Cyrus Mehta

The Ethical Role of a Lawyer Under a Trump Administration

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Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it  contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.

Cora-Ann Pestaina

BALCA Update: Recent Notable Cases

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While we have no idea what the labor certification process will look like under the Trump administration, it still behooves all PERM practitioners to keep up with the Board of Alien Labor Certification Appeals (BALCA) decisions as they continue to directly affect how we prepare and file PERM applications. To that end, this blog will provide a brief summary of recent notable BALCA decisions.

Listing non-quantified skill requirements on the ETA Form 9089

At a December 7, 2016 meeting between the Department of Labor (DOL) Liaison Committee of the American Immigration Lawyers Association (AILA) and the DOL’s Office of Foreign Labor Certification (OFLC), OFLC representatives stated that pending review of the BALCA decision,  Smartzip Analytics, 2016-PER-00695 (Nov. 9 2016), they have suspended the issuance of denials involving the issue presented in that case and are preparing an FAQ relating to unquantified experience in Section H.14.

As background, after issuing PERM approvals dating back more than a decade to the inception of the PERM program, the DOL suddenly started to deny PERM applications where the employer included a requirement for a specific amount of work experience in sections H.6 and H.10 of the ETA Form 9089 and also a non-quantified skill requirement in section H.14. For example, in addition to indicating a requirement of a Bachelor’s degree plus 5 years of experience, an employer might also indicate in section H.14 that qualified applicants “must have experience in C++, Java & COBOL.” The DOL started denying labor certifications where the foreign national’s work experience in Section K of the ETA Form 9089 indicated the required work experience (in this example 3 years) but not also a full 3 years of experience in the specific technologies listed in section H.14.

While an indication of the quantified experience required is requested in sections H.6 and H.10, which ask whether experience in the job offered or in an alternative occupation is required, and “if yes, number of months of experience required” the same is not required in section H.14. The ETA Form 9089 indicates that H.14 should be used to list “specific skills or other requirements.” The instructions to the ETA Form 9089 also state that, in this section, the employer should “Enter the job related requirements. Examples are shorthand and typing speeds, specific foreign language proficiency, and test results. The employer must be prepared to document business necessity for a foreign language requirement.” Nowhere does it state that a specific number of months or years must be indicated in H.14.

In recent denials, the DOL argued that a failure to quantify the experience in H.14. left the Certifying Officer (CO) unsure as to how much experience was actually being required and uncertain of how to review applicants’ qualifications.

Then, in Smartzip Analytics, the employer listed the minimum requirements on the ETA Form 9089 as a Bachelor’s degree in Computer Science, Engineering or a related field and 60 months of experience in the job offered with 60 months of experience in any related occupation also being acceptable. In section H.14, the employer listed the following:

Experience must include experience with: delivering native mobile products at scale; publishing iOS application; Objective-C, iOS SDK, Cocoa Touch, Xcode, Interface Builder, and Auto-Layout; knowledge of Apple Human Interface Guidelines; Java.

The CO denied the application because Section K of the ETA Form 9089 did not demonstrate that the foreign national had 60 months of experience in the specific skills listed in section H.14. In a request for reconsideration the employer argued that it did not require any specific amount of experience for the skills listed in H.14. The CO held his ground and argued that by not qualifying the skills experience the employer could require more experience or proficiency of US worker applicants than it required of the foreign national and that the CO had no way of determining whether the foreign national met the employer’s requirements for the position. The employer appealed to BALCA.

BALCA relied on reasoning employed in another case, Apple, Inc., 2011-PER-01669 (Jan. 20, 2015) where BALCA considered whether the information presented in Section K of the ETA Form 9089 established that the foreign national met the special skills requirements listed in section H.14 and held that the ETA Form 9089 only solicited information about the foreign national’s work experience and did not solicit information regarding his skills gained outside of employment. Following the same reasoning, the panel in Smartzip similarly held that, unlike sections H.6 and H.10, in section H.14 the ETA Form 9089 does not solicit a statement of a duration requirement for the special skills. BALCA held that failure to provide a duration requirement for the special skills cannot be the basis for a denial without legally sufficient notice of a requirement to do so.

Hopefully, the forthcoming FAQ will clearly specify how special skills ought to be listed and make a clear distinction between skills like Java versus skills like the ability to type 50 words per minute or to speak French. While it might make sense for an employer to require 6 months of experience in using Java, there really would be no point to a requirement that the employer also issue a duration requirement for the ability to speak a foreign language or type at a certain speed.

Use of terms like “Depends on Experience (DOE)”, “Competitive”, “Negotiable” or similar language in recruitment in lieu of listing the actual wage

In late 2015, the DOL started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years, the DOL started denying PERM applications where the employers, in their PERM recruitment, used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage in lieu of stating the offered salary. I previously blogged about this here. The DOL claimed that terms like “Depends on Experience” and “Negotiable” could be vague and could place a potential burden on the US worker to reasonably determine the wage rate for the position or could indicate that an applicant’s experience might potentially cause the employer to offer a salary which is lower than the salary offered to the foreign worker. According to the DOL, a term like a “Will Discuss With Applicant” could prevent a potentially qualified US applicant from making an informed decision on whether he/she would be interested in the actual job opportunity, and could deter a number of such applicants from applying. The denials claimed that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market. Numerous motions to reconsider were filed.

Recently, Matter of Tek Services LLC, 2016-PER-00332 (Nov. 17, 2016), the employer’s recruitment did not specify a particular salary but indicated that the employer was offering a “competitive salary.” For reasons similar to those described above and in my previous blog, the CO denied the application. BALCA reversed the denial finding that the CO did not cite a specific regulatory requirement that had been violated by the employer. BALCA was not convinced by the CO’s argument that reading the words “competitive salary” creates a burden on US workers to identify the competitive wage because these applicants are under no obligation to identify this wage before applying for the position. BALCA pointed out that reading “competitive salary” in an ad also does not prevent applicants from making an informed decision on their interest in the job because this is more informative than an advertisement that is totally silent regarding the wage, an approach perfectly permissible under the regulation.

OFLC representatives have informed that they are currently reviewing the BALCA decision in Matter of TekServices and they have suspended all denials involving this issue.

Rejecting an applicant based on salary expectations

It is completely lawful to reject a US worker who desires a salary that is higher than the offered wage. But, the case of Techorbits, Inc., 2015-PER-00214 (Dec, 9. 2016) serves as a cautionary tale.

The employer filed a PERM application for the position of Business Development Manager. The application was audited. After reviewing the audit response, the CO denied the application finding that the employer had unlawfully rejected two applicants without interview claiming that the applicants desired a higher salary than the salary offered for the position. The CO stated that the employer was required to follow up with the applicants to verify whether they would accept the position at the offered salary.

In a Request for Reconsideration the employer argued that both applicants had been interviewed through interview questionnaires and phone interviews. The employer submitted an affidavit from the interviewer as to what was discussed in his interview with Applicant S.T. The employer also argued that Applicant M.D. rejected the job opportunity stating that “he would have considered this salary a few years ago, but not now.”

The CO denied the Request for Reconsideration. Regarding Applicant M.D., the CO found that he was indeed lawfully rejected based on the minimum salary he stated on the interview pre-screening form. However, Applicant S.T.’s pre-screening form indicated that his minimum salary was “open to discussion” and his resume indicated a wide range as his desired salary. The CO held that the employer had ample opportunity to submit the affidavit from the interviewer of Applicant S.T. in the audit response but did not do so. Therefore, the CO refused to consider it in the Request for Reconsideration. Without considering this affidavit, there was nothing else in the record to demonstrate that wages were ever discussed in an interview with Applicant S.T. and a rejection based on his requested salary listed as “open to discussion” was unlawful.

BALCA agreed with the CO. Without evidence to the contrary, it appeared that Applicant S.T. was rejected based on his responses to the employer’s pre-interview questionnaire. Even the employer’s email to Applicant S.T. stated, “Your minimum salary requirement you indicated on the questionnaire is higher than what is being offered for the position.” This did not help the employer in trying to prove that the applicant had been rejected based on his answers during an actual interview.  The employer also tried to argue that Applicant S.T. never responded to the employer’s rejection email to dispute the employer’s statements. BALCA shut down this argument stating that the onus is not on the applicant to correct an employer’s erroneous assumption.

BALCA also pointed out that an employer may reject an applicant as unwilling to accept the salary offered only after the position has been offered to the applicant at the salary listed and there is documentation of the offer and the applicant’s refusal. BALCA cited various cases that stand for the requirement that the position must first be offered to the applicant and the applicant must actually decline based on the low salary.

It’s interesting that BALCA did not comment about Applicant M.D. The CO found that he was lawfully rejected based only on his indication of a higher salary on his pre-interview questionnaire. But he did not actually receive and decline a job offer.

This case provides some helpful tips and reminders. An employer’s reliance on a US worker’s statements or demands as a lawful reason(s) for rejection must be very carefully documented. Pre-interview questionnaires are a great tool but employers need to carefully review them and follow up in an interview with the applicant on any statements that could potentially be used to reject the applicant. A statement indicating that the applicant will discuss wages with the employer is obvious but it might be best to also discuss an applicant’s indication of desired wage that is higher than the offered wage. This way the employer has a chance to actually inform the applicant of the offered wage and get his withdrawal of his application if he finds the wage too low.  And, as the employer learned in the instant case, an interviewer’s affidavit is an important part of the audit file and best practice dictates that it should be prepared and executed right after the interview and submitted as part of the employer’s audit response.

Is a PERM position really a “future” position if the Beneficiary is already employed in the position?

In Bally Gaming, Inc., 2012-PER-10729 (Sept. 2, 2016) the employer filed a PERM application for the position of Software Engineer located in Egg Harbor Township, NJ. The CO noted that the foreign national resided in Kennesaw, Georgia and in an audit notification requested documentation demonstrating the location of the offered position.

