Cyrus Mehta

EB-5 Green Card, Ethics and Trump

/0 Comments/in /by

The EB-5 green card program for foreign investors is very much in the news due to its connection with President Trump!

A series of news reports have highlighted the Kushner family’s attempt to raise funds through the EB-5 green card program from Chinese investors by suggesting Trump’s connection to one of its real estate projects through his son in law, Jared Kushner. Qiaowai  is a Chinese agency that acts as an intermediary between Chinese EB-5 investors and EB-5 projects, including the Kushner EB-5 project called One Journal Square in Jersey City. Qiaowai has touted this project’s close links to President Trump.  When Qiaowai did a road show in China recently, Nicole Kushner Meyer, Jared Kushner’s sister, was promoted as the event’s “heavyweight honored guest”.  According to the New York Times, Ms. Meyer told prospective investors that the Journal Square development project “means a lot to me and my entire family,” and that her brother served as chief executive of Kushner Companies before leaving the company to work for the president. Qiaowai’s founder, Ding Ying, has boasted about being close to Trump. Its website stated, “The fact that Ms. Ding has once again been invited to attend a presidential inauguration shows that the U.S. Congress values and approves of the Qiaowai group.” The US Immigration Fund, is the Regional Center promoting this project in the United States.

This close connection between an EB-5 project, the foreign migration agency, the Regional Center and Trump has resulted in a barrage of criticism as it once again brings up the specter of conflicts of interest. There has already been widespread concern about Trump’s businesses violating the Emolument Clause of the Constitution. At the same time, there has been scant commentary on the dilemma that such conflicts involving Trump and his family members pose for the immigration lawyer who represent EB-5 investors. Must the immigration lawyer, when providing a list of viable EB-5 projects that have resulted in green cards for the investor, now also recommend projects of the Kushner family because of their close proximity to President Trump? While an immigration lawyer should not be acting as an investment advisor, unless licensed, an immigration lawyer may still conduct “immigration due diligence” on behalf of the client. The immigration due diligence assesses the viability of the project, not with regard to whether it will deliver a rate of return, but from the perspective of whether the investor has a reasonable chance of getting the green card. Such diligence includes evaluating the past I-526 approvals through the project and whether the project will create the requisite 10 indirect jobs per investor to satisfy the EB-5 statutory requirement. It also includes whether the project is in a targeted area that qualifies for the $500,000 investment, whether the investment capital is at risk, the investor’s place in the queue regarding job allocations and a host of other considerations that are unrelated to investment advice. Conducting such immigration diligence is part of the immigration attorney’s ethical obligation to be competent under ABA Model Rule 1.1, which provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

The immigration lawyer must also consider other ethical rules, besides the duty of competence, when representing EB-5 investors:

Rule 1.2 addresses the scope of representation and the allocation of decision-making authority. According to this allocation, the client establishes the objectives, and the lawyer controls the means to pursue them.

Rule 1.4 on communication overlaps with 1.2: “A lawyer shall explain a matter to the extent reasonably necessary to permit a client to make informed decisions regarding the representation.”

Rule 1.0 defines informed consent: “The agreement by a person to the proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Rule 1.3 on diligence emphasizes the lawyer’s commitment to the client. “A lawyer shall act with reasonable diligence and promptness in representing a client.” The first comment to Rule 1.3 expands on this statement. “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”

As part of the lawyer’s competent representation and other ethical considerations on behalf of a prospective EB-5 investor client, must the ethical lawyer factor into consideration the EB-5 project run by the Kushner company due to its close relationship to President Trump? This is especially true when an intermediary such as a foreign migration agency in China has enticed the client to invest in a project that is close to the president. The lawyer may need to consider whether there is a likelihood of such an EB-5 project being treated more favorably, for example, by receiving less scrutiny with respect to its job creation plan, thus increasing the chances of a green card for the client? Hopefully, the answer should be “No,” but in the age of Trump, expectations have been defied and turned upside down many times over. In the not too distant past, then USCIS Director Mayorkas was investigated for appearing to show favoritism for EB-5 projects that had connections to Hillary Clinton’s brother and Senator Reid. Although Director Mayorkas did not face any sanction at the conclusion of the investigation, in an ideal world, an EB-5 project’s connection to Trump or his family ought not to matter. Both the financial advisor and immigration attorney should independently evaluate the project without regard to any political connections. By the same token, even the USCIS should independently evaluate the project, without regard to whether it is connected to a close family member of the president. It is also worth noting that the success or failure of an EB-5 application depends, not so much on the project, but on whether the investor can demonstrate the source of funds. In other words, is the investor able to demonstrate he or she was the owner of the funds from the very beginning? If the investor cannot demonstrate that he owned the funds, as opposed to an uncle depositing the money in the investor’s bank account, the EB-5 application will fail regardless of the strength of the EB-5 project. Therefore, the immigration lawyer can ethically advise that the success or failure of an investor’s EB-5 application may have nothing to do with how connected it is to the president.

Still, Flaubert said, “There is no truth. There is only perception.” If an investor hears that someone who invested in an EB-5 project connected to the Trump name got approved before she did in another EB-5 project, there will always be this lingering doubt in the mind of that investor. While Trump and his family members may yet be unaffected by their conflicts of interest, immigration attorneys have been left scratching their heads when representing EB-5 investors whether to ask clients to consider EB-5 projects close to Trump. Of course, while we are all witnessing a breathtaking compromise of ethics at the presidential level, it still behooves a lawyer to comply with the ethical rules when representing EB-5 investor clients. It is quite often the case that a foreign migration agent in China, such as Qiaowai, will hire the immigration lawyer to prepare and file EB-5 applications on behalf of its clients. Foreign migration agents play a crucial role in assisting the investor in assembling the documentation to demonstrate lawful source of funds, assisting in communications and translations and monitoring the statuses of all processes and filings of the investor. Still, as New York State Bar Ethics Opinion 1116 recently stated, it is imperative that the lawyer maintain her independence from the migration agent and that the lawyer’s judgment not be compromised. Therefore, if the migration agent has steered the investor into an EB-5 project with a close connection to Trump, it is incumbent on the lawyer to still maintain professional independence and to ensure that the lawyer’s judgment has not been compromised. The lawyer may wish to advise the client that the foreign migration agencies’ claims may be mere puffery.  If the lawyer accepts referrals from a foreign migration agent knowing that the investment selected by the agent will not be in the client’s best interest, the lawyer may be conflicted and must get informed consent from the EB-5 client under Rule 1.7(b). The client must acknowledge that the lawyer has a relationship with a foreign migration agent who may be steering the client to a project that may ultimately not be in the client’s best interest. Under no circumstances may a lawyer pay a referral fee to the foreign migration agent. If the foreign migration agent insists that the referral fee is for payment for expenses for services it provides, those services and expenses have to be identified and disclosed to the EB-5 investor client and should not cost more than services that could be found elsewhere.

Trump can remain in office for four years, and if he wins reelection, for a maximum of eight years, unless he is impeached before that! While Trump and his family members may disregard conflicts of interest and the truth, a lawyer cannot and should not follow suit. The lawyer must stay within the ethical rules – which includes not lying, not being compromised by conflicts and being competent – in order to outlast Trump by many decades.

Michelle S. Velasco

Hazards of Various Forms of Leave At the Point of Termination of H-1B Employment

/0 Comments/in /by

In most cases, termination of H-1B employment by either the at-will employer or employee is fairly straightforward. Once termination takes place, the employer in most cases is required to offer to pay the reasonable costs of the H-1B worker’s return transportation abroad, and the employer also should inform USCIS of the termination in order to withdraw the H-1B. For further details about the employer’s obligations at the point of termination, see Employer Not Always Obligation To Pay Return Transportation Costs Of An H-1B Worker.  Since USCIS published its Final Rule “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” in January 2017, workers in H-1B status can now benefit from a 60-day grace period during which they may try to get employment at another company or prepare to leave for their home countries. See 8 CFR 214.1(2).

And then there are the unique situations that require a more nuanced look at the rules and laws around various forms of leave. What happens when there is a contract for a garden leave, non-compete, or long-term notice period?  How do various forms of employment contracts affect this?  How does the recent USCIS announcement of increased fraud investigations affect how employers and workers alike prepare for potential site visits?  These are questions that H-1B employers and employees alike should explore.

USCIS has long recognized leaves of absences for H-1B employees to be valid, and these employees would still maintain status even during a lengthy leave of absence. Legacy INS policy is that an alien employed by the H-1B employer may take an extended leave and still be considered to maintain status ( See Letter of Efren Hernandez II, Director, then Business and Trade Services Branch of the Office of Adjudications, to Wendi S. Lazar, Esq. (March 27, 2001), reprinted, 78 INTERREL 616, Appx. II (Apr. 2, 2001)).  So long as the employer-employee relationship exists, the employee will maintain in status, and “the employer-employee relationship continues to exist when there is an identifiable tie between the employer and the alien.”  Thus, paid or unpaid leaves of absence, such as maternity or paternity leave, or for health or other personal reasons, would be recognized and the H-1B worker can maintain status throughout the leave so long as the employer-employee relationship continues.

As a policy memo or advisory letter does not have the same effect as a statute or regulation, USCIS could still decide that even an employee who is fully compensated while in non-productive status has failed to maintain lawful nonimmigrant status. In fact, in a 1999 advisory opinion concerning reductions in force, USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status” (See Letter of Thomas W. Simmons, Brach Chief, Business and Trade Branch to Harry J. Joe, HQ 70/6.2.8, HQ 70/6.2.12, reprinted in 76 NO. 9 Interpreter Releases 378 (March 8, 1999)). However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.

