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How One Employee’S Complaint Can Lead to a Full Blown Investigation of an H-1B Employer’S LCA Records

December 30, 2015/0 Comments/in Blog/by Cora-Ann Pestaina

A recent U.S. Court of Appeals decision in Greater Missouri Medical Pro-Care Providers, Inc.ARB Case No. 12-015, ALJ Case No. 2008-LCA-26 (2014), is worth noting as it addressed the issue of how much latitude the DOL has to investigate an H-1B employer’s H-1B documents and records.

As background, an employer seeking to employ a temporary foreign worker in H-1B (also H-1B1 or E-3) nonimmigrant status must, as the first step in the petition process, file a Labor Condition Application (LCA) with the Department of Labor (DOL) and receive certification. The LCA is completed on electronic Form 9035 and submitted through the DOL’s iCERT system. The LCA collects information about the occupation including the occupational title, the number of immigrants sought, the gross wage rate to be paid, the starting and ending dates of employment, the place of employment, and the prevailing wage for the occupation in the area of intended employment. The LCA contains special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. The employer must also state that its employment of nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment. An employer is permitted to file the LCA no more than six months before the initial date of intended employment. See 8 U.S.C. § 1182(n)(1)ID); 20 C.F.R. §§ 655.730-733.

Once the LCA is filed, the DOL must approve it within 7 days unless the application is incomplete or obviously inaccurate. 20 C.F.R. §§ 655.740(a)(1)-(2). Within one day of the LCA filing, the employer must maintain a public access file accessible to interested and aggrieved parties. The file must be available at either the principal employer’s place of business or at the employee worksite. 20 C.F.R. § 655.760(a). An aggrieved employee has 12 months after the latest date on which an alleged violation was committed to file a complaint with the DOL Wage and Hour Division (WHD). 20 C.F.R. § 655.806(a)(5).

In Greater Missouri, the employer hired numerous physical and occupational therapists from the Philippines on H-1B status. As required, the employer filed LCA applications for the desired workers. One H-1B employee, a physical therapist from the Philippines, filed a complaint alleging that she had personally paid all the fees, including attorney’s fees, to file and to extend her H-1B status and that the employer failed to pay her during a nonproductive period of over one year when she was reviewing for her licensing exam. The employee also questioned whether the H-1B employer was legally permitted to charge her a fee for “breach of contract” due to her early termination of her employment.

Upon review of the employee’s complaint (forwarded to the DOL by the Missouri state regulators), the DOL treated it as an “aggrieved party” complaint and the DOL investigator concluded that there was “reasonable cause” to investigate the charge that the H-1B employer had attempted to require the employee to pay a penalty for ceasing her employment early. Based only on the determination that this one charge was worth investigating, the DOL investigator launched a full scale investigation and sent a letter to the H-1B employer requesting all of its H-1B documents and records. The DOL investigator also interviewed the aggrieved employee and the employer’s other H-1B workers.

Based on its investigations, the DOL found that the employer improperly failed to pay wages to employees who it had placed in nonproductive status (benched); made improper deductions from employee wages for H-1B petition fees; and required or attempted to require improper penalty payments from some employees for early termination. The employer was ordered to pay over $380,000 in back wages to 45 employees.

The employer fought back by requesting a hearing before an Administrative Law Judge (ALJ). The employer argued that the applicable statute and regulations limited the DOL’s investigation to the specific issues of the complaint that was filed and only to that aggrieved party’s LCA. The employer also argued that the statute and regulations impose a 12 month time limit for investigating violations. However, the ALJ held that the 12 month time limit only refers to when a complaint can be filed and does not refer to the scope of remedies that can be meted out. The ALJ issued a decision ordering the employer to pay back wages, fees for illegal fee deductions and amounts to employees for illegally withholding paychecks. When the ALJ failed to hold in the employer’s favor, the employer petitioned for review before the Administrative Review Board (ARB).

The ARB held that the DOL indeed had the authority to investigate alleged violations involving H-1B workers who did not file complaints but also held that violations that occurred outside of the 12 month period prior to the filing of a complaint are not actionable. However, the ARB affirmed the order for employer to pay awards. The employer took the case up to the District Court which affirmed the ARB’s decision and payment of awards. The employer then appealed to the US Court of Appeals. The DOL did not appeal the District Court’s ruling that violations that occurred outside the 12 month period are not actionable.

In the end, the Court of Appeals held that the DOL’s initial investigatory authority is limited to the complaint that was filed and to those specific allegations and the DOL was not authorized to launch a comprehensive investigation of the employer based only on a single allegation by one employee. The Court of Appeals recognized that additional violations could come to light in the course of the DOL’s investigation of a single complaint and that the DOL may need to modify or expand its investigation based on reasonable cause. However, the Court of Appeals found that this was not how the investigation proceeded in the instant case. The Court of Appeals held that the awards cannot stand because the ARB’s finding of violations and the resulting awards were based entirely on the DOL’s unauthorized investigation of matters other than the allegation in the aggrieved party’s complaint. The US Court of Appeals reversed the judgment of the District Court.

While this was ultimately a victory for the H-1B employer and it is good to note that the DOL does not have sweeping authority to investigate allegations of violations that fall outside of the 12-month statute of limitations, this case is nevertheless a cautionary tale for all H-1B employers. Even a single complaint from one disgruntled employee could lead to a comprehensive investigation of the employer’s H-1B practices. Even though the Court of Appeals in Greater Missouri found that the DOL had overstepped in its initial investigation, the court also pointed out that the DOL may modify its investigation of a single complaint if other violations come to light. Greater Missouri also highlights the fact that once allegations are made, the employer bears the burden of proof to prove that it has complied with the LCA attestations. Therefore, the importance of excellent record keeping cannot be overstated.

Going into 2016, it would be a good idea for any H-1B employer that is not 100% confident in its LCA records, and its ability to withstand a DOL audit of those records, to conduct a self-audit on behalf of the employer and bring to light any issues that the employer can immediately correct and ensure that it is in compliance. Such a self-audit will give the employer the confidence that it needs should the DOL ever launch an investigation and will help the employer to avoid the potential financial and reputation damage that could come from such an investigation. When it comes to DOL investigations, the proactive approach is always best.

Are We Trying to Penalize Failure to Serve in the Syrian Army? How Recent Changes to the Visa Waiver Program Go Too Far

December 23, 2015/0 Comments/in Blog/by David Isaacson

Section 203 of Division O of the recently enacted Consolidated Appropriations Act, 2016, which funds the U.S. government for the remainder of the current 2016 fiscal year (through September 2016), also adds new restrictions on use of the Visa Waiver Program (“VWP”) that exists under section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. §1187. The title of Section 203 is “RESTRICTION ON USE OF VISA WAIVER PROGRAM FOR ALIENS WHO TRAVEL TO CERTAIN COUNTRIES”, and it appears to have been inspired by reports that the November 2015 terrorist attacks in Paris were carried out by French and Belgian nationals, many of whom had traveled to Syria. However, the text of the law as enacted goes further than the title. In particular, the amendments that Section 203 makes to INA 217 apply to certain people who may never have been to any of the countries with which Congress was concerned in enacting the bill, if they are nationals of one of those countries as well as a VWP country. As this post will explain, this portion of Section 203 could have an unfair and at times truly bizarre impact.

The VWP allows citizens of certain countries designated by the Secretary of Homeland Security (formerly by the Attorney General), in consultation with the Secretary of State, to enter the United States as visitors without the need to apply for a visa at a U.S. consular post abroad. A list of currently eligible countries is available on the Department of State website and from CBP as well. VWP entrants are limited to 90-day admissions pursuant to INA §217(a)(1), must waive various rights to contest removal under INA §217(b), and must apply for advance clearance through the Electronic System for Travel Authorization (ESTA) run by U.S. Customs and Border Protection (CBP), but the ability to visit without going through the consular visa application process is still an attractive option for citizens of qualifying countries.