In the audit response, the employer explained that the foreign national currently performs the duties of the position at both locations based on the employer’s business needs but the offered permanent position will in fact be located in NJ. The employer’s application for a prevailing wage determination (PWD) indicated the New Jersey location and no travel requirement.

The CO denied the case finding that the employer had failed to obtain the proper PWD since the foreign national would also be working in Kennesaw, Georgia and failed to indicate a travel requirement on the ETA Form 9089. The employer filed a Request for Reconsideration and explained that the CO had actually misinterpreted its audit response. The employer explained that the foreign national holds H-1B status and is permitted under his H-1B to work in both locations but the permanent position does not entail any travel between the two locations.

The CO denied the reconsideration request based again on its incorrect interpretation of the PWD. The CO also stated that since the employer is permitting the foreign national to live in Georgia and travel to New Jersey to perform the job duties then the foreign national is receiving a benefit of travel or remote work that applicants for the job opportunity were not offered. The CO forwarded the case to BALCA.

The employer submitted a brief to BALCA arguing that the temporary H-1B position and the permanent position offered on the labor certification are different and that there is no legal requirement that the PERM application be for the same position in which the foreign national is employed in nonimmigrant status.  BALCA found that the employer’s PWD was indeed fully consistent with the ETA Form 9089 and also agreed with the employer that there is no requirement in the PERM regulations or in the Immigration and Nationality Act that both positions be identical. The case was remanded for certification.

What’s interesting about this case is contained in footnote 7 where BALCA suggests that there remains the question of whether the CO could deny certification on the basis of the employer’s failure to offer US workers the same benefit of travel or remote work that the foreign worker was already receiving. Due process concerns prevented BALCA from examining this issue. Since the CO initially asserted this basis for denial on a request for reconsideration, the employer was effectively denied any opportunity to address the new basis and, if appropriate, supplement the record in its request for reconsideration by the CO. BALCA also declined to address this question since it already made the determination that the CO had erred in requiring that the permanent position and the temporary position be identical.

At this point in time, we have the benefit of guidance which was not available to the employer in Bally Gaming. We know that the DOL has confirmed that the 1994 Barbara Farmer memo remains the controlling guidance on issues relating to employees who do not work at a fixed location. The DOL is still flagging cases where the foreign national’s residence is not within commuting distance of the work location. Inasmuch as a PERM position is an offer of “future” employment, if the foreign national already holds the position and is afforded a benefit in order to perform in the position, employers must be careful to offer that same benefit to US workers. I previously blogged here and here about employers’ obligation to list items or conditions of employment in its advertisements.

Other interesting cases

Micron Technology, Inc., 212-PER-02116 (Aug. 1, 2016) – BALCA held that an employer may not reject applicants for not having taken specific courses when the ad only required “knowledge of…” The employer was obligated to explore other ways in which the applicants may have gained the required knowledge.

Humetis Technologies, Inc., 2012-PER-02098 (Aug. 4 2016) – In response to an audit notification, the employer submitted email correspondence between the employer and the newspaper of general circulation. The correspondence indicated the title of two occupations to be advertised along with a description of the requirements for each position. The email confirmed that an ad would be placed online in the newspaper but did not verify the dates of publication or confirm the employer’s payment for the publication.

The regulations at 20 CFR 656.17 provide that an employer “can” document its placement of two Sunday ads by furnishing copies of the newspaper pages or proof of publication furnished by the newspaper. Various BALCA cases have established that other types of documentation could also be accepted but must be reasonably equivalent to the proof listed in the regulations. However, BALCA held that the employer’s failure to product tear sheets, a publisher’s affidavit or additional proof of publication deprived the CO of concrete evidence of the timing of the ads and the publication actually used.

Robert Bosch LLC, 2012-PER-01739 (Aug. 25, 2016) – The CO denied certification because of a discrepancy between the total number of resumes (62) stated in the recruitment report submitted with its audit response and the total number of job applicants (61) for which rejection reasons were cited in the recruitment report.  The Employer requested reconsideration, explaining that the discrepancy was the result of a typographical error in its “recruitment chart” and it offered a corrected version of the recruitment report.  BALCA held that the CO properly refused to accept and consider the employer’s corrected recruitment report which was prepared after the initial denial and thus barred by 20 C.F.R. §656.24(g)(2)(ii) which precludes an employer from submitting in an Request for Reconsideration, documentation that it previously had an opportunity to submit.

One tiny and unintentional mistake could bring a quick and unfortunate end to what is a costly and often lengthy process for an employer and foreign national. But reviewing only one BALCA case can make all the difference. Despite the fact that the DOL continues to constantly shift the goal posts in the PERM process, reviewing these cases can not only assist with avoid pitfalls but can also provide encouragement when considering appealing to BALCA.

Cyrus Mehta

Analysis of Key Provisions of the High Skilled Worker Final Rule

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The Department of Homeland Security issued final regulations on November 17, 2016 entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers” to provide relief to high skilled workers born mainly in India and China who are caught in the crushing backlogs in the employment-based preferences. While the final rule does not make too many modifications from the proposed rule, I will highlight some of the provisions that can potentially alleviate the problems caused by the long waits. This blog’s focus is not to explain every aspect of the proposed rule, and refers readers to Greg Siskind’s excellent summary, but will analyze some of the most relevant provisions that affect backlogged immigrants.

The centerpiece of the rule is to provide a basis to apply for an employment authorization document (EAD) to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and whose priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

It appears from the discussion in the preamble that compelling circumstances have to be out of the ordinary. The fact that the process may be taking a long time does not constitute a compelling circumstance. The DHS also stated in the preamble that mere unemployment would not rise up to the level of compelling circumstances, but more will have to be shown such as that the unemployment was as a result of a serious illness or employer retaliation. However, under the “other substantial harm” discussion, a beneficiary who loses a job based on the closure of a business where the beneficiary has been applying a skill set in high technology for years (such as artificial intelligence) and will not be able to establish that the same industry exists in the home country would be able to demonstrate compelling circumstances.  Interestingly, compelling circumstances could also include circumstances relating to a business startup, and that the beneficiary of an approved I-140 petition through the national interest waiver would be able to demonstrate compelling circumstances. Similarly, physicians working in medically underserved areas may also be able to demonstrate compelling circumstances.

Despite the extensive discussion of what may constitute compelling circumstances in the preamble of the rule, the plain language at 8 CFR 204.5(p)(iii) simply states:

USCIS determines, as a matter of discretion, that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization

When making a case for compelling circumstances, it should be argued that the plain language of the regulation takes precedence over the preamble. Until there are administrative interpretations, the term “compelling circumstances” is like a blank canvass, which can be colored with any sort of creative and credible argument. The applicant making the argument for compelling circumstances can invoke the U.S. Supreme Court’s opinion in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) for support that it is the plain language of the rule that governs:

Since this involves an interpretation of an administrative regulation, a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. The legality of the result reached by this process, of course, is quite a different matter. In this case, the only problem is to discover the meaning of certain portions of Maximum Price Regulation No. 188. Our only tools, therefore, are the plain words of the regulation and any relevant interpretations of the Administrator.

Bowles v. Seminole Rock & Sand Co., 325 U.S.  410, 413-414 (1945)

In Samirah v. Holder, 627 F.3d 652, 659 (7th Cir. 2010), the Seventh Circuit distinguished other Federal Register text in a regulatory announcement from the regulation itself. The following passage from the decision is worth noting:

The government’s argument is based rather desperately on a footnote in a request for comment on a proposed rule. Eligibility of Arriving Aliens in Removal Proceedings, 71 Fed.Reg. 27,585-01, 27,586 n. 1 (May 12, 2006). The footnote states that “`advance parole’ is the determination of an appropriate DHS officer that DHS should agree to the exercise of the parole authority under Section 212(d)(5)(A) of the Act before the alien’s actual arrival at a port-of-entry. The actual decision to parole, however, is made at the port-of-entry. Since any grant of parole may be revoked, 8 C.F.R. § 212.5(e), a decision authorizing advance parole does not preclude denying parole when the alien actually arrives at a port-of-entry.” A request for comments is not a regulation; the request to which the footnote was appended was only peripherally concerned with parole (the aim of the proposed rule was to resolve a circuit split over whether an immigrant placed in removal proceedings could apply for adjustment of status); and the footnote is inconsistent with the parole regulation, which states that “when parole is authorized for an alien who will travel to the United States without a visa, the alien shall be issued Form I-512,” 8 C.F.R. § 212.5(f)— the advance-parole travel document.”

 Samirah v. Holder, 627 F.3d at 659 (emphasis added).

The EAD may be renewed on an annual basis if such compelling circumstances continue to be met, even if it is a different sort of compelling circumstance from the initial, or if the beneficiary’s priority date is within one year of the official cut-off date.

How will this work? The job offer supporting the I-140 petition must still be valid. In other words, there is no legal basis under the final rule to port to another job on a standalone I-140 petition. If the employer withdraws the job offer supporting the I-140 petition, the worker could have another employer offer a position, and sponsor the worker through a new labor certification and I-140 petition. The priority date from the old I-140 petition can be recaptured.

Unless the worker is maintaining a valid nonimmigrant status (or can seek the exemption under either INA 245(i) or 245(k)), he or she will not be able adjust status in the United States and would need to process the immigrant visa at an overseas US consulate. The worker’s stay under a compelling circumstances EAD will be considered lawful presence, and will not trigger the 3 or 10 year bars upon departure. Alternatively, the worker can leave and return to the United States in a nonimmigrant status such as an H-1B, and then file for adjustment of status here. It is unfortunate that the rule does not provide for routine travel through advance parole while on a compelling circumstances EAD. The applicant will need to show urgent humanitarian reasons or a significant public benefit in order to seek advance parole.  A person who returns to the United States under advance parole will not be able to adjust status under INA 245(k) as this provision requires a lawful admission in order to adjust status. A person on advance parole is considered paroled and not lawfully admitted into the United States.

