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.

 

 

 

 

Cyrus Mehta

The Ethical Obligations of a Lawyer Who Represents a Three Year Old Child

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There has been a justifiable sense of shock and outrage after a senior immigration judge testified in a legal proceeding that three and four year olds could represent themselves in complex removal proceedings. This is precisely what Immigration Judge Weil said in a deposition on behalf of the Department of Justice:

I’ve taught immigration law literally to three year olds and four year olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.  

The Immigration Judge repeated this same assertion two more times during the deposition. These ludicrous assertions have now gone viral, and there has been much eloquent protest, although immigration attorney Amber Weeks’ takes the cake when she tried to test these assumptions on her own three year old child, and this is what she found:

I happen to have a three year old daughter, so I interviewed her to test the theory of whether she could answer even the most basic questions to represent herself in immigration court. Where were you born? Where were your parents born? Where do you live? Where would you like to live? Not legal questions, but just basic questions that a kind and thoughtful judge would want to know before deporting a child (See first video below.) Although hilarious, her candid answers are heart-wrenching when I consider where unrepresented children in immigration court will end up.

Not much has been written in the aftermath of this incident about a how a lawyer ought to handle this situation, especially if he or she had a three year old as client. Unfortunately, at the outset, most unaccompanied children are not provided legal representation, and even if they are older than three year old, ought to be provided with a lawyer as they are many times more vulnerable than an adult. The Board of Immigration Appeals in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), has already held that for a respondent to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.  The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses. When a respondent in removal proceedings is incapable of participating, the court must provide adequate safeguards, including ensuring legal representation.  It is readily obvious that a minor may not be able to participate in a proceeding; but unfortunately the Matter of M-A-M- safeguards are not being applied to minors who need them the most, especially a three year old!

Assuming the three year old has the privilege of having a lawyer, what are the lawyer’s ethical obligations when representing such a client? The lawyer is guided by ABA Model Rule 1.14, as adopted in state bar ethical rules of professional conduct:

Rule 1.14 Client With Diminished Capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Rule 1.14, at the outset, instructs a lawyer to maintain a normal lawyer-client relationship as far as possible. Thus, to the extent that a client with diminished capacity is capable of making competent decisions, including a child, the lawyer must follow them. Comment 1 to Rule 1.14 states, “For example, children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody.”   A lawyer may seek help from a family member or others in communicating with a client with diminished capacity; and according to Comment 2 to Rule 1.14, the presence of such persons does not affect the applicability of the attorney-client privilege. When a lawyer represents a child, all the other ethical obligations that a lawyer owes to a client trigger, such as the duty to provide competent representation (Rule 1.1), be diligent (Rule 1.3), avoid conflicts of interest (Rule 1.7) and to adequately communicate with the client (Rule 1.4). In fact, there is a heightened duty to communicate with a child client in a way that the child will be able to properly understand the removal proceeding and make informed decisions.

Still, just because a child is older does not absolve the lawyer to ensure that the child is not at risk of harm. Even a twelve year old child, especially one who has suffered trauma or abuse, is extremely vulnerable and is at risk of being harmed by not being capable of making appropriate decisions in a removal hearing. Of course, compared to a twelve year old, a three year old will be far more vulnerable.  Under the next prong, 1.14(b), a lawyer is allowed to take reasonable protective action on behalf of the client when the lawyer reasonably believes that the client is at risk of harm and cannot adequately act in his or her own interest. This is doubtlessly going to apply to any minor, but more so with a three year old.  The lawyer may consult with parents, other family members or individuals and entities that have the ability to protect the child, and if necessary, even seek the appointment of a guardian ad litem or guardian.

A three year old is likely to be eligible for Special Immigrant Juvenile (SIJ) relief, assuming a court can make a finding of neglect or abandonment based on unification with one or both parents not being viable, or if the child has been placed in the custody of a state agency or individual or entity.  Assuming the child is not eligible for SIJ, and there is no other relief against removal, the attorney representing the child must make every effort to invoke the protections under Matter of M-A-M, and argue that such a child is unable to comprehend the nature of the proceeding and either seek termination or administrative closure of the removal proceeding. Still, the attorney, as part of taking protective action, can seek asylum on behalf of the child, assuming that there is objective evidence that the child will fear harm or the child has already suffered past persecution based on one of the protected grounds for asylum. Even if a child will  not be able to testify credibly, the BIA in Matter of J-R-R-A, 26 I&N Dec. 609 (2015) allowed a client with diminished capacity to nevertheless testify regarding his or her subjective fear, while there was credible objective testimony. This can get further complicated when the child’s parent or guardian wishes to take the child back to the home country, and the lawyer knows that the child will be harmed in that country. When a child is twelve, it is easier for the lawyer to maintain a normal lawyer-client relationship,  and abide by that child’s informed decision. It becomes much harder when the child is only three  years old. Under these circumstances, the lawyer must take protective action by seeking the intervention of child protection agencies and the like. Comment 9 to Rule 1.14 clarifies: “In an emergency where the health, safety or a financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm, a lawyer may take legal action on behalf of such a person even though the person is unable to establish a client-lawyer relationship or to make or express considered judgments about the matter, when the person or another acting in good faith on that person’s behalf has consulted with the lawyer.” Of course, all this begs the question as to why a non-citizen child should be put into adversarial removal proceedings  in the first place where a hostile government lawyer can sharply cross examine a child, and there are no readily available provisions for the appointment of counsel,  a guardian ad litem or child advocate.

Although the current governmental policy of not providing a child with legal representation in an imperfect immigration court setting constitutes a horrific gap in due process, the presence of a lawyer while an improvement does not necessarily solve the child’s conundrum who is in removal proceedings. Rule 1.14 does not provide an attorney with all the answers, and is far from perfect. The attorney must use the tools provided under Rule 1.14, along with all the other ethical rules, AILA’s Ethics Compendium Module on Rule 1.14   as well as a good dose of judgment and common sense, to find the optimum way to competently represent and protect the vulnerable child.

Cyrus Mehta

Senator Grassley “Hacks” The H-1B Visa For Foreign Entrepreneurs

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The H-1B visa program is in trouble. It has become everyone’s favorite whipping boy. Critics rail against the H-1B for bringing in so called cheap labor to the US, but ignoring the fact that an employer is required to pay the prevailing wage set by the Department of Labor. Some of the wages mandated by the DOL at www.flcdatacenter.com are unusually high. Take for example the position of Marketing Managers in New York City. A Marketing Manager on an H-1B visa would need to be paid an entry level wage of $108,493 year. The level two wage is $144, 123 per year, the level three is $179, 774 per year and level four is at a whopping $215, 405 per year. This is hardly cheap labor. The employer on top of these wages must also pay costs towards the H-1B visa including lawyer fees and excessively high filing fees in excess of $6,000. If the employer is dependent on H-1B or L workers, it has to additionally pay a super fee of $4,000. Only an employer who wishes to employ a highly skilled foreign worker will go through all the expenses, as well as all the regulatory procedures, under the H-1B visa.

