Cora-Ann Pestaina

What One Hand Giveth the Other Taketh Away: Are We Truly Welcoming Foreign Entrepreneurs to America?

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“Our nation has always attracted individuals with great drive and entrepreneurial spirit. As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.”

The above is an extract from the USCIS’ Entrepreneur Pathways Portal which provides guidance on how entrepreneurs can obtain nonimmigrant visa status through a startup entity. The United States Citizenship and Immigration Services (USCIS) launched its Entrepreneurs in Residence initiative in 2012 and later the portal. Prior to that, in an August 2, 2011 press release, the Department of Homeland Security (DHS) stated that “The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs.” Through the Entrepreneurs in Residence program, USCIS officers are supposed to be trained to recognize the unique nature of a startup and to understand that a nonimmigrant petition based on a startup will not present the characteristics typical of a petition filed through a more established business entity. Startups often lack a formal office space; they may operate in stealth mode in an effort to hide information from competitors; and the foreign national seeking nonimmigrant status in the US often has a majority interest in the startup. Unfortunately, too often a benefit conferred on one hand is taken away by the other hand. USCIS has created these seemingly great avenues for entrepreneurs but other USCIS initiatives and other agencies such as the Department of Labor (DOL) make it harder for those same entrepreneurs to continue to obtain benefits.

One example is the DHS’ proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” which was published in the Federal Register on October 19, 2015 for comment. In sum, the rule proposes to amend the F-1 student visa regulations regarding optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Under the current rule, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM fields. The new rule proposes to allow F-1 STEM students who have elected to pursue 12 months of OPT to extend the OPT period by 24 months. This new 24-month extension would effectively replace the 17-month STEM OPT extension currently available to these students. This is indeed a positive development, and it encourages talented foreign students to remain in the United States and contribute to the US economy.

A STEM graduate may also utilize the OPT period to work for their own startup. But one aspect of the proposed rule might mean that this STEM graduate may not be able to obtain the 24-month extension to continue working for the startup. One of the things that will be required under the proposed rule is the implementation of formal mentoring and training plans by employers for the STEM OPT employee. The employer must also implement a process for evaluating the OPT employee. The STEM OPT extension could be difficult to establish for the OPT employee who is the majority shareholder in their startup. It appears that here the government will want to see proof of the typical employer-employee relationship which totally goes against everything it tries to do through the USCIS Entrepreneurs Pathway portal and erodes the whole idea of the startup.

Even if the foreign national were to obtain nonimmigrant visa status, that status is temporary. If the foreign national is desirous of obtaining lawful permanent residence in the US through their own company, there s/he may face another roadblock.

Recently, in Step By Step Day Care LLC, 2012-PER-00737 (Sept. 25, 2015), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a PERM labor certification finding that the offered position was not open to U.S. workers because the beneficiary was in a position to control or influence hiring decisions regarding the job. The employer filed a PERM labor certification for the position of “Daycare Center Director” indicating on the application form that the company is a closely-held corporation in which the foreign national has an ownership interest.  The DOL issued an audit request for documentation that included information on the business structure; a statement describing any familial relationships between parties with ownership interests in the company and the foreign national; the name of the employee with the primary responsibility for interviewing and hiring applicants; and the names of the employer’s officials who have control or influence over hiring decisions involving the job opportunity listed on the PERM application. The employer’s audit response showed that the foreign national beneficiary of the PERM application and her husband each held 50% ownership of the company, and they were here on E-2 visas. (The E-2 visa is one such visa that is encouraged for startups in the Entrepreneurs Pathway Portal). The foreign national was the Director and her husband was the Operations Manager. The recruitment was conducted by the company’s Assistant Director.

The Certifying Officer (CO) denied the application on the grounds that the employer had not overcome the presumption that exists that a job opportunity is not bona fide when the employer is a closely-held company where the beneficiary has an ownership interest or a familial relationship with the stockholders, officers, incorporators, or partners, and is one of a small number of employees. The CO took issue with the fact that the hiring official, the Assistant Director, was a subordinate of the beneficiary and is not the usual official having authority over hiring decisions.

In its motion for reconsideration, the employer explained that while the beneficiary and her husband typically made the hiring decisions in consultation with the Assistant Director, the hiring process was modified in for purposes under the labor certification recruitment because the beneficiary was also the co-owner. The employer held that neither the beneficiary nor her husband were involved in recruitment. The employer argued that the beneficiary and her husband each held E-2 investor visas as a result of purchasing the company and therefore the beneficiary’s stay in the US was not dependent on her position as Director and provided documentation to show that the position was a requirement for daycare businesses under Florida law and did not exist for the benefit of the foreign national beneficiary. The CO nevertheless upheld the denial.

As background, mere existence of a family relationship, or the fact that the beneficiary is the owner of the sponsoring entity, should not lead to a conclusion that a job opportunity was not bona fide.  When determining whether a bona fide job opportunity exists, the CO must consider the totality of the circumstances, considering, among other factors, whether the alien:

  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
  2. Is related to the corporate directors, officers, or employees;
  3. Was an incorporator or founder of the company;
  4. Has an ownership interest in the company;
  5. Is involved in the management of the company;
  6. Is on the board of directors;
  7. Is one of a small number of employees;
  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Good Deal, Inc., 2009-PER-00309 (Mar. 3, 2010) (citing Modular Container Systems, Inc., 1989-INA-228, (July 16, 1991) (en banc).  The Board should also consider the Employer’s compliance and good faith in the application process. Id.  No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77356 (Dec. 27, 2004).

Upon review, BALCA held that having recruitment conducted by a subordinate of the foreign national beneficiary is not in the best interests of U.S. worker applicants. BALCA found it difficult to believe that the beneficiary exercised no influence on the hiring process. BALCA cited 20 CFR 656.10(b)(ii) which states:

The employer’s representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

BALCA held that since the Assistant Director did not normally conduct interviews or consider applications, this regulation was not met. With regard to the employer’s statement that the beneficiary did not need the position since she held E-2 status, BALCA held that the filing of the labor certification indicated the beneficiary’s preference to remain in the position.

The foreign national entrepreneur who successfully obtains nonimmigrant visa status to run a business in the US could later be kicked out when that temporary nonimmigrant visa status expires. In the above discussed BALCA case, the beneficiary held E-2 status which could be extended indefinitely. However, a beneficiary with H-1B status would need to leave the US upon reaching the maximum 6-year limit.  While there may be other options for entrepreneurs on a temporary visa to get permanent residency, such as through the national interest waiver or as a person of extraordinary ability, very few can qualify under these pathways. The majority of skilled foreign nationals get sponsored via an employer through the labor certification process, and the odds of winning labor certification substantially lessen when one is the owner or founder of the sponsoring entity. It is not clear how such conflicting policies could work to “[attract] individuals with great drive and entrepreneurial spirit” and “welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.” What one hand giveth the other taketh away.