Although the centerpiece proposal is disappointing as the basis for EAD need not have been cabined by compelling circumstances, there are some bright spots in the rule. I-140 petitions that have been approved for at least 180 days would not be subject to automatic revocation due to a business closure or withdrawal by the employer. DHS has invoked its discretion under INA 205 to retain an I-140 even if an employer withdraws it or the business closes. This assurance would allow workers who have pending I-485 applications for 180 days or more to safely exercise job portability under INA 204(j), although this dispensation is not possible if USCIS revokes the I-140 based on a prior error. Even those without pending I-485 applications could take advantage of this provision to obtain H-1B extensions beyond six years under the American Competitiveness in the 21stCentury Act (AC 21). They would also be able to keep their priority dates if a new employer files another I-140 petition. The ability to retain the original priority date is crucial for those in the EB queues, as they do not lose their place even if they move jobs and again get sponsored for green cards through new employers.

The proposed rule provides key grace periods to nonimmigrant visa holders. It provides for a 10 day grace period at the start and end of the validity period, and  would also allow workers whose jobs are terminated a grace period of 60 days if they are holding E-1, E-2, E-3, H-1B, H-1B1, L-1 or TN status. The 60 day grace period is indeed a salutary feature. Up until now, whenever a worker in nonimmigrant status got terminated, they were immediately rendered to be in violation of status. There was also no grace period to depart the United States. So, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all times, that s/he had violated status. Derivative family members, whose fortunes are attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60 day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to find another employer who can file an extension or change of status within the 60 day period. Similarly, the worker could also potentially change to some other status on his or her own, such as to F-1, after enrolling in a school.

On a related note, the final rule also provides whistleblowers who report H-1B violations with protection from retaliation. Evidence of such retaliation may be presented when submitting an extension or change of status application, which would be considered as an “extraordinary circumstance” under 8 CFR 214.1(c)(4) and 8 CFR 248.1(b) when considering granting a late filing.

There will also be automatic extensions of an EAD for 180 days if filed on the same basis as the initial EAD, but will take away the mandatory processing time for an EAD within 90 days. The lack of a 90 day mandatory processing timeframe may result in delays of the issuance of the initial EAD.

Another noteworthy feature is the ability of nonprofit organizations affiliated to universities to seek H-1B cap exemption. Till now, the USCIS has insisted on an affiliation based on shared ownership or control by the same board or federation, or where the nonprofit is attached to the university as a member, branch, cooperative or subsidiary. Under the new rule, it can also be demonstrated that the “nonprofit entity has entered into a formal written affiliation agreement with an institution of higher education that establishes an active working relationship between the nonprofit entity ad the institution of higher education for the purposes of research or education, and a fundamental activity of the nonprofit entity is to directly contribute to the research or education mission of the institution of higher education.” By way of example, if the nonprofit entity enters into an agreement to house students of the university as interns, it will now be possible for this nonprofit entity to show that it is affiliated to the university, and thus seek H-1B cap exemption status.

We had written a series of blogs when the proposed rule was published, such as here, here, and here.  In one blog we were concerned that beneficiaries of  I-140 petitions might not receive notice when USCIS revokes their I-140 petition. The USCIS has the authority to revoke the I-140, for example, when the “petition approval was in error” pursuant to 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date.  USCIS would look to the I-140 petitioner for further information, even though that petitioner might lack any interest in providing it. A hostile petitioner who would have wished to withdraw a petition, or a petitioner which had innocently gone out of business, could give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine the exercise of the beneficiary’s ability to exercise §204(j) portability. This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015) and a host of other decisions require notification to be provided to either the I-140 beneficiary or the new employer. In the preamble to the final rule, the DHS acknowledges that several commenters raised this issue, but stated that it is unable to address these concerns in the final rule because they are outside the scope of this rulemaking, although DHS is considering separate administrative action outside the final rule to address these concerns. In the absence of a rule requiring notification to the beneficiary, those affected by revocations due to lack of notice should continue to invoke precedents such as Mantena v. Johnson when challenging revocations.

The rule also confirms the ability of the beneficiary of a labor certification that was filed 365 days prior to the end of the sixth year under section 106(a) of the American Competitiveness in the 21st Century Act (AC 21) to seek a one year H-1B extension beyond the sixth year. The rule also confirms the ability of the beneficiary of an approved I-140 petition to seek a three year extension beyond the sixth year if the priority date has not become current. What is new is that the extensions under both sections 106(a) and 104(c) of AC 21 cannot be sought if the beneficiary fails to file for adjustment of status or apply for an immigrant visa within 1 year upon the visa becoming available, i.e, when the priority date becomes current with respect to the final action date in the visa bulletin. In the event that the 1 year period is interrupted by the unavailability of visas, a new 1 year period shall start to run when an immigrant visa again becomes immediately available. USCIS may excuse a failure to file if the alien establishes that the failure to apply was due to circumstances beyond his or her control. Now here lies the problem. If the beneficiary is using an old I-140 petition of a prior employer for an AC 21 H-1B extension with a new employer, and the priority date on that old I-140 petition becomes current, the beneficiary must apply for adjustment of status within one year of visa availability. If the I-140 petition is no longer being supported by the job offer, and was being used to only seek an AC 21 extension, the beneficiary must have the new employer file a new labor certification and I-140, and recapture the old priority date. This process may take over a year. It is hoped that the USCIS exercises its discretion favorably in excusing the failure to file within 1 year when the beneficiary is in the process of having a new labor certification and I-140 processed on his or her behalf.

On a related note, the final rule shot down suggestions, as provided in our blog, that if there were two H-1B spouses, and only one spouse was the beneficiary of a labor certification or an I-140 petition, then both spouses can obtain AC 21 extensions as there is clearly a legal basis. The other spouse would have to now change to H-4 status, and separately apply for an EAD as an H-4 spouse, which will result in delays.

The rule also confirms the ability of an I-485 adjustment of status applicant to be able to port to a same or similar job if the I-485 has been pending for 180 days or more, but it now for the first time requires the applicant to complete Form I-485 Supplement J, with supporting material and credible documentary evidence to demonstrate that either the employment offer by the petitioning employer is continuing or “the applicant has a new offer of employment from the petitioning employer or a different employer, or a new offer based on self-employment in the same or similar occupational classification as the employment offered under the qualifying petition.” Interesting, the rule confirms what was previously confirmed in a 2005 USCIS memo by William Yates, but never completely followed, is the ability of an adjustment applicant to even port off an unapproved I-140. Of course the petition must be ultimately approved, but the rule states that it can be approved without regard to establishing the original employer’s continuing ability to pay after filing and that the I-140 petition was approvable at the time of filing. In defining same or similar occupation, the rule says it “means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.” The rule broadly defines “same or similar occupation” without regard to similarities in SOC codes that was indicated in a USCIS Memo on Portability, which again would provide flexibility for a backlogged beneficiary to easily port to a new job. One should argue that a promulgated rule takes precedence over a policy memo, which insists on determining same or similar through the SOC codes of the old and the new job.

The final rule is not perfect, but does provide several benefits to high skilled workers. It would have been preferable if EADs could have been issued to beneficiaries of I-140 petitions without demonstrating compelling circumstances. Until Congress acts, there can be other administrative reforms, as we commented,  such as moving the filing dates in the visa bulletin much ahead of the final action dates so that more beneficiaries of approved I-140 petitions can file I-485 adjustment of status applications. Once an I-485 is filed, one can exercise job portability under INA 204(j) and also obtain an EAD and travel benefits. Life as a pending adjustment of status applicant is preferable to life on a compelling circumstance EAD. The rule will also take effect on January 17, 2016, three days ahead of the inauguration of President Trump. Although Trump as a candidate promised to do away with regulations from the Obama administration, it will be difficult for the new administration to repeal this rule as it applies only to immigrant workers who are already here and in the pipeline for the green card. They will anyway get the green card, and have been in the United States legally. The United States must be an attractive destination for high skilled foreign workers. Our immigration system does not meet this objective as workers from countries like India and China have to wait decades for the green card.   Even if the rule survives the Trump administration, much more will need to be done to alleviate the backlogs for skilled immigrant workers who have contributed so much to the United States.

Cyrus Mehta

The Role Of The Immigration Lawyer In The Age Of Trump

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Our role as immigration lawyers has never become more important since the morning of November 9, 2016. Notwithstanding his conciliatory speech after his upset win, President elect Donald Trump will have to deliver on some of his campaign promises that got him votes such as building a wall, extreme vetting and cancelling Obama’s executive actions such as the Deferred Action For Childhood Arrivals (DACA) program.

We are already getting a glimpse of the people who are being selected to be part of the immigration transition team. Kris Kobach has joined the team. He is avowedly anti-immigrant and was the architect of state enforcement laws, including Arizona’s notorious SB 1070, which includes the notorious “show me your papers” provision. SB 1070 authorizes local law enforcement to ask people for proof of their immigration status when there is “reasonable suspicion” that they might not be in the country legally. Kobach also coined the idea of “self-deportation” through attrition, which assumes that undocumented immigrants will leave on their own if the laws are applied harshly against them.

