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.

Cora-Ann Pestaina

Can a STEM OPT Student Be Employed At A Third Party Client Site?

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The most frequently asked question in response to my recent blog entitled, “A Closer Look At The Form I-983 – Training Plan for STEM OPT Students”,  is whether a STEM OPT student can be employed at a third party client site or at multiple client sites. I would argue that the answer to this question ought to be YES! Since the new rule only took effect on May 10, 2016, there isn’t yet any strong anecdotal evidence on whether Designated Student Officers (DSO) will approve Forms I-983 which set forth training to take place at client sites. However, there isn’t anything in the governing regulations that expressly forbids this type of employment.

This is a big issue for many students and employers because under the standard 12-month OPT program, the employer may employ the student in a regular job, even at third party sites, as long as the employment is related to their major area of study in the US. However, in order for the student to obtain a 24-month STEM OPT extension, the employer and student, through the submission of the Form I-983 to the DSO, must demonstrate that the student will be employed only as a trainee. The Form I-983 specifically requires the employer to attest that the student will “receive on-site supervision and training by experienced and knowledgeable staff” and that the employer “has sufficient resources and personnel to provide the training and is prepared to implement the program.” Department of Homeland Security (DHS) has made it clear in the preamble to the new regulations that the STEM OPT extension is not apt for certain types of employment arrangements which include multiple employer arrangements, sole proprietorships, employment through “temp” agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. Students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Form I-983, and the employer that signs the Form I-983 must be the same entity that employs the student and provides the practical training experience.

None of the above listed requirements prevent the employment of a STEM OPT student at a third-party client site. I would argue that the issues surrounding such employment are similar to the issues surrounding the employment of an H-1B beneficiary at a third party client site. In the case of the H-1B, the employer must also establish that a valid employer-employee relationship will exist with the H-1B beneficiary throughout the requested H-1B validity period. By now, most H-1B employers are used to the USCIS requirements published in its memo entitled, “Determining Employer-Employee for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (“the Neufeld Memo”). Under the Neufeld Memo, in considering whether or not there is a valid “employer-employee relationship,” USCIS must determine if the employer exercises a sufficient level of “control” over the prospective H-1B employee. To demonstrate control, the employer can submit various evidence including a copy of its employment agreement with the prospective employee; copies of its contractual agreement(s) with the end client where the employee will work; a letter from the end client describing its relationship with the employer and the prospective employee; sample staff evaluation forms to demonstrate how the employee will be evaluated; a clear description of how employee supervision will be conducted; a list of the various benefits provided to the employee by the employer; and so on.

I would argue that similarly, in the case of the STEM OPT student, the employer should be able to satisfactorily demonstrate its control over the student despite placement of the student at an end client site. Under the final rule, the Form I-983 must, among other things: (1) Identify the goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student; (2) explain how those goals will be achieved through the work-based learning opportunity with the employer; (3) describe a performance evaluation process; and (4) describe methods of oversight and supervision. Admittedly, having the student work at a client site makes for a more difficult case. However, if the employer already has employees at that site who can implement the employer’s training program by providing the training, on-site supervision and evaluation of the student, then the Form I-983 ought to be approvable.  The employer may face a more insurmountable hurdle in a case where the student would be its only employee stationed at the client site. In such a case it would be very difficult to argue that the employer will provide a structured and guided work-based learning experience for the student, although a case could still potentially be made for a bona fide training program if the employer has ready access at the site to supervise the trainee.

With regard to multiple worksites, in the preamble to the regulations, DHS made it clear that the Form I-983 may incorporate provisions for project, position, or department rotations that directly relate to the STEM student’s field of study, provided there will be appropriate supervision during each rotation and the employer otherwise meets all relevant requirements. Similarly, changes in client site locations can be well documented and explained upon submission of the Form I-983. New and previously unforeseen changes can always be addressed through the preparation and submission of a modified Training Plan to the DSO.

The fact that the Form I-983 must be submitted to the DSO and not to DHS is significant because with filings submitted to DHS, there is usually a filing fee and the potential for costly (time and money) rejections by an inaccessible, unseen and unknown officer. A DSO is an individual who is typically more accessible. Should the DSO not approve the initial Form I-983, there should, hopefully, be more of an opportunity for the employer and student to understand the Training Plan’s defects and to provide additional information in a new submission.

The new STEM OPT rule would allow talented students who have graduated from US universities in vital STEM fields to remain for an additional 24 months. As a result, the rule must encompass all kinds of modern work arrangements, including working at third party sites. Otherwise, entire industries, including IT, management consulting or accounting, would be deprived of engaging talented foreign students. Foreign students can also benefit by receiving training in industries whose business model relies on assigning employees to third party client sites. It is industries that rely on assigning workers to third party sites that give American businesses a competitive edge by providing them with much needed flexibility. They should not be left out from the new rule!

Cyrus Mehta

Were the DOJ Lawyers Really Unethical in Texas v. USA?

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Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.

Much has already been written about Judge Hanen’s strange order. Professor Orin Kerr questions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand  recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomsky does not even think the DOJ lawyers did anything wrong.

I completely agree. Let’s look at Rule 3.3 of the American Bar Association Model rules of Professional Conduct and the corresponding Texas Disciplinary Rules of Professional conduct, which Judge Hanen used, along with a fair sprinkling of dialogs from popular films, for finding that the DOJ lawyers were not truthful to the court. One of the cardinal ethical cannons is that a lawyer has a duty of candor to a tribunal.  ABA Model Rule 3.3 provides in relevant part:

a)  A lawyer shall not knowingly:

1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

The relevant potions of the Texas version of Rule 3.3 are similar:

a)  A lawyer shall not knowingly:

1) Make a false statement of material fact or law to a tribunal

2) Fail to disclose a fact to as tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

  ………………..

    5)  offer or use evidence that the lawyer knows to be false.