The H-1B visa serves as the main entry point for a skilled foreign worker to aspire to work and immigrate to the United States. There already exists a shortage of H-1B visas with a meager annual cap of 65,000 plus another 20,000 for those with advanced degrees from US universities. If the H-1B visa is further restricted, there will be no entry point whatsoever. Foreign students graduating from top US universities will not get a chance to work and remain in the United States. The immigration system is already broken because of restricted pathways for non-citizens to acquire permanent residency, resulting in backlogs lasting decades. If the entry point through the H-1B visa is cut off, then we will truly have an unworkable immigration system that will no longer attract talent to the United States.

To rub further salt in the wound, Senator Grassley on February 26, 2016 wrote an angry missive to USCIS Director Leon Rodriguez protesting the use of the H-1B visa by entrepreneurs, which he likens to one who tries to “hack” the H-1B program. This is in direct contradiction to the USCIS’s well intentioned Entrepreneur Pathways portal that provides guidance on legitimate ways a founder can apply for a nonimmigrant visa through his or her own startup. According to Grassley, this is abusive and illegal, but he is wrong. Note that there is no independent startup visa in our immigration system, although America has spectacularly succeeded off the success of entrepreneurial ventures, many of which have been founded by people who were not born in the United States. Sergey Brin of Google is a prime example. Startups have to compete with more established companies within the immigration system, and where there is already a bias against the small business. A startup may be even more rudimentary than an established small business and thus more susceptible to being viewed as a fraudulent artifice. Startups may not yet be generating a revenue stream as they are developing new technologies that may lead to products and services later on. Many have received financing through venture capital, angel investors or through “Series A and B” rounds of shares. Startups may also operate in more informal spaces, such as the residences of the founders (with regular meetings at Starbucks) instead of a commercial premise. Some are also operating in “stealth mode” so as not to attract the attention of competitors and may not display the usual bells and whistles such as a website or other marketing material. Startups may also not have payroll records since founders may be compensated in stock options. Still, such startups are legitimate companies that should be able to support H-1B, L, O or other visa statuses. While, in the past, USCIS has often been accused by critics of harboring a systemic bias against small business, the Entrepreneur Pathways portal provides guidance for USCIS offices to adjudicate such H-1B petitions more favorably.

Grassley has now thrown the wrench into the works of such an entrepreneur trying to “hack” an H-1B visa. My esteemed colleague Tahmina Watson clarifies in a news article that Grassley misinterprets “hack”, which in the tech world “is a word of respect in which one finds a solution to a complicated problem.” Grassley even has the chutzpah to accuse established universities of colluding with entrepreneurs. Unfortunately, his letter is not backed up by the black letter INA provisions which support these sorts of collaborations between universities and entrepreneurs under the H-1B visa.

Under INA 214(g)(6), it is permissible for an entrepreneur to be employed by a cap-exempt employer such as a university on a part-time basis and then be able to obtain an H-1B, without being counted under the annual H-1B cap, through his or her own startup. Under INA 214(g)(5), an H-1B worker who is sponsored through a startup entity is not counted under the H-1B cap lottery if he or she is employed “at” a cap-exempt institution of higher education or is employed “at” a non-profit affiliated to an institution of higher education. While it is true that 8 CFR § 214.2(h)(4)(ii) requires the existence of an employer-employee relationship for the H-1B visa through a startup, this includes indicia such as the employer’s ability to “hire, pay, fire, supervise, or otherwise control the work of such employee.” It is the Neufeld Memo that elevates the right of control over all the other factors set forth in the regulation. Still, it is possible to invoke old decisions that recognize the separate existence of the corporate entity. It is well established that a corporation is a separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if he or she has a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the US.

Difficult as it already is to gain an H-1B through a startup, Senator Grassley is needlessly thwarting the intent of Congress under the H-1B visa program to attract entrepreneurs who will only benefit the country. And this is being done when we have such a paltry number of visas. With respect to H-1B filings under the FY2017 H-1B cap, some are of the opinion that there will be fewer H-1B filings because of the increase in the super fee from $2,000 to $4,000 and also since the F-1 Optional Practical Training program is vulnerable to attack in litigation. I completely disagree. The increase in the fee to $4000 will not deter certain employers dependent on H-1B or L employees from filing H-1B cases as there still continues to be a lack of skills in the US workforce,  and the need to execute and manage transformative IT projects with a skilled foreign IT workforce. Most of corporate America relies on the very employers who depend on skilled H-1B workers and have been unfairly penalized with the $4,000+ fee to keep their business and operations humming, which in turn benefit the American consumer. An increase in the fee thus will not be daunting whatsoever as the stakes are truly high for both IT consulting firms and most of corporate America.

Also, the prospects of the STEM or regular OPT being held invalid by a court create further uncertainty for the foreign entrepreneur. Fortunately, the likelihood of the court invalidating F-1 OPT is slim since the DHS has now allayed the court’s concern by proposing regulations for notice and comment under the Administrative Procedures Act. If at all there is any uncertainty with respect to OPT, entrepreneurs will be more concerned and will want to file H-1B petitions sooner than later while OPT is still in effect in order to ensure that there vital foreign worker can still be employed. This will create additional pressure on the H-1B cap, unless they are doing so in collaboration with universities and are seeking H-1B cap exemption.

All this demonstrates the need for more H-1B numbers rather than less as H-1B workers, including entrepreneurs, are essential for our economic growth and prosperity. The H-1B visa provides the entry point for someone to work in the United States, and in the absence of a special startup visa, the H-1B visa also serves an additional important purpose. Many universities have created programs to attract entrepreneurs and collaborate with them, so that they can legitimately take advantage of gaining H-1B cap exemption through INA 214(g)(5) and 214(g)(6). Senator Grassley’s letter may discourage USCIS adjudicators from granting H-1B visas filed by entrepreneurs, despite favorable policy guidance through Entrepreneur Pathways and provisions in the INA that provide cap exemption. Still, the USCIS should be assured that there is a sufficient legal basis to approve such H-1B petitions, and there is also undoubtedly a great policy argument, which Grassley overlooks, to allow entry of promising foreign entrepreneurs into the US in the hope that their startups will succeed, which in turn will create jobs and benefit the US economy.