Non-compete clauses or restrictive covenants are common in highly competitive industries where intellectual property is extremely valuable. They are sometimes also called garden leaves when the employee, usually highly compensated, is paid throughout the non-compete period.  Non-compete agreements restrict employees from directly or indirectly engaging in employment with any competitor during a certain agreed-upon time period. Although non-compete arrangements are frowned upon when they apply to lesser compensated employees who are not paid during the restricted period, thus preventing them from taking new jobs, these garden leave arrangements are distinguishable as they apply to highly compensated employees who are fully paid during the restricted period and who possess valuable knowledge of the company.  They are often enforced after termination of employment, meaning they can adversely affect nonimmigrant workers who cannot start employment at a competing firm for upwards of 12 months in some cases.  Although an H-1B employee subject to a 12-month non-compete might be able to stay in the U.S. during the 60-day grace period, after that time, he would no longer have status in the U.S. because H-1B employment has been terminated and he could not violate the non-compete agreement by starting work at a competing firm.  That H-1B employee would have to leave the U.S., upend his life, and move himself and perhaps family members abroad to wait out the non-compete period.  This can cause tremendous chaos and uncertainty.  And it matters not whether the employee is being paid by the employer during the non-compete period: if it is taking place after termination of the H-1B employment, the employee has no choice but to leave the U.S. or else risk being in violation of status and even accrue unlawful presence once the 60-day period lapses.  Ideally, non-competes enforced after termination of employment should last 60 days so that the grace period can cover it.  If at all possible, H-1B employees should negotiate down the non-compete periods if they wish to avoid having to leave the U.S. for an extended amount of time to wait out the non-compete.

In some cases, the non-compete period takes place before formal termination of employment. In essence, the H-1B worker is in the U.S. not permitted to work for her employer, yet also not permitted to seek employment at a competing firm.  Usually the employee is also paid the H-1B wage throughout this period.  In such a situation, even if the leave is in connection with an eventual termination of employment, it is nonetheless arguably permissible so long as the H-1B worker is treated as an employee and receives the regular paychecks.  In the event the worker is terminated before the H-1B petition expires, the 60-day grace period begins and the worker maintains H-1B status in that time. The employer at that point should effectuate a bona fide termination by offering the return transportation, if applicable, and sending notification to the USCIS regarding the termination.

Further, this unique situation begs the question: must the employer pay the H-1B worker throughout this pre-termination non-compete period? The answer is “yes’, according to this author. The DOL “no benching rule” requires employers to pay the H-1B worker who is not working due to a nonproductive status brought about at the direction of the employer (benching because of lack of work or a lack of permit/license).  See 20 C.F.R. §655.731(c)(7)(i); INA §212(n)(2)(B)(vii).  But if the nonproductive period is due to conditions unrelated to employment at the employee’s voluntary request and convenience, such as to take care of a sick relative, or maternity leave, employers do not have to pay a salary.  Id.  Non-competes may not necessarily fit neatly into either category since this was not a period requested voluntarily by the employee and it is also not similar to a stop in the employment for lack of work.  However, since the employer considers the H-1B worker to still be employed and is the party imposing the non-compete, the employer should be paying the salary in order to avoid being held liable for back wages during the non-compete period.  Is it also problematic that someone is being paid an H-1B salary for effectively not working for many months?  It seems counterintuitive to allow this to occur because much of the H-1B’s regulations are meant to ensure that foreign workers do not displace or hurt the wages or working conditions of U.S. workers.  However, under the LCA regulations, there is no violation so long as the H-1B worker continues to be paid the required H-1B wage as listed on the LCA, whether or not the individual is performing the tasks of the position.

Recently the USCIS announced that it would increase site visits to find H-1B visa fraud and abuse. The approach involves targeting H-1B dependent employers and instances where employers have placed their H-1B workers at customer or client worksites.  Increased site visits will likely mean that sometimes they will involve the H-1Bs of workers who might be spending time in a non-compete or garden leave period.  During such a site visit, the employer must be prepared to answer questions about all of its nonimmigrant employees, including those who may be away from the office due to an enforced non-compete.  If possible, the employer should present copies of the non-compete agreement in writing, whether it was a clause in the employment agreement or a separately negotiated contract.  The employer should also monitor the date the non-compete period started, and also have ready access (if possible) to pay statements in order to demonstrate that the H-1B worker is still paid the required LCA wage and remains employed.

Lastly, it should be noted that the H-1B worker who is subject to a non-compete should be very careful about travel. Even with a valid visa and ongoing salary payments, it would be difficult for an H-1B worker to explain upon reentering the U.S. that he or she is not going to be performing work, even if employed at the H-1B employer.  On the other hand, if the still employed H-1B worker can justify that he or she is maintaining H-1B status even under the non-compete, then the H-1B worker has a good argument to being admitted into the United States in H-1B status.  While the law relating to H-1B status at the point of termination is grey, this blog points out situations that allow nonimmigrant workers to compete with US workers for highly compensated jobs, and thus participate in its rewards and risks, including being able to maintain status during paid garden leave. The same logic can apply to highly compensated nonimmigrant workers in other statuses such as L-1, TN, O-1, E-3 or H-1B1.

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

Cyrus Mehta

Cross Currents In Federal Preemption of State and Local Immigration Law Under Trump

/0 Comments/in /by

Preemption of federal immigration law over punitive state immigration laws was a hot topic until very recently, especially when Arizona enacted a tough enforcement law known as SB1070. The Obama administration fiercely challenged the law under the preemption doctrine, which ended up in the Supreme Court in Arizona v. USA. Although the majority opinion found most of the provisions of SB1070 preempted, the Supreme Court nevertheless upheld Section 2B, popularly referred to as the “show me your papers law.” The Court’s logic of upholding Section 2B was that it did not create a new state immigration law, but merely allowed state enforcement personnel to obtain a federal determination as to whether a person they had lawfully apprehended was lawfully present in the United States. Many other states introduced copycat “show me your papers laws.”

Texas just passed a law SB 4 that includes not only “show me your papers” provisions, but also imposes sanctions on sheriffs, local police and even campus police departments if they do not share information with federal immigration authorities, do not honor a detainer or prevent a state enforcement officer from seeking a determination of immigration status of a person under a lawful detention or arrest. The sanctions include civil penalties and criminal penalties, as well as removal of persons holding elective or appointed positions who violate the law.

Will the Trump administration challenge similar state encroachments on federal immigration law like President Obama did? Or do we need to be writing the obituary of the preemption doctrine when it relates to federal immigration law? Even if the Texas law goes unchallenged by the federal government which it likely will, will private plaintiffs be able to challenge the law under the preemption doctrine? Preemption stems from the Supremacy Clause of the United States Constitution (Article VI, Clause 2), which establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. While there are notable exceptions when a state immigration law is not preempted, a state law that conflicts with federal immigration law stands a good chance of being preempted under the Supremacy Clause.

A good test of how preemption will play out in the future is Arizona’s appeal of the Ninth Circuit decision in Arizona Dream Act Coalition v. Brewer. The Ninth Circuit held that Arizona was precluded from discriminating against an employment authorization document (EAD) issued to a recipient under President Obama’s Deferred Action for Childhood Arrival (DACA) program as valid proof of eligibility for an Arizona driver’s license. Under DACA, young people who came to the United States before the age of 16 and fell out status could apply for deferred action and an EAD.

On August 15, 2012, when DACA took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an EAD issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus toward DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Coalition found that these arbitrary classifications defining authorized status were preempted under federal law and put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Since the Ninth Circuit’s ruling in Arizona Dream Act Coalition, there has been a dramatic shift in the way unauthorized immigrants are viewed since Trump’s presidency. As part of his election campaign against unauthorized immigrants, Trump railed against DACA as a vivid example of President Obama’s unconstitutional usurpation of powers from Congress. But after his inauguration, Trump did a volte face stating that he would not immediately rescind DACA and would deal with these kids “with heart.” DACA’s fate tenuously hangs in balance, and completely subject to the whims of a tempestuous president. Still, unauthorized immigrants who crossed the border are conflated with criminals, and any crimes that may have been perpetrated by such a noncitizen is viewed as preventable if the individual was either deported before the crime occurred or was not let in at all. The Trump administration issued an Executive Order that beefs up enforcement, essentially reverses carefully calibrated enforcement priorities of the Obama administration and threatens to sanction sanctuary jurisdictions by cutting off federal funds.

Arizona, perhaps emboldened after Trump’s presidency, recently challenged the Ninth Circuit ruling in the Supreme Court. In its March 29, 2017 petition for a writ of certiorari, Arizona contended that the Ninth Circuit erred by assuming that President Obama’s DACA program that granted deferred action to young adults brought to the U.S. illegally as minors was a valid “federal law” that can trump state police power. The granting of licenses is a state concern and cannot be preempted by an unlawful exercise by Obama, Arizona further argued.  Fourteen states have joined Arizona’s bid to overturn the Ninth Circuit ruling by filing an amicus brief. Texas Attorney General Ken Paxton affirmed when unveiling the amicus brief, “We stand with Arizona against illegal federal overreach by the former president, who bypassed Congress to enact an immigration program he did not have the authority to create.” It is unlikely that the Trump administration will come in the way of these states in their challenge.

Still, despite the Trump’s administration’s reluctance to defend preemption and DACA, the rule of law ought to trump presidential caprice. Although Texas v. USA challenging President Obama’s Deferred Action for Parental Accountability (DAPA) ended up as a 4-4 draw in an 8-member Supreme Court after Justice Scalia’s death, there are other robust decisions that uphold preemption by virtue of the fact that the federal government has the ability to exercise discretion regarding immigration enforcement.  In Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), the conservative Fifth Circuit struck down a Farmers Branch, TX, ordinance on preemption grounds because it conflicted with federal law regarding the ability of aliens not lawfully present in the United States to remain in the US. The Fifth Circuit also noted that the federal government’s ability to exercise discretion relating to removal of non-citizens is a key reason for a state or local regulation of immigration being preempted under the Supremacy Clause of the US Constitution:

Whereas the Supreme Court has made clear that there are “significant complexities involved in [making] . . . the determination whether a   person is removable,” and the decision is “entrusted to the discretion of the Federal Government,” Arizona, 132 S. Ct. at 2506; see also Plyler, 457 U.S. at 236 (Blackmun, J., concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”), the Ordinance allows state courts to assess the legality of a non-citizen’s presence absent a “preclusive” federal determination, opening the door to conflicting state and federal rulings on the question.