Michelle S. Velasco

Work Authorization for H-4 Spouses: The Experience Thus Far

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The U.S. Department of Homeland Security (“DHS)”) announced in February 2015 that beginning May 26, 2015, eligible H-4 spouses of H-1B visa holders could begin applying for employment authorization documents (EADs) from the U.S. Citizenship and Immigration Services (“USCIS”).  This change in the regulations was in keeping with President Obama’s efforts to encourage highly skilled workers to stay and set roots in the U.S.  Whereas before many H-1B visa workers were often the only ones toiling for their entire families, the new H-4 EADs for their spouses provide the primary H-1B visa holders more financial stability because their spouses can also work and add to the family income, the spouses joining the U.S. workforce create new connections within the community, and economic doors are opened for prosperity, such as purchasing homes and growing families.  In the past, the lack of H-4 work authorization has frustrated many spouses who otherwise were qualified and wanted to enter the workforce, but were unable to do so because their H-1B spouses could not apply for green cards due to the crushing backlogs in the EB-2 and EB-3 categories.  Even now, the H-4 EADs are not open to every H-4 spouse; it is only a limited group whose H-1Bs spouses were fortunate enough to have an employer sponsor them for a green card.

As a practical matter, the eligibility criteria for the EADs are fairly straightforward: the H-1B visa holder

  1. Must be the beneficiary of an approved I-140 or
  2. Was granted an H-1B extension pursuant to sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”).

In both these cases, a Permanent Labor Certification (“PERM”) was filed on behalf of the H-1B worker.

When applying for the H-4 EAD, applicants must complete the I-765 and indicate the correct category under which the EAD should be issued; here, the correct category is (c)(26).  In addition, the applicant must provide evidence of his or her eligibility.  This is where things can be confusing.  The USCIS has provided a handy FAQ page for guidance.  The FAQ provides a list of evidence that must be provided along with the I-765 form, filing fee, and two passport-style photos.  First, the applicant must provide evidence of his or her H-4 nonimmigrant status.  This can be a copy of the I-797 Approval Notice for the change of status or extension of status for the H-4 visa or a copy of the applicant’s H-4 visa affixed to the passport.  Second, the applicant must provide proof of the spousal relationship with the H-1B principal immigrant.  This can simply be a marriage certificate.  Applicants whose marriage certificates are not in English must provide a certified translation.  Third, the applicant must submit evidence of the spouse’s H-1B status, such as copies of the H-1B approval notice, form I-94, receipt number of the approved H-1B filing, or passport plus visas and admission stamps.  We also recommend that the applicant show proof that the H-1B has maintained valid H-1B status by providing recent pay stubs.

A fourth set of evidence is required to prove how the H-1B spouse either is the beneficiary of an approved I-140 or has received an H-1B extension pursuant to AC21. To simplify matters, we will first discuss how to demonstrate that an approved I-140 petition exists.  The applicant should submit a copy of the I-797 approval notice for the I-140.  If the approval notice is not available, one could provide a copy of that petition’s receipt notice and a note explaining why the approval notice cannot be provided.

In cases where the applicant must provide evidence that the H-1B spouse was granted an H-1B extension pursuant to AC21 sections 106(a) and (b), the evidentiary requirements can get more confusing.  When the spouse is the beneficiary of a PERM filed 365 days before the end of the spouse’s 6 year maximum stay in H-1B status, the applicant must provide proof of the PERM’s filing, the date of filing, and the date when the spouse’s H-1B status is or was set to expire.  Copies of the PERM from the DOL website, along with the travel dates of the spouse while in H-1B status and an explanation of how the PERM was filed more than 365 days before the end of the 6 year maximum, should be sufficient.  Where the PERM has been certified and the I-140 timely filed within 6 months of the PERM’s certification date, the applicant should submit copies of the I-140 receipt notice with the certified PERM.  If the PERM has been denied, it would still be considered “in process” or pending for AC21 purposes if the employer has filed a Request for Reconsideration with the Certifying Officer or an appeal to the Board of Alien Labor Certification Appeals (“BALCA”).  If the applicant does not have access to copies of the PERM form, but the I-140 is pending, he or she can submit the receipt notice for the I-140 (or other evidence of its filing) along with an explanation of how it was filed more than 365 days before the 6-year H-1B limit.

In the event primary evidence is unavailable, USCIS seems to be willing to accept secondary evidence, such as attestations that list information about the I-129 or I-140 petition filings. However, the applicant must first demonstrate why the primary evidence could not be submitted.  If the applicant cannot submit proof of eligibility, the EAD application will be in danger of denial.

Other issues that may arise out of the H-4 EAD surround the I-140 approval.  The USCIS has expressly written in the FAQ that where H-1B spouse has a revoked I-140 approval, the H-4 EAD will be denied.  However, the FAQ mentions revocations by USCIS, which is presumably when USCIS takes action under 8 CFR §205.2 to revoke an I-140 due to fraud or misrepresentation.  Practically, however, it matters not whether the revocation was automatic pursuant to 8 CFR §205.1(a)(3)(iii)(C) because a former employer withdrew the I-140, or if the revocation was due to fraud because USCIS will deny the H-4 EAD in these cases, no matter what the root cause of the I-140 revocation.  Therefore, the applicant should check the I-140 receipt number on the USCIS case status search function to ensure that the I-140 is still approved.  Sometimes the USCIS online case status function is not updated to reflect a revocation; thus, wherever possible, applicants should be more diligent and ask their spouses to find out the status of the I-140 from the prior employers.

Another potential landmine is in cases where the filing is based on a pending I-140 which is then denied before the H-4 EAD application is adjudicated.  If this occurs and the spouse’s employer is pursuing a Motion to Reconsider or Reopen the denial, or appeal to the Administrative Appeals Office (AAO), the applicant should submit through a response to a Request for Evidence (which the USCIS should be issuing) that a motion or appeal has been filed, and also submit proof that the PERM was filed 365 days before the H-1B’s six year expiration.

Timing for the H-4 EAD filing is crucial as the expiration of the EAD is based on the spouse’s H-1B expiration, and it behooves the applicant to obtain the longest validity period for the EAD.  For example, if the applicant’s spouse’s current H-1B will expire in May 2016 but the spouse is eligible for a 3-year H-1B extension by virtue of an approved I-140 and pursuant to AC21 section 104(c).  In this case, it makes more sense to wait until November 2015 to file the EAD application concurrently with the H-1B and H-4 extensions of status so that the EAD would be valid through May 2019, instead of filing the EAD application now, getting an EAD valid through May 2016, and then having to file again in early 2016.

Further, the applicant should be aware that if the EAD application is filed concurrently with an extension of status or change of status application, the underlying extension or change in status application must first be approved before USCIS will adjudicate the EAD application.  While at the time of writing this blog the USCIS processing times for change of status and extension of status applications hover around four months, there is no guarantee that processing times will not lengthen.  If timing is of the essence, the applicant might consider traveling abroad to undergo consular process for the H-4 visa.  Often this is a more speedy method of obtaining an H-4 visa.  Applicants should note that they cannot apply for the H-4 EAD until they return to the U.S. in valid H-4 status.

While on the matter of travel, it should be noted that the EAD card cannot be used to travel and it cannot be used to prove valid visa status in the U.S.  It simply allows the H-4 visa holder to accept employment.    In fact, if the applicant travels while an application to change status to H-4 is pending along with the EAD application, the change of status will be denied and this will likely vitiate the pending application for EAD too.  Thus, if the applicant cannot avoid travel during the pendency of the change of status and EAD applications, he or she must instead undergo consular process for the H-4 visa, be admitted on the H-4 visa, and again file the I-765 for the EAD once he or she is back in the U.S.  Another note we make is that recipients of H-4 EADs are not limited in the type of employment they can accept.  Aside from state licensing requirements for specific occupations (for attorneys, for example), the H-4 visa holders should be able to accept a wide array of employment.  It bears repeating that the EAD does not grant separate visa status; only the H-4 visa provides the requisite visa status and the means by which the nonimmigrant is able to remain in the U.S.