New section 217(a)(12) of the INA, as enacted by section 203 of Division O of the Consolidated Appropriations Act, 2016, adds the following requirements for use of the VWP:

(12) NOT PRESENT IN IRAQ, SYRIA, OR ANY OTHER COUNTRY OR AREA OF CONCERN.—

(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C)—

(i) the alien has not been present, at any time on or after March 1, 2011—

(I) in Iraq or Syria;

(II) in a country that is designated by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III) in any other country or area of concern designated by the Secretary of Homeland Security under subparagraph (D); and

(ii) regardless of whether the alien is a national of a program country, the alien is not a national of—

(I) Iraq or Syria;

(II) a country that is designated, at the time the alien applies for admission, by the Secretary of State under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism; or

(III) any other country that is designated, at the time the alien applies for admission, by the Secretary of Homeland Security under subparagraph (D).

(B) CERTAIN MILITARY PERSONNEL AND GOVERNMENT EMPLOYEES.—Subparagraph (A)(i) shall not apply in the

case of an alien if the Secretary of Homeland Security determines that the alien was present—

(i) in order to perform military service in the armed forces of a program country; or

(ii) in order to carry out official duties as a full time employee of the government of a program country.

(C) WAIVER.—The Secretary of Homeland Security may waive the application of subparagraph (A) to an alien if the Secretary determines that such a waiver is in the law enforcement or national security interests of the United States.

(D) COUNTRIES OR AREAS OF CONCERN.—

(i) IN GENERAL.—Not later than 60 days after the date of the enactment of this paragraph, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall determine whether the requirement under subparagraph (A) shall apply to any other country or area.

(ii) CRITERIA.—In making a determination under clause (i), the Secretary shall consider—

(I) whether the presence of an alien in the country or area increases the likelihood that the alien is a credible threat to the national security of the United States;

(II) whether a foreign terrorist organization has a significant presence in the country or area;

and

(III) whether the country or area is a safe haven for terrorists.

Although INA §217(a)(12)(A)(i), consistent with the title of new INA §217(a)(12), bars use of the VWP only persons who have actually been present in Iraq or Syria or another country of concern, after March 1, 2011, other than as a government employee or military member of a VWP country, new §217(a)(12)(A)(ii) goes significantly further than that. Quite apart from whether someone was present in Syria, Iraq, or another covered country after March 2011 – or has ever been present there – they will be excluded from use of the VWP if, in addition to being a citizen of a VWP-qualifying country, they are also a national of Iraq, Syria, or another covered country. The only exception will be if a waiver is granted to a particular person under INA §217(a)(12)(C) on the basis that “such a waiver is in the law enforcement or national security interests of the United States”.

The other covered countries besides Iraq and Syria, pursuant to new INA 217(a)(12)(A)(i)(II)-(III) and (A)(ii)(II)-(III), include those designated as state sponsors of terrorism by the State Department under several named laws, as well as any countries the Secretary of Homeland Security may later designate under §217(a)(12)(D). The State Department’s list of designated state sponsors of terrorism currently includes Iran, Sudan, and Syria. Syria is already named in INA §217(a)(12)(A)(i)(I) and (A)(ii)(I), but the other two are not. So in total, new INA §217(a)(12)(A)(i) currently applies to nationals of Syria, Iraq, Iran, and Sudan.

According to the Refworld web service of the Office of the UN High Commissioner for Refugees (UNHCR), Article 3.A. of the Syrian nationality law provides that in addition to other sources of nationality, “Anyone born inside or outside the country to a Syrian Arab father” has Syrian nationality. Article 10 of that same law allows a Syrian Arab to forfeit Syrian nationality upon acquiring foreign nationality, but only “provided that a decree has been issued, based on his request and upon recommendation by the Minister [of the Interior], allowing him to abandon his nationality after having fulfilled all his duties and obligations towards the state.” Thus, it appears that one who is born to a Syrian father, and may never have been to Syria, cannot simply avoid or give up Syrian nationality because he no longer wants it, particularly if he has not “fulfilled all his duties and obligations towards the state.” It seems likely, particularly in light of the similar Iranian provision discussed below, that this requirement to have fulfilled one’s “duties and obligations towards the state” is a reference, at least in part, to military service obligations.

Iranian nationality law, as reported by Princeton University’s Iran Data Portal, similarly provides for automatic acquisition of nationality through one’s father and does not allow loss of nationality at will. Article 976, Section 2, of the law bestows Iranian nationality on “Those whose fathers are Iranians, regardless of whether they have been born in Iran or outside of Iran.” Pursuant to Article 988, Iranian nationality can only be abandoned by those who “have reached the full age of 25”, and then only if “the Council of Ministers has allowed their renunciation of their Iranian nationality”, they have undertaken to transfer all rights they possess or may inherit to land in Iran, and “they have completed their national military service.” Those born to Iranian fathers who are under 25, have not completed their military service, do not wish to give up land in Iran, or incur the displeasure of the Council of Ministers, are evidently stuck with their Iranian nationality whether they want it or not.

Iraqi nationality law as reported by Refworld is not quite as bad in this regard, but Article 10(I) of that law does require a written renunciation of one’s Iraqi nationality before even one who has acquired a foreign nationality will lose his or her Iraqi nationality. It is unclear how a child could meaningfully execute such a renunciation, and an adult who becomes a citizen of a Visa Waiver Program country may never have thought to do so, even if he or she had no intention of going back to Iraq and never did.

Sudanese nationality law, as reported by Refworld, makes it easier to give up nationality than in the case of Iran or Syria, but not as easy as in the case of Iraq. Section 4(1)(b)(i) includes among those who are Sudanese nationals anyone whose “father was born in Sudan.” Under Section 10(a), the President of Sudan “may decide to revoke Sudanese nationality from” anyone over the age of majority who is proven to have “made a declaration renouncing his Sudanese nationality”, but the President is specifically given the power to “reject such a declaration if it was made during any war which Sudan participated in.” The law does not clarify whether the President can simply “decide” not to revoke nationality from one who has made a declaration of renunciation even absent such a war.

Thus, many citizens of VWP countries who lack any continuing meaningful ties to a country of concern, or never had any such ties, may be affected by the prohibition of INA §217(a)(12)(A)(ii). Children born to a Syrian, Iraqi, Iranian, or Sudanese father, who are too young to have signed written statements giving up their citizenship, will be barred from the VWP. Adults who have lived their entire lives in VWP countries, but were born to Syrian or Iranian fathers, and could not give up their citizenship under Syrian or Iranian law because they did not fulfill their military service obligations to Syria or Iran, will be barred from using the VWP. This is a rather bizarre result, since one doubts that Congress would have wanted to penalize people for not serving in the Syrian or Iranian military, had the issue been thought through. Perhaps the Secretary of Homeland Security could issue some sort of collective waiver under §217(a)(12)(C), on the basis that it would be in the national security interests of the United States not to encourage service by nationals of VWP countries in the Syrian and Iranian militaries, but that would be a rather cumbersome way to deal with a problem that should not exist in the first place.

Lest this discussion of what one might call involuntary nationality be thought overly academic, it is worth noting that U.S. immigration law does recognize, in at least one other context, the possibility that a person can be penalized for the existence of a nationality which the U.S. government believes them to hold but which they have never sought to use. In Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), an asylum applicant who had been born in Venezuela, and was a citizen of Venezuela, was denied asylum after the Department of Homeland Security (DHS) “submitted evidence that [he] was a citizen of Spain by birth, because his father was born in Spain and was a citizen of that country.” 26 I&N Dec. at 120. Since the applicant in Matter of B-R- did not contest on appeal that he was a citizen of Spain as found by the Immigration Judge, and since he had not argued that he had unsuccessfully attempted to avail himself of the protection of Spain, he was held to be ineligible for asylum because he lacked a fear of persecution in Spain. Matter of B-R-, 26 I&N Dec. at 122 It would seem, under the logic of Matter of B-R-, that INA §217(b)(12)(A)(ii) will apply equally to those who are citizens of Syria, Iraq, Iran, or Sudan solely because of the status of their fathers.