In order for a lawyer to violate Rule 3.3, he or she must have knowingly made a false statement to the tribunal. Was there such a knowing violation of Rule 3.3 here?

On June 15, 2012, the Obama administration announced DACA that allowed young people who came to the United States prior to the age of 16 and had lived continuously since June 15, 2007, and were not in a lawful status, to be granted deferred action.  On November 20, 2014, DHS Secretary Jeh Johnson issued a memo expanding DACA by changing the eligibility criteria to cover those who had come to the United States prior to January 1, 2010 instead of June 15, 2007 and by removing the maximum age limit of 31 (“Johnson Memo”). The Johnson Memo also lengthened the deferred action time from two to three years. The Johnson Memo further granted deferred action to parents of US citizens or resident children, known as the Deferred Action for Parent Accountability (DAPA), if they had arrived into the United States on or before January 1, 2010.

A group of states challenged the Johnson Memo in Texas v. USA by filing in a court in Brownsville, TX,  where Judge Hanen sat who had already expressed strong views against the Obama administration on immigration.  Judge Hanen granted a preliminary injunction on February 16, 2015 blocking DAPA and expanded DACA. Much has already been written to rebut the conclusions in this flawed decision, and the further flaw in the Fifth Circuit’s affirmation of Judge Hanen’s preliminary injunction.  The preliminary injunction order did not expressly block the original DACA 2012 program. Qualified applicants thus continued to apply for DACA 2012 benefits. Under the terms of the Johnson Memo, qualified applicants under DACA 2012 started receiving grants of deferred action for 3 years instead of 2 years as of November 24, 2014.

Prior to the preliminary injunction of February 16, 2015, in conversations between Judge Hanen and DOJ attorneys, the DOJ attorneys indicated to the court that USCIS had not taken any actions pursuant to the Johnson Memo. Although actions had been taken since November 24, 2014 to grant three year deferred action periods rather than two years, those stemmed from the DACA 2012 program. They were also well publicized.  The expanded DACA, which brought forward the entry date from June 15, 2007 to January 1, 2010, was to take effect on February 18, 2015. Thus, when DOJ attorneys denied that the government had not taken any actions regarding expanded DACA, it was well conceivable that issuing three year deferred action periods instead of two years were actions stemming from the DACA 2012 program and had nothing to do with the expanded DACA program, which had not gone into effect.

After the preliminary injunction was issued, which applied to “expansions (including any and all changes)” to DACA 2012, the DOJ filed an Advisory indicating that out of an abundance of caution it was informing the court that it had granted three year periods of deferred action under the original DACA 2012 guidelines in the event of any misunderstanding.

Given this lack of clarity, as well as the fact that DACA 2012 was never the subject of the lawsuit, could the DOJ attorneys have knowingly made a false statement to be sanctioned under Rule 3.3? This Ethics Committee of the American Immigration Lawyers Association first questioned whether this was so in 2015, but it has become even more important to assert whether there was a Rule 3.3 violation Judge Hanen’s order.ABA Rule 1.0(f) defines the terms “knowingly,” “known” or “knows” as “actual knowledge of the fact in question.” Rule 1.0(f) goes on to state that a “person’s knowledge may be inferred from circumstances.” When the DOJ attorneys were giving an assurance to the court about no action being taken, it could have well been understood to be in relation to recipients who would have become eligible under the expanded DACA, which had not gone into effect., Even the expansion of the deferred action term from two years to three years, if referred to by Judge Hanen,  could have meant to relate to those recipients who would become eligible under the expanded DACA and not relating to the granting of a three year term to qualified recipients under the DACA 2012 program, which had nothing to do with the proposed preliminary injunction. It should be noted that since DACA 2012 was not part of the preliminary injunction, the administration could have fashioned any new benefits for them, and could have theoretically issued a separate guidance memorandum articulating three year renewals rather than two years, separate from the guidance in the Johnson Memo.

Rule 3.3 also allows a lawyer to correct false statements that may have previously been made to the tribunal, which the DOJ did through the Advisory seeking clarification. Unfortunately, Judge Hanen did not view this as clarification but as a further admission that the government lawyers had deceived the court. It is hard to imagine that DOJ lawyers would have knowingly and intentionally deceived the court when three year work permits were being publically announced and given out to those eligible under DACA 2012, and it was a well publicized fact.   There was nothing to hide, and it is inappropriate for a judge to use Rule 3.3 to club not one lawyer but thousands when it was not so clear that knowing false statements had been made to the court.

Although government lawyers oppose private immigration lawyers, and often take unreasonable positions against our clients we defend, Judge Hanen’s reprimand should not be cause for celebration as such a fate could well befall a private lawyer. When there are issues of differing interpretation, involving complex immigration law and policy in hotly contested litigation, it is extremely problematic to use Rule 3.3 to accuse a lawyer for knowingly making false statements to a court or tribunal. While it is one thing for a lawyer to lose a case, it is quite another for a judge to also sanction a lawyer for ethical violations when there was no clear dividing line between an immigration program such as DACA 2012 that was not being enjoined and an expanded version of it that was being enjoined. This is especially so and rather precipitous when the case is still pending at the Supreme Court in United States v. Texas and the issues are yet to be resolved.  And when a lawyer seeks to clarify the ambiguity, as required under Rule 3.3, a judge should not use that as a basis to accuse the lawyer for deliberate deception.  Handing out sanctions for ethical violations in such a ham handed manner not only unfairly undermine a lawyer’s reputation, but create a chilling effect, and in this case demonstrates Judge Hanen’s bias and hostility towards only one of the parties in Texas v. USA.

