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

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By:  Anand G. Sinha*

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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By Anand G. Sinha*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Cyrus Mehta

Trump vs. Outstanding Immigrant Khizr Khan

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

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

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

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

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

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

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

Cyrus Mehta

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

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

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By Cyrus D. Mehta and *Anand G. Sinha

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

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

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

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

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

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

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

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

Michelle S. Velasco

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Cyrus Mehta

Brexit and Xenophobia vs. Immigration and Innovation

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

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

As Fareed Zakaria so succinctly puts it:

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

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

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

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

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

David Isaacson

An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next

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On Thursday, June 23, the U.S. Supreme Court issued two decisions of significance to immigration law: a 4-4 affirmance without opinion in United States v. Texas, and a 5-3 decision in Mathis v. United States.  The first, which was more obviously immigration-related, is very disappointing and has rightly received a great deal of media attention, but the second is also worth noting and is somewhat more positive.

 

The Court’s evenly-divided decision – or one might say lack of decision – in United States v. Texas left standing the previous 2-1 decision of a panel of the Court of Appeals for the Fifth Circuit, which had upheld District Judge Andrew Hanen’s preliminary injunction against Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and against the related expansion of Deferred Action for Childhood Arrivals (“DACA+”).  This is quite a momentous outcome to have been reached without explanation.  As former Solicitor General Walter Dellinger has written: “It is hard to know what to say about an immigration opinion affecting 4.3 million people that reads, in its entirety: ‘The judgment is affirmed by an equally divded Court.’  Seldom have so many hopes been crushed by so few words.”

 

It has long been customary for an evenly divided Supreme Court to affirm the judgment below without offering opinions, as was done here (and has been done since at least 1909), although this is not a custom followed by all multi-member appellate courts in the United States.  The Court of Appeals for the First Circuit sitting en banc, for example, has provided opinions explaining the views of its judges when it has divided 3 to 3 in recent years and so affirmed the district courts below, as in the immigration detention case of Castaneda v. Souza, on which the First Circuit split in December 2015.  If the Supreme Court were to adopt a similar custom, one would at least have the satisfaction of knowing the reasoning behind the Justices’ votes.  In this particular case, one might also have hoped that some of the Justices who voted to affirm the Fifth Circuit could have been convinced to change their minds by a compelling dissenting opinion that they knew they would have to confront publicly, although presumably draft opinions were circulated internally, given the long lapse of time between oral argument in the case on April 16 and the issuance of decision last week.  The 4-4 deadlock, and the Supreme Court’s custom of not issuing opinions in that scenario, has left those Justices who voted to affirm the Fifth Circuit in the position of being able to do so without having to explain formally and publicly why such a position is legally coherent.

 

While it is frustrating that the injunction in United States v. Texas was affirmed without explanation and without any precedential decision, however, this does have the benefit of leaving the door open for a different outcome in the long run.  United States v. Texas could return to the Supreme Court once a 9th Justice is seated on the Court, and potentially be decided differently, in one of at least two ways.

 

First, as SCOTUSBlog pointed out soon after the 4-4 decision came down, the government can petition the Supreme Court to rehear the case, and ask that the petition be held until a 9th Justice is seated on the Court.  Former Solicitor General Dellinger also endorsed that approach in his above-quoted post at Slate’s “Supreme Court Breakfast Table”.  This would be one way for U.S. v. Texas to come back before the Supreme Court, potentially quite quickly after a 9th Justice is seated.  Under Supreme Court Rule 44, a petition for rehearing ordinarily will only be granted both “by a majority of the Court” and “at the instance of a Justice who concurred in the judgment or decision”, but it is unclear how this latter requirement could possibly be applied in the case of a 4-4 affirmance without opinion, where the Court has not issued its own judgment and there is no public record of any Justice concurring in the affirmance more than any other Justice.  Thus, it appears that an ordinary majority, presumably composed of the 4 Justices who voted to reverse plus a newly arrived 9th Justice, could grant a petition for rehearing if it were still pending when a 9th Justice were confirmed.