Another person who has joined the transition team is Danielle Cutrona who is Senator Jeff Sessions’ counsel on the Judiciary Committee. Senator Sessions is opposed to both legal and illegal immigration. He believes that even legal immigrants are bad for the United States.  When you have these sorts of people inducted into the immigration transition team, one can only imagine that they will want to implement as much as Trump’s vision on immigration, which he articulated in a fiery anti-immigration speech in Phoenix, Arizona:

  1. Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.
  2. End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country.
  3. Move criminal aliens out day one, in joint operations with local, state, and federal law enforcement. We will terminate the Obama administration’s deadly, non-enforcement policies that allow thousands of criminal aliens to freely roam our streets.
  4. End sanctuary cities.
  5. Immediately terminate President Obama’s two illegal executive amnesties. All immigration laws will be enforced – we will triple the number of ICE agents. Anyone who enters the U.S. illegally is subject to deportation. That is what it means to have laws and to have a country.
  6. Suspend the issuance of visas to any place where adequate screening cannot occur, until proven and effective vetting mechanisms can be put into place.
  7. Ensure that other countries take their people back when we order them deported.
  8. Ensure that a biometric entry-exit visa tracking system is fully implemented at all land, air, and sea ports.
  9. Turn off the jobs and benefits magnet. Many immigrants come to the U.S. illegally in search of jobs, even though federal law prohibits the employment of illegal immigrants.
  10. Reform legal immigration to serve the best interests of America and its workers, keeping immigration levels within historic norms.

It may not be possible for Trump to implement his entire vision, as he would also need the cooperation of both houses of Congress. For example, Congress would have to agree to provide funding for Trump’s wall. However, when Kobach was asked about the wall, Kobach answered that there is “no question” that it would be built. “The only question is how quickly will get done and who helps pay for it.” Still, one is hearing that there is hedging on the election promises and the wall may no longer get immediate priority. While it would be nice to hope that all that Trump said was election blather, he has also been advised by the Center for Immigration Studies (CIS) whose goal and mission is to severely curtail immigration. If you take a look at their talking points to the next President on how to severely restrict immigration through administration actions, you will know what I mean. It is a scary 79-point list that if implemented will totally gut the system the way we know it.   Therefore, it would be a mistake to wait and see rather than taking action right away.

The low hanging fruit  is to cancel DACA (although I would prefer if they rather built the wall but left DACA untouched). There are hundreds of thousands of young people who have received benefits under DACA and have done extremely well in their careers. It would be a tragedy if DACA was rescinded, which is easy to do, since the policy was based on a memo of the Obama administration. Still, it will look bad on the Trump administration and the Republican party if this happens since jeopardizing the lives and careers of DACA recipients will generate much sympathy. Also, DACA recipients are active and know how to mobilize to protect themselves. Indeed, it is because of their effective activism that they were able to convince the Obama administration to implement DACA in the first place. Needless to say, DACA recipients should consider alternatives as soon as possible. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen.  Alternatively, they can take advantage of the provisional waiver rule (and since it is a regulation in the federal register, it cannot be cancelled as easily as DACA), which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate.  And even if DACA is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

Vulnerable immigrants need advocates more than ever before to defend and protect them. We have a new and renewed mission, and this should propel us forward and give us a new purpose. Trump’s immigration advisors will likely appoint hostile judges, officers and leaders in charge of immigration policy. He will be harsh in the enforcement of the immigration laws, and is likely to restrict business immigration in favor of an America first policy. There is a possibility that the Obama administration’s prosecutorial discretion policies may also get cancelled and people will be more susceptible to deportation. The proposed extreme vetting can become a nightmare, and for some, it could be a proxy for not being allowed to come into the United States at all. Immigration lawyers need to be strategic regarding advising clients to apply for citizenship and travel out of the US.  We will use our legal acumen and every skill to protect our clients and our client’s businesses. We will be the shield for them against all the hateful anti-immigration rhetoric that is bound to manifest itself even more from his supporters. We will do what we do best with a renewed sense of purpose.

Finally, we sincerely hope that Donald Trump as a President with respect to his immigration policies will be different from Donald Trump as a candidate. A new President elect should herald optimism in everyone rather than cause fear to hundreds of thousands of vulnerable immigrants. There has been no statement from Trump to allay their fear. Why should we think that Trump has changed after all the hateful rhetoric he spewed against immigrants and refugees? Just like a leopard does not change its spots, a bigot will always remain a bigot. The fact that Kobach and Cutrona have joined the team only heightens such fears. After 9/11, although we feared the worst, there were no drastic limits or moratoriums due to the resilience and strength of the immigration movement. 11/9 poses yet another grave challenge, but we are ready to brace for the fight to defend immigrants in the age of Trump and xenophobia. And prevail we must as the cause is righteous and just.

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

Cyrus Mehta

Immigration Perspectives On The Eve Of The 2016 Presidential Election

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The United States has always prided itself as a nation of immigrants. Unfortunately, however, there has been disturbing rhetoric against immigrants and refugees in the current presidential election season. This has been exemplified in racist taunts and epithets against Hamdi Ulukaya, a Turkish immigrant of Kurdish descent, who is the founder of the highly successful Chobani business that makes Greek yogurt and employs about 2,000 people, some of whom are refugees. Chobani’s annual yogurt sales are $1.5 billion.   According to a recent New York Time article, false stories have been published by right wing news outlets like Brietbart News and WND claiming that Mr. Ulukaya wants “to drown the United States in Muslims.” Some articles have also drawn a connection, again falsely, between Chobani hiring refugees and a spike in tuberculosis. This has led to unfortunate calls on Facebook and Twitter to boycott Chobani.

The Alliance of Business Immigration Lawyers, better known as ABIL,  of which I am a member, has in a press release rightly condemned such xenophobic attacks against a successful immigrant entrepreneur who has created jobs in the United States. It is already difficult for a foreign entrepreneur to obtain legal status in the United States under the current broken immigration system, and to then be successful and create thousands of jobs. Mr. Ulukaya is a shining example of an immigrant entrepreneur who has overcome these obstacles to benefit the United States. “Foreign born entrepreneurs like Mr. Ulukaya must be welcomed rather than attacked in such a shameful and despicable manner,” ABIL’s President Steve Garfinkel stated.  “These attacks go against the grain of what America represents – a nation that has always welcomed those to its shores who wish to better themselves and contribute to the country.”

The attacks against Chobani’s founder is only one such unfortunate incident. Donald Trump has used hateful rhetoric against immigrants from the start of his campaign. While every prior Republican nominee in recent times has spoken in glowing terms about immigrants being an asset to America, Trump emphasized only on the dark aspects, and hyped up fears of immigrants being a threat to the American people. This is despite the fact that studies have proved that newcomers are less likely to commit crimes than the native population. Trump was also fond of reading the lyrics from Al Wilson’s 1968 R&B hit song “The Snake” in his campaign rallies.  While this is a catchy tune, Trump has now corrupted the song by associating it with his opposition to Muslims. He first called for a ban on Muslims entering the United States, including Syrian refugees, and recently modified it by calling for a suspension of immigration from areas of the world when there is a proven history of terrorism against the United States or its allies. When Trump kicked off his campaign on June 16, 2015, he gave  a speech in which he called immigrants from Mexico rapists and criminals. “When Mexico sends it people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people,” he said. He has been proudly proclaiming till the very end that he would build a big wall on the Mexico-US border, and that Mexico would eventually pay for it.

It is no small wonder that there has been a surge of early Hispanic voters in states like Nevada and Florida that could potentially lead to Trump’s defeat.  Regardless of one’s party affiliation, it is hoped that the results of this election affirm that all immigrants be respected for the benefits they bring to the United States, whether as entrepreneurs or as hard working employees. The results should also speed up much needed and urgent reform of the immigration system that can tap into the talents of more immigrants like Mr. Ulukaya who bring growth and prosperity to America.  Finally, the recent revelation that Melania Trump was paid for modeling assignments in the United States while she was still on the B visa, and prior to obtaining the H-1B visa, goes to show that the line between legal and illegal immigrants is fuzzy at best. Someone in legal status can fall out of status and someone who is illegal can suddenly become legal. This is not a black and white issue as Trump and his anti-immigrant enablers have seen it.  The following extract from the Supreme Court’s decision in Plyler v. Doe, 457 US 202 (1982), which held that undocumented children could not be deprived of a public education:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

The lessons from these elections should point lawmakers to recognize that putting up a wall is not a solution; rather the best way to reduce illegal immigration, and reforming the system as a whole, is by providing more pathways to legal immigration into the United States. It would also be a good idea for any future presidential candidate to express compassion towards immigrants and refugees, consistent with America being great because of its immigrants, rather than engage in hateful rhetoric. It does not pay during election time.

Cyrus Mehta

The Guide for the Perplexed – Who is Stuck in the Green Card Backlogs

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“In the realm of Nature there is nothing purposeless, trivial, or unnecessary” ― Maimonides, The Guide for the Perplexed

David Bier of the Cato Institute in No One Knows How Long Legal Immigrants Will Have To Wait  calculates that there are “somewhere between 230,000 and 2 million workers in the India EB-2 and EB-3 backlogs, so they’ll be waiting somewhere between half a century and three and a half centuries. It is entirely possible that many of these workers will be dead before they receive their green cards.” This is stunning, and a damming indictment of the broken and shambolic legal immigration system of the United States.

The backlogs in the India and China employment-based second (EB-2) and employment-based third (EB-3) preferences have made the employment-based immigration system completely unviable. It makes no sense for an employer to test the US labor market, obtain labor certification and classify the foreign national employee in the EB-2 and EB-3 through an approved I-140 petition, and then wait endlessly for decades for the green card. It is also hopelessly frustrating for the foreign national to be waiting endlessly. As Bier’s report points out, the wait may absurdly be beyond the lifetime of the employee and the sponsoring entity. One is also penalized based on where you were born. Although each employment-based preference has a limited supply of green cards each year set by law, the backlog is further compounded due to the per country limit. A person born in India or China, no matter what his or her present nationality may be, is charged to the country of birth. Currently, India and China are more oversubscribed than other countries in the EB-2 and EB-3 backlogs. Therefore, as espoused in The Tyranny of Priority Dates, one born in India or China suffers a worse faith than a person born in Sweden or Ghana in the employment-based backlogs, and this is tantamount to invidious discrimination.