However, the lower Fifth Circuit decision in Texas v. USA upholding the preliminary injunction still provides ammunition to those who wish to bolster state immigration laws. The states’ amicus brief in support of Arizona’s challenge in Arizona Dream Coalition draws heavily from the Fifth Circuit decision in asserting that DACA, like DAPA which conferred deferred action on undocumented parents of citizen or resident children, was viewed as unlawful. The states amicus argues that President Obama created a category that gave lawful presence to aliens who were otherwise not authorized to remain in the United States. Like DAPA, which was successfully challenged, DACA, according to the amicus brief, also cannot bestow lawful presence by the Executive, and thus DACA cannot preempt Arizona state law in not recognizing an EAD of a DACA recipient. If the Supreme Court decides to hear Arizona Dream Coalition, it will be pitted against Arizona v. United States.

Till then, notwithstanding the Trump administration disavowing prosecutorial discretion to broad classes of people, the federal government’s discretionary authority as a basis for preemption still stands, as poignantly articulated by the Supreme Court in Arizona v. United States:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their   families,  for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Given strong precedents in favor of preemption, there is hope that state immigration enforcement laws can still be successfully challenged. On the other hand, it is not clear whether the broad discretion in federal immigration enforcement as recognized in Arizona v. USA be applicable to a federal program like DAPA or even DACA, and if DAPA or DACA is viewed as overstepping executive authority, whether they could be used as a basis for preempting a state law that does not accord recognition to recipients of such programs for state benefits such as driver’s licenses. Now that Justice Gorsuch is the ninth nominee, it remains to be seen whether the Supreme Court’s majority will uphold the reasoning of the Fifth Circuit in Texas v. USA or continue to uphold the federal government’s broad discretion, as recognized in Arizona v. USA. Clearly, the current Trump administration would have no interest in again pursuing Texas v. USA on its merits even though it has not rescinded President Obama’s DAPA memorandum of November 20, 2014. The current decision in Texas v. USA is a preliminary injunction and not a decision on the merits.

There is yet another emerging trend that is worthy of observation. In the Trump era, immigration friendly states and localities, known as sanctuary jurisdictions, have decided not to cooperate with federal immigration authorities with respect to routinely sharing information of foreign nationals who may be arrested in the state penal system or honoring a federal immigration detainer. In San Francisco v. Trump, San Francisco and Santa Clara Country successfully challenged  Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which, in addition to outlining a number of immigration enforcement policies, purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law” and to establish a procedure whereby “sanctuary jurisdictions” shall be ineligible to receive federal grants.” In the preliminary injunction order, the court in San Francisco v. Trump, among other things, held (citing Printz v. United States, 521 U.S. 898 (1997)) that the federal government cannot compel the states to enact or administer a federal regulatory program under the Tenth Amendment. The new Texas law SB 4 was enacted by the state, and so it will be difficult to argue under Printz v. US that the federal government cannot compel a state to do its bidding. It is uncertain whether the show me your papers part of SB 4 can be preempted in light of Arizona v. USA upholding s similar show me your papers provision, Section 2B of SB 1070. A challenge will have to be brought by a private plaintiff that the Texas SB 4 law is preempted as it forces state entities to get into the business federal immigration enforcement, which is a purely federal matter. It also makes the state’s compliance with a detainer mandatory, when federal courts have held that such compliance is not mandatory. See e.g. Galazara v. Szalezyj. At the same time, because Section 2B was upheld in Arizona v. USA, it may be difficult to challenge the similar show me your paper provision in SB 4. Still, a way to challenge this is to demonstrate that it penalizes an entity for preventing an officer from making such a determination, and so challenging the penalty rather than the ability of a local enforcement authority to make the determination of the immigration status may be a way to thread the needle. Moreover, Arizona’s 2B was upheld as a preliminary injunction before the law took effect. If there are instances of egregious violations, 2B and other similar provisions can be challenged again.

There is some irony that those who disfavor Arizona style immigration enforcement laws, including yours truly, cheered when the federal district court ruled in favor of San Francisco and Santa Clara County. Upon careful reflection, this is not a case of double standards. From a policy perspective, state immigration enforcement laws ought to be preempted as they can lead to discrimination and uneven enforcement when untrained state police mistakenly detain people, including potentially US citizens, who may be here lawfully. Even state laws that “indirectly” enforce immigration law through landlord-tenant ordinances or by penalizing employers who hire unauthorized immigrants, state enforcers are more likely to make errors in determining who is authorized to remain in the United States and who is not. In Chamber of Commerce v. Whiting, the Supreme Court upheld Arizona’s employment sanction law as it fell under a savings clause of a federal statutory provision, 8 U.S.C. § 1324a(h)(2), that otherwise preempted state law. Even in Whiting, Chief Justice Roberts assumed that there would be no errors in verifying the status of employees as the state would check with a federal database pursuant to 8 USC 1373(c). If the federal determination revealed the person was a US citizen, that would make it obvious that the person was authorized to work. Conversely, if the federal determination revealed that the person has been removed, the Chief Justice erroneously assumed that this would reveal that the person is not authorized to work. However, even those with removal orders can obtain work authorization in many instances, a prime example being one who is under an order of supervision pursuant to 8 CFR 274a.12(c)(18).  David Isaacson astutely points out, “The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable.” On the other hand, the federal government should not be compelling states to share information as it would undermine trust in local the local policy who may need to work with local communities, including undocumented immigrants, in preventing crime. Even if there are a few cases of undocumented immigrants who have perpetrated crimes, using the immigration system as a pretext for preventing crimes is not the solution. Crimes are committed in every community, and even by Americans.  Immigrants do not have a propensity to commit more crimes. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans. There is a role for immigration enforcement under the INA by the federal government and states should not be in the same business.

There is a lot of turbulence in preemption doctrine, with some states passing immigrant unfriendly laws and others passing immigrant friendly laws. The prior Obama administration directed its ire at immigrant unfriendly states while the Trump administration is directing its ire at immigrant friendly states. Now is certainly not the time to close the book on the tumultuous story of preemption as a new chapter is being written.

David Isaacson

You Ask a Silly Question, and You Get a Silly Answer: Speeding, Terrorist Babies, and Why DHS Should Consider Revising or Eliminating Certain Form Questions

/0 Comments/in /by

During the recent Supreme Court oral argument in Maslenjak v. United States, Chief Justice John Roberts pointed out that the government’s interpretation of the statute at issue there implies that a naturalization applicant who has driven 60 miles per hour in a 55-mile-per-hour zone, and does not reveal this on the application form, could be subject to prosecution and denaturalization years later. The government argued in Maslenjak that even an immaterial misstatement on a naturalization application, if proven to have been intentional, is a basis for criminal conviction under 18 U.S.C. § 1425, which automatically results in revocation of naturalization under INA § 340(e). As Chief Justice Roberts pointed out, Question 22 on the Form N-400, Application for Naturalization, asks whether the applicant has “EVER committed, assisted in committing, or attempted to commit a crime or offense for which you were NOT arrested?”  This is, as even the government admitted at oral argument, an extremely broad question.  (A wonderful amicus brief filed by Professor Nancy Morawetz and Mitchell Kane of Washington Square Legal Services, on behalf of the Immigrant Defense Project and several immigrant-rights organizations, highlighted the existence of this and several other questions that are extremely expansive, unclear, or both.)

In what may at first seem to be unrelated news, Britain’s The Telegraph recently reported on an incident in which “[a] three month old baby was summoned to the US embassy in London after his grandfather accidentally ticked a box claiming the youngster was a terrorist.”  Harvey Kenyon-Cairns evidently had to go to a visa interview, and missed his scheduled flight, when his grandfather accidently selected the “yes” answer on the ESTA application for travel under the Visa Waiver Program to the question: “Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage, or genocide?”.  It is, of course, highly unlikely that a three-month old baby would have such a history or such intentions.  Nonetheless, this electronic selection apparently caused CBP to deny young Mr. Kenyon-Cairns authorization to travel under the Visa Waiver Program, meaning that he instead needed to apply for a visa at a U.S. consular post.

The briefs and oral argument in Maslenjak discuss many reasons why immaterial misrepresentations should not be considered a ground for criminal conviction or denaturalization.  For one thing, the statute speaks of procuring naturalization contrary to law, and as Justice Ginsburg asked in oral argument: “how can an immaterial statement procure naturalization?” Based on the oral argument, several commentators have suggested that the Supreme Court is likely to reject the government’s broad position.   Moreover, it does not seem likely that Harvey Kenyon-Cairns will be subject to any consequence of similar magnitude to denaturalization owing to his grandfather’s error, though he may face difficulty in seeking to use the Visa Waiver Program in the future.  Even if neither the government’s position in Maslenjak nor the Kenyon-Cairns incident prove to have lasting serious consequences, however, they do raise a different concern in this author’s mind: why are questions like these being asked in the first place?

It would be a rather unusual combination of evil intent and scrupulous honesty that would result in someone answering “yes” to a question like the one on the ESTA form that inquires whether they “seek to engage in . . . terrorist activities, espionage, or genocide?”  Perhaps the backward-looking portion of the ESTA question might gather more affirmative responses from honest and repentant former terrorists, although it still seems unlikely that this scenario arises often.  Even if the government does want to screen out that small population of honest former terrorists, spies, or mass murderers, however, the portion of the question referring to future intentions seems superfluous.  It might also be worth configuring the ESTA system so that it does not act on answers purporting to show terrorism by children under a certain age—a record which shows an infant as a terrorist is obviously the result of some kind of error.

