Cyrus Mehta

Saving the Labor Certification for the Backlogged Beneficiary Even After the Job Has Changed

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By Cyrus D. Mehta and Kaitlyn Box*

In  “What if the Job Has Changed Since the Labor Certification Was Approved Many Years Ago” we discussed strategies for noncitizen workers who are eligible to file an I-485 adjustment of status application, but find that their job has changed since the approval of the I-140 petition, which may have been many years ago. When the essence of the job remains the same, but the role may have evolved over time or require the use of updated technologies, the blog suggested that one may arguably still rely on the original labor certification and I-140. At the adjustment of status stage, it can be explained that the new position is similar to the one described in the I-140 position, but there has been some progression in the job duties over time. Even if the salary has increased or the job title has been updated, these changes may not be material so long as the core duties of the position remain very similar.

This is unfortunately a common issue with Indian born beneficiaries of approved I-140 petitions in the backlogged employment second (EB-2) and third (EB-3)  preferences.  They have not yet been able to file I-485 adjustment of status applications and are thus unable to exercise job portability. The labor certification may have been filed over 10 years ago for a job that has progressed as a result of changes in technologies with the advent of cloud computing and  machine learning. While filing a new labor certification followed by the filing of a new I-140, and capturing the old priority date, is the safest way to proceed, there is no guarantee that a new labor certification may be approved or could even be filed if the company has had layoffs in the same or related occupation in the past six months.

USCIS has provided little guidance on job changes after I-140 approval, but we refer you to a   2023 AILA practice  titled “Job Changes after the PERM Is Approved: Legal and Ethical Considerations for Experienced Practitioners Practice Advisory” by Loan Huynh, Cyrus Mehta and Christine Traversi. When a noncitizen employee’s job has changed or he has been promoted, USCIS provides the following guidance for purposes of job portability under INA 204(j) when an I-485 application has been filed and been pending for 180 days:

“If you change jobs or receive a promotion, USCIS will determine whether you remain eligible for a Green Card on a case-by-case basis and based upon the totality of the circumstances. You must establish by a preponderance of the evidence that the relevant positions are in similar occupational classifications. For example, if you move into a more senior but related position which is non-managerial, USCIS will use the criteria explained above to determine whether you are primarily responsible for managing the same or similar functions of your original job or the work of persons whose jobs are in the same or similar occupational classification(s) as your original position.”

 Although this guidance is not clearly applicable outside the I-485 portability context, it suggests that demonstrating that a job remains in the same or a similar SOC code could be one way to establish that the position offered in the I-140 petition remains valid despite a promotion or progression in the duties.

The USCIS Policy Manual also provides guidance on job changes in the “successor in interest” context. When a company is sold, merged, or undergoes similar changes, “the new or reorganized company may demonstrate to USCIS that it can be considered a successor in interest (successor) of the original company to assume the predecessor’s prior immigrant benefits requests.” The Policy Manual states:

“The job offered in the successor-in-interest petition by the successor must remain unchanged with respect to the rate of pay, metropolitan statistical area, job description, and job requirements specified on the permanent labor certification. USCIS denies successor-in-interest claims where the position with the successor is changed such that the rate of pay, job description, or requirements specified on the permanent labor certification no longer relate to the labor market test.

 In other words, officers should deny any successor claim where the changes to the rate of pay, job description, or job requirements, as stated on permanent labor certification, if made at the time that the permanent labor certification was filed with DOL, could have affected the number or type of available U.S. workers who applied for the job opportunity. However, an increase in the rate of pay due to the passage of time does not affect the successor-in-interest claim.”

 

Extrapolating from the guidance provided in the successor in interest context, noncitizens workers whose jobs have changed since the labor certification or I-140 approval can possibly demonstrate that these changes would not have impacted the number or type of U.S. workers who applied to the original job opportunity.

However, when there are job changes outside INA 204(j) portability largely due to technological changes, practitioners must vigorously advocate that the essence of the position remains the same and that a new labor certification is not requited. Our firm’s recent anecdotal experience illustrates that challenges stemming from job changes after the approval of an I-140 petition can be overcome if it is demonstrated that the essential duties of the position remain the same. We assisted an individual who had applied for adjustment of status based on an I-140 petition that was approved some years ago. Since the approval of the I-140 petition and prior to filing the I-1485 application after many years, the employee had been promoted to a more senior job title and had taken on some more managerial job duties. USCIS issued a Notice of Intent to Revoke (NOIR) the I-140 petition, arguing that the position outlined in the I-140 petition was no longer a bona fide job offer given the progression of the role. After responding to the NOIR and asserting that the substance of the position remained unchanged despite an evolution of some of the specific duties, the I-140 petition was preserved and the employee’s adjustment of status application was ultimately approved.

It is unfair and impractical for an employer to file a new labor certification whenever there is job progression due to the passage of time and technological change. Beneficiaries of  labor certifications also should not be bound by the same job for a decade or longer solely because they were born in a backlogged country like India. It  is hoped that the USICS applies common sense and flexibility in agreeing that a labor certification and corresponding I-140 petition do not get invalidated if there is a progression of the job so long as  the essential aspects of the job remain the same.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

[This blog is only for informational purposes and should not be relied upon as a substitute for legal advice]. 

Cyrus Mehta

Can a Renaissance Person Ever Qualify for a US Visa Classification?

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By Cyrus D. Mehta and Jessica Paszko*

Surely, USCIS would be hard-pressed to find that any one of the men who contributed to the founding of our great nation did not possess “extraordinary ability,” but would it draw the same conclusion about each of our Founding Fathers in the early days of their careers when their extraordinary abilities were spread across various fields? In that regard, does the U.S. employment visa system as it currently stands, propel the old saying that a “jack of all trades is a master of none” and rewards only those foreign nationals who are “masters” of a single field of endeavor? The “extraordinary ability” immigrant (EB-1A) and nonimmigrant (O-1) visas both require showing extraordinary ability in a specific field whether it’s the sciences, arts, education, business, or athletics. USCIS likely would not be quick to approve the petition of a “Renaissance person” type of applicant whose acclaim is scattered among disparate fields, on the ground that the applicant can only be extraordinary in one field. Such a rigid view as to one’s abilities, however, is at complete odds with the very founding of the U.S. and the multifaceted individuals who had a finger in every pie and were artistic virtuosos in their own right when they weren’t doing things like drafting our founding document.

Apart from being the primary author of the Declaration of Independence, a president, political leader, diplomat, lawyer, architect, and philosopher, Thomas Jefferson was also a skilled violinist. Born on American soil, Thomas Jefferson did not have to try to persuade USCIS that he qualified for an extraordinary ability visa. However, suppose Thomas Jefferson had been a foreign national that came to the U.S. from the United Kingdom a few years ago as a nonimmigrant in H-1B status to work as a banking and finance lawyer for a Virginia law firm. In addition to his U.S. law degree which allows him to practice law in the U.S., Thomas had also previously earned a Bachelor of Arts in Philosophy and English Literature with Shakespeare Studies. After meeting his billable hours and logging off for the day, he continued his hobby of playing the violin, sometimes even performing as a volunteer and posting performances on social media, eventually garnering some media coverage and a sizable online following. A volunteer gig as a violin performer at Virginia’s Renaissance Faire also opened the door to the world of acting for Thomas who found the portrayal of Shakesperean characters to be just as interesting as learning about Shakespeare’s literary works in the classroom. Thomas even decided to start his own LLC to serve as an expression of who he is and that would further his violin playing and acting but has yet to make it active. Never taking a dime from any of his musical or acting endeavors, Thomas continued his work at the Virginia law firm but was eventually let go after receiving a scathing performance review that tore apart his “17th century style of writing” and “seeming deep rooted animus towards large bank clients and the banking industry in general.”