Hence, the burning question in the mind of a perplexed foreign national stuck in the EB-2 or EB-3 backlog who was born in India and China is how can I improve my situation and get the green card more quickly? This blog will offer some guidance.

Upgrade from EB-3 to EB-2

Can you upgrade from EB-3 to EB-2? If so, your employer will have to sponsor you for a position that requires an advanced degree or a bachelor’s degree plus five years of post-baccalaureate experience. There may be circumstances where you may have been promoted or up for a promotion, and the new position may justify an advanced degree, and this may be a good opportunity to once again be sponsored for a green card under the EB-2 if you were originally sponsored under EB-3. Alternatively, a new employer can sponsor you under EB-2.  If the labor certification is approved for the new position, along with the I-140 petition, the priority date from the EB-3 I-140 petition can potentially be captured for the new EB-2. You will be able to advance closer to the green card in the new EB-2 queue through this upgrade, and may also be current to receive a green card. For example, if your priority date on the EB-3 petition was November 1, 2007, and if you recaptured it for the new EB-2 petition, then you will be current, as the EB-2 India Final Action cutoff date is November 1, 2007 according to the November 2016 Visa Bulletin. The difference between a Filing Date and Final Action Date is explained below.

Not everyone can qualify for an upgrade. If you do not have the equivalent of a US Master’s degree, or the equivalent of a single source 4 year US bachelor’s degree plus 5 years of progressive experience following such a bachelor’s degree, you will likely not be eligible to qualify under the EB-2. Also, be careful about preserving the age of your child under the Child Status Protection Act, as an EB-3 to EB-2 boost may not always protect the child’s age.

Qualifying as a Person of Extraordinary Ability under EB-1A

Some may be able to qualify as a person of extraordinary ability under the employment-based first preference (EB-1A), which is current for India and China. Of course, the standard to qualify under EB-1 is extremely difficult, but it does not hurt for one to at least think about it if you readily meet three out of the ten criteria for demonstrating extraordinary ability. You may have received more acclaim over the years in your career while waiting in the backlogs without knowing it, even if you may not have won major awards or written books or published scholarly articles. For example, in business fields, people have qualified if they have made outstanding contributions of major significance to the field, worked in a leading or critical capacity for organizations with a distinguished reputation and commanded a salary higher than others in the same positions. Even if you meet 3 out of the 10 criteria, the USCIS can still subjectively determine whether you are indeed a person of extraordinary ability with sustained national or international acclaim. Thus, the USCIS can still deny an EB-1A petition even if you meet the three criteria.

Qualifying as an Outstanding Professor or Researcher under EB-1B

If you get a position in a university that is tenure track or comparable to a tenure track position, and you can demonstrate that you are an internationally recognized professor or researcher, you may be able to qualify under EB-1B, which is also current for India and China. In addition, you will need to have at least 3 years of experience in an academic area. Demonstrating yourself as an outstanding professor or researcher is slightly less demanding than demonstrating extraordinary ability as you need to meet two out of six criteria. Interestingly, one can also qualify as an outstanding researcher through a private employer if it employs at least 3 full time researchers and has achieved as an organization, or through a department or division, documented accomplishments in an academic field. Still, like with the EB-1A person of extraordinary category, the USCIS can make a negative subjective determination even after you have met two out of the six criteria in an EB-1B petition.

Qualifying as a Multinational Executive or Manger under EB-1C

Yet another option is to explore whether your employer can assign you to a foreign parent, subsidiary, branch or affiliate as an executive or manager. After fulfilling a year of qualifying employment at the overseas entity, you may be able to qualify for a green card as an intracompany transferee executive or manager under the employment-based first preference (EB-1C) if you take up a similar position with the employer in the US. The EB-1 for multinational managers and executives is also current as it is for persons of extraordinary ability.

Job Creation Investment under EB-5

For those who may have a high net worth, and have amassed over $500,000, can consider passively investing in a project within a Regional Center under the employment-based fifth preference (EB-5). Although the EB-5 is not current for China, it is current for India. Still, the EB-5 requires you to put your capital at risk, and there is always a possibility that you could lose your investment along with not being able to obtain the green card. There is also a possibility of the law changing retroactively after December 9, 2016.

Cross Chargeability through Marriage

While marrying a U.S. citizen may be the panacea to your problems, provided the marriage was in good faith, even marrying a foreign national not born in India or China would allow you to cross charge to the spouse’s country of birth, which may not be experiencing the same backlogs in the EB-3, or may be current under the EB-2.

Filing I-485 Application Under the Filing Date in Visa Bulletin

There is a small saving grace that you can use the Filing Date in the Visa Bulletin to file an I-485 adjustment of status application. Under the November 2016 Visa Bulletin, an EB-2 beneficiary, for example, can file an I-485 application for adjustment of status if his or her priority date is on or before April 22, 2009 if born in India and March 1, 2013 if born in China. While the Filing Date only allows the applicant to file, it is the Final Action date that determines whether the applicant will be granted permanent residence. Note that under the new visa bulletin system introduced since October 2015 that created the dual Filing Date and Final Action Date, the USCIS will determine whether the filing date is applicable each month for purposes of filing adjustment of status applications. In the event that the USCIS determines that the filing date is not applicable, applicants will need to rely on the final action date in order to file an adjustment of status application within the US. In November 2016, the USCIS has allowed filing I-485 applications under the Filing Date as it did in October 2016. Thus, while the Filing Date for India EB-2 is April 22, 2009, which allows for the filing of the I-485 application, the Final Action Date is November 1, 2007, which is when the green card is actually issued. Upon the filing of an I-485 application, the applicant can enjoy some of the benefits of an I-485 application such as job portability, travel permission, and open market work authorization as well as work authorization for derivative family members.

Conclusion – Continue to Advocate for Immigration Reform

While no means exhaustive, these are a few options worthy of further exploration.  In the end, notwithstanding available options, you may still not qualify and be forced to remain in the EB-2 or EB-3 backlogs. Still, do not accept your fate and actively advocate for immigration reform in Congress. The Fairness for High Skilled Immigration Act, HR 213, eliminates the per country limits in the employment-based preferences and doubles the limit to 15 % to family sponsored immigrants. The bill has amassed about 127 co-sponsors from both parties, and could potentially pass if it was put up for a vote today. However, even if HR 213 becomes law, there will still be backlogs. There is also great scope to comprehensively reform and fix the broken immigration after we elect a new President and Congress. Finally, one should continue to press this and the next administration to implement administrative reforms. For example, in The Family That Is Counted Together Stays Together: How To Eliminate Immigration Visa Backlogs, Gary Endelman and I advocated that there is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. If the entire family was counted as one unit, instead of separately, imagine the additional green cards that would become available, resulting in a dramatic reduction of the backlogs. There is also an arguable basis for the Filing Date to be current under the Thanksgiving Turkey theory. In conclusion, do not feel hopeless and dejected. Consider all available options, and if you are still not eligible for those options, press hard for legislative and administrative changes. Every effort has a purpose, and if it is inherently for a just cause, there is that much more of a moral imperative for it to be realized and come to fruition.

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

Cyrus Mehta

Reviving The National Interest Waiver For International Entrepreneurs

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

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

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

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

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

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

Several organizations and individuals submitted comments to the rule by the deadline on October 17, 2016. The Alliance of Business Immigration Lawyers, www.abil.com, of which I am a shareholder and member, also submitted comments in order to improve the rule and point out its limitations. The thrust of the comments was to make parole more accessible to entrepreneurs by lowering the investment amounts and expanding the types of persons who could qualify as investors. I was pleased to be part of the ABIL comment team of distinguished immigration attorneys, and my focus was to comment that the rule also provides a pathway to permanent residence. If the rule does not provide a pathway to permanent residency, it will not be viable at all. It is thus imperative that the rule also provide a pathway for permanent residence through the National Interest Waiver. In fact, this is not the first time that the DHS has thought about providing a pathway for permanent residence to entrepreneurs.

When USCIS announced its policy to encourage foreign entrepreneurs to take advantage of the existing immigration system on August 2, 2011, it provided Question and Answers on the Employment-based Second Preference (EB-2 Q&A) suggesting that an entrepreneur can be sponsored through a “national interest waiver”. The EB-2 (Q&A) acknowledges  Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT), which set forth a three-prong test, and how it could apply to entrepreneurs seeking the NIW.

With respect to the first two criteria under NYSDOT, the petitioner must show that he or she will be employed “in an area of substantial intrinsic merit” and that the “proposed benefit will be national in scope.” It was always difficult for an entrepreneur to show that localized employment through his or her enterprise would be national in scope. This concern was addressed in the EB-2 Q&A:

For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation. Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.

The third criterion in NYSDOT is extremely opaque and difficult to overcome. The petitioner must demonstrate that “the national interest would be adversely affected if a labor certification were required for the alien. The petitioner must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making available to U.S. workers the position sought by the alien.” The AAO went on to further illuminate this criterion as follows: “Stated another way, the petitioner, whether the U.S. employer or the alien, must establish that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.”

Still, the EB-2 Q&A provides helpful guidance to the entrepreneur to overcome the third prong:

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for the NIW. For example, the entrepreneur may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.