Cyrus Mehta

High Skilled Worker Rule – Is There Scope For Porting On A Labor Certification?

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By Cyrus D. Mehta & David A. Isaacson

Our firm provided selected comments to the  proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers.” These comments are based primarily on three recent blogs:

Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants

Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson.

Our comments focused on areas that others may not have commented on, and may require the DHS and even the DOL to propose supplemental rules. However, if our comments are considered, they will greatly improve the proposed rule.

The centerpiece of the rule is to grant work authorization to beneficiaries of approved I-140 petitions who are caught in the crushing employment-based backlogs. The requirement of demonstrating compelling circumstances has disappointed beneficiaries, along with further restrictions relating to the renewal of the work authorization. We do hope that the DHS removes these restrictions so that deserving beneficiaries are able to easily obtain work authorization.

It would also be highly desirable for beneficiaries of such approved I-140 petitions to exercise   job portability, and not be required to re-start the labor certification process through a new employer, even though the proposed rule allows for the retention of the old priority date under certain circumstances. Recognizing that INA 204(j) requires a pending I-485 adjustment application for 180 days, and thus the DHS may not be receptive to arguments that may justify portability, we proposed that DHS also consider promulgating a rule that would recognize the ability of applicants to file early adjustment applications based on a filing date that would be far ahead of the final action date in the State Department Visa Bulletin, even if theoretically one visa is only available in a preference category. The existence of a pending I-485 application would allow for true job mobility pursuant to INA 204(j).  If DHS does not accept our proposal for an early adjustment filing, we have proposed in our comment the following innovation, which we reproduce below:

“Modifying Labor Certification Rules to Provide Greater Flexibility to Beneficiaries of Approved Labor Certifications

Finally, we take this opportunity to suggest that USCIS propose to another Executive Branch department, specifically, the Department of Labor (“DOL”), some regulatory changes which would mesh well with those that USCIS has proposed and assist in accomplishing the goals of the President’s initiative.

First, we propose that the DOL should formalize a policy, previously suggested in some case law of the Board of Alien Labor Certification Appeals (“BALCA”), whereby an employer who wishes to offer an alien prospective employee a position which in substance has already been the subject of an approved labor certification, even for another employer, does not need to go through the entire labor certification process all over again.

In Matter of Law Offices of Jean-Pierre Karnos, 2003-INA-18, 2004 WL 1278081 (Bd. Alien Lab. Cert. App. 2004) [hereafter referred to as Matter of Karnos], BALCA held that if “there is a bona fide job opportunity which remains the same, despite the change in employers,” then “[t]he absence of a contractual agreement between [the employers] does not negate the fact that a bona fide job opportunity exists” and thus “the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification.” Matter of Karnos, 2004 WL 1278081 at *2-*3. This is, we would submit, consistent with the text and purpose of INA § 212(a)(5)(A), which focuses on the effect on U.S. workers of the alien filling a particular position, rather than the identity of the employer who wishes to hire the alien to fill that position.

In Matter of Karnos, the lawyer who had operated the law office that was the original employer, Jean-Pierre Karnos, had died before a final decision was made on the application for labor certification. Matter of Karnos, 2004 WL 1278081 at *1. James G. Roche, Esq., continued to run a similar law firm under the name of the Law Offices of James Roche, but could not demonstrate that he had any formal contractual relationship with Mr. Karnos so as to assume ownership of Mr. Karnos’s firm. Id. at *1-2. The initial Certifying Officer within the Department of Labor denied labor certification based on the difference in employers, as BALCA explained:

[T]he CO stated that Mr. Roche was “unable to provide that he and Jean-Pierre Karnos had a written contractual or inheritance agreement.” Therefore, the CO found that Mr. Roche was a separate employer and should not be entitled to the application signed by another party. The CO denied certification on the ground that two “distinctly different employers” were involved and there was no agreement to “attest to the legality of this condition.”

Matter of Karnos, 2004 WL 1278081 at *2.

In his request for review by BALCA, Mr. Roche clarified that while he could not establish a formal relationship with the late Mr. Karnos, “he was offering the same position of accountant, under the same terms and conditions, including the same wage, set forth in the original application.” Id. BALCA agreed that this was sufficient:

In general, a new employer must file a new application unless the same job opportunity and the same area of intended employment are preserved. International Contractors, Inc. [and Technical Programming Services, Inc., 1989-INA-278 (Bd. Alien Lab. Cert. App. 1990)]; Germania Club, Inc., 1994-INA-391 (May 25, 1995). When the employer has clearly demonstrated that the job opportunity, including the wage paid, remains the same such that there is still a bona fide job opportunity, a new application is not required.

In this case, there is a bona fide job opportunity and an adequate test of the labor market has been performed. The new Employer, Mr. Roche, has indicated that the duties of the job remain the same and that the salary is the same. The same job opportunity has been preserved. The absence of a contractual agreement between Mr. Karnos and Mr. Roche does not negate the fact that a bona fide job opportunity exists with Mr. Roche as the employer. The new Employer has clearly demonstrated that there is a bona fide job opportunity which remains the same, despite the change in employers.

Therefore, in light of the particular factual circumstances presented by this case, we hold that the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification. The former Employer attempted to recruit a U.S. worker for the position and the new Employer has certified that the position remains the same as that originally petitioned for, in the same area of employment. In such circumstances, labor certification should not be denied solely on the change in employers. Thus, the CO improperly denied certification.

Matter of Karnos, 2004 WL 1278081 at *2-*3.

DOL should amend the governing regulations to make explicit, and expand upon, the holding of Matter of Karnos. Where a new employer wishes to sponsor an employee for a position that remains the same, and is in the same area of employment, a new application for labor certification should not be required.

We also propose that DOL should add to Schedule A, at 20 CFR 656.5, a new “Group III” comprising persons who will be employed in a same or similar occupation to one for which they already have an approved labor certification from a different employer. Under such circumstances, it is reasonable for the Department of Labor to conclude on a categorical basis that there are not sufficient U.S. workers who are able, willing, qualified and available, and that the wages of United States workers similarly employed will not be adversely affected, because a similar determination has already been made in the process of granting the previously approved labor certification.  New employers should under such circumstances therefore be able to process their labor certification through USCIS pursuant to 20 CFR 656.15.  At the very least, even if DOL is not willing to have Schedule III cover such same or similar occupations on a nationwide basis, it should cover instances in which the alien has an approved labor certification for a same or similar occupation, and the area of intended employment for the position covered by the Schedule III filing is within normal commuting distance of the area of intended employment for the position covered by the previously approved labor certification.”