Thomas does not mourn the loss of his job, nor does he look for a similar position at another banking and finance law firm. He never liked big banks anyway, and wants to embark on his own pursuit of happiness by way of his other talents. Thomas already has an LLC in place and wishes to go full steam ahead into launching his musical and acting career. Though Thomas lives by the proposition that “nothing can stop the man with the right mental attitude from achieving his goal,” he’ll first need to figure out if the rigid U.S. immigration system will be the thing that stops him from putting all his skills to use and forces him into a straitjacket.

The situation that our 21st century Thomas Jefferson has found himself in raises the question of whether the U.S. visa system allows foreign nationals to pursue interests outside the narrow purpose of their entry without jeopardizing their visa status?

Temporary nonimmigrant workers who come to the U.S. to work for a specific employer in a specific occupation may not be prevented from pursuing activities that are permissible under a tourist visa, such as playing amateur violin gigs or acting on a volunteer basis. There is nothing in the Immigration and Nationality Act (INA) that prevents one from engaging in activities in a “phantom” status, provided such activities do not constitute unauthorized unemployment. This is recognized in the State Department’s Foreign Affairs Manual (FAM) at 9 FAM § 402.1-3, which states that an “applicant desiring to come to the United States for one principal purpose, and one or more incidental purposes, must be classified in accordance with the principal purpose.” The FAM note provides the example of a student who prior to entering an approved school wishes to first make a tourist trip of not more than 30 days. The FAM instructs that the person should receive an F-1 or M-1 student visa rather than a B-2 tourist visa.

8 C.F.R. § 214.1(e) clearly prohibits unauthorized unemployment, providing that:

A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act.

An employee is “an individual who provides services or labor for an employer for wages or other remuneration,” an employer is “a person or entity . . . who engages the services or labor of an employee to be performed in the United States for wages or other remuneration,” and employment is “any service or labor performed by an employee for an employer within the United States.” 8 C.F.R. § 274a.1(f)–(h).

Furthermore, under 9 FAM § 402.2-4, an amateur who performs in the U.S. without compensation will not be in violation of their status. On the other hand, one who is a professional performer, or even one who is normally compensated for performing, will be in violation of their status if they perform in the U.S. without compensation and do not have the appropriate visa to do so.

Taken together, the FAM and regulations suggest that an employment-authorized-temporary worker can cross the line into unauthorized employment territory if they engage in a type of activity that is both (1) a form of employment (i.e., they provide services or labor to a person or entity in the U.S. for wages or other remuneration) and (2) a type of employment that was not contemplated when their nonimmigrant status was authorized. A visitor for business or pleasure is never employment authorized and would cross the line into unauthorized employment territory if they engaged in any kind of employment, i.e., by providing services or labor to a person or entity in the U.S. for wages or other remuneration. Therefore, both the amateur nonimmigrant worker who plays charitable gigs after work hours, and the B-2 visitor on a grand tour of the country’s amateur strings clubs who joins the nonimmigrant worker on stage, would not be in violation of their respective statuses unless they received remuneration for their entertainment services.

What if Thomas now wants to change status to O-1B classification based on the acclaim he has received as a violinist? He has been approached by a talent agency that wants to represent him, find him paid gigs, and take a cut from the money that he is paid through these gigs. Can he meet the O-1B criteria based on his performance as an amateur? Would USCIS accuse him of violating his status while he was on an H-1B visa? What if he wanted to qualify for an O-1B as both a violinist and an actor? Can he still work as a contract lawyer for an entertainment law firm while being represented by the talent agency? Another option is for Thomas to create his own startup entertainment company that can utilize all of his talents as a violinist, actor, and a lawyer. His friend James Madison is very keen to invest in this startup and become a shareholder, and manage the company on Thomas’s behalf as its CEO. James has great foresight in Thomas’s potential who he thinks will go down in history as one of America’s greatest iconic figures.

Thomas likely never violated his H-1B status when he played gigs without remuneration while he was employed by the Virginia law firm based on 8 C.F.R. § 214.1(e) and 9 FAM § 402.2-4. If Thomas wants to transfer his H-1B employment, his LLC can file an H-1B petition on Thomas’ behalf, an avenue that we already touched on in an earlier blog, or it can file an O-1 petition.

As artistic director of his LLC, Thomas would utilize his law degree to negotiate favorable contracts to secure acting and violinist jobs, and would also rely on the knowledge gained as part of his bachelor’s degree program in English Literature with Shakespeare Studies when auditioning for acting roles. With respect to the H-1B visa, however, it is unlikely the specialty occupation criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A) contemplate the combination of two degrees in such a manner. Fortunately, the O-1B criteria at 8 C.F.R. § 214.2(o)(3)(iii) do not require a beneficiary to possess any degree, but they do pigeonhole the beneficiary into one “field of endeavor” of science, education, business, or athletics. For individuals in the arts, the regulations at 8 C.F.R. § 214.2(o)(3)(iv) require only “distinction” or “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.” If Thomas wants to act in movies or in commercials, there is a separate O-1B category for extraordinary achievement in the motion pictures or TV industry under 8 C.F.R. § 214.2(0)(3)(v).

Having only previously performed as an amateur violinist, Thomas may find it difficult to demonstrate that he meets at least three out of the six O-1B regulatory criteria. For instance, performing gigs for free likely does not count as having “performed . . . services as a lead or starring participant in productions or events which have a distinguished reputation” under 8 C.F.R. § 214.2(o)(3)(iv)(B)(1) by the very fact that Thomas did not perform “services” since he was not paid. Fortunately, the criterion at 8 C.F.R. § 214.2(o)(3)(iv)(B)(3) does not require evidence of having performed services and only requires evidence of having performed “in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation.” Assuming that USCIS would agree that an amateur performance by a violinist or actor who did not perform services for remuneration could satisfy this criterion, Thomas would still need to evidence his “lead, starring, or critical role” through articles in newspapers, trade journals, publications, or testimonials. 8 C.F.R. § 214.2(o)(3)(iv)(B)(4)–(5) require evidence of the foreign national’s “record of major commercial or critically acclaimed successes ” and receipt of “significant recognition for achievements from . . . recognized experts” which Thomas could argue is demonstrated through the media coverage he garnered and his sizable social media following.

The regulations make clear that an applicant possessing a number of talents in various fields of endeavors may not qualify as an individual of “extraordinary ability.” Even if Thomas chooses to self-petition for permanent residency through the EB-1A category, we will need to demonstrate that he has extraordinary ability in one of the fields he is pursuing, either as a violinist or actor. Of course, when he obtains permanent residency, he could broaden his horizons and pursue all his other interests.

Finally, Thomas, being a national of the United Kingdom, may also consider making a substantial investment in a U.S. enterprise, his startup, which he owns at least 50% of. So long as the investment is deemed to be substantial and the startup will not be a marginal enterprise, Thomas can obtain an E-2 visa to develop and direct this enterprise, thereby potentially performing all the activities that he is so passionate about that will grow the startup and also create employment opportunities for others in the U.S. Thus, while most other visa categories require the foreign national to pursue specialized and narrow activities that are consistent within the scope of the visa, Thomas might be able to fulfill his potential as a Renaissance man through the E-2 visa category.

The inability of the INA and regulations to classify multitalented foreign nationals as individuals of extraordinary ability presents another shortfall of the current U.S. employment visa system. Certainly, individuals who are the top percent of their field are to be applauded but to regard only them as possessing extraordinary ability may cause us to miss out on the kind of creative minds that have historically propelled the U.S. forward. Ironically, these top percenters of a single field would have once been seen as quite ordinary in relation to their multitalented peers. After all, as the old saying concludes: “A jack of all trades is a master of none, but oftentimes better than a master of one.”