Nevertheless, if the parole rule provides guidance on how to seek a NIW, it should do away with the NYSDOT test, especially the subjective third criterion. Indeed, when President Obama’s executive actions on immigration were announced on November 20, 2014, a memo specifically aimed to improve the system for skilled immigrants also sought to:

Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy

ABIL therefore suggests that the final rule should contain a rebuttable presumption stating that an international entrepreneur who has maintained parole status for five years is presumed to qualify for the national-interest waiver. The five years should be extended for entrepreneurs who have already started the permanent residency process, however long it takes, given the processing delays and backlogs. Alternatively, because of prolonged visa quota backlogs, those which adversely affect persons in the EB-2 and EB-3 preferences such as beneficiaries born in India and China, ABIL suggests that entrepreneurial parolees be able to use the NYSDOT national-interest waiver standards to qualify as a person of extraordinary ability under INA § 203(b)(1)(A). Even if an entrepreneur cannot readily meet the three out of ten criteria under 8 C.F.R. § 204.5(h)(3), the petitioner can also qualify as a person of extraordinary ability by submitting comparable evidence under 8 C.F.R. § 204.5(h)(4). Hence, the final rule should expressly provide that comparable evidence includes (but is not limited to) proof that an entrepreneur meets the NYSDOT national-interest waiver criteria, and thus may qualify as a person of extraordinary ability.

Given the lack of certainty in a national-interest waiver adjudication due to NYSDOT, ABIL further suggests that the seven factors set forth in the non-precedent decision of Matter of Mississippi Phosphate, EAC 92 091 50126 (AAU July 21, 1992) be reconsidered. The seven factors include 1) improving the U.S. economy; 2) improving wages and working conditions of U.S. workers; 3) improving education and training programs for U.S. children and underqualified workers; 4) improving health care; 5) providing more affordable housing for young and/or older, poorer U.S. residents; 6) improving the environment of the U.S. and making more productive use of natural resources; or 7) involving a request from an interested U.S. government agency. This decision provided good guidance for the national interest waiver petitioner as well as the adjudicating officer and seemed to signal an understanding of congressional intent.

The EB-2 Q&A appears to suggest that the entrepreneur can also be sponsored for a green card under the EB-2 through a labor certification. In fact, an entrepreneur who cannot qualify under EB-2, can also theoretically obtain labor certification for purposes of obtaining permanent residency under EB-3. The DOL, on the other hand, has always frowned upon an owner of an entity being sponsored for a labor certification. In order to obtain labor certification, the employer must establish that it has conducted a good faith test of the labor market and that there were no qualified US workers who were available for the position. The DOL has denied labor certification to both 100% and minority owners of companies who filed a labor certification on their behalf. See ATI Consultores, 07-INA-64 (BALCA Feb. 11, 2008); M. Safra & Co. Inc., 08-INA-74 (BALCA Oct. 27, 2008). The test for determining whether an employee closely tied to the sponsoring entity could qualify for labor certification was set forth in Modular Container Systems, Inc. 89-INA-228 (BALCA July 16, 1991) (en banc), where BALCA applied a “totality of circumstances” test to determine whether there was a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

An entrepreneur who may successfully obtain parole will most likely fail under the Modular Container Systems “totality of circumstances” test. ABIL suggests that USCIS consult with the DOL before issuing this guidance so that DOL be receptive to the USCIS’s new policy of encouraging entrepreneurs and liberally interpret Modular Container Systems, which are incorporated in 20 CFR §656.17(l). For example, if an entrepreneur who qualifies for parole and owns a minority state in the enterprise should still be able to obtain labor certification if he or she did not influence the recruitment, even if the entrepreneur may have been a founder or is on its board of directors.

In conclusion, quite independent of the parole rule, the proposed broadening of the National Interest Waiver should also similarly be applicable to entrepreneurs who have used existing nonimmigrant visa categories. This is explained in the Entrepreneur Pathways portal. Indeed, the parole rule and the Entrepreneur Pathways should exist alongside each other. Neither is perfect, especially in the absence of a Congressionally mandated startup visa, but if an entrepreneur cannot qualify under the parole policy, every encouragement must be given for the entrepreneur to qualify for a visa through his or her startup under the existing visa system, such as through an H-1B visa. In order to provide viability to both the parole rule and existing policy supporting entrepreneurs, the National Interest Waiver ought to be broadened. Most importantly, entrepreneurs born in India and China should also be allowed to take advantage of the person of extraordinary ability category under EB-1. The EB-1 is current for these countries. It would be unviable for the beneficiary of an EB-2 National Interest Waiver born in India or China to wait for several years to obtain the green card. It is hoped that this administration and the next does everything in their power to attract foreign entrepreneurs.

Given the centrality of immigrant entrepreneurs to the American economy, it may come as a shock to many when they realize that, on an increasing number, immigrant entrepreneurs are going home. With the economic renaissance in India, China, Korea, Chile, Mexico and other traditional sources of immigration, while entrepreneurs continue to come to America, we are, it seems, no longer the only game in town. Faced with uncertain green card prospects and what appears as an unfriendly and intractable immigration system that questions their value rather than welcoming their talent or appreciating their contributions, immigrant entrepreneurs are having second thoughts. It is impossible to understand or appreciate the current entrepreneurial initiative without this foundation. It is therefore hoped that this administration and the next does everything in their power to attract foreign entrepreneurs to the United States.

 

Cora-Ann Pestaina

BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground

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Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp, 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s failure to apprise US workers of its wage adjustment – a variable amount of money to be paid to the employee depending on where they’re geographically based – was not a valid ground for denial.

In the representative case, the employer, in response to an audit notification, submitted a copy of an offer letter that was sent to a U.S. applicant. This offer letter stated a base salary of $117,707.20 and also described a “Cost of Labor Adjustment” or “COLA” as follows:

As eligible, you may be paid a geographically based Cost of Labor Adjustment (COLA) of $250.00 per pay period for Washington, D.C., which is an annualized amount of $6,000. Your COLA on the 15th and last day of each month in accordance with the Company’s current payroll policies and practices, along with your regular base salary. [sic] If your work location changes, then there will be an adjustment to COLA effective the first day of work in your new work location. COLA is subject to regular review and may be increased or decreased, or replaced by another compensation component upon certain promotions.

The Certifying Officer (CO) found that the employer’s Notice of Filing (NOF), which advised of a long and short term travel requirement, failed to also appropriately apprise US workers of the actual terms and conditions of employment. The CO found that the NOF violated 20 CFR §656.17(f)(3) which states that advertisements must “provide a description of the vacancy specific enough to apprise the U.S. worker of the job opportunity for which certification is sought” and 656.10(d)(4) which requires that the NOF “contain the information required for advertisements by §656.17(f).” The CO also found that the job order, Sunday newspaper advertisements, local newspaper advertisement, job search website advertisement and private employment firm advertisement failed to apprise US workers of the COLA and therefore did not appropriately apprise them of the job opportunity in violation of 656.17(f)(3). The CO, in denying the application, held that US workers were not properly notified that they would be appropriately compensated based on the specific geographic area of assignment, which could have impacted whether or not they were willing to apply for the job opportunity.

In its Request for Reconsideration/Request for Review, the employer argued that COLA was a “per diem benefit payment” which did not need to be disclosed based on BALCA’s previous decision in Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011). In Emma Willard, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. I previously blogged about this decision here. The employer argued that COLA is a not a guaranteed benefit and can be increased, decreased or replaced by other compensation at any time and to insist that such a benefit be disclosed would be similar to insisting that the employer also disclose benefits such as parking and gym memberships, which the regulations do not require.

BALCA found that the CO correctly classified COLA as a wage adjustment because it is a set amount “per pay period”, even if the exact amount may change, and is paid on the 15th and last day of each month along with the base salary. BALCA further found that this is different from a per diem benefit, which refers to something paid on a daily basis (citing Mirriam-Webster’s definition of “per diem” as “by the day”) or to reimbursements for travel receipts or meals (pointing to the U.S. General Services Administrations’ definition of “per diem” as an allowance for lodging…meals and incidental expenses). BALCA cited the case of Crowley v. U.S., 57 Fed. Cl. 376, 381 (2003) where the court cited a 1990 Conference Report discussing the Federal Law Enforcement Pay Reform Act which stated that a locality adjustment was considered part of base pay. BALCA therefore held that, based on the federal government’s characterization of a locality benefit as part of base pay, COLA must also be considered part of base pay. Since COLA is a wage and not a benefit, BALCA held that the holding in Emma Willard did not apply.

If COLA is a wage adjustment then isn’t the employer required to list it in all its advertisements and on the NOF? BALCA held that since there is no requirement that an employer list a wage in its newspaper advertisements, the employer’s failure to do so is not a violation of the regulations. Also, citing its decision in Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014) which I previously discussed here, BALCA held that the job order and additional recruitment steps could not held deficient pursuant to 656.17(f)(3) because 656.17(f) applies only to newspaper advertisements. If the advertisements were not deficient, then 656.24(b)(2) is not a valid ground for denial because the employer did properly recruit for the position.

But BALCA has left a pretty bloody trail when it comes to lack of disclosures in the NOF. In Matter of KFI, Inc. 2009-PER-00288 (Aug. 25, 2009) BALCA affirmed a PERM denial based on the employer’s failure to list the CO’s address on NOF in violation of 656.10(d)(3)(iii). In Servion Global Solutions, Inc., 009-PER-00282 (Jun. 23, 2009) BALCA held that failure to state the rate of pay constituted grounds for denial. In Matter of Innopath Software, 2009-PER-00153 (Sept. 2, 2009), BALCA held that the absence of the employer name on the NOF, although it was posted in a conspicuous location at the place of employment, was not harmless error. In Matter of G.O.T. Supply, Inc., 2012-PER-00429 (Oct. 6, 2015) BALCA affirmed the CO’s denial where the company president’s name but not employer’s name was listed on the NOF. BALCA said persons providing information to the CO need the employer name as it appears on Form 9089. The NOF is required to contain certain information as specified in 20 CFR § 656.10(d) which provides that the NOF “must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form).” Failure to list the rate of pay wage in the NOF usually constitutes grounds for denial of certification. But this time, the deficiencies of the PERM process and the Form 9089 could not be overcome.