It also seems unlikely that very many people answer Question 22 on the Form N-400 in the affirmative, and then disclose something which the government would actually find useful in adjudicating their citizenship application. To start with, most non-lawyers, unlike the learned Chief Justice of the United States, may not be in a position to determine whether they have committed a “crime or offense” for which they have not been arrested.  Of the people who do understand the question and are able to make such a determination, some very honest applicants might then disclose the sort of list of speeding incidents of which Chief Justice Roberts spoke in his hypothetical—incidents which should not bear on their naturalization in any event.  Only a rare combination of legal acumen, past bad behavior, and current honesty would result in an applicant disclosing, in response to Question 22, a past crime which could potentially preclude their naturalization.

Nor are these the only questions on DHS application forms to which useful affirmative answers are likely quite rare. For example, Question 7 of Part 3 of the Form I-485, Application to Register Permanent Residence or Adjust Status, asks whether the applicant, “during the period from March 23, 1933 to May 8, 1945, in association with either the Nazi government of Germany, or any organization or government associated with the Nazi government of Germany, ever order, incite, assist, or otherwise participate in the persecution of any person because of race, religion, national origin political opinion?” Nearly 72 years after the end of the period mentioned, the number of initial applicants for immigration benefits old enough to have culpably engaged in such activity is likely vanishingly small, although it is possible that some teenage persecutors now in their 80s, or people who were in their 20s during the 1940s and are now in their 90s, might apply for adjustment.  Question 5 of Part 3 of that same Form I-485 asks whether the applicant “intend[s] to engage in the United States in: a. Espionage?  b. Any activity a purpose of which is opposition to, or the control or overthrow of, the Government of the United States, by force, violence, or other unlawful means?  c. Any activity to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information?”  It seems unlikely that anyone with such malevolent intent would be so forthright as to admit it in the application.  There are many other examples as well.

It may be that DHS includes these questions not so much in the hope of eliciting an affirmative response, but in the hope of being able to charge those who answer “no” with fraud or misrepresentation in the event that the answer ought to have been “yes”. Given the sorts of circumstances in which this would come up, however, it does not seem worth the hassle and potential for error that the inclusion of such questions imposes on the rest of the applicant population (and, for that matter, on the adjudicating officers who must review the answers).  The underlying substantive points being asked about would generally, if proven, suffice to justify later adverse action; trying to get a terrorist, Nazi, or criminal on the record lying about their terrorism, Nazism or criminality is in some sense redundant.

Someone who committed acts of terrorism or Nazi persecution in the past, or does so in the future, is inadmissible and deportable on that basis alone, pursuant to INA §212(a)(3)(B), §212(a)(3)(E), §237(a)(4)(B) and §237(a)(4)(D). One who engages in attempts to overthrow the government by unlawful means, or espionage, sabotage or violation of export-control laws, as asked about on Question 5 of Part 3 of the I-485, would be deportable under INA §237(a)(4)(A) even if an immigration officer had not previously detected their intent and declared them inadmissible under INA §212(a)(3)(A). With respect to the infamous Question 22 at issue in Maslenjak, one who is naturalized despite having committed crimes which they did not reveal has either concealed a crime which would be material and grounds for denial of naturalization on the basis of lack of good moral character, in which case the broad request that they admit to it is beside the point, because their later conviction will show that they lacked good moral character; or has concealed only minor crimes or offenses which would not be a basis for denial of naturalization, in which case trying to denaturalize them for that concealment is problematic for the reasons explored at length in the Maslenjak oral argument.

DHS should reconsider whether what is gained by asking these sorts of questions outweighs what is lost in terms of time and opportunity for farcical error (as with young Mr. Kenyon-Cairns the infant terrorist). If the answer to a question on a form is a foregone conclusion in all but a vanishingly small percentage of cases involving improbable combinations of malfeasance and honesty, the question probably should not be on the form in the first place.

Cora-Ann Pestaina

7 Points To Remember Regarding Resume Review In The PERM Process

/0 Comments/in /by

The employer’s review of resumes received from applicants continues to be one of the trickiest issues in the PERM labor certification process. The process might seem straightforward enough because, after all, employers filing PERM applications are likely quite used to evaluating resumes from applicants. But such thinking is probably where the first wrong step is taken. I last blogged on this issue on December 2012 and my blog entitled, Resume Review in the PERM Process is still very relevant. However, I find that this issue continues to be a problematic one and worthy of a follow up.  Improper resume review continues to be one of the Department of Labor’s (DOL) most popular reasons for PERM denials.

By way of background, under the Immigration and Nationality Act, the DOL has a statutory responsibility to ensure that no foreign worker is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. INA §212(a)(5)(A)(i). The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith.  Under 20 C.F.R. §656.10(c), the employer must certify that U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons. While the DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process, operating under this belief will most likely lead to problems.  I have always found that it is infinitely more effective to counsel the employer not to consider PERM as resembling any type of real world recruitment process whatsoever.

Review of the Board of Alien Labor Certification Appeals (BALCA) is a good place to stay up to date on the DOL’s reasoning on any PERM issue. Based on recent BALCA decisions, here are 7 points regarding resume review that are worth discussing with the employer at the outset of the PERM process, even before the job duties and requirements are finalized and the advertisement is drafted.

1.   Be certain that use of the Kellogg language is warranted and reflective of the actual   minimum requirements for the offered position.

2.   An applicant cannot be rejected simply because their cover letter or resume clearly states that they are seeking a completely different position.

In Global Teachers Research and Resources, Inc. 2015-PER-00396 (March 30, 2017), the employer’s job requirements for the position of Elementary Teacher were a Bachelor’s degree in Elementary Education and 60 months of experience in the job offered.  In addition, the qualified applicant also had to demonstrate eligibility for a Georgia Teaching Certificate. In section H.14 of the ETA Form 9089, the employer had also listed, “Employer will Accept any Combination of Experience, Training or Education.” This is commonly referred to as the Kellogg language based on Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc).

After reviewing the employer’s response to an audit, the DOL denied the PERM application finding that the employer failed to properly consider one applicant who possessed a Master’s degree in Education/Special Education, 60 months of experience and a GA teaching license. The Certifying Officer (CO) reasoned that since the employer had indicated “Employer will Accept any Combination of Experience, Training or Education” then the employer had to consider the applicant even if she did not have a degree in Elementary Education. Oftentimes, an employer will insert the Kellogg language on the ETA Form 9089 when it is totally unnecessary. It is important to remember that this is specific language that is only required on the ETA Form 9089 when the foreign national qualifies for the offered position only on the basis of the employer’s alternative requirements. In addition, Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) held that the failure to include this language was not fatal as there is no space on the form for such language. Some employers recall receiving PERM denials due to lack of this language prior to the decision in Federal Insurance and, not fully comprehending the issue, they feel better to just include it. It is therefore very important to discuss the meaning of the Kellogg language with the employer and whether the insertion of this language would reflect the employer’s true minimum requirements for the offered position.

The employer in Global Teachers Research and Resources filed a request for reconsideration and argued that the applicant had clearly indicated on her resume that she was seeking employment as Special Education Teacher and that this information prevented them from actually considering applicant for the offered position. However, BALCA held that since the Applicant had applied for the Elementary Teacher position and since it would be illogical for a person to apply for a position in which they were not interested, the employer was obligated to give the application due consideration. Citing a long list of precedent decisions which would make for required reading, BALCA held that an applicant is presumed to be interested in a job for which he or she applies.

3.    Be careful of rejection for lack of an unstated, “inherent” requirement.

4.    Even if an applicant may lawfully be rejected for various reasons, always list ALL   reasons for rejection in the recruitment report.

 In Matter of Los Angeles Unified School District, 2012-PER-03153 (Jan. 23, 2017) the employer recruited for the position of “Teacher, Special Education” for which it required a Bachelor’s degree in any field, a valid California Education Specialist teaching credential, and no training or experience.  After two audits, the PERM application was denied because the employer rejected an applicant finding that the applicant failed to meet the minimum requirements for the offered position because the applicant had a below satisfactory performance evaluation on her most recent student-teaching assignment.

The employer requested reconsideration and, listing several pre-PERM administrative law decisions, argued that some qualifications are simply inherent and need not be expressly stated in the job description. The employer argued that the ability to “teach special education classes competently” is one such inherent requirement that need not be expressly stated. The employer also pointed to a negative confidential reference from the applicant’s most recent teaching assignment.

BALCA dismissed all of the administrative law decisions as non-binding and stated that the PERM program demands strict compliance with the regulations which require that the job requirements described on the ETA Form 9089 represent the employer’s actual minimum requirements for the offered position. BALCA found it debatable whether one negative performance evaluation over the course of a career could demonstrate a lack of competency. But ultimately, since nothing in the employer’s stated minimum requirements indicated that an applicant cannot have a negative performance evaluation or a negative reference of any kind, BALCA found the rejection of the applicant to be unlawful. Basically, any qualification that can form the basis of a rejection ought to be listed in the advertisement. If it is not, then it cannot be used as the basis for a rejection.

However, this decision does not make sense as every inherent skill cannot be listed in the advertisement, the ability to speak English, being the prime example. There are a line of cases to support this proposition. See Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410 (5th Cir 1989), Matter of Ron Hartgrove, 1989 BALCA Lexis 6 (BALCA May 31, 1989), Matter of La Dye & Print Works, 1995 BALCA LEXIS 59 (BALCA April 13, 1995).

In its appellate brief the employer had also tried to insert a new argument that the applicant was also not qualified because she did not have the required teacher credential. The employer stated that it did not initially consider this but that is nevertheless a basis for rejection. BALCA dismissed this evidence finding that its review is restricted to timely submitted evidence that was part of the record when the CO made his decision. It is therefore very important that an employer conduct a complete review of each applicant’s qualifications and list each and every lawful reason for rejection of any applicant. In the instant case, despite the employer’s rejection for lack of what it considered to be an inherent requirement, if the employer had also lawfully rejected the applicant for lack of the teaching credential and demonstrated that the applicant indeed lacked the credential, the PERM might not have been denied.