 

SCOTUSBlog also noted today, however, that the Court had denied one petition in another case seeking such rehearing by a 9-member Court, which may not bode well for the rehearing possibility.  Specifically, the Court denied rehearing in Hawkins v. Community Bank of Raymore, which had been the subject of an affirmance without opinion by an equally divided Court on March 22, 2016.  One might think, though, that there is a significant difference between a case like U.S. v. Texas, decided just before the end of the term and affecting national policy so substantially, and a case like Hawkins, in which the Court failed 3 months earlier to reach a conclusion regarding the questions “(1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.”  Without meaning to minimize the significance of discrimination against married women seeking credit, one might reasonably suggest that this sort of garden-variety issue of statutory interpretation does not call for unusual procedural measures to achieve a final, reasoned resolution to the same extent as the issue of the legitimacy of DAPA and DACA+.

 

Even if rehearing is not granted, it is likely that U.S. v. Texas may ultimately return to the Supreme Court, unless it is rendered moot in the meantime by Congressional enactment of comprehensive immigration reform or recission of DAPA by a hypothetical Republican President.  (Hillary Clinton, the presumptive Democratic Presidential nominee, has made quite clear that she would seek to defend and expand administrative relief such as DAPA, not rescind it.)  The injunction issued by Judge Hanen and upheld by the Fifth Circuit was a preliminary injunction, and the case would now ordinarily be expected to proceed to a trial on the merits, or at least some sort of further proceedings.  At the conclusion of such further proceedings, Judge Hanen may then issue a permanent injunction.  The grant of such a permanent injunction could be appealed back to the Fifth Circuit, and if it were again affirmed by the Fifth Circuit, the government could seek certiorari from the Supreme Court regarding that affirmance.  One hopes that by the time the case worked its way back up through the Fifth Circuit to the Supreme Court in this fashion, there will be a 9th Justice seated on the Supreme Court.

 

There has also been some speculation that a new case regarding DAPA and DACA+ could be commenced, in a Circuit other than the Fifth Circuit, which might come out differently and create a circuit split.  It may be unlikely that such other litigation, even if deemed feasible, would make it back to the Supreme Court sooner than one of the other two routes discussed above.  If there is a way to launch such other litigation despite the current national scope of the injunction against DAPA and DACA+, however, it could have other benefits: David Leopold, for example, suggests in a recent blog post that further litigation might allow DAPA and DACA+ to go into effect in portions of the United States even if not nationwide.  Achieving such a goal would be difficult, given the current nationwide injunction against DAPA and DACA+ issued by Judge Hanen and upheld by the Fifth Circuit, but it appears that some intelligent and creative attorneys may be looking to see if they can find a way.

 

Ultimately, however, it appears that the future of DAPA and DACA+ will likely depend on who (if anyone) fills the currently vacant 9th seat on the Supreme Court.  In this, as in many other things, the outcome of this November’s elections will be crucial.

 

If Hillary Clinton is elected President and the Democrats retake the majority in the Senate, the 9th Justice who would be confirmed, whether that is President Obama’s nominee Chief Judge Merrick Garland of the Court of Appeals for the D.C. Circuit or a new nominee put forward by President Clinton, would likely vote to overturn the injunction against DAPA and DACA+ if and when the case returned to the Supreme Court.  In the tragic event of a Donald Trump Presidency, on the other hand, the issue would be moot, since DAPA and DACA+ would be rescinded anyway.  In the event that Hillary Clinton is elected President and the Republicans maintain control of the Senate, one hopes that they would not attempt to block a Supreme Court nomination indefinitely, but given the current behavior of the Senate Republican majority, one cannot be sure.  Therefore, a Democratic victory in not only the Presidential election, but also a sufficient number of Senate elections to reclaim the majority (requiring a net gain of at least four seats), would give the best hope for a revival of DAPA and DACA+.  If the Democrats can also regain the majority in the House of Representatives, then the issue of DAPA and DACA+ could be rendered moot in a much more pleasant way: comprehensive immigration reform, along the lines of the Senate CIR bill S.744 that was passed by the Democratic Senate with a bipartisan majority in 2013 but denied a vote in 2013 and 2014 in the Republican-controlled House of Representatives, could become law.  Hopefully, many of the U.S. citizen relatives of those who would be affected by DAPA, DACA+, or comprehensive immigration reform will be motivated by these possibilities to turn out and vote in November.

