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.

 

Cyrus Mehta

Preemption of Arizona Driver’s License Policy Provides Another Basis for Supreme Court to Uphold President’s Deferred Action Programs

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On August 15, 2012, when the Deferred Action for Childhood Arrival (DACA) program took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an employment authorized document (EAD) issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus to DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Act Coalition v. Brewer held that these arbitrary classifications defining authorized status were preempted under federal law and has finally put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court also found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. The latest ruling permanently enjoins Arizona’s policy of depriving DACA and other deferred action recipients driver’s licenses, following an earlier ruling that affirmed a preliminary injunction of the same executive order.

While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Arizona Dream Act Coalition thus provides another basis for the Supreme Court in United States v. Texas to uphold the expanded deferred action programs as part of President Obama’s November 20, 2014 executive actions, especially the Deferred Action for Parental Accountability (DAPA) and extended DACA. There is simply no difference between an EAD granted under DACA as an EAD granted based on an application for relief, such as adjustment of status or cancellation or removal. Indeed, it is INA section 274A(h)(3), which provides the authority for a granting of EADs under both DACA and based on application for adjustment of status or cancellation of removal. According to the Ninth Circuit ruling, “DACA recipients and noncitizens with (c)(9) and (c)(10) EADs all lack formal immigration status, yet the federal government permits them to live and work in the country for some period of time, provided they comply with certain conditions.”

INA 274A(h)(3) provides:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General

If INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit in Texas v. USA for the purpose of justifying a grant of EADs under DAPA ,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a is that the authority for most of them has always been thought to stem from INA 274A(h)(3). While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA and extended DACA as part of its broad authority to exercise prosecutorial discretion, and its authority to grant EADs under INA 274A(h)(3). While on first brush Texas v. USA is not a preemption case, the  Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately, which can be deployed to preclude states from opposing this federal authority under dubious standing theories:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The Ninth Circuit, on the eve of oral arguments to be presented before the Supreme Court on April 18, 2016 in United States v. Texas, has provided added impetus for the upholding of President Obama’s deferred action programs. A grant of an EAD under DACA or DAPA is not any less than a grant of EAD to an applicant seeking lawful status through an adjustment of status application or by seeking cancellation of removal. All of these EADs stem from INA 274A(h)(3), which ought to be upheld as a legal basis for the executive to grant work authorization to noncitizens as part of its discretionary authority. Moreover,  it should also not make a difference whether the EAD stems from an application that would ultimately result in permanent residence, such as adjustment of status or cancellation of removal, or through a grant of deferred action. The executive branch has equal authority to grant adjustment of status or deferred action, provided certain conditions are met, from which separately ensue EADs to a noncitizen. The latest Ninth Circuit ruling in Arizona Dream Coalition could not have made this clearer.

Cyrus Mehta

Can The H-1B Visa Be Saved Through Executive Action?

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The annual H-1B VISA cap forces employers to scramble way before the start of the new fiscal year, which is October 1, to file for H-1B visas, only to face the very likely project of being rejected by a randomized lottery. This is no way to treat US employers who pay thousands of dollars in legal and filing fees, along with all the steps they need to take in being in compliance. The whole concept of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style of lottery into the process, makes the process even more unfair. Under the lottery, unsuccessful H-1B petitions may be every year with no guarantee of being selected. In fact, notwithstanding recent criticisms, the H-1B visa program has a positive impact on jobs, wages and the economy. Unfortunately, this time too, it is predicted that there will be far more H-1B visa petitions received when compared to the 65,000 H-1B visa cap plus the additional 20,000 H-1B cap for those who have graduated with advanced degrees from US universities. To have only less than a 30% chance to secure an H-1B visa number under the 65,000 cap renders the program totally unviable for employers and H-1B visa applicants.