H-4 EAD applicants must be diligent in obtaining evidence of their eligibility and be aware of timing concerns.  For eligible applicants, this opportunity to obtain authorization for employment is welcome news, as it allows for more than just one family member to work lawfully in the U.S.  Still, the H-4 EAD regulation is on shaky ground.  It is being challenged in a lawsuit against the Department of Homeland Security (“DHS”) where plaintiffs argue that DHS overstepped its legal power as granted by the Immigration and Nationality Act when it issued the regulations allowing for the H-4 EADs.  (Save Jobs USA v. U.S. Dep’t of Homeland Security, case number 1:15-cv-00615, U.S. District Court for the District of Columbia, April 23, 2015).  The litigation is ongoing, and it adds to the uncertainty in which many H-1B and H-4 visa holders live in the U.S. Unfortunately, it will have to suffice for the moment because many H-1B visa holders with approved I-140 petitions cannot yet apply for their adjustments of status and the ancillary benefits of an EAD and advance parole.  The disappointing actions of the Department of State (“DOS”) and USCIS in issuing a revised October 2015 visa bulletin disallowed potentially tens of thousands of beneficiaries from applying for their adjustments of status (which would have granted the benefit of applying for EADs for their spouses and other derivative beneficiaries). Those who have already waited many years for an opportunity to truly set roots in the U.S. through a green card and work authorization for their families continue to wait.  In the meantime they must maintain valid H-1B statuses even though their employers have offered them permanent employment, and in the event they lose H-1B statuses, their H-4 family members will lose their status and they too will have to give up on the dream of becoming permanent members of the American way of life.

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

Cyrus Mehta

When is a Visa “Immediately Available” for Filing an Adjustment of Status Application?

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Central in the Mehta v. DOS lawsuit is whether the administration is authorized to establish a dual date system in the Department of State’s (DOS) Visa Bulletin, which it did for the first time in October 2015. When the DOS first issued the October 2015 Visa Bulletin on September 9, 2015, it established a filing date, which allowed applicants to file for adjustment of status much earlier than the final action date. On September 25, 2015, in a revised October 2015 Visa Bulletin, the administration abruptly moved back some of the filing dates by at least two years, thus depriving thousands from filing I-485 adjustment of status applications on October 1, 2015. A lawsuit was filed challenging this revision in the filing dates, including a motion for a temporary restraining order. The government has filed pleadings in opposition to the TRO, which includes a declaration from Charlie Oppenheim.

INA 245(a)(3) allows for the filing of an I-485 application for adjustment of status when the visa is “immediately available” to the applicant. 8 C.F.R. 245.1(g)(1) links visa availability to the Department of State’s (DOS)  monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 C.F.R. 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

DOS has historically never advanced priority dates based on certitude that a visa would actually be available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin  a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the DOS was absolutely certain that applicants born in India and China who filed in April 2012  would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 are still waiting and have yet to receive their green cards even as of today! Another example is when the DOS announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007)  . It was obvious that these applicants would not receive their green cards during that time frame. The DOS  then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 are still waiting today.

These two examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the DOS, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. The following extract from The Tyranny of Priority Dates, where Gary Endelman (who is now an Immigration Judge and is not participating in this blog)  and I in 2010 proposed the concept of a provisional date for filing I-485 applications  is worth noting:

It can be further argued that 245(a)(3), which requires that the alien have an available visa “at the time his application is filed,” cannot be read literally to preclude the initial filing of an adjustment application when its conditions are not met, as opposed to merely precluding the approval of such application. Otherwise ordinary concurrent filing (such as an I-140 and I-485) even as it exists today would be impermissible, because, as immigration judges periodically point out in the course of denying motions for continuance, someone who does not have an approved visa petition necessarily does not have an available visa number.

As David Isaacson has observed, there are other contexts under existing law in which one cannot simply assume that the date of “application” or date of “filing” referred to in statute or regulation means the date the application papers are filed in the ordinary sense of the word. Rather, such terms sometimes mean something closer to the date of final adjudication. So in In re Ortega-Cabrera, the examination of good moral character for the ten years “immediately preceding the date of the application” under INA § 240A(b)(1)(A) was held to entail examination of good moral character during the ten years immediately preceding the final decision in the case, not the ten years immediately preceding the date the application papers were initially filed as a physical matter. 23 I&N Dec. 793 (BIA 2005). Similarly, in In re Garcia, the Board of Immigration Appeals interpreted a regulation allowing special-rule cancellation for an alien who “has been physically present in the United States for a continuous period of [seven] years immediately preceding the date the application was filed,” 8 C.F.R. § 1240.66(b)(2), to be satisfied where “the respondent accrued [seven] years of continuous physical presence prior to the issuance of a final administrative decision for purposes of establishing eligibility for relief.” 24 I&N Dec. 179, 183 (BIA 2007). 

One could thus analogize and alternatively argue that the requirement of INA § 245(a)(3) that the alien have an available visa “at the time his application is filed” actually means that there must be an available visa at the time the application is finally adjudicated. In effect, what we are ultimately saying in both cases is that the official time of “filing” for statutory purposes does not have to correspond to the date when the application papers are physically submitted and ancillary benefits are granted. Although Section 6 of the 1976 Act to Amend the INA, Pub. L. No. 94-571 § 6, 90 Stat. 2703 (1976),substituted the word “filed” for the word “approved” in INA § 245(a)(3), it should not cripple our argument that the statutory moment of “filing” is not necessarily the same thing as the moment the papers are submitted or the moment that ancillary benefits are granted.

The October 2015 Visa Bulletin announced on September 9, 2015 replaced the single priority date with a filing date and a final action date. The final action date is when the beneficiary will be eligible to receive his/her green card, but the new filing date is when the beneficiary will be eligible to file an I-485 application consistent with 8 C.F.R.  245.1(g)(1), and if the beneficiary files an I-485 application, he or she will get the benefits thereof such as an Employment Authorization Document (EAD), advance parole and protection of the beneficiary’s child from aging out under the Child Status Protection Act (CSPA).

Although this appears to be novel, the dual filing dates in the October 2015 Visa Bulletin essentially formalize DOS’ historical practice. Under the filing date, it is now formally acknowledged that visa availability is not defined by when visas can actually be issued to the beneficiary. The October 2015 Visa Bulletin views visa availability more broadly, as has been the DOS’ historic practice,  as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The United States Citizenship and Immigration Services (USCIS) announcement relating to the October 2015 Visa Bulletin, available at http://www.uscis.gov/news/uscis-announces-revised-procedures-determining-visa-availability-applicants-waiting-file-adjustment-status, also expansively interprets visa availability as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These DOS and USCIS announcements provide more flexibility for the DOS to move the filing dates forward, and possibly make them even current. Although both versions of the October 2015 Visa Bulletin indicate that DOS will consult with the USCIS, this is consistent with  22 C.F.R 42.51(b), which assigns primary responsibility to the DOS in controlling visas, but considering applicants for adjustment of status as reported by officers of the DHS.