 

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

The Much Neglected Schedule A, Group II Green Card Option Gets a Boost After USCIS Broadens the “Sciences or Arts” Definition

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By Cyrus D. Mehta and Kaitlyn Box*

On April 10, 2024, USCIS issued a policy alert clarifying the term “sciences or arts” for Schedule A, Group II occupations. Schedule A occupations are those for which the Department of Labor (DOL) has recognized that a shortage of U.S. workers exists. Group I occupations consist of physical therapists and professional nurses, while Group II occupations include “immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts”. Schedule A occupations are “pre-certified” by the DOL, so employers are not required to conduct a lengthy and onerous test of the labor market or file an ETA-9089 with the DOL.

In its recent policy update, USCIS stated that “DOL, when designating Schedule A, Group II, defines science or art as any field of knowledge or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge or skill.” Previously, these terms were not defined in the USCIS Policy Manual. This update could open up the Schedule A, Group II to encompass any field for which U.S. colleges and universities commonly offer a degree program. Noncitizens whose professions were not clearly a “science” or “art”, such as lawyers, businesspeople, and teachers, may now be able to avail of the Schedule A, Group II program. This broadening of the definitions of “science” and “art” follows the Biden Administration’s Executive Order on Artificial Intelligence to expand the availability of highly-skilled foreign nationals in the Science, Technology, Engineering, and Mathematics (STEM) and AI fields, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers.

However, the significance of this change should not be overstated as all the existing requirements for Schedule A, Group II designation still apply. For noncitizens in the sciences or arts, even under the expanded definition, this means that they must demonstrate exceptional ability in their field. Employers must provide a full-time offer of employment, and offer the beneficiary at least the prevailing wage. The employer must also provide notice of the position to a bargaining representative, or its employees. The specific requirements that USCIS outlines for each Schedule A occupation must also be met. In order to demonstrate “exceptional ability in the sciences or arts”, a beneficiary’s prospective employer must “submit documentary evidence showing the widespread acclaim and international recognition accorded to the beneficiary by recognized experts in the beneficiary’s field”. The beneficiary’s employment during the past year, as well as the position offered in the U.S., must also require exceptional ability.

Additionally, the beneficiary must meet at least two of the following seven criteria laid out in 20 CFR 656.15(d)(1):

  • Documentation of the beneficiary’s receipt of internationally recognized prizes or awards for excellence in the field;
  • Documentation of the beneficiary’s membership in international associations, in the field, which require outstanding achievement of their members, as judged by recognized international experts in their disciplines or fields;
  • Published material in professional publications about the beneficiary, about the beneficiary’s work in the field, which must include the title, date, and author of such published material;
  • Evidence of the beneficiary’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization;
  • Evidence of the beneficiary’s original scientific or scholarly research contributions of major significance in the field;
  • Evidence of the beneficiary’s authorship of published scientific or scholarly articles in the field, in international professional journals or professional journals with an international circulation; and
  • Evidence of the display of the beneficiary’s work, in the field, at artistic exhibitions in more than one country.

It is also important ensure that the “exceptional ability” criteria for Schedule A, Group II are not conflated with the criteria for an employment-based, second preference visa based on exceptional ability. In order to qualify for Employment-Based Second Preference (EB-2) classification, a noncitizen must hold an advanced degree or equivalent, or “be able to show exceptional ability in the sciences, arts, or business”. Exceptional ability for EB-2 purposes is defined as “degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business”. Beneficiaries must also demonstrate that they meet at least three of the six criteria outlined in 8 CFR 204.5(k)(3)(ii):

  • Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability
  • Letters from current or former employers documenting at least 10 years of full-time experience in your occupation
  • A license to practice your profession or certification for your profession or occupation
  • Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability
  • Membership in a professional association(s)
  • Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations

Other comparable evidence of eligibility is also acceptable.

Schedule A, Group II, provides an alternative basis for an employer to sponsor a noncitizen employee for permanent residence without going through the lengthy labor certification process in addition to the person extraordinary ability under the Employment-Based First Preference (EB-1) or the National Interest Waiver under EB-2.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

[This blog is only for informational purposes and should not be relied upon as a substitute for legal advice].

 

 

Cyrus Mehta

To What Extent Can Walmart’s Successful  Blocking of an Administrative Law Judge in the Executive Office for Immigration Review  Extend to  Immigration Judges?

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By Cyrus D. Mehta and Kaitlyn Box

On March 25, 2024 Chief Justice J. Randal Hall of the United States District Court for the Southern District of Georgia, Statesboro Division granted Walmart’s motion for summary judgment in Walmart Inc. v. Jean King, which alleged that the administrative proceedings against the company for violations of immigration-related recordkeeping requirements should be halted because they were “being conducted by an administrative law judge (“ALJ”) who is unconstitutionally shielded from the President’s supervision. ALJs like Jean King, who was presiding over the proceedings against Walmart and is the Chief Judge within the Office of the Chief Administrative Hearing Officer (OCAHO), can be removed from their position only for “good cause” as determined by the Merits System Protection Board (MSPB) and by the president for “only for inefficiency, neglect of duty, or malfeasance in office”. Walmart alleged that this system violates the Constitution by insulating ALJs “from presidential control by two levels of removal protection”. Walmart argued that Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed”, requires him to have the power to remove executive officers. Only two types of officers have been determined to be exempt from the President’s removal power – principal officers, who report directly to the President, and inferior officers, who are appointed by the President but supervised by others. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). Walmart argued that ALJs do not within either of these exceptions, “so the removal scheme that protects them is unconstitutional twice over”. Judge Hall agreed with Walmart and granted the motion for summary judgement, finding that “the multilevel protection from removal present for the OCAHO ALJs is contrary to Article II, and contrary to the executive power of the President.”

 This case is just one in a string of recent examples of constitutional challenges to the authority of ALJs. In a previous blog, we discussed Securities and Exchange Commission v. Jarkesy, which, in part, concerns whether the Congress’ decision to allow ALJs to be removed only for “good cause” violates Article II. The Supreme Court heard oral argument in Jarkesy in November 2023, and its decision in the case could have sweeping consequences for the future of ALJs. We also reported on SpaceX’s successful challenge against the DOJ’s prosecution of discrimination allegations against it under INA 274B. SpaceX’s Appointments Clause challenge was unique as it argued that the Attorney General, despite appointing OCAHO ALJs, does not review their decisions under INA 274B as an aggrieved party under  INA § 274B(g)(1) must seek review in the court of appeals.

Jarkesy and Walmart also raise the possibility about whether Immigration Judges (IJs), too, could face constitutional challenges. Like the OCAHO, they too are housed within the Executive Office for Immigration Review under the purview of the Department of Justice.

However, in Fortunato de Jesus Amador Duenas v. Garland, the Ninth Circuit rejected an argument that the removal process for IJs violates Article II. The Court reasoned that the Attorney General (AG), who supervises IJs, enjoys the unrestricted authority to remove them at his discretion. Historically, AGs have exercised this power fairly liberally. John Ashcroft, the AG under President George W. Bush, fired a number of IJs who had reputations for being lenient toward immigration. See Jill Family, Regulated Immigrants: An Administrative Law Failure, 29 Bender’s Immigration Bulletin 401, 415 (March 14, 2024). Jill Family’s article in providing a fascinating history of the APA points out that Congress exempted deportation and exclusion cases from the Administration Procedure Act. See Supplemental App. Act of 1951, Pub. L.64 Stat. 1044 (1951).  During the Trump administration, AG Jeff Sessions similarly removed IJ Steven Morley from handling the Castro-Tum case and replaced him with a different judge after Morley had previously administratively closed it.  On the other hand, IJs are also subject to the Merits System Protection Board (MSPB) like the ALJ in the Walmart case. In Roy v. MSPB,  the only reason why Susan Roy, a former  Immigration Judge,  could not make a claim in the MSPB is because she had not served two years. Otherwise, Roy v. MSPB shows that IJs who have completed two years can challenge their removal to the MSPB.  IJs are also subject to union control, which was not brought up in Fortunato de Jesus Amador Duenas v. Garland.