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

Renison is contemplating filing a class action to challenge the H-1B visa lottery under 8 CFR 214.2(h)(8). I commend him for this initiative, and now take the liberty to propose an even more audacious idea, building upon his brilliant idea. If he is successful in getting USCIS to cease the H-1B lottery process, and accepting all H-1B petitions and placing them in a queue, then the USCIS should approve such petitions prior to placing them in a queue, but only allowing either the grant of an H-1B visa or a change of status to H-1B when a visa number becomes available. However, beneficiaries of approved H-1B petitions on the wait list should also on a case by case basis be given the opportunity to apply for interim immigration benefits such as deferred action or parole.

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

2) Waiting list .

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

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

If the administration feels nervous about being further sued, after being forced to dismantle the H-1B lottery, perhaps it can limit the grant of deferred action or parole to those H-1B wait listed beneficiaries who can demonstrate that their inability to be in the United States and work for their employers will not be in the public interest. Or perhaps, those who are already in the United States, such as STEM (Science, Technology, Engineering and Math) students who have received Optional Practical Training, and are making significant contributions, be granted deferred action as wait listed H-1B beneficiaries. Such deferred action should only be granted if they are well within the three year term of the approved H-1B petition. If the administration wishes to narrow the criteria further, it could give preference to those H-1B beneficiaries for whom the employer has started the green card process on their behalf.

While this proposal will likely not get a standing ovation on first brush, and the best solution is for Congress to either expand the H-1B cap or get rid of it altogether,  it is important to take comfort in Victor Hugo’s famous words – “Nothing is more powerful than an idea whose time has come.” Who would have imagined a few years ago that those who had come to the United States prior to the age of 16 and were not in status would receive deferred action and be flaming successes today? Or who would have imagined that H-4 spouses could seek work authorization or that beneficiaries of I-140 petitions who are caught in the green card employment-based backlogs are likely to be able to apply for work authorization, even if the circumstances are less than perfect, under a proposed rule? Of course, it goes without saying that executive action is no substitute for action by Congress. Any skilled worker immigration reform proposal must not just increase the number of H-1B visas but must also eliminate the horrendous green card backlogs in the employment-based preferences for those born in India and China.  But until Congress acts, it is important to press the administration with good ideas, and to build upon brilliant ideas proposed by others. Good ideas never disappear, and have the uncanny knack of resurfacing again and again, until they come into fruition to benefit deserving immigrants who contribute to America.

Cyrus Mehta

Will Avvo Disrupt Immigration Law Practice Like Uber Has Disrupted Taxis?

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Plenty of traditional industries are being disrupted these days. Uber has disrupted the taxi industry and Airbnb has done the same with the hotel industry. The legal industry is not immune from disruption and there are likely to be seismic changes in the practice of law in the near future. This has already happened with Legal Processing Outsourcing, but further changes are expected.

With the proliferation of low cost do it yourself websites and services, the American Bar Association adopted the ABA Model Regulatory Objectives for the Provision of Legal Services on February 6, 2016, which includes among its objectives the protection of the public along with the meaningful access to justice as well as affordable and accessible legal services. The ABA resolution gives a green light to state bar regulators to implicitly give recognition to such services by regulating them, resulting in more lawyers collaborating with Non-Legal Organizations (NLOs). This in turn would challenge the current ethical framework that precludes lawyers from fee splitting or entering into partnerships with non-lawyers under ABA Model Rule 5.4.

Avvo has already started challenging the status quo by rolling out Avvo Legal Services, which offers a fixed-fee and limited scope legal services, including immigration services, through a network of attorneys. One of the immigration services Avvo offers is a “family based green card” for $2995 that involves preparing and filing the requisite forms, but no representation at an adjustment of status interview or to respond to a Request for Evidence.  The consumer pays  $2995 to Avvo  directly, but may choose the attorney in the Avvo network that they want to work with. That attorney has 24 hours to directly contact the consumer/client, and do the work as they would any other client. When the work is completed, Avvo releases the funds to the attorney, and in a separate transaction withdraws from the attorney’s account a $400 marketing fee [revised 3/26/2016].