Taking this to its logical extreme, visa availability for establishing the filing date may be based on just one visa being saved in the backlogged preference category, such as the India employment-based third preference (EB-3), like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this would be consistent with INA section 245(a)(3) as well as 8 C.F.R  245.1(g)(1). Filing dates could potentially advance and become current. Therefore, there was no legal basis to retrogress the priority dates in the revised October 2015 Visa Bulletin. Rather the government could have advanced them. My declaration in support of plaintiff’s TRO in Mehta v. DOL further elaborates on the Thanksgiving turkey concept to provide a legal basis for the filing dates to move forward rather than backward.  My declaration concludes, as follows:

Even if the government claims that it miscalculated the number of visas actually available regarding the filing date so as to justify moving the filing dates backwards, a filing date under the October 2015 Visa Bulletin can be established without regard to whether visas can actually be issued to an applicant. All that is needed is that a single visa should be potentially available for purposes of establishing the filing date.  Accordingly, the DOS and the USCIS ought to have left intact the filing dates that were announced in the first version of the October 2015 Visa Bulletin.

Accordingly, the new filing date system established in the October 2015 Visa Bulletin allows for the filing of an I-485 application without regard to whether visas can actually be issued. On October 1, 2015, which is the start of the new fiscal year, visas will be made available in each of the preferences as statutorily prescribed, as well as to the countries within each of the preferences. It is acknowledged that there will be more foreign national applicants needing the visas than the visas that will be made available for the fiscal year. However, the filing date ought to be established based on the fact that there is a visa available in the preference category.  Even if the government claims that it miscalculated the number of visas actually available regarding the filing date so as to justify moving the filing dates backwards, a filing date under the October 2015 Visa Bulletin can be established without regard to whether visas can actually be issued to an applicant. All that is needed is that a visa should be potentially available for purposes of establishing the filing date.

If the administration wishes to restore the filing dates in the October 2015 Visa Bulletin that were initially announced on September 9, 2015, and they should, there is a clear legal basis for doing so and it will be consistent with the DOS’s historic interpretation of  “immediately available” under INA 245(a)(3) and 8 C.F.R. 245.1(g)(1). Moreover, since “immediately available” has not been precisely defined and is ambiguous, under Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), such a view of visa availability would  constitute a permissible interpretation of the statute by the DOS, which is the federal agency that has been charged to primarily administer the control of visa numbers.In its opposition to the lawsuit,  the government has not disavowed the elastic concept of visa availability through the dual date system.   It justifies the revisions in the second October 2015 Visa Bulletin so as to bring the filing date within 8-12 months of the final action date, but does not provide any mathematical calculations, other than the fact that there has been a retrogression in the priority dates between the September and October visa bulletins. However, the notion of visa availability, as viewed by the government, under INA 245(a)(3) is still elastic, whether the applicant is 8-12 months away or 5 years away or 10 years away. It would be one thing if the government argued that its acceptance of I-485s would lead to their immediate approval and grants of green cards, but they instead assert that the revised filing dates move the applicant to within 8-12 months of the final action date. It would be significant if the INA or even a regulation said that visa availability is determined either by the fact that green cards should be immediately issued or should not be more than 8-12 months from being issued, but there is none of that sort of precision in the INA or the 8 CFR.   Accordingly, it is not outside the government’s statutory authority to restore the September 9, 2015 dates or to even bring them to current under the elastic notion of visa availability, which is consistent with “immediately available” under INA 245(a)(3).

The October 2015 Visa Bulletin, according to the Oppenheim Declaration,  imported the concept of qualifying dates for visa processing at consulates into filing dates, which would apply to both consular processing and adjustment of status applications. Prior to the October 2015 Visa Bulletin, qualifying dates for consular processing purposes apart from allowing the applicant to take the necessary steps for becoming documentarily qualified, did not have any legal significance in the sense that the child’s age did not lock in under the Child Status Protection Act (CSPA) based on a qualifying date. Moreover, INA 245(a)(3) was only applicable to filing adjustment of status applications within the US, and this provision did not apply to qualifying dates. The October 2015 Visa Bulletin acknowledged the administration’s broader understanding of viewing visa availability so as to allow applicants to file under  INA 245(a)(3), and seek ancillary benefits such as 204(j) portability and also protecting the age of the childunder the CSPA. In effect, the qualifying date was elevated to have the same legal significance as the old priority date. Obviously, the government has not acknowledged this in its papers, but what the October 2015 Visa Bulletin did was legally significant, and the abrupt departure from the initially announced October 2015 Visa Bulletin was arbitrary and capricious causing hardship to thousands of applicants who were set to file I-485 applications,   thus warranting a lawsuit under the Administrative Procedure Act and other grounds.

The whole idea of priority dates is not to prevent immigration but to regulate it. That is not what is happening today. If you are from Mexico or the Philippines, the family-based quotas delay permanent migration to the United States to such an extent that it is virtually blocked. The categories might just as well not exist for most people. If you are from China or India with an advanced degree, the implosion of the employment-based second preference (EB-2) and third Preference (EB-3) categories does not regulate your coming permanently to the United States; it makes it functionally impossible. While the bonds that unite family members can be expected to survive many years of waiting, and even this is painfully excruciating, how many employers will wait a decade for an engineer or geophysicist? Will the business need still exist by the time the priority date becomes current? Will the business itself? In a labor certification case, what relevancy will a determination of unavailability concerning qualified American workers retain after such a long wait? Is it fair to keep the worker tied to a single employer for so long?

In conclusion, the elastic notion of visa availability that has always been practiced, and which has been formalized in the October 2015 Visa Bulletin, is consistent with Congressional intent to not prevent immigration. A broader interpretation of visa availability better serves the purposes of the INA, and it must prevail.

Cyrus Mehta

It’s Deja Vu All Over Again: State Department Moves Filing Dates Back From Previously Released October Visa Bulletin

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On September 24, 2015, the Department of State issued an update that supersedes the previously released October Visa Bulletin. By moving many filing dates back, the update radically changed the recently announced benefit offered by a revised procedure for determining immigrant visa availability and filing adjustment of status applications. The revised process allows foreign nationals to file adjustment of status applications in the United States or visa applications overseas once their filing dates are listed on a separate chart on the monthly Visa Bulletin, “Dates for Filing Applications.” In the prior version of the October Visa Bulletin, these dates were significantly earlier than the priority dates available for final adjudications that would result in green cards. The filing of an adjustment application affords significant benefits such as work authorization, travel permission, the ability to exercise job mobility as well as the ability to protect the age of a child under the Child Status Protection Act.

With the latest change for October, the Department of State moved the dates back substantially. In a statement announcing the change, U.S. Citizenship and Immigration Services explained that following consultations with the Department of Homeland Security, the dates for filing applications for some categories in the family-sponsored and employment-based preferences were adjusted “to better reflect a timeframe justifying immediate action in the application process.” Potentially thousands of applicants who had already gathered documents, prepared applications, paid for medical examinations, and incurred other costs based on the previous dates may have to wait many months for their filing dates to be current enough so they can file, unless the situation changes. Advocates are vowing to pursue possible avenues to make that happen.

As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. Both versions of the October Visa Bulletin now view it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current.

As proposed in a 2014 blog, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3,  like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this  would be consistent with INA §245(a)(3).  Filing dates could potentially advance and become current. Therefore, there was no legal basis to retrogress the priority dates. Rather the government could have advanced them.

It is not clear what the government’s motivation was to move the dates backwards when there was no legal need to do so.   Was it that the USCIS could not have been able to cope with the increase in adjustment filings or was it something more sinister such as USCIS or DOS officials with anti-immigrant tendencies gaining the upper hand and deciding not to grant benefits so easily to those caught in the crushing backlogs?  Litigation options are potentially available. under the Administrative Procedure Act on the grounds that the government acted arbitrarily and capriciously. During the July 2007 visa bulletin fiasco, when the American Immigration Council’s Legal Action Center threatened litigation after it rescinded the bulletin that made EB dates current, the government backed down. Any litigation strategy must ensure that the dual date system remains intact as a court could well resolve the issue by voiding the filing dates and restoring only one priority date as before.