 

Until comprehensive immigration reform becomes law or DAPA and DACA+ come into effect, however, immigration attorneys will remain on the lookout for other small pieces of good news where we can find them.  The Supreme Court’s decision Thursday in Mathis v. United States, while at first glance not about an immigration case at all, provided just such a piece of good news for noncitizens with certain types of criminal convictions.  (Since most significant criminal convictions would have precluded applying for DAPA and DACA+, the set of noncitizens who will benefit from Mathis has very little overlap with the set of those harmed by U.S. v. Texas, so it may only be from the perspective of immigration attorneys that Thursday was something of a good news / bad news situation; hopefully I do not strike the reader as too insensitive for examining the two decisions in one blog post nonetheless.)

 

Mathis was primarily a sentencing case, arising under the Armed Career Criminal Act, or ACCA.  That statute provides for harsher criminal sentences against those with certain sorts of prior criminal convictions.  ACCA has been interpreted by the Supreme Court to provide for a “categorical approach”, where what is important is what one can be certain a person has been convicted of, that is, the elements of their crime, and not other facts regarding what they may actually have done in the past.

 

In its use of the categorical approach, ACCA operates similarly to several provisions of the Immigration and Nationality Act (INA) regarding noncitizens with criminal convictions.  As the Supreme Court explained in Moncrieffe v. Holder, 569 U.S. ____, 133 S.Ct. 1678 (2013), the categorical approach, grounded in the language of immigration statutes that ask what a noncitizen was “convicted” of, “has a long pedigree in our Nation’s immigration law.”  Indeed, it goes back more than 100 years, at least back to the Second Circuit’s decision in United States ex rel. Mylius v. Uhl, 210 F.860 (2d Cir. 1914).  There are some provisions of immigration law that have been interpreted to deviate from the categorical approach, such as the $10,000 loss threshold for a fraud crime to qualify as an aggravated felony under section 101(a)(43)(M)(i) of the INA, addressed in the Supreme Court’s 2009 decision in Nijhawan v. Holder, but they are the exception, not the rule.

 

Because both ACCA cases and many areas of immigration law rely on the categorical approach, the reasoning of ACCA cases is often found to control in immigration cases.  Moncrieffe, for example, which addressed the immigration consequences of a conviction under Georgia law for possession of marijuana with intent to distribute, cited and relied upon Shepard v. United States, 544 U.S. 13 (2005), and Johnson v. United States, both ACCA cases.  (The particular ACCA provision involved in Johnson was held unconstitutionally vague by the Court, but the principles behind the categorical approach were still usefully elucidated in that case.)  Footnote 2 of the Mathis majority opinion specifically acknowledged the applicability of the categorical approach discussed in Mathis to immigration cases, citing Kawashima v. Holder, 565 U. S. 478, 482–483 (2012).

 

In both the ACCA context and the immigration context, issues have arisen regarding the application of the categorical approach to what are known as “divisible” statutes.  In effect, such statutes contain multiple separate crimes, and so one can look at the record of the conviction, using what is known as the “modified categorical approach” to determine which of these crimes applied.  The Supreme Court clarified in Mathis that this is only to be done when the difference between the components of the statute of conviction turns on a true element, a fact on which a jury would have to agree to convict, or which a defendant would have to admit in a guilty plea.  It does not apply to alternate means of commission of a crime, even if they are listed in the statute of conviction.

 

Mr. Mathis had been convicted multiple times of burglary under Iowa law, which covered unlawful entry into “any building, structure, [or] land, water or air vehicle.”  Mathis, slip op. at 5.  For ACCA purposes, on the other hand, the Court had held years earlier that a conviction only counted as “burglary” if it involved unlawful entry into a building or other structure.  The question thus became whether one could look at the record of Mr. Mathis’s conviction to see whether he had been convicted of breaking into a building or other structure, on the one hand, which would qualify as ACCA “burglary”, or breaking into a land, water or air vehicle, which would not so qualify.  Iowa case law made clear that these were merely alternative means of committing a single crime, and that a jury could convict someone of burglary without agreeing on whether the defendant had burgled a building or a vehicle.  The government sought nevertheless, however, to argue based on documents from Mr. Mathis’s prior criminal cases that he had in fact been convicted of burglarizing a house and not a vehicle.

