trade deals. While Hillary Clinton is probably in favor of trade deals, she back tracked on the Trans-Pacific Partnership, after being attacked by Sanders during the primaries. It is true that globalization does not always have winners. Those who get displaced need to land on a safety net so that they can re-train and develop new skills. The safety nets, unfortunately, are not keeping up with the enormous changes in technology that increase productivity through innovative technologies, which include rapid strides in robotics and artificial intelligence. During this transition that promises a better future for all in the long run,  politicians exploit this shortcoming to lash out against immigrants in their countries and foreign-based workers outside who are paid less, when the true disrupter is technology and innovation.

As Fareed Zakaria so succinctly puts it:

“Manufacturing as a share of all U.S. jobs has been declining for 70 years, as part of a transition experienced by every advanced industrial economy. All other developed countries from Australia to Britain to Germany — which is often seen as a manufacturing powerhouse — have seen similar declines over the past several decades. Even South Korea, which has tried many kinds of protectionism, has experienced a drop in manufacturing as it has become a more advanced economy. This shift is partly a result of free trade, but serious studies show that the much larger cause is technology. One steelworker today makes five times as much steel per hour as he or she did in 1980.”

Immigration lawyers know first- hand how free trade and immigration has been beneficial for America. It is due to NAFTA that Canadians and Mexicans can enter the United States on TN visas to work for US employers who seek them out even while the H-1B visa, the main workhorse nonimmigrant visa, has hit the annual numerical cap. Singaporeans and Chileans can enter the United States on H-1B1 visas that ensue from trade deals and so can Australians on an E-3 visa. Nationals of many countries that have treaties with the United States can come here on E-1 and E-2 visas as investors and traders. While the L-1 visa does not ensue from a treaty, it too is premised on the needs of multinational corporations, big and small, in a globalized world. Intra-company transferee managers, executives and specialized workers can work for a US branch, subsidiary, parent or affiliate of a foreign company on L-1 visas. Despite there not being H-1B visas, the fact that other visas are still available, allow US companies to remain globally competitive by tapping into skilled and professional foreign workers. If it were not for these visas, the entry of skilled workers into America would be at a standstill.

We need to embrace immigrants, and view them as an asset, rather than as people who steal jobs and work cheaply. Immigration not only provides a complimentary workforce, but also generates innovation that will create the next generation of jobs that require new skills. If we have a robust and welcoming immigration system that would not shackle the worker to one employer, but would allow mobility and a quick pathway to permanent residency, then there would be no suppression of wages. Everyone would be on a level playing field, and market forces would ensure that wages remain competitive. Indeed, by encouraging more movement of people to America and other richer countries, it would have the effect of wages increasing worldwide and potentially a convergence in wages for highly skilled people. With the advent of technology that has increased productivity manifold times, manufacturing would be based in places not where the wages are lower, but where there is an abundant supply of skilled workers, technology and innovation.  If the free movement of people is restricted, employers will be forced to move operations to other countries, thus perpetuating wage disparity.

This brings us to the H-1B visa program that has a mere 65,000 visas, plus an additional 20,000 for those who have graduated with advance degrees. Due to the well publicized layoffs of US workers at companies like Disney by H-1B workers, there appears to be no appetite by Congress to increase H-1B visa numbers even though there is a dire need to do so. By continuing to limit and stifle the H-1B program, US employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at IT consulting company, as they too wish to abide by the law and to pursue their dreams in America.  The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly,  H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it with stifling laws and regulations, labor attestations and quotas. Market forces can better control the H-1B program from abuses and distortions than labor attestations!

As we meditate over yet another July 4th weekend celebrating America’s independence, we should note that the world faces a stark choice today. Should countries be more open or less open? The ideological line between left and right is blurring as another more distinct line is being drawn between open and closed nations. America was founded on principles of openness and its ability to embrace people from all over the word, but that may change if the proponents for a closed and isolated world have their way.  If America becomes closed, just like Britain will likely be after Brexit, there will be fewer opportunities for businesses to sell outside national borders, and they will be further stymied and unable to grow if they cannot gain access to the best talent. Moreover, innovation will get stifled if the best people from around the world cannot cluster together to develop new products and change paradigms. Immigration is what fuels these advances, which in turn promises more growth and prosperity. Do we want to revive the industries of the past to bring back those illusory jobs, such as steel manufacturing or coal mining,  after technology has already marched on, or do we want to imagine about autonomous vehicles (notwithstanding the recent Tesla car setback), nanotechnology that will automatically repair our cells and space travel through a wormhole?  Brexit and xenophobia go hand in hand. Will America buck this trend in favor of immigration and innovation when it goes to the polls in November 2016?