Below are a few examples of the extreme changes in the revised October Visa Bulletin:

 

  • EB2 China: Moved from 5/1/2014 to 1/1/2013 (1 year 5 months)
  • EB2 India: Moved from 7/1/2011 to 7/1/2009 (2 years)
  • EB3 Philippines: Moved from 1/1/2015 to 1/1/2010 (5 years)
  • FB1 Mexico: Moved from 7/1/1995 to 4/1/1995 (3 months)
  • FB3 Mexico: Moved from 10/1/1996 to 5/1/1995 (1 year 5 months)

The very least that the DOS and the USCIS should do is to allow a 30 day period for people who could have previously filed on October 1 to be able to do so. One saving grace is that even the revised October Visa Bulletin preserves the dual filing system, and thus there is flexibility in determining visa availability for purposes of establishing more advantageous filing dates in the future. In addition to litigation, consider pursuing other forms of advocacy. During the July 2007 visa bulletin fiasco, thousands of would be applicants sent roses Gandhi-style to the USCIS as a sign of peaceful protest. People should also sign this White House petition in order to get the requisite number of signatures so that it may be considered by the President. In the words attributed to Yogi Berra who died recently, “It’s Deja Vu All Over Again.” Of course, one will experience a more pleasant sense of deja vu if the government restores the earlier filing dates in the October 2015 visa bulletin like it did with the July 2007 visa bulletin.

Cyrus Mehta

Sophie Cruz and Pope Francis: Shattering Myths About Immigrants

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How are immigrants currently combating labels and stigmas and what can we do more to promote immigrant pride?

I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’s online MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my thoughts and how I believe we can shatter the stigmas often attributed to immigrant communities.

 

As Pope Francis arrived in the United States on September 23, 2015 and was cheered by thousands in Washington DC, Sophie Cruz, a 5 year old US citizen whose parents are undocumented, came forward and handed him a t-shirt and a letter. The t-shirt  read, “Pope: rescue DAPA, so the legalization would be your blessing.”

Sophie then said this later in the day:

“I believe I have the right to live with my parents. I have the right to be happy. My dad works very hard in a factory galvanizing pieces of metal. All immigrants just like my dad feed this country. They deserve to live with dignity. They deserve to live with respect.”

President Obama’s executive action announced last November 2014 would have allowed Sophie’s parents to defer their deportations and apply for temporary authorization to remain in the United States so that they could contribute more meaningfully to America. While millions of immigrants and their supporters cheered after Obama’s announcement, not everyone was pleased. Texas, along with 24 more states and governors, sued to block the Deferred Action for Parent Accountability (DAPA) program. Judge Andrew Hanen in a Texas federal district court readily agreed with the plaintiffs that DAPA was not issued in accordance with law and blocked the program. Also blocked was the expansion of another program that was announced in 2012 to allow those who came before 16 and who fell out of status for no fault of their own to defer their deportation. The expansion would have granted work permits for 3 years instead of 2 years, and would have also lifted the age limit of 31. The Fifth Circuit Court of Appeals is about to decide whether to reverse the lower court or not. It is anticipated that the Fifth Circuit will affirm Judge Hanen’s decision, and the battle will move up to the Supreme Court.

Young Sophie’s actions and her interaction with Pope Francis today are powerful and poignant, and perhaps more effective than the current legal team defending the lawsuit. She has shown how mean spirited the efforts have been to block DAPA. Immigrants work very hard and like her dad they “feed this country.”  Pope Francis in turn wants to highlight the lack of access for migrants as one of the most pressing issues of our time.  Sophie and Pope Francis have further shown how wrong Donald Trump has been in falsely claiming that undocumented immigrants from Mexico are criminals and rapists.  While Trump and others wish to abolish birthright citizenship protected by the Fourteenth Amendment, Sophie and the Pope have demonstrated that repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations. The demonization of immigrants reached another nadir recently  when Trump did not dissuade anti-Muslim comments in his rally and Dr. Carson categorically stated that he would never support a Muslim to be President of the United States.

In their serendipitous encounter today, Sophie and Pope Francis courageously shattered the false labels and stigmas that are associated with immigrants. It is not that people want to remain undocumented. They are forced to remain undocumented because our immigration system is terribly broken and does not afford meaningful pathways to legally come to America to work like Sophie’s dad or to unite with families. Congressional inaction in not expanding these pathways has contributed to the buildup of 12 million plus undocumented people, who work hard and contribute to the well being of America, and who now according to Trump, should all be deported. We hope that Sophie and Pope Francis reverse this deplorable trend and shine the way towards repairing America’s broken immigration system. America will only be made great again when Sophie can live without fear and succeed!

Cyrus Mehta

Save the Children Under the New Visa Bulletin

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The changes  made to the priority date system in the October 2015 Visa Bulletin have been positive and will provide much relief to beneficiaries of visas petitions caught in the employment and family-based backlogs. There will be two dates for the very first time: a filing date and a final action date. The filing date will allow the filing of adjustment of status applications if eligible foreign nationals are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.

The October 2015 Visa Bulletin will thus allow the filing of applications prior to the date when green cards actually become available. Until now, the cut-off date was based on when visas were actually available.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the Child Status Protection Act (CSPA) at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.

I celebrated the broadening of the interpretation of visa availability in my last blog,  Godot Has Arrived: Early Adjustment Of Status Applications Possible Under The October 15, 2015 Visa Bulletin,  and was also happy to note that these changes were consistent with what Gary Endelman (who is now an Immigration Judge) and I have propounded since 2010 in The Tyranny of Priority Dates. As a background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

Before the government finalizes all the details, I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA. (There is potential for advocating that beneficiaries who have filed visa applications overseas under the earlier filing date be paroled into the US under INA 212(d)(5) while they wait for the final acceptance date to materialize, but I will reserve this for a future blog).

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Some of my esteemed colleagues have pointed out that one who does not seek to acquire permanent residency within the time of the filing date, but rather, seeks to acquire permanent residence within one year of the final action date may lose out under the CSPA. This may well be the case. However, it is far more advantageous for a child’s age to be locked in at the earlier filing date than the final action date. In order to be consistent and for this scheme to withstand potential legal challenges,  under the broader definition of visa availability which must be applied consistently, permanent residency should be sought within one year of the filing date rather than the final acceptance date.

Gary Endelman and I fine tuned our proposal in 2014 by advocating  that visa availability ought to be based on the just one visa being saved in the backlogged preference category, such as the India EB-3,  like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing through the earlier filing date, and this  would be consistent with INA §245(a)(3). Similarly, this new visa availability ought to also protect the child from aging out under INA 203(h)(1)(A). Filing dates could potentially advance and become current.  Admittedly, it is not expected that the government will follow our “Thanksgiving turkey” proposal to the hilt, at least not yet, and it has been suggested by Greg Siskind on his Twitter feed that the filing dates will not move much in the first few months. The filing of early I-485 applications will give Charlie Oppenheim at DOS a better sense of how visa numbers will actually be utilized for the rest of the year.  “The goal of the changes is not to so much to allow people to file early as to have more accurate final action dates,” according to Siskind.

Regardless of whether the DOS and USCIS wish to advance the filing dates rapidly or not, it is important to protect a child from aging out at the time of the earlier filing date. Apart from ensuring that the parent and child immigrate together, this consistency will also make the new visa bulletin legally sound.  

