Cyrus Mehta

NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them

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Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, New York City Mayor Eric Adams has made a series of increasingly uninformed and disparaging comments about migrants arriving in New York. In a town hall meeting on September 6, Adams said of the influx of migrants: “this issue will destroy New York City”. Adams further stated that “every community in this city is going to be impacted” by the arriving migrants, and warned the audience: “It’s going to come to your neighborhoods.” On September 9, 2023, Adams directed agencies to prepare plans for reducing the city’s budget by 15 percent, stating that the cost of caring for increasing numbers of migrants has put a strain on NYC’s financial resources.

Adams’ comments are incredibly troubling to immigration advocates, who view the mayor as demonizing asylum seekers. Murad Awawdeh, executive director of the New York Immigration Coalition, told the New York Times that: “What we’ve seen with the rhetoric he’s using is that it’s activating people in a negative way against their new neighbors. The mayor should know better. The contributions of the immigrant community here have been seismic.” New York City has a rich tradition of welcoming immigrants, and the contributions of immigrants have long shaped the fabric of the city. Even Emma Lazarus’ poem, printed at the base of the iconic Statue of Liberty in New York Harbor, issues the following directive: “Send these, the homeless, tempest-tost to me”.  Adams’ remarks run entirely contrary to the vision and history of New York City as a refuge for immigrants.

Moreover, Adams seems to ignore the fact that asylum seekers are often eager to find work and begin contributing to their communities. A recent New York Times article also emphasizes that there is no shortage of available jobs for migrants, stating “across the state, many large and small employers have expressed an overwhelming willingness to hire recent asylum seekers”. The article further notes that there is a tremendous need for workers in “service industries like landscaping, manufacturing and hospitality”, particularly in areas of upstate New York that have suffered from declining populations in recent years.

However, the path to obtaining work authorization is less than straightforward for many migrants. Pursuant to INA § 208(d)(2) and 8 CFR 208.7(a)(1), asylum applicants may apply for an employment authorization document (EAD) no earlier than 150 days after the submission of a completed asylum application. The Form I-765 application must then remain pending for an additional 30 days, for a total of 180 days, before the asylum applicant is eligible for work authorization and USCIS can issue an EAD. Thus, despite some elected officials urging the Biden administration to expedite the process for issuing the EAD for asylum seekers, the administration is hamstrung by the statute precluding an asylum applicant from applying earlier than 150 days from submitting an application, and then issuing the EAD only after 180 days from the submission of the application.

Some migrants need not wait for 180 days before becoming eligible for employment authorization, though. Pursuant to a special Department of Homeland Security (DHS) program, certain nationals of Cuba, Haiti, Nicaragua, and Venezuela may be paroled into the U.S. for a period of up to two years. Because these individuals are not asylum applicants, but rather have been paroled into the U.S., they are eligible to apply for an EAD immediately.

Similarly, U.S. Customs and Border Protection (CBP) has recently begun using the CBP One app to schedule appointments for migrants seeking to enter the U.S. through a port of entry at the Southern border. According to a DHS fact sheet, “individuals who are processed into the United States are generally placed into immigration proceedings and, on a case-by-case basis, may be considered for a period of parole for up to two years to continue their immigration proceedings”. Migrants who entered the United States through this process are eligible to apply for an EAD immediately upon being paroled into the country, even if they applied for asylum less than 150 days prior. The Biden administration has recently begun sending text messages to migrants who are eligible for work authorization to encourage them to apply, as well as circulating QR codes that link to information about applying for work authorization.  While this is all salutary, the Biden administration should also process the EADs expeditiously for eligible applicants.

Adams’ assertion that migrants will destroy New York City is utterly misguided. He is foolishly playing into the hands of Republican politicians who have never been friendly towards asylum seekers.  Rather, immigrants have played an instrumental role in building New York City into what it is today. The city’s newest arrivals are equally eager to contribute, and Adams seemingly disregards the fact that many migrants are already authorized to apply for work authorization and entering a community that is ready to employ them. Once these migrants are employed they will contribute to New York City and the economy.  The key to ensuring that New York City can successfully welcome arriving migrants is not to vilify these individuals, but rather to ensure that eligibility for work authorization is extended to as many migrants as possible, and to facilitate the application process for those who are already eligible. This will be a win-win for migrants and New York City!

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

To What Extent Can Immigration Practitioners Ethically Rely on ChatGPT to Aid Their Practice?

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To what extent can ChatGPT assist immigration lawyers in their immigration practice? What are the ethical pitfalls if a lawyer relies on ChatGPT?

There is one case that was widely publicized all over the world In Mata v. Avianca Inc, Judge Castel in the Southern District of New York sanctioned two New York lawyers and their law firm for $5000 for submitting a brief citing fake cases generated by ChatGPT. The brief was submitted in opposition to a motion to dismiss by Avianca Airlines after Roberto Mata sued the airline for incurring an injury during a flight to JFK, New York. The 10-page brief  cited more than half a dozen relevant court decisions such as Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, Varghese v. China Southern Airlines, with a learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.” None of these cases existed and were made up by ChatGPT. Judge Castel pointed out that “[Varghese v. China Southern Airlines] shows stylistic and reasoning flaws that do not generally appear in decisions issued by United States Courts of Appeals. Its legal analysis is gibberish.” Judge Castel further noted that he would not have sanctioned the attorneys if they had immediately come clean when confronted with the fake cases generated by ChatGPT. Instead the lawyers “doubled down and did not begin to dribble out the truth” for a month and a half after the cases were brought to the court’s attention. Rather than accept an apology from the lawyers, in addition to the $5000 fine, Judge Castel ordered that the lawyers inform their client and the judges whose names were wrongfully invoked of the sanctions imposed.

If a  brief with made up cases and citations generated by ChatGPT is submitted in Immigration Court or with the USCIS, EOIR and DHS Disciplinary Counsel can impose sanctions under the disciplinary grounds articulated in 8 CFR 1003.102. For instance, a practitioner can be sanctioned for knowingly or with reckless disregard making false statements under 8 CFR 1003.102(c), engaging in frivolous behavior under 8 CFR 1003.102(j), engaging in conduct that is prejudicial to the administration of justice or undermines the integrity of the adjudicative process under 8 CFR 1003.102(n), failing to provide competent representation under 8 CFR 1003.102(o),  failing to act with reasonable diligence and promptness under 8 CFR 1003.102(q) or repeatedly filing briefs and other pleadings that reflect little or no attention to the specific factual or legal issues applicable to a client’s case, but rather relying on boilerplate language  under 8 CFR 1003.102(u).  Of course, state bar disciplinary authorities where the lawyer is admitted can also start an investigation under that state’s analogous rules governing the professional conduct of attorneys and impose discipline.

Even before  the advent of ChatGPT,  lawyers have been disciplined for filing inaccurate or sloppy briefs. For instances, in Coboy v. US Small Business Administration, 992 F.3d 153 (3d Cir 2021), the court sanctioned a lawyer for a  sloppy cut and paste job. “The relevant extract from the Third Circuit’s holding is worth noting:

It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.

This does not mean that the lawyer should completely shun AI technology in their practice. The lawyer could use an AI generated response as the starting point but should not be taking for granted that ChatGPT will always be accurate. In an ABA practice advisory, “Future Proofing: A Present Look at ChatGPT in Your Future” by Dan Pinnington and Reid Trautz, the authors provide the example of how an immigration lawyer has been testing ChatGPT for his busy practice:

Miami immigration lawyer Michael Harris has been testing ChatGPT for his busy practice by seeing how it could write analytical essays or letters typically used in his practice. Harris reports that he immediately was impressed that it could write detailed letters with the same type of instruction he would give a paralegal or associate lawyer. “If the draft had weaknesses, I would refine my instruction and the AI was able to further adjust. I don’t think ChatGPT can yet write a complex memorandum of law, but it can help draft detailed fact statements when given the right in put prompts.