Under this unique business model, the immigration attorney is contracting with Avvo as a vendor to gain clients and business through its superior marketing reach. Avvo views this new service as benefitting both lawyers and clients. The lawyer will rely on Avvo to get business and also get paid easily, without keeping track of billable hours or worrying about trust accounts. It would also help lawyers build their practices as it would lead to further work by the same client, according to Avvo.  The client is also benefitted as s/he will get access to a legal service that is both affordable and fixed, and will also understand exactly what legal service is being purchased. It should be noted that while ABA Model Rule 1.2(c) allows a lawyer to limit representation and unbundle services, the limitation must be reasonable and the client must give informed consent.

The key ethical issue that first strikes the astute observer is whether this is an impermissible fee splitting agreement between the attorney and Avvo. Josh King, Avvo’s general counsel, has argued that it is not fee splitting because the marketing fee is paid as a separate transaction and is not a percentage of the legal fee. Is this any different from paying for Google AdWords or a fee to run a radio commercial? On the other hand, the client pays Avvo $2,995 and Avvo indirectly [revised 3/26/2016] keeps a part of it, which is a percentage of the fee that the client has paid towards processing the green card case. And so, if something looks like a duck, swims like a duck and quacks like a duck, it is indeed a duck; and in this instance, it is indeed fee splitting. Avvo was started by Mark Britton, former General Counsel to Expedia. Avvo is like Expedia—if I am buying an airline ticket through Expedia I am paying Expedia but they are sending it to the airline minus a fee for the service. Whether ABA Model Rule 5.4 allows this, we can’t say for sure, but Avvo is betting several hundred thousand dollars that they do. Avvo also claims that the consumer is not being harmed and any restriction to its business model could also be an infringement of lawyer free speech. The jury is not yet out on whether this business model is ethical, but there are many immigration attorneys who are part of the Avvo network to provide an assortment of unbundled immigration legal services.

Will Avvo disrupt the traditional legal model where a client seeks out an immigration lawyer based on his or her reputation rather than on a web-based network, and the attorney sets the fee? This author bets that Avvo is unlikely to disrupt the traditional model, at least not as yet, even if it is ethical. A “family-based green card” is not like buying an airline ticket, where you know that a seat in economy be it in row 25 or row 45 will be the same. If the airplane goes through turbulence, the ride will be equally bumpy in any seat of the aircraft. But unlike an airline ticket, there are many traps and pitfalls in family-based immigration practice, even when it appears relatively straight forward. One’s eligibility for adjustment of status based on a marriage to US citizen spouse is also subject to variables. If the client’s arrival in the US was not through a straight forward inspection at a port of entry, then the case immediately becomes more complex. If the client is potentially inadmissible for a host of reasons, including potentially claiming to be a US citizen when seeking employment many years ago,  that too would throw out of the window the Avvo  $2,950 the family based green card package. The client will disappointingly realize that the Avvo family green card package and price is virtually meaningless, and would rather seek out an attorney who has the reputation and expertise to handle difficult family-based immigration cases. There are other variations even if the client appears prima facie eligible to adjust status. The marriage may have been bona fide at its inception, but the spouses are quarreling and living separately, and still desire to cooperate on the green card for the sake of the children. This too requires the agile immigration attorney to appropriately advocate for the client by educating the USCIS examiner, who may at first cry foul, that the marriage presently need not be viable so long as it was bona fide at its inception. See Matter of Boromand, 17 I&N Dec. 450 (BIA 1980); Matter of McKee, 17 I&N Dec. 332 (BIA 1980).

If I am proved wrong and Avvo catches on and attorneys on Avvo attract more clients than those who are not, then others can do it better than Avvo rather than remain complacent like Blackberry did, especially a non-profit bar association that may have reputed attorneys on its roster, and be able to provide the adequate disclaimers and caveats. But if there are too many disclaimers and caveats, which is generally the case with an immigration matter, then I can still see a client preferring to seek out the best attorney for his or her complex family-immigration case, where a fixed price may not be an issue, rather than resort to the Avvo model. There are bound to be other disruptions in the legal industry, such as non-lawyers being licensed to handle certain immigration cases or perhaps someday robots with artificial intelligence displacing the lawyer, but Avvo may not be as disruptive to immigration lawyers as Uber has been to taxi drivers.