Cyrus Mehta

Godot Has Arrived: Early Adjustment of Status Applications Possible Under the October 2015 Visa Bulletin

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Gary Endelman and I have advocated for administrative fixes to improve the immigration system since March 2010. In The Tyranny of Priority Dates we proposed that foreign nationals caught in the crushing employment-based (EB) or family-based (FB) backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability. We wrote a follow up blog in August 2014 entitled DO WE REALLY HAVE TO WAIT FOR GODOT?: A LEGAL BASIS FOR EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION little realizing that President Obama would announce major executive actions in November 2014. We also forcefully advocated this position in our response to the Visa Modernization proposals in January 2015.

As a background, INA § 245(a)(3) only allows for  the filing of an I-485 adjustment of status application when the visa is “immediately available” to the applicant. It has always been linked to the monthly State Department Visa Bulletin, which announces dates based on actual visa availability. This has resulted in decade long backlogs in some preference categories. Systemic visa retrogress retards economic growth, prevents family unity and frustrates individual ambition all for no obvious national purpose.   We advocated that there may be a different way of determining visa availability that would not be determined by when visas can actually be given, but when there is a possibility of visas becoming available in the near future, or when there is at least one unused visa remaining in the preference category. Under this new interpretation of visa availability, we proposed that there could be two filing dates: the first would be based on unused visas, and the second is when there are actual visas, which would result in a green card for the applicant.

Godot has finally arrived!

The U.S. Department of State, starting in October 2015, has issued a visa bulletin with two “application dates” for beneficiaries of family-based and employment based immigrant petitions.  There is an application final action date when the beneficiary will be eligible to receive his/her green card, but there is also a date for filing visa or adjustment  applications which is when the beneficiary will be eligible to file, and if the beneficiary files an adjustment of status application, he or she will  get the benefits thereof such as an Employment Authorization Document (EAD), advance parole and protection under the Child Status Protection Act (CSPA).

As an example, Indian born applicants with approved I-140 petitions in the EB-2 category whose priority dates are July 1, 2011 or earlier can begin submitting adjustment applications in October 2015 even though they would not get the actual green card until their priority dates are current under the application final action date table, which could be many years yet.  In the meantime they could avail themselves of the benefits of an adjustment application, such as an EAD,  advance parole and protecting the child from aging out under the CSPA.  It bears repeating that only beneficiaries with priority dates of May 1, 2005 in the EB-2 category can actually receive their green card next month.  This new version of the visa bulletin will greatly impact many who have been caught in the crushing backlogs.

Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application, along with all the accompanying benefits,  and to even lock in the age of a child under the CSPA, whether the applicant is in the United States or processing at a US consulate. While I strongly advocate that the same interpretation concerning visa availability that applies to eligibility for adjustment of status should also apply to the CSPA, we need to await further confirmation from the government on CSPA eligibility.

Here are some preliminary observations after brainstorming with some of my esteemed colleagues at the Alliance of Business Immigration Lawyers, www.abil.com, although these are my own views. We must await further guidance from the DOS and USCIS to be sure, but must strongly advocate for these positions:

  • I-485 adjustment applications filed under the new filing priority date will result in the same benefits, which is EAD, Advance Parole, 204(j) portability and CSPA protection.
  • With respect to an “after acquired” spouse, where the principal already has a pending I-485, the spouse can file under the new filing priority date. Ultimately, both the principal and spouse’s I-485 application will get adjudicated when the priority date of the principal become current under the final action priority date.
  • There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date.
  • With respect to a priority date that has been captured from an old EB petition, the same rules apply – you have to see whether the captured priority date coincides with the filing priority date or the final action priority date.
  • There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date.
  • The new policy applies to both Family I-130 and Employment I-140 petitions.
  • With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA.
  • Do we have to rush to file all our I-485s in October 2015 itself? The jury is not yet out whether the dual priority dates system would cause more backlogs and retrogression; although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch as to how the dates will progress in November and after that.

When Gary Endelman (who has since been appointed as an Immigration Judge) and I commented on the Visa Modernization proposals, we questioned whether the government was truly serious about ameliorating some of the problems in the immigration system through administrative reform. The DOS and DHS have lived up to expectations. At the end of the day, immigration policy is both about fairness, as well as how the United States can attract and retain the best and the brightest regardless of nationality who wish to join us in writing the next chapter of our ongoing national story. There are two ways to achieve progress. Congress can change the law, which it persists in refusing to do, or the President can interpret the existing law in new ways, which he has done. Obviously, the innovations in the visa bulletin are still a band-aid. It would be desirable if applicants get their green cards rather than remain perpetual adjustment of status applicants.  For that to change, for sweeping Comprehensive Immigration Reform to become reality, all of us must realize that immigration is not a problem to be controlled but an asset to be maximized.

Cyrus Mehta

Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues

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The Board of Immigration Appeal’s decision in Matter of J-R-R-A-, 26 I&N Dec. 609 (BIA 2015) is a milestone decision in protecting an asylum applicant who presented competency issues that were not appropriately assessed by the Immigration Judge. It also untangles the ethical conundrum that a lawyer has when the client is unable to testify credibly due to a cognitive disability.

The respondent in Matter of J-R-R-A- was a native and citizen of Honduras, who claimed that he would be harmed upon his return to Honduras by a man who had murdered his brother 15 years ago. His testimony was characterized as confusing, disjointed and self-serving. He also laughed inappropriately during the hearing. Although the Immigration Judge observed that the respondent’s behavior and testimony were unusual, the BIA found that the respondent’s competency should have been assessed under Matter of M-A-M-,  25 I&N Dec. 474 (BIA 2011). In the landmark Matter of M-A-M- decision, the BIA 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. As the respondent demonstrated various indicia of incompetence in Matter of J-R-R-A-, the BIA held that the IJ should have taken measures to determine whether the respondent was competent to participate in these proceedings in accordance with the guidelines in Matter of M-A-M-, and remanded the case back to the IJ.

The BIA could have stopped there and it would have still been a good decision, but the BIA went further and acknowledged that the respondent’s testimony was not credible due to the respondent’s diminished capacity, which prevented him from obtaining asylum. The IJ had denied the asylum claim by curtly opining that the respondent’s cognitive difficulties are “not a license to give incredible testimony.” A respondent presenting an asylum claim must establish a well-founded fear of persecution by demonstrating both a genuine subjective fear of persecution and by also  presenting evidence establishing objectively that such a fear is reasonable. See INS.v. Cardoza-Fonseca, 480 U.S. 421 (1987). In light of such a standard, an asylum claimant must present credible testimony in order to establish his or her subjective fear of persecution, supported by objective evidence to establish that the fear is reasonable. A respondent with diminished capacity may not be capable of presenting credible testimony, and as in the case of the respondent in Matter of J-R-R-A-, may be at grave risk of being denied asylum even if he or she has a genuine fear of persecution.

