Cyrus Mehta

Comment to Proposed H-1B Rule Expressing Concern Over New Definition of Specialty Occupation

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December 22, 2023

Submitted via www.regulations.gov

DHS Docket ID No. USCIS-2023-0005

Department of Homeland Security

U.S. Citizenship and Immigration Services

Office of Policy and Strategy

5900 Capital Gateway Dr.

Camp Springs, MD 20588-0009

 

Attn: Charles L. Nimick

Chief, Business and Foreign Workers Division

Re:      Regulatory Proposal for Modernizing H–1B Requirements, Providing Flexibility in the F–1 Program, and Program Improvements Affecting Other Nonimmigrant Workers – Comment on Proposed Changes to H-1B Registration Process at 8 CFR 214.2(h)(8)(iii)

Dear Mr. Nimick:

Cyrus D Mehta & Partners PLLC (“CDMP”) is a New York law firm that focuses its practice mainly in the area of US immigration law and represents many clients in H-1B visa matters. CDMP also advocates on behalf of its clients to achieve fairer and just immigration laws, and also posts articles on its widely read The Insightful Immigration Blog, https://blog.cyrusmehta.com, in furtherance of this objective.  CDMP is accessible at www.cyrusmehta.com.

CDMP limits its comments to the proposed new definition of “specialty occupation” and the proposal that the USCIS will look to the  end client’s requirements to determine whether the position qualifies as a specialty occupation.  These are the NPRM that are cause for  concern.

The NPRM’s New Definition of “Specialty Occupation” Contradicts the INA

We commend DHS for clarifying in the proposed regulation that in order for a particular bachelor’s degree to be normally considered the minimum requirement, “normally does not mean always” and that the agency will not differentiate “normally” from the equivalent terms such as “mostly” or “typically” used in the DOL’s Occupational Outlook Handbook (“OOH”) and other sources of information describing the preparatory requirements for occupations. This is consistent with Innova Sols., Inc v. Baran, 983 F.3d 428 (9th Cir. 2020) where the court held that “ … there is no daylight between typically needed, per OOH, and normally required, per regulatory criteria. ‘Typically’ and ‘normally’ are synonyms.”

However, we are deeply concerned that the provision in the NPRM that requires specialized studies to be “directly related” to the position impermissibly exceeds the statutory requirements of the Immigration and Nationality Act  (“INA”). The NPRM at 8 CFR 214.2(h)(4)(ii) states,

A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.

There is no requirement in the INA provision that the required specialized studies must be “directly related” to the position. Under § 214(i)(1) of the Immigration and Nationality Act (“INA”) a “specialty occupation” is  defined as an occupation that requires

  • Theoretical and practical application of a body of highly specialized knowledge, and
  • Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

Therefore, in contrast to the requirement in the NPRM that the degree must be “directly related” to the position, the statute at INA § 214(i)(1) clearly provides a substantially broader standard, stating that a requirement of a degree in the specialty or its equivalent can form the basis of a specialty occupation. A federal court explicitly stated that the statutory language defining a specialty occupation includes not only a required degree in the specialty but also other combinations of academic and experiential training that would qualify a beneficiary to perform the duties of the specialty occupation. In Tapis International v INS, the court held that a position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass … various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.

Tapis International v INS, 94 F. Supp. 2d 172 (D. Massachusetts 2000).  The holding of Tapis International therefore specifically precludes the impermissible limitations that the agency seeks to impose in the NPRM by limiting employers to require only degrees that are “directly related.” The language in INA § 214(i)(1) that defines a specialty occupation by the requirement of either a bachelor’s degree or higher in the specific specialty “or its equivalent” as a minimum for entry into the occupation is distinct from the statutory requirement of the qualifications that the H-1B beneficiary must possess to qualify for the specialty occupation. The statute sets forth distinct requirements at INA § 214(i)(2) for the beneficiary to establish his or her qualifications for the specialty occupation, such as completion of a bachelor’s degree or experience in the specialty through progressively responsible positions relating to the specialty.

Therefore, the phrase in the statutory definition of specialty occupation at INA § 214(i)(1), which includes both a bachelor’s degree or higher in the specific specialty and the alternative of “its equivalent” broadens the permissible requirement for a specialty occupation to “not only skill, knowledge, work experience, or training … but also various combinations of academic and experience based training.” See Tapis, supra. Thus, under the statutory language, a position can qualify as specialty occupation not only on the basis of a specialized degree requirement, but also where the occupation requires a non-specialized degree combined with specialized experience, training or coursework as the equivalent of a specialized degree to serve as the minimum requirement for entry into the occupation. The rigid standard in the NPRM that the agency seeks to impose with its requirement that every permissible degree must be “directly related” contradicts the clear language of the statute and is therefore ultra vires and impermissible.

Another area of significant concern to our organization is the agency’s misplaced and impermissible attempt to exclude positions requiring business degrees from the definition of specialty occupation. In its focus on excluding these positions from the definition of specialty occupation, USCIS appears to base its analysis on outdated notions that positions requiring a business degree are too generalized to qualify for H-1B classification. On the contrary, graduates of undergraduate and graduate business programs typically gain high-demand, sought-after skills in specialized STEM and business areas, including data analysis, technology management, accounting, financial forecasting and analysis, and many other disciplines. For many years the agency’s practice has been to provide employers with the opportunity to establish that a position’s requirements and the beneficiary’s qualifications were sufficient to qualify as a specialty occupation through either a business degree with a formal concentration or, alternatively, through a specific combination of coursework, or in some cases specialized professional experience. We urge the agency to recognize this important and long-established policy and practice and continue to allow employers to build a record to establish the specialized needs of sponsored positions to qualify as specialty occupations.

Similarly, we have significant concerns with the language in the preamble to the rule that would disqualify positions that require an engineering degree, without specialization, from qualifying as a specialty occupation. The NPRM states that “a petition with a requirement of any engineering degree in any field of engineering for a position of software developer would generally not satisfy the statutory requirement” as the petitioner may not be able to demonstrate that a range of fields of engineering would qualify the H-1B worker to perform the duties of a specialty occupation. This interpretation is impermissibly narrow and subverts the intent and the plain language of the statute. When a federal court recently overturned an agency denial of an H-1B petition based on the employer’s requirement for a non-specialized engineering degree, the court explained that the statute does not require specialty occupations to be subspecialties. In its analysis, the court stated:

 

Importantly, the INA defines professions — the basis of the H-1B Regulation’s specialty occupation requirement — at the categorical level (e.g., “lawyers” and “teachers,” 8 U.S.C. § 1101(a)(32), rather than “tax lawyer” or “college English professor,” see id.) and specifically includes “engineers,” id. In addition, the specialty occupation provision arose from a need “to meet labor shortages . . . in occupational fields, such as nursing, engineering, and computer science.” 1988 Proposal, 53 FR 43217-01, at 43218 (emphasis added). Put simply, in contrast to a liberal arts degree, which the Service deemed “an [in]appropriate degree in a profession” because of its “broad[ness],” 1990 Rule, 55 FR 2606-01, at 2609, an engineering degree requirement meets the specialty occupation degree requirement.

InspectionXpert Corp. v. Cuccinelli, 1:19cv65, 58 (M.D.N.C. Mar. 5, 2020).

The decision in InspectionXpert, in addition to explaining that the statute disallows the requirement of specialized engineering degrees, aligns with the reality of the workplace and the skills gained in engineering degree programs. While there are many types of engineering disciplines, engineering degree programs provide a common core of advanced quantitative and technological skills that prepare the worker to perform the technical duties of a range of positions in specialty occupations such as Operations Research Analyst, Software Developer or Computer Systems Analyst. Again, we urge USCIS to recognize the long-established practice of allowing employers to build a record to establish the specialized needs of their positions to qualify as specialty occupations, including those where the employer believes that the requirements of a particular position includes a number of engineering degrees or a non-specified engineering degree.

Moreover, the disfavoring of business management and engineering degrees in qualifying a position for H-1B classification flatly contradicts the Biden Administration’s National Security guidance and strategy on “attracting and retaining the world’s best talent” and the President’s October 30, 2023, Executive Order on the “Safe, Secure and Trustworthy Development and Use of Artificial Intelligence.” Executive Order (“EO”) 14110. In studying the AI workforce, experts have found that primary degrees required for core AI job duties are business administration, computer science, engineering, mathematics, and statistics.[i] Yet, USCIS has chosen to provide an example in the preamble explanation of the NPRM cautioning employers about requiring the type of quantitative and problem-solving skills developed in an engineering degree as unlikely to be “directly related” to a qualifying H-1B position, and has proposed codifying in regulation that positions requiring business administration studies should not qualify for H-1B status. This creates unnecessary hurdles for employers engaging in on-campus recruitment in the U.S. where international students account for more than 50% of graduate engineering degrees [ii] and are among those completing a Master of Business Administration or Bachelor of Business Administration,[iii] and deprives our economy of the precise types of AI, technology and national security talent that the Biden Administration is making significant effort to attract and retain.

In conclusion, the proposal to redefine “specialty occupation” will not only contravene the statutory provisions defining the H-1B criteria, but it will make it unnecessarily restrictive and run counter to the Administration efforts to boost our competitive advantage and our economy. See Stuart Anderson’s Biden Immigration Rule Copies Some Trump Plans to Restrict H-B Visas, Forbes (October 23, 2023), which provides examples of emerging occupations vital to U.S. economic growth and competitiveness that may not qualify under the proposed definition of specialty occupation. The views of the undersigned are also reflected in this article.

Therefore, CDMP proposes that USCIS delete the language in proposed 8 CFR § 214.2(h)(4)(ii) stating that “[t]he required specialized studies must be directly related to the position” and “A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, if sufficient to qualify for the position.”

We request that the regulatory language remains consistent with the definition of “specialty occupation” under  INA § 214(i)(1) that  requires “[a]ttainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” Also, the proposed regulation should allow for a specific body of knowledge required to perform the job duties of the position to properly interpret “or its equivalent” in INA § 214(i)(1). For instance, if the position of management analyst requires a bachelor’s degree and specialized experience or training, it ought to be considered a “specialty occupation” for H-1B classification if the beneficiary possesses a bachelor’s degree in a liberal arts field and also has experience or training in marketing. Similarly, the position ought to also qualify as a specialty occupation if the candidate possesses a bachelor’s degree in liberal arts but has significant course work in quantitative fields such as statistics and data analytics that would allow the beneficiary to perform the duties of the position of marketing analyst.

 

The End Client’s Requirements Should Not Determine the Degree Requirement

Under the NPRM, for a worker who will be “staffed” to a third-party client site, the client rather than the employer would need to establish that it would normally require a U.S. bachelor’s degree in a directly related specific specialty. We believe that this requirement is unduly burdensome in the normal course of business as it would be difficult for the sponsoring employer to obtain such documentation from a client.

The agency’s reliance in the NPRM on the 5th Circuit’s holding in Defensor v Meissner, 201 F. 3d 384 (5th Cir. 2000) is misplaced. In Defensor, the Court treated the client as a co-employer. In contrast, the H-1B regulations contemplate only the petitioner as the employer. The client does not supervise the H-1B worker or evaluate their job performance. The clients of the petitioner would certainly not want to be viewed as a co-employer and incur potential liability from a claim by the H-1B worker.

Under the NPRM, it is important to note that the educational requirements of the third party would only be taken into account and would only apply if the H-1B worker is contracted in a “staff augmentation” arrangement to the third party as opposed to providing services to the third party.  Defensor v. Meissner involved a staffing agency for nurses that filed the H-1B petitions and contracted the nurses to hospitals. There is a critical distinction between the nurse in Defensor v. Meissner and a software engineer who is providing services to the client rather than being staffed to the client. The absence of clear guidance on this key distinction is likely to result in a proliferation of RFEs resulting in burdens for the employer and inefficient use of government resources.

For these reasons, CDMP proposes that the phrase “or third party if the beneficiary will be staffed to that third party” in 8 CFR 214.2(h)(4)(iii) be deleted.

Sincerely,

 

Cyrus D. Mehta

Managing Partner

 

 

 

 

[i] Autumn Toney and Melissa Flagg, U.S. Demand for AI-Related Talent Part II: Degree Majors and Skill Assessment (September 2020), Center for Security and Emerging Technology, p. 3.

[ii] See e.g., National Science Foundation, Science & Engineering Indicators 2022, “International S&E Higher Education and Student Mobility,” which reported that students on temporary visas earned 50% of engineering Master’s degrees in the United States and over half of U.S. doctoral degrees in engineering (State of U.S. Science & Engineering 2022, National Science Board).

[iii] Higher-ed institutions commonly offer four different types of Business degrees: Bachelor of Arts or Bachelor of Science degrees in Business, which have different distribution requirements and different options for “specialization” as compared to a Bachelor in Business Administration and a Master in Business Administration. The proposed regulatory text would permit an adjudicator to start with a presumption that a Bachelors or Masters in Business Administration cannot be qualifying, based on the label of the degree, and by default ignore a completed minor or concentration, for example, as not being a “specialization,” without obligating the adjudicator in all cases to review and give weight to the transcript.

Cyrus Mehta

Scripps v. Jaddou Offers Nuanced Interpretation of “Final Merits Determination” in Reversal of  EB-1B Denial for Outstanding Researcher

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By Cyrus D. Mehta and Jessica Paszko*

Noncitizen professors or researchers can more easily seek to obtain permanent residence as “outstanding professors and researchers” in light of the District Court of Nebraska’s recent decision in Scripps v. Jaddou.

Pursuant to INA § 203(b)(1), noncitizens may be eligible for permanent residency under the employment-based first preference (EB-1B) category if:

  1. they are recognized internationally as outstanding in a specific academic area,
  2. they have at least 3 years of experience in teaching or research in the academic area, and
  3. they seek to enter the United States-
    1. for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
    2. for a comparable position with a university or institution of higher education to conduct research in the area, or
    3. for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

While the statute nor the regulations define what it means to be “recognized internationally as outstanding in a specific academic area,” the applicable regulation at 8 C.F.R. § 204.5(i)(3)(i)–(ii) states:

  1. Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
    1. Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
    2. Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
    3. Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
    4. Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
    5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
    6. Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
  2. If the standards in paragraph (i)(3)(i) of this section do not readily apply, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

However, the petitioner will not be victorious just by way of establishing that the prospective beneficiary satisfies at least two of the above regulatory criteria by a preponderance of the evidence. Once United States Citizenship and Immigration Services (USCIS) determines that two regulatory criteria have been met, it conducts a second layer of review – the “final merits determination” pursuant to Kazarian v. USCIS (see our blog) – to determine whether the beneficiary may be classified as an outstanding professor or researcher.

On December 12, 2023, the District Court of Nebraska rendered its decision in the case of Scripps v. Jaddou. At issue was whether the USCIS properly denied the Scripps’ petition by finding the prospective beneficiary, Julia Lum, did not qualify for an EB-1B visa even though she satisfied the regulatory criteria. Scripps College challenged the USCIS’s denial under the Administrative Procedure Act (APA) in the District Court of Nebraska. A decision by the USCIS will be upheld if challenged in federal district court under the APA unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” (5 U.S.C. § 706(2)(A)). An agency decision is arbitrary and capricious if, for instance, “the agency acted outside the bounds of reasoned decision making” or provided an explanation “that runs counter to the evidence.”

The USCIS found that Dr. Lum satisfied three of the regulatory criteria, namely (1) she participated as the judge of the work of others in the same or allied academic field of art history; (2) she made original contributions or scholarly research contributions to art history; and (3) she authored scholarly books or articles in scholarly journals with international circulation in art history. However, it denied EB-1B classification because the evidence under the “final merits determination” did not show that her work impacted the field of art history to an extent which shows “that she is internationally recognized as an outstanding researcher.” According to the USCIS, the record showed that Dr. Lum met the plain language of three regulatory criteria, but it did not show that “she is strong in any of them.” The Court pointed out that throughout the final merits analysis, “USCIS repeatedly stated that the evidence presented by Scripps was insufficient to establish Dr. Lum is recognized internationally as outstanding; however, it never stated what was required to establish international recognition as an outstanding professor or researcher.” For instance, in its final merits determination analysis, the USCIS focused on the number of times Dr. Lum’s work had been cited and found that the evidence failed to demonstrate that scholars referenced Dr. Lum’s work ‘to an extent that would establish international recognition as outstanding in the field.’

Perhaps, the USCIS did not find compelling the six citations that Dr. Lum’s publication had garnered. However, the expert letters submitted by Scripps demonstrated that Dr. Lum’s work was published in prestigious journals in art history and that six citations in a ‘low citation field’ was a high number of citations in the field. This evidence clearly contradicts the USCIS Policy Manual’s own example of a situation where such evidence should sway the adjudicating officer’s totality analysis as “evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field . . . may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary enjoys international recognition as outstanding.” This excerpt from the Policy Manual was cited by the Court at the outset of its decision in Scripps.

Ultimately, the Court found that the “unexplained internal inconsistencies” reflect that the USCIS failed to ‘articulate a satisfactory explanation for its action including a rational connection between the facts and the choice made.’ In addition to the internal inconsistent findings, the Court concluded, as did the Kazarian court, that USCIS imposed “novel evidentiary requirements.” The USCIS imposed such novel evidentiary requirements when it found that Scripps failed to show that Dr. Lum’s ‘work is being taught at more institutions than any other scholar’s works’ and on that basis concluded that this did not demonstrate Dr. Lum’s ‘impact on the academic field exceeds that of any other researcher.’ The USCIS further imposed novel evidentiary requirements when it acknowledged that Dr. Lum received funding in support of her research but found that the record did not support that Dr. Lum received funding in excess of other researchers or that she received her funding in recognition of her outstanding achievements. The Court determined that these findings were not supported by the record, and that the regulations and USCIS policy manual do not require the petitioner to show the beneficiary’s contributions must exceed that of other researchers or professors in the field. The imposition of such novel evidentiary requirements rendered the USCIS’s denial of Scripp’s petition arbitrary and capricious.

Upon applying the evidence in the record to the regulatory criteria and the guidelines in the policy manual, the Court concluded that Scripps established by a preponderance of the evidence that Dr. Lum qualified for international recognition as an outstanding professor or researcher in the field of art history, and reversed the USCIS’s denial. The Court was compelled by the nine letters that were submitted from prominent experts in the field of art history, who spanned three continents, and uniformly agreed that Dr. Lum is internationally recognized as an outstanding researcher in her field. The experts provided evidence of Dr. Lum’s original contributions, citations relative to the field of art history, high level of grant funds relative to others in the field, the importance of Dr. Lum’s original contributions and publications in prestigious journals, invitations (solicited and unsolicited) to present and attend conferences, and reliance on Dr. Lum’s work to teach students at the world’s highest ranked institutions.

This decision teaches how we should attack the final merits determination by demonstrating that the USCIS’s finding under the second step is inconsistent with its finding under the first step, and that the USCIS cannot impose novel evidentiary requirements under the second step. However, if cases like this are litigated in the 9th Circuit or the 5th Circuit, the district court will be bound by the second step analysis under Kazarian v. USCIS and Amin v. Mayorkas (see our blog), respectively. As mentioned above, Kazarian which was decided in the 9th Circuit, has been interpreted to require a second step analysis in EB-1 petitions. The 5th Circuit grounded the final merits determination even deeper into the EB-1 framework in Amin. While the USCIS Policy Manual has adopted Kazarian’s final merits determination and requires officers adjudicating EB-1 petitions to conduct this second step analysis, district courts outside the jurisdiction of the 9th or 5th Circuits that review USCIS decisions are not bound by Kazarian or Amin or the USCIS Policy Manual. Such courts are only bound by precedent issued in its jurisdiction, statutes, or regulations, and therefore, need only consider the governing statutes, which in case of EB-1As (8 C.F.R. §204.5(h)) and EB-1Bs (8 C.F.R. §204.5(i)) are silent as to a second-step, final merits determination. Of course, a district court can conduct its review through the lens of the USCIS Policy Manual if it is persuaded by it, as was the case in Amin. A court can also be swayed by the second step analysis if it was persuaded by the holding in Kazarian as was the case in Rijal v. USCIS, Noroozi and Assadi v. Napolitano, Eguchi v. Kelly, Visinscaia v. Beers, and a number of other unpublished decisions which we discussed here. As was evidenced in all of these decisions, federal courts seem to be following the second step analysis even outside the 5th and 9th Circuits.

Most recently, in Amin,  the self-petitioner challenged the Policy Manual on the ground that it was not in accordance with the law because it conflicts with the regulation. Amin argued that once an EB-1A “applicant meets three of the ten regulatory criteria, the regulation shifts the burden to the government to explain why the applicant has not demonstrated extraordinary ability.” Indeed, this burden shifting approach was the standard pre-Kazarian pursuant to Buletini v. INS. The 5th Circuit disagreed with Amin and found that the USCIS’s application of the second step was consistent with the statute and regulation, clinging onto the regulation’s label “Initial evidence”, and the regulation’s requirement that applicants must submit evidence of “at least three criteria”, to conclude that this “word choice contemplates another step beyond submitting the enumerated evidence: if satisfying three criteria were enough, why would the agency invite proof of more?”

In comparison, it does not seem that the petitioner in Scripps challenged the USICS Policy Manual like Amin had, and thus, the Court did not have to render a decision as to the second step’s consistency with the statute and regulation. Still, the Court noted at the outset, by citing to Kazarian, that a “two-step review of the evidence submitted with an I-140 petition is required in determining whether a foreign national may be classified as an outstanding professor or researcher.” The Court also provided examples from the Policy Manual with respect to what officers may consider in the final merits determination. Indeed, the examples that it chose to extract from the Policy Manual were directly applicable to the evidence that was provided by Scripps, and it appears that these excerpts from the Policy Manual convinced the Court that the USCIS made internally inconsistent findings because the kind of evidence that these excerpted examples contemplated had been provided by Scripps. We noted one such inconsistency, with respect to the low number of citations, above.

The Scripps Court’s close adherence to the USCIS Policy Manual also contributed to its rejection of the inherent subjectivity of the final merits determination. One such example of the second step’s vicious subjectivity was evident in Noroozi and Assadi v. Napolitano where the self-petitioner did not meet at least three regulatory criteria, which could have ended the analysis, but the Southern District of New York also discussed how the self-petitioner would not have merited a favorable judgment under the second step because he ranked 248th in the world in table tennis and finished in 65th place in table tennis in the 2008 Olympics. According to the Southern District, these rankings would have obliged the USCIS to hypothetically grant EB-1 visas to the 283 higher ranked table tennis players and to the 283 higher ranked players in other sports, assuming they were noncitizens, as well as to the 64 table tennis players who outperformed the self-petitioner in the 2008 Olympics. The Southern District’s findings clearly invoked subjectivity as the EB-1 was never intended only for the number one player in a sporting field. This decision was issued prior to the publication of the USCIS Policy Manual.  At the time Noroozi and Assadi v. Napolitano was decided in 2012, a USCIS Policy Memo titled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22, AFM Update AD11-14” was in effect as of December 22, 2010 and stated:

If the USCIS officer determines that the petitioner has failed to demonstrate these requirements, the USCIS officer should not merely make general assertions regarding this failure.  Rather, the USCIS officer must articulate the specific reasons as to why the USCIS officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the alien is an alien of extraordinary ability under section 203(b)(1)(A) of the INA.

The current USCIS Policy Manual  similarly attempts to restrain the second step’s subjectivity by stating:

When requesting additional evidence or denying a petition, if the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary is an outstanding professor or researcher.

This excerpt was also cited by the Scripps Court at the outset of its decision. Later, in its discussion of the USCIS’s final merits analysis with respect to the evidence Scripps had submitted, the Court highlighted that “[t]hroughout the final merits analysis, the USCIS repeatedly stated the evidence presented by Scripps was insufficient to establish Dr. Lum is recognized internationally as outstanding, however, it never stated what was required to establish international recognition as an outstanding professor or researcher.” It is clear to us that in doing so, the USCIS clearly failed to “articulate specific reasons” as instructed by the Policy Manual and instead made “general assertions” which the Policy Manual admonished. Despite the similarities in the December 22, 2010 USCIS Policy Memo and the USCIS Policy Manual, the Scripps Court still rejected the second step’s subjectivity, unlike the Noroozi and Assadi court. The discrepancy can perhaps be explained by the Scripps Court’s close reading of the USCIS Policy Manual which ultimately contributed  to its rejection of the imposition of evidentiary requirements that were outside the parameters of the Policy Manual. Neither the USCIS Policy Manual nor the 2010 USCIS Policy Memo state that one has to be an individual of certain standing in order to qualify for the EB-1. For the Noroozi and Assadi court to rule against the self-petitioner in a hypothetical final merits determination because he was not a top player, despite making it to the Olympics, was clearly a result of the court’s unbridled subjectivity. The Noroozi and Assadi court likely also would have agreed with the USCIS’s denial of Dr. Lum’s EB-1B classification because Scripps failed to show that her work was ‘being taught at more institutions than any other scholar’s works’ or that she did not receive funding in excess of other researchers. However, as the Scripps court made clear, the regulations and USCIS Policy Manual do not require the petitioner to show that the beneficiary’s contributions must exceed that of other researchers or professors in the field, and by doing so, curtailed the rampant subjectivity that has plagued EB-1 cases post-Kazarian.

Scripps v. Jaddou adds a positive rung to the growing ladder of final-merits-EB-1-cases which currently stands in opposition to prospective beneficiaries who, despite satisfying the regulatory criteria, end up falling short of their desired classification due to the curse of Kazarian. Although Scripps did not eviscerate the final merits determination analysis, it still paves the way for petitioners to argue that USCIS cannot and should not, under the cover of the second step final merits determination, be allowed to introduce new requirements outside the parameters of the regulatory criteria or reverse its prior acceptance of evidence under the regulatory criteria.

 

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Personal Conflicts of Interest Arising Out of the Israel-Hamas War

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By Cyrus D. Mehta and Kaitlyn Box*

The escalating war between Israel and Hamas  presents unique  challenges for immigration lawyers who represent noncitizens from impacted areas.

One such ethical conundrum arises when a lawyer comes to know that a current or prospective client holds views about the conflict that the lawyer strongly disagrees with or even finds repugnant. A lawyer whose family member was killed in the October 7th attack might not wish to represent a client who expresses support for Hamas, while a lawyer whose relative was killed or injured in the recent Israeli Defense Force (IDF) airstrikes in Gaza may not feel comfortable representing a former IDF soldier who expresses a lack of regret at the loss of lives of children and wants to apply for adjustment of status. Under some circumstances, a lawyer will have a personal conflict of interest if there is a significant risk that the lawyer’s professional judgment on behalf of the client will be adversely affected because of the opposing views between the lawyer and the client.

Because immigration lawyers are responsible for bringing in a client into the US or allowing the client to remain in the US, the personal conflict becomes more enhanced if they find the client’s views or conduct objectionable.

Pursuant to Model Rule 1.7(a)(2) of the American Bar Association (ABA), a lawyer shall not represent a client if a concurrent conflict of interest exists because “there is a significant risk that the representation of one or more clients will be materially limited by…a personal interest of the lawyer”. While the ABA provides model rules of professional responsibility, lawyers should refer to the analog of these rules in their own state bars that are binding on them.   Thus, a lawyer who feels uncomfortable representing a client due to the client’s views on the conflict need not do so, and can decline the representation. On the other hand, a lawyer need not shy away from representing a client, however objectionable the conduct may be, so long as there is a legal basis to represent the person.

If a lawyer realizes that a personal conflict of interest of this type exists with a current client, the lawyer can still withdraw from the representation of a client whose views or activities she finds reprehensible under ABA Model Rule 1.16(b)(4), which permits withdrawal if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”. Alternatively, a lawyer may withdraw from representation under ABA Model Rule 1.16(b)(7) if “other good cause for withdrawal exists”, which could include a fundamental disagreement with a client’s stance on, or activities related to, the conflict.

In other circumstances, though a lawyer may wish to represent, or continue representing a client, even though a personal conflict exists. A lawyer who finds herself in this situation may seek a waiver of the conflict under ABA Model Rule 1.7(b), provided that “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law….”, and the client provides consent. For example, a lawyer who finds protests opposing Israel objectionable may be representing a foreign student in F-1 status who has vehemently protested against the Israeli invasion of Gaza without expressing any sympathy for the victims of the Hamas attack on October 7, 2023. If the student client was involved in a protest that resulted in a physical altercation with an opposing group of protestors, he could be charged with assault, potentially a removable offense under INA § 237(a)(2)(A)(i). The lawyer can inform the student that she finds the student’s conduct repugnant but may still be able to competently and diligently represent the student by advising his criminal defense lawyer to negotiate the assault charge to a disorderly conduct offense, which will likely not have deportation consequences. On the other hand, the lawyer can inform the client that she will not be able to justify the student’s conduct in a press briefing or interview on behalf of the client because she disagrees with his conduct and finds it repugnant. If the client agrees to this sort of limited representation, the lawyer can represent the client competently and diligently notwithstanding this limitation. However, if it is important for the lawyer to be available to defend the student’s actions in the media as that might get the client a better deal with the prosecutors, and the lawyer is unable to handle media interviews on behalf of the client, then this potentially creates a non-waivable conflict and the lawyer must withdraw.

Immigration lawyers may also find themselves representing noncitizen students in F-1 visa status who are facing other immigration-related consequences as a result being involved in protests or making statements about the conflict. University of Pennsylvania President Liz Magill recently resigned after appearing to evade a question asking whether students who called for a “genocide of Jews” should be punished. This episode demonstrates terminology can be misunderstood, and how easily it could potentially ensnare a foreign student in F-1 status. While the term ‘intifada’ could mean an ‘uprising’ or ‘shaking off’ (see here and here), it could also be understood as violent resistance tantamount to  “genocide”, as illustrated by the Congressional hearing before Congresswoman Stefanik during which Magill and other university presidents testified. As we explained in our prior blog, there is a potential for troubling consequences for a noncitizen leader of a student organization who speaks out about the conflict in a way that seems to endorse terrorist activity.  A student who is on an F-1 visa could be found inadmissible under INA § 212(a)(3)(B)(i)(IV)(bb) as a representatives of “a political, social, or other group that endorses or espouses terrorist activity”. INA 212(a)(3)(B)(v) defines “representative” as “an officer, official, or spokesman of an organization, and any person who directs, counsels, or induces an organization or its members to engage in terrorist activity”. INA 237(a)(4)(B) also renders a noncitizen who is described in INA §212(a)(3)(B) and INA § 212(a)(3)(D) removable. Similarly, INA § 212(a)(3)(B)(i)(I) renders inadmissible noncitizens who “have engaged in terrorist activity”, which can include commission of “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” to a terrorist organization. If a student who has been ensnared under these provisions seeks the assistance of an immigration lawyer, the lawyer must first examine whether they would be able to objectively represent this individual. An attorney who has relatives still being held hostage by Hamas, must evaluate whether his objectivity in representing the client would be compromised under ABA Model Rule 1.7(a)(2).

Immigration lawyers should also be aware that not all personal conflicts can be waived. If the representation will result in a clear violation of the rules of professional conduct or other law, ABA Model Rule 1.16(a)(1) obliges the lawyer to withdraw. Regardless of whether a lawyer wishes to withdraw from representation under ABA Model Rule 1.16, or is required to do so, the lawyer must seek the permission of the tribunal to withdraw when the matter is before the tribunal. Moreover,  upon termination of representation the lawyer must take all reasonable steps to protect the client’s interest including giving reasonable notice, allowing time for the client to retain another counsel, surrendering papers and property to which the client is entitled to and refunding any unearned fees.

In screening for potential personal conflicts, immigration lawyers should be mindful of ABA Model Rule 8.4(g), which sanctions conduct that constitutes harassment or discrimination based on certain protected grounds related to the practice of law including race, sex, religion, national origin, ethnicity, disability. Age, sexual orientation, gender identity, marital status or socioeconomic status.

A lawyer who broadly declines to represent clients of a particular nationality or ethnicity, or applies additional screening procedures to only these clients, faces the risk of being sanctioned under Rule 8.4(g). Lawyers who engage in discriminatory conduct can also be sanctioned under the state analogs to Rule 8.4(g). Rule 8.4(h) of New York’s Rules of Professional Conduct, for example, broadly allows for the discipline of a lawyer who “engage[s] in any other conduct that adversely reflects on the lawyer’s fitness as a lawyer”. A New York lawyer who threatened to report restaurant employees who were speaking Spanish to ICE in 2018 was censured under NY Rule 8.4(h).

 

 

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

 

Cyrus Mehta

How Prosecutorial Discretion Saved Our Client

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By Cyrus Mehta and Jessica Paszko*

This is the story of our client Nadia Habib who was in immigration proceedings from 18 months till 31 years until an Immigration Judge granted her adjustment of status on November 21, 2023!

Nadia Habib came to the US in 1993 from Bangladesh when she was less than 2 years old with her mother Nazmin Habib. They were paroled into the US at JFK airport.  Some years later in June 1997 they were placed in removal proceedings in New York, and ordered deported in absentia on April 26, 2000 by an Immigration Judge. They did not show up in court on the day of their hearing due to an unfortunate misunderstanding as a result of Nazmin being seriously ill the day before.  Several efforts were made to reopen the in absenstia deportation order but to no avail. However, they continued to live their lives normally as a tightly knit family. Nazmin and her husband Jawad, who had a green card, had three more children in the US who were automatically citizens. Jawad supported the entire family as a yellow taxi driver in New York. Nadia continued to be vulnerable to deportation unlike her citizen siblings, although she showed great promise by doing well in school and getting admitted into the elite Bronx High School of Science in New York.

On September 10, 2011, Nazmin and Nadia, then 19 years old, received a bag and baggage letter from Immigration and Customs Enforcement (ICE) ordering that they surrender for deportation on September 29, 2011. This letter brought their lives and the lives of their family and loved ones to a shocking halt. Nadia’s friends and other immigrant students quickly sprung to action, launching campaigns on Facebook and Twitter, in the hope that Nadia and her mother would be allowed to remain in the US with her father and her three US citizen siblings. On the fateful day she had to appear for deportation on September 29, members of the Youth Leadership Council gathered thousands of petition signatures and turned out over 100 people to rally in support of Nadia and Nazmin and to try to halt the deportation scheduled for that day at 11 am.  The community’s fervent efforts to keep Nadia and Nazmin from returning to Bangladesh that was entirely foreign to Nadia paid off. ICE halted the deportation order and decided to review their case. Though September 29, 2011 was marked with victory for Nadia and her mom, their immigration woes were far from over.

At that time when Nadia was about to get deported, President Obama began to be known as the Deporter-in-Chief. Although Obama was sympathetic towards immigrants, he wanted to also show that he was strict on enforcing the law as a way to get his Republican opponents in Congress to pass a comprehensive immigration reform bill.  As the deportations under Obama spiked in 2011 and 2012, until they reached a record high by 2013, the then ICE Director John Morton issued a landmark memo in 2011 providing detailed guidelines on how ICE officers should exercise prosecutorial discretion.

On September 30, 2011, which also happened to be Nadia’s 20th birthday, ICE issued a Stay of Removal Order for Nadia and Nazmin. This was the first exercise of prosecutorial discretion that would benefit Nadia and Nazmin and a birthday present that Nadia would never forget. Nadia and Nazmin approached our firm to seek representation. The case was so sympathetic and meritorious that we decided to take on the case pro bono. The goal was to find a pathway for Nazmin and Nadia to reopen their deportation orders and adjust status while keeping them in the US in the interim in an authorized capacity as long as possible.

On February 23, 2012, ICE also issued an order of supervision to both Nadia and Nazmin which required them to report in person to ICE on specified dates, usually once or twice a year. On June 15, 2012, the Secretary of Department of Homeland Security (DHS) Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”, officially establishing what would later be known as the Deferred Action for Childhood Arrivals (DACA) program. DACA came to be the second form of prosecutorial discretion that benefitted Nadia who clearly qualified as she came to the US well before the age of 16. After graduating from the Bronx High School of Science, Nadia pursued undergraduate studies at Stony Brook University and later obtained her master’s degree in architecture from The City College of New York. On the basis of DACA, Nadia was able to apply for an Employment Authorization Document (EAD) in September 2012. Since then, our firm helped Nazmin and Nadia comply with their annual appointments with ICE and apply for DACA extensions along with the EAD. Nadia had to report each year for her appointment with ICE even though she was authorized to remain in the US under DACA. Every time Nadia wanted to travel outside New York for a trip to another state, even over a long weekend, she had to ask for and receive permission from ICE.

In the meantime, Nadia’s US citizen brother filed Form I-130 on behalf of his mother Nazmin which was approved in early 2016. Jawad had not yet naturalized as his application had been erroneously denied and our appeal challenging the denial was pending. This I-130 served as the basis of our request to DHS to join our motion to reopen Nazmin’s removal so that Nazmin could apply for adjustment of status based on the approved I-130 petition filed by her US citizen child. A removal order can be reopened at any time if the government joins in a motion to reopen even though prior efforts to reopen the removal were unsuccessful. The ability of the government joining in a motion to reopen depends on the policies of the administration at any given time. We requested the government to join in the motion in September 2016, during the final year of the Obama administration based on Morton’s prosecutorial discretion policy. Donald Trump became president in 2017 and our request was pending, but the ICE attorney who got our request to join in the motion fortunately agreed to join in the motion to reopen Nazmin’s removal proceedings to the Board of Immigration Appeals (BIA) even though by then prosecutorial discretion became non-existent under Trump’s new enforcement oriented immigration focus. In July 2017, the BIA granted our motion based on the government’s consent and remanded for further proceedings. After a nearly five year wait (since the I-485 application could not be tracked in the USICS bureaucracy until there was Congressional intervention), Nazmin was scheduled for an adjustment interview in March 2022 at a USCIS field office in Long Island where her adjustment of status application was finally granted.

Nadia was still not eligible to adjust status, so we could not request the government to join in the motion to reopen. Although Nadia’s father eventually naturalized, she was unable to adjust status through him as she was over 21 years old. Despite this, Nadia continued to be able to remain in the US thanks to DACA. When Nadia married her US citizen husband in 2020, he filed Form
I-130 on her behalf which was approved the following year. Following a similar path as her mother case, in January 2022, our firm submitted a request to DHS to join our motion to reopen Nadia’s removal order so that Nadia could apply for adjustment of status based on the approved I-130 petition filed by her husband. By then Joe Biden was President and he once again instructed ICE to exercise prosecutorial discretion. In November 2022, DHS consented to joining in the motion to reopen for the sole purpose of dismissal of removal proceedings. The following month, in December 2022, we submitted our joint motion to reopen Nadia’s removal proceedings to the BIA. In February 2023, the BIA granted our motion and reopened and remanded to the Immigration Court for further proceedings. In September 2023, we learned that Nadia had been scheduled for a merits hearing on November 1, 2023 by happenstance as neither Nadia nor our firm received the notice – imagine if the Immigration Judge would have again deported Nadia in absentia at the hearing. Our request to adjust Nadia’s status on the basis of her I-130 was unopposed by DHS, though the Immigration Judge could not grant the adjustment as the sealed medical report that we had delivered to the Immigration Court in advance of the November 1st hearing had not made its way to him. The Immigration Judge continued the hearing to November 17, 2023 where finally, after many trials and tribulations, Nadia was adjusted to lawful permanent resident status. Nadia’s order of supervision dissolved on that day too relieving her from reporting to ICE each year.

Nadia was 32 years old on the day she was granted adjustment of status, and before then she had been in some form of immigration proceeding since she was 17 months old. Today Nadia is a successful architect and her siblings are also equally successful. Through this period, Nadia benefited from prosecutorial discretion, but the path was never smooth. DACA was declared unlawful by a federal judge and its fate hangs in the balance till this day. Even after Biden became president, courts enjoined his prosecutorial discretion policies that were set forth in the memo of DHS Secretary Mayorkas, but we advocated, when requesting the government to join in the motion to reopen, that the government could still exercise discretion outside the priorities set forth in the Mayorkas memo. Despite the court block of the Mayorkas memo, the DHS retained the ability to exercise discretion and join in a motion to reopen. Imagine if Nadia did not receive the stay of removal in 2011 and was deported to Bangladesh after she had spent her whole life in the US. But for the prosecutorial discretion policies in place, Nadia would have been deported because of an in absentia deportation order that she received, over which she had no control and for no fault of her own. Nadia and Nazmin were also fortunate that ICE attorneys agreed to join in the motions to reopen despite the zigzagging prosecutorial discretion policies over three presidential administrations.

We are proud to have represented Nadia and Nazmin tenaciously and doggedly for well over 10 years in a pro bono capacity!

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Space X’s Constitutional Challenge May Nix DOJ’s Ability to Bring Discrimination Claims Against Employers Under Section 274B of the Immigration and Nationality Act, Including in the Labor Certification Context

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By Cyrus D. Mehta and Kaitlyn Box*

On November 9, 2023, the Department of Justice (DOJ) settled a dispute with Apple concerning allegations that Apple’s recruitment practices under the Department of Labor’s (DOL) foreign labor certification program –  known as  Program Electronic Review Management (PERM) – had discriminated against certain U.S. workers. Specifically, the DOJ alleged that Apple did not advertise PERM jobs on its own website, although it did this as a standard practice for other job openings. Additionally, Apple required applications for PERM job openings to send in paper applications by postal mail, despite permitting online applications for other open positions. Finally, the investigation found that “Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically, as opposed to paper applications submitted through the mail”. The DOJ asserted that these practices cumulatively resulted in Apple receiving few or no applications from U.S. workers for PERM positions. Apple agreed to a settlement that requires it to “pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible discrimination victims”. Moreover, the settlement agreement specifies that the company must ensure that its PERM recruitment practices more closely match its standard recruitment practices in future.

In 2021, the DOJ and DOL reached similar settlement agreements with Facebook over issues with its own PERM recruitment practices. The agencies allegedly discovered through audit of Facebook’s pending PERM applications that the company “routinely reserved jobs for temporary visa holders through the PERM process” through practices designed to deter potentially qualified U.S. workers from applying in violation of INA § 274B(a)(1)(A). Specifically, Facebook allegedly required “applications to be submitted by mail only; refused to consider U.S. workers who applied to the positions; and hired only temporary visa holders”. Pursuant to its settlement agreement with the DOJ, Facebook was required to “pay a civil penalty of $4.75 million to the United States, pay up to $9.5 million to eligible victims of Facebook’s alleged discrimination, and train its employees on the anti-discrimination requirements of the INA”, as well as “conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply, and take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices”. Facebook’s settlement agreement with the DOL will require it to conduct additional notice and recruitment for U.S. workers, and consent to ongoing audits of its PERM applications. We discussed the Facebook settlement in detail in a previous blog.

In our previous blog, we noted that the Facebook settlement seemingly imposed a requirement that employees go above and beyond the PERM regulations when conducting recruitment to ensure that its PERM recruitment practices mirror the way it advertises regular job openings. Because DOL regulations require employers to carry out highly specific recruitment practices, some of which may be quite outdated, such as placing print advertisements in two Sunday newspapers, it may be difficult for employers to both mirror their normal recruitment practices and adhere to the regulatory requirements when conducting PERM recruitment. We noted that these conflicting requirements could prompt some employers to stop sponsoring foreign national workers for permanent residence altogether. Although the penalties paid by Apple and Facebook may be small change to such large companies, similar fines could ruin smaller employers, potentially deterring them from attempting to file PERM applications at all.

Because Apple and Facebook both chose to settle, it is unclear what the outcome of these cases might have been if the companies had chosen to challenge the agencies’ allegations. Both Apple and Facebook complied with the DOL regulations regarding recruitment for US workers under the PERM program. They may have been able to win if they did not cop for settlements. Despite the settlement, Apple did not agree with DOJ’s allegations in its lawsuit. “Apple contests the accusation, according to the agreement, and says that it believes it was following the appropriate Department of Labor regulations,” reported CNBC. “Apple also contests that any failures were the result of inadvertent errors and not discrimination, according to the agreement.”

In September 2023, the DOJ sued SpaceX for discriminating against refugees and asylees in its hiring and recruitment practices. As stated in a DOJ press release, the agency alleged that “[i]n job postings and public statements over several years, SpaceX wrongly claimed that under federal regulations known as ‘export control laws,’ SpaceX could hire only U.S. citizens and lawful permanent residents, sometimes referred to as ‘green card holders’”. Specifically, the company allegedly “…discouraged asylees and refugees from applying for open positions, through public announcements, job applications and other online recruiting communications that excluded asylees and refugees, …failed to fairly consider applications submitted by asylees and refugees, …refused to hire qualified asylee and refugee applicants and repeatedly rejected asylee and refugee applicants because of their citizenship status, and …hired only U.S. citizens and lawful permanent residents, from September 2018 to September 2020”. The suit alleged that SpaceX disregarded the fact that refugees and asylees are treated the same as U.S. citizens and lawful permanent residents for export control purposes, and are similarly permitted to access export-controlled technology after they are hired. SpaceX filed a complaint arguing that the DOJ’s complaint is unconstitutional because the Attorney General, despite appointing Office of the Chief Administrative Hearing Officer (OCAHO) Administrative Law Judges (ALJs), does not review their decisions. This constitutes a violation of the Appointments Clause, which requires a department head like the Attorney General to “direct and supervise” the “inferior officers” he appoints. Judge Rolando Olvera of the U.S. District Court for the Southern District of Texas agreed with SpaceX’s contention and granted a preliminary injunction in the case. See SpaceX v. Carol Bell, Civil Action No. 1:23-cv-00137 (Nov. 8, 2023).   According to Judge Olvera’s order, IER will not be able to cure this defect as “[b]ased on § 1324b’s [INA § 274B] plain language, broader context and legislative history, it is clear the decisions of OCAHO ALJ’s are not subject to the Attorney’s General review.” INA § 274B(g)(1) requires an ALJ to issue “an order, which shall be final unless appealed as provided under subsection (i).” INA § 274B(i) provides that the avenue for an aggrieved party to “seek review of such order” lies exclusively “in the United States court of appeals” 60 days after the entry of such an order.” According to Judge Olvera, “[i]t does not affirmatively provide for the Attorney General to review OCAHO ALJ decisions.”

SpaceX’s countersuit may provide a pathway for other employers whose hiring and recruitment practices under the foreign labor certification program are called into questions by the DOJ,, and wish to assert a constitutional challenge if they are investigated for unlawful discriminatory practices during the labor certification process. Indeed, based on SpaceX v. Bell,  employers may be able to pose an Appointments-Clause challenge to any IER lawsuit or investigation under INA § 274B sealing IER’s ability to bring any discrimination claim.  As stated by Cyrus Mehta in a recent Forbes article, the best practice for employers in light of these cases is to “hew as closely as possible to their non-PERM recruitment practices”, while also ensuring compliance with the DOL’s PERM regulations. Thus, an employer who normally advertises for open positions that are submitted by email should not require applicants for PERM positions to send their applications only by postal mail. When an employer normally advertises open positions on its website, it may be prudent for the employer to do the same for PERM positions, rather than advertising only in print newspapers. At the same time, employers must comply with the DOL regulations’ dictate of advertising in two Sunday print newspapers, even though they do not normally advertise other open positions in newspapers.

Under the foreign labor certification program, it is impossible for employers to completely mirror the recruitment with their real-world recruitment. Employers are also required to only test the labor market before filing the PERM. If there is a qualified US worker, the employer is not required to hire them and is only precluded from filing the labor certification application. The DOL invented the recruitment procedures out of whole cloth in its regulations at 69 FR 77325-77421 (Dec. 27, 2004).  INA § 212(a)(5), from which labor certification springs, only requires the DOL to determine the unavailability of qualified workers for the position and did not impose such an artificial labor market test.   On the other hand, the IER under INA § 274B has a different mandate and can potentially charge employers who conduct recruitment under the foreign labor certification program for discriminatory practices even if they follow the PERM regulations. The Appointments-Clause challenge by Space X if not overturned by the Fifth Circuit or Supreme Court could provide a pathway for other employers to fend off investigations and lawsuits by the IER when they conduct recruitment under the foreign labor certification program.

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

 

Cyrus Mehta

Will the Immigration Provisions in the AI Executive Order Bring Meaningful Change Or Be Mere Window Dressing?

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By Cyrus D. Mehta and Kaitlyn Box*

On October 30, 2023, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI). The stated purpose of the order is to ensure that the “development and use of AI” is governed “safely and responsibly”. The executive order further lays out eight “guiding principles and priorities” for the development and use of AI: “a.) Artificial Intelligence must be safe and secure, b.) Promoting responsible innovation, competition, and collaboration will allow the United States to lead in AI and unlock the technology’s potential to solve some of society’s most difficult challenges, c.) The responsible development and use of AI require a commitment to supporting American workers, d.) Artificial Intelligence policies must be consistent with [the] Administration’s dedication to advancing equity and civil rights, e.) The interests of Americans who increasingly use, interact with, or purchase AI and AI-enabled products in their daily lives must be protected, f.) Americans’ privacy and civil liberties must be protected as AI continues advancing, g.) It is important to manage the risks from the Federal Government’s own use of AI and increase its internal capacity to regulate, govern, and support responsible use of AI to deliver better results for Americans, and h.) The Federal Government should lead the way to global societal, economic, and technological progress, as the United States has in previous eras of disruptive innovation and change”. Although the executive order sets out numerous broad guidelines aimed at ensuring that AI is developed and used responsibly, it also includes several provisions that lay the groundwork for immigration policy innovations for AI experts.

Section 5 of the Executive Order first directs the DHS Secretary to “review and initiate any policy changes the Secretary determines necessary and appropriate to clarify and modernize immigration pathways for experts in AI and other critical and emerging technologies, including O-1A and EB-1 noncitizens of extraordinary ability; EB-2 advanced-degree holders and noncitizens of exceptional ability…” Although the executive order does not further specify what measures the DHS Secretary should take to achieve these goals, it is hoped that the criteria for O-1As and EB-1 and EB-2 I-140s could be expanded to make it easier for AI experts to qualify. In an emerging field such as AI, it could be difficult for a prospective O-1A candidate to demonstrate, for example, authorship of scholarly articles in the field or receipt of nationally or internationally recognized prizes or awards for excellence in the field, as such scholarly publications and awards may not exist yet. O-1 and EB-1 candidates may already submit “comparable evidence” to establish eligibility if the listed criteria are not readily applicable to their occupation. This policy could allow prospective O-1 and EB-1 candidates to establish extraordinary ability by highlighting other evidence more relevant to the field of AI, to which the traditional criteria may not readily apply.  Interestingly, the executive order further states: “for purposes of considering updates to the “Schedule A” list of occupations, 20 C.F.R. 656.5, the Secretary of Labor shall publish a request for information (RFI) to solicit public input, including from industry and worker-advocate communities, identifying AI and other STEM-related occupations, as well as additional occupations across the economy, for which there is an insufficient number of ready, willing, able, and qualified United States workers”. “Schedule A” occupations are those for which the Department of Labor has “predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation”, so employers may file an I-140, Immigrant Petition for Alien Workers for a beneficiary in these occupations without a labor certification. For years the only Schedule A occupations have been nurses and physical therapists, and immigrants of exceptional ability in the sciences or arts, including college and university teachers, and immigrants of exceptional ability in the performing arts. Although a rulemaking would be required to add occupations to the Schedule A list, this change, if it were to go into effect, would be a significant change that would allow U.S. employers to sponsor noncitizen AI professionals for permanent residence without going through the burdensome labor certification process. The list of Schedule A occupations has not changed for decades, so it is high time that the list be expanded even beyond AI occupations to include others for which there are a shortage of U.S. workers, such as other computer occupations.

The executive order also states that the DHS Secretary should “continue its rulemaking process to modernize the H-1B program and enhance its integrity and usage, including by experts in AI and other critical and emerging technologies, and consider initiating a rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident”. On October 23, 2023, DHS promulgated a proposed rule amending its H-1B regulations. Cyrus Mehta’s previous blog discusses significant features of the proposed rule in depth. One of the points of concern in new the rule is its redefinition of “specialty occupation” to require studies in a field that is “directly related” to the H-1B position. The proposed rule further states, “A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.” As AI is an emerging field, there are likely few degree programs that are specifically AI-focused as yet, so the definition of specialty occupation should not be narrowed such that it thwarts the ability of an AI specialist to obtain an H-1B visa. Given that AI is beginning to be used in fields ranging from finance to graphic design, introducing flexibility into the O-1A, EB-1/EB-2, and H-1B criteria could benefit numerous noncitizens who work with AI in some capacity.

The executive order also includes provisions that may benefit noncitizen students studying AI. It instructs the Secretary of State to “consider initiating a rulemaking to expand the categories of nonimmigrants who qualify for the domestic visa renewal program covered under 22 C.F.R. 41.111(b) to include academic J-1 research scholars and F-1 students in science, technology, engineering, and mathematics (STEM)” and “establish, to the extent permitted by law and available appropriations, a program to identify and attract top talent in AI and other critical and emerging technologies at universities, research institutions, and the private sector overseas, and to establish and increase connections with that talent to educate them on opportunities and resources for research and employment in the United States, including overseas educational components to inform top STEM talent of nonimmigrant and immigrant visa options and potential expedited adjudication of their visa petitions and applications”. The State Department recently announced that it will soon launch a pilot stateside visa renewal program for certain H-1B and L-1 visa holders. Stateside visa processing was available for some nonimmigrants in the past, but has been suspended since 2004. Adding J-1 research scholars and F-1 STEM students to the list of nonimmigrants who can renew their visas in the U.S. would be a significant expansion of the reintroduced program, but would require a rulemaking to actually take effect.

Not all of the executive order’s provisions concerning J-1s will be beneficial for noncitizen research scholars, however. The executive order directs the Secretary of State to “consider initiating a rulemaking to establish new criteria to designate countries and skills on the Department of State’s Exchange Visitor Skills List as it relates to the 2-year foreign residence requirement for certain J-1 nonimmigrants, including those skills that are critical to the United States”. This requirement prevents certain J-1s from changing to H or L status in the U.S., adjusting status, or receiving an immigrant visa or H, L, or K visa until they have first spent two cumulative years in their home country. Waivers of this requirement are only available to J-1 who can meet certain very narrow criteria, such as establishing that their departure from the U.S. would result in exceptional hardship to their U.S. citizen or LPR spouse or child, or that they would face persecution if they returned to their home country. Expanding the skills list could result in more J-1 scholars being required to return to their home countries for two years after completing their programs, rather than being able to remain in the U.S. to take up employment and contribute to developments in the AI field.

Many of the immigration policy changes suggested in the executive order could greatly benefit noncitizen AI experts. However, the executive order itself in many instances merely directs the relevant agencies to “consider initiating a rulemaking” to implement the changes. So, while the policies laid out in the executive order may come as largely welcome news to noncitizen students, scholars, and professionals in the AI field, some changes remain aspirational for now until put into effect through a regulation. However, USCIS directly implemented changes to its Policy Manual regarding O-1s and EB-1s in STEM fields, so it is hoped that the agency will take similar action to assist AI experts. .

While the executive order intends to bring about positive changes that would enable AI experts to work in the US, only Congress can bring about meaningful change. While the executive order can provide guidance to USCIS officers to consider O-1, EB-1 and EB-2 petitions in favor of the AI specialist, the potential changes may not be so attractive to the AI specialist who may be considering other countries like Canada and the UK if the backlogs in the employment-based categories continue to persist especially for those born in India.  Moreover, if the H-1B cap continues to remain at 85,000 subjecting applicants to a randomized lottery, the best and the brightest in the AI field will choose to go somewhere else as America is not the only game in town. Unless Congress acts fast to infuse more visas in the legal immigration system, the changes in the executive order may prove to be only window dressing.

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

Cyrus Mehta

While the Proposed H-1B Rules Have Many Positive Features, They May Also Result in Requests for Evidence and Denials

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The Department of Homeland Security (DHS) plans to amend its H-1B regulations “governing H–1B specialty occupation workers to modernize and improve the efficiency of the H–1B program, add benefits and flexibilities, and improve integrity measures.” The notice of proposed rulemaking (NPRM), expected to be published in the Federal Register on October 23, 2023, would also “narrowly impact other nonimmigrant classifications, including: H-2, H-3, F-1, L-1, O, P, Q-1, R-1, E-3, and TN.” A 60-day public comment period starts following publication of the NPRM in the Federal Register.

Below is a non-exhaustive summary of highlights. DHS proposes to:

  • Revise the regulatory definition and criteria for a “specialty occupation” and clarify that a position may allow a range of degrees if they have a direct relationship to the duties of the position;
  • Clarify when an amended or new petition must be filed due to a change in an H-1B worker’s place of employment;
  • Codify and clarify that if there has been no material change in the underlying facts, adjudicators generally should defer to a prior determination involving the same parties and underlying facts;
  • Require that evidence of maintenance of status must be included with the petition if a beneficiary is seeking an extension or amendment of stay;
  • Change the definition of “nonprofit research organization” and “governmental research organization” by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity;
  • Provide flexibilities, such as automatically extending the duration of F-1 status, and any employment authorization granted under 8 CFR 274a.12(c)(3)(i)(B) or (C), until April 1 of the relevant fiscal year, rather than October 1 of the same fiscal year, to avoid disruptions in lawful status and employment authorization for F-1 students changing their status to H-1B;
  • Clarify the requirements regarding the requested employment start date on H–1B cap-subject petitions to permit filing with requested start dates that are after October 1 of the relevant fiscal year;
  • Select H-1B cap registrations by unique beneficiary rather than by registration;
  • Clarify that related entities are prohibited from submitting multiple registrations for the same beneficiary;
  • Clarify that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity; and
  • Clarify that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation.

There are some good features in the proposals. For example, it codifies the deference that USCIS gives to prior approvals. It also allows companies to file H-1B petitions on behalf of owners under certain conditions in order to encourage entrepreneurship.  The proposal to select H-1B cap registrations by unique beneficiary rather than by registration is also salutary as it will improve the chances in the H-1B lottery. The rule will extend the H-1B the F-1 cap gap from September 30 to April 1 the following to allow students who are in Optional Practical Training to continue in that status beyond September 30 if the H-1B petition is not approved by October 1 of that year.

On the other hand, the proposal to redefine “specialty occupation” will make the H-1B program more restrictive and will negate all the good features. See Stuart Anderson’s Biden Immigration Rule Copies Some Trump Plans to Restrict H-B Visas in Forbes dated October 23, 2023.  Even if the proposed rule codifies the deference policy, it will prove hollow if the next H-1B extension will be evaluated under different and heightened standards relating to what is a specialty occupation, which lies at the heard of the H-1B program. All the other goodies will become less significant if employers face more obstacles in obtaining approvals under the altered definition of specialty occupation.

The proposed regulation seeking to amend the definition of “specialty occupation” is of great concern as it would incentivize USCIS examiners to issue requests for evidence, which in turn would be burdensome on employers.

The inclusion of  the required specialized studies being “directly related” to the position does not faithfully interpret the Immigration and Nationality Act I (“INA”). The proposed rule adds,  “A position is not a specialty occupation if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position. A position may allow a range of degrees or apply multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position.”

Under INA § 214(i)(1) a “specialty occupation” is  defined as an occupation that requires

–Theoretical and practical application of a body of highly specialized knowledge, and

-Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

There is no requirement in the INA provision that the required specialized studies must be directly related to the position.

At issue is whether the occupation, in order to qualify for an H-1B visa, must require a bachelor’s degree in the specific specialty. A lawyer would qualify as a specialty occupation as only a degree in law would allow entry into the occupation. But INA § 214(i)(1) reads more broadly. It also ought to encompass a marketing analyst, even though this occupation may require a bachelor’s degree in diverse fields such as marketing, business or psychology. While the proposed regulations would allow range of degrees or multiple bodies of highly specialized knowledge, provided that each of those qualifying degree fields or each body of highly specialized knowledge is directly related to the position, a position requiring a business degree may not qualify.

As I have explained previously, the answer lies with how the phrase in the parenthetical “or its equivalent” is interpreted in INA § 214(i)(1). In Tapis International v INS, 94 F. Supp. 2d 172, the court held that a “position may qualify as a specialty occupation if the employer requires a bachelor’s degree or its equivalent. For the “equivalent” language to have any reasonable meaning, it must encompass …….various combinations of academic and experience based training. It defies logic to read the bachelor’s requirement of “specialty occupation” to include only those positions where a specific bachelor’s degree is offered.” The phrase “or its equivalent” in INA 214(i)(1) is distinct from what the H-1B beneficiary is required to possess to qualify for specialty occupation.  INA 214(i)(2) sets forth separate requirements, such as completion of a bachelor’s degree or experience in the specialty through progressively responsible positions relating to the specialty. Therefore, the phrase “or its equivalent” actually broadens the requirement for a bachelor’s degree is a specific specialty to encompass “not only skill, knowledge, work experience, or training ….. but also various combinations of academic and experience based training.” See Tapis, supra. Thus, if an occupation requires a generalized degree, but specialized experience or training, it should still qualify as a specialty occupation.

The proposed rule seems to latch onto old, outdated notions of a business degree being too generalized to qualify for H-1B classification. If a lawyer can qualify for H-1B classification with a JD degree or its equivalent to take up a position as a tax associate or corporate associate, why does the marketing analyst need a business degree with a specialization in marketing rather than be able to qualify with a broad MBA degree? Similarly, the preamble to the rule also states that “a petition with a requirement of any engineering degree in any field of engineering for a position of software developer would generally not satisfy the statutory requirement” as the petitioner may not be able demonstrate how the different fields of engineering would qualify the H-1B worker to perform the duties of software developer.

Until the Trump administration, it was presumed that an occupation that requires an engineering degree should qualify for H-1B classification. Although there are many types of engineering disciplines, the basic quantitative skills gained in an engineering degree program should equip the worker to perform the technical duties of a specialty occupation whether it is for the position of Operations Research Analyst, Software Developer or Computer Systems Analyst. The USCIS backed off after the court in  Inspectionxpert v. USCIS criticized the government for objecting to engineering degrees but the proposed regulation will ensure that the engineering degree suffers the same fate as the generalized business degree.

Still, the DHS must be credited for clarifying in the proposed regulation that if the bachelor’s degree in a directly related specific specialty is normally the minimum requirement, “normally does not mean always.” The proposed rule will take into account other synonyms like “mostly” or “typically.” See Innova v. Baran  (“There is no daylight between typically needed, per OOH, and normally required, per regulatory criteria. ‘Typically’ and ‘normally’ are synonyms.”)

Finally, if the worker will be “staffed” to a third party client site, the client rather than the employer would need to establish that it would normally require a US bachelor’s degree is a directly related specific specialty. It would be difficult for the sponsoring employer to obtain such a justification from a client, and this too could result in RFEs (request for evidence) bonanza and potential denials.

The proposed regulations codify the 5th Circuit’s holding in Defensor v Meissner  but in that case the Court treated the client as a co-employer. The H-1B framework contemplates only the petitioner as the employer. The client does not supervise the H-1B worker or evaluate their job performance. The clients of the petitioner  would certainly not want to be viewed as a co-employer and incur potential liability from a claim by the H-1B worker.

It must be acknowledged, that the educational requirements of the third party would only be taken into accounts would only trigger if the H-1B worker is “staffed” to the third party as opposed to providing services to the third party.  Defensor v. Meissner involved a staffing agency for nurses that filed the H-1B petitions and contracted the nurses to hospitals. Would the USCIS understand the distinction between the nurse in Defensor v. Meissner and a software engineer who is providing services to the client rather than being staffed to the client? This distinction may be lost on a USCIS examiner, and this will result in an  RFE bonanza.

Readers are encouraged to submit comments within 60 days of October 23, 2023.

 

 

Cyrus Mehta & Kaitlyn Box

Emerging Immigration Issues Arising from Violence in the Middle East

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The violence and loss of life in the Middle East this week are unspeakably tragic, and it is innocent Israeli and Palestinian citizens who stand to suffer the most in the escalating conflict. Hamas’ condemnable attack of Israeli civilians, as well as Israel’s subsequent preparations to invade Gaza to destroy Hamas, are likely to result in many Israeli and Palestinian civilians becoming displaced. Noncitizens from affected areas who are currently in the United States may be unable or unwilling to return as the violence intensifies and the region becomes increasingly unsafe. The conflict poses a number of immigration challenges for those impacted by the conflict. The Biden administration can take measures to ensure that noncitizens from the region who are already in the United States are not obliged to return to unsafe areas, and to facilitate the process for those who are applying for an immigration benefit to come to the United States.

As recommended by the American Immigration Lawyers Association in a statement titled “AILA Calls on Biden Administration to Help Those Displaced By Recent Violence in Middle East”, the Biden administration can extend deferred action, humanitarian parole, or Temporary Protected Status (TPS) to individuals from regions impacted by the conflict who are in the United States to ensure that they may remain safely in the country. Further, the administration can suspend removals to areas impacted by violence to ensure that Israeli and Palestinian nationals in the United States will not be returned to unsafe locations. Additionally, deadlines and other requirements can be relaxed for individuals from the region who are currently applying for an immigrant benefit before the Department of Homeland Security, Justice Department, or Department of State to ensure that their cases will not be impacted by delays or difficulties resulting from the conflict. See AILA Doc. No. 23101002 (Oct. 10, 2023).

The conflict may could also result in immigration-related consequences for those would support the actions of Hamas. Senator Marco Rubio has called on the Biden administration to “cancel and rescind visas for foreign nationals who endorse or espouse terrorist activity, including those who defend or support Hamas”. Senator Rubio went on to state that the administration “has the authority and an obligation under existing law to immediately identify, cancel the visas of, and remove foreign nationals already here in America who have demonstrated support terrorist groups”, and expressed an intention to introduce legislation to force the Biden administration to take action accordingly.

A coalition of student organizations at Harvard University published a letter stating that they “hold the Israeli regime entirely responsible for all unfolding violence”, and swiftly faced backlash from Harvard faculty and alumni, as well as the public at large. A Columbia Law School student similarly had their job offer from a prominent firm rescinded after emailing a letter to students which stated in part “Israel bears full responsibility for this tremendous loss of life”. These incidents raise the question of whether student leaders who are in the United States on an F-1 visa could be found inadmissible under INA § 212(a)(3)(B)(i)(IV)(bb) as representatives of “a political, social, or other group that endorses or espouses terrorist activity”. INA 212(a)(3)(B)(v) defines “representative” as “an officer, official, or spokesman of an organization, and any person who directs, counsels, or induces an organization or its members to engage in terrorist activity”. Although it may be unlikely that the provision would be enforced against a university student, there is a potential for troubling consequences for a noncitizen leader of a student organization who speaks out about the conflict in a way that seems to endorse terrorist activity. INA 237(a)(4)(B) also renders a noncitizen who is described in INA 212(a)(3)(B) and INA 212(a)(3)(D) removable. Similarly, INA § 212(a)(3)(B)(i)(I) renders inadmissible noncitizens who “have engaged in terrorist activity”, which can include commission of “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” to a terrorist organization. INA § 212(a)(3)(B)(iv)(VI). The First Amendment of the US Constitution ought to preclude the assumption that exercise of the right to peacefully express an opinion or assemble is likely to involve the violation of immigration law. However, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court held that First Amendment protections do not apply to “political speech or expressive conduct that materially supports foreign terrorist organizations”. The Supreme Court’s holding in this case seems to apply only to those who have had contact with a terrorist organization, not individuals who speak independently, so a student who writes a letter or protests on campus would likely be able to avail of the protections of the First Amendment, and should not face repercussions for providing material support to a terrorist organization.

In the wake of the 9/11 terrorist attacks, noncitizens from predominantly Muslim countries were covertly detained and removed from the United States due to purported ties to terrorism, as detailed in our prior blog. This week, a Chicago landlord shockingly and senselessly attacked his tenant and murdered her six-year-old son because they were Muslim. A well-known Palestinian restaurant in Brooklyn has been inundated by fictitious negative reviews, though it has persevered in serving Palestinian and Israeli customers in the community alike. These incidents indicate that the type of xenophobic backlash that arose after September 11, 2001 may be materializing again.

Although the conflict in the Middle East poses a number of immigration-related challenges, the Biden administration is uniquely positioned to assist both Israeli and Palestinian civilians impacted by the violence. The administration should adopt protections that allow noncitizens from impacted regions who are currently in the United States to remain here until the conflict abates, and institute flexibilities for those currently navigating an immigration process. The Biden administration should also make every effort to tamp down xenophobic backlash here in the US, and should never impose a travel ban against regions or countries like the way Trump did.

Historically, when people immigrate from countries or regions that have been enemies seem to get along in the United States. They bury their historic differences and find commonalities in their cultures in the new country. A case in point are people who have immigrated to the US from India and Pakistan that the authors have anecdotal experience. In the US they seem to co-exist peacefully and even patronize each other’s businesses and share culture. The communities have a tendency to come together in the new country to provide a unified front to oppose racial hostility, stereotyping and xenophobia. It is hoped that the displaced people from the Middle East who come to the US or remain will co-exist in harmony upon the Biden administration providing benefits such as TPS, deferred action and humanitarian parole.

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

Cyrus Mehta

ICE Imposes Guardrails On Use of Red Notices Against Noncitizens in Removal Proceedings

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By Cyrus D. Mehta and Jessica Paszko*

A Red Notice is a request to locate and provisionally arrest an individual pending extradition, which INTERPOL issues at the request of a member country or an international tribunal based on a valid national arrest warrant.  A Red Notice does not establish that the person has been convicted of a crime. It is based on the word of the government that issued the arrest warrant, and does not add any further force or legitimacy to it. Unfortunately, the issuance of a Red Notice by a country whose government is corrupt or abusive can result in adverse consequences for persons applying for immigration benefits under US law. Many immigration benefits may not be granted based on the commission of a crime or if there is reason to believe that the person will commit a certain crime.  For an excellent overview, please read Challenging a Red Notice – What Immigration Attorneys Need to Know About INTERPOL by Ted R. Bromund and Sandra A. Grossman, AILA Law Journal, April 2019.

On September 29, 2023, U.S. Immigration and Customs Enforcement (ICE) announced new agency-wide guidance, ICE Directive 15006.1, about the use of Red Notices and Wanted Person Diffusions, as part of its commitment to comply with the requirements of INTERPOL’s Constitution and Rules on the Processing of Data.

More specifically, a Red Notice, as defined by the INTERPOL on its website, is a:

[R]equest to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. It is based on an arrest warrant or court order issued by the judicial authorities in the requesting country. Member countries apply their own laws in deciding whether to arrest a person.

It contains two main types of information:

  • Information to identify the wanted person, such as their name, date of birth, nationality, hair and eye colour, photographs and fingerprints if available.

  • Information related to the crime they are wanted for, which can typically be murder, rape, child abuse or armed robbery.

 

Red Notices are published by INTERPOL at the request of a member country, and must comply with INTERPOL’s Constitution and Rules

INTERPOL further indicates that once a Red Notice is published, each member country determines what effect to give it within its jurisdiction according to its national law and practice. The US does not consider a Red Notice alone to be a sufficient basis for an arrest because it does not meet the requirements for arrest under the 4th Amendment to the Constitution. Instead, the US treats Red Notices only as “a formalized request by the issuing law enforcement authority to ‘be on the look-out’ for the fugitive in question, and to advise if they are located.” The Department of Justice (DOJ) also recognizes that in the US, “national law prohibits the arrest of the subject of a Red Notice issued by another INTERPOL member country, based upon the notice alone.”

ICE Directive 15006.1 aims to codify and strengthen the agency’s “best practices and supports the U.S. Department of Homeland Security’s (DHS) broader efforts to combat transnational repression by helping ensure Red Notices and Wanted Person Diffusions are issued for legitimate law enforcement purposes and comply with governing rules.” The new guidance also claims that ICE Directive 15006.1 “prohibits ICE personnel from relying exclusively on a Red Notice or Wanted Person Diffusion to justify law enforcement actions or during immigration proceedings.” It also limits ICE personnel’s ability to rely on a Red Notice or Wanted Person Diffusion to help inform whether an enforcement action should be taken or during immigration proceedings by stating that reliance on either should be done “sparingly and only after certain threshold criteria have been met, as outlined in the directive.”

ICE Directive 15006.1 provides the following safeguards by instructing personnel to:

  • Complete mandatory training annually.

  • Verify the validity of a Red Notice or Wanted Person Diffusion to ensure it has not been suspended, withdrawn, or expired.

  • Conduct a preliminary review of available information for any indications of potential abuse or non-compliance with INTERPOL’s rules.

  • Obtain supervisory approval to act upon a Red Notice or Wanted Person Diffusion.

  • Request the associated underlying documentation via INTERPOL Washington.

  • Request use authorization via INTERPOL Washington if ICE intends to use a Red Notice or Wanted Person Diffusion in immigration proceedings.

  • Provide the wanted person with underlying documentation associated with the Red Notice or Wanted Person Diffusion, as applicable, and provide them with a meaningful opportunity to contest it or its contents.

  • Not represent or imply that a Red Notice or Wanted Person Diffusion is an arrest warrant, nor that it conveys independent legal authority or represents an independent judgment by INTERPOL concerning probable cause or the validity of the underlying criminal proceedings.

In practice, we have seen DHS use Red Notices as a basis to detain clients and place them in removal proceedings on the ground that they are a danger to the community and a flight risk. This, however, is not correct and constitutes abuse of Red Notices. Indeed, many asylum applicants fleeing from persecution from governmental actors in their home countries may have outstanding Red Notices as their persecutors levy false criminal charges against them. Even individuals who were not subject to detention due to a Red Notice may still face hurdles as they attempt to adjust their status or obtain US citizenship. The Board of Immigration Appeals in Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020)  ruled that an INTERPOL Red Notice may constitute reliable evidence of criminality that serves as a  bar for asylum and withholding of removal. As we commented in a prior blog, W-E-R-B unfortunately gives leeway for a foreign government persecuting the asylum claimant to issue an arrest warrant based on a false charge, and then inform INTERPOL to issue a Red Notice. If the charges remain outstanding, an IJ can potentially take for true the accusations in the charge even though there has not been a conviction. The burden of establishing the nonpolitical nature of the accusation is high under Matter of E-A, 26 I&N Dec. 1 (BIA 2012), as well as the nonseriousness of the crime. It is hoped that ICE will comport with its new policy, and a future BIA ruling on Red Notices will take account of the new ICE policy and allow respondents to challenge red notices if they do not comport with the guardrails established in ICE Directive 15006.1.

Though we don’t often share this sentiment for ICE, this time we think US Citizenship and Immigration Services (USCIS) should take example from ICE and issue similar policy guidance that discourages USCIS officers from using a record of a Red Notice from denying someone immigration benefits such as adjustment of status or naturalization. Oftentimes, the charges against an individual applying for immigration benefits may remain outstanding indefinitely. If the DOJ intended to extradite an individual subject to a Red Notice it would do so, but it usually does not. As a Red Notice does not constitute a conviction and does not prove that the individual committed any crime, it cannot be used to determine that someone is inadmissible for having committed a crime involving moral turpitude.

Under the new ICE policy, which until USCIS also adopts, it ought to be persuasive in USCIS adjudications, and the applicant subject to bogus charges must be prepared to strenuously contest that the underlying charges of a Red Notice are without merit, the applicant never committed the crime and provide evidence that the country abused the process in having INTERPOL issue the Red Notice to target him or her. The applicant must also insist that all the procedures set forth in ICE Directive 15006.1 have been followed. Bromund and Grossman’s article in the AILA Law Journal provide invaluable advice on how to challenge a Red Notice if it violates INTERPOL rules or indicates a bias on the part of the requesting authorities. More often than not, the charges against a non-citizen who is already in the US applying for a benefit will likely remain outstanding indefinitely in the foreign country. The Department of Justice infrequently extradites people subject to a Red Notice. If the DOJ has not taken any action, this too could be pointed out that the US has not taken the Red Notice seriously. One should try to convince the adjudicating official that the accusation, apart from not constituting a conviction, does not necessarily prove that the applicant even committed the crimes and do not render him or her inadmissible. Even if the applicant is granted permanent residence, it can further be asserted that the government can always hypothetically commence removal proceedings if there is a conviction that would render the applicant deportable. INTERPOL Red Notices are being erroneously viewed by the US immigration authorities as conclusive proof of criminality against non-citizens living in the US. Every effort must therefore be made to push back against this assumption. Otherwise, the US becomes complicit in the abuse by foreign governments to manipulate and undermine the integrity of immigration proceedings, including asylum claims, that otherwise ought to assure fairness and due process to non-citizens under the law.

(This blog is for informational purposes and cannot be relied upon as a substitute for legal advice).

Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Shaping Immigration Policy Through EADs

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By Cyrus D. Mehta and Kaitlyn Box*

In the face of Congressional inaction to fashion an immigration solution for the United States, the Administration does have broad authority to grant an employment authorization document (EAD) to noncitizens. It also has the ability to extend the validity of an EAD.

On September 27, 2023, USCIS announced that it will increase the maximum employment authorization document (EAD) validity period for “certain noncitizens who are employment authorized incident to status or circumstance” to five years. This five-year EAD validity period also applies to some “initial and renewal EADs for certain noncitizens who must apply for employment authorization”. Refugees, asylees, individuals granted withholding of removal, and those with pending asylum application or applications for adjustment of status under INA 245, are among the categories of noncitizens who will be issued EADs with a five-year validity period, according to a USCIS Policy Alert. USCIS stated that this change is aimed at “significantly reduc[ing] the number of new Forms I-765, Application for Employment Authorization, we receive for renewal EADs over the next several years, contributing to our efforts to reduce associated processing times and backlogs”. This announcement is the one of the most recent in a series of DHS measures that have the effect of shaping immigration policy through EADs.

INA 274A(h)(3) provides DHS a basis for providing employment authorization to noncitizens when not specifically authorized under the INA. The provision states:

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

DHS has relied on INA 274A(h)(3) as the authority for issuing EADs to H-4 spouses of H-1B workers under 8 CFR 274.12(c)(26). Save Jobs USA, an organization representing California IT workers, is currently challenging the DHS rule that grants work authorization to H-4 nonimmigrants before the Supreme Court. Although the policy was upheld at the district court level in March and no court of appeals decision has yet been rendered, Save Jobs has already sought review by the Supreme Court. Save Jobs is arguing that the issue of H-4 EADs in one of “extraordinary practical importance” because it represents “just the tip of a regulatory-work-authorization iceberg” that threatens the jobs of U.S. workers. Save Jobs further claimed that providing work authorization to noncitizens paroled into the U.S. for humanitarian purposes will “will allow aliens to hold 18 percent of the jobs created in an average year.” In a September 2023 brief, DHS contended that Save Jobs does not have standing to challenge the regulation, and urged the Court to deny certiorari, stating that: “The case would… not warrant certiorari even had the court of appeals already affirmed the district court’s ruling. That petitioner seeks to skip that critical step and obtain certiorari before judgment makes denial of the petition all the more appropriate.”

Although employment authorization is specifically provided for recipients of Temporary Protected Status (TPS) under INA 244(a)(1), INA 274A(h)(3) also affords DHS a basis for providing interim EADs to applicants who have pending TPS applications under 8 CFR 274.12(c)(19). Pursuant to a recent announcement, DHS is redesignating and extending TPS for Venezuela for 18 months. The redesignation will allow Venezuelan nationals who have been continuously residing in the United States since July 31, 2023 and meet the other eligibility criteria to apply for TPS. EADs for current Venezuelan TPS beneficiaries will be automatically extended through March 10, 2025. The redesignation of Venezuela for TPS will relieve the pressure for cities like New York that have accepted recent migrants from Venezuela, as these individuals will be able to legally work with EADs even while they have pending TPS applications rather than relying only on housing and other services provided by NYC.

Other examples where the Administration has relied on INA 274A(h)(3) include the granting of EADs to those who have been paroled into the United States under humanitarian parole under 8 CFR 274.12(c)(11), F-1 students who are in a period of practical training (8 CFR 274.12(c)(3)), applicants with pending I-485 applications (8 CFR 274.12(c)(9)), applicants with pending cancellation of removal applications (8 CFR 274.12(c)(10)), recipients of Deferred Action for Childhood Arrivals (DACA) (8 CFR 274.12(c)(33)), and beneficiaries of approved I-140 petitions, as well as their spouses and children, based on compelling circumstances (8 CFR 204.5(p)). Under these regulations, some EADs are linked to the noncitizen’s nonimmigrant visa status such as F-1 or H-4 while other EADs are not linked to such visa status and allow the noncitizen to remain lawfully present in the US.

Some of the programs that have provided the basis for EADs have been challenged in addition to the H-4 EAD program, such as the DACA program, which the U.S. District Court for the Southern District of Texas recently struck down once again. In a September 13, 2023 order, Judge Hanen stated that the 2022 Final Rule promulgated by the Biden administration to formalize the DACA program was not “materially different” from the 2012 policy that first created the program, and held that “the Final Rule suffers from the same legal impediments” as the 2012 policy. The 2012 policy was ruled unlawful in by the 5th Circuit in October 2022. In a 2015 opinion authored by Judge Hanen, the 5th Circuit struck down the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program (or “DAPA”) and questioned whether INA 274A(h)(3), which the court characterized as a definitional provision, even affords DHS the authority to grant employment authorization or related benefits.

The administration’s humanitarian parole program, which 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 and apply for work authorization, is currently facing a challenge by Texas and nineteen other states. The plaintiff states allege that the program “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so”. In an October 2022 Court of Appeals case, the Washington Alliance of Technology Workers (Washtech) similary argued that the F-1 STEM Optional Practical Training (OPT) rule should be struck down on the ground that INA § 101(a)(15)(F)(i) authorizes DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study and does not specifically authorize post-graduation practical training. The U.S. Court of Appeals for the D.C. Circuit, however, upheld STEM OPT as a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The Supreme Court recently denied  certiorari allowing STEM OPT and the EAD emanating under 8 CFR 274.12(c)(3) to continue.

Notwithstanding these legal challenges on specific executive actions, the Administration continues to  have the authority to issue and extend EADs to a broad swath of noncitizens. Some of the beneficiaries of EADs are those who are in the queue for permanent residence but are unable to obtain it due to backlogs in the employment categories while others are in the US based on humanitarian reasons. The authority and flexibility that INA 274A(h)(3) provides to the Administration to fashion immigration policy through the grant EADs and transform the lives of hundreds of thousands of noncitizens fills an important gap that complements the immigration benefits provided in the INA.

*Kaitlyn Box is a Senior Associate