Despite its conclusion that the regulations could reasonably be interpreted to require an employer to state a wage adjustment on a NOF, BALCA declined to affirm the denial because the Employment and Training Administration (ETA) has issued no guidance whatsoever alerting employers that this type of wage adjustment needs to be specifically disclosed in the advertising and on the ETA Form 9089. BALCA also noted that there is “neither an instruction nor a current mechanism by which an employer may enter this information on the Form 9089 and cited Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) in which case the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the form for such language. Because employers have not been provided with notice of its regulatory interpretation concerning the requirement that COLAs be disclosed and a mechanism by which to disclose COLAs, BALCA could not find the NOF defective.

As an aside, it is also interesting to note that the foreign national resided in Florida rather than in Washington, DC, but BALCA did not attach any significance to this fact. It still raises a question about the importance of differentiating between a future job opportunity in a labor certification and a foreign national’s current employment. It was not clear in the representative case whether Washington DC, which was the subject of the COLA, would be the future position. The PERM labor certification was presumably filed using the employer’s headquarters, and indicated that it would involve working at “unanticipated client locations throughout the US.” If the current position provides a COLA, but the future position that is the subject of the labor certification does not, then the fact that the employer submitted a job offer letter with respect to the current position should not undermine the outcome of the labor certification. In responding to an audit notification, employers must clearly specify whether a job offer letter sent to a US worker applicant is applicable to the future PERM position or to the current position in order to attempt to stave off a similar denial.

Also quite interesting is BALCA’s insertion of a footnote acknowledging that the employer, in its prevailing wage request, negatively answered the question about whether the position will be performed at multiple worksites but then indicated on the Form 9089 that work would also be performed at “unanticipated client locations throughout the US.” BALCA acknowledged that the prevailing wage issued by the National Prevailing Wage Center may have been affected had the employer disclosed the roving nature of the position. BALCA provided no explanation as to why this did not constitute grounds for denial. Possibly because the immigration bar continues to beg in vain for clarification on issues related to roving employees.

This decision follows the trend of Infosys Ltd., 2016-PER-00074 (May 12, 2016), also cited in Cognizant, where BALCA held that it was not fundamentally fair to require an employer’s advertisements and Form 9089 to disclose the possibility of relocation in absence of notice or guidance especially since the DOL had previously approved over 500 similar PERM applications by the employer. In Infosys, BALCA recognized that PERM, an attestation-based program places a heavy burden on employers to be careful in preparing their applications but also places a related burden on the CO to ensure that employers are given adequate guidance on what will be demanded of them. These decisions highlight the frustrating deficiencies in the existing PERM regulations and Form 9089. Updates to the PERM program have long been anticipated by both employers and foreign nationals who each expect to benefit from the PERM modernization. DOL officials previously commented that they expect the new regulation to be finalized and implemented before the end of President Obama’s administration in January 2017.

Cyrus Mehta

Immigration Inadmissibility, Legal Ethics And Marijuana

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Although medical and recreational marijuana activities are illegal under federal law, at least 25 states have legalized marijuana for medical use. Colorado, Washington, Oregon and Alaska have gone even further by legalizing some forms of recreational marijuana, including its production and sale.

This conflict between federal and state law creates a curious anomaly for the foreign national who wishes to enter the United States either as a temporary visitor or as a temporary resident. If a foreign national wishes to invest in a marijuana business in a state where it is legal, and even endeavor to obtain an E-2 investor visa, this person would likely be rendered inadmissible under federal statutory immigration provisions.

Under 212(a)(3)(A)(ii) of the Immigration and Nationality Act (INA), foreign nationals can be found inadmissible if the authorities know, or have reasonable ground to believe, that they seek to enter the United States to engage in any unlawful activity. Also, under INA 212(a)(2)(C), a foreign national can also be deemed inadmissible if the authorities know or have reason to believe that the person is or has been an illicit trafficker in any controlled substance as defined under 21 U.S.C. 802, which includes marijuana.

If the foreign national has actually used marijuana in a state where it is legal, or undertaken other legal business activities involving marijuana in that state, this person can be found inadmissible for admitting to committing acts which constitute the essential elements of a law relating to a controlled substance pursuant to INA 212(a)(2)(A)(i)(II).

The Department of Justice has set forth guidance in a Memorandum by Deputy Attorney General James M. Cole (“Cole Memorandum”) explaining circumstances where it will exercise prosecutorial discretion and not enforce the law. Specifically, the Cole Memorandum states that it will defer to state law enforcement concerning state laws with respect to marijuana activities, although such discretion will not be applied relating to the following eight circumstances:

  1. Distribution to minors;
  2. Money flows to criminal enterprises;
  3. Prohibition diversion of marijuana from states where marijuana is legal to other states;
  4. Use of legal marijuana as a pretext for trafficking other illegal drugs or activity;
  5. Preventing violence or the use of firearms in connection with marijuana collection or distribution;
  6. Preventing drugged driving or other public health issues;
  7. Preventing marijuana growth on public lands; and
  8. Preventing marijuana possession on federal property.

Although the Cole Memorandum makes clear that it will not enforce marijuana activities that do not implicate its eight priorities in states where it is legal, it still considers manufacture, possession and distribution of marijuana as a federal crime. Thus, it may be difficult for a non-citizen who has been denied a visa to invoke the Cole Memorandum as a defense in demonstrating that the proposed marijuana activities will not be considered as an unlawful activity. Until there is a federal law that legalizes specific marijuana activities, the foreign national will find it extremely difficult to be admitted into the United States to pursue such activities even in states where it is legal.

It is also likely that a consul may question one who wishes to enter to undertake marijuana activities whether he or she has personally used marijuana, which could then potentially count as an admission to a violation of a law involving a controlled substance. However, in order to count as an admission, the BIA set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). If this strict protocol is not adhered to, then a non-citizen should arguably not be considered to be have admitted to committing acts which constitute the essential elements of a law relating to a controlled substance pursuant to INA 212(a)(2)(A)(i)(II).

If the foreign national wishes to directly set up or be involved in a marijuana business in a state where it is legal, which includes its sale or distribution, this would most likely be problematic under federal immigration law. The question is whether activities that are more remote, such as a foreign national seeking to enter the United States on an H-1B visa to join an advertising firm as a creative director where one of its clients is a marijuana business in Colorado, would be considered equally problematic under federal immigration law. The H-1B worker will direct the advertising strategy for this client among several other clients, who are not in the marijuana business. Such a person seeking admission under the H-1B visa who is remotely connected to the marijuana business in another capacity should not be found inadmissible under the immigration laws.

The same reasoning should apply to a foreign national lawyer who will be employed in a New York law firm that specialized in health law. The law firm requires its lawyers to advise hospital clients in complying with New York’s Compassionate Care Act (“CCA”) – a law permitting the use of medical marijuana in tightly controlled circumstances. Under the CCA, health care providers and other entities may apply to be selected as Registered Organizations authorized to manufacture and dispense medical marijuana. The lawyer will assist clients, among other things, in applying to be selected as a Registered Organization, and would also advise thereafter with respect to compliance.

New York Rule of Professional Responsibility 1.2(d) provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client

Rule 1.2(d), variations of which are incorporated in most state bar rules of professional responsibility, is one of the most important ethical rules. It point-blank prohibits a lawyer from advising a client to engage in illegal or fraudulent conduct. Rule 1.2(d), however, provides an exception for the lawyer to discuss the consequences of the proposed illegal conduct even though it does not allow the lawyer to assist the client with respect to the illegal conduct. It would be difficult for a New York lawyer to comply with Rule 1.2(d) with respect to advising a client under the CCA, as it would require the lawyer to counsel the health care client about medical marijuana activities that the lawyer knows is illegal under federal law although it is legal under the New York law. Under the CCA, the lawyer would not be able to competently represent the client by resorting to the exception under Rule 1.2(d), which is to “discuss the legal consequences of any proposed course of [illegal] conduct with a client.” Such a Registered Organization client would require active advice regarding the manufacture and distribute medical marijuana in compliance with the CCA.

New York State Bar Ethics Opinion 1024 endeavors to resolve this conundrum for the New York lawyer by permitting him or her to “assist a client in conduct designed to comply with state medical marijuana law, notwithstanding that federal narcotics law prohibits the delivery, sale, possession and use of marijuana and makes no exception for medical marijuana.” N.Y. State 1024 took into consideration the Cole Memorandum’s potential non-enforcement of federal law in states where marijuana activities have been rendered legal. While lack of rigorous enforcement of a law does not ordinarily provide a green light for the lawyer to advise a client to engage in activities that violate the law, N.Y. State 1024 took into consideration that New York state had explicitly authorized and regulated medical marijuana, and the federal government had indicated in the Cole Memorandum that it would not take measures to prevent the implementation of state law. Accordingly, pursuant to N.Y. State 1024, a lawyer may give legal assistance to a client regarding the CCA that goes beyond “a mere discussion of the legality of the client’s proposed conduct.” Consistent with similar opinions from ethics committees in Arizona and Kings County, Washington where recreational marijuana activities have been legalized, N.Y. State 1024 held that “state professional conduct rules should be interpreted to promote state law, not to impede its effective implementation.” This is not to say that all ethics opinions are in concert with N.Y. State 1024. A recently issued Ohio ethics opinion goes the other way by limiting the lawyer’s advice to determining the scope and consequences of medical marijuana activity, which is legal in Ohio. It also goes on to state that a lawyer who personally uses medical marijuana, even if legal in Ohio, may adversely reflect on a lawyer’s honesty, trustworthiness, and overall fitness to practice law. Just as lawyers are caught in a state of flux due to the conflict between state and federal law, so are other professionals, such as Certified Public Accountants. Businesses engaging in legal marijuana activities in states where it is legal are not allowed to take business expense deductions for federal income tax purposes for activities illegal under federal law, although they have to declare income from both legal and illegal activities, but may be allowed to deduct expenses under state law.