Even if the Supreme Court in Jarkesy ultimately rules that ALJs are unconstitutional, it is unlikely that the holding would extent to IJs notwithstanding the fact that IJs may also receive some modicum of protection from removal. IJs have historically been susceptible to removal by the AG who is appointed by the President. They can be reassigned from a case and the  AG also has the authority to certify decisions made by an IJ to himself and overrule them. There is another part of Jarkesy that brought a Seventh Amendment challenge because Mr. Jarkesy was subject to an administrative proceeding against him and was deprived of a jury trial in federal court.  If the Supreme Court rules in favor of Mr. Jarkesy on his right to a jury trial, this may invite challenges with respect to the authority of IJs. Even here, S. Michael McColloch, counsel for Jarkesy, argued that the court should hold that when the government brings a case with the “same essential function” as a traditional lawsuit for claims such as fraud, it should have to bring the case in federal court, where a jury trial right would apply. However, when pressed further he emphasized that Jarkesy should not apply to adjudicating government benefits and debts and that  the authority of IJs should not be impacted by the outcome of the case.

It remains to be seen whether a broad ruling in Jarkesy will strike at the heart of the immigration court system. If the Supreme Court’s holding brings about the evisceration of the immigration courts, Congress could be forced to create an independent immigration court system under Article I of the Constitution as a replacement. An Article 1 court would ensure that IJs are independent from political interference as they are currently under the purview of the Attorney General within the Department of Justice.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Application for  Prevailing Wage Determination and the Application for Permanent Labor Certification – Siblings or Twins?

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By Cyrus D. Mehta and Kaitlyn Box*

The process for an employer to sponsor a noncitizen employee for permanent labor certification is long and complicated. The first step in the process for filing Form ETA 9089, Application for Permanent Labor Certification, also known as PERM, is to file Form  ETA 9141, Request for Prevailing Wage Determination. It takes about 6 months for the National Prevailing Wage Center to issue the prevailing wage determination. It is only after the prevailing wage is determined, and recruitment is conducted, that the employer can file Form 9089, which takes 9 months to a year before a labor certification is issued.

The filing of  Form 9089 sets the priority date, which determines where the noncitizen is in the queue under the Employment-Based Second (EB-2) or Employment-Based Third (EB-3) Preference. The filing of the Form 9089 can also provide the legal basis for filing an H-1B extension beyond the six year limit if it is filed one year before the sixth year under section 106(c) of the American Competitiveness in the 21st Century Act.

As the Form 9141 is imperative in ensuring that the Form 9089 can be filed as soon as possible, the National Prevailing Wage Center has begun to issue Requests for Information (RFI) after the Form 9141 is filed to request a prevailing wage determination, which have the potential to further delay the overall labor certification process.

In the Form 9141, the position and the requirements have to be provided in detail so that the National Prevailing Wage Center (NPWC) can issue an appropriate prevailing wage determination. For instance, if the position requires travel, this too needs to be specified on Form 9141. Since June 1, 2023, Form  9141 links to the new Form 9089, automatically populating certain fields on the PERM application form. Some of the information on Form 9141, such as the description of the offered position and its requirements, remain only on Form 9141.

Practitioners have been receiving a Request for Information (RFI) after filing Form 9141 requesting the employer to answer the travel requirement question with more specificity. This could add further delays to the issuance of a prevailing wage determination, which is taking about six months, which in turn would lead to delays towards filing Form 9089.  Question F.d.3 on Form 9141 asks, “Will travel bs required in order to perform the job duties?” If the response is “Yes” to this question, then the employer is required  under Question F.d.3. to “provide geographic location and frequency of travel”

If the position requires travel, Question F.d.3. should be answered as specifically as possible. If the position requires travel about once a month domestically to meet clients, the employer must specify under F.d.3 that the position requires travel once a month with  the US to meet with clients. If such details are not provided in Form 9141, and instead, the answer is “occasional travel required” then the NPWC will issue an RFI asking for specific details as set forth in the following example we have received on behalf of a client:

Item F.d.3a states, “Frequent travel required. ” Please clarify if the occupation will require any national or international travel, and the frequency of that travel. Your response should also confirm that the NPWC has permission to correct your Form ETA-9141 with the information you provide in your response.

The employer is given the choice to respond directly to the RFI in the FLAG system or via e mail. The employer must respond within 7 days. The employer is also given the choice to withdraw and apply again too.

In the case of “roving employees”, the 1994 Barbara Farmer Memo states that the employer’s main or headquarters (HQ) office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated.  Even with roving employees, the employer will tend to answer “Yes” to F.d.3, which asks “Will travel be required in order to perform the job duties?” Then, under F.d.3.a. where the employer is asked to “provide [the] geographic location and frequency of travel” the employer tends to answer consistent with the  Barbara Farmer Memo as follows: “Must be willing to relocate and work anywhere in the US.”

Recently, the NPWC has been issuing an RFI on this response too stating:

Item F.d.3 states “Yes”, and Item F.d.3a states the applicant “Must be willing to relocate and work anywhere in the U.S. ”

Please clarify the frequency of that travel.

However, this response does not relate to travel because the frequency of travel is now known. The position, rather than requiring travel, requires the employee to be willing to relocate and work anywhere.

At the AILA 2024 Spring Conference in Washington DC on March 22, 2024, Lindsey Baldwin, Director, National Prevailing Wage Center, clarified that the DOL is more interested in knowing about travel in the Form 9141 than unanticipated job locations under the Barbara Farmer memo. She also said that the information in the Form 9141 does not have to match everything that is in the Form 9089, and suggested that the Form 9141 and Form 9089 may be siblings but they are not twins!

Given that the information in the Form 9141 links to the Form 9089, what if the employer answers “No” to Question F.d.3 regrading travel for a position that only requires the ability to work at unanticipated locations under the Barbara Farmer Memo? How will the ability to work at unanticipated worksites get captured in the Form 9089? Answering “No” may avoid an RFI regarding travel. However, the information in the Form 9089 must also match with the information provided in the advertisements, which requires that the job applicant  be willing to relocate and work anywhere in the US.

One way of ensuring that the need to relocate to unanticipated worksites gets into Form 9089 is to answer “Yes” to  Fb.1. in Form 9089 – Will work be performed in geographic areas other than the one identified in Section F as above? Then answer F.c. – Other Definable Geographic Area(s) – by stating “Various worksites such as the Company Headquarter [insert address] and other unanticipated locations in the US.” This further demonstrates that Form 9141 and Form 9089 are siblings and not twins.

In order to answer the RFI and also answer F.d.3.a on Form 9141 to avoid a future RFI another suggested response from the employer may include answering positively to the travel question after consulting with the employer regarding the anticipated frequency of relocation. One example is as follows:

Must be willing to relocate and work anywhere in the US. Travel in the context of relocation may be required at least once or twice a year based on clients’ needs.

Ms. Baldwin did however emphasize that when responding to the RFI regarding travel, the employer must specify:

  • Whether travel is local or international

  • How frequent is the travel? – once or twice a year or more (do not indicate “occasional travel” as that is subjective)

  • What is the nature of the travel? Is it for meetings or is it for the performance of the duties of the position?

If the employer does not answer the RFI with such specificity, the Form 9141 issuance will get further delayed.

The labor certification process has been both exacting and maddeningly complex. The recent trend of RFIs being issued in the context of travel to determine the prevailing wage have added even more complexity as well as confusion to the process. The authors only provide suggested responses to RFIs and how to complete the travel section in Form 9141 and related sections in Form 9089. They do not provide any assurances that DOL will agree with these suggested responses.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

[This blog is only for informational purposes and should not be relied upon as a substitute for legal advice].