 

In a decision written by Justice Kagan and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, the Court held that this was not permissible.  Facts on which a jury need not be unanimous are not elements of a crime, and so the Iowa burglary statute at issue was not truly divisible: it created only one crime, not many.  Because the categorical approach focuses on what the defendant was convicted of doing, and not what he or she may have actually done, one cannot pick through the record of a prior case and speculate regarding whether the jury might have agreed on something that the law did not require it to agree on in order to convict.

 

Justice Breyer, joined by Justice Ginsburg, dissented, arguing that if the record revealed that evidence supported conviction of a defendant only pursuant to one statutory word or phrase, it should not matter whether that word or phrase was termed an element or a means.  Justice Alito, writing only for himself, compared the Court’s ACCA case law to a Belgian woman who had set out for Brussels and ended up in Zagreb, Croatia, by following her GPS too unquestioningly.  Accusing the majority of “pointless formalism”, he hypothesized a lengthy plea colloquy in which a defendant admitted to burglarizing a house at “10 Main St.” in the face of lengthy questioning from the judge regarding whether this address might represent a yacht, house boat, trailer, or tent.  (The hypothetical defendant’s response to this last query was said to be, “No, it’s made of brick.  I scraped my knee on the brick.”)  Even in this case, he lamented, “[a]s the Court sees things, none of this would be enough.”

 

Before addressing some of the implications of this decision for immigration purposes, I will pause to note that Justice Alito’s lengthy hypothetical colloquy, humorous though it may be, strikes me as not really supporting his argument, and perhaps even as weakening it.  In the real world, a judge would almost never go through such a lengthy discussion of the nature of the premises burgled if that did not affect the crime of which the defendant was to be convicted or the punishment for which the defendant was eligible.  If the defendant had actually broken into a car parked right outside the garage of the house at 10 Main Street to steal money and jewelry, rather than breaking into a car parked inside the garage and the garage itself to steal the same money and jewelry, one would not expect him to start an argument with the judge, in the context of a law which made the penalty for the two versions of the crime exactly the same.  Rather, if asked whether he broke into a “structure” at 10 Main Street, there is a good chance that such a hypothetical defendant would simply say “yes”, and that would be the end of it.  To quote from Justice Kagan’s majority opinion:

 

“At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he “may have good reason not to”—or even be precluded from doing so by the court. . . .  When that is true, a prosecutor’s or judge’s mistake as to means, reflected in the record, is likely to go uncorrected. See ibid. Such inaccuracies should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.”

 

Justice Alito’s hypothetical colloquy, which I admit was quite funny, draws its humor partly from its unrealistic nature.

 

And just as the sorts of uncorrected inaccuracies to which Justice Kagan refers “should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence”, as Mathis makes clear, they also should not come back to haunt the defendant by triggering deportation.  In footnote 3 of Mathis, Justice Kagan specifically notes a scenario in which the Mathis rule will apply to immigration cases:

 

To see the point most clearly, consider an example arising in the immigration context: A defendant charged under a statute that criminalizes “intentionally, knowingly, or recklessly” assaulting another—as exists in many States, see, e.g., Tex. Penal Code Ann. §22.01(a)(1) (West Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor’s statement that he committed the crime intentionally (as opposed to recklessly) if those mental states are interchangeable means of satisfying a single mens rea element. But such a statement, if treated as reliable, could make a huge difference in a deportation proceeding years in the future, because an intentional assault (unlike a reckless one) qualifies as a “crime involving moral turpitude,” and so requires removal from the country.

 

Under Mathis, if recklessness and intentional assault are indeed interchangeable means of satisfying the same mens rea requirement under a particular statute, then for immigration purposes the statute cannot be divided between them.

 

That is, even someone who seemingly pled guilty to intentional conduct, under such an indivisible statute, should be considered as if he or she had only pled guilty to reckless conduct, because, as Moncrieffe explained, “we must presume that the conviction “rested upon [nothing] more than the least of th[e] acts” criminalized,” 133 S. Ct. at 1684.  As Mathis’s footnote 3 explains, this makes more sense than might at first glance appear, because someone convicted under such a statute would have had no reason to dispute the allegation that he or she had acted intentionally rather than recklessly—unless perhaps he or she had consulted immigration counsel prior to entering a plea.  Allowing the proverbial hairs of a state statute’s text to be split, adversely to the noncitizen, beyond the point where the distinction makes any difference under state law, would penalize those who did not have immigration consequences in mind at the time of their plea or trial.  Certainly, for a variety of reasons, all noncitizens charged with a crime should consult with a competent immigration attorney before pleading to any charge or otherwise proceeding with their criminal case, but the law should not unnecessarily and unfairly penalize those who fail to heed this advice.

