Cyrus Mehta

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

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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.

Michelle S. Velasco

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

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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:

  1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
  2. 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;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. 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.

Cyrus Mehta

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

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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 21st 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.

David Isaacson

Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and other Recent Court of Appeals Rulings

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Earlier this year, in Zombie Precedents, the Sequel, I discussed how the Second Circuit’s April 2015 decision in Lugo v. Holder exemplified a better way of dealing with precedent decisions that had been overturned by a court.  As I noted in that blog post, the Second Circuit remanded Lugoto the BIA not only to deal with the issue raised by the overturned precedent, but also to deal with a related question regarding the retroactivity of the BIA’s decision in Matter of Robles-Urrea.  In that regard, the Second Circuit’s decision in Lugoforms part of an interesting trend regarding limits on the retroactivity of BIA decisions, most recently exemplified by the Tenth Circuit’s decision last week in De Niz Robles v. Lynch.

The issue in De Niz Robles concerned the interaction of INA §245(i), 8 U.S.C. §1255(i), with INA §212(a)(9)(C)(i)(I), 8 U.S.C. §1182(a)(9)(C)(i)(I).  The former provision, as has been discussed previously on this blog in a September 2010 post by Cyrus D. Mehta, allows adjustment of status by certain applicants who have entered without inspection, or are otherwise disqualified from adjustment under INA §245(a) and (c), if they are “grandfathered” as the principal or derivative beneficiaries of appropriate visa petitions or labor certification applications filed prior to April 30, 2001.  The latter provision declares inadmissible those who have been unlawfully present in the United States for a year or more and have subsequently re-entered without inspection, subject to a potential waiver which must be sought 10 years after one’s last departure from the United States.  These provisions, as the 10th Circuit noted in De Niz Robles, are in some tension with one another.

Approximately ten years ago, the Tenth Circuit held in Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d 1294 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237 (10th Cir. 2006), that §245(i) prevailed over §212(a)(9)(C)(i)(I), such that Mr. Padilla-Caldera could adjust status under §245(i) despite having been unlawfully present for over a year, left the United States in order to seek an immigrant visa, and ultimately re-entered without inspection.  The BIA then held differently in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), finding that inadmissibility under §212(a)(9)(C)(i)(I) prevented §245(i) adjustment.  The Tenth Circuit, in Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140 (10th Cir. 2011), deferred to this BIA decision pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and National Cable & Telecommunications Ass’n v. Brand X Internet Services (“Brand X”), 545 U.S. 967 (2005), finding it to be a reasonable interpretation of ambiguous statutory language.

In the meantime, however, between the time of Padilla-Caldera I and Matter of Briones, Mr. De Niz Robles had applied for adjustment of status under §245(i) based on Padilla-Caldera I.  His application took so long to process that it was adjudicated after Padilla-Caldera II, and the BIA, applying that decision and Matter of Briones, denied Mr. De Niz Robles’s application.  He argued that this was an inappropriately retroactive application of Matter of Briones to an application filed before that decision was issued.  The Tenth Circuit agreed.

As the Tenth Circuit pointed out, when Mr. De Niz Robles filed his application in 2007, he had the option of instead leaving the United States, and serving out the ten-year period before he could apply for a waiver of his inadmissibility under INA §212(a)(9)(C)(i)(I).  In reliance on the case law as it existed at that time, specifically Padilla-Caldera I, he chose to apply for adjustment of status instead.  The BIA, by applying Matter of Briones to Mr. De Niz Robles six years later in 2013, and defending that position on appeal in 2015, had put Mr. De Niz Robles in the position of having lost years of time that he could have spent towards the ten-year waiver qualification period—by now, he would have served out eight of the required ten years and been only two years away from being able to apply for a waiver, had he left.  This, the Tenth Circuit said, was retroactive application of the Briones decision, and was not permissible.

When the BIA or a similar agency tribunal acts to overturn an existing decision via Brand X, the Tenth Circuit decided, it should be treated for retroactivity purposes similarly to an agency that declares its new policy through rulemaking.  Although retroactive rulemaking is sometimes permitted, it is disfavored.  Applying the factors that govern such a retroactive agency rulemaking, the Tenth Circuit determined that the reasonableness of Mr. De Niz Robles’s reliance on Padilla-Caldera I, and the dire consequences to him if the BIA’s ruling was allowed to stand, weighed particularly strongly in favor of finding that Briones should not be applied to him.

In this way, De Niz Robleswent beyond what Lugohad done, flatly finding that it would be inappropriate to give retroactive effect to the BIA’s ruling rather than merely remanding for further explanation of the point.  This is partly because the context made clearer in De Niz Roblesthat there had in fact been a retroactive ruling.  The Second Circuit in Lugo had asked the BIA to address, among other factors, “whether its holding in Matter of Robles-Urreawas a departure from prior law.”  Lugo, slip op. at 5.  In De Niz Robles, the Tenth Circuit did not need to defer to the BIA on the analogous question, but was able to resolve it on its own: it was quite clear that Briones was a departure from prior law, at least within the jurisdiction of the Tenth Circuit, where it was contrary to Padilla-Caldera I.