On June 3, 2016, the government filed a mandamus action against the lower district court for exceeding its scope, with an accompanying request for a stay, essentially asserting that its lawyers did not intentionally intend to deceive the court, and any perception by Judge Hanen that there was a Rule 3.3 violation was due to miscommunications regarding the scope of the preliminary injunction. The government further complains that there was no hearing prior to the issuance of these unusual sanctions. This is a new front in the government’s battle against a district court judge that has blocked President Obama’s deferred action program, and has also imposed an unusual reprimand for alleged ethical violations. In this instance, it is hoped that the government wins the day on both fronts. A dual victory will allow deserving undocumented immigrants to remain in the United States and it will also nullify the bizarre ethics sanctions of a hostile judge, thus sending a message that ethics rules should not be arbitrarily used to club well intentioned lawyers in hotly contested litigation.

(The views in this blog are the personal views of the author, and do not necessarily reflect the views of any organization that he is part of)

Cyrus Mehta

The B-1 Visa: Trap for the Tailor, Bricklayer and Tesla Motors

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Many have gotten embroiled by the B-1 business visa in different ways. A tailor from Hong Kong who was accused of engaging in unauthorized work successfully argued that taking measurements on behalf of customers was a permissible business activity. Some years later,  a union of bricklayers successfully challenged a policy that allowed foreign construction workers to enter the United States on B-1 visas to install equipment purchased from abroad. Very recently,  electric car maker Tesla Motors got snared in a B-1 visa quagmire. The innovative company contracted with a German construction company, Eisenmann, which in turn sub contracted with a Slovenian company, ISM Vuzem,  to build a new paint shop at Tesla’s plant in Fremont, California. Vuzem  in turn facilitated the entry of a Slovenian worker, Gregor Lesnik,  on a B-1 business visa to help build Tesla’s new paint shop.  This would have gone unnoticed, but for the fact that Lesnik unfortunately suffered a serious injury.  It then came to light that he had no qualifications to oversee American workers, despite paperwork that said the contrary.

Although Tesla has not taken responsibility as it contracted with another company to build its paint shop, one frequently sees US businesses embarrassingly stumbling and tripping on the B-1 visa, which is not actually a visa that allows one to work or be employed in the United States. These stumbles also reflect the broken nature of the US immigration system that does not have pathways for businesses to legitimately and expeditiously use the skills of foreign nationals in an increasingly global economy.

The B-1 business visa remains one of the “most ill-defined” visas but still plays a crucial role in providing flexibility to businesses. While the B-1 visa is associated with visiting the United States to participate in meetings and negotiate contracts, it can have broader purposes. For instance, under 8 CFR 214.2(b)(5) and 22 CFR 41.31(b)(1), a foreign national can enter the US on a B-1 visa for “the purpose of supervision or training of others engaged in building or construction work, but not for the purpose of actually performing any building or construction work for themselves.” Lesnik availed himself of the B-1 visa under these regulatory provisions, although he did not come to the United States to supervise, but rather, simply install pipes and welding parts.

The reason why the current regulation insists that the foreign national only enter the United States on a B-1 visa to supervise and train other workers in building and construction work has its genesis in International Union of Bricklayers and Allied Craftsmen v. Meese, 616 F. Supp. 1387 (1985). In that case, the plaintiffs, a union of bricklayers and allied craftsmen, challenged the predecessor to 8  CFR 214.2(b)(5) and 22 CFR 41.31(b)(1). The predecessor was INS Operating Instruction 214.2(b)(5), which permitted a foreign national to come to the United States to “install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the U.S. or to train U.S. workers to perform such service.” This B-1 visa holder under OI 214.2(b)(5) could not receive a salary from a United States sources, except for an expense allowance or other reimbursement of expenses incidental to the temporary stay.  The plaintiffs challenged OI 214.2(b)(5) on grounds that it violated 101(a)(15)(B) of the Immigration and Nationality Act (INA), which excluded an alien who is “coming for the purpose of ….performing skilled or unskilled labor.” The plaintiffs alleged that foreign workers in Bricklayers were German nationals coming on B-1 visas to complete the installation of a gold ore processing system that was purchased from a  then West German manufacturing company, and thus violated INA 101(a)(15)(B). The plaintiffs also claimed that OI 214.2(b)(5) violated INA 101(a)(15)(H)(ii), which allowed H-2 temporary workers to come to the United States only if unemployed persons capable of performing such service or labor could not be found in the country. The Bricklayers court agreed with the plaintiffs that the OI violated both 101(a)(15)(B) and 101(a)(15(H)(ii) of the INA, and struck it down, notwithstanding the fact that the temporary construction work was incident to installing equipment purchased by a US business from a German company.

After the decision, and after another lawsuit by the Bricklayers Union in the DC Circuit Court of Appeals became moot,  legacy INS and the Department of State proposed 8 CFR 214.2(B)(5)  and 22 CFR 41.31(b)(1), which restricted B-1 entries relating to construction to only supervisory personnel, and noted the reaction of foreign countries and corporations to the Bricklayers decision:

Following the District Court’s order, which precluded the admission of even the most highly specialized technicians, the Service and the Department of State received communications from U.S. industries and foreign governments which indicated a problem of crisis proportions. Industry predicted that equipment under warranty would not be repaired or serviced, with resultant losses of investment and lay-offs of American workers, and that access to state-of-the-art foreign technology would be limited with resultant losses of competitive position. Foreign governments generally viewed this new restriction as a constraint on trade and hinted at reciprocal action.