One can also draw important lessons from this decision for the lawyer who represents a client with diminished capacity. A lawyer under the ethical rules of professional conduct cannot “offer evidence that the lawyer knows to be false.” SeeABA Model Rule 3.3(a)(3). Thus, when a lawyer observes a client presenting testimony knowing that it is false, the lawyer is under an ethical obligation to not have the client offer it. If the client has already offered evidence that the lawyer knows is false, under ABA Model Rule 3.3(b), the lawyer is under an ethical duty to take reasonable remedial measures to rectify the fraudulent conduct, and if necessary, disclose it to the tribunal.   ABA Model Rule 1.14 also instructs a lawyer to maintain a normal lawyer-client relationship as far as possible with a client who presents competency issues, and thus all the ethical rules that affect the lawyer-client relationship are applicable even when a lawyer represents a client with diminished capacity, including the lawyer’s duty of candor to the tribunal. Still, Rule 1.14 allows a lawyer to take reasonably protective action when a client with diminished capacity is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem.

The BIA in Matter of J-R-R-A– implicitly recognized the lawyer’s ethical conundrum regarding her duty of candor to the tribunal, but held that a client with diminished capacity should be allowed to provide testimony that may not be believable so long as there is “no deliberate fabrication involved.” In this way, the lawyer may allow the client  to meet the subjective fear prong under the asylum standard even if the testimony is not true, and the IJ should then focus on whether the respondent met his burden of proof based on the objective evidence in the record.  The BIA commendably recognized that “[t]his safeguard will enhance the fairness of the proceedings by foreclosing the possibility that a claim is denied solely on testimony that is unreliable on account of the applicant’s competency issues, rather than any deliberate fabrication.”

When I last blogged on mental competency issues in immigration practice, I noted that this area was a work in progress and there was much work that needs to be done to develop standards and provide clear guidance. Matter of J-R-R-A-  goes a long way in filling this lacuna by recognizing the vulnerability of an asylum claimant with competency issues, and also reconciling the lawyer’s ethical conflict regarding not offering false evidence to a tribunal.  I also commend readers to the ABA’s recent excellent publication entitled Representing Detained Immigration Respondents of Diminished Capacity: Ethical Challenges and Best Practices. Representing clients with mental competency issues in immigration matters presents great challenges as well as amazing rewards. Such clients are indeed the most vulnerable, especially when presenting complex asylum claims in immigration court. The lawyer plays a vital role in ensuring that the client is protected and is provided with the necessary safeguards, and can also gain tremendous satisfaction in being able to assist such a client navigate through the labyrinthine immigration system and emerging victorious.

At a time when politicians in the western world, swayed by public opinion, are showing increasing hostility toward asylum seekers fleeing persecution, and making it harder for them to assert claims that are accorded to them under law, we can only hope that decisions such as Matter of J-R-R-A-  break the mold  and provide necessary safeguards, especially when asylum claimants have diminished capacity. While this decision involved an adult with diminished capacity, minors inherently have diminished capacity, and should be equally protected under Matter of J-R-R-A- especially when they have undertaken hazardous journeys fleeing persecution, and some have also  died tragically in pursuit of freedom. Although only an administrative decision, Matter of J-R-R-A- is a shining example of how law ought to develop and evolve in safeguarding the rights of a vulnerable population fleeing persecution, notwithstanding the political attitudes of the day.

Cyrus Mehta

Why Birthright Citizenship Is Most Wonderful For America

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Donald Trump advocating that the United States should end birthright citizenship in his immigration reform plan is nothing new. Politicians have frequently brought up the so called dangers of birthright citizenship to pander to their base. Recently in 2011, Steve King (R-IA), one of the most anti-immigrant members of Congress, proposed the Birthright Citizenship Act of 2011, which did not go anywhere because of its absurdity.  Future attempts too will similarly fail since birthright citizenship is too entrenched in the fabric of this nation. It is also good for America.

The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”

Lost in the heated political rhetoric of Trump and other Republican presidential contenders who are parroting him is that it is next to impossible to amend the hallowed Fourteenth Amendment, which was enacted to ensure birthright citizenship to African Americans after the Civil War, and following the infamous Dred Scottdecision that held that African Americans could not claim American citizenship.   In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court  extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

Although in Elk v. Wilkins, 112 U.S. 94 (1984), those born within Native American tribes were not born “subject to the jurisdiction” of this country because they owed allegiance to their tribal nations rather than the United States,  this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924.

Even the Board of Immigration Appeals in Matter of Cantu, Interim Decision #2748, broadly held that one who was born on a territory in 1935, the Horton Tract, where the United States had impliedly relinquished control, but had not yet ceded it to Mexico until 1972, was born “subject to the jurisdiction” of the United States and thus a US citizen.

One can also pick a leaf from the State Department’s book on birthright citizenship. Contrary to the common notion -that parents come to the US to give birth to children so that they may become US citizens – some non-US citizen parents do not desire that their minor children remain US citizens, notwithstanding their birth in the US. Their main motivation is that if they choose not to live in the US permanently, they would rather that the child enjoys the citizenship of their nationality so that he does not suffer any potential impediments later on in that country, such as the inability to vote, attend educational institutions or stand for elected office. This may not be possible if the child is born in the US, since the State Department’s regulation provides that “[i[t is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid passport.” See 22 CFR §53.1.

The relevant extract from the State Department’s 7 FAM 1292 is worth noting to show how difficult it is for a child born in the US not to be considered an American citizen:

  1. Occasionally, CA/OCS or a post abroad will receive an inquiry from the parent of a child born in the United States who acquired US citizenship at birth protesting the “involuntary” acquisition of US citizenship.
  2. Jus soli (the law of the soil) is the rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes. The 14th Amendment states, in part, that: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
  3. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court examined at length the theories and legal precedents on which U.S. citizenship laws are based and, in particular, the types of persons who are subject to U.S. jurisdiction.
  4. Children born in the United States to diplomats accredited to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it [citation omitted].
  5. Parents or guardians cannot renounce or relinquish the U.S. citizenship of a child who acquired U.S. citizenship at birth.
Since a Constitutional amendment requires a favorable vote of two thirds of each house of Congress and ratification by three quarters of the states or the holding of conventions in three quarters of the states, efforts will be made, like H.R. 140 did, to tinker with section 301 of the Immigration and Nationality Act, which replicates the 14th amendment. H.R. 140 strove to narrowly limit birthright citizenship to a person born in the US to parents who were either citizens of the United States or lawfully admitted for permanent residence.

Assuming that such a bill got enacted into law, it would deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child who was not born of parents of the pedigree prescribed in such a law? Would the child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Moreover, would such a law also have retroactive application? It is likely to have retroactive effect since a Constitutional provision ought to only be interpreted in one way for all times. If a new statute interprets the Fourteenth Amendment’s “subject to the jurisdiction thereof” to not include children of parents who were undocumented, or who were not citizens or permanent residents, and this interpretation is upheld by a court,  then children who were born as US citizens will no longer be considered citizens. How far would one have to go then to strip people of citizenship? Parents, grandparents and even great grandparents will no longer be considered citizens, in addition to the child. Millions upon millions of Americans ensconced in comfortable suburbia will overnight be deemed to be non-citizens, perhaps even illegal aliens and deportable.  The repealing of birthright would certainly have unintended consequences of a nightmarish quality, and it is quite likely that some of the repeal’s most strident champions might be declared as “illegal aliens” and unfit to run for office!