Keeping this framework in mind, if a foreign lawyer applies for an H-1B visa to join a New York law firm that has among its clients Registered Organizations that need advice regarding compliance under New York’s CCA, would that lawyer be found inadmissible when applying for the H-1B visa at an overseas US Consulate? She should not, but if found inadmissible, this lawyer should forcefully make the case that her conduct would be found ethical pursuant to N.Y. State 1024, and thus should not be considered to be coming to the United States to engage in unlawful activity pursuant to INA 212(a)(3)(A)(ii). It is more likely that visa applicants will be denied entry if they are entering the United States to directly invest in a marijuana business, but probably less likely to be denied if they are performing activities that are more attenuated such as the New York lawyer advising compliance under the CCA or a computer professional who will be designing a social networking site for marijuana consumers. Just as some state bar ethics committees are finding ways to justify a lawyer’s conduct with respect to advising on marijuana activities deemed legal in many states, but illegal under federal law (although not always enforced if the state considers the activity legal), lawyers who represent visa applicants should also be advancing similar arguments with the immigration agencies.   Until such time that there is a change in the federal law that legalizes marijuana activities, lawyers should be pushing the envelope on behalf of clients who seek visas relating to lawful marijuana-based activities in certain states, while at the same time strongly cautioning them of the risks of adverse immigration consequences. Finally, lawyers advising such clients must carefully consult with ethics opinions in their states to determine what they can and cannot do under Rule 1.2(d).

Cyrus Mehta

Will the Disruption of the H-1B Lottery Force Change for the Better?

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A class action lawsuit, Tenrec, Inc. v. USCIS, challenging the annual H-1B lottery recently overcame a motion to dismiss, and will move forward. There is a decent chance that the plaintiffs may prevail and employers will no longer be subject to the H-1B lottery. The annual H-1B visa cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely prospect of being rejected by an opaque randomized lottery.

The lawsuit asserts that the H-1B lottery contravenes the law, and points to INA § 214(g)(3), which states that “Aliens who are subject to the numerical limitations of paragraph (1) shall be issued visas (or otherwise provided nonimmigrant status) in the order in which petitions are filed for such visas or status.” This suggests that the USCIS should be accepting all H-1B visas and putting them in a queue rather than rejecting them through a randomized H-1B lottery. The parallel provision, INA § 203(e)(1), for immigrant visas reads, “Immigrant visas made available under subsection (a) or (b) shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed…”  Although the wording of those two sections are virtually identical, the government rejects H-1B nonimmigrant visa petitions that do not get chosen in the lottery, but accepts all immigrant visa petitions and assigns a “priority date” based on the order they are filed, which in some cases is based on the underlying labor certification.  Unlike the H-1B visa, the immigrant visa petition is not rejected.  Instead, they wait in a line until there are sufficient visa numbers available prior to receiving an immigrant visa or being able to apply for adjustment of status in the United States.

The government in Tenrec, Inc. v. USCIS filed a motion to dismiss for lack of subject matter jurisdiction. In its motion, the government argued that the individual plaintiffs did not have standing because only employers have standing to challenge the H-1B program. The employers too, according to the government, did not show sufficient injury and thus did not have standing.  In a September 22, 2016 decision, Judge Michael Simon rejected the government’s lack of standing claims on both counts. Judge Simon referenced other recent federal court decisions that have ruled that foreign workers who are beneficiaries of immigrant visa petitions have been allowed to challenge their denials, and be given notice of them. This trend has been discussed in my recent blog, Who Should Get Notice When the I-140 Petition Is Revoked? It’s The Worker, Stupid! What is interesting in Judge Simon’s decision is the notion that standing can also extend to nonimmigrant workers. As the recipient of an H-1B visa can become a permanent resident through subsequently filed applications following the grant of H-1B status, there is no distinction between the beneficiary of a nonimmigrant visa petition with an immigrant visa petition. Even if the individual H-1B visa plaintiffs cannot become permanent residents, Judge Simon noted that they are still “more than just a mere onlooker” because their status would be in jeopardy and would lose an opportunity to live and work in the United States, as well as enjoy life here. Judge Simon also held that the employers had standing notwithstanding that the H-1B lottery already occurred since it was likely that the employer could lose in next year’s lottery. This holding in itself is invaluable for providing standing to nonimmigrant visa holders in future challenges even if the plaintiffs are not victorious here.

Even if the plaintiffs succeeding in knocking out the H-1B lottery, they will not be able to readily access the H-1B program. The annual H-1B cap will still be limited to 65,000 per year for applicants with bachelor’s degree, and an additional 20,000 for those with master’s degrees. It will be somewhat similar to the priority date system for immigrant visas that face years of backlogs, and the EB-2 and EB-3 India backlogs is currently several decades long. Although the underlying labor condition application of an H-1B petition is valid for only three years, under a redesigned filing system devoid of the lottery, an LCA could potentially be submitted and activated once the priority date for that H-1B petition becomes current.

While the H-1B lottery benefits employers who file many petitions each year (as they can then at least hope to win some in the lottery), there is already a wait list for most, especially smaller employers who file for one employee.  If the employer loses two or three lotteries before getting a number for that prospective employee, this in any event becomes a de facto waiting list.   The fact that some lucky ones get in the first time does not mean that most will not be subject to a wait list. While a wait list system for all will be fairer than a randomized lottery for a lucky few, it will create pressure for the administration to tweak the system or for Congress to create more access to H-1B visas. Regarding tweaking the system, I have previously argued that beneficiaries of approved H-1B petitions on the wait list should on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

The U visa serves as a case in point for my idea. Congress only granted the issuance of 10,000 U visas annually to principal aliens under INA 214(p)(2). However, once the numerical limitation is reached, the USCIS does not reject the additional U visa petition like it does with the H-1B visa under the lottery. U-1 visa grantees are put on a waiting list and granted either deferred action if in the US or parole if they are overseas pursuant to 8 CFR 214.14(d)(2). The Adjudicators Field Manual at 39.1(d) explains how the waitlist works for U visa applicants:

2) Waiting list .

All eligible petitioners who, due solely to the cap, are not granted U-1 nonimmigrant status must be placed on a waiting list and receive written notice of such placement. Priority on the waiting list will be determined by the date the petition was filed with the oldest petitions receiving the highest priority. In the next fiscal year, USCIS will issue a number to each petition on the waiting list, in the order of highest priority, providing the petitioner remains admissible and eligible for U nonimmigrant status. After U-1 nonimmigrant status has been issued to qualifying petitioners on the waiting list, any remaining U-1 nonimmigrant numbers for that fiscal year will be issued to new qualifying petitioners in the order that the petitions were properly filed. USCIS will grant deferred action or parole to U-1 petitioners and qualifying family members while the U-1 petitioners are on the waiting list. USCIS, in its discretion, may authorize employment for such petitioners and qualifying family members.

While U visa recipients already in the United States on a wait list can seek deferred action, the USCIS has also recently agreed to grant parole to U visa petitioners and family members based overseas when the 10,000 annual limitation has been reached.

Why can’t the USCIS do the same with H-1B petitions by granting beneficiaries of H-1B petitions deferred action if they are within the United States or paroling them if they are overseas, along with discretionary work authorization? The grant of deferred action or parole of H-1B beneficiaries would be strictly conditioned on certain narrow criteria.    Critics of the H-1B program, and there are many, will howl and shriek that this is an end run around the annual H-1B limitation imposed by Congress.  But such criticism could be equally applicable to U visa applicants in queue, who are nevertheless allowed to remain in the United States. Of course, a compelling argument can be made for placing U visa beneficiaries on a waiting list through executive action, who are the unfortunate victims of serious crimes, as Congress likely intended that they be in the United States to aid criminal investigations and prosecutions. While H-1B wait listed applicants may not be in the same compelling situation as U visa applicants, a forceful argument can be made that many H-1B visa recipients contribute to the economic growth of the United States in order to justify being wait listed and receiving an interim benefit.

If the administration feels nervous about being further sued by anti-H-1B interest groups, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as students who have received Optional Practical Training, be granted deferred action as wait listed H-1B beneficiaries. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf. One could also throw in a requirement that the employer register under E-Verify in order to qualify, and this would expand E-Verify to many more employers, which is one of the government’s  goals as part of broader immigration reform.

Of course, people have gotten comfortable with the status quo, but the H-1B lottery is problematic and thus not worthy of preservation. By turning the lottery on its head, it is hoped that there will be real change for the better. Ideally, Congress should bring about change by creating more H-1B visa numbers, although given that the H-1B visa program has already been poisoned due to the misconception that H-1B workers take away US jobs, other restrictions in exchange for more H-1B numbers will become inevitable, such as forcing employers to recruit before filing for an H-1B visa or by creating more restrictions on dependent H-1B employers. Still, disruption is the order of the day, and if we have witnessed seismic disruption in the taxi industry through Uber or the hotel industry through Airbnb, why not also disrupt the H-1B lottery through a lawsuit in hope for positive change? As Victor Hugo famously said – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be contributing to the United States today through their careers and tax dollars? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule?  Moreover, the new proposed parole entrepreneur parole rule is also worthy of emulation in place of  a disrupted H-1B lottery program. If deserving entrepreneurs can receive parole, so can deserving H-1B beneficiaries who are waiting in a queue that may be more fair than the lottery.  Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press this administration and the next with good ideas. The lawsuit to end the H-1B lottery is one such good idea. It should be embraced rather than feared in the hope that it will first dismantle and then resurrect a broken H-1B visa program.