The Bricklayers case stands in direct contrast to the Board of Immigration Appeals decision in  Matter of Hira, 11 I. & N. Dec. 824. There the BIA  held that the term “business” does not include ordinary labor for hire, but is limited to intercourse of a commercial character. The BIA concluded that a Hong Kong based tailor, Mr. Hira,  entering with a B-1 visa to “study the US business market”, who on behalf of his employer (a Hong Kong based manufacturer of custom made men’s clothing), took orders from, and the measurements of, prospective customers in the United States whom he did not solicit; and who then sent the orders, together with the purchase price, to his employer overseas, was engaged in “intercourse of a commercial character,” and was eligible for B-1 visitor for business classification. The BIA specifically stated that Hira’s sojourn in the US was of a “temporary character” and he clearly intended to continue his foreign residence at the termination of his authorized stay. The profits of Hira’s B-1 activities also accrued to the foreign entity. The BIA, however, also clarified that the nature of the business activity itself need not be temporary. The BIA held that for B-1 purposes, the business relationship may be of a continuing or long standing nature. The only condition in this respect is that each visit be temporary in duration.

Thus, in Matter of Hira, so long as the performance of skilled or unskilled labor was incident to intercourse of a commercial character, and the labor was tied to and benefitted a foreign business, it was a permissible activity under the B-1 business visa. Still, there is not much of a dividing line between Matter of Hira and the Bricklayers case. In Bricklayers, the labor was tied to and incident to  a foreign employer,  which had sold equipment to a gold mine in the United States. Matter of Hira clearly appears to be the better decision, and provides a more realistic test of dealing with the short term needs of businesses with global operations. However, with respect to foreign nationals coming to the United States for construction work, they have to be supervisors and must adhere  to 8 CFR 214.2(B)(5)  and 22 CFR 41.31(b)(1).

The B-1 visa categories, and its many variants, play an important role in filling a gap in the available visa categories for short-term, skilled and professional workers.  In addition to permitting supervisors and trainers short term entry into the United States for construction work, other versions like the “B-1 in lieu of the H-1B, “B-1 in lieu of the H-3” and the “B-1 in lieu of the J-1”  also provide for short term flexibility for professionals and trainees, and obviate the need for a US employer to file a lengthy petition that is more suitable for longer term employment in the United States. Under all of these B-1 variations, the foreign national has to remain employed by the overseas employer and cannot be paid from a US source, except for expenses. A consul will deny a B-1 visa to one who does not have an intention to return to a foreign residence outside the United States.  Critics of the B-1 visa complain that the wages paid to these workers in foreign countries is nothing compared to the wage of a comparable American worker. However, the B-1 visa is meant for very short term assignments while the foreign worker is employed overseas. Longer term employment is only possible under the H-1B or H-2B visa, which mandates that the foreign worker be paid the prevailing wage. If we do not allow such flexibility through the B-1 visa, other countries will retaliate and will not permit US workers the same flexibility in other countries, where US corporations have subsidiaries or export their products and services. At the same time, US companies that contract with foreign firms for foreign labor must perform due diligence to ensure that the foreign workers are properly using the B-1 visa, and if construction work is involved,  B-1 visa holders must be providing supervision or training rather than  performing any building or construction work themselves.

Despite the Tesla stumble with the B-1 visa, and the unfortunate injury of Lesnik, the visa should be retained and the baby ought not to be thrown out with the bath water. There are laws that exist outside the INA that protect people from being injured at a worksite,  and if they do get injured, parties responsible for the injury can and should be held liable.  Indeed, the more realistic test under Matter of Hira  rather than Bricklayers be adopted so that so that the United States can remain globally competitive by allowing business to be conducted in a seamless and flexible manner. The notion of walling off the United States from the rest of the world, which has become fashionable in many quarters these days and eerily consistent with the Bricklayers case,  will ultimately diminish the country’s ability to do business with the rest of the world.

Cyrus Mehta

USA v. OLIVAR: Conspiracy To Commit Criminal Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship

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One of the advantages of becoming a US citizen is that one is no longer susceptible to being deported from the United States, especially if the person has been convicted of a crime. While being convicted of a crime results in criminal penalties, a US citizen can at least take comfort that that there will be no removal, and the United States will continue to remain home for the convicted person.

Think again.

In United States of America v. Olivar, the Ninth Circuit Court of Appeals on April 18, 2016 upheld the revocation of citizenship of a naturalized person who was convicted of criminal conspiracy for acts undertaken prior to applying for naturalization.  Olivar, a native of the Philippines,  was naturalized as a US citizen in May 2002. In the same year, according to a Law360 story, Olivar began working at a law firm in the Los Angeles area in 2002. Seven years later, in early 2009, he was indicted on conspiracy charges in connection with a visa fraud scheme. Olivar and a second invidual recruited  people who were not authorized to work in the U.S., charging them anywhere between $1,000 and $7,500 to find a business that would sponsor them for an employment-based immigrant visa. They filed applications with the Labor Department and immigration authorities claiming the individuals would be working in skilled positions, like accountants or public relations specialists, according to Law360. The businesses allegedly never actually intended to employ the individuals, the prosecutors alleged. Olivar was also accused of helping the immigrants falsify their education and work experience if they didn’t meet the requirements for the H-1B visa, by using false diplomas, transcripts and reference letters. Olivar eventually pled guilty to conspiracy to commit visa fraud in April 2009 in violation of 18 USC 2, 371 and 1546 and was sentenced to just over one year in jail. Federal authorities later started efforts to revoke his citizenship, claiming he lacked good moral character in the five year period leading up to naturalization in May 2002 based on unlawful acts that adversely reflected upon his good moral character. These acts involved a conspiracy to commit visa fraud, which was a crime involving moral turpitude.

While this sounds Kafkaesque, it is possible to lose the coveted US citizenship if a person is convicted of a crime, based on conduct that occurred prior to naturalization. While a person only knows for certain about the crime being committed at the point of conviction, prior acts, or even an agreement to commit acts in the future, can potentially lead a court to conclude retroactively that acts prior to conviction adversely reflected on the person’s good moral character.