 

Cora-Ann Pestaina

BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements

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Late last year, just in time to ruin the holidays for those affected, the Department of Labor (DOL) started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years (lulling practitioners into another false sense of security), the DOL started denying PERM applications where the employers, in their PERM recruitment, used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage in lieu of stating the offered salary.

To provide some background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. The PERM regulations do not require the employer to state the offered salary in any of its recruitment. In its list of frequently asked PERM questions (FAQs) on the Office of Foreign Labor Certification’s website, question number 5 under the heading of “Advertisement Content” is asked and answered as follows:

Does the offered wage need to be included in the advertisements?

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

The Preamble to PERM Regulations, 69 Fed. Reg. at 77347 also discusses the elimination of the requirement that the wage offer must be included in advertisement.

In filing a PERM application, the employer, under 20 C.F.R. §656.10 (c), must certify to the conditions of employment listed on the Application for Permanent Employment Certification (1) “[t]he offered wage equals or exceeds the prevailing wage determined pursuant to §656.40 and §656.41” and (8) ‘[t]he job opportunity has been and is clearly open to any U.S. worker.” And 20 C.F.R. §656.24(b)(2) requires the Certifying Officer (CO) to make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Using these regulations as authority for some of its denials, the DOL, after acknowledging the fact that the employer is not required to list a wage in its advertisements, goes on to state that the employer’s indication of “Competitive,” “Depends on Experience (DOE),” “Negotiable,” “Other,” etc. is in fact an expression of a salary and that any discussion concerning wages must sufficiently inform applicants of the job opportunity outlined in the PERM application. The DOL claims that terms like “Depends on Experience” and “Negotiable” could be vague and could place a potential burden on the US worker to reasonably determine the wage rate for the position or could indicate that an applicant’s experience might potentially cause the employer to offer a salary which is lower than the salary offered to the foreign worker. Incredulously, according to the DOL, a term like a “Will Discuss With Applicant” could prevent a potentially qualified US applicant from making an informed decision on whether he/she would be interested in the actual job opportunity, and could deter a number of such applicants from applying. The denials claim that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market.

Under the PERM regulations at 20 CFR §656.17(e)(1)(i)(A) and §656.17(e)(2)(i), the employer’s job order for both professional and nonprofessional occupations must be placed with the State Workforce Agency (AWA) serving the area of intended employment for a period of 30 days. But one of the problems many employers face is with SWAs that require the employer to list an offered wage and to make a selection from a drop down menu under “Pay Comments” choosing from comments which include “DOE,” “Will Discuss with Applicant,” “Commission Only,” “Not Applicable,” etc. The DOL has been issuing denials in cases where, for example, the employer listed the offered salary as $0 or $1 in an effort to get past this requirement and then indicated “Will Discuss With Applicant” under the pay comments. As ludicrous as it is to suggest that any US worker would be deterred from applying for the offered position simply because the offered wage was listed as $0 – which obviously could never be the actual case – this is exactly what the DOL suggests in its denials.

The American Immigration Lawyers Association (AILA) did raise this issue with the DOL in one of its stakeholders meetings last year informing the DOL that many of its state job order systems, and many job search websites and other recruitment sources require the use of, or they automatically insert, the terms that are now the cause of the new denials. The DOL only agreed to review the issue and may possibly issue an FAQ in the future. But they declined to suspend further denials or reopen past denials.

Many motions to reconsider have been filed and remain pending. The Board of Alien Labor Certification Appeals (BALCA) has just issued a couple of decisions that will hopefully help shed light on how those pending motions should be decided. In Bahwan Cybertek, Inc. 2012-PER-01147 (Feb. 18, 2016) the employer filed a PERM application indicating that the offered wage was $99,500. The PERM was audited. The employer submitted copies of its SWA job order which showed that the employer had listed the minimum pay and the maximum pay as $1 per year. Under “Pay Details” the employer had indicated “Competitive Salary. Will be discussed with the candidate.” The CO denied certification finding that the job order listed a wage rate lower than the prevailing wage in violation of 20 C.F.R. §§656.10(c)(8) and 656.17(f)(7). In a request for reconsideration the employer stated that it normally does not list wages in its recruitment and the PERM rules do not require it but that the Massachusetts SWA’s online job order system asked for minimum and maximum pay for the advertised position and so the employer entered $1 so that the system would accept the posting but added the pay comments as clarification making it clear that the salary was not $1. The CO still found that the statements “competitive salary” and “will be discussed with the candidate” were “not demonstrably specific enough to overcome the potential chilling affect [sic] arising from advertising $1 as an annual salary.” The employer appealed to BALCA.

BALCA simply pointed out that the regulation at 20 C.F.R. § 656.17(f) provides that “[a]dvertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must … [n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien” and that, by its own terms, this regulation only applies to advertisements in newspapers or professional journals, and does not regulate the content of SWA job orders.

But with regard to whether or not the job opportunity had been clearly open to any US worker as the employer attested to under 20 C.F.R. §656.10(c)(8), one of the grounds for denial being used in the slew of recent denials discussed above, BALCA confirmed that stating a wage rate below the actual wage offer for the job definitely calls into question whether the job opportunity is indeed open to US workers. However, BALCA found that in the instant case, the employer’s indication of a wage rate of $1 was obviously a placeholder based on a generic data field in the SWA job order and was clearly not intended to reflect the actual wage rate. BALCA found that that “no reasonable job seeker would have been discouraged from applying for the job, especially since it was clarified that the employer is offering a competitive salary and that the salary was subject to discussion.

Similarly, as in the recent denials, where an employer has indicated a salary of $0 and had indicated that the salary will be discussed with the applicant, no reasonable job seeker would have been deterred by that.

In another case, Global TPA LLC, 2012-PER-00847 (Feb. 18, 2016), the offered Project Manager position required 4 years of specific experience which the employer detailed on the ETA Form 9089. Upon audit, the CO discovered that the employer had advertised on a website, as one of the three additional forms of recruitment required for professional positions under 20 C.F.R. § 656.17(e)(1)(ii), indicating that the Project Manager position requires 4-5 years of experience. The CO listed this as one of its three reasons for denial. The employer filed a motion to reconsider but the CO upheld its denial and the case went up to BALCA. BALCA referenced its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously discussed here. BALCA pointed out that under Symantec the additional professional recruitment only requires documentation of recruitment for the occupation involved in the application and not recruitment for the particular job opportunity at issue. Therefore, the fact that the employer’s website posting stated 4-5 years of experience as opposed to 4 years of experience as listed on the PERM application did not violate the regulations.  In a footnote, BALCA pointed out that the CO in this case had only cited 20 C.F.R. §656.17(f)(6) as a ground for denial in regard to the discrepancy between the website posting and the ETA Form 9089 in regard to the experience required. BALCA pointed out that its decision is not an opinion on whether the website posting may have been in conflict with 20 C.F.R. §656.10(c)(8) which requires that the employer certify that the job opportunity has been and is clearly open to any U.S. worker.