 

The distinction between recklessness and intentional conduct is not the only context in which this means/elements distinction may have relevance for immigration law.  For example, attorneys whose clients have been convicted of possession of a controlled substance, under state laws covering at least some substances not federally controlled, should explore whether the identity of the substance is an element or a means under the relevant state law—whether, in order to obtain a conviction, the state is required to prove which controlled substance a defendant possessed.  If the identity of the substance is a means and not an element, then the conviction may, under Mathis, fall within the protection of the Supreme Court’s decision last year in Mellouli v. Lynch, which required a controlled substance conviction to relate to a federally controlled substance in order to cause adverse immigration consequences.  (The Third Circuit’s 2013 en banc decision in Rojas v. Attorney General rejected what it called the “formal categorical approach” in this controlled-substance context, but it is not clear that this aspect of Rojas can survive the combination of Mellouli and Mathis in states where the identity of the controlled substance is a means and not an element under state law, although we will have to wait and see how the case law develops to be sure.)  There will be other areas, as well, where a statute which lists multiple ways of committing a crime is actually indivisible under state law, and so a noncitizen is entitled under Moncrieffe and Mathis to the assumption that he or she committed the crime in whichever way is least harmful for immigration purposes.

 

Mathis is therefore good news for a significant number of immigrants, and their attorneys, even though this small piece of good news may pale in comparison to the disappointment of U.S. v. Texas and the continued injunction against DAPA and DACA+, which are bad news for substantially more immigrants.  With respect to the latter, we can hope for, and fight for, the possibility that the November elections may bring more good news.

Cyrus Mehta

Trump and the Snake

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Donald Trump is 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.  Trump most recently said that the United States should consider more racial profiling, in response to a question about whether he supported greater law enforcement scrutiny of Muslim Americans after the Orlando mass shooting. If all of these proposals were implemented, it would impede the ability of millions of temporary visa holders and immigrants to legitimately enter the United States.

This video depicting  Trump’s reading of The Snake in his rally in Greensboro, NC on June 14, 2016 is too chilling to watch, as the reading is interspersed with the ejection of a protestor amidst frenzied chants of “USA… USA”. Although the lyrics are inspired by Aesop’s fable of the Farmer and the Viper,   the lyrics appear very sinister when Trump associates them with his war on Muslims. The lyrics revolve around a tender hearted woman who rescues a half frozen snake. After the snake is rescued, he bites the woman, and when she is dying, the snake tells her that she knew very well that she took in a poisonous snake. One view regarding the moral of this fable is to teach the lesson not to expect a reward from the wicked. Another view is that the rescuer realizes that it is his own fault for pitying a scoundrel. Trump first associated these lyrics with Syrian refugees, fully realizing that almost all the refugees have genuinely escaped harm in Syria, and many have been desperate enough to even die, including children, while trying to reach safer shores.

Read the lyrics yourself to see how they have been twisted to suit Trump’s agenda:

On her way to work one morning
Down the path alongside the lake
A tender hearted woman saw a poor half frozen snake
His pretty colored skin had been all frosted with the dew
“Oh well,” she cried, “I’ll take you in and I’ll take care of you”
“Take me in oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

She wrapped him up all cozy in a curvature of silk
And then laid him by the fireside with some honey and some milk
Now she hurried home from work that night as soon as she arrived
She found that pretty snake she’d taking in had been revived
“Take me in, oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

Now she clutched him to her bosom, “You’re so beautiful, ” she cried
“But if I hadn’t brought you in by now you might have died”
Now she stroked his pretty skin and then she kissed and held him tight
But instead of saying thanks, that snake gave her a vicious bite
“Take me in, oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

“I saved you,” cried that woman
“And you’ve bit me even, why?
You know your bite is poisonous and now I’m going to die”
“Oh shut up, silly woman,” said the reptile with a grin
“You knew damn well I was a snake before you took me in
“Take me in, oh tender woman
Take me in, for heaven’s sake
Take me in oh tender woman,” sighed the snake

 Trump has even more shamelessly exploited these lyrics after the massacre of innocent LGBT party goers in an Orlando night club by Omar Mateen, who was discovered to be a Muslim and born in the United States. The snake, according to Trump, represents the Muslim immigrant who was let into the country, and who now viciously bites the people who let him in.  Even though Mateen was a US citizen by virtue of his birth in this country, Trump falsely asserted in one of his speeches that he “was born in Afghan, of Afghan parents, who immigrated to the United States.” Trump went on to add that the  “only reason the killer was in America in the first place was because we allowed his family to come here.”  While there was profiling of Muslim immigrants following the terrorist attacks on September 11, 2001, Trump’s proposals would far exceed the profiling policies that were put into place following 9/11.

Following 9/11, the Bush administration through Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized the then INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism.

The Bush Administration then implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Not a single terrorist was discovered under the Special Registration program, which proved to be a colossal waste of tax payer money and was disbanded.

Trump now wishes to take these discredited policies even further. Although there was profiling since 9/11, and every application for an immigration benefit since those attacks is viewed through the prism of national security, immigration did not stop. The basic architecture of our immigration system remained intact, and eligible applicants have been admitted while undergoing more extensive security checks.  If Trump’s proposals are implemented, there will be a complete ban on immigration from countries where there is a proven history of terrorism against the United States. Just as finding out who is a Muslim would be unclear, it is equally unclear whether this ban would include people from countries such as Syria or Pakistan, or whether it would also involve certain European countries such as France, the United Kingdom and Belgium. Would it also include countries like India or The Philippines, which sends one of the largest numbers of immigrants to the United States? The ban would cover visitors, students and people from these countries, which have all inspired terrorist attacks on its soil, who are legitimately immigrating, including spouses of US citizens. To blame immigrants for the Orlando killings goes beyond the pale, which was perpetrated by a mentally unstable American citizen who may have been inspired by terrorism but also by hate against LGBTs. And where does this stop? Trump said that if the parents were not allowed into the country, this massacre would not have happened. But what about the countless gun deaths caused by other mentally unstable US citizens?  Is Trump blaming these killers’ ancestors who may have at some point in time come from another country? Trump is inappropriately casting doubt on an entire  religion of over 1.2 billion adherents worldwide who are essentially peaceful.

While Trump’s rhetoric is frightening enough, there is ample authority in the law that would allow him to implement his proposed ban if he became President. Section 212(f) of the Immigration and Nationality Act provides in part, as follows:

(f) Suspension of entry or imposition of restrictions by President – Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or ay class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

Apart from Congress putting a check on the President’s authority under INA 212(f), and possibly the courts,  the only likely limitations on the exercise of this authority is with respect to lawful permanent residents who have taken brief trips abroad and would be assimilated to the status of a continuously-present resident under Delgadillo v. Carmichael, Kwong Hai Chew v. Colding and Landon v. Plasencia. Even they would be at some risk of being denied readmission, and would probably be better advised not to travel outside the US under a hypothetical President Trump.

The good news is that despite playing to irrational fear and reciting the lyrics of The Snake, Trump’s poll numbers have slipped. The conventional wisdom used to be that a Republican presidential candidate who was forceful on security issues would gain an advantage prior to an election. It appears that the attack in Orlando has not helped Trump, and fear mongering may have lost its appeal.  This could well change if there was another attack orchestrated by a foreign terrorist organization rather than by an unstable US citizen, but so far Trump’s war on Muslims does not seem to be helping him. After all the senseless racial profiling following 9/11, it should become pretty obvious to the American people that profiling a whole community for the acts of one person is not a good law enforcement tactic. It would only alienate the community whose members are well integrated into the American fabric and contributing to the country, and who would also be willing to cooperate with law enforcement. It is also most un-American to profile a whole community as a substitute for individualized guilt, which goes against the principles upon which this nation was founded and has set an example for scores of countries around the world.

If Trump continues to slip, it is hoped that The Snake again be viewed as a cool R&B song in the soul music genre rather than a hate anthem against Muslims.