5.     Never put the duty to follow up on the applicant.

Matter of Unisoft International, Inc. 2015-PER-00045 (Dec. 29, 2016) is a supervised recruitment case.  The offered position was that of Network Administrator. The employer’s PERM application was eventually denied for four reasons but only reason number 4 regards resume review. Essentially, the CO found that the employer did not conduct a good-faith recruitment effort because the employer sent out a form letter to each of 20 applicants. This letter stated, “After a preliminary review of your resume, we have determined that you do not have a few of the desired skills we are looking for including experience with MCP and SPO for OS2200.” Putting the onus of additional communication on the applicant, the letter then stated, “Please contact us immediately to schedule an interview if you do have these qualifications.” The CO found that the employer had failed to “intensively” recruit and had not sufficiently established that there were no US applicants who were able, willing, qualified and available to perform the work.

BALCA pointed to case law which held that an employer may lawfully reject an applicant when the resume is silent on whether he or she meets a major requirement such as a college degree. However, when the qualification is something a candidate may not indicate explicitly on his or her resume though he or she possesses it, the employer carries the obligation to inquire further whether the applicant meets the requirements.  BALCA found that the employer had rejected these 20 candidates because they did not list a subsidiary requirement on their resumes and the employer had an obligation to inquire further. The employer’s letter to these 20 applications did not fulfill this obligation because it placed the responsibility of following up and requesting an interview on the shoulders of the applicants.  Moreover, BALCA found that the employer failed to inquire whether there were any available training options for these candidates especially for two candidates who the CO identified as already possessing networking experience. BALCA found that the employer’s letters to the candidates were perfunctory and not made in good faith.

This case displays another strong example of how resume review in the PERM process does not resemble resume review in the real world. In the real world, an applicant is expected to demonstrate his or her actual interest in the offered position. In the real world, putting the onus of additional communication on the applicant could very well be a test of the applicant’s dedication and interest. No so under PERM. In the PERM process, the employer has to understand that it must bend over backwards to ensure that it has done everything in its power to fully determine whether an applicant is qualified for the offered position notwithstanding that applicant’s failure to respond to a telephone call (email and then send a certified letter); that applicant’s lack of awareness of who the employer is or of the offered position (the employer must now inform them again!);  or that applicant’s request to be contacted at a later time (the employer must comply!).

6.     Over qualification is never a lawful reason for rejection.  

7.     An applicant may be rejected based on their unwillingness to accept the salary only if the employer can show that the employer offered the position to the applicant at the listed salary and the applicant then refused to accept the position.

BALCA has long held that an employer may not reject a US worker applicant based on a belief that the applicant is over qualified for the position. This is still one rejection reason that almost all employers instinctively want to use. And again, this is where the PERM process breaks away from the real world. It is hard for most employers to comprehend why the DOL would require that they classify as qualified, an applicant who clearly would be taking a “step down” because their qualifications indicate that they are qualified for a higher level position. Employers feel that such applicant use lower level positions as a stepping stone. However, BALCA has always held that such applicants are qualified to perform the core job duties. See Bronx Medical and Dental Clinic, 1990-INA-00479 (Oct, 30, 1992) (en banc) and most recently, Kohn Pedersen Fox Associates PC, 212-PER-02772 (Nov. 25, 2016).

Also in Kohn Pederson Fox Associates, the employer, having advertised listing the offered salary, then rejected applicants who applied for the position requesting a higher salary. While the employer’s reasoning here makes real world sense, BALCA held that an employer may reject a qualified US applicant as unwilling to accept the position at the offered wages only if the position was actually offered to the applicant and the applicant refused to accept the position at the offered wages.  The employer must have documentation of the offer and refusal.

Overall, employers must always bear in mind that the DOL serves to protect the interests of the US worker. Accordingly, while the real world may be a dog eat dog world where one typo can cause an applicant’s resume to quickly hit the trash, in the PERM world, applicants must almost be cuddled. The employer must set aside all normal reasoning; all normal industry expectations; all expectations that a US worker applicant can understand basic things like a requirement for 2-3 years of experience means that 2 years would be acceptable. The employer must consider what is in the best interest of the US worker applicant and ensure that it has sufficiently described the offered position and all its requirements to fully apprise the US worker of all he or she needs to know in order to determine whether to apply for the position. Once that application has been received, the employer is obligated to examine every aspect of that applicant’s qualification; to reach out to that applicant using multiple forms of communication if the most convenient form fails; to verify that the applicant, though lacking in a certain requirement cannot be trained within a reasonable time; and to remember, above all else, that the employer is never supposed to seek the “best” candidate for the position, but rather, must consider a candidate qualified if he or she even barely meets the stated minimum requirements.

Cyrus Mehta

Filing Under The FY 2018 H-1B Cap; New Developments In H-1B Cap Exemption

/0 Comments/in /by

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year 2018 cap on April 3, 2017. All cap-subject H-1B petitions filed before April 3, 2017, for the FY 2018 cap will be rejected.

Congress set a cap of 65,000 H-1B visas per fiscal year. An advanced-degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher. The agency said it will monitor the number of petitions received and notify the public when the H-1B cap has been met.

If the USCIS receives more H-1B petitions than allocated under the two H-1B caps, then it will conduct a lottery of all H-1B petitions received in the first five days from April 3. Like last year, it is anticipated that many more H-1B petitions will be rejected rather than accepted. There will again be many disappointed applicants.

To compound the problem, USCIS also recently announced a temporary suspension of premium processing for all H-1B petitions starting April 3 for up to six months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker that requests the H-1B nonimmigrant classification. While premium processing is suspended, any I-907 filed with an H-1B petition will be rejected, USCIS said. If the petitioner submits one combined check for both the I-907 and I-129 H-1B fees, both forms will be rejected.

USCIS reminded H-1B petitioners to follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. The I-129 filing fee has increased to $460, and petitioners no longer have 14 days to correct a dishonored payment. If any fee payments are not honored by the bank or financial institution, USCIS will reject the entire H-1B petition without the option for the petitioner to correct it.

The USCIS announcement about the April 3 start date for FY 2018 H-1B petitions is at https://www.uscis.gov/news/news-releases/uscis-will-accept-h-1b-petitions-fiscal-year-2018-beginning-april-3. The announcement about the suspension of premium processing for H-1B petitions is at https://www.uscis.gov/news/alerts/uscis-will-temporarily-suspend-premium-processing-all-h-1b-petitions. Detailed information on how to complete and submit an FY 2018 H-1B petition is at https://www.uscis.gov/sites/default/files/files/form/m-735.pdf. For more information on the H-1B nonimmigrant visa program and current I-129 processing times, see https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season

H-1B Cap Exemption Options

Many H-1B employers are not subject to the H-1B cap and are considered cap exempt. They include institutions of higher education and non-profits affiliated or related to institutions of higher education. See 214(g)(5)(A) of the Immigration and Nationality Act (INA). Employment at a university that qualifies as an institution of higher education, as defined under section 101(a) of the Higher Education Act of 1965, clearly exempts an H-1B beneficiary from the H-1B cap. What was less clear was the definition of a nonprofit entity related or affiliated to an institution of higher education. The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers (High Skilled Worker Rule) , effective January 17, 2017, has broadened the definition of an affiliated or related nonprofit entity if it satisfies the following conditions:

  1. The nonprofit entity is connected to or associated with an institution of higher education through shared ownership or control by the same board or federation;
  2. The nonprofit entity is operated by an institution of higher education;
  3. The nonprofit entity is attached to an institution of higher education as a member, branch, cooperative, or subsidiary; or
  4. The nonprofit entity has entered into a formal written affiliation agreement with a institution of higher education that establishes an active working relationship between the nonprofit entity and the institution of higher education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.

See 8 CFR 214.2(h)(8)(ii)(F)(2).

The High Skilled Worker Rule added the fourth prong, 8 CFR 214.2(h)(8)(ii)(F)(2)(iv), which  recognizes that affiliation may be demonstrated when the nonprofit enters into an agreement with the institution of higher education that establishes an active working relationship, and that a fundamental activity of the nonprofit contributes to the research or mission of the institution of higher education. This broadening of the affiliated relationship opens up the possibility of more H-1B cap exempt petitions for those who have not been able to make it under the H-1B FY 2018 cap and can be employed by nonprofit affiliated entities. Prior to the addition of the fourth prong, it was difficult to show affiliation unless the nonprofit entity was part of the institution of higher education, as defined under 8 CFR 214.2(h)(8)(ii)(F)(2)(i)-(iii).  This is no longer the case if there is a formal written affiliation with an institution of higher education even if the nonprofit is not owned by it or part of it. For example, if the nonprofit enters into an agreement with a university to house student interns, and these interns focus on activities at the nonprofit that contribute to the mission of the university, it will be possible to demonstrate affiliation. Similarly, if the nonprofit enters into agreements that conduct research for the university, such an arrangement could also qualify for showing affiliation and thus H-1B cap exemption.

INA 214(g)(5)(B) also provides for cap-exemption if the H-1B is employed or receives an offer of employment at a nonprofit research organization or governmental research organization. The High Skilled Worker Rule defines a governmental research organization as “a federal, state or local entity whose primary mission is the performance or promotion of basic research and/or applied research.” See 8 CFR 214.2(h)(19)(iii)(C).

Under INA 214(g)(6), it is further permissible for an H-1B beneficiary to be employed by a cap-exempt employer such as a university and then be able to obtain an H-1B, without being counted under the annual H-1B cap, through an employer who would otherwise be subject to the cap. The High Skilled Worker Rule affirms such concurrent employment between a cap-exempt and cap-subject H1B employer, but adds that  there must be a demonstration that the “beneficiary’s employment with the cap-exempt employer is expected to continue after the new cap-subject petition is approved, and the beneficiary can reasonably and concurrently perform the work described in each employer’s respective positions.” See 8 CFR 214.2(h)(8)(ii)(F)(6). The rule further cautions that if the cap-exemption employment is terminated or ends before the end of the validity of the petition that was approved under concurrent employment, the H-1B worker becomes subject to the numerical limitations of the H-1B, and that the USCIS may revoke the cap-subject H-1B petition. See 8 CFR 214.2(h)(8)(ii)(F)(6)(ii). Prior to the high Skilled Worker Rule, it may have been possible to argue that the H-1B worker did not become immediately subject to the numerical limitations even if concurrent cap exempt employment terminated and that he or she would only become subject to the cap upon the filing of the next H-1B petition. This is no longer the case.