 

 

 

 

Cyrus Mehta

As Texas Has Been Smacked Down Twice for Lack of Standing in Challenges to Federal Immigration Policies, Biden Should Get Even Bolder in Reforming Our Immigration System Through Executive Actions

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On March 8, 2024, Judge Tipton in Texas v. DHS dismissed a lawsuit brought by Texas and 20 other states challenging President Biden’s humanitarian parole program. Judge Tipton, who was appointed by Trump,  has otherwise been receptive to challenges to Biden’s immigration policies but not this time. Texas filed the lawsuit in his court thinking that Judge Tipton would again issue a favorable decision but Judge Tipton held that Texas did not have standing to bring the lawsuit.

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukrainian and Venezuelan nationals all0wed 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela (CHNV) to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

In Texas v. DHS  the challengers asserted that the program exceeded the parole authority given to the administration under INA 212(d)(5) as it can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. They also asserted that the program failed to include a notice and comment period and the program was arbitrary and capricious. Judge Tipton’s order did not address the merits because the plaintiffs did not demonstrate they had standing to bring the lawsuit.

Judge Tipton gave short shrift to Texas’s claim that the parole of CHNV nationals  would impose additional health care costs on the state or additional incarceration costs or an increase in education costs since the CHNV program has resulted in the decrease of migrants entering the US irregularly through the southern border. Judge Tipton also found that an increase in CHNV nationals seeking driver’s licenses would not impose additional costs on Texas, in fact the increased applications would result in a profit for Texas.  Prior to the CHNV program DHS released an average of 2,356 CHNV nationals per day but after the implementation of the program there were a total of 1,326 arrivals per day, which was a 44% reduction.

As a result, Texas was unable to show an “injury-in-fact” that the CHNV program increased the   costs on Texas. In fact, to the contrary, the CHNV parole program has reduced the total number of individuals from the four countries and Texas has spent less money after the implementation of the parole program. Texas counter argued that even if there are fewer apprehended CHNV nationals, the court should consider the money Texas would spend on CHNV nationals under the parole program. Judge Tipton emphasized that the court must consider the “actual injury – not the labels put on the injury” as otherwise plaintiffs will engage in “artful pleading” to make an end run around the standing requirement under Article III of the Constitution. To determine whether actual injury exists the raw numbers need to be looked at in context rather than in a vacuum. The CHNV program reduced the overall numbers of CHNV nationals that the United States admitted prior to the implementation of the program.

The CHNV program, which will continue for now,  has been a spectacular success thus far and is built on the US historically using parole to respond to immigration crises.  The CHNV parole program has “redirected many migrants away from risky journeys through Mexico into a lawful framework. By allowing sponsors to financially support beneficiaries, the programs have facilitated safe and orderly migration, reducing the strain on government resources,” according to the Cato report in the link.

Texas and the other states may appeal Judge Tipton’s decision, but this is the second time that Texas’s challenge has been smacked down due to lack of standing. Last June 2023 in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Judge Tipton readily agreed by vacating the Mayorkas Memo. The Fifth Circuit affirmed but the Supreme Court reversed holding  that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.”

As a result of Texas losing twice on standing, the enforcement priorities under the Mayorkas Memo continue to be applied and the CHNV parole program will also allow CHNV nationals to enter the US through parole in an orderly manner and relieve the strain on the Southern border. It remains to be seen whether Texas’s challenge to DACA can also be denied based on standing. Currently, the Fifth Circuit is reviewing Judge Hanen’s ruling in September 2023 holding that DACA is illegal.  Judge Hanen also affirmed that Texas had standing to challenge DACA notwithstanding the Supreme Court decision in United States v. Texas, where Justice Kavanaugh also stated  that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” Judge Hanen seized upon this sentence from Justice Kavanaugh’s decision by holding that DACA involved  “non prosecution with benefits” and so it was distinguishable from the enforcement priorities in the Mayorkas Memo. Judge Hanen also seized upon another part in Justice Kavanaugh’s opinion stating that the “standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions.” Judge Hanen thought that DACA was such an example where the administration has abandoned its statutory responsibility to make arrests and bring prosecutions and thus violated the “Take Care Clause” of the Constitution.

Both Texas v. DHS and United States v. Texas should serve as templates for either the Fifth Circuit or the Supreme Court to once again deny Texas standing to challenge DACA and Texas’s other serial challenges to Biden’s immigration programs. Texas lacks standing  because DACA like the CHNV parole program has been widely successful and it can be shown that it has not injured Texas. In his order Judge Tipton contrasted Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised, (Nov. 25, 2015), aff’d by equally divided Court, 597 U.S. 547 (2016), where President Obama’s Deferred Action for Parents of Americans (DAPA) was found to be unlawful, with the CHNV program. The Fifth Circuit held that Texas demonstrated injury in fact because “DAPA would enable at lest 500,000 illegal aliens in Texas” and the extended DACA program  would also cause “pocketbook injuries on the State in the form of healthcare, education, and social service costs.” However, if DACA is viewed independently from DAPA, it can be demonstrated that the benefits from DACA recipients since 2012 in the form of tax contributions to Texas and increased profits from the issuance of driver’s licenses, among other benefits,  have not resulted in injury-in-fact to Texas. Using the comparative analysis of Judge Tipton in Texas v. DHS, it can also be argued that the number of DACA recipients did not increase after the implementation of DACA in 2012 as they were already in the US prior to its implementation.

Moreover, in  Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Although Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would. It is also worth mentioning that In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. As with the Mayorkas Memo, the DACA program also involves prosecutorial discretion and so Texas’s challenge to DACA may suffer the same redressability problem identified by Justice Gorsuch.

As the latest order to Judge Tipton in Texas v. DHS and Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through parole initiatives  and other executive actions without fear of being sued by these states. As a fitting coda, it is worth mentioning that the Judicial Conference of the United States, the policy arm of the judiciary, has  strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit. This new policy would make it more difficult for states like Texas to file a lawsuit in courts where the judge might rule more favorably in a challenge to a Biden federal immigration policy. However, after receiving intense backlash from conservative lawmakers, judges and judicial experts, the Judicial Conference issued a revised policy making clear that the policy is a recommendation and district courts cannot be forced to follow it.  Although Texas’s choice of filing its lawsuit against the CHNV program in the United States District Court Southern District of Texas, Victoria Division, where Judge Tipton presides, backfired, even if this policy is non-binding guidance, it would still make it more difficult for Texas to try this strategy repeatedly in courts where other friendly judges preside like the United States District Court for the Southern District of Texas, Brownsville Division,  where Judge Hanen presides.

Cyrus Mehta

The Potential Impact of SEC v. Jarkesy on Immigration Law and EB-5 Lawyers

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By Cyrus D. Mehta and Kaitlyn Box*

On November 29, 2023, the Supreme Court heard oral argument in Securities and Exchange Commission v. Jarkesy, a case that involves several key questions: whether the statues allowing the Securities and Exchange Commission (SEC) to bring administrative enforcement proceedings that impose civil penalties violate the Seventh Amendment right to a jury trial, whether the statute allowing the SEC to enforce securities laws through agency adjudication rather than in federal court violates the nondelegation doctrine, and whether the Congress’ decision to allow Administrative Law Judges (ALJs) to be removed only for “good cause” violates Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed.” Oral argument focused primarily on whether the SEC’s enforcement system deprives those charged with SEC violations of the right to a jury trial. Jarkesy argued that an SEC adjudication triggers a right to a jury trial because it is more akin to a civil fraud lawsuit imposing monetary penalties than a proceeding involving a “public right”, where agency adjudication is appropriate.