In any event, even if BALCA declined, in that case, to state that the job opportunity was nevertheless clearly open to US workers, it doesn’t mean that the argument can’t still be made. Under Symantec, the additional forms of recruitment can represent real world alternatives and can advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. Therefore, when it comes to one of these forms of recruitment, an employer’s use of terms like “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” etc. does not take away from the employer’s advertisement of the occupation and is therefore not in violation of any PERM regulation. BALCA specifically stated in Bahwan Cybertek that no reasonable job seeker would have been discouraged from applying due to the use of such terms. And to state what is probably obvious, someone that would read such terms and be left so confused as to be deterred from applying is quite likely not qualified.

After its slew of denials starting late last year and the stream of motions to reconsider that must have resulted, the DOL’s ultimate stance on this issue remains to be seen. Anecdotal and unscientific evidence seems to indicate that they have stopped or slowed down the issuing of these types of denials.

Nevertheless, going forward, it would be wise to stay away from usage of any of the “problem terms” indicated above to the extent possible.

David Isaacson

The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson

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As discussed in a previous post on this blog by Cyrus D. Mehta, DHS recently promulgated a proposed rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. One of the key aspects of this proposed rule, which as discussed in Cyrus’s blog post has disappointed many with its narrowness in various respects, relates to the status of I-140 petitions which a petitioning employer may cease to support. For the reasons I will explain, this aspect of the proposed rule, too, does not go far enough.

The proposed rule will make clear through amendments to 8 CFR 204.5(e)(2) that an I-140 petition will continue to confer a priority date unless it is revoked because of fraud or willful misrepresentation, invalidation or revocation of the underlying labor certification, or “A determination by USCIS that petition approval was in error”, as proposed 8 CFR 204.5(e)(2)(iv) states. Even an I-140 petition that is withdrawn, for example, would continue to confer its priority date on all subsequent petitions filed for that beneficiary. In addition, withdrawal of the I-140 petition by the petitioning employer, or termination of the employer’s business, would only lead to revocation of the petition, per proposed 8 CFR 205.1(a)(3)(iii)(C) and (D), if such withdrawal or termination were to occur less than 180 days after approval of the I-140 petition. Otherwise, in the face of a withdrawal or termination of the employer’s business after those 180 days had passed, the petition would remain valid indefinitely. Thus, even a petition which an employer tries to withdraw after 180 days have passed could, under the proposed rule, be used as the basis for portability under INA §204(j) as enacted by the American Competitiveness in the 21st Century Act (“AC21”), which, as discussed in numerous previous posts on this blog, provides the ability to proceed with employment-based adjustment based on a different job offer to that which underlay the I-140 so long as it is in a same or similar occupation and the adjustment application has been pending for 180 days.

While these provisions provide some insurance against a petitioning employer deliberately or inadvertently undermining §204(j) portability, however, they do not go far enough to accomplish that aim. It appears from the proposed rule that in making its determination whether “petition approval was in error”, to quote again from proposed 8 CFR 204.5(e)(2)(iv), and so should no longer confer a priority date, USCIS would look to the I-140 petitioner for further information, even though that petitioner might lack any interest in providing it. Similarly, the rules regarding revocation of an I-140 petition on notice have not been changed by the proposed rule, and presumably would again involve notice to the petitioner. A hostile petitioner who would have wished to withdraw a petition, or a petitioner which had innocently gone out of business, could give rise to a revocation by failing to respond to notice from USCIS, and in so doing undermine the exercise of §204(j) portability.

This is not merely a theoretical concern. A recent precedential opinion of the U.S. Court of Appeals for the Second Circuit, Mantena v. Johnson, 809 F.3d 721 (2d Cir. 2015), published on December 30, 2015, demonstrates how this problem can arise under the current regulations.

The plaintiff in Mantena had been the beneficiary of an I-140 petition filed by Vision Systems Group (VSG). Roughly two years after filing her I-485 application for adjustment of status in July 2007, she sent a letter to USCIS requesting to exercise portability and substitute as a successor employer CNC Consulting, Inc. Nearly a year after that, the president of VSG pled guilty to mail fraud in connection with a different petition, which led USCIS to believe that all VSG petitions might be fraudulent. USCIS therefore sent Notices of Intent to Revoke (NOIRs) regarding, it appears, many or all VSG I-140 petitions, including Mantena’s. The NOIR for Mantena’s petition went unanswered – possibly because Mantena had, at that point, not worked for VSG in three years – so USCIS revoked the I-140 petition and then denied Mantena’s I-485.

Following repeated attempts to resolve the issue by filing motions, Mantena brought a lawsuit in the U.S. District Court for the Southern District of New York, claiming that the revocation of the I-140 petition and subsequent denial of her I-485 had violated the relevant regulations and deprived her of constitutionally protected due process rights. The district court ruled against her, but on appeal the Second Circuit ruled that USCIS had been required to notify either Mantena, or possibly her successor employer CNC, of the NOIR.

Under the INA as amended by AC21, the Second Circuit found, USCIS could not, when it was contemplating revocation of an I-140, notify only the former employer of an I-140 beneficiary who had already exercised portability to leave that employer. As the Second Circuit found,

By placing beneficiaries and successor employers in a position of either blind faith in the original petitioner’s goodwill and due diligence or a forced and continued relationship with the now-disinterested and perhaps antagonistic original petitioner, such a scheme would completely undermine the aims of job flexibility that those amendments sought to create.

Mantena, slip op. at 28-29. The Second Circuit in Mantena remanded to the district court for further consideration of whether the required notice should have gone to Mantena, CNC as her successor employer, or both, but held that in any event some such additional notice was required.

Mantena is not the first case to confront this sort of fact pattern. As discussed by Cyrus D. Mehta in his October 2015 post on this blog, “Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!”, similar facts have been the subject of appellate decisions in the Ninth Circuit, Sixth Circuit, and Eleventh Circuit, as well as an ongoing appeal in the Seventh Circuit. The Second Circuit’s decision in Mantena does a particularly good job, however, of explaining why additional notice of proposed revocation of an I-140 petition is required.