Pursuant to INA 214(g)(5), an H-1B worker who is sponsored through a cap subject entity is not counted under the H-1B cap lottery if he or she is employed “at” a cap-exempt institution of higher education or is employed “at” a non-profit affiliated to an institution of higher education. The High Skilled Worker Rule affirms what is commonly referred to the “at” doctrine as the H-1B worker is working at a cap-exempt employer although he or she is the beneficiary of an H-1B petition filed by a cap-subject employer. While a plain reading of INA 214(g)(5) merely requires demonstration of employment at a cap subject employer, the High Skilled Worker Rule imposed additional requirements that are  not supported by the statutory provision. It is now required to demonstrate that the “H-1B beneficiary will spend the majority of his or work time performing job duties at a qualifying institution, organization or entity and those job duties directly and predominately further the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity, namely, either higher education, nonprofit research or government research. The burden is on the H-1B petitioner to establish that there is a nexus between the duties to be performed by the H-1B beneficiary and the essential purpose, mission, objectives or functions of the qualifying institution, organization or entity.” See 8 CFR 214.2(h)(8)(ii)(F)(4). This works best where the petitioner is closely tied to a cap exempt entity, such as a startup using the research laboratory of a university who have both received joint funding, and where the H-1B beneficiary performs research at the laboratory even though sponsored for the H-1B through the startup.

Any H-1B beneficiary who has previously been counted, within the 6 years prior to the approval of a petition shall not be counted towards that limitation again, unless the individual would be eligible for a full 6 years by spending one year outside the United States. See INA 214(g)(7). This is the case even if the beneficiary never entered the United States under the previously approved H-1B petition, unless the employer notified the USCIS and the petition got revoked. The High Skilled Worker Rule adopts a 2006 USCIS Memo that gave the beneficiary a choice of either recapturing the remaining time left on the H-1B or seeking a new period of six years if the beneficiary was outside the United States for more than one year. 8 CFR 214.2(h)(13)(iii)(C)(2) like the 2016 USCIS Memo now allows recapture of remaining time left in H-1B even if the previous H-1B petition was approved more than 6 years ago, and gives the beneficiary who has been physically outside the United States for more than 1 year a choice of either recapturing the remainder of H-1B time or seeking a new period of six years.

Although H-1B cap exemption possibilities clearly exist, and have somewhat broadened under the High Skilled Worker Rule, not everyone will qualify for cap-exemption unless they are specifically offered employment through cap exempt employers or work at cap exempt entities. Most people will not get selected under H-1B lottery. For FY 2017, the USCIS received over 236,000 H-1B petitions, all vying for one of the 85,000 visas available. This means that some 151,000 or more people – highly qualified individuals with dreams and career aspirations – will likely be denied the ability to work in the US. This is not for lack of skill, this is not for lack of good moral character, but for an arbitrary cap system that limits upward mobility and stifles US economic growth and innovation in many fields

Cyrus Mehta

Employer Not Always Obligated To Pay Return Transportation Cost Of Terminated H-1B Worker

/0 Comments/in /by

In Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) the Administrative Review Board held that an employer’s failure to pay return transportation costs home of a terminated H-1B employee was not fatal when the worker did not return to her home country on her own volition.

When filing a Labor Condition Application (LCA) – a necessary first step in the filing of an H-1B visa petition – the employer attests that it will pay the required wage to the H-1B nonimmigrant worker. See INA 212(n)(1)(A); 20 CFR 655.731(a). The required wage must be paid until there is a bona fide termination of the employment relationship. In order to demonstrate such a bona fide termination of the employment relationship, the ARB held in Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006). that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii). First, the employer must expressly terminate the employment relationship with the H-1B worker. Second, the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11). Third, the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). If the employer otherwise explicitly terminates the employment relationship, but fails to follow the second and third steps, the employer may still be obligated to pay the required wage for failure to effectuate a bona fide termination. Although in the real world the employer must only undertake step one, in the case of an H-1B worker, the employer must also take steps two and three that have been mandated by the Department of Labor (DOL).

It is the third prong that has been the subject of much interpretation.  Must an employer still offer to pay the return transportation costs even if the worker chooses to remain in the US on his or her own volition? In Vinayagam v. Cronous Solutions, the terminated H-1B worker did not leave the United States on her own volition and unsuccessfully applied for H-1B status through another employer. Prior to this unsuccessful attempt, the worker sought to apply for B-2 visa status, which was also denied. The employer under this scenario was not required to pay the return transportation costs home, and thus was not liable to continue to pay the required wage after the employer fulfilled steps one and two. This decision follows a line of other ARB decisions where the employer was not obligated to pay the return transportation costs where the H-1B worker had married a US citizen and adjusted her status to permanent residence or where the worker found an employer to file another H-1B petition and thus extend H-1B status through that employer or where the H-1B worker outright rejected the reimbursement. If the H-1B worker voluntarily terminates employment prior to the expiration of the authorized H-1B stay or is dismissed when the authorized stay has ended, the employer is not liable for return transportation costs. See Toia v. Gardner Family Care Corp., 2007-LCA-6 (April 25, 2008).

It is intriguing that the Department of Labor has latched on to USCIS rules for requiring a bona fide termination of employment. The employer’s obligation to pay the wage is an obligation under DOL rules, but in determining the employer’s ending of that obligation, the DOL has relied on the rules of United States Citizenship and Immigration Services (USCIS), which includes notification to the USCIS that results in the revocation of the H-1B petition (8 CFR 214.2(h)(11) and payment of the return transportation home obligation (8 CFR 214.2(h)(4)(iii)(E). Naomi Schorr has astutely observed that when one agency engages in interpreting and enforcing the rules of another agency, courts will not defer to that agency’s interpretation. See Schorr, It Makes You Want To Scream: Overstepping Bounds: The Department of Labor and the Bona Fide Termination of H-1B Employees, Bender’s Immigration Bulletin, Oct. 15, 2014. Indeed, in a 1999 exchange of correspondence between a private attorney and the INS, the response was that the “Service views the return transportation provision as a private contractual issue between the petitioner and the beneficiary. As a result, the Service has not developed any policies with respect to the questions that you have raised.” See Letter from Thomas W. Simmons, Chief, INS Business and Trade Services Branch to Robert A. Klipstein (May 20, 1999), reprinted in 70 Interpreter Releases 1140 (July 26, 1999).

While the USCIS does not give this rule any teeth, the DOL has chosen to enforce it against an employer if the employer cannot demonstrate that the H-1B worker chose to stay in the US on his or her own volition. In fact, notwithstanding Vinayagam v. Cronous Solutions, unless it is clearly indicated that the worker chooses to remain in the US, it would be prudent for the employer to give the benefit of doubt to the H-1B worker and offer the return transportation costs home. These cases have shown that the employer must always go through protracted litigation to establish that the H-1B worker voluntarily stayed on in the US in order to escape back wage liability. Moreover, the burden is on the employer to demonstrate whether it had a duty to provide the return transportation costs and whether it had satisfied that requirement. See Gupta v. Jain Software Consulting, Inc., ARB No. 05-008, ALJ No. 2004-LCA-039 (ARB Mar. 30, 2007).

The High Skilled Worker Rule that took effect on January 18, 2017 provides for a 60 day grace period to H-1B as well as other nonimmigrant workers holding E-1, E-2, E-3, H-1B1, L-1 or TN status. See 8 CFR 214.1(2). The 60 day grace period is indeed a salutary feature. Up until the rule took effect, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

The new 60 day grace period may incentivize the H-1B worker to remain in the US, and thus enable an employer to escape paying the return transportation costs. On other hand, it should not be viewed as a green light to never offer the return transportation costs home. While the 60 day grace period does allow a terminated worker some cushion in finding another employer in the US, it also provides a cushion for the worker to leave the United States less abruptly if terminated prior . In the latter situation, the employer’s failure to offer return transportation costs home could still render the employer liable for back wages as a result of not effectuating a bona fide termination.

Cora-Ann Pestaina

Is There A Hidden Agenda? Suspension of Premium Processing for All H-1B Petitions

/0 Comments/in /by

In one move that we did not see coming, USCIS has announced that, starting April 3, 2017, it will temporarily suspend premium processing service for all H-1B petitions. Petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. This includes cap-subject H-1B petitions, petitions for H-1B extensions or amendments and petitions for change of H-1B employer. This suspension may last up to 6 months and USCIS will notify the public before resuming premium processing for H-1B petitions. The temporary suspension will not apply to other eligible nonimmigrant classifications filed on Form I-129.

As background, premium processing service provides expedited processing for a specific list of employment-based immigrant and nonimmigrant petitions. This list has always included the H-1B petition. The request is submitted on Form I-907 which carries a fee of $1,225. Upon receipt of this request, USCIS guarantees 15 calendar day processing or USCIS will refund the fee. Within the initial 15 days, USCIS will issue an approval or denial notice, a notice of intent to deny (NOID) or a request for evidence (RFE). If a NOID or RFE is issued, a new 15 calendar day period will begin upon USCIS’ receipt of a complete response. Premium processing service is also quite desirable because it allows petitioners and attorneys to communicate directly with USCIS officers via telephone or email. USCIS also issues an email notification when the case has been received and when it is approved.  Also, rather than having to wait for snail mail to arrive, petitioners receive RFE’s and denial notifications via fax.

Each year, thousands of petitioners request premium processing service for their H-1B petitions filed under the H-1B cap. The initial email notification and the 15 day adjudication period can go a long way toward providing peace of mind for anxious H-1B petitioners and beneficiaries. For petitions filed under regular processing, USCIS receipt notices are sometimes not received until May or even June and the petition can remain pending for months, even past the October 1 employment start date. Cap-subject H-1B petitions are accepted during the first five business days of April. This year, since April 1 falls on a Saturday, cap-subject H-1B petitions for the 2018 fiscal year (FY18) will be accepted from Monday, April 3 to Friday, April 7, 2017. The suspension will therefore apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). USCIS will reject any Form I-907 filed with an H-1B petition. Therefore, if the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will reject both forms.

USCIS has stated that the suspension will help the agency to reduce its overall H-1B processing time and allow it to process long-pending petitions which it has been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years. USCIS also claims that the suspension will allow the agency to prioritize the adjudication of H-1B extension of status cases that are nearing the 240 day mark. Under 8 CFR § 274a.12(b)(20), an H-1B worker is authorized to continue working for the same employer for up to 240 days beyond the expiration of the current immigration status (i.e. beyond the date listed on their most recent Form I-94) if the employer files an H-1B extension request in a “timely” manner.  In recent times, the processing times for H-1B petitions have come close to or even moved beyond 240 days. This is probably attributable to increased filings as a result of the decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) which mandates the filing of H-1B petitions for amendment whenever there is a change in the H-1B work location. Once the 240 day period has passed, the employee may remain in the US awaiting the adjudication of the petition but will no longer be authorized to work. If the H-1B worker works past the 240 days, not only will he or she be in violation of status, but will lose the tolling exception to unlawful presence too. According to USCIS guidance, unlawful presence is tolled when a timely extension request is filed, but that tolling will be lost if the foreign national engages in unauthorized employment either before or after the timely extension has been filed. Thus, working beyond 240 days will result in the loss of the tolling protection to unlawful presence.

We hope that we can trust in USCIS’ stated intent and that there is nothing more sinister behind the suspension. It is no secret that some people in charge of immigration policy in the Trump administration do not like the H-1B visa as it is perceived, albeit erroneously, to be taking away jobs that should go to American workers. There are ongoing efforts within Congress to change how the H-1B system works. One bipartisan bill, H-1B and L-1 Visa Reform Act of 2017, proposes to reform the program by instructing officials to grant visas on merit, rather than through a lottery. Is the stoppage of premium processing for 6 months really just a way to slow down the H-1B program and thus make it more difficult for employers to retain skilled H-1B workers? Is this in keeping with Bannon’s goal for the endless deconstruction of the administrative state? Granted, this is not the first time that premium processing service has been suspended. Last year, USCIS announced that in order to prioritize data entry for cap-subject H-1B petitions, while they would still accept Forms I-907, they would actually begin any requested premium processing for H-1B cap-subject petitions by May 16, 2016. That suspension applied only to cab-subject H-1B petitions and was implemented for a very short-term with a firm end-date indicated. It was therefore not only understandable but moreover, believable, as a means to cope with an expected influx of petitions. This time, the timeline could be indefinite, as USCIS vaguely states that the suspension may last up to 6 months, and USCIS has applied the suspension across the board on all H-1B petitions, a move that will most likely lead to an increase in the very backlogs that they are allegedly seeking to eliminate.

The suspension of premium processing service could also result in very serious complications for H-1B employees. The inability to upgrade the petition to premium processing will mean that H-1B employees might be unable to travel outside the US. An H-1B worker with a pending petition whose immigration status has expired will need to apply for and obtain a new H-1B visa at a US Consulate abroad if he travels outside the US. Such an employee would be ill-advised to embark on an international trip when there is no indication as to when the pending H-1B will be adjudicated. Also, some states require an H-1B approval notice in order to extend driver’s licenses. If the H-1B worker needs to drive to work every day, the inability to obtain an expeditious H-1B approval could mean that he is unable to work.

An H-1B worker who is porting to a new employer may begin working for the new employer upon the filing of a nonfrivolous H-1B petition on his behalf provided, inter alia, that this petition was filed before the end of his period of authorized stay. It has always been advisable to obtain an approval of the new H-1B petition and the security that comes along with that before making the leap to new H-1B employment. The suspension of premium processing service means that more H-1B workers will be forced to take a chance and port to the new employer before the H-1B petition is approved. If the H-1B petition is ultimately denied, they do have the option to return to the first H-1B employer but, realistically, not only is it most likely that those bridges will have burnt but that initial H-1B employer is also obligated to notify USCIS when the H-1B worker is no longer employed. If USCIS has already been notified then that initial H-1B would no longer be viable even if the employer were willing to rehire the H-1B worker.

Also, where an H-1B worker has ported to new H-1B employment based on a pending petition timely filed by employer B, the worker may port again to employment with employer C while the petition filed by employer B is still pending but provided that the H-1B worker’s initial period of authorized stay, as indicated on his Form I-94, has not yet expired. The suspension of premium processing service will likely increase the processing time for all H-1B petitions and therefore significantly increase the likelihood that H-1B workers will no longer be able to take advantage of such privileges.

USCIS has indicated, however, that it will continue to accept requests for expedited processing during the suspension period. Petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, which include severe financial loss to company or person​; emergency situation; and humanitarian reasons. USCIS has stated that it will review all expedite requests on a case-by-case basis and that requests will be granted at the discretion of the office leadership.

If the H-1B visa system is gummed up in this manner, US employers will not be able to attract the best global talent. Some of the employers that will be hit the hardest will be technology companies seeking to attract the best talent before their competitors do. It is already difficult to do so given the H-1B annual cap of a measly 65,000 visas with an additional 20,000 for master’s degrees. The United States is no longer the only game in town. Frustrated workers will leave for more hospitable countries. The H-1B system is already a mess. Why the need to mess it up even more?

David Isaacson

Destroying the Case In Order to Save It: Why Returning Asylum Applicants to Contiguous Territory Under INA §235(b)(2)(C) Would Often Violate Both Law and Common Sense

/0 Comments/in /by

During the Vietnam War, an American official was once quoted as saying of the town of Ben Tre that “It became necessary to destroy the town to save it.”  This author was reminded of that quote recently when considering the approach to certain removal proceedings proposed in a recent Executive Order issued by Donald Trump and implementing memorandum issued by Secretary of Homeland Security John Kelly.  Depending on how one reads this guidance, it appears that the government may be proposing that certain asylum applicants should be returned to the country from which they fear persecution, or to a country from which they risk being returned to that country of persecution, pending a determination of whether their fear of harm upon such return is well-founded.  To force such a return in the course of adjudicating an asylum claim risks destruction of the claim and the claimant, in defiance of law and common sense.

Section 7 of the January 25, 2017, Executive Order entitled “Border Security and Immigration Improvements” provided as follows:

Sec. 7.  Return to Territory.  The Secretary shall take appropriate action, consistent with the requirements of section 1232 of title 8, United States Code, to ensure that aliens described in section 235(b)(2)(C) of the INA (8 U.S.C. 1225(b)(2)(C)) are returned to the territory from which they came pending a formal removal proceeding.

The cited section of the INA, §235(b)(2)(C), provides as follows:

Treatment of aliens arriving from contiguous territory.-In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 240.

Subparagraph (A), in turn, refers to “an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,” and does not by its terms exclude those who are applying for asylum.

The February 20, 2017, implementing memorandum of Secretary Kelly, entitled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” expands further on this proposal:

Section 235(b)(2)(C) of the INA authorizes the Department to.return aliens arriving on land from a foreign territory contiguous to the United States, to the territory from which they arrived, pending a formal removal proceeding under section 240 of the INA. When aliens so apprehended do not pose a risk of a subsequent illegal entry or attempted illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings saves the Department’s detention and adjudication resources for other priority aliens.

Accordingly, subject to the requirements of section 1232, Title 8, United States Code, related to unaccompanied alien children and to the extent otherwise consistent with the law and U.S. international treaty obligations, CBP and ICE personnel shall, to the extent appropriate and reasonably practicable, return aliens described in section 235(b)(2)(A) of the INA, who are placed in removal proceedings under section 240 of the INA-and who, consistent with the guidance of an ICE Field Office Director, CBP Chief Patrol Agent, or CBP Director of Field Operations, pose no risk of recidivism-to the territory of the foreign contiguous country from which they arrived pending such removal proceedings. To facilitate the completion of removal proceedings for aliens so returned to the contiguous country, ICE Field Office Directors, ICE Special Agents-in-Charge, CBP Chief Patrol Agent, and CBP Directors of Field Operations shall make available facilities for such aliens to appear via video teleconference. The Director of ICE and the Commissioner of CBP shall consult with the Director of EOIR to establish a functional, interoperable video teleconference system to ensure maximum capability to conduct video teleconference removal hearings for those aliens so returned to the contiguous country.

Since the Executive Order and border memorandum appear to be primarily (although not exclusively) focused on the Mexico/U.S. border, and the significant majority of those who seek to enter from Mexico and are placed in removal proceedings under INA §240, rather than being admitted into the U.S. or removed without §240 proceedings, will be those who have established a credible fear of persecution and seek to apply for asylum, one’s attention is naturally drawn to how these directives might operate with respect to such asylum applicants. It is true that there will be others who could be subjected to this §235(b)(2)(C) procedure, and indeed there have been “port courts” held on the Canadian border under this procedure for some time, but asylum applicants at the Mexican border seem likely to be among the principal groups affected by an expansion of §235(b)(2)(C) usage under the Executive Order and implementing memorandum.

When the U.S. government seeks to return an asylum applicant to Mexico pending further proceedings, there are three logical possibilities. First, the person may be a citizen of Mexico.  Second, the person may be a citizen of some third country, but have a valid immigration status in Mexico which would allow them to remain there.  Third, the person may be a citizen of some third country and lack valid immigration status in Mexico.  In the first and third cases, returning the person to Mexico under §235(b)(2)(C) pending removal proceedings would be deeply problematic.

If a Mexican national is claiming a well-founded fear of persecution in their home country of Mexico, then returning them to Mexico, pending a determination of whether that fear is indeed well-founded, would be nonsensical. One would hope it is obvious that a journalist at risk due to his reporting on abuses by members of the Mexican military, for example, should not be returned to the jurisdiction of that military, and so placed again at risk of persecution, pending a determination of the magnitude of that risk. A former police officer killed by a drug cartel will not be helped by a subsequent determination that yes, he had a well-founded fear of this occurring. If Mexico is the place where an asylum applicant fears persecution, then it would make no sense to return that applicant to Mexico before determining whether this fear is justified.

Returning a Mexican national to Mexico prior to determining the well-foundedness of that Mexican national’s fear of persecution would also violate the law. Section 241(b)(3) of the INA indicates that, with limited exceptions not at issue here, “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (often referred to as “CAT” for short) similarly restricts the ability of the United States to return someone to a country in which that person will be tortured. While the issue has not previously been litigated, so far as this author is aware, because the United States has not been brazen enough to attempt to return someone to their country of claimed persecution or torture pending a decision on whether they will indeed be persecuted or tortured, there is a strong argument that these prohibitions would be violated by a §235(b)(2)(C) return to Mexico of a Mexican asylum applicant.

Returning to Mexico a non-Mexican asylum applicant who had passed through Mexico, but lacked any immigration status there, could create similar practical and legal problems, because of the possibility of such a person’s being deported from Mexico back to their home country. In that event, irreparable harm could befall the asylum applicant before their application was processed, and it could be difficult for them to get back to the U.S. border to have their application processed at all.  Moreover, by potentially causing the return of the asylum applicant to a country where they would be persecuted or tortured, such action would again be deeply problematic under INA §241(b)(3) and the CAT.

Another problem with returning non-Mexican nationals to Mexico pending a removal hearing is that Mexico has indicated it will not accept them. It is true that in Jama v. ICE, 543 U.S. 335 (2005), a case involving removal to Somalia, the Supreme Court indicated that the advance consent of a receiving government was not a necessary precondition for certain removals, but trying to return asylum applicants to Mexico without Mexico’s permission could create mind-boggling consequences. Does the Trump Administration envision pushing people out onto bridges across the international boundary, despite knowing that Mexico will not receive them on the other end of the bridge, thus creating a sort of impromptu refugee camp in the middle of each bridge which would lead to substantial human suffering as well as blocking traffic? I certainly hope not.

It may be that DHS will understand these problems, and recognize that, in the language of Secretary Kelly’s memo, it is not “appropriate and reasonably practicable” or “otherwise consistent with law and U.S. international treaty obligations” to return most asylum applicants to Mexico pending their removal proceedings. In that case, the proposed expansion of §235(b)(2)(C) will have comparatively little practical effect.  It is reasonable to be concerned, however, about whether the proposal to expand use of §235(b)(2)(C) will indeed be cabined by these bounds of law and practicality.

 

Cyrus Mehta

Resisting President Trump’s Visa Revocations

/1 Comment/in /by

President Trump signed an Executive Order the afternoon of Friday, January 27, 2017 which, according to its introduction, is intended to “protect Americans” but had the effect of banning travel of certain persons into to the United States who are mainly nationals of mainly Muslim countries. Citing INA 212(f), which broadly authorizes the President to suspend “any aliens or class of aliens into the United States” that would be detrimental to its interest, the EO became effective as of the date of signing, though it is currently subject to a Temporary Restraining Order. Prior to the TRO, the issuance of the EO without notice caused a great deal of hardship to legitimate travelers who had already embarked on their journey to the United States and stranded others who had not yet commenced their journey. The EO has been subject to widespread condemnation, protests and lawsuits. Although there is much debate on the validity of the EO and whether the President has authority to impose a blanket ban on legitimate travelers from predominantly Muslim countries, which appeared to be consistent with his campaign statements to impose a “Muslim ban,” there has not been much discussion on the practical impact of revocations of the underlying nonimmigrant and immigrant visas that had been issued to at least 60,000 individuals when the EO took effect.

Among the EO’s key provisions are, although further details can be found on our firm’s FAQ:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

Although the EO is currently not in effect as a result of the TRO issued by the U.S. District Court for the Western District of Washington on February 3, 2017, this blog will focus on the impact of the revocation of a nonimmigrant visa of an individual who is already in the United States assuming the TRO is lifted. A panel in the Court of Appeals for the Ninth Circuit is currently considering the government’s appeal for an emergency stay of the Western District of Washington TRO. [Update: later in the day on February 9, after this blog post was published, the Ninth Circuit panel issued a published decision denying the government’s emergency motion for a stay pending appeal.] Even if the Ninth Circuit does not issue the stay, the government will most likely seek an emergency stay from the Supreme Court, and thus the fate of the EO, and of the hundreds of thousands impacted under it, still hang in balance at the time of writing.

In conjunction with the EO, the Department of State issued a notification provisionally revoking all valid immigrant and nonimmigrant visas, as follows:

Upon request of the U.S. Department of Homeland Security and pursuant to sections 212(f) and 221(i) of the Immigration and Nationality Act and 22 CFR 41.122 and 42.82, and in implementation of’ section 3(c) of the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, I hereby provisionally revoke all valid nonimmigrant and immigrant visas nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to the exceptions discussed below.

The revocation does not apply to visas in the following nonimmigrant classifications: A-1, A-2, G-1, G-2, G-3, G-4, NATO, C-2, or certain diplomatic visas.

The revocation also does not apply to any visa exempted on the basis of a determination made by the Secretaries of State and Homeland Security pursuant to section 3(g) of the Executive Order on a case-by-case basis, and when in the national interest.

This document is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any person.

What is the impact of the revocation of a visa of someone who is already lawfully in the United States? Take the example of a national from one of the banned countries who was issued an F-1 student visa, and has already been admitted into the United States in F-1 status when the visa is revoked. The revocation of the visa would not impact this student’s ability to maintain F-1 status so long as she is enrolled in the designated school and is complying with all the other terms of her status, such as not engaging in unauthorized employment. If the student leaves the United States, assuming the EO is in effect, she will not be able to come back to the United States. Hence, it is imperative to remain in the United States and continue to maintain status until such time that the ban has been lifted, and the revocation of the underlying visa has also been lifted. After the court issued the TRO, the State Department restored the visas and the above revocation notification is not in effect. However, the visas of the nationals of the 7 countries will again likely get provisionally revoked if the TRO is stayed.

Some people who came into the United States while the ban was still in effect had their visas actually cancelled. This is different to the situation when the visa got provisionally revoked after the EO came into effect. They would have to seek new visas or will need to have their admissions without a visa waived if they arrive at a port of entry so long as the ban is not in effect. Unless there is an emergent circumstance for a person with a cancelled visa to attempt to come to the United States and seek a waiver, it is advisable that such a person apply for a new visa before entering the United States.

In the event that the President adds other countries in a future Executive Order, those nationals will also be subject to visa revocation, and if they are already in the United States, they must maintain status. For example, if the affected national is in H-1B status, he must continue to remain in the employment of the petitioning entity that applied for the H-1B visa classification on his behalf. This individual may also seek an extension of status or change of status while in the United States.  It is also likely that visas will get revoked of persons even if their countries are not on a banned list if there is basis or suspicion of future inadmissibility such as becoming a public charge. Even prior to President Trump, the DOS was provisionally revoking visas if a nonimmigrant in the US was convicted of a driving while intoxicated offense. A person caught in this situation besides maintaining status, and is unable to overcome the ground of inadmissibility at the US consulate (which is unlikely if there is a blanket ban on the person’s country) should remain in the United States and continue to maintain status. So long as the individual maintains status, and does not stay year beyond the expiration of the I-94, the revocation of the visa should also not trigger unlawful presence for purposes of triggering the 3 and 10 year bars under INA 212(a)(9)(B).  This individual must also make efforts to become a permanent resident as soon as possible either through a family-based or employment-based sponsorship. Adjusting to permanent resident status in the United States would be the solution to the problem.  The government has clarified that the travel ban under the EO does not apply to permanent residents. Still, permanent residents must also be careful to not be coerced in signing I-407 abandonment applications. Permanent residents have a right to seek a removal hearing, and the government has a heavy burden to provide that a permanent resident is not entitled to that status.

Note that a nonimmigrant whose visa has been revoked is technically subject to removal. INA 237(a)(1)(B) provides:

Present in violation of law. _ Any alien who is present in the United States in violation of this Act or any other law of the United States, or whose nonimmigrant visa (or other documentation authorization admission into the United States as a nonimmigrant) has been revoked under section 221(i) is deportable.

Thus, even if one is not in violation of the INA, but whose nonimmigrant visa has been revoked, is amenable to be placed in removal proceedings. If the sole basis of placing the individual in removal proceedings was due to the revocation, under INA 221(i), the revocation can be challenged in removal proceeding. There is an arguable basis to challenge such a revocation based on INA 212(f), which provides in part:

Suspension of entry of imposition of restriction by President. – Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamations, and for such period as he shall deem necessary, suspend the entry of aliens any restrictions he may deem to be appropriate.

INA 212(f) applies to a suspension of an entry into the United States. An individual who was previously admitted in nonimmigrant status has already made such an “entry” into the United States and should therefore not be subject to a visa revocation under INA 212(f).

Finally, the revocation of an immigrant visa, once the individual has already been admitted as a permanent resident, should have no adverse impact. There would obviously be an adverse impact if the immigrant visa is revoked before the individual has proceeded to the United States. Even under these circumstances, if the immigrant visa is revoked unbeknownst to the person and could not have been ascertained through reasonable diligence, she can seek a waiver under 212(k) either at the port of entry or in removal proceedings, and if victorious, can be admitted as a permanent resident. If the EO takes effect, the DOS will revoke the visas en masse as was done the last time, and this individual is not likely to be aware of the revocation while on the journey to the United States and would thus be a good candidate for a waiver under INA 212(k).