The only historic exceptions to those subject to the jurisdiction of the US are diplomats and enemies during the hostile occupation of a part of US territory.  A diplomat, in accordance with Wong Kim Ark, is not subject to the jurisdiction of the US as a diplomat enjoys immunity from US law, but a child of such a diplomat born in the US is at least deemed to be a permanent resident. See Matter of Huang, Interim Decision #1472 (BIA May 27, 1965). Congress even passed legislation to ensure that children of all Native Americans are US citizens. See INA section 301(b). An undocumented immigrant is undoubtedly subject to the jurisdiction of the US. If he commits a crime, he will surely be prosecuted. He can sue and be sued in US courts, and Uncle Sam gleefully collects his taxes as well as his contributions to social security (even if he is unable to claim it later on). One cannot liken an immigrant who has entered the US without inspection with the objective of finding work to a member of a hostile force occupying a part of the US. When a hostile force occupies any part of the US, the laws of the US are no longer applicable in the occupied territory. Thus, children of an occupying enemy alien have not been considered to be born “subject to the jurisdiction” of the US as they did not derive protection from or owe any obedience or allegiance to the country. Inglis v. Sailor’s Snug Harbor, 28 U.S. 99 (1830). By contrast, a terrorist who enters the US in a nonimmigrant status, such as on an F-1 student visa with an ulterior motive to commit an act of terrorism, unlike a member of a hostile occupying force, is subject to the jurisdiction of the US as she can be convicted or treated as an enemy noncombatant, and if she gives birth to child here, the child ought to be a US citizen under the Fourteenth Amendment.

It has also become fashionable for politicians to refer to such children born in the US as “anchor babies,” on the assumption that the US citizen children will legalize their undocumented parents. While this is theoretically possible, the parent will have to wait until the US citizen child turns 21 before the parent can be sponsored for permanent residence. If the parent came into the US without inspection, the parent will have to depart the US and proceed overseas for processing at a US consulate, and will likely have to wait for an additional 10 years. The waiting time is rather long under such a game plan: 21 years, if the parent was inspected;  or 31 years, if the parent crossed the border without inspection.The repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship  renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations.

Now, as a nation, we don’t promise equal outcomes, but we were founded on the idea everybody should have an equal opportunity to succeed. No matter who you are, what you look like, where you come from, you can make it. That’s an essential promise of America. Where you start should not determine where you end up.

Barack Obama

Cyrus Mehta

Opportunity Knocks in Disappointing Decision Vacating Stem Optional Practical Training Rule for Foreign Students

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Adversity is the mother of progress

Mahatma Gandhi

I was at first greatly disappointed to find out that a federal district court judge vacated the 2008 STEM Optional Practical Training rule that extended practical training to F-1 students by an additional 17 months. However, if one reads Washington Alliance of Technology Workers (WashTech) v. DHS closely, the decision does not look so bad and provides an opportunity for the Obama administration to further expand STEM practical training, as promised in the November 20, 2015 executive actions for skilled workers.

Foreign students can receive up to 12 months of OPT upon graduation. In 2008, the Department of Homeland Security under President Bush’s administration published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. Plaintiffs WashTech challenged both the 12 month OPT and the STEM OPT. The challenge to the original 12 month OPT rule was dismissed, but on August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the rule that extended OPT by 17 months for a total period of 29 months for STEM graduates. The 2008 rule was published without notice and comment, and the court agreeing with the plaintiffs ruled that the DHS had not shown that it faced a true emergency situation that allowed the agency to issue the rule without notice and comment.

It is disappointing that Judge Huvelle granted plaintiffs standing in the first place on the flimsy ground that they were currently employed as computer programmers, who were a subset of the STEM market. [Contrast this with the DC Circuit Court of Appeals ruling in Arpaio v. Obama  two days later dismissing Sherriff Arpaio’s standing claim on the spurious grounds that the executive actions would serve as a magnet for attracting more undocumented immigrants to Arizona and fewer people would be deported as a result of these executive actions.] Although the plaintiffs in WashTech were not unemployed, Judge Huvelle speculated that “[a]n influx of OPT computer programmers would increase the labor supply, which is likely to depress plaintiffs’ members’ wages and threaten their job security, even if they remained employed.” It is also somewhat amusing that the judge found the F-1 and H-1B interrelated in order to justify that plaintiffs also had standing under the “zone of interests” doctrine. Without considering that the F-1 visa requires a non-immigrant intent while the H-1B allows for dual intent, the judge held that “F-1 and H-1B perform the interlocking task of recruiting students to pursue a course of study in the United States and retaining at least a portion of those individuals to work in the American economy.”

While this is the bad part of WashTech, the good news is that Judge Huvelle left intact the legal basis for the OPT rule on the ground that the DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Pursuant to the oft quoted Chevrondoctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts. Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it.

Judge Huvelle in WashTech agreed that under Step 1 of Chevron, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is  ambiguous and that Congress has not clarified the word “student”. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. Under Step 2 on Chevron, the 2008 rule was held to be a reasonable interpretation of the ambiguous statutory provision.  For over 50 years, Judge Huvelle acknowledged, the government has allowed students to engage in practical training relating to their field of studies, which Congress has never altered. Indeed, in the Immigration Act of 1990, Congress included a three-year pilot program authorizing F-1 student employment for positions that were “unrelated to their field of study.” Congress would only do this, Judge Huvelle reasoned, because Congress recognized that practical training regulations long existed that allowed students to engage in employment in fields related to their studies. The decision goes into fascinating detail describing the history of practical training from at least 1947. Even after Congress overhauled the law in 1952, practical training continued, and still continued even after the Immigration Act of 1990 overhauled the H-1B visa by setting a numerical limit and imposing various labor protections. The decision also cites old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

Judge Huvelle finally and unfortunately, agreeing with the plaintiffs,  held that there was no emergency to justify the promulgation of the 2008 rule without notice and comment. H-1B oversubscription as a reason for the emergency in 2008 was “old hat” as the government conceded that the H-1B program has been consistently oversubscribed since 2004. Fortunately, Judge Huvelle sensibly realized that vacating the rule immediately would force “thousands of foreign students with work authorizations…to scramble to depart the United States.” Hence, the court stayed vacatur till February 12, 2016 during which time the DHS can submit the 2008 rule for proper notice and comment.  In the meantime, foreign students in STEM OPT have some respite, and those who are eligible for STEM OPT should be able to apply for a 17 month extension so long as they do so before February 12, 2016, although we need some affirmative guidance from the USCIS on this.

The DHS now has a golden opportunity to expand practical training through notice and comment even beyond a total of 29 months, and must do so on or before February 12, 2016 in compliance with the WashTech decision. Despite the protestations of Senator Grassley, who like WashTecstridently opposes the notion of foreign student practical training, Judge Huvelle’s decision has blessed the legal authority of the DHS to implement practical training under Chevrondeference. As discussed in my prior blog, Senator Grassley in his angry missive to the DHS had leaked that the DHS was  moving on new regulations to allow foreign students with degrees in STEM fields to receive up to a 24 month extension beyond the original 12 month OPT period even prior to the final Washtech decision.  If a student obtains a new degree, he or she can again seek a 24 month extension after the original 12 month OPT period. The proposed regulations would further authorize foreign graduates of non-STEM  degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

While this will put tremendous pressure on the DHS to propose a rule for notice and comment before February 12, 2016, it would be well worth it before all talented foreign students who would otherwise benefit the United States are forced to leave. As a result of the H-1B cap, it is the STEM OPT that has allowed foreign students to be employed in the United States. The prospect of no STEM OPT combined with the limited number of H-1B visas annually would be devastating not only for the tech sector, but for American universities, foreign students and for the overall competitiveness of the United States.  WashTech may have successfully been able to obtain a vacatur of the 2008 rule effective February 12, 2016, but theirs is only a Pyrrhic victory since the court has essentially endorsed the legality of both the 12 month practical training periods and any extensions beyond that.