USCIS has the opportunity, in the final revisions to its proposed rule, to clarify and expand upon this holding of Mantena. The final amended regulations should provide that when an I-140 petition has been approved for more than 180 days, or an I-485 based on an I-140 petition has been pending for more than 180 days, the beneficiary of the I-140 petition has the right to receive and respond to any notice regarding potential revocation of the I-140 petition. This will safeguard the job flexibility interests which, as the Second Circuit noted, the AC21 permanent portability provisions were designed to secure in the first place. And it will do so without unduly burdening successor employers, who may be willing only to hire their new employee but not to become too deeply enmeshed in the immigration paperwork and respond to notice regarding an I-140 petition.

Without the addition of Mantena’s rule, the current proposed regulations would leave I-140 beneficiaries “in a position of either blind faith in the original petitioner’s goodwill and due diligence or a forced and continued relationship with the now-disinterested and perhaps antagonistic original petitioner,” Mantena, slip op. at 28-29. A petitioner who is no longer interested, may no longer be in business, or may actively wish harm to the I-140 beneficiary, could quite likely fail to respond to an NOIR, leaving USCIS with the mistaken impression that a petition has been approved in error. This would, in those cases, destroy the benefits of stability that the proposed rule’s changes to 8 CFR 204.5(e)(2) and 8 CFR 205.1(a)(3)(iii)(C) and (D) are intended to produce.

Of course, as Mantena itself held, this sort of notice may in fact be mandated by the statute, whether USCIS explicitly mentions it in the regulations or not. But it would be much more efficient for USCIS to incorporate this notice into the express terms of the regulations, rather than leaving the details to the vagaries of case-by-case litigation in different circuits.

USCIS has, in the past, sometimes acquiesced by memorandum in the employment-immigration-related holding of a Court of Appeals. In a July 15, 2015, memorandum, for example, USCIS accepted the decision of the Third Circuit in Shalom Pentecostal Church v. Acting Secretary of DHS striking down regulatory provisions that required qualifying experience for an I-360 religious worker petition to have been gained in “lawful status”, which the Third Circuit had found to be ultra vires the statute. USCIS could take a similar route with regard to Mantena, which would be much better than nothing. But especially given that regulations on a related topic are being promulgated anyway, the best solution would be for a Mantena-style requirement of notice to an I-140 beneficiary to be incorporated into those new regulations.

As the Supreme Court has explained, “The fundamental requisite of due process of law is the opportunity to be heard.” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). USCIS should amend the new proposed I-140 rules to provide this opportunity to I-140 beneficiaries.

Cyrus Mehta

A Trap For The Unwary: Equivalent Degrees And Alternate Requirements In Labor Certification Applications

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When a foreign national has a three year degree instead of a four year degree, or has no degree, and is able to establish an equivalent degree through a combination of education and work experience, or only through work experience, it is important that the PERM labor certification application be carefully drafted. While an equivalent degree might pass muster for an H-1B visa, it will not always for a labor certification and the subsequent I-140 immigrant visa petition.

20 CFR §656.17(h) requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity in a labor certification application. If the foreign national does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, the labor certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). 20 CFR §656.17(h)(4)(ii) essentially adopts the holding of BALCA in Francis Kellogg, 1994-INA-00465, although in that case the primary and alternative requirements, namely, experience as a cook or salad maker, were not substantially equivalent, thereby necessitating that the employer accept any suitable combination of education, training or experience. In contrast to Kellogg, 20 CFR §656.17(h) requires consideration of this language even if there is substantial equivalence between the primary and alternative requirement.

Fortunately, if this language does not appear on the form, it is no longer fatal and practitioners can challenge a denial if the sole reason for the denial was the failure to insert this “magic language” on the application. In Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) the fact that the Kellogg language did not appear on the form could not be a ground for denial as there is no space on the ETA-9089 form for such language; and the Kellogg language also does not need to appear in recruitment materials. BALCA in Federal Insurance held that a denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). HealthAmerica is a seminal BALCA decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Notwithstanding the fact that the Kellogg magic language is not required, DOL’s rigid insistence that alternate requirements be substantially similar becomes especially problematic when a position requires the minimum of a bachelor’s degree but the foreign national qualifies based on equivalent work experience. It is important to draft PERM labor certification applications being aware of this pitfall, as well as the advertisements, so as to avoid a denial. Globalnet Management, 2009-PER-00110 (BALCA Aug. 6, 2009) is illustrative of this problem. In Globalnet Management,, BALCA held that a bachelor’s degree plus two years of experience was not substantially equivalent to 14 years of experience. BALCA did not accept the argument that the alternative requirement of 14 years of experience comported with the well-established formula to determine equivalency under the H-1B visa, three years of experience is equal to one year of education under 8 CFR §214.2(h)(4)(iii)(D)(5), and held that the primary and alternative requirements were not substantially equivalent. BALCA relied on Field Memorandum No. 48-94 that set forth the years under the Specific Vocational Preparation (SVP) system for different educational attainments. Therefore, the appropriate alternative for a position requiring a B.S. degree plus two years of experience would have been four years of experience rather than 14 years of experience. While BALCA noted that 8 CFR §214.2(h)(4)(iii)(D)(5) may be persuasive in the absence of other guidance, citing Syscorp International, 1989-INA-00212, it nevertheless relied on Field Memo No. 48-94 in affirming the denial of the labor certification.

One reason why practitioners still include an alternative requirement relating to an equivalent degree is to ensure that the requirement is consistent with the H-1B visa petition. It is not unusual to qualify a foreign national for an H-1B visa who may have the equivalent of a three year degree, and then makes up the fourth year through the equivalent of three years of experience. The following language, which previously passed muster would now put into jeopardy ETA-9089 applications that define an equivalent degree, as follows: “Employer will accept a three year bachelor’s degree and three years of experience as being equivalent to one year of college.” Under the reasoning employed in Globalnet, this assumes that the alternative requirement would involve 12 years of SVP lapsed time while a bachelor’s degree would only require two years of SVP lapsed time. The employer faces a Hobson’s choice. If the employer does not include what it means by an equivalent degree on the ETA-9089, the subsequent I-140 petition will fail. If an employer requires a bachelor’s degree, and if the foreign national does not have the equivalent of a four year degree, and the ETA-9089 does not include a definition with respect to what it means by an equivalent degree, USCIS will assume that the employer required a four year degree and the foreign national would not be able to qualify for the position by virtue of not possessing such a degree.