The Form N-400, Application for Naturalization, asks broadly “Have you ever committed a crime or offense for which you have never been arrested?” In a prior blog,  “Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?” this author puzzled on how an immigration attorney should advise a client to answer this overbroad question. It is impossible to know whether a person has committed a crime or offense, unless it is proven beyond reasonable doubt in the criminal justice system. It may thus be problematic to advise a client to admit to a commission of a crime on the N-400 application when one does not know what provision of the law was violated, and whether the applicant met all the elements of that offense. Since this overbroad question also requires admitting non-criminal offenses, it would be difficult, and frankly ridiculous,  to plumb through the memory of the client to recall every minor offense that may have been committed in this person’s life, which may include such insignificant offenses as jay walking  (a daily occurrence in New York City!) or driving above the speed limit.  Nevertheless, failure to disclose whether a person has committed a crime for which there was no charge or arrest can be used against the person if there is a conviction after the naturalization. In U.S. v. Bogacki, for example, the defendant was convicted for conspiracy to bring in and harbor aliens, make false statements, commit mail fraud and wire fraud, and fraud by misuse of immigration documents, among others, after he had naturalized. However, the government was successful in denaturalizing him for his failure to specifically mention the question about committing a crime for which you have not been arrested on the N-400 application.

In USA v. Olivar, the Ninth Circuit Court of Appeals avoided relying on this ambiguous question on the N-400 application, and instead found that he lacked good moral character during the five year period preceding his naturalization. According to the Court, “The district court made clear that the Appellant was denaturalized because he lacked good moral character during the statutory period, and did not find that Olivar should be denaturalized because he made a material misrepresentation on his naturalization form.”  What is unusual about USA v. Olivar is that he had only agreed to commit a criminal act in the future, and the essential element of conspiracy, the overt act, only occurred after his naturalization. Was Olivar a criminal during the five year period prior to his naturalization, and thus lacking in good moral character? The following extract from the Law360 story is worth noting:

During oral arguments earlier this month, his attorney, Nimrod Haim Aviad of Crowell & Moring LLP, acknowledged that authorities alleged the conspirators began discussing the visa scheme back in 2001, several months before Olivar became a citizen.

But Aviad said no one acted on the plan until after Olivar’s naturalization. So, when Olivar was sworn in as a U.S. citizen, he was not a criminal and had not committed an illegal act, Aviad argued.

“When I agree to commit an act, that does not mean that I committed it,” he said. “That is the very basic principle that underlies the law of conspiracy.”

Judges appeared to be skeptical of the argument.

“So somebody could decide to engage in four or five illegal conspiracies to smuggle drugs, smuggle aliens, do a whole bunch of stuff, and say ‘but hold off, I’m going to become a citizen next week and then we’ll start buying the guns?’” Circuit Judge Susan P. Graber asked. “And that’s okay?”

As a result of his conviction in 2009, Olivar is no longer a US citizen based on an agreement prior to his naturalization to commit criminal acts in the future, and is potentially deportable. His case is especially striking since conspiracy, in addition to proving that two or more people two or more people were in agreement to commit a crime,   also requires an “overt act” taken in furtherance of the crime.  In USA v. Olivar, the applicant could not have been accused of conspiracy during the statutory period requiring good moral character prior to naturalization as the overt act had occurred long after he had become a citizen.  This appears to be a case of first impression, and the Ninth Circuit’s conclusion seems to be at odds with the law of conspiracy. Even with respect to decisions involving deportation, the only relevant decision involving deportation as a result of conspiracy that this author found (with David Isaacson’s assistance) is Matter of T-, 2 I&N Dec. 95 (1944). In Matter of T, the respondent was found not to be deportable for a crime involving moral turpitude committed within 5 years after entry as the overt act in that conspiracy occurred prior to his entry into the United States. The respondent, however, was still found deportable for having admitted to the commission of a crime involving moral turpitude prior to this entry, but it is significant that the charge of deportability for the commission of a crime after entry was not sustained as the overt act took place prior to entry. Because the Ninth Circuit’s decision in USA v. Olivar does not appear to be crystal clear, this is not going to be the last word on whether citizenship can be revoked based on an agreement to commit a crime prior to naturalization, but where the overt act occurred after naturalization.

Cyrus Mehta

Matter of Z-A-, Inc.: Recognizing The Global Role Of The L-1A Manager In A Globalized World

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Despite the shrill rejection of globalization in the current presidential election cycle, the Appeals Administrative Office (AAO) has thankfully bucked the trend. It recently designated Matter of Z-A- Inc. as an “Adopted Decision, “which means that such a decision “establishes policy guidance that applies to and binds all USCIS employees. USCIS directs its personnel to follow the reasoning in these decisions in similar cases.”

Under Matter of Z-A-, Inc., designated as an Adopted Decision since April 14, 2016, an L-1A intra-company manager who primarily manages an essential function can also be supported by personnel outside the United States within an international organization. A USCIS officer can no longer deny L-1A classification to such a manager because he or she is not supported by personnel within the United States.  This decision recognizes that we operate in a global world, and that an organization may rely on its resources outside the United States to produce products or provide services.

The foreign national manager seeking an L-1A visa extension in Matter of Z-A-, Inc. was the President and Chief Operating Officer of the US petitioning entity whose parent company was in Japan. His duties included: directing and managing the Petitioner’s financial, legal, trade, administrative, and sales activities; establishing financial and budgetary plans and goals; reviewing and monitoring sales activities performed by the Petitioner’s sales manager; liaising with the parent company; and interacting with customers and outside service providers. The Petitioner in the US only employed a sales manager and an administrative specialist. However, eight staff members within the parent company’s headquarters in Japan also exclusively supported the work of this manager.

The key issue is whether the Petitioner established that this manager would be employed in a qualifying “managerial capacity” pursuant to INA 101(a)(44)(A). The Petitioner asserted that this manager would manage an essential function of the organization, which is permitted under the statute, as opposed to managing other personnel. A functional manager under the L-1A visa classification must primarily manager as opposed to perform the essential function, and must also be senior in the organizational hierarchy. An employee who primarily performs the tasks necessary to produce a product or a service is not considered to be employed in primarily a managerial or executive capacity. See Brazil Quality Stones, Inc. v. Chertoff,  531 F.3d 1063 (9th Cir. 2008).