In an AILA advisory, “What is ChatCPT and Why Does It Matter to Immigration Lawyers?” by Michele Carney, the author provides this valuable insight on how ChatGPT might be able to assist the immigration lawyer:

Think of ChatGPT as a blank piece of paper that can populate ideas. ChatGPT can get the ball rolling on ideas as it uses a predictive model, and the more information the lawyer inserts into the query, the more responsive the answer will be. The lawyer can get several responses from ChatGPT, and then perhaps the writer’s block will be lifted, and the lawyer will have a springboard from which to draft a document.

I asked ChatGPT to see whether it could help me draft a letter in support of an O-1B for an Indian chef. This was my question:

Can you assist me in drafting a letter in support of an O-1B petition for a prospective chef of an Indian restaurant in New York who has gained acclaim in India for his innovations in Mughlai and Dum pukht cuisine. Please also provide some background on the origins of Mughlai and Dum pukht cuisine.

This was ChatGPT’s response:

Certainly, here’s a letter in support of an O-1B petition for a prospective chef specializing in Mughlai and Dum Pukt cuisine, along with some background on the origins of these cuisines:

[Your Name] [Your Title] [Restaurant Name] [Restaurant Address] [City, State, ZIP Code] [Date]

[USCIS Address] [City, State, ZIP Code]

Re: O-1B Visa Petition for [Prospective Chef’s Full Name]

Dear Sir/Madam,

I am writing to wholeheartedly support the O-1B visa petition on behalf of [Prospective Chef’s Full Name], an extraordinarily talented chef from India, whose culinary prowess and innovative contributions to Mughlai and Dum Pukt cuisine have earned him accolades and acclaim in his home country.

Mughlai Cuisine, originating during the Mughal Empire’s reign in India, represents a culinary tradition characterized by its opulent flavors, aromatic spices, and meticulous preparation methods. This culinary heritage is a testament to the grandeur and refinement of the Mughal courts. Mughlai cuisine is celebrated for its use of cream, yogurt, and an array of spices, resulting in dishes of unparalleled richness and taste. The hallmark of Mughlai cuisine lies in its ability to transform ordinary ingredients into extraordinary culinary masterpieces.

Dum Pukt Cuisine, another gem in the treasure trove of Indian gastronomy, emerged from the royal kitchens of the Mughal emperors. The term “Dum” translates to “breath” in Persian, symbolizing the slow, luxurious breath that food takes as it is carefully slow-cooked in a sealed container. This technique allows flavors to meld and intensify, resulting in dishes of exquisite depth and complexity. Dum Pukt cuisine is a living testament to the legacy of generations of chefs who have preserved and perfected this timeless culinary art.

[Prospective Chef’s Full Name] has not only embraced these culinary traditions but has also elevated them to new heights through his innovative techniques and creations. His culinary journey reflects a profound understanding of the roots and history of Indian cuisine, coupled with a relentless passion for pushing the boundaries of flavor and presentation.

His achievements include:

  1. Innovative Culinary Creations: [Prospective Chef’s Full Name] consistently pushes the boundaries of traditional Mughlai and Dum Pukt cuisine, reimagining classic dishes with contemporary twists that have captivated diners and critics alike.
  2. Acclaim in India: He has received widespread recognition in India, earning accolades and awards for his culinary innovations.
  3. Cultural Ambassador: Through his culinary artistry, [Prospective Chef’s Full Name] has effectively served as a cultural ambassador, promoting Indian cuisine and traditions both domestically and internationally.
  4. Mentorship: He has mentored and trained aspiring chefs, ensuring the preservation and continued evolution of these culinary traditions.

Enclosed with this letter, you will find the necessary documentation, including letters of support from renowned culinary experts, evidence of [Prospective Chef’s Full Name]’s significant contributions to the culinary industry, and proof of his acclaim in India.

We kindly request that you consider this petition favorably and grant [Prospective Chef’s Full Name] the O-1B visa, which will allow him to bring his extraordinary talents and culinary innovations to our restaurant in New York, enriching our city’s culinary landscape and further enhancing cultural exchange.

Thank you for your attention to this matter, and we look forward to the possibility of welcoming [Prospective Chef’s Full Name] to the United States.

Sincerely,

[Your Name] [Your Title] [Restaurant Name] [Contact Information]

 

 

If the practitioner submits this letter by filling in the blanks, he or she will likely not be providing competent and diligent representation. If this is going be the main letter in support of the O-1B petition, it does not set forth the evidentiary criteria for proving distinction in the arts under 8 CFR 214.2(o)(3)(iv) and how this chef may meet three out of the six evidentiary criteria. This AI generated draft should only serve as the opening for a more detailed letter pertaining to how the chef can qualify for O-1B classification, and it would require more research and investigation about the chef’s acclaim and achievements in Mughlai and Dum pukht cuisine. I give credit to ChatGPT that it gave me some idea of Mughlai and Dum pukht cuisine although note that ChatGPT spelt it as Dum pukt rather than Dum pukht, which is how I spelt it. Perhaps, this AI generated letter might be more suitable as a sample template  from a peer of the chef who writes a recommendation rather than the main letter brief summarizing the evidence and establishing how the chef meets the chef meets the O-1B visa standards.  If a paralegal is relying on ChatGPT to draft a letter in support of an O-1B petition, it would behoove the lawyer to supervise the paralegal and ensure that the paralegal is not solely relying on a document generated by ChatGPT. If the practitioner carelessly submits the letter as is without even filling out the blanks, it would be tantamount to a frivolous filing. The lawyer should also be aware that ChatGPT can hallucinate and generate gibberish as it did in Mata v. Avianca.

While a document generated by AI could potentially lift writer’s block, it should only be the starting point for the lawyer to further investigate the facts and research the law. Submitting a letter generated by ChatGPT without further reworking could potentially result in sanctions for the lawyer under the disciplinary grounds in 8 CFR 1003.102 and under the relevant state bar rules of professional conduct. Even if the lawyer escapes sanctions, the USCIS may be able to detect that the letter was generated by AI and may not give it the same weight.

A final word on confidentiality. There is concern that the data of a client provided to ChatGPT will not be anonymized and kept confidential, and may  thus violate ABA Model Rule 1.6. However, when I asked ChatGPT this question, this was its answer:

Yes, I can assure you that any information you provide, including the date of a client for an O-1B petition, will be kept confidential and anonymized. I don’t have the capability to store or recall personal data from one interaction to the next, and I am designed to respect user privacy and confidentiality. Your data and questions are not stored or used for any purpose beyond the current conversation. Your privacy and the security of your information are of utmost importance. If you have any concerns about privacy or data security, please feel free to let me know, and I’ll do my best to address them.

Notwithstanding ChatGPT’s assurance of maintaining confidentiality, I would still get the consent of the client if I might provide their data to ChatGPT in the hope of generating a more specific letter in support of the O-1B petition.

As final experiment, I gave ChatGPT data about Marcus Samuelsson who is an  Ethiopian-born Swedish-American celebrity  chef and is not my client. Nor is the Aquavit restaurant my client. Perhaps, ChatGPT could provide a better letter if I gave it more specific information about a particular public figure like Mr. Samuelsson and the restaurant that would sponsor him. I asked the following question:

Assuming that Marcus Samuelsson will hypothetically apply for an O-1B visa, please draft the letter in support of the O-1B petition that Aquavit will file on his behalf demonstrating that he meets the evidentiary standards under 8 CFR 214.2(o)(3)(iv)

 

This is how ChatGPT responded:

Your Name] [Your Title] Aquavit Restaurant [Address] [City, State, ZIP Code] [Date]

U.S. Citizenship and Immigration Services [Service Center Address] [City, State, ZIP Code]

Re: O-1B Visa Petition for Marcus Samuelsson

Dear Sir/Madam,

I am writing this letter in support of the O-1B visa petition on behalf of Mr. Marcus Samuelsson, a renowned chef and culinary artist, who we are proud to have as a valuable member of our team at Aquavit Restaurant. We firmly believe that Mr. Samuelsson meets and exceeds the evidentiary standards outlined in 8 CFR 214.2(o)(3)(iv) for an O-1B visa, and we are enthusiastic about his continued contributions to the culinary world in the United States.

Mr. Samuelsson’s exceptional achievements in the field of culinary arts have earned him national and international acclaim. He has demonstrated extraordinary ability and expertise in his craft, distinguishing himself as a culinary innovator and influencer. His contributions to our restaurant and the broader culinary community have been nothing short of remarkable.

To meet the regulatory criteria for the O-1B visa, Mr. Samuelsson can provide the following evidence:

  1. Awards and Recognitions:
    • Samuelsson has received numerous prestigious awards and accolades throughout his career, including multiple James Beard Awards, Michelin stars, and recognition in the culinary industry’s most respected publications.
  2. Critical Acclaim:
    • His culinary creations have consistently garnered critical acclaim, with glowing reviews from renowned food critics and journalists.
  3. Expert Appearances:
    • Samuelsson has been invited to participate as a guest judge on top culinary television shows, further demonstrating his prominence in the field.
  4. Original Contributions:
    • He has made significant original contributions to the culinary arts, introducing innovative techniques, flavors, and concepts that have influenced the industry.
  5. International Standing:
    • His influence extends beyond national borders, as he has represented the United States on the global culinary stage and has been invited to collaborate with chefs from various countries.
  6. Industry Leadership:
    • Samuelsson is recognized as a leader in the culinary world and has served as an inspiration to emerging chefs, mentoring and supporting them in their careers.
  7. Prominent Partnerships:
    • His collaborations with leading culinary institutions, world-famous restaurants, and renowned chefs have solidified his status as a prominent figure in the culinary world.

We believe that Mr. Samuelsson’s achievements, expertise, and contributions to the culinary arts unquestionably meet the criteria set forth in 8 CFR 214.2(o)(3)(iv) for the O-1B visa. We are confident that his continued presence in the United States will enhance our culinary landscape, further promote cultural exchange, and inspire aspiring chefs.

We respectfully request that you grant Mr. Samuelsson the O-1B visa, allowing him to continue sharing his extraordinary talents with the American public and contributing to our vibrant culinary scene. We appreciate your time and attention to this matter and are prepared to provide any additional documentation or information that may be required to support this petition.

Thank you for considering Mr. Samuelsson’s O-1B visa application. If you have any questions or need further information, please do not hesitate to contact me at [Your Contact Information].

Sincerely,

[Your Signature] [Your Name] [Your Title] Aquavit Restaurant [Phone Number] [Email Address]

 

The letter that ChatGPT generated did not meet my standards. It was still canned and used the same verbiage from the letter that it gave me for the Indian chef who specialized in Mughlai and Dum pukht cuisine. The letter was lacking in detail about Mr. Samuelsson’s achievements, which are widely accessible on the internet.  A lawyer who is required to provide competent and diligent representation needs to substantially rework and rewrite an AI generated letter if it will be used in support of an O-1B petition.

 

Cyrus Mehta

USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement After Using Filing Date to Protect the Age of the Child

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By Cyrus D. Mehta and Kaitlyn Box*

As detailed in a prior blog, USCIS issued updated guidance on February 14, 2023 on when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age under the Child Status Protection Act (CSPA). Prior to February 2023, USCIS had taken the position that only the Final Action Date (FAD) protects a child’s age, not the Date for Filing (DFF). This position resulted in children aging out before the FAD became current, and their I-485 applications getting denied, although they had been permitted to apply for adjustment of status using the DFF. In numerous previous blogs (see here, here, and here), Cyrus Mehta advocated for a change in USCIS policy to allow the DFF to protect children’s ages under CSPA rather than the FAD. In its February 2023 guidance, USCIS finally adopted this recommendation, acknowledging that “the same applicant for adjustment of status could have a visa ‘immediately available’ for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation”, and stating that “USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application”.

Regardless of whether the FAD or DFF is used for CSPA purposes, however, INA § 203(h)(1)(A) makes clear that a child’s age is locked “only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability”. In updated guidance issued on August 24, 2023, USCIS clarified that it considers “applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied”. The updated guidance:

  • Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;
  • Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
  • Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

USCIS further explains that under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, USCIS said, they may not be able to meet the one-year “sought to acquire” requirement. “However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances,” USCIS noted.

 

Although it is clear that individuals who were unable to apply for adjustment of status within one year of the DFF becoming current can now claim an exception if the delay in filing was the result extraordinary circumstances, this updated guidance still leaves some questions unanswered.

USCIS’s policy of using the DFF to protect a child’s age seems only to pertain to individuals who apply for adjustment of status within the United States. The Department of State (DOS) has yet to issue any corresponding guidance or update the Foreign Affairs Manual (FAM) in accordance with USCIS’s new policy. The FAM still states that an applicant’s “’CSPA age’ is determined on the date that the visa, or in the case of derivative beneficiaries, the principal applicant’s visa became available (i.e., the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later) (emphasis added)”. Thus, an applicant outside the U.S. who pays an immigrant visa (IV) fee may satisfy the “sought to acquire” requirement, but only based on the FAD becoming current. This uneven policy makes little sense, and the DOS should promulgate its own guidance in accordance with USCIS’s policy to ensure that the DFF can also be used to protect the age of a child who processes for a visa overseas.

Additionally, some derivative children may not have applied for adjustment of status with their parent while the previous policy was in effect because only the DFF was current and it would not have protected their age. Are these children now able to assert that the policy change constitutes extraordinary circumstances and apply for adjustment of status although more than a year has passed since the visa became available (and the DFF has retrogressed, and the USCIS’s stated policy guidance on retrogression is at odds with this update)?  Based on the new policy, one can argue that the child was eligible to apply for adjustment of status when the DFF became current, and is now eligible to file a late, sought-to-acquire I-485 under the extraordinary circumstances exception. The same logic should also apply to children whose I-485s were denied based on the prior policy because they aged out before the parent’s priority date became current under the FAD and they can file a late motion to reopen.

Finally, the DFF only protects the age under the CSPA if the USCIS has indicated that the DFF can be used to file I-485 applications. For instance, the USCIS for the September 2023 Visa Bulletin has only permitted filing of employment-based I-485 applications under the FAD and not the DFF. Thus, the DFF will not be able to protect the age of the child under the CSPA even if an I-140 is approved and the DFF is current for that I-140 under the relevant employment-based preference.

While it is salutary that the DFF can be used to protect the age of the child under the CSPA, USCIS needs to provide more clarification and harmonize the application of the DFF with the FAD to protect the child’s age under the CSPA.

 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Changes in Work From Home Policies After Labor Certification Has Been Filed

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Cyrus D Mehta and Jessica Paszko*

As a response to the COVID-19 pandemic, employers implemented telecommuting policies, and work-from-home became the norm for much of the workforce. Three years later, many of those employees are dusting off their lunchboxes and ironing their work suits as their employers call them back to the office. While the turning back of these policies may be met with groans from employees who grew comfortable in their home offices, for foreign nationals in the process of being sponsored for permanent employment, the change could mean something much worse than a mere change of work scenery. For instance, if the employer indicated in its test of the labor market that the position allows telecommuting and then later requires all employees to report to the office, could the labor certification be deemed invalid?

The PERM labor certification process is typically begun by submitting the Department of Labor (DOL) Form ETA 9141, Application for Prevailing Wage Determination (PWD). Some key “Job Offer Information” that ETA 9141 asks for in Section F is the job title (F.a.1), job duties (F.a.2), the minimum degree (F.b.1) and experience requirements (F.b.4), and whether the employer requires any special skills or other requirements (F.b.5). In F.b.5, the employer clearly must list any tools, software, or programs that the employee is required to know for the position, but the employer should also use this field to list other key information about the job, such as that telecommuting is permitted. The ETA 9141 also requires the employer to provide the full address of the place of employment (F.e). Based on the regulations’ definitions of employment and employer, the “place of employment” has been interpreted to mean a physical office or location in the U.S. Specifically, 20 CFR § 656.3 defines employer as a “person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States . . . . An employer must possess a valid Federal Employment Identification Number (FEIN).”.  In the case of “roving employees”, the 1994 Barbara Farmer Memo states that the employer’s main or headquarters (HQ) office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated. Note, the information from the ETA 9141 automatically gets included in the ETA 9089, the DOL form used to electronically submit the labor certification, since the revised ETA 9089 took effect on June 1, 2023. Under the old ETA 9089, the employer had to repeat the information from the ETA 9141 in the relevant boxes. Many of the approved labor certifications are under the old ETA 9089.

Once the ETA 9141 is certified by the DOL, employers can move onto the second stage of the PERM process which is to conduct a series of mandatory and optional recruitment steps to confirm that there are not sufficient U.S. workers who are “able, willing, qualified, and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work”, i.e., the labor market test. 20 CFR § 656.1(a)(1). The employer’s advertisements must indicate all of the “Job Offer Information” that was listed in the ETA 9141, or in the old form it was the ETA 9089 and box H.14 was answered. The recruitment steps must be conducted in the area of intended employment that was listed in Section F.e. If an employer intends for an employee to work solely at a designated worksite, such as a company office or its HQ, then the ETA 9141 need only list one worksite location and the employer need only conduct recruitment in that area of intended employment. If the employer will permit the employee to perform work remotely from their home, then the ETA 9141 still need only list the employer’s main or HQ office as the worksite, but F.b.5 on the ETA 9141, and in turn each of the ads used in recruitment, should indicate that the employer will permit telecommuting from anywhere in the U.S.

Turning back to the question we posed at the outset – what should happen to a labor certification that indicated “telecommuting permitted” but where the employer later decides that all employees must report to the office five days a week? Arguably, the labor certification should not be deemed invalid in such a scenario because the labor market test was conducted in the area of intended employment, i.e., the company’s main office or HQ, which is where the foreign worker will need to report to. Additionally, by issuing the labor certification, the DOL determined that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application for a visa and admission into the U.S. and at the place where the alien is to perform the work. Indeed, the employer, by indicating that telecommuting would be allowed, cast a wider net and potentially made the position “available” to more U.S. workers “at the place where the alien is to perform the work” since the U.S. applicant not need be physically present in the employer’s area of intended employment listed in the ETA 9141, Section F.e or in the old ETA 9089. Therefore, the labor certification should not be invalid as the employer properly made the two attestations required by it.

But what if the issue was flipped and now the employer wishes to allow telecommuting even though the ETA 9141 and subsequent recruitment did not indicate that telecommuting would be permissible? Here, the employer’s attestation that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application for a visa and admission into the U.S. and at the place where the foreign worker is to perform the work may be called into question. By failing to indicate in its ads that workers could telecommute from anywhere in the U.S., the employer arguably made the position more restrictive as qualified U.S. applicants may have not applied to the position due to the location of the employer’s office or HQ, though they would have applied if telecommuting was allowed. Still, we would argue that the employer’s telecommuting change after the labor certification should not invalidate the labor certification. The Barbara Farmer Memo made clear that the employer’s main or HQ office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated. That HQ worksite in turn determines the course of the labor market test and where it is to be conducted. The labor certification should not be later deemed invalid just because the employer changes its mind as to whether or not telecommuting is allowed as the labor market test is still valid since it was conducted in the area of intended employment.

If the labor certification is approved but the I-140 petition still needs to be filed, it would behoove the employer to provide a justification in the support letter to the I-140 that the labor certification is still valid despite a change in work from home policy. Alternatively, the employer is only obligated to offer the position in accordance with the terms of the labor certification upon the grant of permanent residence. See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).  Thus, even if the work from home policies have currently changed, but the employer still wishes to offer the job in accordance with the labor certification, then there is no need for any further justification. Assuming that the employer does not intend to offer the position per the labor certification upon the grant of permanent residence, obtaining an I-140 approval after full disclosure has been made would be the ideal situation. If the I-140 petition is already approved, the employer could again go with the assumption that the underlying labor certification is valid despite the change in work from home policy and perhaps explain in the letter in support the I-485 or in the I-485J supplement, whichever is applicable. When there is doubt regarding the validity of the labor certification due to changes in work from home policies, and the I-140 is already approved, the employer can file a new labor certification and upon approval of the labor certification, file an I-140 petition and recapture the earlier priority date under 8 CFR § 204.5(e)(1).

Given the extraordinary time it takes to obtain labor certifications, starting again when there is a change in a work from home policy can be very burdensome especially when the foreign worker is running out of H-1B time. Our blog provides a legal basis for keeping the labor certification in intact when there is a change in work from home policies, and making full disclosure when submitting the subsequent I-140 petition and I-485 application.

(This blog is for informational purposes and should not be relied upon as substitute for legal advice)

*Jessica Paszko is an Associate at Cyrus D. Mehta &  Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

 

 

 

 

 

Cyrus Mehta

Will United States v. Hansen Come Back to Bite Trump?  

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By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Eliminate the H-1B and  Green Card Caps!

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By Cyrus D. Mehta and Kaitlyn Box*

On July 27, 2023, USCIS announced that it will conduct a second round of selections for the FY 2024 H-1B lottery. An alert posted on the USCIS website stated that “We recently determined that we would need to select additional registrations to reach the FY 2024 numerical allocations. Soon, we will select additional registrations from previously submitted electronic registrations using a random selection process. We will announce once we have completed this second selection process and have notified all prospective petitioners with selected registrations from this round of selection that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.” Attorneys have been notified of additional selections through their myUSCIS accounts throughout this past weekend.

Anecdotally, we have found that the selection rates in this second round of the H-1B lottery for some of our clients is slightly better than the selection rates in the first round. Still, selection rates in for this year’s lottery were much lower than those observed in prior years, and USCIS indicated that this was the result of a striking increase in the number of registrations, including multiple registrations for the same beneficiary. USCIS further acknowledged that “large number of eligible registrations for beneficiaries with multiple eligible registrations – much larger than in previous years – has raised serious concerns that some may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary”, and committed to investigate and combat fraudulent registrations. When so few registrations were initially selected in this year’s lottery, news of a second round of selections likely comes as welcome news to prospective beneficiaries and U.S. employers alike. However, this additional round of selections is not the victory it seems because it is merely a reflection of an inherently flawed system.

In previous blogs, we have advocated for the abolishment of the H-1B lottery, which in turn means that the H-1B cap should be abolished. If there is no cap, there is no need for a lottery. The lottery is an arbitrary and whimsical system that needlessly prevents U.S. employers from employing highly-skilled foreign workers they want that would help them remain competitive and profitable.  In industries like tech and finance, there are an insufficient number of qualified U.S. workers to fill available positions. The fact that the number of registrations far outstrips the number of available visas is a function of the market and illustrates the level of demand for highly-skilled foreign workers. When the American Competitiveness in the 21st Century Act (AC 21) increased number of available visas to 195,000 in 2000, the cap was never reached. Artificially limiting the number of new H-1B petitions that can be filed in a fiscal year is thus not only a point of frustration for prospective beneficiaries, but also detrimental to the needs of U.S. businesses. The cap’s detrimental impact on U.S. business interests is amplified by the fact that other countries have begun implementing more favorable programs for holders of U.S. H-1B visas. As analyzed by David Isaacson in a recent blog, Canada announced a measure in June 2023 that will allow U.S. H-1B visa holders to “apply for a Canadian work permit, and study or work permit options for their accompanying family members”. The Canadian program styled as the “H-1B visa holder permit” is indeed unique as it has targeted the visa program of another country in the global competition for talent.  By needlessly restricting the flow of highly-skilled workers into the country, the U.S. may soon begin to lose top talent to competitor countries.

Opponents of ending the H-1B lottery or increasing the cap sometimes suggest that the program is a source of cheap labor, and allowing more highly-skilled foreign workers to take up jobs in the U.S. would harm the employment prospects of U.S. workers. However, this contention is without merit. In a previous blog on this topic, we discussed a Center of Growth and Opportunity paper which found that highly-skilled foreign workers are “paid a wage premium of 29.5 percent” in comparison to similar U.S. workers. Another more recent Cato Institute study indicates that H-1B wages are in the top 10% of US wages.  Moreover, as outlined above, there are insufficient qualified U.S. workers to meet the demands of employers in many industries. Rather than disadvantaging U.S. workers, highly-skilled foreign workers fill an important need in the market and allow U.S. businesses to remain competitive. Their employment in the US economy results in job creation too.

Another often-raised objection is that limiting the number of H-1B workers will help to alleviate the green card backlog. However, any noncitizens currently waiting in the employment-based green card backlogs are already the beneficiaries of I-140 petitions and have a priority date. In order to be eligible to commence the green card process, a new H-1B worker would need obtain sponsorship by an employer, who would file a labor certification and I-140 petition on his behalf. The new H-1B worker would thus be assigned a later priority date, having no impact on anyone already in the backlog. Additionally, other types of nonimmigrant visas, such as L-1s and TNs, are not subject to a quota. If there is no concern about nonimmigrant beneficiaries of these visa types contributing to the green card backlogs, the same should be true of H-1B workers.

In reality, the green card backlog and the H-1B lottery are both parts of the same flawed quota system. Although the announcement of a second round of selections for the FY 2024 H-1B lottery may seem like cause for celebration, it is in fact a hollow victory for prospective H-1B workers and U.S. employers alike.

We call for the elimination of the H-1B caps as well as caps in the employment-based and family-based immigration categories. And we also call for the elimination of country caps. This is something that Congress can only do and should do on an urgent basis.  There is no need to discriminate based on where a person is born, and per country limits become wholly irrelevant if there is no overall cap in any particular family or employment-based category.  Caps and lotteries have no place in a modern immigration system. There are no caps for TN, L-1, O, P and R visa, and yet life goes on. The nonexistent caps in these nonimmigrant work visa categories do not result in the undermining of the US economy or the taking of US jobs. So why should the H-1B visa program be hobbled with an artificial cap of 85,000?   When the unemployment rate is 3.6%, the US can only benefit with the skills, talents, creativity and enterprise of foreign workers who desire to succeed in the US for themselves and their families. Indeed, all immigrants who come to the US under the employment and family based systems can potentially benefit the US.  The US is also not the only game in town as Canada has begun to directly compete with the US for talent. There is no need for foreign workers to remain in the US under a flawed and broken immigration system when another country’s system is more rational, fair and dynamic. Due to the green card backlogs they are forced to remain in the same jobs and not advance through promotions or form their own startups.   Eliminating caps in the H-1B visa and the employment and family based green card categories will be a step in the right direction!

 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

Cyrus Mehta

Advancing the Dates for Filing in the State Department Visa Bulletin Will Restore Balance and Sanity to the Legal Immigration System

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By Cyrus D. Mehta

The August 2023 Visa Bulletin is a disaster. Here are some of the highlights:

Establishment of Worldwide employment-based first preference (EB-1) final action date.  Rest of World countries, Mexico, and Philippines will be subject to a final action date final action date of August 1, 2023. It is likely that in October the category will return to “Current” for these countries.

Retrogression in employment-based first preference (EB-1) for India.  India will be subject to an EB-1 final action date of January 1, 2012. It is likely that in October the final action date will advance.

Retrogression in employment-based third preference (EB-3) for Rest of World countries, Mexico, and Philippines. The Rest of World, Mexico, and Philippines EB-3 final action date will retrogress in August to May 1, 2020.

Retrogression in family-based second preference (F-2A) for Rest of the World countries, China and India. The Rest of World, China, and India F2A final action date will retrogress to October 8, 2017.

.The bad news from the July 2023 Visa Bulletin continues into the August 2023 Visa Bulletin.  The India EB-2 final action date remains retrogressed at January 1, 2011. The India EB-3 final action date remains retrogressed at January 1, 2009. Still, the corresponding dates for filing  in the August 2023 visa bulletin are significantly more ahead than the final action date. For instance, the dates for filing for the F2A for all countries is current. The dates for filing for the EB-1 for the Rest of the World is current and for India is June 1, 2022. Yet, the USCIS has indicated that I-485 adjustment of status applications can only be filed in August 2023 under the dates for filing chart  if they are family-based while I-485 adjustment of status applications can only be filed in August 2023 under the final action dates chart if they are employment-based.

The USCIS should allow I-485 applications related to both family and employment-based petitions to be filed under the dates for filing chart. Indeed, in the face of massive retrogression in the Visa Bulletin, the Biden administration does have the authority to move the dates for filing to current. However, even before taking this radical step, which has a legal basis, the administration should  at least allow I-485 applications to be filed under the dates for filing in both the family and employment-based preferences.

The total allocation of visa numbers in the employment and family based categories are woefully adequate. §201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  INA §202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. These limits were established in the Immigration Act of 1990, and since then, the US Congress has not expanded these limits for well over three decades. In 1990, the worldwide web was not in existence, and  since then, there have been an explosion in the number of jobs as a result of internet based technologies and so many related technologies as well as a demand for foreign skilled workers many of whom have been educated at US educational institutions.  Yet, the US legal immigration system has not kept up to timely give green cards to immigrants who contribute to the country. Due to the per country limits,  till recently it was only India and China that were backlogged in the employment based preferences, but now under the August 2023 Visa Bulletin all countries face backlogs. Still, India bears the brunt disproportionately in the employment-based categories, and one study has estimated the wait time to be 150 years in the India EB-2!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates for filing in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can file I-485 adjustment of status applications and get  ameliorative relief such as an  employment authorization document (EAD), travel permission and to be able to exercise job portability under INA §204(j). Spouse and minor children can also avail of work authorization and travel permission after they file their I-485 applications.

There is a legal basis to advance the dates for filing even to current. This would allow many backlogged immigrants to file I-485 adjustment of status applications and get the benefits of adjustment of status such as the ability to port to a new job under INA 204(j), obtain travel permission and an EAD. Many more of the children of these backlogged immigrants would also be able to protect their age under the USCIS’s updated guidance relating to the Child Status Protection Act.

INA §245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa  is immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s 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 CFR 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.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become 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 State Department 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 may still potentially be waiting and have yet to receive their green cards even as of today! Another example is when the State Department 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 State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards. More recently, the September 2022  Visa Bulletin had a final action date of December 1, 2014 for EB-2 India. In the next October 2022 Visa Bulletin the FAD for EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014 or earlier should have been issued permanent residence.

These three examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, 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.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the DFF Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

Taking this to its logical extreme, visa availability for establishing the dates for filing may be based on just one visa being saved in the backlogged preference category in the year, 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 used by the noncitizen beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). This is reflected in the August  2023 Visa Bulletin as the first visa in the India EB-3 has a priority date of January 1, 2009. Hence, there is one available visa in the India EB-3 skilled worker, otherwise it would have stated “Unavailable.”  The   dates for filing could potentially advance and become current based on this available visa with a  January 1, 2009 priority date in the India EB-3, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

The administration simply needs to move the dates for filing to current or close to current. It can undertake this executive action through a stroke of a pen. However, if it needs to do this through rulemaking 8 CFR 245.1(g)(1) could be easily amended (shown in bold) to expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [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) (“Final Action Date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (“‘Dates for Filing”) without reference to the Final Action Date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current Final Action Date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

 

The Biden administration has provided relief to hundreds of thousands of foreign nationals through executive actions such as humanitarian parole, now enforcing deportation against low priority individuals and extending DACA. The administration recently announced a Family Reunification Parole Initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades. The Biden administration ought to likewise advance the DFF to current so that beneficiaries of family and employment petitions can file I-485 applications and get the benefits of employment authorization, advance parole and the ability to port to a new employer if the job is same or similar to the position that was the subject of the sponsorship for the green card. There  is also a parallel campaign to convince the administration to issue an EAD and advance parole for beneficiaries of approved I-140 petitions, although this should be done in conjunction with advancing the dates for filing so that applicants can also file I-485 applications. Once the I-485 is filed applicants would also be able to port to same or similar jobs under INA §204(j) and keep intact the underlying labor certification and I-140 petition.  As we have shown in a related blog on the compelling circumstances EAD, if the EAD is not linked to an I-485 application and they do not have nonimmigrant status, holders of this EAD will have to leave the US to consular process for their immigrant visas and would also need another employer to sponsor them if they have left or cut ties with the original employer who sponsored them.  This would entail getting the new employer to start the whole labor certification process, which is perilous these days if the employer as laid off workers.

The Supreme Court in United States v.  Texas very recently rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. As this analysis can also apply to challenges to other executive actions on immigration by states not friendly to pro immigrant executive actions, the Biden administration should move boldly and advance the DFF in the State Department Visa bulletin to restore balance and some semblance of sanity to the legal immigration system in the US.

Cyrus Mehta

DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State

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By Cyrus D. Mehta and Kaitlyn Box*

On July 7, 2023, DHS announced a new family reunification parole initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades.

Section 212(d)(5) of the Immigration and Nationality Act (INA) authorizes the Secretary of Homeland Security, in his discretion, to parole noncitizens into the United States temporarily on a case-by-case basis for urgent humanitarian reasons or significant public benefit. The parole authority has long been used to establish family reunification parole (FRP) processes administered by U.S. Citizenship and Immigration Services, including the Cuban Family Reunification Parole Program, which was established in 2007, and the Haitian Family Reunification Parole Program, which was established in 2014.

The processes begin, according to the DHS announcement, with the Department of State issuing an invitation to the petitioning U.S. citizen or lawful permanent resident family member whose Form I-130 on behalf of a Colombian, Salvadoran, Guatemalan, or Honduran beneficiary has been approved. Beneficiaries awaiting an immigrant visa could include certain children and siblings of U.S. citizens and certain spouses and children of permanent residents. The invited petitioner can then initiate the process by filing a request on behalf of the beneficiary and eligible family members to be considered for advance travel authorization and parole.

The new processes allow for parole only on a discretionary, case-by-case, and temporary basis upon a demonstration of urgent humanitarian reasons or significant public benefit, as well as a demonstration that the beneficiary warrants a favorable exercise of discretion. Individuals paroled into the United States under these processes will generally be considered for parole for up to three years and will be eligible to request employment authorization while they wait for their immigrant visa to become available. When their immigrant visa becomes available, they may apply to become a lawful permanent resident.

The Federal Register Notices for Colombia, El Salvador, Guatemala, and Honduras provide more information on the FRP process and eligibility criteria.

According to the federal register notices, the justification for the new FRP initiative is part of a broader, multi-pronged, and regional strategy to address the challenges posed by irregular migration through the Southwest border. Consideration of noncitizens for parole on a case-by-case basis will meaningfully contribute to the broader strategy of the United States government (USG) to expand access to lawful pathways for individuals who may otherwise undertake an irregular migration journey to the United States. The case-by-case parole of noncitizens with approved family-based immigrant visa petitions under this process will, in general, provide a significant public benefit by furthering the USG’s holistic migration management strategy, specifically by: (1) promoting family unity; (2) furthering important foreign policy objectives; (3) providing a lawful and timely alternative to irregular migration; (4) reducing strain on limited U.S. resources; and (5) addressing root causes of migration through economic stability and development supported by increased remittances.

It remains to be seen whether states like Texas will attack this program in federal court. A similar humanitarian parole program has been the subject of a lawsuit by Texas and nineteen other states, and  allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. The new FRP initiative is more narrowly tailored as it applies only to spouse, children and sibling beneficiaries of  approved I-130 petitions. Also, in United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Although that case dealt with whether a state could challenge the federal government’s ability to exercise prosecutorial discretion, it can also potentially deter a state’s ability to demonstrate standing when it challenges other federal immigration policies.

In Texas’ challenge to the Deferred Action for Childhood Arrivals (DACA) program, Texas has argued that it is entitled to “special solicitude.” The doctrine first enunciated in Massachusetts v. EPA allows states to skirt some of the usual standing requirements, like whether the court can redress an alleged injury. However, Justice Brett Kavanaugh addressed the doctrine in a footnote in United States v. Texas stating that the states’ reliance on Massachusetts v. EPA to support their argument for standing was misplaced. Massachusetts v. EPA held that the state could challenge the U.S. Environmental Protection Agency’s failure to regulate greenhouse gases based on special solicitude, although that case dealt with a “statutorily authorized petition for rulemaking, not a challenge to an exercise of the executive’s enforcement discretion,” the footnote said. Another footnote in Justice Kavanaugh’s majority opinion said lower courts need to be mindful of constraints on lawsuits filed by states, saying that indirect effects on state spending from federal policies don’t confer standing. Still, Justice Kavanaugh’s opinion in United States v. Texas left open the possibility that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis”. Note that Justice Kavanaugh said that it “could” lead to a different standing analysis and not that it would.

Florida has already challenged the Biden administration’s “Parole Plus Alternatives to Detention” (Parole+ATD) and “Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document” (PWC) policies in Florida v. Mayorkas  that is currently pending before the Eleventh Circuit Court of Appeals. In a brief filed on July 5, 2023, the government argued that the “special solicitude” doctrine proffered by states in United States v. Texas. should not apply in the humanitarian parole context. Florida asserted that it was entitled to special solicitude for the same reasons articulated by Texas in United States v. Texas – “a challenge to its sovereignty and indirect fiscal costs flowing from the presence of more noncitizens in its state.” Because the Supreme Court rejected an almost identical argument for the application of special solicitude in United States v. Texas, the government argued that Florida is similarly not entitled to avail of the doctrine.

The Supreme Court’s decision in United States v. Texas could have interesting implications for challenges to DACA, as well, and DACA recipients as intervenors have filed additional briefing to the US District Court for the Southern District of Texas in US v. Texas, Case No. 1:18-CV-68. In his concurrence in United States v. Texas, Justice Gorsuch argued that the harm Texas and the states that joined it were concerned with – primarily increased spending to provide healthcare and other services to higher numbers of undocumented immigrants present in the state – was not redressable. Although an injunction would prevent the implementation of the Biden administration’s enforcement guidelines, Justice Gorsuch argued that this remedy was unavailable to the states because of 8 U. S. C. § 1252(f )(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of ” certain immigration laws, including the provisions that the states want to see enforced. The district court attempted to avoid offending this provision by “vacating” the Biden administrations guidelines instead of issuing an injunction, but Judge Gorsuch argued in part that a vacatur order nullifying the guidelines does nothing to redress the states’ supposed injuries because the “federal officials possess the same underlying prosecutorial discretion”, even in the absence of the guidelines. DACA recipients argued that this program also represents an exercise of inherent prosecutorial discretion, and states’ challenge of the program therefore suffers from the same redressability problem identified by Judge Gorsuch. Similarly, the states challenging the DACA program have alleged indistinct injuries similar to those articulated by Texas in United States v. Texas. Because the Supreme Court found that Texas lacked standing to challenge the Biden administration’s guidelines, DACA recipients have argued that states do not have stating to challenge the DACA program based on similar theories.

DOJ attorneys and intervenor defendants filed a joint motion on July 7, 2023, asking Judge Tipton of the United States District Court for the Southern District of Texas to delay a bench trial in the earlier lawsuit filed by Texas to challenge the Biden administration’s parole program for Cubans, Haitians, Nicaraguans, and Venezuelans. Although the motion argued that the outcome of United States v.  Texas would determine whether Texas had standing in the federal suit, Judge Tipton predictably declined to push back the trial date. Texas had previously argued that the parole program is distinguishable from the Biden administration’s enforcement guidelines because “[w]hatever discretion [the administration] might have in choosing which aliens to arrest or otherwise take into custody, [it has] no discretion to parole into the country aliens who do not meet the statutory criteria for parole.” At this point, states like Texas are arguing that their legal challenges to Biden’s earlier humanitarian parole or DACA program can be distinguished from United States v. Texas, which involved enforcement priorities, while the Biden administration and intervenors such as DACA recipients are arguing that Texas should not have standing to challenge even other immigration programs.

Returning to the idea of how this initiative can be broadened, parole can potentially be expanded to all beneficiaries of approved I-130, I-140, and I-526 petitions who are waiting overseas in the green card backlogs. Even if parole is expanded, the administration can still remain faithful to INA § 212(d)(5) by approving parole on a discretionary and case-by-case basis for urgent humanitarian reasons or a significant public benefit. For instance, it may be possible to justify the parole of certain beneficiaries of I-526 petitions who have made a minimum investment of  $500,000 in a US business prior to May 15, 2022 or $800,000 after this date,  and created 10 jobs as that could be considered a significant public benefit. The same justification can be made for certain beneficiaries of approved I-140 petitions in the EB-1, EB-2, and EB-3 preference categories whose presence in the US can benefit US employers who have sponsored them through the labor certification process or who have demonstrated that they are either persons of extraordinary ability or are well situated to advance the national interest of the United States. Beneficiaries of approved I-130 petitions who are caught in backlogs can make a justification for parole for urgent humanitarian reasons to unite with family members in the US.

Out of the four proposals Cyrus Mehta made to the Biden administration in May 2021 for reforming the legal immigration system without waiting for Congress to act, we are happy to see that two have come to fruition- parole for beneficiaries of I-130 petitions and using the Dates for Filing (DFF) for protecting the age of the child under the Child Status Protection Act. Cyrus Mehta has also proposed that the administration has the authority to advance the DFF in the State Department Visa Bulletin to current to maximize the number of people who can file for adjustment of status in the US. Cyrus Mehta has also proposed that there is nothing in INA § 203(d) that requires the counting of derivatives in  the family and employment green card preferences, although since the submission of this proposal, the DC Circuit Court of Appeals in Wang v. Blinken ruled that INA § 203(d) requires the counting of derivative. Hence, any hope of administrative reform with regards to the unitary counting of family members has been shelved for the time being unless Congress is able to provide clarification on §203(d). Even if the administration issues a new interpretation to INA § 203(d) and abandons the position it took in Wang v. Blinken, the DC Circuit Court of Appeal’s interpretation will still prevail within the jurisdiction.

As Texas v. United States has made it harder for a state like Texas, which has reflexively sued on every immigration policy to get standing, the Biden administration should consider moving forward more boldly by reforming the immigration system through executive actions without fear of being sued by these states. It may be no coincidence that the latest family reunification parole initiative was unveiled within two weeks of the favorable ruling for the Biden administration in Texas v. United States!

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

While Supreme Court Holds That States Have No Standing to Challenge Federal Immigration Enforcement Priorities in United States v. Texas, How Does This Bode for  DACA and Other Immigration Policies?

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By Cyrus D. Mehta

In United States v.  Texas, the Supreme Court in an 8-1 majority opinion rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. Writing for the majority, Justice Kavanaugh said, “The States have brought an extraordinarily unusual lawsuit. They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained.. The question turned on  whether the Biden administration’s enforcement priorities in the Mayorkas Memo contradicted two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses. Trump appointed Judge Tipton readily agreed by vacating the Mayorkas Memo.

Justice Kavanaugh held that in order to get standing the plaintiff states must show that the alleged injury must be legally and judicially cognizable and that the dispute must also be redressable in federal court. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest of or prosecution policies so that the Executive Branch makes more arrests of initiates more prosecutions.” In Linda R.S. v. Richard D., 410 U.S. 614 (1973), cited in the majority opinion, “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Similarly, a state government like the private citizen in this case cannot bring such a lawsuit. In another case Heckler v. Chaney, 470 US 821 (1983), the Court recognized that the government has to balance several factors such as resource constraints and changing public safety and public welfare needs, and that such a complicated balancing process leaves the courts without meaningful standards for assessing those policies.

The Court recognized that the Executive Branch exercises absolute discretion to prosecute a case, and this discretion extends to the immigration context. The Court previously in Arizona v. United States, 567 U.S. 387 (2012) declared that the Executive Branch retains discretion over whether to remove a noncitizen from the United States. Indeed, prosecutorial discretion is so inevitable in immigration enforcement that even after the Mayorkas Memo was set aside, ICE has continued to exercise discretion by moving to dismiss thousands of removal cases in immigration courts  but without referring to the priorities in the Mayorkas Memo.

This decision bodes well for the other cases where Texas and other states have challenged federal immigration policy, although with respect to the Deferred Action for Childhood Arrivals (DACA) program, Kavanaugh’s opinion states that “a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis.” One wonders whether this would give Judge Hanen some leeway in distinguishing this case from United States v. Texas. Still, DACA is also part of enforcement priorities as the administration has decided to defer the removal of youths who fell out of status for no fault of their own. The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for employment authorization, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status should put DACA in the same category of cases where the DHS has exercised  prosecutorial discretion, and should in turn preclude Texas and other states from getting standing to challenge the program.

There is also this fear whether this ruling would preclude an immigrant friendly state like New York, Hawaii, Washington or California to challenge an anti-immigrant policy of a future president. Would Hawaii be able to challenge a future travel ban based on discriminatory grounds like it did in Trump v. Hawaii? Or would a state like New York be able get standing to sue a future administration if it again restricted the public charge parameters?  Assuming that United States v. Texas precludes standing for these states in the future, there will also be plaintiffs who have been actually injured such as noncitizens whose travel has been blocked to the US or who have been denied permanent residence as they could not meet the new restrictive public charge grounds. United States v. Texas serves as a shield against plaintiffs who wants to play offense but does not come in the way of an injured plaintiff who needs to play defense. It also remains to be seen whether the standing analysis in the ruling is limited to challenging the government regarding non-prosecutions or exercising prosecutorial discretion or whether it would apply to other matters.