An ALJ found Jarkesy, an investment advisor, guilty of violating securities law by fraudulently overvaluing the investments he oversaw, and making misrepresentations to investors about the management of the funds. He was fined $300,000, barred from securities industry activities, and his firm was ordered to repay investors. Jarkesy challenged the SEC’s enforcement action at the 5th Circuit, arguing that he was deprived of his constitutional right to a jury trial, that “Congress unconstitutionally delegated legislative power to the SEC by failing to provide it with an intelligible principle by which to exercise the delegated power”, and that restrictions on the removal of ALJs violate Article II. The Fifth Circuit agreed, holding that the SEC’s choice of enforcing securities violation through agency adjudication violates the Seventh Amendment, and that Congress’ open-ended grant of authority to the SEC to determine whether to initiate enforcement proceedings for securities fraud is impermissible under the Constitution. Further, the court held that “for-cause” removal protections for ALJs violates the “take care” clause of the Constitution by impermissibly insulating them from removal by the President.

The outcome of Jarkesy could have significant impacts on immigration law. The same arguments that could invalidate the authority of ALJs in Jarkesy could also be applied to Immigration Judges (IJs), potentially depriving them of the ability to hear cases. Because IJs are non-ALJ adjudicators, their authority could be even more vulnerable to the challenges issued by Jarkesy. Additionally, if the Supreme Court’s holding eliminates ALJs at the SEC, lawsuits challenging the authority of ALJs at other agencies are likely to follow, meaning that the Department of Labor, for example, could be hindered from holding hearings to address an employer’s failure to comply with a Labor Condition Application (LCA). During the oral argument, which only focused on the right to a jury trial under the Seventh Amendment, Justices Kagan and Sotomayor expressed concerns that Jarkesy could result in radical changes to the immigration court system. If the Supreme Court’s holding brings about the evisceration of the immigration courts, Congress could be forced to create an independent immigration court system under Article I of the Constitution as a replacement. An Article 1 court would ensure that IJs are independent from political interference as they are currently under the purview of the Attorney General within the Department of Justice.

S. Michael McColloch, counsel for Jarkesy, argued that the court should hold that when the government brings a case with the “same essential function” as a traditional lawsuit for claims such as fraud, it should have to bring the case in federal court, where a jury trial right would apply. However, when pressed further he emphasized that Jarkesy should not apply to adjudicating government benefits and debts and that  the authority of IJs should not be impacted by the outcome of the case.

A broad Supreme Court ruling in  Jarkesy  affirming all the three aspects of the Fifth Circuit decision could have disastrous consequences for the immigration court system while also providing immigration lawyers charged with SEC violations with an interesting means of challenging the administrative proceedings. The SEC often initiates enforcement actions against immigration lawyers arising from their work with the EB-5 program, which affords noncitizen investors a path to lawful permanent residence. The SEC has initiated these actions against immigration lawyers who it claimed, for example, offered investments without registering as a broker or received commissions from their clients’ investments. As in the enforcement action at issue in Jarkesy, the SEC often imposes monetary sanctions on immigration lawyers found to have committed a securities violation. Jarkesy could provide immigration lawyers accused of securities fraud with a template for challenging the enforcement proceedings brought against them by the SEC on the grounds that they are entitled to a jury trial or asserting a Constitutional challenge to the authority of ALJs. Jarkesy also argued that the statutory provision which allows the SEC to bring agency enforcement actions rather than enforcing securities law in federal court offends the Constitution’s nondelegation doctrine. This argument too could be advanced by immigration lawyers facing an SEC administrative proceeding. The SEC does not always initiate agency enforcement proceedings against immigration lawyers for securities violations, however, sometimes suing in federal court instead (see here and here). Immigration lawyers facing a jury trial in federal court will find it more difficult to make use of the arguments laid out in Jarkesy.

Our blog on Jarkesy is part of a series of blogs analyzing forthcoming Supreme Court cases that may eviscerate Chevron deference,  curb the power of federal government agencies in interpreting statutes and regulations, and broaden the statute of limitations to challenge regulations under the Administrative Procedure Act.  Although these challenges are being made by plaintiffs  before sympathetic conservative justices whose objective it is to dismantle the administrative state, we have tried to also find a silver lining in each of these cases that might benefit immigrants or their attorneys.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

How Corner Post Along with the Demise of Chevron Deference  Can Open Up Immigration Regulations to Challenges

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On February 20, 2024,  the Supreme Court  heard oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. This case could potentially expand the six year statute of limitations to challenge a regulation under the Administrative Procedure Act (APA).   § 702 of the APA provides that “]a] person suffering legal wrong because of an agency action, or adversely affected or aggrieved by agency action” may seek judicial review. § 2401(a) of the United States Code generally requires that the complaint to commence such an action must be “filed within six-years after the right of action accrues.”

 In Corner Post, the plaintiffs asserted that the six year statute of limitations under the APA first begins to accrue when the plaintiff has suffered a “legal wrong” or been “adversely affected or aggrieved” rather from when the agency issues a rule. The Board of Governors of the Federal Reserve issued Regulation II in 2011, which capped the interchange fees paid on debit-card transactions.  The North Dakota Retail Association and others challenged this regulation under the APA. The Board moved to dismiss arguing that the statute of limitations had run out.  They added Corner Post, which was incorporated in 2017 and began operating in 2018. The Board again moved to dismiss, and the district court granted the motion holding that the statute of limitations under Section 702 began running when Regulation II was published in 2011. The Eight Circuit affirmed rejecting the argument that the six year statute of limitations began running only when Corner Post opened in 2018. Corner Post sought review by the Supreme Court.

If plaintiffs prevail, Corner Post would open the door to many challenges to government regulations  even beyond the six year date from when they were issued. Moreover, on January 17, 2024,   the Supreme Court also heard oral argument on January 17, 2024 in Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo whether to eliminate or restrict the deference that courts give to an agency’s interpretation of an ambiguous statute under Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). This is known as Chevron deference, which has insulated the government from challenges to its interpretation of a statutory provision.

 One can see how the evisceration of Chevron deference in Loper Bright and Relentless,  along with Corner Post relaxing the six year deadline for APA challenges,  can result in challenges to immigration regulations even though they were promulgated more than six years ago. For instance, in  Wash Tech v. DHS the F-1 Optional Practical Training (OPT) and STEM OPT rule promulgate in 2016 were both upheld by the First Circuit under Chevron deference. If Corner Post broadens the six year limitation to challenge a rule, and if Chevron deference is eliminated, plaintiffs who claim they were aggrieved because they may have lost their job to an F-1 nonimmigrant under the OPT rule, can again try to challenge the rule even though more than 6 years have passed.

As background, the Washington Alliance of Technology Workers (Wash Tech) challenged the Optional Practical Training (OPT) and the STEM Optional Practical Training (OPT). DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. The 2016 Rule restarted the clock to challenge the statutory authority for the OPT program as a whole along with the new, STEM-specific extension.

Wash Tech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Wash Tech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In addition, the court paid deference under Chevron  to the agency’s interpretation of 101(a)(15)(F)(i)  by asserting that “OPT’s nexus to an F-1 student’s course of study, together with the student’s application to the school for approval and the school’s reporting responsibilities to DHS, ensure that the additional time and practical training opportunities available through the program help F-1 students to cement the knowledge acquired in their coursework consistent with legal limits.”