The L-1A visa classification does not require the organization to employ hundreds of people. Rather, the USCIS is required to take into account the reasonable needs of the organization as a whole, including any related entities within the organization, giving consideration to the organization’s overall purpose and stage of development. See INA 101(a)(44)(C). The AAO found that since Congress created the L-1A classification to “eliminate problems…..faced by American companies having offices abroad in transferring key personnel freely within the organization,” it was reasonable for a petitioner to assert that its organizational needs include those of its related foreign components.

In the instant case, the request to extend L-1A status was denied by USCIS Service Center Director on the ground that only a small number of employees worked in the United States, who would support the manager and relieve him from performing the duties of the function. It did not address the Petitioner’s substantial evidence relating to the staff that was located at the parent entity in Japan who also supported the manager in primarily managing the essential function of the organization. The AAO reversed the Service Center’s decision on this ground by noting:

“Here the record shows that the Beneficiary, in his role as Vice President, will continue to rely on the support of the eight staff members in Japan and two employees in the United States to accomplish non-managerial duties, and that the purpose of his transfer is to oversee the short-term and long-term expansion of the Petitioner’s presence in what is a new market. Given the overall purpose of the organization and the organization’s stage of development, the Petitioner has established a reasonable need for a senior-level employee to manage the essential function of developing its brands and presence in the United States, notwithstanding that the Petitioner employs directly only two other employees in the United States.

While the Beneficiary may be required to perform some operational or administrative tasks from time to time, the Petitioner has established by a preponderance of evidence that the Beneficiary will primarily manage an essential function, while day-to-day, non-managerial tasks will be performed by a combined staff of 10 employees of the Petitioner and its parent company, located in the United States and Japan, respectively.”

In a globalized world, where people are easily connected to each other by the internet, it is no longer necessary for a manager to rely on personnel in one location, namely in the United States. It is now common for teams of personnel within one organization to easily collaborate across different countries to produce a product or provide a service using cloud technology and even able to video conference on one’s smart phone through Skype or FaceTime.  The fact that the world is flat, as famously coined by Tom Friedman, is no longer a novelty but a given in a world that has become even more hyper connected since.  Despite unrealistic calls by politicians to have operations exclusively in America, the reality is that US businesses can thrive, compete, prosper, create new jobs and benefit the American consumer through international operations, made that much easier with rapidly evolving internet technology.

Until the AAO designated Matter of Z-A- , Inc. as an Adopted Decision, it was quite common to receive an objection from the USCIS that the persons supporting the L-1A manager were not in the United States, and would therefore not count in evaluating whether this individual would be performing in primarily a managerial capacity. This sort of reasoning was not consistent with the way businesses operate today, and  put the United States at a distinct competitive disadvantage if its corporations could not quickly bring in key personnel, who in turn would be supported by resources in foreign countries. Even if it was logical and commonsensical for a manager to qualify for an L-1A on this obvious basis, some USCIS officers obstructively still denied the L-1A petition. After Matter of Z-A- Inc.’s elevation to an Adopted Decision, it now firmly binds all employees of the USCIS even if their worldview may be colored by the clarion calls of politicians who reject globalization.  In the event that a USCIS employee still goes rogue and denies the L-1A petition on such a baseless ground, it certainly provides strong grounds for an appeal.

Cyrus Mehta

Is Hillary Clinton’s Silence On H-1B Visas Golden?

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The USCIS announced on May 2, 2016 that it will be returning H-1B petitions that have not been selected in this year’s H-1B lottery. Since USCIS received 236,000 H-1B petitions subject to the quota for fiscal year 2017, which is 65,000 for regular H-1B petitions plus another 20,000 for those with advanced degrees from U.S. universities, there will be more H-1B petitions that will get rejected than accepted. The H-1B lottery undermines US employers who wish to hire talented foreign workers and it also crushes the hopes of prospective foreign workers who will no longer get an opportunity to work in the United States, and contribute to its growth and prosperity.

Presidential candidates like Trump, Cruz and Sanders have come out against the H-1B, and have promised to restrict it even further, even when the current status quo is completely unacceptable. Clinton has remained silent on H-1Bs, and this may be a good thing. Here is my take on Clinton’s position on H-1B visas that was recently published in The Economic Times, http://economictimes.indiatimes.com/nri/visa-and-immigration/is-hillary-clintons-silence-on-h-1b-visas-golden/articleshow/52057165.cms

Hillary Clinton has surprisingly not said anything about H-1B visas in her presidential campaign, unlike other candidates such as Trump, Sanders and Cruz who have come out stridently against so called H-1B abuses. The H-1B visa has become controversial since 2015 after the media reported on US workers being laid off upon American companies contracting with India-based IT firms to take over their IT functions. If Clinton does support an increase in H-1B visa numbers and understands the benefit that the H-1B program brings to US companies and to the consumer, perhaps it is strategic for her to not say anything at this point.

In the past, Clinton has spoken in support of increasing H-1B visas such as in a 2007 speech to Silicon Valley executives when she said, “I am reaffirming my commitment to the H1B visa and increasing the current cap. Foreign skilled workers contribute greatly to what we have to do in being innovators.” When Clinton was a Senator from New York in 2003 she inaugurated the offices of TCS in Buffalo. However, when America was in its worst recession in 2009, she said while visiting India, “Outsourcing is a concern for many communities and businesses in my country.”

Clinton, on the other hand, has spoken forcefully in favor of Comprehensive Immigration Reform in her campaign, which includes reforming the immigration system as a whole, and she is absolutely committed to pushing for CIR within the first 100 days of her presidency. If there is any compromise on H-1B visas as part of a deal on CIR, such as increasing the H-1B cap in exchange for imposing certain restrictions on IT companies, I believe she will go for a deal if it brings CIR into fruition.