If the standing analysis applies to other matters, then the Biden administration should consider boldly providing relief to backlogged skilled immigrants by radically advancing the dates for filing in the State Department Visa Bulletin so that thousands of beneficiaries of approved I-140 employment petitions may file for adjustment of status in the US and obtain benefits such as interim work authorization, travel permission and the ability to exercise job portability. The administration can also consider  providing parole to beneficiaries of approved I-130 family,  I-140 employment  and I-526 investor petitions who are waiting overseas to immigrated until their priority dates becomes current. These are just a few examples where the Biden administration can tread more boldly without fear of being sued by Texas, Louisiana or Missouri.

In the immediate aftermath of the decision where Justice Alito was the only dissenter, DHS Secretary Alejandro Mayorkas said that the DHS would reinstate the guidelines, which were paused last summer by the Supreme Court. He said this would “enable DHS to most effectively accomplish its law enforcement mission with the authorities and resources provided by Congress.” Texas Gov. Greg Abbott said that Texas would “continue to deploy the National Guard to repel [and] turn back illegal immigrants trying to enter Texas illegally.”

 

Cyrus Mehta

USCIS Broadens Compelling Circumstances Parameters for Skilled Immigrants in the Green Card Backlogs So That They Can Continue to Work in the US Even After Job Loss

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By Cyrus D. Mehta and Kaitlyn Box*

In our previous blog, we suggested several ways that the Biden administration could follow to allow nonimmigrant workers who have been laid off to remain in the U.S. As major tech companies continue to lay off workers, nonimmigrant employees are often left with few pathways to continue working in the U.S. if they cannot quickly secure alternate employment. H-1B visa holders are allowed only a 60-day grace period to change or extend their nonimmigrant status in the U.S. following a termination, after which they must depart the country. Layoffs have a particularly harsh impact on Indian born H-1B workers who are caught in the employment based green card backlogs. Skilled workers born in India must wait decades to become permanent residents, remaining dependent on their employers to file continued nonimmigrant visa petitions on their behalf in the meantime. In recent months, the State Department Visa Bulletin has reflected that all countries of the world are now subjected to retrogression in most of the employment based preferences although Indians still bear the brunt due to additional per country limits within each  employment based preference.

Among the suggestions posed in our previous blog was the recommendation that the Biden administration employment authorization documents (EADs) to laid off nonimmigrant workers based on compelling circumstances under 8 CFR § 204.5(p). As discussed in the prior post, this provision allows EADs to be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. Although DHS has never precisely defined what constitutes “compelling circumstances”, the examples provided in the preamble to the high skilled worker rule that took effect on January 17,  2017 included serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has also suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid might constitute significant disruption to the employer. USCIS has historically issued EADs based on compelling circumstances very seldomly as mere unemployment would not rise up to the level of compelling circumstances, and  more needed to have been shown such as that the unemployment was as a result of a serious illness,  employer retaliation or the skills used by the worker in the US could not be utilized in the home country.

USCIS recently implemented a version of this suggestion, broadening the criteria for implementing EADs based on compelling circumstances specifically linked to job termination. It is no coincidence that the parameters for compelling circumstances have broadened now that beneficiaries of approved I-140 petitions from all countries are facing visa retrogression as opposed to only India.  In a June 14, 2023 Policy Alert, USCIS states that it “may provide employment authorization to beneficiaries of approved employment-based immigrant visa petitions who face delays due to backlogs in immigrant visa availability. Beneficiaries who face adverse circumstances resulting from termination from employment and loss of nonimmigrant status, may qualify for an Employment Authorization Document (EAD) if they face compelling circumstances beyond the usual hardship associated with job loss.” According to the USCIS Policy Manual, principal applicants must demonstrate that they are the beneficiaries of an approved I-140 petition, in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period at the time Form I-765 is filed, have not filed a Form I-485 Application to Register Permanent Residence or Adjust Status, and that an immigrant visa is not available based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State (DOS)’s Visa Bulletin in effect at the time the applicant files Form I-765 in order to be eligible for an EAD based on compelling circumstances. USCIS does not provide an exhaustive list of the scenarios that could constitute compelling circumstances, but outlines several examples in the Policy Manual, which include “a serious illness or disability that substantially changes employment circumstances” or financial hardship “when coupled with circumstances beyond those typically associated with job loss”, such as when termination would cause an applicant with a serious medical problem to lose their health insurance. Applicants who can demonstrate that their inability to change or extend their status would result in a serious disruption to their employers, such as where “due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer”, may also be eligible for EADs based on compelling circumstances. The Policy Manual further states that “reaching the maximum statutory or regulatory period of allowed nonimmigrant status does not, without compounding factors, constitute compelling circumstances. An officer may consider this factor in determining whether the applicant merits a favorable exercise of discretion”. EADs based on compelling circumstances will be valid for up to one year, and spouses and children of a principal applicant who receives a compelling-circumstances EAD are also eligible. The EAD is renewable for an additional year based on 1) either a continuing showing of compelling circumstances or 2) if the difference between the applicant’s priority date and the Final Action Date for the applicant’s preference category and country of chargeability is 1 year or less according to the Visa Bulletin in effect on the date the applicant filed the renewal application.

While some nonimmigrant workers who have been laid off will no doubt be able to benefit from the broadened criteria to obtain EADs and remain in the U.S., the measure is still quite narrow in scope. The expanded criteria will apply primarily to nonimmigrant workers who have been laid off or terminated from their jobs, not those who remain employed, and applicants must still demonstrate compelling circumstances, such as being “forced to sell their home for a loss, pull the children out of school, and relocate to their home country” due to the job loss. Furthermore, an EAD based on compelling circumstances confers no nonimmigrant status, and is intended only as a stopgap measure to assist nonimmigrants whose lives who be severely upended if their were forced to return to their home countries on short notice. USCIS considers recipients of a compelling circumstances EAD to be in a period of “authorized stay”. Thus, recipients will not accrue unlawful presence or trigger the 3- or 10-year bars to reentry, but are not provided with any path to permanent residence. USCIS has not indicated that any automatic extension will apply to EADs based on compelling circumstances, so recipients who need to apply for a renewal may temporarily lose work authorization while the application is pending. Even the initial request for the EAD will take several months as the USICS has not indicated that applicants will be able to use premium processing and there is also a biometrics requirement that can further hobble the process. One of the conditions for eligibility is that the applicant and dependents have not been convicted of a felony or two or more misdemeanors.

Recipients of an EAD based on compelling circumstances will likely need to look for other solutions if they wish to remain and work in the U.S. on a long-term basis until they obtain permanent resident status. An individual who finds new employment under a compelling circumstances EAD would need to have their new employer file a new labor certification and I-140 petition on their behalf, which could recapture the old priority date from the previous I-140 petition under 8 CFR  § 204.5(e). The foreign worker and derivative family members such as the spouse and minor children could then go abroad for consular processing when the priority date becomes current under the Final Action Date. Due to lengthy backlogs for oversubscribed countries, there is a risk that older children may “age out”, or reach the age of 21, before the principal applicant’s priority date becomes current.

A new employer could also file a new H-1B visa petition for the foreign worker alongside the new labor certification and I-140 petition. Recipients of a compelling circumstances EAD will be in a period of authorized stay in the U.S. and will not be maintaining their nonimmigrant status. Thus, recipients cannot extend their H-1B status in the U.S. If the new employer files an H-1B petition for consular processing, however, this would allow the foreign worker and their family to return to the U.S. in H-1B/H-4 status after obtaining visa stamps at an overseas consulate and file for adjustment of status in the U.S. when the recaptured priority date becomes current.

In the end, the compelling circumstances EAD is just a band aid and not a solution. There is no need for decade long backlogs in the legal immigration system, and Congress must pass legislation to infuse more visas in each category as well as eliminate per country limits. While previously only India and to a lesser extent China were impacted by the backlogs, now all countries have been impacted,  and so everyone must unite to demand more visas to ensure that skilled workers with approved petitions be granted permanent residence within a reasonable period  of time.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.