If  the Supreme Court in Loper Bright and Relentless eliminate Chevron deference, and if Corner Post broadens the six year statute of limitations, a different  plaintiff can again challenge the OPT rule all over again. The rule may most likely withstand attack because it is not entirely based on Chevron deference as it was also upheld under Lorillard v. Pons. So even if Chevron deference is eliminated, under  the doctrine established in Lorillard it can be presumed that Congress was aware of the government’s interpretation of F-1 status as encompassing practical training each time it has amended the INA. It can also be argued that the DC Circuit’s reliance on Chevron was either an alternate holding or dicta. The following extract from the decision indicates that the DC Circuit relied on the plain meaning of INA 214(a)(1); 8 USC 1184(a)(1) rather than paying Chevron deference to the DHS’s interpretation of those provisions:

The 2016 Rule is within DHS’s statutory authority. Section 1184(a)(1)’s time-and-conditions provision is the source of that authority, and the F-1 visa class definition guides its use. Because the 2016 Rule regulates the “time” and “conditions” of admission for F-1 visa-holders, and because it is reasonably related to the distinct composition and purpose of that visa class, as defined in the F-1 provision, the Secretary had authority to promulgate it.

50 F.4th at 177.

The most straightforward reading of the INA is that it authorizes DHS to apply to admitted F-1 students the additional “time” and “conditions” that enable them to remain here while participating in OPT recommended and overseen by their respective academic institutions. But at a minimum, even if it is ambiguous on the point, the statute may reasonably be understood as the Department has read it in support of the 2016 OPT Rule. That interpretation thus merits our deference. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

 

Id. at 192.

At oral argument in Corner Post the justices questioned what impact it may have if parties were allowed to bring facial challenges more than six years after a final agency action. Justice Jackson asked whether this could risk destabilizing industry and noted that “we have settled rules that govern all sorts of industries, the healthcare industry, the finance industry, and people have adjusted themselves around them.” It appears that  the justices know that Chevron deference is on the chopping block, and perhaps there is already a draft opinion circulating among them suggesting that Chevron deference may be no more. In an exchange with counsel for Corner Post, Justice Jackson raised the potential impact of the rulings in Corner Post, Relentless, and Loper Bright.  Justice Elena Kagan also raised the risk of retroactive impacts scrambling long-established law.   If plaintiffs prevail in Corner Post, it would open up challenges to well settled immigration rules such as the F-1 OPT and STEM OPT rule, as well as the H-4 employment authorization rule,  which  can destabilize and upend the lives of real people rather than just industries.

While we have addressed how the F-1 OPT rule might be vulnerable, it may be possible for noncitizen plaintiffs to attack other rules more than six years after they were issued. For instance, 8 CFR  245.1(d)(2)(i) implements the technical exception under INA 245(c)(2), which precludes one to file an I-485 application for adjustment of status who has failed to maintain lawful status  “other than through no fault of his own or for technical reasons.” 8 CFR 245.1(d)(2)(i) provides a very narrow reading of the exception under INA 245(c)(2) by only allowing one whose status was jeopardized due to inaction by the government or by an organization or individual authorized to act on behalf of he individual such as a designated student officer in a school.  The Ninth Circuit in Peters v. Barr recently held that the regulation should cover situations where the applicant fell out of status due to ineffective assistance of counsel but did not invalidate the regulation.  Although the rule was promulgated in 1989, Corner Post could allow one who got injured through the denial of an I-485 application to challenge the rule even today, and the elimination of Chevron deference may allow a court to hold that the regulation does not faithfully interpret the exception in INA 245(c) without regard to whether the government’s interpretation of the statute is reasonable or not. One caveat is that the plaintiff may have to get over the jurisdictional bar as set forth in Patel v. Garland when seeking judicial review of a denied I-485 application.

Corner Post along with the elimination of Chevron deference can open up other possibilities. It may be possible for a plaintiff to challenge the regulation implementing the foreign labor certification program at 20 CFR 656. Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. A plain reading of INA §212(a)(5) does not in any way suggest that an employer must seek to recruit U.S. workers in order for the Secretary of Labor to certify that there is a lack of U.S. workers who are qualified and willing at the time of the application. Although the PERM rule was promulgated in 2005, Corner Post can extend the 6 year limitation if an employer was subject to injury in the last six years. Moreover, if Chevron has been eliminated a court may not give deference to the DOL’s interpretation of INA § 212(a)(5) as set forth in 20 CFR 656, which requires onerous recruitment steps including two Sunday print ads and  which requires employers to justify supposedly restrictive requirements through business necessity among many other burdens that have no bearing with an employer’s real world recruitment practices.

There will  be  both winners and losers in a post Chevron world if the plaintiffs are victorious in Corner Post, Loper Bright and Relentless.

 

 

 

 

 

 

 

 

 

Cyrus Mehta

Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government

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By Cyrus D. Mehta and Kaitlyn Box*

On January 31, 2024, the Board of Immigration Appeals (BIA) issued a decision in Matter of Aguilar Hernandez.

Mr. Aguilar Hernandez, a noncitizen from Mexico, had been served a Notice to Appear (NTA) in 2019 that did not list the date and time of his individual hearing. He objected that this NTA was defective at both his individual hearing and moved to terminate the removal proceedings against him, but the Immigration Judge denied his motion. In October 2022, Mr. Aguilar Hernandez again moved to terminate the removal proceedings due to the defective NTA. The Department of Homeland Security objected, arguing that the IJ had the discretion to allow it to cure the defective NTA rather than terminating removal proceedings. DHS filed a Form I-261 containing the date and time of the next hearing, and also listing the date and time of the original hearing, and served this form on Mr. Aguilar Hernandez. Over Mr. Aguilar Hernandez’s objections, the IJ denied his motion to terminate once again, without issuing a decision concerning DHS’ submission of the Form I-261. Mr. Aguilar Hernandez then appealed to the BIA.

The BIA held that “DHS cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez.” In Niz-Chavez v. Garland, 593 U.S. 155, 160-62 (2021), the Supreme Court held that DHS cannot cure a defective NTA by issuing a hearing notice that contains the date and time of the initial hearing in removal proceedings. The BIA also cited to Pereira v. Sessions, 138 S. Ct. 2015 (2018), in which the Supreme Court held that the “stop-time rule” at INA 240A(d)(1) is not triggered by an NTA that does not contain the time and place of a hearing in removal proceedings. The BIA reasoned that “The plain text of 8 C.F.R. § 1003.30 does not support DHS’ argument, because it does not allow amendment of the date and time on the notice to appear by using a Form I-261. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (requiring agencies to follow the plain language of a regulation).” The BIA noted that the Supreme Court had held that INA 239(a)(1) requires one “single document” in Niz-Chavez, and rejected the idea that DHS could provide adequate notice by issuing multiple successive documents containing the relevant information. See Niz-Chavez, 593 U.S. at 160-61.

Matter of Aguilar Hernandez is a victory for noncitizens seeking to terminate removal proceedings on the basis of a defective NTA, but it is interesting for another reason, as well – it represents one of the rare instances in which the BIA has cited Kisor v. Wilkie. As prior blogs have noted (here, here, and here) Kisor v. Wilkie laid out a three-step test for how it would view an agency’s interpretation of its own  genuinely ambiguous regulation.. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.” In Kisor, the Supreme Court narrowed the previous standard set forth in Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation.  In Aguilar Hernandez it does not appear that the BIA thought that 8 C.F.R. § 1003.30 was ambiguous, and so it did not even need to defer to the government’s interpretation of this regulation even under the narrower standard as set forth in Kisor v. Wilkie. The plain language of 8 C.F.R. § 1003.30 did not support an expansive reading that would allow the government to cure a defective NTA by amending it through the submission of an I-261. An I-261 under 8 C.F.R. § 1003.30 only allows the government to add or substitute charges in an NTA or to add or substitute factual allegations.

The requirement that the government interprets the plain meaning of the regulation is part of a trend. The “Auer deference” standard as modified by Kisor v. Wilkie is quite similar to “Chevron deference”, which holds that courts will give deference to a federal agency’s interpretation of an ambiguous federal statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). However, when a statute is not ambiguous, the court does not need to even rely on Chevron deference and can side step the analysis all together.  While requiring an agency to adhere to the plain meaning of a statute or regulation helped the respondent in Aguilar Hernandez, it may not always come to the aid of plaintiffs. For instance,  the DC Circuit Court of Appeals in Wang v. Blinken  held that it was clear that INA 203(d) required the counting of both the principal and derivative beneficiaries in the employment-based fifth preference. Indeed, the Court in Wang v. Blinken also rejected the government’s argument that it was entitled to Chevron deference in interpreting INA 203(d) by counting derivatives as INA 203(d) was not ambiguous in the first place.