On the other hand, in light of Globalnet it no longer remains viable to insist on consistency between the H-1B and the labor certification. Hence, if the primary requirement is a bachelor’s degree and two years of experience, and the foreign national does not have a degree whatsoever, the substantially equivalent alternative that would be acceptable to DOL would be four years of experience, as opposed to 14 years of experience. There may be some concern that requiring this formula on the labor certification, which may pass muster for DOL, may still be problematic when the alien has filed an I-140 petition and is also extending the H-1B visa using the “3 for 1” equivalency formula to establish the equivalent degree to qualify for the H-1B occupation. There is some anecdotal evidence of the USCIS questioning the extension of the H-1B visa when the I-140 petition involving the same position did not require a degree.  However, if this issue comes up during an H-1B adjudication, it should be argued that the discrepancy lies in the USCIS regulations and USCIS interpretations relating to H-1B and I-140 petitions, not in the beneficiary’s job or the beneficiary’s qualifications. USCIS ought not to deny an H-1B solely because a beneficiary who has been classified for an H-1B visa through an equivalent degree, either based on a combination of education and experience, or purely through a requirement of 12 plus years of experience, is classified on an I-140 under the EB-3 skilled worker preference requiring something less than a bachelor’s degree.

Finding ways to escape the Globalnet trap (and to achieve consistency with the H-1B) have not been successful. In Microsoft Corporation, 2011-PER-02563 (October 16, 2012), the employer indicated in items H.4 through H.7 in the ETA 9089 that its requirements for the position was a Bachelor’s degree or foreign educational equivalent in Comp. Sci., Eng., Math, Physics, Business or related field and six months of experience in the job offered or in a computer-related occupation or student school project experience. The employer indicated in item H.8 that there was an acceptable alternate combination of education and experience, and specified that it would accept 3 years of work experience for every year missing from a four year college degree. The CO denied on grounds that the alternative requirement was not substantially similar to the primary requirement. When the employer appealed to BALCA, one of its arguments was that 20 CFR §656.17(h)(4)(i) did not apply as it was accepting an alternate combination of education and experience in H.8-C, rather than an alternate experience requirement. This argument, unfortunately, was shot down, since the employer created an alternate requirement by indicating in H.10 that it would require three years of work experience for every year of missing college education. The following extract from the BALCA decision in Microsoft Corporation is worth noting:

The Employer completed item H.8 indicating it would accept an alternate combination of education and experience, but that there was no alternate experience requirement. The Employer, however, completed box H.14 indicating that it will accept three years of work experience for every year of missing education from a four year college degree. Although not listed in item H.8C, box H.14 indicates that the position has, in effect, an alternate experience requirement which varies from zero to twelve depending on the level of education attained by the applicant. Therefore, the CO correctly applied § 656.17(h)(4)(i) in determining whether the alternate experience requirement is substantially equivalent to the primary requirement.

The reason why labor certifications of this sort stumble is because there is an alternative requirement, thus triggering 20 CFR §656.17(h)(4)(i). The employer can arguably require the equivalent of a bachelor’s degree as a sole requirement, rather than insist on a bachelor’s degree or the equivalent of such a degree, by checking No to H.6 and Yes to H.10 in ETA 9089, and explaining the equivalency formula in H.14. See Matter of DNP America LLC, 2012-PER-00335 (Oct. 6 2015) (employer properly answered No to H.6 because it did not require experience in the offered position, and was instead requiring experience in a similar position, which it appropriately indicated in H.10).   This strategy too is likely to fail as the DOL may argue that an alternate requirement was created in H.10, as in Microsoft, although BALCA has yet to rule on such a fact pattern where the labor certification expresses one requirement, rather than a primary and alternate requirement.

While achieving consistency between the H-1B and the educational requirements on the ETA 9089 may be impossible based degree equivalencies through work experience, it behooves the employer to at least frame the alternate requirement appropriately as being substantially similar to the primary requirement so as to avoid a denial of the labor certification. For foreign nationals who have no degree and have qualified for their H-1B visa status through 12 years of work experience, including the formulaic “3 for 1” year rule as a way to express the equivalency on the labor certification will most certainly be fatal. Instead, this author has experienced success when the employer required a bachelor’s degree in the specialized field as a primary requirement, and as an alternate, required two years of experience in the specialized field in lieu of a bachelor’s degree. This is consistent with DOL’s interpretation under Kellogg and 20 CFR §656.17(h)(4)(i) that the primary requirement of a bachelor’s degree (requiring 2 years of SVP time) is substantially equivalent to  the alternate requirement (which is two years of experience). If the position requires two years of experience in addition to a bachelor’s degree, then the alternate requirement could be 4 years of experience in lieu of a bachelor’s degree.  Similarly, when a foreign national has a three year degree, the best practice is to require either a 3 or 4 year bachelor’s degree plus the relevant experience.

Navigating immigration law is already challenging, and it becomes increasingly more so when one is dealing with the DOL and the USCIS, who are committed to different standards relating to equivalency. What is worse is that the goal posts are constantly moved, and what may have been acceptable previously is unbeknownst to anyone suddenly not. Until both the agencies settle their differences, or legislation forces them to do so, the immigration practitioner will need to be constantly threading the needle when representing foreign clients with equivalent degrees in order to avoid a labor certification denial and successfully obtain permanent residency.

[This is a shorter version of a forthcoming article in ILW’s PERM Book III (High Tech/IT Edition, Ed. Joel Stewart). The blog is for informational purposes only and should not be viewed as a substitute for legal advice]

Cyrus Mehta

Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

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The purpose of this blog is to draw attention to two little know legal concepts, which must either be preserved or introduced through the proposed rule entitled Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers”. They are concepts worthy of promotion since they would greatly benefit delayed green card applicants, especially with respect to extending H-1B status beyond the six years and freezing the age of a child under the Child Status Protection Act under a new I-140 petition. While there are many other proposals in need of repair and improvement, I focus on these two since I have dwelt on them with passion in past blogs, here and here, and now is a time to advocate for their inclusion in the proposed rule.

This rule when finalized will provide relief to skilled immigrants who are presently on nonimmigrant visas and are caught in the crushing employment-based backlogs. The centerpiece of this rule would allow beneficiaries of approved employment based immigration visa petitions, known as I-140 petitions, to apply for an employment authorization document (EAD), although it has disappointed many by setting stringent criteria, which would deter most from taking advantage of it. This has been addressed in my prior blog – Allowing Early Adjustment Filing in Proposed Rule Impacting Skilled Workers Would Give Big Boost to Delayed Green Card Applicants. Those who are disappointed must continue to forcefully advocate so that EADs can be granted to deserving beneficiaries of approved I-140 petitions less restrictively in the final rule.