The Court of Appeals for the Ninth Circuit followed a similar path to the Tenth in Acosta-Olivarria v. Lynch, decided less than two months before De Niz Robles, on August 26, 2015.  Like the Tenth Circuit, the Ninth had, prior to Matter of Briones, issued a decision allowing §245(i) adjustment despite inadmissibility under INA §212(a)(9)(C)(i)(I): Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).  Like the Tenth Circuit, after Briones, the Ninth Circuit had overruled its decision, in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), deferring to the BIA under Brand X.  And like Mr. De Niz Robles, Mr. Acosta-Olivarria had applied for adjustment of status after his Circuit case law indicated he could do so, and before the BIA and Circuit told him he could not.  The bottom line was the same in Acosta-Olivarria as in De Niz Robles: the Ninth Circuit held, over one judge’s dissent, that the BIA’s ruling in Briones could not be applied retroactively to Mr. Acosta-Olivarria, and so an immigration judge’s order granting him adjustment of status, which had been set aside by the BIA, was reinstated.

De Niz Robles, Acosta-Olivarriaand Lugoare not the only relatively recent decisions to reject or cast doubt on retroactive application of a BIA ruling.  The Court of Appeals for the Seventh Circuit also did this in its July 2014 decision in Velasquez-Garcia v. Holder, 760 F.3d 571 (7th Cir. 2014).  There, the Seventh Circuit rejected retroactive application of the BIA’s decision in Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), interpreting the “sought to acquire” language of the Child Status Protection Act (CSPA).
As discussed in more detail by a numberof postson this blogand articleson our firm’s website, INA §203(h)(1)(A), added by section 3 of the CSPA, requires that a child have “sought to acquire” lawful permanent residence within one year of visa availability in order to take advantage of protections under the CSPA that fix the child’s age for purposes of derivative visa eligibility  at a point younger than that child’s actual biological age.  The BIA held in Matter of O. Vasquez that absent “extraordinary circumstances”, this provision could only be satisfied by the actual filing of an application for adjustment of status or of analogous forms and fees used to apply for an immigrant visa from the Department of State.  (USCIS subsequently issued an interim Policy Memorandum elaborating on what it would consider to be extraordinary circumstances.)  Prior to O. Vasquez, however, the BIA had in several non-precedential decisions been more lenient, allowing a broader set of “substantial steps” towards the obtainment of permanent residence to qualify as seeking to acquire for CSPA purposes.  As discussed in a previous post on this blog, for example, the BIA’s October 2010 unpublished decision in Matter of Murillo and other pre-2010 cases allowed such steps as hiring an attorney to meet the seeking-to-acquire requirement.

The Seventh Circuit in Velasquez-Garciaheld that it would not be appropriate to apply the stricter O. Vasquez standard to those who may have complied with the prior, laxer standard of seeking to acquire before O. Vasquez was issued.  As the Court of Appeals explained: “In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the [CSPA] did not require him to file an application within one year.”  Given the immense burden that applying the new rule retroactively would have imposed on Velasquez, and the tension between the effect of retroactive application and the remedial purpose of the CSPA to ameliorate the effect of administrative delays – among which the Seventh Circuit included the eight-year delay by the BIA before promulgating precedential guidance regarding “sought to acquire” in O. Vasquez – the Seventh Circuit held that Mr. Velasquez-Garcia should be permitted to proceed under the standard in effect prior to O. Vasquez.

These sorts of retroactivity issues can be expected to continue to arise in the future as the BIA aggressively uses its policymaking interpretative authority under Chevron and Brand X, at least when that authority is used to reinterpret a standard unfavorably to immigrants.  (Changes in a rule which are more favorable to those affected by that rule are not the sort which raise retroactivity concerns under the case law, since allowing someone to apply for a benefit from which he or she previously was precluded does not raise the same unfairness concerns as a change in the other direction.)  Under such circumstances, attorneys and clients should be alert for the possibility that the less-favorable BIA precedent may not apply retroactively, particularly to those who could potentially have relied on the prior state of the law.  The issue of retroactivity is often a complicated one, but it is worth exploring in appropriate cases.

Cora-Ann Pestaina

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Michelle S. Velasco

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

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

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

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

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

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

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

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

 

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

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

Cyrus Mehta

Sophie Cruz and Pope Francis: Shattering Myths About Immigrants

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

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

 

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

Sophie then said this later in the day:

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

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

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

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

Cyrus Mehta

Save the Children Under the New Visa Bulletin

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

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

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

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

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

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

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

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

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

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

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