Cyrus Mehta

The Impact of Obamacare on Green Card Holders Who Reside Outside the United States

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By Gary Endelman and Cyrus D. Mehta

Unlike many, if not most countries, the long reach of Uncle Sam’s tax laws extend far beyond geographic boundaries to affect citizens and lawful permanent residents (LPR) on an extraterritorial basis. Status not physical presence triggers the tax obligation. The need for LPRs living abroad to comply with US tax regimes is another example of how,  since enactment of the Immigration Reform and Control Act of 1986, immigration has become increasingly and inextricably intertwined with all other aspects of American life and law. Beyond that, lawful permanent residence is not only a legal status but an economic one as well with tax implications that intimately affect the maintenance of such status and the fiscal consequences of its continued exercise. The impact of the individual health care mandate under the Affordable Care Act (ACA), also popularly known as Obamacare, upon LPRs who reside overseas is the most recent example of a growing tension between a domestically focused immigration policy and the increasingly global nature of both individual and national economic conduct in the global economy of the 21st century.

A number of LPRs, also known as green card holders, temporarily live outside the United States for a variety of legitimate reasons. In a globalized world, LPRs may more readily find employment assignments in other countries or they may need to be outside the United States to look after a sick relative. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts, and although the LPR may remain outside the United States for an extended period of time, the visit may still be considered temporary so long as there is an intention to return. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.” If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

For a more extensive review on this subject, we refer you to our article, Home Is Where TheCard Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008.

With the deadline period for enrollment on March 31, 2014, a number of non-citizens, including LPRs,  are eligible for health care benefits under the ACA.  The ACA requires all “applicable individuals” including LPRs to maintain “minimum essential health coverage,” and the failure to do so will result in a penalty when they file their federal income tax returns for year 2014 onwards. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as applicable individuals.”  On March 26, HHS released guidance which clarifies that many consumers who were unable to enroll through the marketplace before the March 31 deadline are eligible for a special enrollment period (SEP). The SEP gives qualifying consumers additional time to get health coverage without being assessed a penalty. To be eligible for the SEP, the consumer must have experienced one of the barriers identified in the guidance. These barriers include experiencing errors related to immigration status and being transferred between the marketplace and state Medicaid/CHIP agency. The additional time available to apply depends on the specific barrier and when it is resolved.

An LPR residing outside will need to purchase health insurance under the ACA.  There are circumstances under which LPRs can still be deemed to be maintaining minimum essential coverage even when they are outside the United States if they meet the Internal Revenue Service test for shielding their foreign income from US taxation.

Under 26 CFR 1.5000A-1, “An individual is treated as having minimum essential coverage for a month—

(i) If the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual”.

In turn, section 911(d)(1) provides:(d) Definitions and special rules
For purposes of this section—

(1) Qualified individual

The term “qualified individual” means an individual whose tax home is in a foreign country and who is—

(A) a citizen of the United States and establishes to the satisfaction of the Secretary that he has been a bona fide resident of a foreign country or countries for an uninterrupted period which includes an entire taxable year, or

(B) a citizen or resident of the United States and who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days in such period.

Section 911 of the Internal Revenue Code allows certain US citizens and LPRs to shield their foreign income from US taxation by virtue of living outside the United States. The foreign earned income exclusion for 2013 is $97, 600.

Since the full consequences of decisions on Obamacare will not become plainly evident until April 2015, any interpretations advanced now must be necessarily both preliminary and tentative, subject to modification if and when the IRS provides future guidance. It is this continuing involvement of the IRS, as well as the byzantine complexity of the ACA itself, that commends a healthy dose of modesty to all commentators. LPRs who are eligible to take the section 911 exemption because they are not physically present in the United States for a full 330 days within a 12 month consecutive month period are treated as having minimum coverage for that 12- month period. It is still not clear whether  LPRs would have to elect to claim the foreign earned income exclusion by filing Form 2555 with  their tax returns so that they be deemed to have minimum essential coverage or whether the IRS will develop a special form for that purpose.

While it is true that only a US citizen can claim the bona fide resident of a foreign country exception, an LPR, if s/he is also tax resident in a county with which the US has an income tax treaty, can use the bona fide residence test pursuant to the treaty’s nondiscrimination provisions to also claim the foreign earned income exclusion. The bona fide residence test can be utilized even if the individual has not been physically present in the United States for 330 or more days.   If that is the case, can a non US citizen of a treaty country also claim minimum coverage under the ACA?

For example, the nondiscrimination provision of the US-India tax treaty, states in relevant part:

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall apply to persons who are not residents of one or both of the Contracting States.

This language in the US-India tax treaty would seem to apply to the ACA health mandate exemption, since it is taxation or a requirement connected therewith. After all, the Supreme Court in National Federation of Independent Businesses v. Sebelius, especially Chief Justice Roberts’ opinion, upheld the constitutionality of the health mandate in the ACA by characterizing it as a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” according to Chief Justice Roberts. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” the Chief Justice further opined.  While the commerce power apparently has its distinct limits for the Roberts Court, the power to tax does not. For this reason, Solicitor General Donald Verelli, who suggested the possible utility of such reasoning to the Court, may turn out to have singular, if unexpected importance.

On the other hand, it could be argued that the ACA statutes refer only to section 911 and not to treaties.  Also, the treaties define the scope of their application, which may have to be revised to include the ACA penalty. The US-India treaty, for example, applies to the following US taxes:

“In the United States, the Federal income taxes imposed by the Internal Revenue Code (but excludingthe accumulated earnings tax, the personal holding company tax, and social security taxes), and the excise taxes imposed on insurance premiums paid to foreign insurers and with respect to private foundations (hereinafter referred to as “United States tax”)”

Therefore, unless the IRS provides more specific guidance, it is not clear at this time whether an LPR who takes the bona fide residence exception for purposes of shielding foreign income can also be deemed to have the minimum essential coverage.

LPRs who seek to claim a section 911 type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under Singh v. Reno, supra. Even if LPRs assert that their trip abroad was temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. As we discussed in The Taxman Cometh: When Taking a Foreign Earned Income Exclusion On Your Tax Return Can Hurt Your Ability To Naturalize, taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5 or 3 year period. INA § 316(b) states that an absence from the United States of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. Indeed, utilizing the bona fide residence exception, if it is allowed for LPRs under the ACA, would be more perilous than the physical presence exception as the individual must declare a residence in a foreign country. Another issue worth noting for people who claim bona fide residence under tax treaties is that they must file Form 8833 to do so.  Page 4 of the instructions to that form warns that this sort of bona fide residency claim for an LPR under a tax treaty triggers the exit tax for Long Term Residents (LTR):

If you are a dual-resident taxpayer and a long-term resident (LTR) and you are filing this form to be treated as a resident of a foreign country for purposes of claiming benefits under an applicable U.S. income tax treaty, you will be deemed to have terminated your U.S. residency status for federal income tax  purposes. Because you are terminating your U.S. residency status, you may be subject to tax under section 877A and you must file Form 8854, Initial and Annual Expatriation Statement. You are an LTR if you were a lawful permanent resident of the United States in at least 8 of the last 15 tax years ending with the year your status as an LTR ends.

LPRs who live outside may wish to seek other ways to claim minimum essential coverage under the ACA if they do not wish to risk jeopardizing their green cards or their ability to naturalize in the future. For instance, LPRs who have health insurance provided by foreign insurers may qualify as having minimum essential coverage if the coverage is recognized by the Secretary of Health and Human Services. Coverage under group health plans provided through insurance regulated by a foreign government may also be recognized as minimum essential coverage, depending on specific circumstances and whether those plans have received U.S. approval. There are also the following statutory exemptions:

Religious conscience. Membership of a religious sect that is recognized as conscientiously opposed to accepting any insurance benefits. The Social Security Administration administers the process for recognizing these sects according to the criteria in the law.

Health care sharing ministry. Membership of a recognized health care sharing ministry.

Indian tribes.  (1) Membership of a federally recognized Indian tribe or (2) an individual eligible for services through an Indian care provider.

Income below the income tax return filing requirement. If the individual’s income is below the minimum threshold for filing a tax return. To find out if you are required to file a federal tax return, use the IRS Interactive Tax Assistant (ITA).

Short coverage gap. Going without coverage for less than three consecutive months during the year.

Hardship. Suffering a hardship that makes one unable to obtain coverage, as defined in final regulations issued by the Department of Health and Human Services.

Affordability. Unable to  afford coverage because the minimum amount the individual must pay for the premiums is more than eight percent of household income.

Incarceration. Being in a jail, prison, or similar penal institution or correctional facility after the disposition of charges against the individual.

Not lawfully present. Not being a U.S. citizen, a U.S. national or an alien lawfully present in the United States.

LPRs can also avail of the short coverage gap exemption. In general, a gap in coverage that lasts less than three months qualifies as a short coverage gap. If an individual has more than one short coverage gap during a year, the short coverage gap exemption only applies to the first gap.

LPRs who fail to maintain the required minimum essential coverage must pay a penalty known as the “individual shared responsibility payment.” In general, according to the IRS, the payment amount is either a percentage of your income or a flat dollar amount, whichever is greater.  The individual will owe 1/12thof the annual payment for each month he or she (or dependents) do not have coverage and are not exempt. The annual payment amount for 2014 is the greater of:

1 percent of household income that is above the tax return threshold for the indvidual’s filing status, such as Married Filing Jointly or single, or

the family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a maximum of $285.

The individual shared responsibility payment is capped at the cost of the national average premium for the bronze level health plan available through the Marketplace in 2014. The individual will make the payment when he or she files the 2014 federal income tax return in 2015.

For example, a single adult under age 65 with household income less than $19,650 (but more than $10,150) would pay the $95 flat rate.  However, a single adult under age 65 with household income greater than $19,650 would pay an annual payment based on the 1 percent rate.

If an LPR chooses to pay the penalty instead of purchasing insurance, and fails to pay the penalty or delays in making the payment,   this would need to be disclosed on an N-400 application relating to whether the applicant owes any taxes. This too could jeopardize the naturalization application, and would bring the penalty section of the ACA directly into the context of immigration issues. Furthermore, an LPR opting for the penalty over health insurance may create the impression, whether intentional or unintended, that he or she may not be maintaining ties with the US, further bolstering the government’s charge of abandonment of LPR status.

The ACA is connected to immigration issues, and it behooves a careful practitioner to review the provisions of the ACA as they apply to non-citizens, and LPRs in particular. The interconnectedness of all these issues to the authors is the larger and more widely significant point, such as how seeking an exemption from the health insurance mandate can trigger potential loss of LPR status,  invocation of the exit tax, or the ineligibility to become a US citizen in the future. No longer can any of these decisions be made in a vacuum without consideration of the broader consequences.  The practice of immigration and tax law must invite the collaboration of experts from both disciplines.

Any consideration of the possible adverse consequences resulting from a decision to seek an exemption from the individual mandate imposed by the ACA must be informed by an understanding of the fact that an extended absence from the United States, without more, should never serve as the basis for involuntary abandonment of LPR status. We live in a global economy where international relocation is often the price for career advancement and even job retention.  The law should and must provide that no LPR can be stripped of their “green card” on the basis of abandonment unless he or she clearly manifests or overtly states an intention to give it up. No inference from proven conduct can be possible absent compelling evidence that such was the desired and intended consequence. Application of this caution to the debate over Obamacare would properly reflect the profound importance of LPR status while also serving as a recognition of the enormous and continuing contributions that such permanent residents have made and continue to render to their adopted home.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)

David Isaacson

HIZAM v. KERRY: IF THIS IS THE RIGHT RESULT UNDER CURRENT LAW, THEN THE LAW NEEDS TO BE CHANGED

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Imagine for a moment that, since you were nine, your parents had told you that you were a U.S. citizen.  And not just told you: your father filed papers with the U.S. government, and obtained official proof of your citizenship.  You grew up in the United States from age nine onward as a U.S. citizen, attended school and college here, and got a job here.  Imagine further that more than twenty years later, the government suddenly told you that your parents had been wrong: you were not a U.S. citizen after all, and thus you had no right to be here.