Preserving the Ability Of H-1B To Seek H-1B Extension Based On Other Spouse’s Labor Certification

The American Competitiveness in the 21st Century Act (AC 21) allows for an extension of H-1B visa status beyond the statutory time limitation of six years for those who cannot obtain a green card within this period. There are two pivotal provisions. AC 21 §106(a) allows for one year H-1B extensions beyond the sixth year if a labor certification application or I-140 petition was filed at least one year prior to the last day of the alien’s authorized admission in H-1B status. Under second provision, AC 21 §104(c), the beneficiary of an approved I-140 petition can seek an H-1B extension for three additional years if it can be demonstrated that he or she is eligible for permanent residence but for the per country limitation.

The proposed rule seeks to provide this benefit only to the principal beneficiary and not to the spouse, assuming both are in H-1B status. While it is true that the other spouse who is not the direct beneficiary of a labor certification or I-140 petition can change status from H-1B to H-4 status, and seek an EAD as an H-4 spouse under the recently promulgated rule that allows for this, experience has shown that this can be a long process. Changing from H-1B to H-4 status can take several months, and there would also be additional delays in receiving the EAD. Even if the H-1B spouse proceeds overseas to apply for an H-4 visa, it would take at least 90 days before the H-4 spouse can obtain the EAD after being admitted into the US in that status. It is thus more convenient for the spouse who is also in H-1B status to continue to extend that H-1B status, and not disrupt his or her employment.

The rationale for not allowing a spouse who is also on an H-1B visa to use the other spouse’s labor certification or I-140 petition is not very convincing. The preamble discusses AC 21 §104(c), which limits H-1B nonimmigrant status beyond the six-years to the ‘beneficiary of a petition filed under section 204(a) of [the INA] for a preference status under paragraph (1), (2), or (3) of section 203(b) [of the INA].” According to DHS’s logic, INA §203(b) applies only to principal beneficiaries, but not to derivative beneficiaries who are separately addressed in INA §203(d). The preamble also emphasizes that §104(c) refers to “the beneficiary” in the singular. The DHS uses this same logic to deprive the other H-1B spouse from extending H-1B status one year at a time based on the other spouse’s labor certification or I-140 petition filed 365 days prior under AC 21 106(a).

Unlike AC 21 104(c), which the DHS focused on, there is a clearer basis in AC 21 106(a) to allow an H-1B spouse to seek a one year extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

  1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), 
  2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). 

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of a labor certification or an I-140 petition, and 365 days or more had passed since the filing of a labor certification application or the I-140 petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). The term “any application for labor certification” was absent in the original version of AC 21§106(a). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or I-140 petition and the H-1B nonimmigrant’s current employment. This is now fortunately preserved in the proposed rule, but there is no reason to also not allow a spouse to use “any” application for labor certification, which could be the labor certification filed on behalf of the other spouse.

With regards to the absence of INA §203(d) in AC21 §104(c) or §106(a), does this suggest that that only the principal spouse can immigrate under INA §203(b) and the derivative needs INA §203(d)? But INA 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent. Thus, the derivative spouse still immigrates under INA 203(b).” INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

In conclusion, there is a very good argument under AC 21 §106(a) that the H-1B spouse can use “any” labor certification, which includes the labor certification filed on behalf of the other spouse, to seek an additional one year H-1B extension. Furthermore, there is also an equally good argument, applicable under both AC 21 §106(a) and §104(c), that the exclusion of the mention of INA §203(d) is not fatal as a derivative spouse also ultimately immigrates under INA §203(b). The fact that “beneficiary” is mentioned in the singular and not in the plural should also not undermine support for the notion that any beneficiary, either as principal or spouse, can qualify for an AC 21 H-1B extension who is capable of immigrating under a labor certification or I-140 petition, or both. DHS must interpret existing ameliorative provisions in AC 21 that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On a separate note, there is also no need to penalize an H-1B worker from availing from an AC 21 H-1B extension if s/he fails to file an adjustment application or make an application for an immigrant visa within 1 year of availability. If the rule allows an H-1B extension based on a labor certification or I-140 petition filed by another employer, it may take some time for the new employer to obtain another labor certification and I-140 approval. The exception provided in the rule for failure to file within 1 year should include this circumstance, where the applicant is waiting for another labor certification and I-140 petition through a new employer.

Freezing The Age Of A Child Under The Child Status Protection Act Even Through A New Petition

 One of the bright spots in the proposed rule at 8 CFR §204.5 is to clarify that even if an I-140 petition is revoked by the employer, the priority date of that I-140 petition can still be used if a new employer files another I-140 petition. Even if the earlier I-140 petition is not revoked, and the same employer wishes to upgrade from an EB-3 I-140 to an EB-2 I-140 petition, the priority date of the earlier EB-3 I-140 petition can still be retained. The ability to retain an old priority date always existed in the rule, but the proposed rule also clarifies that retention of the priority date is further permissible when an employer revokes a petition or goes out of business.

The key issue is whether the new I-140 petition would be able to continue to protect the age of the child under the CSPA even if it is filed after the child has turned 21. We assume that the prior I-140 petition froze the age of the child under the CSPA age protection formula because it was filed prior to the child turning 21, the date became current, and an I-485 adjustment application was filed within one year of visa availability. There are many beneficiaries under this scenario, including the class of 2007 adjustment applicants whose priority dates under the India EB-3 have not become current after they retrogressed in August 2007.Alternative, we assume that when the priority date of the earlier I-140 becomes current, it would still potentially be able to protect the age of the child. At issue is whether the new I-140 petition continues to protect the age of the child.

The CSPA, as codified in INA 203(h), applies to the “applicable” petition, and without further clarification it may be difficult to bootstrap the new I-140 onto the “applicable” prior I-140 petition, which is no longer being utilized but was filed before the child’s 21st birthday. There is room to interpret the term “applicable” petition to include the new I-140 petition, especially since the new I-140 petition recaptured the priority date of the old I-140 petition. This should be made explicit in the final rule where the new I-140 petition is considered the “applicable” petition for purposes of protecting the age of the child under the old petition. If an old I-140 petition revoked by an employer can be used for purposes of preserving the priority date in a new petition, port to another employer or seek an AC 21 H-1B extension, it should also be preserved for preserving the age of a child under the CSPA. Similarly, even if the I-140 petition is not revoked, a new I-140 petition, filed either by the same or new employer should be able to freeze the age of the child if the old I-140 petition was able to do so.

Conclusion

 It is important that everyone impacted by this rule should strive to improve it by submitting comments. We will continue to blog on this rule with the goal of providing stakeholders with good ideas for comments. While there is no guarantee that the DHS will incorporate all good and worthy ideas, it is important to continue to float such ideas as they can never really die, and have the potential to be included in other rules or even subsequently through legislation. The deadline for submitting comments to this proposed rule is February 29, 2016.