Clinton’s silence on H-1B visas is a good sign when the visa program has become so poisoned in recent times. However, if she is pushed by Trump in the general election campaign, she may sound tougher on H-1B visas, although this may all be part of campaign rhetoric. Based on her past statements in support of H-1B visas, and her silence in this campaign, means that she will probably support the H-1B visa program if she is elected President, and will push Congress in the direction of expanding rather than curtailing the H-1B visa.

Cora-Ann Pestaina

A Closer Look At The Form I-983 – Training Plan for STEM OPT Students

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As we previously blogged about here, on March 11, 2016 the Department of Homeland Security (DHS) published a final rule amending regulations to expand Optional Practical Training (OPT) for students with U.S. degrees in Science, Technology, Engineering, or Mathematics (STEM). This new rule will take effect on May 10, 2016 and will replace the 17-month STEM OPT extension previously available to STEM students most significantly expanding the extension period to 24 months. But the new rule sets forth various requirements that must be met by schools, students and employers. In addition, it raises questions regarding how OPT will be perceived going forward.

The standard 12-month OPT program will remain intact. Eligible students can still engage in a 12-month program of OPT during or after the completion of an academic program. They can work at a regular job for any US employer for the duration of the authorized OPT period provided the employment qualifies as related to their major area of study in the US. But one of the more confusing aspects of the STEM OPT program is that even after engaging in regular employment for 12 months, a student wishing to apply for a STEM OPT extension, will have to prove, through submission of an elaborate Training Plan, that he or she will, for the next 24 months, be no more than a mere trainee! When questioned about this, DHS rejected the notion that students who have completed the 12-month OPT period should be considered “seasoned trainees” who don’t need this new Training Plan. The new Training Plan also leaves us with questions as to what will now be considered “training” as far as OPT is concerned.

In order to obtain this new 24-month STEM OPT, the employer must have an Employer Identification Number (EIN) and be enrolled in the E-Verify program. [revised 06/07/16].  The employment opportunity must be directly related to the student’s qualifying STEM degree and there must be an employer-employee relationship between the employer and the student.  Therefore, employment for staffing agencies where an employer-employee relationship is not maintained or other labor-for-hire arrangements will not qualify. [revised 06/07/16].  The student is also not permitted to engage in concurrent employment for multiple employers during the STEM OPT period but is permitted to change STEM OPT employers. Within 10 days of the employment start date, the student and the new employer must complete a Training Plan on Form I-983 and submit it to the DSO.

Let’s take a closer look at this elaborate Training Plan on Form I-983.

SECTION 1: Student Information

This section of the Form I-983 must be completed by the student and requires the student to provide information on the school recommending STEM OPT and the school where the STEM degree was earned if different from the recommending school. A student may be eligible for a STEM extension based on a previously earned STEM degree which is different from the school of most recent enrollment from which the DSO will be recommending STEM OPT. This section also requires information about the STEM degree; the student’s SEVIS number; and the dates of the specific STEM OPT requested period.

A student previously granted a 17-month STEM OPT and now seeking a new 7-month extension must have at least 150 days remaining on the 17-month STEM OPT Employment Authorization Document (EAD) on the day that the USCIS receives the application for the 7-month extension. The student must file for a 7-month extension on Form I-765, Application for Employment Authorization, between May 10 and August 8, 2016. Applications will no longer be accepted after August 8, 2016.

SECTION 2: Student Certification

By signing this section of the Form I-983, the student will certify, under penalty of perjury, that the training is related to the STEM degree and that he or she:

  • Has reviewed, understands and will adhere to the Training Plan;
  • Will notify the DSO if the employer is not providing the training as per the plan;
  • Understands that DHS may deny, revoke or terminate the STEM OPT of students who it determines are not engaging in the training under the plan; and
  • Will notify the DSO at the earliest opportunity of any material changes or deviations from the Training Plan.

If there are material modifications to or deviations from the Training Plan during the STEM OPT extension period, the student and employer must, within 10 days of the change, sign a modified Training Plan reflecting the material changes, and the student must file this modified Training Plan with the DSO at the earliest available opportunity. Material changes include any change of EIN resulting from a corporate restructuring; any reduction in compensation from the amount previously submitted on the Training Plan that is not the result of a reduction in hours worked; and any significant decrease in the hours per week that a student will engage in the STEM training opportunity. DHS has explained that, basically, a material change is any change from the existing Training Plan that would render an employer or student’s attestation inaccurate, or render inaccurate the information in the Training Plan on the nature, purpose, oversight, or assessment of the student’s practical training opportunity.

SECTION 3: Employer Information

This section of the Form I-983 must be completed by the employer and requests basic information such as the employer’s name, address and number of employees. The employer must indicate the number of hours of work per week, which must be at least 20 hours (except when the student is granted leave under the employer’s standard leave policy, e.g. vacation or sick days) and the offered compensation.

An unpaid, volunteer position may not form the basis of a STEM OPT extension. However, DHS has interpreted “compensation” to include wages and other forms of remuneration, including housing, stipends, or other provisions typically provided to employees. The total compensation must be commensurate with that typically provided to US workers possessing similar skills and experience, and performing similar duties.

SECTION 4: Employer Certification

By signing this section of the Form I-983, the employer will certify, under penalty of perjury, that:

  • The Training Plan has been reviewed and understood and will be followed;
  • The DSO will be notified of any material changes;
  • The termination or departure of the student during the authorized OPT period will be reported to the DSO within 5 business days;

DHS has determined that an employer “knows” a student has left the OPT opportunity once that student has not reported for training for 5 consecutive business days without the employer’s consent. Business days do not include federal holidays or weekend days.