Two upcoming Supreme Court cases –  Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo –  may narrow Chevron or even eviscerate it altogether. If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, it may result in both good and bad outcomes in the immigration context. According to the Think Immigration Blog: “For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.”

At present, courts also rely on the “major questions” doctrine in West Virginia v. EPA, 142 S. Ct. 2587 (2022) to side step Chevron deference even if a statute is ambiguous. Here the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance. The dissent in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), for example, argued that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority was a “major question”. Similarly, in a footnote, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. The standard articulated in West Virginia v. EPA requires agencies to assert clear Congressional authorization when implementing a new policy of major significance, while Chevron imposes an almost opposite standard by saying that if the court cannot identify clear congressional authority disapproving what the agency proposes to do, the court should uphold the agency action if it is reasonable.  The Supreme Court’s decisions in Relentless and Loper Bright could help to resolve this discrepancy. If Chevron deference is eliminated, courts need not even need to go into the “major questions” doctrine.

Matter of Aguilar Hernandez gives us a taste of how courts will interpret INA provisions and regulations in a post Chevron world although it remains to be seen whether the end result will always be beneficial.

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Musings On Brand X As a Force for Good Ahead of the Supreme Court’s Ruling on Chevron Deference

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By Cyrus D. Mehta and Kaitlyn Box

The Supreme Court on January 17, 2024 heard arguments in two cases – Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo  – that may determine whether courts will continue to give deference to a federal agency’s interpretation of an ambiguous federal statute as held in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

Chevron deference also applies to ambiguous provisions under the INA. It is currently disfavored by  the conservative majority in the Supreme Court because it gives too much power to a federal agency to decide what the law is. It is also disfavored because deciding whether a statute is ambiguous, and thus becomes subject to deference,  is also a subjective determination based on the administration’s political ideology at any given moment in time. There is thus a great likelihood that Chevron will either be overturned or narrowed. As Brian Green and Stephen Yale-Loehr have astutely observed in their blog on Think Immigration:

Not all immigration practitioners and their clients will feel the impact if Chevron is narrowed or overruled. There will be winners and losers, and some unintended consequences may occur in limiting previously afforded deference to federal agency decision making. For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.

If the Supreme Court retains but limits Chevron, efforts will be made to argue that Chevron deference should not apply in BIA adjudications. Many case decisions have held that BIA adjudications receive Chevron deference, but there may be room to argue for a reversal of that precedent, depending on how the Court rules in Relentless and Loper.

If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, other precedent beyond Chevron could be eviscerated as well. In National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the Supreme Court held that an agency’s interpretation of an ambiguous statute may still be afforded deference even if a circuit court has interpreted the statute in a conflicting way. The Court’s holding in Brand X is a double edged sword – it can empower agencies to interpret statutes in a way that will be detrimental to immigrants, or in a beneficial way, even in light of problematic circuit court precedent. One example of an agency using Brand X to the benefit of an immigrant may be found in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), discussed at length by David Isaacson in a prior blog. Matter of Douglas involved an individual, Mr. Douglas, who was born in Jamaica and seeking to establish citizenship under former INA §321(a). His mother had naturalized in 1988, and subsequently gained legal custody of Mr. Douglas when his parents divorced.

Case law in the Third Circuit required that an applicant under former INA §321(a)(3) demonstrate that his custodial parent naturalized after legal separation from the other parent. See Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)). The BIA, however, had previously held that one may demonstrate citizenship under former INA §321(a) regardless of whether his parent gained legal custody before or after naturalizing. See Matter of Baires, 24 I&N Dec. 467 (BIA 2008). Relying on Brand X, the Board of Immigration Appeals chose to follow its own precedent and hold that Mr. Douglas was a U.S. citizen, circuit court case law notwithstanding.

Isaacson’s blog also points to other instances where the BIA previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach but not as explicitly as in Matter of Douglas. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock). Isaacson also astutely points to a  footnote in the BIA’s acclaimed decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6.

Brand X can also provide hope when even the Supreme Court may have ostensibly shut the door. If a court’s decision is based on deference to an agency’s interpretation of a statute, a subsequent administration may interpret the statute differently notwithstanding the court’s decision. In Scialabba v. Cuellar de Osorio, the Supreme Court ruled that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope. When a statue is ambiguous in that way, Brand X makes clear that the BIA could reverse its position. So too could the Attorney General go against Matter of Wang and adopt a broader interpretation of INA §203(h)(3). If Brand X falls by the wayside like Chevron, there will be no room for a future administration to reinterpret this CSPA provision that could provide ameliorative relief for hundreds of thousands of children.

The demise of Brand X would deprive a future administration that might be bolder and kinder on immigration, a potentially important tool to implement immigration reform in the face of Congressional polarization and inaction. As we have noted in prior blogs, Brand X could be used by that administration to, for example, count derivative family members together with the principal applicant in both the employment-based (EB) and family based (FB) visa preference categories under INA § 203(d). There is nothing in §203(d) that requires the separate counting of derivatives even though the administration has been separately counting them since the enactment of this provision.  Although the Court of Appeals for the D.C. Circuit held that derivative family members must be counted separately in the EB-5 context in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), Brand X could provide the Biden administration with a way to nonetheless change this interpretation by deeming INA 203(d) ambiguous and issuing a rule or  policy memo overruling Wang v. Blinken everywhere in the country except in the D.C. Circuit. Other Court of Appeals decisions have similarly limited the Biden administration’s ability to use Brand X to the advantage of immigrants.

Matter of Castro-Tum, a Trump era decision holding that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases was rejected by several Circuit Court decisions and ultimately overturned it its entirely by Attorney General Garland’s 2021 decision in Matter of Cruz-Valdez. Nevertheless, the Second Circuit upheld the BIA’s decision not to grant administrative closure under Matter of Castro-Tum in Garcia v. Garland, a 2023 decision, despite the fact that the Biden administration had already, through Garland’s decision, reinstated the prior rule under Matter of Avetisyan, which permitted IJs and the BIA to administratively close removal proceedings, even if a party opposes. Although the Second Circuit’s decision was disappointing,  the case leaves open some interesting possibilities. In Garcia v. Garland the Second Circuit held that that agency’s interpretation on administrative closure was valid because Matter of Castro-Tum was valid and applicable at the time of the agency’s decision. Thus, if an IJ or the BIA grant administrative closure in reliance on Matter of Cruz-Valdez, that decision should be upheld even if a less immigrant-friendly administration overrules the decision in future. The same logic could apply to other Biden administration policies should they be challenged in future. Further, the decision in Garcia v. Garland asserts that principle that different administrations may reinterpret ambiguous statutory provisions.

Of course, if Loper Bright Enterprises and Relentless overrule Chevron, Brand X too will fall along with its potential for be a force for good for immigrants. There is a possibility that Chevron may be narrowed rather than completely overruled. Green and Steve Yale Loehr suggest that the Supreme Court may cabin Chevron as it did for Auer deference. The Supreme Court in Kisor v. Wilkie provided no new radical test of how it would view an agency’s interpretation of its own regulation. It essentially “cabined the scope” of Auer deference, and set forth a three-step approach under Kisor. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

If the Supreme Court similarly narrows Chevron as it did with Auer deference, then Brand X will also be narrowed and survive.  But if Chevron falls, so will Brand X rendering it harder for a future immigrant friendly administration to implement broad based immigration reform.

Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC