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).

Cyrus Mehta

Justifiable Outrage On Trump’s Muslim Travel Ban By A Client

/1 Comment/in /by

By Farhad Wadia

Editor’s Note: On Friday evening, January 27, 2017, we sent out a notice to our clients relaying the details of President Trump’s executive order blocking the entry of visa-holders, refugees, and LPRs from seven predominantly-Muslim nations, namely Iran, Iraq, Syria, Somalia, Sudan, Libya, Yemen. Among other things, we strongly discouraged clients or the employees of corporate clients from these countries from travelling outside the United States.  Outraged by Trump’s actions, Farhad K. Wadia wrote to us this spontaneous, eloquent response. Mr. Wadia is the Chief Executive Officer of Samuels Jewelers, a multi-million dollar specialty jewelry chain. Under Mr. Wadia’s leadership, Samuels Jewelers has expanded to 123 stores across twenty-two states and now employs over 800 people. Mr. Wadia, who is a citizen of India, is also a proud lawful permanent resident. Note that there have been some clarifications to the EO since last Friday, the situation remains fluid as interpretations keep on changing.

This weekend, I was shocked to hear that President Trump had not only banned refugees and visitors from seven Muslim countries, but that Lawful Permanent Residents from these nations were also denied entry. Due to the uproar from protests this weekend, the White House has since rolled back on its policy denying entry to LPRs; however, many more people, including temporary workers and students, continue to suffer under this inhumane policy.

This Executive Action has already ripped apart families and shattered the dreams of professionals and students. Twice before in American history have such actions caused untold hardship and suffering to innocent people. The first of which was the U.S. refusal to admit Jews fleeing the Holocaust. Upon return to Nazi Germany, these people were violently persecuted and/or killed at concentration camps. The second was the internment of Japanese-Americans after the bombing of Pearl Harbor, causing immense trauma and untold misery. Trump’s recent actions join these events in the halls of infamy and serve as a degradation of American values.

Despite these spots on its history, America, has historically served as a beacon of hope and opportunity for citizens and immigrants alike. It has allowed me, an immigrant and now proud lawful permanent resident, the opportunity to grow a successful company, contribute to the American economy, and employ hundreds of workers. But I am no exception. America has given millions of people the opportunity to create new and better lives for themselves and become leaders in their communities. Immigrants to America have become influential politicians, doctors, teachers, business leaders, and scientists that have all made this country stronger.

Trump’s Executive Orders against immigrants and refugees stands in stark contrast to these cherished values. This is not the America that the world admires and respects, where the inscription on the Statue of Liberty reads: “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!” Trump has instead shut America’s door to those most vulnerable by blocking the admission of Syrian refugees, and has disrupted the lives of hundreds of visa holders seeking to continue their studies or careers.

These executive orders, in addition to the recent order heightening the status of Steven Bannon within the National Security Council, lead me to worry about the fate of America. Specifically in regards to immigrant workers, Mr. Bannon has been exceptionally discriminatory against Asian (citizen and noncitizen) workers in Silicon Valley. Relying on made-up statistics, Mr. Bannon has implied that there are too many Asian CEOs and workers in the tech industry. Stephen Miller and Jeff Sessions have both suggested rolling back employment-based immigration, even for the most talented workers that are capable of bringing ingenuity and success to the economy. I fear that this weekend’s actions are only the beginning of what is to come.

The suspension of immigration will only serve to hurt America. This country was built upon the backs of immigrants. Immigrants have made this country better. They have made this country stronger. Trump’s discriminatory orders will only reverse progress and growth, both economically and socially. America is better than this, and now is the time for the American people to stand up and fight against this injustice. As Martin Niemöller once wrote,

“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me.”

Let the American people take these words seriously, and refuse to allow Trump and his administration to degrade the values that this country was founded upon.

Cyrus Mehta

Is Trump’s Proposed Scrapping of the H-1B Lottery in Favor of the Highest Wage Such A Good Idea?

/0 Comments/in /by

By Cyrus D. Mehta and Sophia Genovese-Halvorson

Employers have already begun preparing for the upcoming H-1B visa lottery season.  The annual H-1B cap is limited to 65,000 visas per year for applicants with bachelor’s degrees, and an additional 20,000 for those with master’s degrees from US universities. The filing period begins on April 1, 2017. H-1B petitions received during the first five business days of April – April 3 to April 7 – will be given consideration under the lottery. Based on last year’s filings, the odds of getting an H-1B visa in the lottery is approximately 33%.

The H-1B lottery has been viewed as benefitting larger employers, mainly Indian IT firms that file a large number of petitions, over smaller employers who wish to focus on employing a single or few employees. A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery as contravening the INA, seeks to disrupt the status quo by allowing all employers to file on a first come first served basis. Under this plan, those who are not among the first 85,000 H-1B petitions received would be placed in a queue or wait list instead of being denied due to the quota having already been met. If this lawsuit is successful, it will certainly produce a long queue for the coveted 85,000 H-1B visas, and so most will still not benefit even after the lottery is dismantled.

Now Trump seeks to also disrupt the H-1B visa lottery, according to an article in Reuters. Specifically, Stephen Miller, senior advisor to the Trump administration, has suggested that the USCIS should abolish the H-1B lottery as we know it and replace it with a system which favors those who file on behalf of prospective employees with the highest wages. This proposal is similar to the one made by IIEE-USA, which, in addition to giving priority to employers who are willing to pay higher wages, suggest that the USCIS should also give lower priority to H-1B dependent employers. Most H-1B dependent employers, who have more than 15% of their workforce on H-1B visas happen to be Indian IT companies. This is also similar to the proposed reordering of access to H-1B visas in the Grassley-Durbin bill, which seeks to curtail the H-1B visa program in many other counterintuitive ways, including imposing mandatory recruitment of US workers before an H-1B petition is filed. Although a preeminent commentator, Vivek Wadhwa,  has praised the proposal on the grounds that Indian IT companies have been abusing the H-1B visa, we have several concerns about the proposed restructuring.

First, this preferential system would exclude entry-level professionals, some of whom have recently graduated from US universities. These entry-level professionals, while full of skill and talent, are not typically afforded higher wages at the beginning of their careers. If the H-1B program were to look unfavorably upon wage-earners commanding Level 1 wages in the DOL wage classification system, then we would be systematically excluding highly skilled, young workers that have the potential to positively impact the US economy and various professional sectors. While employers using the H-1B visa program have been criticized for excessively relying on the Level 1 wage, paying such a wage is not per se unlawful if the individual is being hired for a position with less than 2 years of experience and which requires supervision.

Second, by favoring foreign nationals with the highest wages, we may end up in a situation where a foreign national is making more than his or her American counterpart. Under the H-1B law, the employer must pay the higher of the prevailing or the actual wage. See INA 212(n)(1)(A)(i). If an employer wishes to bid for a worker by offering a higher than market wage, then the employer may have to adjust the wage for all similarly situated workers. This may not necessarily be a bad thing if all wages rise, but if the rise in wages is a result of an H-1B auction due to an artificial limitation in the number of visas, it could also have the effect of artificially distorting wages. It may also result in the inequitable result where American workers may be paid less than foreign H-1B workers, resulting not just in H-1B violations but also in discrimination lawsuits against employers. Therefore, under this proposal, the H-1B program may be criticized for causing imbalances between foreign and American workers.

Third, entrepreneurs who wish to obtain H-1B visas through their own startup companies will also suffer under this proposal. Their startups may not be able to pay them a higher wage than necessary in order to compete for an H-1B visa. Still, these startups hold promise to become successful and create jobs if the founder is able to remain in the US on an H-1B visa. This is why the USCIS provides entrepreneurs to get sponsored through existing visas such as the H-1B in the Entrepreneur Pathways Portal.  Although the USCIS has finalized a special parole rule for entrepreneurs, the final rule’s preamble acknowledges that Entrepreneurs Pathways compliments the parole rule and the two can thus harmoniously exist.  Even Wadhwa has stated that we are not encouraging startups and thus shooting ourselves in the foot, noting that “Google and Facebook can buy all the talent they want — it’s the startups who are struggling… The good thing is we have a powerful innovation system, and there are good things happening in Silicon Valley anyway, but the bad news is there’s a lot happening in other countries that would’ve happened here if we had let people come here. America gave a gift to the world.”

Fourth, while it has become fashionable to throw IT companies under the bus these days, they have to also be part of the solution. The use of IT consulting companies is widespread in America (where even the US government contracts for their services), and was acknowledged by Congress when it passed the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) by creating onerous additional attestations for H-1B dependent employers. The current enforcement regime has sufficient teeth to severely punish bad actors.  IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa even if they abide by H-1B rules regarding wages. However, it is this business model that has provided reliability to companies in the United States and throughout the industrialized world to obtain top-tier talent quickly with flexibility, at affordable prices that benefit end consumers, and promote diversity of product development. This is what the oft-criticized “job shop” or “body shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities, and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends. Such a business model is also consistent with free trade, which the US promotes when it’s in their favor, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the United States through their skilled personnel.

The solution instead lies in increasing H-1B caps in Congress rather than reordering who can have access to H-1B visas under an artificially small quota. As we have previously blogged, by continuing to limit the H-1B program US employers will remain less competitive in the world markets. By limiting the availability of H-1B visas, employers are missing out on much-needed innovation in US industries, especially in the STEM fields. This failure to innovate within the US domain may encourage employers to look to overseas markets in order to develop and expand their companies. This is bad news for the US economy. H-1B workers have historically helped to improve the US economy, which in turn helps to create more jobs for Americans.

It is also a fact that more H-1B workers are needed in the IT sector as the United States does not produce enough computer professionals of their own. Most American IT workers are self-taught, as opposed to being formally trained at an institution, according to one US-based IT worker who spoke to the authors for this blog. Moreover, the United States has more venture capital investments for new companies than most other countries, but lack the domestic labor force to reap the benefits of such investment, thereby making the need to bring in H-1B workers ever more necessary to grow startup companies.

Lastly, the United States is no longer the only player in the game. The “Silicon Valleys” in China and India are vastly more agile for quick development and production, largely due to the availability of skilled workers. Meanwhile, American innovative companies are hamstrung for lack of them and are thus forced to move more of their research and development facilities overseas. The most talented will go to countries where they are more welcomed, which may no longer be the United States.

Increasing quotas in the employment-based preferences, along with the H-1B visa quota,  is the best way to reform the H-1B visa program, rather than to further shackle it with reordered lotteries, stifling laws and regulations, labor attestations, and quotas. If there is a concern about IT companies displacing US workers, such as what happened at Disney, then increasing the wage of an exempt worker from $60,000 (which was set in the 1990 Act) to something higher might be palatable in exchange for more H-1B visas annually and no further restrictions. If an H-1B dependent employer does not hire an exempt worker, then it needs to undergo an additional recruitment and anti-displacement attestation. This has been proposed in the Protect and Grow American Jobs Act sponsored by Congressman Issa, which increases the wage for an exempt H-1B employee from $60,000 to $100,000. If at all Congress wishes to impose restrictions on the H-1B visa, the Issa bill is preferable to the Grassley-Durbin bill.

Still, artificially raising wages above market wages would hurt the ability of US businesses to use the expertise of IT consulting companies in becoming more efficient, and thus passing on the benefits to consumers and even creating new jobs. Perhaps, the $100,000 wage can be lowered for certain exempt workers, such as those who have been sponsored for permanent residence through the dependent employer or those who have graduated in certain STEM disciplines.

Regardless of how one reorders access under the lottery, there will always be a shortage if the cap is limited to a mere 85,000 visas per year. 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 their upward mobility and stifles US innovation in many fields. A system which seeks to provide preferential treatment to the highest paid foreign workers within the confines of an artificially low quota are unlikely to improve the position of US companies seeking to be competitive in global markets.

[Sophia Genovese-Halvorson, who is pursuing her JD degree at Brooklyn Law School,  is a Legal Intern at Cyrus D. Mehta & Partners PLLC]

 

 

Cora-Ann Pestaina

Matter of Dhanasar: The New National Interest Waiver Standard

/0 Comments/in /by

Overturning nearly two decades of precedent on how an individual qualifies for the National Interest Waiver (NIW), the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) recently issued a precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which vacated Matter of New York State Dep’t of Transp. [NYSDOT], 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998) on which USCIS routinely relied when adjudicating NIW petitions.

As background, the NIW is an immigrant petition for lawful permanent residence under the employment-based second preference (“EB-2”) category. In the ordinary course, a valid, permanent offer of employment in the U.S. and a labor certification application certified by the Department of Labor (DOL) are mandatory prerequisites to the filing of such an employment-based immigrant petition. However, the Immigration Act of 1990 (IMMACT90) provided that the labor certification requirement in the employment-based second category may be waived and foreign nationals may qualify for the NIW in the sciences, arts, professions or business if they are: (1) members of the professions holding advanced degrees; or (2) foreign nationals of “exceptional ability” who will “substantially benefit prospectively the national economy, cultural or educational interest, or welfare” of the United States, i.e. where the foreign national’s employment is deemed to be in the “national interest.” Yet, neither Congress nor USCIS have defined the “national interest.” Rather, it has been left intentionally undefined in an effort to leave the application of this test as flexible as possible.

In 1998, the threshold qualifications for a NIW were articulated in NYSDOT. NYSDOT restricted the use of the NIW as a way to bypass the labor certification process for foreign nationals qualifying for placement in the EB-2 category. In NYSDOT, the AAO defined a three-prong test as the legal standard for adjudicating NIW petitions. Under this test, the foreign national had to demonstrate that (1) the area in which the foreign national seeks employment is of substantial intrinsic merit; (2) the prospective benefit of the foreign national’s services is national in scope; and (3) the national interest would be adversely affected if a labor certification were required. That is, the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

The NYSDOT standard resulted in inconsistent adjudications, confusion and general frustration. It was impossible to devise a sure fire plan of attack or to predict the success of a NIW petition. Even if a petitioner could meet the first two prongs of the NYSDOT test, the third prong proved the most difficult to establish and was the sole subject of many USCIS Requests for Evidence. Under this prong, although a NIW is granted based on prospective national benefit, the foreign national’s past record had to justify projections of future benefit to the national interest. In other words, a NIW petitioner had to demonstrate that the prospective national interest was not entirely speculative, but based on demonstrable prior achievements. I previously blogged here providing a practical account of issues presented by the NYSDOT standard and how our firm was able to overcome that third prong and win a NIW petition for a marine biologist.

Acknowledging the existing confusion, in Matter of Dhanasar, the AAO stated that based on the agency’s experience with NYSDOT “we believe it is now time for a reassessment.” Matter of Dhanasar articulates a new NIW standard that the AAO believes provides greater clarity, applies more flexibly to circumstances of both petitioning employers and self-petitioning individuals and better advances the purpose of the broad discretionary waiver provision to benefit the United States.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The decision noted that Dhanasar’s prong #1 – requiring substantial merit and national importance – focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor’s substantial merit may be demonstrated in a range of areas including business, entrepreneurialism, science, technology, culture, health, or education. It is possible to establish an endeavor’s substantial merit without a demonstration of immediate or quantifiable economic impact, although such evidence would be favorable.  The AAO provided the examples of endeavors related to research, pure science, and the furtherance of human knowledge which may qualify whether or not the potential accomplishments in those fields are likely to translate into economic benefits for the United States.

To determine whether the proposed endeavor has national importance, the AAO stated that it considers its potential prospective impact. An endeavor may have national importance, for example, because it has national or even global implications within a particular field, such as those resulting from certain improved manufacturing processes or medical advances. “But we do not evaluate prospective impact solely in geographic terms. Instead, we look for broader implications. Even ventures and undertakings that have as their focus one geographic area of the United States may properly be considered to have national importance,” the AAO noted. “In modifying this prong to assess ‘national importance’ rather than ‘national in scope,’ as used in NYSDOT, we seek to avoid overemphasis on the geographic breadth of the endeavor. An endeavor that has significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area, for instance, may well be understood to have national importance.”

Dhanasar’s prong #2 – requiring that the foreign national demonstrate that he or she is well positioned to advance the proposed endeavor – shifts the focus away from the proposed endeavor and onto the foreign national. The AAO stated that it will consider factors including, but not limited to, the petitioner’s education, skills, knowledge and record of success in related or similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. In recognition of the challenges presented in attempting to forecast feasibility or future success, the AAO stated that petitioners will not be required to demonstrate that their endeavors are more likely than not to ultimately succeed. Nevertheless, petitioners must establish, by a preponderance of the evidence, that they are well positioned to advance the proposed endeavor.

Dhanasar’s prong #3 requires a demonstration that, on balance, it would be beneficial to the US to waive the requirements of a job offer and thus of a labor certification. The AAO recognized the intent of Congress to further the national interest by requiring job offers and labor certifications to protect the domestic labor supply. But, on the other hand, Congress also created the NIW in recognition of the fact that in certain cases the benefits afforded by the labor certification process can be outweighed by other factors that are also in the national interest. These two interests need be balanced within the context of individual NIW adjudications.

The AAO stated that this analysis requires an evaluation of factors such as whether, in light of the nature of the foreign national’s qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions; and whether the national interest in the foreign national’s contributions is sufficiently urgent to warrant forgoing the labor certification process. The AAO emphasized that, in each case, the factors considered “must, taken together, indicate that on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.” The AAO noted that this new prong in Dhanasar, unlike the third prong in NYSDOT, “does not require a showing of harm to the national interest or a comparison against U.S. workers in the petitioner’s field.” Under NYSDOT, the petitioner had to demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the foreign national by making the position sought by the foreign national available to U.S. workers. The petitioner, whether the U.S. employer or the foreign national, had to establish that the foreign national will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Matter of Dhanasar indeed rovides much needed flexibility and a clearer understanding of the evidence required in order to qualify for a NIW. In particular, this decision more widely opens the door for entrepreneurs to qualify for NIW. Under Dhanasar’s prong #1, the entrepreneur will no longer have to provide evidence that the proposed benefit will be national in scope as it has always been difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. Instead, the entrepreneur could demonstrate that the proposed endeavor has significant potential to employ U.S. workers.

The AAO acknowledged that the third prong of NYSDOT was always especially problematic for entrepreneurs and other self-employed individuals. A self-employed consultant would never be able to sponsor oneself through a labor certification as there is no distinct employer. In fact, the DOL regulations prohibit one who is the owner of the corporation from filing a labor certification on his or her own behalf as this person might negatively influence the good faith effort to recruit US workers. Also, certain governmental agencies do not have a policy of filing labor certifications on behalf of foreign nationals even though they may be critically needed. Under the more flexible Matter of Dhanasar standard, getting rid of the comparison requirement and focusing on the foreign national’s own background, the entrepreneur can demonstrate that even assuming that other qualified U.S. workers are available, the U.S. would still benefit from the foreign national’s contributions.

Matter of Dhanasar still requires the subjective determinations of USCIS adjudicators and accordingly, great care still needs to go into assembling a NIW petition. But this precedent decision opens the door to lawful permanent residence for individuals involved in a wider range of endeavors who would have failed to qualify under the NYSDOT standard.

Cyrus Mehta

Top 10 Posts on The Insightful Immigration Blog in 2016

/0 Comments/in /by

 Thank you for reading and supporting The Insightful Immigration Blog. Listed below are the top 10 most viewed blogs in 2016. While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them. In 2016, we covered a wide range of topics, including the high skilled worker rule, STEM Optional Practical Training, decisions of the Board of Alien Labor Certification Appeals, ethics, and Trump’s many views on immigration.   We will continue to provide insightful commentary on contemporary immigration issues in 2017, and there will surely be much to cover under the new Trump administration! We wish all of our supporters and well-wishers a very happy New Year!

  1. A Closer Look At The Form I-983 – Training Plan for STEM OPT Students
  2. Perspectives On Immigration In 2016 Through My Crystal Ball
  3. Analysis of Key Provisions of the High Skilled Worker Final Rule
  4. Is Hillary Clinton’s Silence On H-1B Visas Golden?
  5. No Longer So Fast!  An Examination of EB-1 Retrogression For Indian And Chinese Born  Foreign Nationals
  6. Can a STEM OPT Student Be Employed At A Third Party Client Site?
  7. A Trap For The Unwary: Equivalent Degree And Alternate Requirements In Labor Certification Applications
  8. BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements
  9. The Role Of The Immigration Lawyer In The Age Of Trump
  10. Don’t Forget Skilled Workers Who May Have to Wait For  A  Few Centuries Before Getting the Green Card