In this section of the Form I-983, the employer also certifies that it will adhere to all regulatory provisions that govern the Training Program. These include:

  • The student’s practical training is directly related to the STEM degree that qualifies the student for the STEM OPT extension;
  • The student will receive on-site supervision and training by experienced and knowledgeable staff;
  • The employer has sufficient resources and personnel to provide the training and is prepared to implement the program;
  • The student will not replace a full-time, temporary or permanent US worker and the terms of conditions of the students employment are commensurate with similarly situated workers; and
  • The training complies with all applicable Federal and State employment requirements.

DHS has explained that the barred “replacement” of U.S. workers refers to the loss of existing or prior employment. The employer is not barred from discharging an underperforming employee simply because it also hired a STEM OPT student. DHS states that it will look at the totality of the circumstances to assess compliance with the non-replacement certification.

This section of the Form I-983 also sets forth that DHS may, at its discretion, conduct a site visit of the employer to ensure that the Training Program’s requirements are being met and that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with the Training Plan. DHS may contact the employer, the student or the DSO in person or via telephone or email to obtain information. Based on previous on-site-reviews of schools, DHS estimates that an employer site visit may include review of records and questions for the supervisor, and will take five hours per employer. DHS will provide notice to the employer 48 hours in advance of any site visit, unless the visit is triggered by a complaint or other evidence of noncompliance with the STEM OPT extension regulations, in which case DHS may conduct an unannounced site visit. Immigration and Customs Enforcement (ICE) currently intends to use federal employees for the site visits. There may be times when contractors accompany federal employees, but ICE currently intends that federal employees will be in charge of such visits.

SECTION 5: Training Plan for STEM OPT Students

In this section of the Form I-983, the student and the employer must enter the contact details of the individual who will be responsible for monitoring the student’s goals and performance and must describe:

  • What tasks and assignments the student will carry out during the training and how these relate to the STEM degree;
  • The training curriculum and timeline including the specific goals and objectives of the program;
  • The specific skills, knowledge and techniques the student will learn or apply;
  • How the student will achieve the goals;
  • How the employer will provide oversight and supervision; and
  • How the employer will measure and confirm whether the student is acquiring new knowledge and skills.

SECTION 6: Employer Official Certification

Here the employer must certify, under penalty of perjury that:

  • It has reviewed, understands and will follow the Training Plan;
  • It will conduct the required periodic evaluations of the student; and
  • It will notify the DSO regarding material changes or deviations from the Training Plan.

The employer’s official who signs this section of the form need not be the same person who signed on behalf of the employer in section 4.

Also on the Form I-983, the student must provide a self-evaluation which the employer must review for accuracy and sign. DHS states that the student evaluation is intended to confirm that the student is making progress toward his or her training objectives and it differs from typical employer evaluations which focus more on how well an employee is performing his or her duties. Evaluations must be completed every 12 months (i.e. at the 1 year mark and at the end of the 24 month STEM OPT period) as DHS believes that this better reflects normal employer practices where annual reviews are standard. Any appropriate individual in the employer’s organization with signing authority can sign the evaluations that the student will submit to the DSO.

USCIS will begin accepting applications for a 24-month extension on May 10, 2016. The student must submit the completed and executed Training Plan to the DSO and obtain a newly endorsed Form I-20 recommending the 24-month STEM extension. The student must file an application for employment authorization within 60 days of the DSO’s endorsement and no more than 90 days before the 12-month EAD expires. Students will get an automatic 180-day extension of their work authorization if their initial 12-month OPT EAD expires while the STEM OPT EAD application is still pending.

There may be some hiccups ahead as students, employers and DSOs get used to the new rule. DHS has expressed its awareness of the fact that the new requirements will require training to ensure that all affected parties understand their role in the process. But DHS has also expressed its confidence in the abilities of DSOs to review Training Plans and has clarified that the DSO need not possess technical knowledge of STEM fields of study or conduct additional outside research into a particular employer but need only confirm that the Training Plan (1) explains how the training is directly related to the student’s qualifying STEM degree; (2) identifies goals for the STEM practical training opportunity, including specific knowledge, skills, or techniques that will be imparted to the student, and explains how those goals will be achieved through the work-based learning opportunity with the employer; (3) describes a performance evaluation process to be utilized in evaluating the OPT STEM student; and (4) describes methods of oversight and supervision that generally apply to the OPT STEM student. The DSO should also ensure that all form fields are properly completed. DHS will find that the DSO has met his or her obligation under the rule if the Training Plan meets these requirements. DHS believes that its power to conduct site visits; request to review Training Plans; withdraw DSO certifications; and withdraw a school’s participation in the F-1 program will provide the necessary checks to ensure the new program’s success.

The new STEM OPT Training Plan effectively changes the way OPT has been viewed previously and also could potentially create contradictions. As previously mentioned, a student under the 12-month OPT need not have submitted to such an elaborate Training Plan, but now during the STEM OPT extension phase, would have to revert to being a trainee rather than an employee. This Training Plan would also stymie students who have created their own startups. While students may be employed by start-up businesses on STEM OPT, students may not provide employer attestations on their own behalf. Therefore, a self-employed entrepreneur and sole founder of a business with no employer-employee structure would need to make modifications to the business model in order to meet the STEM OPT requirements. It also remains to be seen whether STEM OPT would have to imitate the standard under the J-1 and H-3 visa programs, where productive work has to be incidental to the training. It would be completely contradictory if a student during the 12-month OPT could engage in productive work, but to be granted a STEM OPT extension would have to forego productive work in favor of training, as imposed under the H-3 and J-1 programs. It is hoped that DHS does not emphasize too much on training, recognizing that foreign students who have graduated in STEM fields ought to be able to unleash their talents in creating innovative startups that will lead to economic growth, change business models and paradigms, resulting in new job opportunities for thousands if not millions of American workers.