It is true that those barred from the VWP by their Syrian, Iraqi, Iranian or Sudanese dual nationality will not actually be barred from visiting the United States. Rather, persons barred from the VWP on account of their dual nationality will be able to apply for nonimmigrant B-1 or B-2 (or combined B-1/B-2) visas at a U.S. consular post, just like those who are not citizens of VWP countries. But to subject citizens of friendly nations to this additional hurdle solely because of their paternity and possibly failure to satisfy obligations to Syria or Iran, as §217(a)(12)(A)(i) in effect does in some cases, is inappropriate. People who were born in Belgium or France or the UK or some other VWP country and have never left, or have lived in a VWP country for decades and never traveled to a country of concern, should not be precluded from using the VWP because of who their fathers were.

Moreover, because visa waivers are often offered on a basis of reciprocity, INA §217(a)(12)(A)(ii) could have a mirror-image effect on innocent U.S. citizens with the requisite parentage. European Union regulations, for example, as pointed out by NIAC Action (the sister organization of the National Iranian American Council), already provide for the imposition of visa requirements on citizens of countries who have themselves imposed visa requirements on EU nationals. So it is possible that the restrictions imposed by U.S. law on citizens of VWP countries who have dual citizenship in a country of concern, and may be unable to get rid of it, could be imposed by EU countries on U.S. citizens who have such dual citizenship.

Before INA §217(a)(12)(A)(ii) and the rest of Section 203 of the Consolidated Appropriations Act became law, AILA warned against hastily enacting its language in the form of what was then H.R. 158 unless the bill were modified and clarified in a variety of respects (including the nationality provision and other aspects such as legitimate travel to the countries of concern by journalists and humanitarian workers and so on). It is unfortunate that Congress did not heed this warning. The statute should be amended, whether by this Congress or by a future Congress, so that it does not bar from the VWP nominal citizens of covered countries who have not recently been to those countries. Other changes to the language produced by the same rushed process that gave us the above-discussed absurd results, although outside the scope of this blog post, may also be warranted.

San Bernardino Attacks Fallout: Will it Get Harder for Americans to Marry Foreign Spouses Overseas?

December 14, 2015/0 Comments/in Blog/by Cyrus Mehta

The USCIS has promised to review the K-1 visa procedures after the San Bernardino attacks since one of the attackers entered on this visa. The K-1 visa is commonly used by a fiancé of a US citizen spouse to enter the United States, and one of the conditions (with some exception) is that the parties must have met within the past two years prior to filing the application. Once the fiancé enters the United States, he or she must get married to the US citizen within 90 days, and then apply for the green card.

While it is unfortunate that a foreign terrorist used the K-1 visa, this does not mean that the K-1 visa should be restricted for all fiancés. The K-1 visa provides the only access for a fiancé to enter the US. While one can enter the United States as a visitor to get married, one cannot also enter with the intention of adjusting to permanent residence status in the United States. Curtailing the K-1 visa will also limit the ability of US citizens to seek foreign spouses. Moreover, the K-1 visa procedure already has in built rigorous screening, and this author has known of delays due to security clearance of K-1 applicants even prior to the California terrorist attacks that left 14 people dead.

As an alternative to the K-1 visa, a US citizen can marry a foreign spouse and directly petition for an immigrant visa. There is only a marginal difference in the time it takes under both the processes. From the point of view of not waiting to celebrate the marriage, it is quicker. However, in terms of processing time, it takes about the same amount of time for a K1 visa or marriage based I-130 petition to get approved, and the same amount of time for the scheduling of the interview at the US consulate. Once the K-1 visa is issued, the parties have to get married in the United States within 90 days prior to filing the green card application (if they get married after 90 days, the I-130 petition must be filed). Thus, there is an additional extra step before the applicant can receive the green card when compared to a beneficiary of a spousal I-130 visa petition who is admitted into the United States as a permanent residence.

Even if the K-1 visa is not curtailed by Congress (and hopefully that will not be the case), there is bound to be more scrutiny after the shootings. To be eligible for the K-1 visa, it is important that there be no legally valid marriage as the applicant must remain a fiancé. Even religious marriages that are legally recognized as marriages may disqualify the applicant. The authorities will try to ferret out cases if they discover that the parties got married prior to the issuance of the K-1 visa. In traditional cultures, a marriage is generally preferred, and if an applicant is not permitted to be with the prospective US citizen spouse without a marriage, one should not file the K-1 visa and directly file for a spousal immigrant visa. In fiscal year 2014, only 4 K-1 visas were issued in Saudi Arabia as compared to 7, 228 K-1 visas in the Philippines. Still, even if there is no marriage, the authorities will look more closely after the San Bernardino shootings to see whether this is a bona fide relationship, which is harder to prove when there is no marriage. There will also be more security checks and delays relating to the K-1 visa, although even in the past, delays as a result of security checks were extremely frequent.

The essential point that must be made is that terrorism is separate from immigration. While additional screenings for K-1 visa applicants will be inevitable, they must not in effect nullify the K-1 visa. By the same token, beneficiaries of marriage-based I-130 petitions should also not get excessively delayed as a result of additional scrutiny. Both the K-1 and I-130 procedures take upward of six months, and fiancés as well as spouses from countries with predominant Islamic populations have in any event been impacted since 9/11. It has also been revealed that the shooter who received the K-1 visa also talked openly on social media about violent jihad. Those social media comments were not subject to the security checks that she underwent, and in the future, the authorities are more likely to pry into one’s comments on social media. While comments relating to causing violence should be taken seriously in the visa application process, it is hoped that harmless comments made in the exercise of free speech in opposition to US policy or events, such as feeling disgust about Donald Trump’s statements regarding banning Muslims or criticizing US drone policy, should not be used as a basis to play “gotcha” during the security screening of a visa applicant.

US citizens must be free to marry foreign spouses of their choosing. Imagine if Trump’s desire to ban Muslims from being admitted become reality. Americans will not be able to bring in fiancés or spouses who are Muslims. Note that this has de facto been the case, exemplified in the Supreme Court case of Kerry v. Din, where the plurality of the court upheld the limited power of courts to review adverse consular decisions. In Kerry v. Din, the foreign national spouse in Afghanistan was denied an immigrant visa by citing the terrorism ground of inadmissibility, INA 212(a)(3)(B), without any further explanation.

US immigration law is already very complicated, made further convoluted with security checks since 9/11. There is no need for Congress to curtail the K-1 visa, which in turn will make it harder for Americans to marry foreign spouses abroad. It is hard for an employer to sponsor a foreign national employee for a green card as the employer must certify that it was not able to find an available and willing US worker before being able to sponsor a foreign employee for a green card. The reason for this is that there is a countervailing policy interest in protecting American jobs. It would be absurd to similarly restrict an American’s ability to marry and sponsor a foreign spouse as a result of countervailing security concerns. One unfortunate misuse of the K-1 visa, which has otherwise worked very well, should not be the reason to make it harder for Americans to marry foreign spouses overseas.

Winter Blues: Freezing the Age of a Child Under the December 2015 Visa Bulletin

December 7, 2015/1 Comment/in Blog, uncategorized/by Cyrus Mehta

Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child turns 21, the child cannot automatically obtain permanent residency status with the parent, and thus the CSPA freezes the age of a child below 21.

The new filing date in the Visa Bulletin allows for the early filing of I-485 adjustment of status applications if eligible applicants 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 filing date thus allows for the early submission of adjustment applications prior to the date when green cards actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the filing date should allow applicants to submit the DS 260 immigrant visa application.

Prior to the October 2015 Visa Bulletin, the cut-off date was based on the government’s ability to issue a green card during that month. 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 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.]

Notwithstanding the abrupt retrogression of the filing dates on September 25, 2015 that were first announced on September 9, 2015, thus impeding the ability of thousands who were ready to file adjustment applications on October 1, 2015, the dual date system still exists, albeit not as advantageously as before. The Visa Bulletin has been further undermined after the USCIS was given authority to determine filing dates for purposes of filing adjustment applications. One has to now also refer to http://www.uscis.gov/visabulletininfo to determine whether adjustment applicants can use the filing dates each month established by the State Department in the Visa Bulletin. For the first two months in 2015, October and November, the USCIS indicated that the filing dates could be used, but for December 2015, the USCIS abruptly announced without explanation that only the final action date could be used for filing I-485 applications. This has caused further confusion regarding the applicability of the CSPA.

As 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 Visa Bulletin in its new reincarnation 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. Thus, the government’s argument that it made a mistake when announcing the more advantageous filing dates on September 9, 2015 in the lawsuit, Mehta v. DOL, makes no sense. Indeed, 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. 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.

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.

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.

Even though the filing date may not be available for submitting an adjustment application under December 1, 2015, according to the USCIS, this should not preclude an applicant from claiming the earlier filing date for purposes of freezing the age of the child below 21 years. In order to meet all the conditions of freezing the age under the CSPA, the child should have also sought to acquire lawful permanent residency within one year of visa availability, which is arguably the filing date. However, what if the USCIS does not allow usage of the filing date for I-485 applications for more than a year? Does this mean that the child’s age cannot be protected under the CSPA? One possibility is to seek permanent residency through consular processing, and file Form I-824, which enables consular processing of an approved I-130 or I-140 petition. The filing of Form I-824 would constitute evidence of seeking to acquire permanent residency within one year of visa availability, which is when the filing date became current. Even if the parent and child are unable to file an adjustment application, or even be able to obtain a green card imminently, filing the I-824 at least clearly fulfills the condition of seeking to acquire permanent residency within one year of visa availability. Once the USCIS allows usage of the filing date, an adjustment application can subsequently be filed, and the filing of the I-824 application to initiate consular processing would constitute solid evidence of the applicant seeking permanent residency within one year of visa availability.

Until there is more clarity, it makes sense to take advantage of the earlier filing date to protect the age of the child, and then seek to acquire permanent residency within one year of the filing date becoming current. Of course, given that there is no harmony between the DOS and the USCIS with respect to availability of filing dates, it may be possible to also claim the final action date for purposes of protecting the age of the child, and then seeking to acquire permanent residency within one year of the final action date becoming current. I had suggested in my earlier blog that permanent residency should only be sought within one year of the filing date becoming current so that the concept of visa availability be applied consistently. However, given that the USCIS has not permitted the filing of I-485 applications in the month of December 2015, although the State Department has released a filing date, a child applicant should take advantage of either the filing date or the final action date for purposes of CSPA protection.

There has undoubtedly been much confusion caused by the new Visa Bulletin that took effect on October 1, 2015. While there is an ongoing legal fight to challenge the government’s abrupt reversal of the filing dates on September 25, 2015, we must also force the government to agree with the interpretation that the CSPA should lock in a child’s age based on the new filing date. In the months when the USCIS does not permit adjustment submissions based on the filing date, applicants should still be able to lock in the CSPA age based on the filing date in the Visa Bulletin, as well as based on the final action date, whichever is more advantageous. It is really surprising that the government has said nothing thus far, and hopefully, this blog should prompt a discussion.

The Proposed USCIS Guidance on Job Portability: Good, Bad or Ugly?

November 30, 2015/0 Comments/in Blog/by Cyrus Mehta

INA 204(j) was enacted on October 6, 2000 as part of the American Competitiveness in the 21^st Century Act (AC 21). This provision is rather innovative as it allows for the beneficiary of an approved I-140 immigrant visa petition to exercise portability to a same or similar job if an I-485 adjustment application has been pending for more than 180 days. The purpose behind INA 204(j) is to provide job flexibility to foreign national workers when there have been delays in processing an application for permanent residency.

The actual verbiage in INA 204(j) for the benefit of readers is as follows:

A petition under subsection (a)(1)(D) [redesignated as (a)(1)(F)] for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification as the job for which the petition was filed.

While Congress had contemplated a delay of 180 days as being intolerable, the delays can be far worse. For instance, one can file an I-485 application when the priority date becomes current, and then it may retrogress, resulting in the I-485 application remaining pending for years. A case in point is when applicants filed I-485 adjustment applications under the July 2007 visa bulletin, when it was current, and many under the India employment –based third preference are still pending after the dates retrogressed the following month in August 2007. With the new innovation in the Visa Bulletin starting October 2015 – resulting in a filing date and final action date – there will also likely be longer than 180 day waits after an I-485 application has been filed pursuant to a current filing date.

Given that 204(j) was created to promote job mobility for workers who would otherwise be stuck in the same job without any career progression, it is important that the USCIS broadly interpret whether “the new job is in the same or a similar occupational classification as the job for which the petition was filed.” If the conditions of 204(j) are met, the labor certification and I-140 petition filed by the prior employer remain intact, and the worker can port and obtain the green card through a new job, provided it is same or similar to the one that was the subject of the labor certification and I-140 petition. INA 204(j) promotes job flexibility either with a new job through another employer or a different job with the same employer.

This is why the proposed guidance memo from the USCIS issued on November 20, 2015 has received so much attention. Once this guidance memo is finalized, and the public has until January 4, 2016, to comment, will the memo spoil the party or would it make it easier for foreign national employees with pending I-485 applications? Till now, at least in this author’s experience with respect to meritorious cases and based on anecdotal information from other attorneys, it has generally been possible to make a winning argument that the job is same or similar without the need for a guidance memo, based on the plain language of 204(j). At the same time, many have been hesitant to change jobs due to the risk of the USCIS not accepting that they have moved to similar employment without proper guidance. The proposed guidance is not yet final, and there is scope to improve it so that workers can avail of optimum job mobility as Congress intended when enacting INA 204(j).

The proposed guidance first attempts to divine the plain language meaning of same or similar. With respect to the meaning of “same,” there should be little difference in opinion. The two jobs have to be “identical”, according to the Oxford English Dictionary or “resembling in every relevant respect”, according to the Merriam-Webster Dictionary. Divining the plain meaning of “similar” becomes more contentious. The proposed guidance indicates that it could mean “alike in substance or essential, ” according to the Merriam-Webster dictionary or it could mean “having a marked resemblance or likeness”, according to the Oxford English Degree. The proposed guidance then selects the Oxford English Dictionary definition and pronounces that “similar” under 204(j) means “having a marked resemblance or likeness.” But there are other definitions of “similar” that are broader than the Oxford English Dictionary’s definition. For example, this author’s version of the Oxford American Dictionary includes one definition of “similar” as “resembling something but not the same.” Why does USCIS choose only one definition over all others? “Resembling something but not the same” provides more flexibility than “having a marked resemblance or likeness.” A Google search for the definition of “similar” reveals “resembling without being identical.” Even this is a better definition to “having a marked resemblance or likeness” which is what the USCIS has selected for its proposed guidance. Rather than for the USCIS to select one definition of “similar” to others, it ought to allow applicants exercising portability to establish the definition of “similar” through any credible dictionary source.

The proposed guidance also slavishly adheres to the DOL’s Standard Occupational Classification (SOC) codes. It is true that INA 204(j) requires that the job be in “the same or a similar occupational classification,” but that does not mean that Congress said it must be the DOL’s SOC. While the proposed memo also guides USCIS adjudicators to view other evidence, and properly reminds them to use the preponderance of evidence standard, there is a risk that a USCIS adjudicator may rely exclusively on the SOC codes of the occupation that was subject to the employer’s sponsorship and the new occupation. Too much reliance on the SOC codes is problematic as it can lead to excessive rigidity, thus undermining an adjudicator’s ability to provide flexibility to the applicant, which is what is intended in 204(j) . In an employer sponsored green card process involving labor certification, the DOL is notorious for not assigning a correct code. Note also that the SOC does not cover every occupation under the sun. The SOC is a successor to the now obsolete Dictionary of Occupational Titles (DOT), which covered many more occupations. The DOL has a tendency to assign an SOC with the objective of forcing the employer to pay the higher wage, and the duties described under an SOC occupation need not exactly match the duties of the actual position. For example, if an employer requests a prevailing wage determination and suggests the SOC code of 19-1042.00 corresponding with “Medical Scientists, Except Epidemiologists” , the DOL may instead assign “Natural Sciences Managers” corresponding to SOC code 11-9121. This may be the case even though the position primarily involves research in a distinct scientific field, with some coordination in planning the research with other colleagues in the research laboratory. While Clinical Research Coordinator (SOC Code 11-9121) may be a better match to such a position than Medical Scientists, Except Epidemiologists,” there is no available wage date for that position, and so this specific SOC code cannot be assigned to the employer at least for purposes of determining the prevailing wage. It is time consuming for an employer to challenge the DOL’s SOC code for the occupation, which normally requires the employer to take an appeal to BALCA and hope for reversal, which it did on the same facts in Matter of General Anesthesia Specialists Partnership Medical Group, 2013-PWD-0005 (Jan. 18, 2014). However, most employers are unwilling to appeal and take the SOC code that the DOL assigns.

Now imagine after a few years, the beneficiary of the approved labor certification wishes to port to a similar job under INA 204(j). The duties of the actual position have primarily involved research rather than managerial duties ascribed to “Natural Sciences Managers” in the SOC. There is some risk that the new occupation, if it is research oriented and applicable only to scientists, may according to a USCIS adjudicator, not comport with “Natural Sciences Managers,” which was wrongly assigned to the position in the first instance. “Natural Science Managers” involve managerial duties of a non-scientific nature, and the duties do not necessarily involve front line scientific research. There is also a chance that the DOL may find that the occupation involves a combination of duties, and may assign the SOC code for the occupation with the higher wage. Thus , in Matter of Emory University, 2011-PWD-00001 (Feb. 27, 1012), while the employer who was sponsoring a foreign national for the position of “Supervisor, Clinical Genetics Laboratory” selected “Geneticist” corresponding with SOC code 19-1029, the DOL thought that since the occupation involved a combination of duties involving scientific research and coordination, it assigned “Natural Sciences Managers”. If this individual now ports to a position that involves front line research in genetics, again there is a risk that the “same or similar” argument under INA 204(j) may not be accepted if he or she is not going to be taking up a position involving managerial duties under “Natural Sciences Manager.” There are other problems in emphasizing the SOC code. Some occupations are emerging and may not even have SOC codes. Those stuck in the backlogs, if Congress does not expand the supply of immigrant visas, may not be able to receive green cards for several years, as we have seen with the “Class of 2007” pending adjustment applications. New occupations in the future might receive different SOC codes that do not conform to the major group or minor group occupations.

The proposed guidance explains how the SOC works by providing the example of “web developer” that corresponds with SOC code 15-1134. The first two digits “15” is the major group classification, which includes all computer and mathematical occupations and corresponds with 15-0000. The third digit “1” indicates the minor group, which is all computer occupations and corresponds with 15-1100. The fourth and fifth digits “13” indicate the broad occupation, namely, software developers and programmers, which corresponds with 15-1130. The sixth digit “4” indicates the detailed occupation, which corresponds with 15-1134 – Web Developers. The proposed guidance then states that if the entire six digits match between the original position and the new position, then such positions will be treated favorably. The proposed guidance also states that if there is a different occupational code between the same broad occupations, denoting “13”, then it will generally be considered same or similar under 204(j). Examples of different codes within the broad occupations include Computer Programmers (15-1131); Software Developers, Applications (15-1132); Software Developers, Systems Software (15-1133) and Web Developers (15-1134). All of these occupations are found within the broad occupation of Software Developers and Programmers (15-1130). But what if the new job is in a different broad occupation, such as Computer Systems Engineers/Architects, which corresponds with SOC code 15-1199.02? The fourth and fifth digits are “19” and no longer “13”. Will this throw off the USCIS adjudicator, and will he or she now issue a Request for Evidence?

Fortunately, the proposed memo does contemplate jobs with totally different codes can also be considered same or similar under the preponderance of evidence standard. For instance, the original job would be under 15-0000 for Computer and Mathematical Occupations while the new job may be under 17-0000 for Architecture and Engineering Occupations. Still, the proposed guidance cautions that some occupations under the same broad occupational code may fail the same or similar test. Thus, Geographers (19-3092) and Political Scientists (19-3090), while falling under the broad occupational code for Miscellaneous Social Scientists and Related Workers (19-3090), may not pass muster under 204(j). The proposed guidance also admirably takes into account career progression. Thus, a Software Developer (15-1132) may be promoted to a position corresponding with Computer and Information Systems Managers with an SOC Code of 11-3021. The new position would be considered similar to the old position since an Information Systems Manager would supervise Software Developers and other occupations within 15-1130. But what if this individual formed his or her own startup, where she is now the CEO and spends about 49% of her time in general management functions, such as marketing and obtaining venture capital funding, and the remaining 51% of her time in supervising technical development of a software application. This person should also be able to qualify under the same or similar standard, but Chief Executive corresponds to SOC Code to 11-1011 rather than Computer and Information Systems Managers with an SOC Code of 11-3021. The proposed guidance provides an example of a Restaurant Cook (35-2014) progressing to Food Service Manager (11-9051), and indicates that this career progression may fail under the “same or similar” test as the Food Service Manager’s duties are different from a Restaurant Cook. Again, the proposed memo relies on the fact that the SOC classification for Food Service Managers excludes “Chefs and Head Cooks,” even though in reality a Food and Service Manager may supervise cooks. However, the proposed guidance grudgingly concedes that if the applicant can prove that the original duties of a Restaurant Cook included the duties of a Food Service Manager, such as ordering supplies, setting menu prices and planning the daily menu, then it may be considered a normal career progression. This may be difficult for an applicant to establish, and it may be easier for the applicant to establish that a Food Service Manager also supervises the cooks in a restaurant, but the adjudicator may rely on the SOC description, which clearly states that a Food Service Manager excludes Chefs and Head Cooks.

The USCIS guidance ought to give primacy to an evaluation of the job duties, requirements and skills between the two jobs, rather than on the SOC codes, and should also give weight to an applicant’s credible argument that the positions are similar. If the USCIS insists on SOC Codes, they should be used as an aid to facilitate a determination on whether the position is same or similar, rather than insist that the SOC code drives the determination. We already have seen that if the USCIS asks its adjudicators to rely on formulaic governmental classifications, its adjudicators will likely exclusively rely on them rather than consider an applicant’s plausible arguments in favor of granting the immigration benefit. A good example is the USCIS’s rigid application of the Occupational Outlook Handbook (OOH)when evaluating whether an H-1B petition is a specialty occupation. If there is any whiff of reference in the OOH that one can qualify for an occupation through a generalized college degree, the USCIS pounces upon that in refusing H-1B classification notwithstanding the employer submitting credible evidence to the contrary that a person can only qualify for the position with a bachelor’s degree in a specialized field.

The proposed guidance also indicates that all prior memos are superseded relating to whether the two positions are in the same or similar occupational classification. “This guidance does not address other procedural requirements of the 204(j) portability determination” according to the proposed guidance. The Memo of Michael Aytes dated December 27, 2005 on AC 21, for example, does provide other useful guidance, which may be superseded, but which is essential to 204(j) portability and which has not been addressed in the proposed guidance. While those are procedural requirements of the 204(j) portability determination, they are conflated with same or similar guidance, and thus a USCIS adjudicator may disregard the prior guidance. For example, the Aytes Memo correctly indicates that a foreign national can port to self employment, provided the employment is in a “same or similar” occupational classification. The ability for an applicant to port into self employment or to his own startup should be preserved and emphasized in the final guidance, along with other invaluable guidance such as differences in geographical location should not be a basis for denial.

Given the long backlogs in the employment-based preferences, portability provides the only salvation. It may also be deployed in a proposed rule to provide employment authorization to beneficiaries of approved I-140 petitions (RIN:1615-AC05), and this may be conditioned on whether they have changed jobs within a same or similar occupation. Although INA 204(j) can only be invoked if there is a pending I-485 adjustment application, the DHS has authority under INA 247(h)(3) to provide employment authorization to broad groups of non-citizens under conditions that it can fashion, and also has broad discretion to determine whether an I-140 petition can or cannot be revoked under INA 205, and thus DHS can condition the grant of employment authorization, and the retention of the I-140 petition, based on whether the new job is same or similar to the prior job. Thus, the proposed guidance on INA 204(j) portability could have greater implications.

In conclusion, it is vitally important that foreign nationals stuck in the employment-based backlogs be provided with broad flexibility to change jobs, and so all stake holders ought to comment on or before January 4, 2016 the defects in the guidance, as suggested in this blog, in order to ensure that the final guidance affords maximum job flexibility to skilled legal immigrants caught in the crushing employment backlogs.

Sink or Swim Together: States Have No Legal Basis to Refuse Syrian Refugees

November 23, 2015/0 Comments/in Blog/by Cyrus Mehta

Since the Paris attacks, 31 states have objected to Syrian refugees being resettled within their boundaries. This is so even after these refugees have been carefully selected after demonstrating a well founded fear of persecution, and have undergone a security vetting procedure that takes almost two years.

The Supreme Court held just over a century ago in Truax v. Raich that a state could not pass a law that deprived employers from hiring only a certain percentage of non-citizens in their work force. Truax v. Raich stands for the proposition that once a non-citizen has been admitted under federal law, this individual has a right to live anywhere in the United States, and to also enjoy equal protection under law. Thus, the Arizona law that would result in the criminal prosecution of an employer who hired foreign nationals over the percentage limit was found unconstitutional. Truax v. Raich further upheld the doctrine of federal preemption of state laws that conflicted with the ability of the federal government to admit non-citizens, and which also conflicted with the Fourteenth Amendment that guaranteed foreign nationals within the jurisdiction of the United States equal protection of the laws.

In Edwards v. California, a case not involving a foreign national, the Supreme Court held invalid a California statute making it a misdemeanor for anyone knowingly to bring or assist in bringing into the State a nonresident indigent person. This case involved a US citizen and resident of California who traveled to Texas with the intention of bringing back to California his wife’s brother, who was also a US citizen and an indigent person. This person was charged under the California statute that the Supreme Court found unconstitutional, and which cited the famous words of Justice Cardozo from a prior case:

“The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that, in the long run, prosperity and salvation are in union, and not division.”

Thus, under both Truax v. Raich and Edwards v. California, states cannot refuse refugees who have been lawfully admitted into the United States. Refugees, and the programs that assist them, can still defy a state’s refusal to welcome them, although, unfortunately, a state is not obligated to cooperate with the Office of Refugee Resettlement assistance programs and other private charities. They don’t have to help administer the refugee program if they’re determined not to, in the same way that states can refuse to have their employees enforce federal gun control laws ( as in Printz v. United States) or federal marijuana laws (as in Colorado at the moment) even though they cannot actually bar refugees from entering their states.

This makes it all the more important that the Supreme Court overturns the Fifth Circuit decision in Texas v. United States, which upheld Texas’s standing to sue the federal government over its implementation of deferred action programs. Texas dubiously relied on Massachusetts v. EPA for claiming standing by analogizing greenhouse gas pollutants that Massachusetts would be harmed by due to EPA non-action with deferred action recipients who would request driver’s licenses and thus make it more financially burdensome for Texas. Just like Texas claimed that it would be injured due to additional expenses it would incur in granting licenses to non-citizens granted deferred action, a state may also sue the federal government for being harmed for resettling refugees within its boundaries due to security reasons. Whether the state can succeed is a different matter, especially since there are strong precedents against it by way of Truax v. Raich and Edwards v. California, but a state can still try. It may raise a novel theory that these two precedents involved economic issues, while a state’s ability to protect its citizens from terrorist attacks is distinguishable from economic issues. The government in its recent petition for certiorari correctly states that if the Fifth Circuit majority decision prevailed “Texas could claim standing to sue the government for making an individual decision to grant asylum and would clearly have standing to sue the government any time it adopted immigration policies providing relief to a substantial number of aliens in Texas in any of these categories.” States should not get standing in another law suit against the federal government on another manufactured theory of harm if refugees still settle within their boundaries in defiance.

In addition to the states refusing to accept refugees, the House on November 20, 2015 overwhelming passed HR 4038 289-137 (with 47 Democrats voting in favor) that would already make an already arduous vetting process even more difficult. It would require both the director of the FBI and of Homeland Security to personally certify each person being admitted has been fully vetted and they’re confident they’re not going to be terrorists. This would in effect negate the ability of the United States to admit any refugees from Syria. Both the refusal by more than half of the states and the House bill go against the long held notion of America being a nation of immigrants as well as the shining beacon, as represented by the Statue of Liberty, for the world’s oppressed. Syrian refugees are some of the world’s most vulnerable people, and taking only 10,000 refugees who have been so carefully vetted, is already a small drop in the ocean in comparison to Germany admitting over 800,000 Syrian refugees, and France still accepting 30,000 refugees even after the horrific attacks. America should be doing more, and ought not be overcome by political hysteria after the attacks, which were carried out by people of French and Belgian nationality. We fortunately have strong Supreme Court precedents that render the refusal by states to take in Syrian refugees legally dubious, and a strong balances in our political system (the Senate still have to vote and the President has veto power), that may ultimately block the passage of the House bill. Let’s keep fingers crosses in favor of upholding long cherished American values.

Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization

November 16, 2015/1 Comment/in Blog/by Cyrus Mehta

Although the Fifth Circuit in Texas v. USA ruled against the Administration on November 9, 2015 by upholding the preliminary injunction against implementation of President Obama’s program to grant deferred action to certain groups of undocumented persons, the ruling may impact other executive actions that President Obama had announced on November 20, 2014, especially relating to skilled immigrants. It is thus important for the the Supreme Court to reverse this erroneous decision to not only allow the Administration to implement Deferred Action for Parental Accountability program and the expanded Deferred Action for Childhood Arrival program (collectively referred to as DAPA in the decision), but to also allow the Administration to grant other kinds of administrative relief such as interim employment authorization to immigrants who face great hardship and are deprived of the benefits accorded to them under the Immigration and Nationality Act.

The majority’s ruling in the Fifth Circuit went even further than Judge Hanen’s decision in the lower district court by holding that DAPA was not authorized under any INA provision. Judge Hanen’s ruling suggested that if the Administration had followed the notice and comment procedure under section 553 of the Administrative Procedures Act, DAPA could have survived judicial scrutiny. The Fifth Circuit, on the other hand, held that since DAPA implicated “questions of deep economic and political significance,” Congress would have expressly authorized DHS, which it did not do. Hence, DAPA was a substantive APA violation under section 706(2) as it was not authorized under the INA. Thus, promulgating a rule at this juncture will not help to save DAPA.

One of the INA provisions relied on by the government to implement DAPA is INA section 274(h)(3), which provides:

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

While the ability to of INA 274A(h)(3) to provide authority to the Administration was completely overlooked in Judge Hanen’s decision (and his flawed decision is discussed in David Isaacson’s excellent blog entitled IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA), the Fifth Circuit took notice of INA 274(h)(3), but gave it short shrift by observing that this provision, which is listed as a miscellaneous definitional provision is an unlikely place to find authorization for DAPA.

Contrary to the Fifth Circuit’s gloss, INA 274A(h)(3) gives the Attorney General, and now the Secretary of Homeland Security, broad flexibility to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA. Indeed, INA 274(h)(3) was invoked by the DHS in promulgating a rule providing employment authorization for H-4 dependent spouses of H-1B visa holders in the US who are caught in the employment based second and third preference backlogs. INA 274A(h)(3) will also most likely be invoked when the DHS promulgates a rule to grant work authorization to beneficiaries of approved employment-based I-140 petitions who are waiting for their green cards in the backlogged employment preferences.

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

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA as part of its broad authority to exercise prosecutorial discretion, without the need to undermine INA 274A(h)(3). As I have advocated in FIFTH CIRCUIT PRECEDENT ON PREEMPTION CAN PROVIDE OBAMA WITH PATH TO VICTORY IN TEXAS v. UNITED STATES, the government’s authority to exercise prosecutorial discretion, which includes deferred action, is non-justiciable and notwithstanding the Fifth Circuit decision, never required rule making. The dissenting opinion in the Fifth Circuit decision thankfully held that deferred action, which is a quintessential exercise of prosecutorial discretion, is non-justiciable. Indeed, one of the principal reasons why state regulations have been held to conflict with federal immigration law is because they interfere with the Administration’s ability to exercise prosecutorial discretion. While on first brush Texas v. USA is not a preemption case, it would still provide a basis for any cantankerous state politician to sue the federal government, under the broad and dubious standing theory that the Fifth Circuit provided to Texas, whenever the federal government chooses to exercise prosecutorial discretion. While the DACA program of 2012 will be the most vulnerable, if the Supreme Court were to uphold the Fifth Circuit’s majority decision, another court would hopefully reach another conclusion with respect to INA 274A(h)(3) as providing the authority to the Administration to grant work authorization in many other contexts.

The Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority to exercise prosecutorial discretion rather elaborately:

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

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

The majority of the Supreme Court justices ought to latch onto the dissenting opinion, which is the correct opinion, and should reverse the preliminary injunction on the ground that the President’s executive actions regarding DAPA are non-justiciable, and thus leave alone INA 274A(h)(3). The Administration ought to be provided flexibility to provide ameliorative relief, especially EAD under INA 274A(h)(3) to a number of non-citizens needing relief. The prime example are those who have to wait for decades in the India EB-2 and EB-3 backlogs for their green card, even though they have otherwise fulfilled all the conditions. Due to the lack of a current priority date, beneficiaries who are otherwise approved for permanent residence ought to be able to obtain EADs, and the same also should apply to H-4 spouses of H-1B visa holders who are caught in the employment based backlogs. Also, researchers, inventors and founders of startup enterprises ought to be paroled into the US and issued EADs under the broad authority provided in INA 274A(h)(3), and this too is one of the initiatives contemplated in the President’s November 20, 2014 executive actions. There are many good reasons why the Administration should be allowed to issue work authorization to noncitizens, and INA 274A(h)(3) ought not be reinterpreted to curtail this flexibility.

Studying for the H-1B: USCIS Questions the Business Administration Degree

November 10, 2015/0 Comments/in Blog/by Michelle S. Velasco

Since writing last year on the challenges facing employers who wish to hire H-1B workers for uncommon specialty occupations, we have seen the U.S. Citizenship and Immigration Services (USCIS) present a novel way to push back on H-1B filings: by challenging whether the beneficiary’s degree is in a field related to the specialty occupation. This has especially been rampant in cases where the minimum requirement is a business administration degree.

To recap, the onus is on the petitioning employer to demonstrate that the proffered position requires the “theoretical and practical application of a body of highly specialized knowledge” and“attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Immigration and Nationality Act (INA) §214(i)(l). The regulations further define “specialty occupation” as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty.” 8 CFR § 214.2(h)(4)(ii). The regulations then provide four regulatory criteria, and the petitioner must satisfy at least one, that would qualify the position as a specialty occupation:

A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. See 8 CFR §214.2(h)(4)(iii)(A).

Two recent cases provide insight into how the USCIS is interpreting the above statute and regulations. The first was a non-precedent decision from the USCIS Administrative Appeals Office (AAO) dated April 7, 2014 upholding the denial of the H-1B petition of an IT solutions company for a “Project Compliance Analyst.” The petitioner filed its Labor Condition Application (LCA) for the occupational category “Management Analysts” (OES/SOC Code 13-1111.00), with a Level I prevailing wage rate. The position’s minimum qualifications called for a bachelor’s degree in business administration or a related field and two years of project management or management consulting experience. The AAO did not find that the position is a specialty occupation, and also noted that even if it had ruled differently, there was insufficient evidence to demonstrate that the beneficiary met the minimum requirements of the proffered position.

The primary issue in the case was whether the petitioner’s requirement of a bachelor’s degree in business administration or a related field met the requirements of a specialty occupation. The petitioner had argued, using an AILA memorandum dated April 4, 2012 and addressed to the USCIS director, that a bachelor’s degree in a specific specialty is not required if the petitioner satisfies one of the four prongs of 8 CFR §214.2(h)(4)(iii)(A). The AAO rejected AILA and the petitioner’s interpretation and reiterated that USCIS has always interpreted the regulations in harmony with the statute, meaning that the four prongs provide supplemental criteria “that must be met in accordance with, and not as alternatives to, the statutory and regulatory definitions of specialty occupation.”

The first step in the AAO’s analysis is determining if the degree is in a specific specialty that is directly related to the proffered position. Specialties that are closely related meet the “degree in the specific specialty (or its equivalent)” requirement of INA § 214(i)(l)(B) easily. The AAO’s example of closely related specialties is chemistry and biochemistry where the body of highly specialized knowledge would be essentially the same. On the other hand, when the minimum requirements are in two disparate fields, such as philosophy and engineering, then the petitioner must demonstrate how each field is “directly related to the duties and responsibilities of the position such that the ‘body of highly specialized knowledge’ is an amalgamation of the different specialties.” The AAO also said it would find a specialty occupation in a case where the job duties and requirements are a combination of a general bachelor’s degree and experience such that both INA §214(i)(l)(A) and (B) are satisfied.

But the statute and regulations allow for the minimum requirements to be a bachelor’s degree in a specific specialty or its equivalent. When relying on a degree that is not a single specific specialty, the employer will have to demonstrate that the position is a specialty occupation by meeting one of the four prongs of 8 CFR §214.2(h)(4)(iii)(A). And what this case teaches us is that the USCIS no longer views the business administration degree, without more, as being a degree in a specific specialty.

The petitioner here found itself having to prove that it meets at least one of the criteria listed in 8 CFR §214.2(h)(4)(iii)(A). To meet the first prong (a bachelor’s degree or higher in a specific specialty or its equivalent is normally the minimum requirement for entry into the position), the petitioner cited the U.S. Department of Labor’s Occupational Outlook Handbook (“OOH”) entry for Management Analysts, specifically the minimum requirements for the field:

A bachelor’s degree is the typical entry-level requirement for management analysts. However, some employers prefer to hire candidates who have a master’s degree in business administration (MBA)… [M]any fields of study provide a suitable education because of the range of areas that management analysts address. Common fields of study include business, management, economics, political science and government, accounting, finance, marketing, psychology, computer and information science, and English.

The AAO was not convinced by this argument. In an ungenerous reading of the OOH’s entry for the position, the AAO said that because the OOH stated that bachelor’s degrees are typical did not insinuate that they are always required for the position. Moreover, the AAO found that because the OOH lists many disparate fields that Management Analysts practice in (business, management, economics, political science and government, accounting, finance, marketing, psychology, computer and information science, and English), it could not conclude that this occupational category is one that requires the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in a specific specialty as required by INA § 214(i)(l) and 8 CFR § 214.2(h). The takeaway lesson here is to be careful when relying on the OOH when there is no specific specialty entry field for the occupation because the AAO will interpret the degree requirement as too general and not specific enough for a specialty occupation.

Unfortunately for the petitioner in this case, the AAO was not swayed by evidence that the position met the other three prongs (sample ads submitted were not in parallel positions among similar organizations (strike for prong two), petitioner could not argue that it normally requires a degree for the position since it was a newly created one (strike for prong three), and the job duties were too general for the AAO to surmise that the position is so specialized and complex that knowledge required to perform the duties is usually associated with getting a bachelor’s or higher degree (strike for prong four)). The petitioner’s arguments about the complexity of the position was also hurt by the fact that its Level 1 wage rate on the LCA – a wage rate associated with entry level positions. If an employer wishes to make the argument that the position is a specialty occupation because it is complex and unique, it cannot then only pay entry level wages. Thus, in this case where a business administration degree was the minimum requirement, the case was denied because the USCIS is not convinced a business administration degree was in a specific enough specialty and the petitioner could not demonstrate how the position met one of the prongs of 8 CFR §214.2(h)(4)(iii)(A).

In a second recent case, the USCIS again questioned whether the minimum requirement was in a specialty related to the occupation. The H-1B petition was filed by a home health care provider for a Deputy Controller, with a finance degree as the minimum requirement. Irish Help at Home LLC v. Melville, Case3:13-cv-00943-MEJ (N.D. Ca. Feb. 24, 2015). As in the case discussed above, the OOH profile for the relevant occupational category, Financial Managers (SOC/OES Code 11-3031.00), listed “a bachelor’s degree in finance, accounting, economics, or business administration” as the degrees often required for financial managers, but that “many employers now seek candidates with a master’s degree, preferably in business administration, finance, or economics.” Despite requiring a bachelor’s degree in finance or a related field (which the beneficiary readily met with her Finance degree), the Court upheld the denial, not convinced that the proffered position is a specialty occupation because even a general purpose degree like a bachelor’s in business administration would have adequately prepared a candidate for the position, thus undermining the petitioner’s assertion that the position required a degree in a specific specialty. So it would seem again that the business administration degree, without more, is too general to be sufficient as the minimum requirement for an H-1B specialty occupation. It would behoove the petitioner to provide even more evidence that the position is a specialty occupation by arguing how it meets at least one of the other prongs in 8 CFR §214.2(h)(4)(iii)(A). And it is worth noting that in this case also, the petitioner argued that the position was complex and unique but this was undermined by its classification of the position at the Level 1 wage rate in the LCA.

Elsewhere, anecdotal evidence has confirmed that the USCIS continues to use Requests for Evidence (RFEs) to question whether business administration degrees are directly related to the proffered position. As an example, an IT services and software solution company filed a petition for a systems analyst classified in the Computer Systems Analyst occupational category (SOC/OES code 15-1121.00). The USCIS issued an RFE questioning how a bachelor’s degree in business administration is related to the field. The RFE cited case law, specifically Matter of Ling, 13 I&N Dec. 35 (Comm. 1968), to point out that “business administration” is a general term for professional and non-professional activities, a business administration degree would be insufficient to qualify the degree holder as a member of the professions, “unless the academic courses pursued and knowledge gained is a realistic prerequisite to a particular occupation in the field of business administration in which he is engaged or plans to be engaged.” This should give pause to petitioners and attorneys alike. Whereas before petitioners may have obtained approvals for holders of business administration degrees in the IT sector, now their minimum requirements will be questioned, and they will have to show (1) how business administration is a degree related to the IT position, and (2) how the beneficiary’s business administration degree courses earned him or her knowledge that was a realistic prerequisite to the specific occupation. The USCIS has even questioned in a different case how a business administration degree is related to the position offered: CEO of a small company.

Through these recent cases and RFEs, USCIS has again found a way to strike back against H-1B employers, this time by focusing on beneficiaries with business administration degrees. While degrees in business administration, especially at the masters level, are considered specialized in their own right like law or medicine, and are routinely sought by employers, the USCIS’s attitude is not in keeping with the real world. USCIS is no longer accepting at face value that a business administration degree would prepare an individual to perform the duties of positions in fields such as business management, systems analysis, financial management, and management analysis. This would also adversely impact entrepreneurs who are petitioned through their own startups, even though an MBA program equips one with the specialized knowledge and skills to be an entrepreneur. USCIS’s skeptical attitude toward the business degree also runs counter to its Entrepreneur in Residence policy, which is has actively promoted in recent years.

When the candidate holds a business administration degree, employers and attorneys should consider whether to provide detailed job duties to demonstrate the complexity of the position, explain how the degree is directly related to the position, and perhaps obtain an evaluation of the position and degree requirements from a professor or official with authority to grant college-level credit for training/experience in the specialty at an accredited college or university. And when the minimum requirements are in disparate fields, the employer should strive to explain clearly how each field is related to the position. And, further, if the argument is made that the position is complex and unique, employers should offer an appropriately mid- to high-level wage. Overall it appears USCIS has unfortunately placed a target on the business administration degree and employers should beware of nasty RFEs and even denials.

Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!

October 31, 2015/1 Comment/in Blog/by Cyrus Mehta

The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status application has been pending for 180 days. Once the beneficiary has ported and is no longer in contact with the former employer, the USCIS may discover that it improperly approved the I-140 petition and revoke it. Only the prior employer may get notification, which may no longer care to contest the grounds for revoking the I-140 or this employer may no longer even be in existence. The hapless foreign national who is enjoying job mobility under INA 204(j) does not know any better, but this individual may no longer be able to obtain permanent residency.

Should this foreign national beneficiary at least be notified about the I-140 being revoked and allowed to contest it? In 2009, the Ninth Circuit Court of Appeals in Herrera v. USCIS answered in the negative by holding that the government’s authority to revoke an I-140 petition under INA 205 survived portability under INA 204(j). Since Herrera, progress has been made in favor of the foreign national’s interest in the I-140 petition although it may have been filed by the employer. In 2014, the Eleventh Circuit Court of Appeals in Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140. The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence, has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b) makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Despite Kurupati and Patel, which gave standing to the beneficiary of an I-140 petition to challenge the revocation or denial, a federal district court in Musunuru v. Lynch, 81 F. Supp.3d 721 (2015) held to the contrary, that the beneficiary of an I-140 petition could not challenge the revocation of a prior I-140 as the applicable regulations only authorize the petitioning employer to be provided with notification and to challenge the revocation. The Musunuru Court also opined that unlike a non-citizen who is in removal proceedings and who would suffer a serious loss, and thus a right to be heard, an I-140 revocation does not cause the same loss. Obviously, the court’s reasoning is wrong as the denial of an I-140 petition results in the denial of the I-485 adjustment application, which in turn can place the beneficiary in removal proceedings. Fortunately, Law360 reported that this case is on appeal in the Seventh Circuit, and at oral argument, “Circuit Judge Rovner seemed baffled by the whole case, however, saying it doesn’t appear that Musunuru did anything wrong but was being punished for someone else’s mistakes.”

The prospect of the DHS promulgating a rule that would allow beneficiaries of an approved I-140 to apply for work authorization although they are not yet able to file I-1-485 applications should not diminish the beneficiary’s standing in case the I-140 is revoked. First, USCIS has authority under INA 274(a)(h)(3) to issue work authorization to any class of non-citizens. While an I-140 petition anchored by an I-485 would strengthen the standing claim, there are old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich, the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirezwas contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality is obviated if the non-citizen is allowed to detach from the sponsoring employer under a rule granting work authorization that replicates 204(j) portability, notwithstanding the lack of an I-485 application. Still, an even older 1984 case, Gladysz v. Donovan provides further basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

As courts are recognizing the non-citizen’s interest in an I-140, employers may want to think twice before withdrawing an already approved I-140 petition even after the employee has left. Unlike an H-1B petition, there is no sanction for the employer who does not withdraw the I-140 petition. The I-140 petition allows the non-citizen to seek an H-1B extension through another employer beyond the maximum sixth year under the American Competitiveness in the 21^st Century Act. It also allows the priority date on that I-140 petition to be transferred to a subsequently filed petition, and provides a measure of protection for one who wishes to port under INA 204(j). Courts have also recognized that the I-140 petition enables the beneficiary to seek benefits independent of the employer who sponsored him or her, and thus providing greater rights to the foreign national beneficiary in the I-140 is a step in the right direction, especially when backlogs in the employment preferences have resulted in longer and longer waits for the coveted green card.

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