Surely, you would think after recovering from your initial shock, this must be because your father did something improper back when you were a child.  Perhaps he had been lying to the government, and to you, all along?  Perhaps the papers he filed with the government to obtain proof of your citizenship were fraudulent?  Surely he must have done something wrong, for the government to take away your citizenship after all these years.  Surely they would not simply take away the citizenship you had always thought you had, unless there were some fault on your family’s side.

But if that was what you thought, it is you who would be wrong.  This is the story of Abdo Hizam, who the State Department decided in 2011 was not actually a U.S. citizen, even though they had repeatedly documented him as a citizen since 1990.  According to the State Department, it was the government, not Hizam or his father, who made the mistake; and yet it is Hizam, not the government, who must pay the price.  On March 12, 2014, the Court of Appeals for the Second Circuit, in the case of Hizam v. Kerry, ruled that the State Department was right, and that Hizam has no legal remedy.

Abdo Hizam was born in 1980.  As recounted in a 2012 New York Times article, his father, a naturalized U.S. citizen, worked at that time at a Chrysler plant in Michigan, while his mother was living in Yemen.  In 1990, as explained in the Second Circuit’s opinion, Hizam’s father submitted an application for a consular report of birth abroad (“CRBA”) for his son, which even the government agrees was entirely truthful, and which was granted, documenting Hizam as a U.S. citizen.  A CRBA has “the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction” according to 22 U.S.C. §2705.

Also in 1990, Hizam’s maternal grandparents, who like his father lived in Michigan, visited Yemen and brought Hizam back to the United States. After moving to the United States with his grandparents, Hizam grew up here and built his life here.  As the Second Circuit explained:

After receiving a CRBA and passport, Hizam traveled to the United States to live with his grandparents. Hizam attended elementary, middle and high school in Dearborn, Michigan. He became fluent in English and did well in school, where he was a member of his high school’s swim team. Hizam began working while in high school, and worked two jobs to support himself while attending college in the United States. He graduated from Davenport University in 2003 with a degree in business administration. He eventually moved to the Bronx, New York, to live with his brothers. During his residence in the United States from 1990 through 2002, his passport was renewed twice without incident.
In 2002, Hizam traveled to Yemen, where he married, and subsequently had two children. Between 2002 and 2009, Hizam traveled back and forth regularly between the United States and Yemen, where his wife and children reside. At the time he commenced this litigation, Hizam worked at the family business, Moe’s Deli, in New York. He is the primary caretaker for one of his brothers, a minor, and is pursuing a master’s in business administration at Mercy College.

Hizam v. Kerry slip op. at 7.

When Hizam in 2009 sought to obtain CRBAs and U.S. passports for his own children, the State Department began a review of his citizenship status that ended in the cancellation of his passport and CRBA on the ground that he was not a U.S. citizen.  As the Second Circuit explained:

In 2009, Hizam applied for CRBAs and U.S. passports for his two children at the U.S. Embassy in Sana’a, Yemen. U.S. officials at the embassy told Hizam there was an issue with his passport, and retained his passport for about three weeks. After his passport was returned, Hizam returned to the United States. In April 2011, while Hizam was in the United States, the State Department notified him via letter that his CRBA and passport were wrongly issued “due to Department error.” The letter stated that while “[t]his error was evident from your CRBA application[,] there is no indication that your father fraudulently obtained citizenship documentation for you,” and “there is no evidence of fraud on your part.” It concluded that “[u]nfortunately . . . the Department of State lacks authority to create a remedy that would in some way confer U.S. citizenship on anyone absent a statutory basis for doing so.” Subsequent letters from the Department of State informed Hizam that his CRBA had been cancelled, and his passport revoked, and requested that he return those documents, which he did in May 2011.

Hizam v. Kerry slip op. at 8.

The problem, it appears, was that Hizam’s father’s CRBA application for him had been adjudicated based on the wrong version of the relevant statute.  Generally, the law governing the acquisition of citizenship by a child is that in effect at the time of the child’s birth.  The law had changed between the time of Hizam’s birth and the time that his father applied for his CRBA (in 1986 to be precise), however, and the consular officer seems to have applied the new version of the statute, in effect at the time of the application, rather than the old version, in effect at the time of Hizam’s birth.  To quote again from the Second Circuit’s opinion:

Hizam’s father truthfully stated in the [CRBA] application that he had arrived in the United States in 1973, and was physically present in the United States for approximately seven years at the time of Hizam’s birth in October 1980. . . . .

At the time of Hizam’s birth, the child of a United States citizen born outside of the United States was eligible for citizenship if the parent was present in the United States for at least 10 years at the time of the child’s birth. 8 U.S.C. § 1401(g) (Supp. III 1980). However, the law had changed by the time Hizam’s father sought a CRBA on Hizam’s behalf. The amended law required the parent to be present in the United States for just five years. 8 U.S.C. § 1401(g). It appears that the consular officer erroneously applied the five ‐ year rule in granting Hizam a CRBA.

Hizam v. Kerry slip op. at 6-7.

Hizam sued for the return of his CRBA, and won in the district court, but was rebuffed at the Second Circuit.  The Court of Appeals concluded that the statute authorizing the State Department to revoke CRBAs was not impermissibly retroactive, and, perhaps more startlingly, that the State Department’s long delay in correcting its error, even though undeniably prejudicial to Hizam, did not entitle him to any remedy despite the compelling equities of his case.  As the Court explained:

In the alternative, Hizam argues that the State Department should be precluded from revoking his CRBA under a laches theory, because the State Department unreasonably delayed revoking the CRBA, and Hizam was prejudiced by the undue delay. Laches is an equitable defense that requires proof of lack of diligence by the party against whom the defense is asserted, and prejudice to the party asserting the defense. See Costello v. United States , 365 U.S. 265, 281 ‐ 82 (1961). The State Department certainly lacked diligence in correcting its error, as the correction did not occur for 21 years, during which time Hizam used his CRBA to renew his passport twice. And Hizam was certainly prejudiced by the State Department’s delay in correcting its error, because, as he delineates in his brief, there were several other avenues to citizenship that he could have pursued but are now foreclosed to him.

The equities in this case overwhelmingly favor Hizam. Indeed, even the State Department recognizes “the considerable equities of his case.” Despite sympathy for Hizam’s position, however, we conclude that courts lack the authority to exercise our equitable powers to achieve a just result here. Well ‐ settled case law bars a court from exercising its equity powers to naturalize citizens. See Pangilinan , 486 U.S. at 885; Fedorenko v. United States , 449 U.S. 490, 517 (1981); Wong Kim Ark , 169 U.S. at 702. The courts lack authority to provide Hizam with the relief he seeks.

Hizam v. Kerry slip op. at 20-21. The Court quoted the State Department’s representation that it “has brought the matter to the attention of [USCIS], and will continue to support other lawful means to provide relief to Hizam, including a private bill in Congress should one be introduced.”  Id. at 22.  If no private bill is introduced, there is no obvious route back to citizenship or even lawful permanent residence for Hizam, absent further factual developments not evident from the Second Circuit decision.

It is worth pausing at this point to discuss some of the “several other avenues to citizenship” that the Court acknowledged Hizam “could have pursued but are now foreclosed to him.”  Hizam v. Kerry slip op. at 21.  Had Hizam and his father been notified of the problem before Hizam turned 18, for example, Hizam’s father could have sought expedited naturalization of his son under INA §322, 8 U.S.C. §1433.  That provision, as it existed in the years before 2000, allowed a U.S. citizen parent to apply for expedited naturalization of a child if, among other things, the parent had been physically present in the United States for the period of five years, two after the age of fourteen, that would be required to transmit citizenship automatically to a child born after 1986.  See See 8 U.S.C. §1433(a)(5) (1999).  (Under current law, INA §322 applies only to children residing outside the United States with their U.S. citizen parents, likely because under INA §320, a child under the age of 18 who is residing inside the United States as a lawful permanent resident in the legal and physical custody of a U.S. citizen parent becomes a U.S. citizen automatically, without the need for a separate application other than to provide evidence of the status they have already come to possess.)  Or, if the problem had been discovered after Hizam turned 18 but before he turned 21, his father could perhaps have sponsored him for lawful permanent residence as the immediate relative of a U.S. citizen.  See INA §201(b)(2)(A)(i) (describing “children . . . of U.S. citizens”) as immediate relatives; INA §101(b)(1) (describing a “child” in part as “an unmarried person under twenty-one years of age”).  Now, however, neither of those options are available.

One small consolation for Mr. Hizam is that he likely qualifies as inspected and admitted to the United States, should he in the future, for example, enter into a bona fide marriage with a U.S. citizen and seek adjustment of status under INA §245(a) as an immediate relative of that U.S. citizen.  Under the rule of Matter of F-, 9 I&N Dec. 54 (Reg. Comm’r 1960, Asst. Comm’r 1960), one who innocently enters the United States under a claim of U.S. citizenship that turns out to be incorrect is inspected and admitted, even though one who enters under a knowing false claim of U.S. citizenship is not.

The BIA recently restated “the long-standing rule that an alien who enters the United States by falsely claiming United States citizenship effectively eludes the procedural regularity of inspection by an immigration officer.”  Matter of Pinzon, 26 I&N Dec. 189, 191 (BIA 2013). But since Matter of Pinzon cited Matter of F– with approval, see Matter of Pinzon, 26 I&N Dec. at 191, the best reading of Matter of Pinzon appears to be that “falsely claiming United States citizenship” within the meaning of that case implies doing so intentionally, knowing the claim to be false.  This would be consistent with the conclusion of the State Department and the DHS General Counsel that inadmissibility under INA §212(a)(6)(C)(ii)(I), which refers to “Any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act . . . or any other Federal or State law,” applies only to “a knowingly false claim”, as explained at Note 11(b.)(1) of Volume 9, section 40.63 of the State Department’s Foreign Affairs Manual.  In normal English usage, we would not describe someone who says something which they fully believed to be true as having “falsely” claimed it—rather, we might say that they had done so “incorrectly”, or “erroneously”.  An innocent but erroneous claim to U.S. citizenship is neither a ground of inadmissibility, nor a basis for invoking the exception to inspection and admission recognized by Matter of Pinzon. Thus, it can still qualify as an inspection and admission under Matter of F-.

Still, to say to someone in Hizam’s position that he has been inspected and admitted, but has no right to remain in the United States unless he may seek adjustment of status as the immediate relative of a U.S. citizen, is extremely harsh.  Being well over the age of 21, and married, he is no longer the immediate relative of his U.S. citizen father.  See INA §201(b)(2)(A)(i); INA §101(b)(1).  And because Hizam’s father believed him to be a U.S. citizen, he had no reason to file a petition for his son before his son turned 21 and got married.  See INA §201(f)(1) (providing that age for purposes of qualifying as an immediate relative is determined on the date of filing of the petition).  As noted above, had the State Department corrected its error any time within more than 10 years after the error was made, Hizam could easily have become a Lawful Permanent Resident; now he cannot.  And had the State Department corrected its error less than 8 or so years after it was made, Hizam could easily have become a U.S. citizen under INA §322; now he cannot do that either.  Hizam’s father could theoretically file a petition for him under the Family Third Preference for married sons and daughters of U.S. citizens, as established by INA §203(a)(3), but the latest Department of State Visa Bulletin indicates a wait time of well over ten years before an immigrant visa number is available based on such a petition.  (To be precise, the Visa Bulletin indicates that those who had petitions filed on their behalf before July 15, 2003, should be able to seek immigrant visas based on those petitions in April of 2014.)

If the decision in Hizam v. Kerry is not overturned (either by the Second Circuit sitting in banc or by the Supreme Court), Congress should give serious consideration to addressing this problem by legislation.  With respect to Hizam himself, the problem can perhaps as the State Department suggested be solved by a private bill, granting him citizenship or at least lawful permanent residence.  But the problem is a broader one. Those who, through no fault of their own or of their parents, are incorrectly told by the U.S. government that they are U.S. citizens, and who in reliance on that advice live in the United States and/or forego other opportunities which would exist to gain citizenship or lawful permanent residence, should also be eligible for U.S. citizenship, or at least for lawful permanent residence.

If Congress will not allow favorable determinations of U.S. citizenship to stand when they are made due to government error, it could at least amend INA §322  to give those who miss their opportunity to naturalize as children due to such error another chance. Currently, that statute provides in relevant part that a parent who is a citizen of the United States and meets the relevant residence requirements may apply for the naturalization of a child who is “under the age of eighteen years,” INA §322(a)(3), and “is residing outside of the United States in the legal and physical custody of the applicant,” INA §322(a)(4). This author would suggest the addition of a new subsection of §322, providing that a person who is over the age of eighteen years (and who therefore may not be in anyone’s custody) may be naturalized under INA §322, upon appropriate application by that person, if at some time prior to the person reaching the age of eighteen years his or her parent was advised by the U.S. government, without any misrepresentation on the parent’s part, that their child was already a U.S. citizen, and this erroneous advice was not corrected until after the child reached the age of seventeen years. (Some margin for error before the age of eighteen would have to be allowed, since being advised a day before your child’s eighteenth birthday that he or she was not actually a U.S. citizen, as you had previously supposed, would not provide sufficient time to get the child sworn in before age eighteen.)

Alternatively, if Congress is reluctant to allow expedited naturalization of someone in Hizam’s position who is over the age of 18, it should amend the registry statute, INA §249, which currently allows the creation of a record of lawful admission for permanent residence of persons of good moral character who have resided in the United States since prior to January 1, 1972. That statute could be altered to include persons of good moral character who have entered the United States after January 1, 1972, on a U.S. passport which was issued to them without any misrepresentation by them or anyone acting on their behalf, but who are later determined not to be U.S. citizens.

If even this remedy is considered too extreme, then at the very least, INA §201(f)(1) should be amended to state that a child’s age, for purposes of qualifying as an immediate relative, is determined either (A) on the date of filing of a petition by that child’s parent, or (B) on the date the child or the child’s parent is informed by the U.S. government, due not to any misrepresentation by either of them but to government error, that the child is a U.S. citizen (and that there is therefore no point in filing a petition). This would not help Mr. Hizam himself, due to his marriage, but it could help others in similar positions.

What should not happen, in any case, is for the law to remain the way it evidently is today, according to the Second Circuit’s decision.  It is unfair and outrageous to place someone in a position where, through no fault of their own or their parents, they can spend decades in the United States under the impression that they are a U.S. citizen, and then be told that they actually lack not only U.S. citizenship but any straightforward way of even gaining the legal right to reside in this country.

Cyrus Mehta

WAS THE ATTORNEY REALLY INEFFECTIVE IN KOVACS v. UNITED STATES?

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In Kovacs v. United States, the United States Court of Appeals for the Second Circuit reversed a lower district court’s decision denying a writ of error coram nobis to vacate a 1999 guilty plea to misprision of felony on the ground that his lawyer rendered ineffective assistance.

While the outcome of the Second Circuit’s decision is extremely beneficial for the petitioner Stephen Kovacs, who would otherwise suffer adverse immigration consequences, it does not appear that his attorney Robert Fink rendered ineffective assistance. When Kovacs, a lawful permanent resident, took the guilty plea for misprision of felony in 1999 it was not considered a crime involving moral turpitude, and would not have then resulted in adverse immigration consequences. Indeed, after taking the plea in 1999, Kovacs, an Australian national, continued to travel internationally without incident when in 2009 immigration officials questioned his ability to reenter the country on the ground that misprision of felony is considered a crime of moral turpitude.

The writ of coram nobis is an extraordinary remedy that is sought to correct errors, such as a criminal conviction, based on the following three factors: 1) there are circumstances compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that may be remedied by granting the writ. See Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996).

Kovacs’ key argument for why he deserved to be granted the writ of coram nobis is that his attorney at that time, when he took the guilty plea for misprision of felony, was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). A claim of Strickland ineffectiveness involves a demonstration that: 1) the defense counsel’s performance was objectively unreasonable; and 2) the deficient performance prejudiced the defense.

The Second Circuit agreed that Fink’s representation of  Kovacs, when he took the guilty plea for misprision of felony, was ineffective under the Strickland test. The Court relied on United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), which held that an affirmative misrepresentation of the deportation consequences of a guilty plea fell outside the range of professional competence and thus met the Stricklandtest.

There is, however, surprisingly no discussion in the Court’s decision on why Fink’s assistance of Kovacs was ineffective in 1999. It was only in 2006 when the Board of Immigration Appeals in Matter of Robles, 24 I&N Dec. 22 (BIA 2006) determined that a misprision of felony conviction under 18 U.S.C. §4 was a crime involving moral turpitude. In 1999, when Kovacs took the misprision plea, the BIA’s holding in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968, BIA 1966), established that misprision of felony was not a crime involving moral turpitude. Matter of Sloan was only overruled by Matter of Robles many years later! Robles also retroactively applied to non-citizens previously convicted of misprision of felony.  Any competent and diligent attorney in 1999 could have relied on Matter of Sloanin advising the non-citizen client to take a plea for misprision for felony as it did not have adverse deportation consequences at that time. To make this more bizarre, the Ninth Circuit in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir.2012),  ultimately overturned the BIA in the same case by holding that misprision is not categorically a crime involving moral turpitude because it does not require a specific intent to conceal the felony, but only knowledge of the felony. Therefore, based upon an analysis of minimal conduct necessary to be implicated under the misprision statute, the Ninth Circuit held that such conduct is not inherently base, vile or depraved to be considered morally turpitudinous.   Even if a Circuit Court has overruled a BIA decision, it would only be inapplicable within the jurisdiction of that Circuit Court, which in Robles-Urrea is the Ninth Circuit, but the overruled BIA decision is still applicable everywhere else in the country.

The grant of a writ of coram nobis is undoubtedly a wonderful outcome for Kovacs whose circumstances were very sympathetic, but the question is whether his attorney was ineffective in 1999, and affirmatively misrepresented the deportation consequences so as to be judged to have rendered ineffective assistance. This did not appear to be the case on the part of his attorney under Matter of Sloan, the precedential decision at that time. Moreover, the holding in Matter of Sloan is still considered good law in the Ninth Circuit.  Perhaps there may have been some sort of strategic collusion here that is not readily apparent to an objective reader of the decision.  Fink may have wanted to help his former client and did not come in the way. The government also may not have wanted to impede the retroactive applicability of Matter of Robles. When an attorney’s incompetence is not so clear cut, the non-citizen affected by the criminal conviction may consider seeking alternative remedies such as challenging the retroactive holding of the BIA. It may sometimes be impermissible for an agency to make a retroactive ruling that affects reasonable reliance interests. SeeHeckler v. Community Health Servs. of Crawford County, Inc., 467 U.S. 51, 60 n.12 (1984),  Miguel-Miguel v. Gonzales, 500 F.3d 941, 950-953 (9th Cir. 2007),  Lehman v. Burnley, 866 F.2d 33, 37-38 (2d Cir. 1989). If the plea occurred before the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), then  non-citizen LPRs who have been convicted of  crimes involving moral turpitude can still be admitted if their trips overseas were brief, casual and innocent. See Vartelas v. Holder, 132 S. Ct. 1479 (2012).  If the conviction occurred after the passage of IIRIRA, then a non-citizen may still seek a waiver under INA 212(h) to overcome the inadmissibility caused by the crime of moral turpitude.

This is not to suggest that non-citizens should be reluctant to seek to vacate their criminal convictions based on ineffective assistance of counsel. In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court allowed a non-citizen’s plea to be vacated upon ineffective assistance of counsel when his attorney did not advise him about the immigration consequences of his plea. Later, in Chaidez v. United States, 133 S. Ct. 1103 (2013), the Supreme Court clarified that Padilla would not be applied retroactively to criminal cases that were already final when Padilla was decided. However, Chaidez’s preclusion against retroactivity is inapplicable when the attorney affirmatively misadvised the non-citizen about the immigration consequences of the criminal plea, as was the case in Kovacs, rather than fail to provide any advice. Still, that advice ought to have been wrong before an ineffective assistance claim can pass muster. While an attorney who is found to have rendered ineffective assistance in the criminal context will likely not be disciplined, one would not want to be publicly found by a Court of Appeals to have been incompetent and rendered ineffective assistance several years later just because the law changed retroactively. An attorney, besides being expected to thoroughly research the prevailing law at a given point in time, ought not to be expected to gaze into a crystal ball to determine whether the law can change many years later in order to avoid being ambushed by an ineffective finding!

Cyrus Mehta

DOL POLICY ON LAID-OFF U.S. WORKERS FOR PERM LABOR CERTIFICATION APPLICATIONS

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The filing of a labor certification application is normally the first step when an employer sponsors a foreign national employee for permanent residence. Under the labor certification process, the employer is required to demonstrate that it unsuccessfully conducted a good faith recruitment of the US labor market at the prevailing wage before it can proceed to sponsor the foreign national employee.

The Department of Labor, under the slim authority given to it in INA 212(a)(5) has promulgated complex rules in 20 Code of Federal Regulations (CFR) Part 656 that govern how an employer must establish a good faith test of the US labor market. These rules, which have created a huge “labor certification bureaucracy”, also reflect a concern for US workers who were laid off within 6 months of filing the labor certification application. Specifically, 20 CFR 656.17(k) provides:

1) If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

(2) For the purposes of paragraph (k)(1) of this section, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

The requirement for an employer to have notified and considered all potentially qualified laid-off workers has always been a touchy issue for employers. It is easier for an employer to broadcast advertisements and undertake other prescribed recruitment steps for prospective US workers than for an employer to contact its own prior workers regarding a job opportunity that is the subject of the labor certification application. The notification requirement of all laid off workers in the specific occupation or related occupation has also been open to varying interpretations. Would it suffice if the laid off worker was told to check job opportunities in the future on the employer’s website or must the worker be actually notified when labor certification is being sought in the same job opportunity?

The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.

The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and invite the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

While the DOL has clarified the notification requirement for laid-off workers, must an employer contact all laid off workers in the specific or related occupation for which labor certification is sought even if the employer knows that the laid-off worker’s qualifications do not objectively meet the requirements of the position? For example, the job opportunity for which labor certification is being sought, let’s say a Software Engineer, requires five years of experience in certain computer programming languages like C++, Java and Python. The employer knows that a former worker, also a Software Engineer, who was laid off 3 months ago only had 1 year of experience in C++, but not Java and Python. Is the employer required to notify this worker under 20 CFR 656.17(k) when the employer knows that the laid off worker is not qualified for the position?

The employer must also check off a box on ETA 9089, Section 1.e.26,  which broadly asks whether the employer had a layoff in the area of intended employment in the occupation of the job opportunity or a related occupation within 6 months of filing the application. The checking off the “yes” box is likely to trigger an audit and further scrutiny. The next box Section 1.e.26A, asks “were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?” If the employer checks off the “no” box or the “NA” box, would that be permissible if the laid off worker is clearly not qualified for the position?   In other words, when an employer knows that a laid-off worker is not potentially qualified, may it only consider the worker’s qualification or does it also need to notify that prior worker? If the labor certification is audited, the DOL will request documentation to establish the number of US workers in the occupation or in a related occupation that were laid off by the employer; a listing of all occupations relevant to the layoffs; an explanation as to why notification or consideration of the employer’s potentially qualified laid-off US workers was not applicable; and proof that any laid off US workers not notified and considered by the employer were not potentially qualified for the job opportunity.

The Board of Alien Labor Certifications in Matter of Federal Home Loan Mortgage Corp, 2011-PER-02902 (BALCA February 10, 2014)  held that an employer was justified in rejecting a laid-off worker who was not qualified for the position. While it is not clear from this decision whether the employer had notified the laid off worker, it is clear from the resume that the laid off worker was not qualified for the position, according to BALCA. The position in the instant case required a very deep knowledge of SAS, including SAS on Unix and SAS for Windows. The laid-off worker did not have experience with these program tools. Although the Certifying Officer in denying the labor certification assumed that the laid off worker would have obtained the same skills and knowledge for the position for which labor certification was sought, having worked with the employer for three years, BALCA found that the CO’s assumption was unfounded and unsupported by the record. Cisco Systems, Inc, 2011-PER-02900 (BALCA April 26, 2013), however, provides more clarity regarding whether an employer needs to notify a laid-off worker who is not qualified for the position. There BALCA held that the employer who had not notified a laid-off worker was justified in its rejection of that worker who clearly lacked the qualifications for the position.

It may thus be defensible for an employer to not notify all laid off workers in the occupation for which labor certification is sought, or a related occupation, unless the laid off worker is potentially qualified for the position. Of course, when in doubt, the employer must contact the laid-off worker per the new DOL FAQ. Unfortunately, in the world of labor certification, the DOL imposes unrealistic requirements and burdens upon employers, and one can never know how the DOL will react when an employer justifies that its reason for not notifying laid-off workers was because they were unqualified for the position. The DOL has publically indicated that BALCA does not speak for it, and it may not consider itself to be bound by Matter of Federal Home Loan Mortgage Corp or Cisco Systems. Therefore, employers are advised to tread very cautiously when workers have been laid off within six months prior to filing a labor certification on behalf of a foreign national employee.

Cyrus Mehta

TRANSMISSION OF AMERICAN CITIZENSHIP THROUGH ASSISTED REPRODUCTIVE TECHNOLOGY – AN UPDATE

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By Gary Endelman and Cyrus D. Mehta

“The journey of a thousand miles begins with a single step” Lao –Tzu, Chinese philosopher (604 BC-531 BC)

Ed. note – This article updates information from a previous piece, “Answer Man: Assisted Reproductive Technology and U.S. Immigration Law.”

The Department of State has announced a major and most welcome policy shift to facilitate the transmission of American citizenship to children born outside the United States using Assisted Reproductive Technology (ART). It will no longer be necessary in all such cases for the “mother “to have a genetic link to the child. The Department has happily now recognized that American mothers can pass on citizenship to children to whom they give birth regardless of whose egg was used for conception. The “mother” must be the legal mother at the time and place of the child’s birth and the gestational mother. Under the new State Department policy, the biological mother can either be the genetic or the gestational mother; the biological father can obviously only be the genetic father.  The State Department policy goes onto clarify: 

If the child is biologically related to a US citizen father, but not to the father’s spouse, the case would be treated as a birth out of wedlock to a U.S. citizen father, pursuant to INA 309(a), and the father would have to meet the additional requirements of that section.  If the child is biologically related to a U.S. citizen mother, but not her spouse, the case would be treated as a birth out of wedlock to a U.S. citizen mother, and would have to meet the requirements of INA 309(c).  If the child is the biological child of both parents, and the biological parents are married to one another, INA 301 requirements would apply, including a requirement that at least one of the US citizen parents had resided in the United States prior to the child’s birth.

In addition, the State Department now views the child of a legally married lesbian couple as being “born in wedlock” if the baby is conceived from the egg of one mother and carried by the other.

Under the new policy, a US citizen mother who gives birth to a biological child abroad, including through a foreign surrogate (via her egg), can apply for a US passport and Consular Report of Birth Abroad. While the USC parent with the biological nexus should be listed on the CRBA, a second parent can be listed as well if they can document a legal relationship under local law.

It should be noted that this new policy is retroactive. In those instances where an immigration benefit was denied to the foreign-born child of a gestational and legal American mother, the parent should now submit a new application corroborated by probative evidence that they satisfy the substantive requirements of the new policy.

The nationality provisions of the INA were written long before the advent of ART. The State Department is to be heartily congratulated for bringing them into the 21st century. While a genetic footprint will still be necessary for children born out of wedlock to American fathers under INA 309, it will no longer be required for citizenship claims in all other cases arising under INA 301 which is silent on the need for genetic parentage. The willingness and ability to understand parentage in the legal and gestational sense, as well as in the genetic sense, is something for which advocates have long contended. It is precisely what a consistent line of Ninth Circuit case law, which did not deal with ART, has long exemplified. See Scales v. INS, 232 F.3d 1159 (2000); Solis-Espinoza v. Gonzales, 401 F. 3d 1090 (9th Cir. 2005) and, most recently, Gonzalez-Marquez v. Holder, http://cdn.ca9.uscourts.gov/datastore/memoranda/2014/01/03/12-71861.pdf. In these cases, so long as a child was not born out of wedlock, or if born out of wedlock was subsequently legitimated,  the child did not need to prove that he or she was the biological child of his USC mother in order to acquire citizenship.  The Department of State, by allowing the transmission of citizenship through a gestational mother, has advanced the concept of family unity which is the organizing principle at the heart of our immigration system:
Public policy supports recognition and maintenance of a family unit. The Immigration and Nationality Act (“INA”) was intended to keep families together. It should be construed in favor of family units and the acceptance of responsibility by family members. See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217 (9th Cir.1980) (discussing the “humane purpose” of the INA and noting that a “strict interpretation” of the Act, including an “arbitrary distinction” between legitimate and illegitimate children, would “detract from … the purpose of the Act which is to prevent continued separation of families.”); H.R.Rep. No. 85-1199, pt. 2 (1957), reprinted in 1957 U.S.C.C.A.N.2016, 2020 (observing that the “legislative history of the Immigration and Nationality Act clearly indicates that Congress intended to provide for a liberal treatment of children and was concerned with the problem of keeping families of United States citizens and immigrants united).
Solis-Espinoza, supra, at 1094.

For all of its manifest merits, however, this new policy does not go as far it we would like it to go. If there is no biological link, but the US citizen is still considered as the legal mother under local or foreign law, will the claim to citizenship be accepted?  It does not seem so, unless the mother was the genetic or gestational mother. It is certainly true that, if the mother is neither the genetic nor the gestational mother, but the sperm is that of the US citizen father, US citizenship can still be acquired under the out of wedlock provisions pursuant to INA 309. Yet, what if the father is a lawful permanent resident or perhaps a non-immigrant, while the mother is a US citizen who lacks a genetic or gestational relationship with the baby but nonetheless is the mother under the law of the country of birth? Under these slightly altered facts, there is no automatic transmission of citizenship. This should change.  The State Department is to be praised for recognizing that there need be no biological link but should a child be deprived of the priceless gift of citizenship simply because his or her US citizen mother is unable to bring them to birth due to a medical infirmity? Practically speaking, if the US citizen mother is able to carry the baby, but needs another female’s egg, there would be no reason to leave the USA and the child thus born in the US would be a birthright citizen. It is only when the US citizen mother cannot use her own egg or carry the baby to term that she needs to enter into an arrangement with a surrogate mother overseas. In such an instance, the citizenship of the child should not depend on the sperm donor father being an American citizen. As long as the law of the state or jurisdiction recognizes the US citizen mother as the child’s legal mother who is married to the father, that should be all that matters. Such a policy would be in accord with Scales and Solis-Espinoza.

None of this detracts from the wonderful step that the State Department has made. Let us recognize and rejoice in this advance while we hope for further progress down the road. This is a long journey but the ART update is a milestone along the march. Thanks to the Department of State, the law on citizenship transmission is now far more aligned with modern science and contemporary social mores. No longer is it required that both spouses in a marital union be genetically related to their child as a condition of bring a citizenship claim under INA 301. Legal children born in wedlock now will have the same ability to acquire citizenship at birth as anyone else notwithstanding the continued relevance of genetics. Parents legally bound to each other and to their child under local or foreign law can now apply for a US Passport secure in the knowledge that their baby will not be left stateless. Same sex marriages will now enjoy the presumption of legitimacy for the conferral of citizenship that they have never known.

Not bad.

Authors’ Note: This comment is dedicated to the shining memory of Carmen DiPlacido, author of the Child Citizenship Act. To those who knew the pleasure of his company, the warmth of his friendship, the depth of his wisdom and the strength of his intellect, this is precisely the kind of change that Carmen would have championed, one that reflects equity and inclusiveness. He lived these values and this policy embodies them.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan. A prior version of this article was published on blog.fosterquan.com on February 10, 2014).

Cora-Ann Pestaina

WHY WAS MY PERM SELECTED FOR AUDIT AND/OR SUPERVISED RECRUITMENT? #thatawfulmoment

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The filing of a labor certification is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. 

Foreign nationals (and their employers) often want to know why their PERM was selected for audit while PERMs filed on behalf of their colleagues were approved without audit. Many PERM practitioners are familiar with that awful moment when the PERM application for the foreign national who desperately needed a quick approval was issued a Notification of Supervised Recruitment signaling another year, or maybe even two!, on the scary PERM roller coaster. The mystery behind the PERM audit and supervised recruitment process has been no coincidence. The Department of Labor (DOL) has purposefully left employers in the dark about their selection process and frequently shifts their mechanisms all to protect against fraud. Solicitor of Labor Gregory F. Jacob once stated, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.”  

Nevertheless, through trial and error, certain triggers have been identifiable. We know that PERM applications can be selected for audit for reasons such as random selection; a foreign language requirement; a family relationship between the employer and the alien; an alien with ownership interest in the employer; layoffs in the same or related occupation; a combination of occupations; and more recently because the alien will telecommute; or the employer utilized an employee referral program. Some audits may also be chosen based upon the industry, the employer or the occupation. In recent times, the DOL has increased Supervised Recruitment for IT employers who will employ the foreign national in a roving or telecommuting position.

The DOL has now shed some much appreciated light on its audit and supervised recruitment selection mechanisms. On January 31, 2014, the DOL’s Office of Foreign Labor Certification (OFLC) published the following statement on its website (http://www.foreignlaborcert.doleta.gov/):

Section 212(a)(5)(A) of the Immigration and Nationality Act requires the Secretary to certify the admissibility of a foreign national for employment only when the Secretary can certify that the employment of that foreign worker will not adversely impact the wages and working conditions of US workers similarly employed, and that there is a job opportunity for which a US worker is unavailable. As the regulated community knows, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is responsible for maintaining the integrity and compliance of the primarily attestation-based PERM Program through the use of certain measures, including audit and supervised recruitment, under a broad integrity review authority. At the time of PERM’s implementation, the Department stated that OFLC would select certain applications for audit, employing “auditing techniques that can be adjusted as necessary to maintain program integrity”, as well as for quality control. 69 Fed. Reg. 77326, 77328 (Dec. 27, 2004). The Department noted at the time the need for changing audit criteria to focus integrity efforts on program abuse and adjust the audit mechanism as necessary as we gained program experience. 69 Fed. Reg. 77359. Finally, the Department reserved the process of supervised recruitment for a broad application “in any case in which the C[ertifying] O[fficer] deems it appropriate” as a reasonable quality control mechanism. 69 Fed. Reg. 77360, 77362. 

In response to a recent Freedom of Information Act (FOIA) request, we are releasing and making available to all of the regulated community the following documentation regarding the areas in the PERM Program that  have in the past warranted this closer examination. Click here to view the OFLC Audit Plan. These areas were deliberately chosen to ensure we are carrying out our statutory responsibilities while also recognizing the evolving nature of program integrity and quality control.

We hope the publication of this information assists filers, especially first-time filers, comply with the PERM Program’s various requirements.

The OFLC Audit Plan presents Audit and Supervised Recruitment Tiers which specify the types of cases that will be targeted for Audit Review and tagged for Supervised Recruitment. As the DOL has indicated, this plan is being released in response to a FOIA request. Past practice informs us that the DOL would certainly have preferred to continue keeping us in the dark. The plan is dated March 19, 2013 and there is no way to know whether these audit and Supervised Recruitment tiers remain active or whether new tiers have since been added. However, this information does reveal the DOL’s thinking with respect to audits and Supervised Recruitment and helps shed some light on the reasons why certain PERM applications are selected. According to the plan, there are eight (8) active tiers and (4) suspended tiers.  

The active audit tiers are as follows:

TIER ONE: PERMs will be audited if the primary requirement in Section H, Field 4 of the ETA Form 9089 is less than a Bachelor’s degree, e.g. “none”, “Associates” or “High School” AND the position is not classified under SOC Code 45-2093.00 – Farmworkers, Farm, Ranch, and Aquacultural Animals in Section F on the ETA Form 9089. 

TIER TWO: PERMs will be audited where the SOC Code in Section F, Field 2 on the ETA Form 9089 matches one or more of the trade related occupations contained in an attachment. 

The attachment was not published. However, this list would presumably include positions like Plumber, Electrician, Helpers-Carpenters or Helpers-Painters.  It is conceivable that these cases would be audited so that the employer can present its proof that an available US worker could not be found since it is typically easier to find U.S. workers in the trade occupations.

TIER FOUR:  PERMs will be audited where the employer is a public school listed on an attachment entitled PUBLIC SCHOOLS TO AUDIT. 

The attachment was not published.

TIER FIVE:  The DOL will audit 50% of PERMs where the offered position requires a degree but does not require any experience. This will be determined by the information presented in Section H, Field 4 and Section H, Field 6 of the ETA Form 9089. 

The logic behind this tier is confusing. It is possible for the employer to indicate a degree requirement in Section H.4; indicate “No” in Section H.6 and yet require experience for the offered position. Section H.6 asks “Is experience in the job offered required for the job?” Section H.10 asks “Is experience in an alternate occupation acceptable?” It is therefore possible for an employer to require no experience in the offered position but instead to require experience in an alternate occupation.  Employers commonly offer positions where experience in the job offered is not required but experience in a related position is required. For example, ABC, Inc. may require two years of experience as a Marketing Analyst for the offered position of Marketing Manager. Accordingly, the ABC, Inc. will indicate “NO” to the question in Section H.6 regarding whether experience in the job offered is required and then answer “YES” to the question in Section H.10 indicating that experience in an alternate occupation is acceptable. Also, in Section H.10-A, ABC, Inc. will indicate the number of months of experience required in the alternate occupation. This means that the experience listed in Section H.10-A is the primary experience requirement rather than an alternate requirement. In FAQs Round 10, the DOL, in the context of a question concerning the need to include the Kellogg language (language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc)) on the ETA Form 9089, confirmed that it is perfectly acceptable for an employer to require experience in an alternate occupation and not in the job offered.  But based on the information provided on the OFLC Audit Plan, there is a 50% chance that ABC, Inc.’s PERM application will trigger an audit for supposedly requiring a degree and no experience. 

Considering the additional processing time brought on by an audit (currently, in its audit queue, the DOL is only processing PERMs filed in October 2012!), the DOL ought to amend its review under this tier so as not to cause unfair processing delays for employers who actually do require a degree and experience for their offered positions. 

TIER TWELVE:  The DOL will audit 50% of cases where the employer has indicated on the ETA Form 9089 that they have had a layoff.  Specifically, if the employer has answered “YES” in Section I, Field 26 which asks “Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?”

The ETA Form 9089 goes on to ask, “If yes, were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?”

Layoffs have long been considered an audit trigger. With the economy continuing to flounder and many employers still reducing their workforce in order to remain competitive, the DOL will continue to more closely examine the employer’s good faith recruitment of U.S. workers. The PERM regulations at 20 C.F.R. § 656.17(k)(1) state: If there has been a layoff by the employer in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

The issue of layoffs is one that PERM practitioners ought to discuss with employers at the outset of the PERM process. If it has been determined that layoffs have indeed occurred (even just one) then the practitioner must go through the PERM regulatory analysis with the employer. 

The active Audit and Supervised Recruitment tiers are as follows:

TIER SEVEN:  A PERM may be tagged for audit and supervised recruitment if it was submitted after a denial within the same calendar year. Specifically, if the employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Denied _Cases table” AND  the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Denied _ Cases table.” 

This trigger is interesting because if a PERM is erroneously denied, the employer will usually have to decide whether to re-file the application or file a Request for Reconsideration with the Certifying Officer based on which process appears faster. Clearly, refiling may not always prove to be a faster route.  

TIER EIGHT: A PERM may be tagged for audit and supervised recruitment if it was re-submitted after it was withdrawn after audit. Specifically, if the Employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Withdrawn_Cases table” AND the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Withdrawn_ Cases table” AND the “Audit Notification Date” in the “Withdrawn_ Cases table” is not null.

Employers may not be saving themselves any time by withdrawing and re-submitting an audited PERM but in fact, may be delaying the processing of the application by a year or more if it gets selected for Supervised Recruitment.

TIER ELEVEN: A PERM may be tagged for audit and supervised recruitment if it was not filed electronically and had to be manually entered by staff at the Atlanta National Processing Center. 

No employer should knowingly venture down this road.
The OFLC Audit Plan also lists some inactive tiers which are currently suspended and therefore are not triggers for audits or supervised recruitment. These include:

TIER THREE: H-1B Dependent Employers.  

Hopefully this remains where it belongs as a non-trigger.

TIER SIX: Requiring a degree and indicating that the alien’s Class of Admission as H-2A, H-2B or EWI (Entered Without Inspection).

TIER NINE: Employers who recently issued layoffs. 

The DOL has apparently moved away from auditing every PERM indicating a layoff to now auditing only 50% of PERMs which indicate a layoff. 

TIER TEN: Employer with a history of roving. 

Practitioners who routinely file PERMs involving roving employees have definitely noticed that the DOL has calmed down its onslaught of audits and Supervised Recruitment Notifications on these types of PERMs. And it didn’t come a moment too soon.

This OFLC Audit Plan can be extremely helpful. Rather than waiting until the employer or foreign national demands an explanation as to why a PERM was selected for audit or Supervised Recruitment, the above list of active and inactive tiers allows practitioners to better advise employers thereby making the PERM process a tad less fraught with danger. Just a tad though.
Cyrus Mehta

GOP PRINCIPLES ON IMMIGRATION – A PATH TO LEGAL STATUS

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The Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states:

There will be no special path to citizenship for individuals who broke our nation’s laws that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the US, but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits). Criminal aliens, gang members, and sex offenders and those who do not meet the above requirements will not be eligible for this program. Finally, none of this can happen before specific enforcement triggers have been implemented to fulfill our promise to the American people that from here on, our immigration laws will indeed be enforced

Even if there is no special path to citizenship, the GOP document does not state that such legalized individuals cannot seek permanent residence and citizenship through normal channels within the existing, and most likely a reformed immigration system. While it would be really beneficial for the integration of the nation to have a special pathway to citizenship, like the Senate bill after individuals are put in a provisional status for 10 years and 3 more years as a permanent resident, such a proposal would still be welcomed by those who are out of status or have removal orders, with no other forms of relief to remain in the US. They will be able to live and work freely, and even potentially travel outside the US.  For those who presently lack such basic freedoms, who among them would not readily embrace their new life even if it is not all we or they would have hoped for?  If the existing immigration system is reformed to include more pathways to legal residence, then such individuals can still hope to become US citizens. Indeed, they could also potentially become citizens more quickly than the 13 year special path to citizenship under the Senate immigration bill.

Thus, as explained in our prior blog, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary. The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Many may have adult citizen children or spouses who can petition for their lawful permanent resident status.  Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long under the existing system. Then, there are also few avenues for obtaining a green card. If the GOP cannot provide a direct pathway to citizenship, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story.

Whether to have a special pathway is not the only sticking point. The GOP document adamantly refuses to go to conference on the Senate’s immigration bill. Still, the other goals in the GOP principles have much in common with the Senate bill. Border security and interior enforcement must come first, there must be a fully functioning entry-exit visa tracking system, and like the Senate bill, a firm insistence on abandoning the paper-based work eligibility verification system with an electronic version. Such common goals can potentially still result in a compromise between the Senate and the House, even if the GOP document presently states that it will not go into conference on the Senate bill.

Of course, the GOP appears to display a complete dislike for President Obama’s prosecutorial discretion policies – and there will also most likely be a legislative proposal stemming from it that would prevent the President from stopping immigration enforcement. On the other hand, prosecutorial discretion has always existed in law enforcement from time immemorial, and it will be impractical to prevent the Executive from exercising this prerogative. It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system for all these years, any administration, devoid of ideology, would have exercised discretion to remedy the imbalance. People on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 10 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it was wiser for this Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. This happened with the Deferred Action for Childhood Arrivals (DACA) program. The young individuals who have been able to legalize their status have gone onto completing college, getting jobs and benefiting the country.  The GOP document recognizes that it is time to allow children who were brought into country for no fault of their own, and who have no status, to obtain both legal residence and citizenship. DACA is a clear example of how bold administrative action by the Executive, based on prosecutorial discretion, can build consensus around a righteous principle that can ultimately be enacted into law. If the immigration system becomes more viable after reform, there will be less of a need for prosecutorial discretion. Still, there may be some cases that would deserve the exercise of discretion, and this should never be taken away from a President, whether Democratic or Republican, through legislation.

Finally, the GOP document recognizes the need to attract foreign nationals who pursue degrees in American colleges to remain in the US, so that they can use their expertise in US industries that will spur economic growth and create jobs for Americans. “When visas aren’t available, we end up exporting this labor and ingenuity to other countries,” the document states. No one can dispute this.   The GOP document, also takes into account the need for future flows of temporary workers to come into the US legally in order to sustain the needs of the agricultural industry, among others.

All advanced industrial economies throughout the world, including the United States, must confront the prospect of dealing with aging populations and the societal challenges that result. Demographers have a term for those societies where the birth rates have fallen so low that they do not keep up with those who have died:” demographic winter”. Some nations, such as Japan, Italy and Russia are at or will soon reach this state of “demographic winter”.  In the United States, the Census Bureau estimates that, as the massive baby boomer generation slouches towards retirement, the number of elderly people over age 65 could soar to 82 million by the year 2050. Immigration provide the magic elixir , the fountain of youth. Compounded by growing automation, America will have fewer workers to pay for more social benefits to sustain a hugely expanded senior citizen population.  If such demographic projections are correct, continued high levels of immigration will be necessary to provide a large enough workforce to sustain a rapidly aging citizenry. Absent a sudden and unexpected rise in the birth rate, there is no other answer.

It is time that both sides of the aisles compromise to forge immigration reform that would be beneficial to the United States. According to a new Pew Report,  America with a 28% growth rate is in good shape, compared to its economic rivals including China and Brazil, and we have immigrants to thank for this. America can only continue to rely on immigrants to boost its workforce, widen the tax base and support the social security net if it admits more immigrants through immigration sensible reform. The GOP document does provide some chance for this to happen in 2014.

There is a larger reason beyond the merits of the House GOP proposals why all sides should welcome this statement of principles as a step in the right direction.  It is vitally important for America to remain a healthy and functioning democracy that it have a political system where both major political parties accept the complexity of governing and confront the challenges of modernity. We tend to forget it now, and so do they, but the Republican Party was born in protest. The political expression of the Northern revulsion against the Dred Scott decision, the GOP embodied an aggressive nationalism that helped to usher America into the modern era. For some time now, there has been a civil war within the GOP over immigration between those who viewed immigrants as an asset to be maximized versus those who saw it as a problem to be controlled. There are historical antecedents for both camps. The pro-side can look back to Theodore Roosevelt, the first modern Republican president who was an outspoken advocate for the immigrant masses of the early 20th century while the nativist wing finds their ancestral justification in 1924 Immigration Act whose purpose and effect was to go back to the America of 1890 before the tsunami of Jewish and Catholic migration. Just as America needs true immigration reform, it needs both the Republican and Democratic Parties to be national in scope and outlook. What happened today is step in this direction. As the refugee Austrian actor Paul Heinreid (Victor Lazlo) tells Humphrey Bogart (Richard Blaine) in the immortal movie “Casablanca”: “Welcome back to the fight. This time I know that our side will win.”

Cyrus Mehta

The Decline of Deference: BALCA Does Not Speak for the DOL

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By Gary Endelman and Cyrus D. Mehta

In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter  stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC, 2013-PWD-00002 (BALCA 3, 2012) did not represent the legal position of the Secretary of Labor. The DOL had issued increased prevailing wage determinations to an employer after it changed its wage methodology through an Interim Final rule that took effect on April 24, 2013. The order to increase wages was issued after the DOL had already certified the labor certification for the H-2B workers at a lower wage.  BALCA in Island Holdings invalidated the wage increases on the ground that there was no specific statutory or regulatory authority that would authorize DOL to increase the wage rate at an unknown future date.

The DOL’s letter to the Third Circuit disregarding the BALCA ruling in Island Holdings would have enormous implications on labor certification practice and administrative law. We credit Wendel Hall of C.J. Lake, counsel in the Island Holdings case, for alerting us to the significance of this issue and also bringing it to the attention of DOL itself.  If BALCA does not speak for DOL, is it necessary to exhaust administrative remedies before challenging a PERM denial in federal court? If BALCA does not speak for DOL, should the courts pay Chevron style deference to BALCA decisions? Can DOL ignore other BALCA decisions on PERM since BALCA does not speak for Secretary of Labor?

The Supreme Court established a two-step analysis in Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) for evaluating whether an agency’s interpretation of a statute it is entrusted to administer is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further.  Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute.  A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.

Still, Chevron deference cannot be accorded unless there is an agency construction of a statute to which the federal court must defer. DOL has now told the 3rd Circuit that BALCA does not speak for the Secretary of Labor since the administrative law judges on BALCA are only subordinate DOL employees. Therefore, an interpretation by BALCA does not represent the official view or understanding of the DOL. For this reason, one may never reach the question of deference since there is no agency finding or interpretation capable of commanding it. In United States v. Mead, 533 U.S. 218 (9th Cir. 2001), the Supreme Court held that not all agency interpretations qualify for Chevron deference, and deference is only accorded “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”    Using the Mead language or rationale, one can conclude that, since DOL has now decided that BALCA does not speak for the DOL, Congress has not delegated any interpretive authority to BALCA. Hence, no deference can or should be paid to any BALCA ruling.  Such a ruling would appear not to be entitled to deference

Even under the lower  standard in Skidmore v. Swift & Co, 323 U.S. 134 (1944) the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.”  If DOL does not think that BALCA speaks for the Secretary of Labor, using theSkidmore criteria, how can BALCA ever have the power to persuade? Not having that, any BALCA decision would not be invested with any deference under Skidmore.

Finally, in Auer v. Robins, 519 US 452 (1977), the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations, there would be no deference to a BALCA decision since the DOL has now told the Third Circuit that an opinion by BALCA is not an interpretation by the DOL but only an expression of what individual subordinate DOL employees think.

Since DOL does not think BALCA speaks for the Secretary of Labor, is there a need to exhaust administrative remedies before challenging a PERM labor certification denial in federal court? Moreover, if no deference to a BALCA decision is justified or required, can there be a failure to exhaust? We doubt it. If DOL does not think that BALCA speaks for the agency, how can an appeal to BALCA be mandatory despite 20 CFR 656.24(d)(e)(3) that advises an employer a failure to appeal to BALCA within 30 days constitutes a failure to exhaust. How can going to BALCA be a mandatory administrative remedy when BALCA speaks only for itself and not the DOL?  There is a conflict between this regulation and the DOL view in the 3rd Circuit Louisiana Forestry case. This regulation is key since, for Administrative Procedure Act purposes, only if exhaustion is required by an agency regulation can recourse to the federal courts be barred. Darby v. Cisneros, 509 US 137, 144-54 (1993). 

The four criteria set forth in Darby v. Cisneros in order to bypass an administrative appeal, are as follows:

  • Federal review has been brought pursuant to the APA;
  • There is no statute that mandates an administrative appeal;
  • Either: a) there is no regulation that mandates an administrative appeal; or b) if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and
  • The adverse agency decision to be challenged is final for purposes of the APA.

BALCA cannot provide an administrative remedy to the parties concerned since its decisions do not represent the official view of the DOL. Rather than constituting “superior agency authority” to use the language of Section 10 (c ) of the APA, 5 USC 704, BALCA consists of a collection of subordinate DOL employees  in the view of the DOL itself. Since that is the case, BALCA “lacks the ability or competence to resolve the issue or grant the relief requested…” Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002).  

None of the various reasons most regularly advanced for the exhaustion doctrine apply here given the DOL repudiation of BALCA as the final expression of the DOL. The need to first appeal to BALCA does not promote administrative efficiency since it can be ignored by the DOL as the individual perspectives of subordinate employees. For the same reason, it will not avoid needless litigation or promote the conservation of judicial resources. When DOL agrees with BALCA, it accepts what BALCA says. When DOL disagrees, it can tell the court, as here, that BALCA does not speak for the DOL.  This is how and why the lack of deference is linked to the absence of any need to exhaust remedies.

Aggrieved employers and aliens may wish to directly seek review in federal court than seek review at BALCA after the DOL’s letter to the Third Circuit. Strategically, going directly into federal court may be advantageous if the plaintiff wished to challenge a regulation on constitutional grounds rather than waste time with BALCA, which may not have jurisdiction over such a challenge. Moreover, if the employer desires to file a new PERM application, and still seek review of the old denial, going to BALCA would preclude the filing of a new application until there was a final adverse decision. 20 CFR § 565.24(e)(6). The same prohibition does not apply if the aggrieved employer directly goes into federal court.

Finally, 20 CFR 656.26 does not require an alien to go to BALCA; indeed, the alien has no such right. In the labor certification context, the alien is not even informed of a right to appeal in contrast to the  notification of such right provided to an alien investor,  8 CFR 204.6(k), or fiancé(e) , 8 CFR 123.2 (k)(4). Then, under Darby, an alien ought to be able to get APA standing even if the employer does not seek review of the denial with BALCA, which in any event has been downgraded by the DOL.  The Sixth Circuit in Patel v. USCIS very recently held that an alien had standing to seek review of the denial of an I-140 petition as the alien’s interests are within the zone of interests protected by INA section 203(b)(3). See also Stenographer Machines v. Regional Administrator for Employment and Training, 577 F.2d 521 (7th Cir. 1978); Cf Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) (although alien has standing to sue on a denied labor certification, government’s motion to dismiss granted due to absence of employer’s participation in the litigation).  Given that the DOL has rendered BALCA irrelevant in its letter to the Third Circuit, aliens ought to be able to bolster their argument about seeking review of a denied PERM labor certification in federal court.

The DOL repudiation of BALCA as an authoritative voice calls into question the relevancy of BALCA itself. If BALCA does not speak for the DOL to a federal judge, how can it do so in any other context? Can BALCA represent the DOL in an administrative law sense only?  Is it possible for BALCA to be invested with a sense of finality only with respect to decisions on labor certification, both temporary and permanent, but to lose such imprimatur should the DOL go into court? To answer these questions, we would do well to cast our minds back to the reason that DOL created BALCA in the first place. At that time, the DOL’s administrative decisions were neither consistent nor uniform. So the DOL revised the regulations to create a Board of Alien Labor Certification Appeals (BALCA) in 1987 to replace the system of appeals to single administrative law judges within the DOL. The rule creating the BALCA said, “[T]he Board will enhance uniformity and consistency of decisions.” 52 Fed. Reg. 11218 (Apr. 8, 1987). A subsequent BALCA decision explained: “The purpose of the Board is to provide stare decisis for the immigration bar.” Matter of Artdesign Inc., 89–INA–99 (Dec. 5, 1989). Subsequently, however, these goals were not achieved, and the BALCA invented a device (the en banc decision) to resolve inconsistencies in BALCA decisions. The BALCA suffers from a strange defect: unlike the DHS and the BIA where regulations exist that make BIA decisions binding on all officers and employees of the Service and Immigration Judges, BALCA decisions cannot command unquestioning obedience from the federal agency it claims to represent. Yet, until today, both the regulators and the regulated assumed that BALCA spoke not merely or even primarily for the administrative law judges themselves but for the Department of Labor. Now, we are not so sure.

(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)

 

David Isaacson

USCIS LIBERALIZES CRITERIA FOR DETERMINING HABITUAL RESIDENCE IN SOME HAGUE CONVENTION ADOPTION CASES: A SMALL STEP, BUT AN IMPORTANT ONE

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By David A. Isaacson 

Under the Immigration and Nationality Act (“INA”), there are three ways that adopted children can qualify as the children of a U.S. citizen parent for purposes of acquiring lawful permanent resident status, and generally derivative U.S. citizen status, through that adoptive parent.  Section 101(b)(1)(E) of the INA, perhaps the most familiar, defines an adopted child as a child for immigration purposes where the child was adopted under the age of 16 (or under the age of 18 and is the sibling of a child adopted by the same parents while under the age of 16), and “has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.”  Sections 101(b)(1)(F) and 101(b)(1)(G) of the INA provide different procedures for children sometimes referred to as orphans, depending upon whether the child is from “a foreign state that is a party to the Convention on Protection of Children in Respect of Intercountry Adoptions, done at The Hague on May 29, 1993,” commonly referred to as the Hague Adoption Convention.  By regulation, according to 8 C.F.R. §204.2(d)(2)(vii)(D), the regular 101(b)(1)(E) procedures based on two years of legal custody and joint residence may not be used to file an I-130 petition for certain children from countries that have subscribed to the Hague Adoption Convention.  In an interim memorandum posted by USCIS on January 3, 2014 (although dated December 23, 2013) and designated PM 602-0095, however, USCIS has indicated that it will somewhat narrow the class of children ineligible for regular 101(b)(1)(E) procedures.

To understand PM 602-0095, it is important to understand the background of the problem that it addresses.  Pursuant to 8 C.F.R. §204.2(d)(2)(vii)(D), which governs I-130 petitions filed for an adopted child based on INA §101(b)(1)(E),

On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective date. In the case of any adoption occurring on or after the Convention effective date, a Form I-130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.

That is, for an adoption completed after the April 2008 effective date of the Hague Adoption Convention, USCIS will not approve an I-130 petition for “a child who was habitually resident in a Convention country” unless “the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.” A list of Convention countries is available on the State Department website.

The reader may wonder at this point why the unavailability of an I-130 petition under INA §101(b)(1)(E)would be a problem for a child from a Hague Adoption Convention country, if Hague Adoption Convention procedures under INA §101(b)(1)(G) can be used instead.  The answer is that the procedures under INA §101(b)(1)(G) are designed for cases in which the petitioner seeks out a child in a foreign country for the specific purposes of adoption and immigration, and are ill-fitted for many cases in which an adoptive relationship already exists before any thought of immigration benefits has entered anyone’s mind, or in which the child already resides in the United States.  For example, one factor ordinarily requiring the denial of a Form I-800 petition under the Hague procedures, according to 8 C.F.R. §204.301(b)(1), is that “the petitioner completed the adoption of the child, or acquired legal custody of the child for purposes of emigration and adoption, before the provisional approval of the Form I-800,” unless “a competent authority in the country of the child’s habitual residence voids, vacates, annuls, or terminates the adoption or grant of custody and then, after the provisional approval of the Form I-800 . . . permits a new grant of adoption or custody.”  Many adoptive parents are understandably horrified at the thought of giving up custody of an adopted child with whom they have had a parental relationship for some time, in order to allow the Hague Adoption Convention procedures to play out.  Also, unless the child was already related to the adoptive parent in one of several ways listed in the regulations at 8 C.F.R. §204.301(b)(2)(iii), any contact with the child’s biological parents before the Hague process begins can be grounds for denial of the I-800 petition under 8 C.F.R. §204.301(b).  Even if these pitfalls are avoided, Form I-800 cannot be approved for a child who is in the United States “unless the petitioner, after compliance with the [regulatory] requirements . . . either adopt(s) the child in the Convention country, or else, after having obtained custody of the child under the law of the Convention country for purposes of emigration and adoption, adopt(s) the child in the United States.”  8 C.F.R. 204.309(b)(4).  Thus, where there is a pre-existing adoptive relationship or other obstacles to the Hague Adoption Convention process would apply, U.S. citizen adoptive parents may be anxious to escape the bar of 8 C.F.R. §204.2(d)(2)(vii)(D) and obtain approval of an ordinary I-130 petition based on two years of legal custody and residence with the child under INA §101(b)(1)(E). 

The regulations make clear one way in which a U.S. citizen petitioner can escape from the bar of 8 C.F.R. §204.2(d)(2)(vii)(D), by demonstrating that the U.S. citizen petitioner is not habitually resident in the United States. According to 8 C.F.R. §204.2(d)(2)(vii)(E), “[f]or purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen . . . to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States.”  That is, so long as the two-year joint residence and physical custody requirements are fulfilled by the petitioner residing with the adopted child outside the United States, an ordinary I-130 petition may be approved under INA §101(b)(1)(E).  USCIS has also clarified, in a Memorandum dated October 31, 2008, and incorporated in relevant part into Chapter 21.4(d)(5)(F) of the USCIS Adjudicator’s Field Manual, that the 8 C.F.R. §204.2(d)(2)(vii)(E) exception is “not the only situation in which the adoptive parent may claim not to have been habitually resident in the United States at the time of the adoption.” Rather, “[t]here may be other situations in which the adoptive parent can establish th[at] he or she was not domiciled in the United States, and did not intend to bring the child to the United States as an immediate consequence of the adoption.”  In such other cases of a non-habitually-resident petitioner, as well, USCIS has recognized that “the Hague Adoption Convention process would not apply.”

Where the U.S. citizen petitioner is admittedly a habitual resident of the United States, but it appears that the adopted child may be a habitual resident of the United States as well (in which case the Hague Adoption Convention procedures again should not apply), things get more complicated.  At least part of the regulations err on the side of presuming that a child who has come to the United States from a Hague Adoption Convention country is still a habitual resident of that country, so that an I-130 petition for that child by a U.S. citizen parent habitually resident in the United States will not be allowed.  Title 8, section 204.2(d)(2)(vii)(F) of the Code of Federal Regulations provides:

For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a Form I-130 under section 101(b)(1)(E) of the Act on behalf of an alien child who is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the child’s arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child’s adoption may file a Form I-800A and Form I-800 under 8 CFR part 204 , subpart C.

Read in isolation, this might suggest that a child who resided in a Hague Adoption Convention country before coming to the United States could never be the beneficiary of an I-130 petition by a U.S. citizen adoptive parent habitually resident in the United States.  Another portion of the regulations, however, provides for a determination regarding the child’s habitual residence:

If the child’s actual residence is outside the country of the child’s citizenship, the child will be deemed habitually resident in that other country, rather than in the country of citizenship, if the Central Authority (or another competent authority of the country in which the child has his or her actual residence) has determined that the child’s status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody. This determination must be made by the Central Authority itself, or by another competent authority of the country of the child’s habitual residence, but may not be made by a nongovernmental individual or entity authorized by delegation to perform Central Authority functions. The child will not be considered to be habitually resident in any country to which the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.

8 C.F.R. §204.303(b).  The “Central Authority”, as the term is used here, refers to an entity designated under the Hague Adoption Convention by a Convention country to perform functions under the Convention, as explained in the definitional provisions at 8 C.F.R. §204.301.
             
In its October 31, 2008 Memorandum, USCIS recognized that under certain circumstances, a child resident in the United States should be exempt from the seeming bar of 8 C.F.R. §204.2(d)(2)(vii)(F) to approval of an I-130 petition under INA §101(b)(1)(E), where the Central Authority of the child’s country had determined that the child was no longer a habitual resident of that country.  As the October 31, 2008 Memorandum explained:

There may be situations, however, in which the parent is not able to complete a Hague Adoption Convention adoption, because the Central Authority of the child’s country has determined that, from its perspective, the Hague Adoption Convention no longer applies to the child. The purpose of 8 CFR 204.2(d)(2)(vii)(F) is to prevent the circumvention of the Hague Adoption Convention process. Thus, USCIS has determined that 8 CFR 204.2(d)(2)(vii)(F) must be read in light of the Hague Adoption Convention regulations in subpart C of 8 CFR part 204. If, under subpart C, there is a sufficient basis for saying that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country, then USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) no longer applies.

The governing regulation, 8 CFR 204.303(b), explains when the child is habitually resident in a country other than the country of citizenship. This regulation does not explicitly apply to children in the United States, but USCIS has determined that it can be interpreted to permit a finding that a child who, under 8 CFR 204.2(d)(2)(vii)(F), is presumed to be habitually resident in another Hague Adoption Convention country can be found to be no longer habitually resident [in] that country, but to be habitually resident, now, in the United States. USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) no longer precludes approval of a Form I-130 if the adoption order that is submitted with the Form I-130 expressly states that, the Central Authority of the other Hague Adoption Convention country has filed with the adoption court in the United States a written statement indicating that the Central Authority is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country. A copy of the written statement from the Central Authority must also be submitted with the Form I-130 and the adoption order.

If the adoption order shows that the Central Authority of the other Hague Adoption Convention country had determined that the child was no longer habitually resident in that other Hague Adoption Convention country, USCIS will accept that determination and, if all the other requirements of section 101(b)(1)(E) are met, the Form I-130 could be approved.

October 31, 2008 Memorandum at 5.  As USCIS explained later in PM 602-0095, summarizing prior guidance, a modified version of this process could also be used even if the adoption had already occurred: “In cases where the written statement from the Central Authority in the child’s [country of origin] is not obtained until after the adoption was finalized, petitioners would have to submit an amended order that contains the required language, as well as the written statement.” PM 602-0095 at 2.

This process for the recognition by USCIS of a determination by the Central Authority of the child’s country of citizenship that the child was no longer habitually resident there was based on the assumption that the Central Authority in the country where the child has been habitually resident (referred to by USCIS as the “Country of Origin,” or COO for short) would cooperate in issuing a determination.  Practitioners and USCIS subsequently discovered, however, that the Central Authorities of some of the Hague Adoption Convention countries in which children had been habitually resident  were not willing to cooperate with the process.  As USCIS explained:

The guidance did not completely resolve the problem it was intended to resolve. In some instances, the Central Authority in the COO either cannot or will not take a position concerning whether the child is still habitually resident in the COO. Thus, the adoptive parent(s) may be unable to establish either that the Hague Adoption Convention did not apply to the adoption, or that the adoption was completed in accordance with the Hague Adoption Convention process.

PM 602-0095 at 2-3.  It was “[i]n light of this development” that USCIS provided additional guidance in PM 602-0095, which has been incorporated into Chapter 21.4(d)(5)(G) of the Adjudicator’s Field Manual.

Under PM 602-0095, the previous policy regarding instances in which the Central Authority of the COO has given a determination of lack of habitual residence remains intact.

It remains USCIS policy that USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if the adoption order (or amended order) expressly states that the Central Authority in the COO advised the adopting court that the Central Authority was aware of the child’s presence in the United States, and of the proposed adoption and did not consider the child habitually resident in the COO. The written statement from the Central Authority must accompany the Form I-130 and the adoption order (or amended order).

PM 602-0095 at 3.  However, under certain circumstances, USCIS is now willing to proceed along these  same lines without an affirmative statement from the Central Authority of the COO:

In cases where the COO has a policy of not issuing statements of habitual residence, or where the petitioners show that they have attempted to obtain the statement of habitual residence from the COO for at least 6 months with no response, and the child was not paroled into the United States, USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if:

1.      At the time the child entered the United States, the purpose of the entry was for reasons other than adoption (intent criteria);
2.      Prior to the U.S. domestic adoption, the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States, (actual residence criteria); and
3.      Any adoption decree issued after February 3, 2014, confirms that the COO Central Authority was notified of the adoption proceeding in a manner satisfactory to the court and that the COO did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (notice criteria).

PM 602-0095 at 3.    

Pages 4 through 6 of PM 602-0095 list in detail the required evidence that should be provided in order to establish these criteria to the satisfaction of USCIS, and the other factors that USCIS may consider in regard to these criteria.  In regard to the first criterion, intent at time of entry, one particularly significant requirement is that of an “[a]ffidavit from the petitioning adoptive parent(s),” or “APs,” which USCIS indicates should include:
  • ·         Description of child’s circumstances prior to child’s entry to the United States (i.e., Where did the child live and/or go to school? Who cared for the child? What events led to the child’s travel to the United States? Reason for the child’s travel to the United States?).
  •  ·         List of individuals who have cared for the child since his or her entry into the United States and the relationship to the child.
  •  ·         Description of any contact the adoptive parents had with the child, or any contact with the child’s birth parents, or any adoption or child welfare agency or NGO (in the United States or abroad) related to the child that took place:
(a) before the child came to the United States; or,
(b) after the child’s arrival but before a court placed the child with the AP(s).
  • ·         Sworn statement from AP(s) stating under penalty of perjury that on the date of the child’s entry into the United States the AP(s) did not intend to adopt the child nor intend to circumvent the Hague Adoption Convention procedures.
PM 602-0095 at 4. 

Other “[e]vidence establishing the timeline and course of events that led to the child’s availability for adoption by the adoptive parents” is also important.  USCIS will consider a “court order containing findings related to the child’s purpose for entering the United States, if available”, as well as the results of checks of U.S. government systems regarding entry on a visa or by the Visa Waiver Program.  PM 602-0095 at 4.  “Evidence that the child was a ward of a U.S. State or State court prior to the adoption” will be considered, and “should establish that the child was a ward of a U.S. State or State court prior to the adoption.”  Id. at 4-5.  USCIS will also consider as favorable certain factors which would normally be of relevance in a Hague Adoption Convention process, specifically:
  •          Evidence of birth parent’s inability to provide proper care for the child.
  •          Evidence to establish one or both birth parents are deceased.
  • ·         Evidence to establish any living birth parents freely consented to the proposed adoption OR the birth parents’ parental rights were fully and properly terminated.
Id. at 5.  On the other hand, “[a]ny evidence that suggests that the entry was for the purpose of adoption” will be considered as an adverse favor, and “[a] prior adoption in the COO by AP(s) in United States is a heavily weighted adverse factor, but not a bar.”  Id.

With respect to the Actual Residence criterion, PM 602-0095 presumes that this criterion has been satisfied “if the child was physically present in the United States for two years or more prior to the adoption.” Id. at 5.  Otherwise, a variety of evidence will be considered:

Absent such presumption, adjudicators must consider the length of time that the child has spent in the United States prior to the adoption and supporting evidence establishing the child’s actual residence and compelling ties in the United States prior to the adoption.
O Depending on the child’s age, documentation from the time period prior to adoption
may include:

·         Evidence of continuous medical care in the United States;
·         Statement from petitioners explaining the child’s social interactions, including family and peer relationships;
·         School records;
·         Registration for extra-curricular activities;
·         Affidavits from knowledgeable individuals (such as the child’s doctor or teacher, day care provider, landlord, or neighbors) attesting to the child’s actual residence in the United States;
and/or
·         Evidence that the child’s birth parent, guardian, or caretaker resided in the United States.

Id. at 5.  “A Court order finding that the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States prior to the adoption” will be considered as well, as will “[e]vidence that the child was a ward of the state or court prior to the adoption.”  Id.  “Evidence that the child lived outside of the United States shortly before the adoption” will be counted as adverse evidence in the Actual Residence determination.

For the third, Notice criterion, what is required is, as one might expect, evidence that the COO Central Authority has been notified of the objection and has declined to object or has not responded for the required period.  The “Required Evidence” according to PM 602-0095 for this purpose is:

o Evidence of notice to the COO Central Authority of the pending adoption providing the Central Authority 120 days to object. Notification should include the following language:
·         If you do not intend to object, please notify the court.
·         If you require additional time beyond 120 days, please notify the court.
o Evidence of the COO’s non-objection must be incorporated into the language of the adoption order.

·         If AP(s) filed the Form I-130 with a court order that lacks the COO non-objection language, USCIS may RFE for an amended order. The petitioner(s) do not need to submit the actual statement from the COO, however USCIS may issue an RFE requesting it if necessary.


The new process set out in PM 602-0095 is a significant improvement on the former situation of adoptive parents potentially facing a bar to petition approval if the COO’s Central Authority chose not to get involved in the case, and for that USCIS should be commended.  However, it is not a complete solution, for several reasons.  The current version of PM 602-0095 excludes children whom it ought to have helped, and is unavailable to certain adoptive parents who have done nothing wrong and ought to be able to avail themselves of its protections.

One notable anomaly in PM 602-0095 is that it applies only where “the child was not paroled into the United States.”  The parole exception is presumably designed to avoid the scenario where prospective adoptive parents apply for humanitarian parole for a child with the concealed purpose of adopting that child.  If this is the thinking behind the exception, however, then it appears to be seriously overbroad.  Consider a scenario where a child may have entered on advance parole in connection with a parent’s application for adjustment of status, for example, years before being orphaned by the death of the primary-applicant parent or abandoned by that parent.  If that child, years after entry on advance parole, is adopted by a U.S. citizen, and if the Central Authority in that child’s country of origin will not cooperate with the determination of habitual residence, refusing to allow approval of an I-130 petition for that child serves no apparent policy purpose and appears pointlessly cruel. 

The requirement that “[a]t the time the child entered the United States, the purpose of the entry was for reasons other than adoption,” PM 602-0095at 3, also seems overbroad given the lack of an expressed time limitation.  Logically, intent to adopt a child at the time of the child’s entry into the United States should not be considered problematic if the child’s country of origin, or the United States, were not signatories to the Hague Convention at the time of the entry.  If a child entered the United States before April 1, 2008, for the purpose of adoption, but the adoption was finalized after that time (thus potentially subjecting the child and adoptive parents to the strictures of the Hague Adoption Convention), what purpose is served by denying an I-130 petition filed for such a child who has established compelling ties in the United States, and to whose adoption the COO Central Authority has not objected after being given notice?

The requirement of a sworn statement from the adoptive parent or parents “stating under penalty of perjury that on the date of the child’s entry into the United States [they] did not intend to adopt the child,” PM 602-0095 at 4, is also overbroad in another way beyond the underlying substantive criterion: it is in tension with the notion of dual intent which exists elsewhere in immigration law.  Earlier in PM 602-0095, as discussed above, the substantive criterion is said to be that “the purpose of the entry was for reasons other than adoption.” Id. at 3.  But just as the law recognizes that an H-1B temporary worker may have both a bona fide intent to enter temporarily as a nonimmigrant, and a latent intent to adjust status if possible later on, USCIS should recognize that adults may have the dual intent to provide shelter and temporary guardianship to, for example, an underage F-1 student, while simultaneously having the latent intent to adopt the child later if circumstances develop in such a way that this seems advisable.  (The author thanks Cyrus D. Mehta for inspiration regarding the relevance of the dual-intent notion to this context.)  To require adoptive parents to forswear previous adoptive intent, rather than stating under penalty of perjury that some other legitimate intent besides adoption existed on the date of the child’s entry into the United States, ignores the possibility of dual intent and is in that sense overbroad.

USCIS has offered PM 602-0095 as an interim memo for comment, with the comment period ending on January 17, 2014, and so there may be time to fix these problems.  The author of this blog post will likely submit a comment regarding PM 602-0095 in line with the above observations.  Readers who agree with these observations may wish to consider doing so as well.
Cyrus Mehta

Highlights of Good Moral Character in Naturalization

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By Myriam Jaidi

In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance.  See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § 316.10.  For the average person, GMC may not be an issue – the average person will have the requisite “character which measures up to the standards of average citizens of the community in which the applicant resides,” USCIS Policy Manual, Volume 12, Part F (hereinafter “PM”), Ch.1A, and will not be statutorily precluded from showing GMC.  GMC “does not mean moral excellence . . . .’”

Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991). GMC is “is incapable of exact definition,” Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961), and extremely complex.  Because the statute and regulations governing the meaning of GMC cover a broad range of conduct and acts, and because officers will be exercising discretion in making a determination, an advocate must carefully review GMC with a client to ensure any potential issues are analyzed and addressed. There are statutory and regulatory bars to GMC, as well as a catchall provision which allows an adjudicator to exercise discretion and find a lack of GMC where none of the other bars apply, and it is important to keep them all in mind.  Having an issue that could result in a negative determination of GMC can do more than prevent a person from obtaining U.S. citizenship – it can signal that the individual may be removable and may even be subject to mandatory detention if put in removal or if the person returns to the United States after traveling abroad.  USCIS officers must assess GMC on a “case-by-case” basis, 8 CFR § 316.10(a), examining an applicant’s conduct and acts during the relevant statutory period immediately preceding the application – 5 years as a general matter, INA 316(a)(1), 3 years for those who have been residing with their U.S. citizen spouse for that period, INA 319(a), and 1 year for those who have served honorably in the U.S. military, 8 CFR § 329.2(d).  However, officers are not limited to the statutory periods, and can go back in time as far as they believe necessary in assessing whether a person has experienced a “reform of character,” or if the officer believes that “the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.”  8 CFR § 316.10(a)(2).  An officer must consider “the totality of the circumstances and weigh all factors” when considering reformation of character in conjunction with GMC within the relevant period. PM Ch.2B.  The PM provides officers with the following list of factors to consider in assessing an applicant’s current moral character and reformation of character:  family ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (meeting financial obligations, paying taxes, etc.); community involvement; credibility of the applicant; compliance with probation; length of time in United States.  Id.  A GMC determination therefore involves a balancing test and advocates should make a strong showing of equities where any negative factors that do not constitute a bar to establishing GMC are present, to present a strong foundation upon which an adjudicator may be swayed to find in an applicant’s favor.

Absolute Bars to Showing GMC

An individual cannot show GMC if he or she has:

  • Been convicted of murder at any time (8 CFR § 316.10(b)(i));
  • Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time (INA § 101(f)(9));
  • Been convicted of an aggravated felony as defined in INA § 101(a)(43) on or after November 29, 1990 (INA § 101(f)(9), 8 CFR § 316.10(b)(ii)).

Note that an individual who was convicted of an aggravated felony before November 29, 1990 and does not otherwise fall into any of the permanent or conditional preclusions to showing good moral character can naturalize.  They face an uphill battle and must demonstrate that they have made exemplary efforts to redeem themselves, but it can be done, if not at the USCIS level, then in federal court.  For an excellent example of the showing that needs to be made, and how advocates can prepare not only an application but also their client for the application process, see Lawson v. USCIS, 795 F.Supp.2d 283 (SDNY 2011), discussed at length in a previous blog post.  Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, sitting by designation in district court, found that Lawson, a Vietnam War veteran honorably discharged from the Marines, had established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985. Judge Chin found Lawson had paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates” and continued his efforts at reform after he was released.  Cases like Lawson demonstrate that in preparing a naturalization application for a client with a criminal history or any other GMC issue, it is important to pull out all the stops and be creative about demonstrating all of the ways in which your client is an asset to the community. Make sure they are able to communicate the many ways in which they participate in and contribute to the various communities with which they may interact.

Conditional Bars for Acts in the Statutory Period

Beyond the absolute bars to establishing GMC, the statute and regulations provide a laundry list of what USCIS refers to as “conditional bars” to establishing GMC, found in INA § 101(f) and 8 CFR 316.10:

  • One or more crimes involving moral turpitude
  • Convicted of two or more offenses, aggregate sentence imposed five years or more
  • Controlled substance violation
  • Admitting to any of the above
  • Incarceration for aggregate of 180 days due to a conviction
  • False testimony
  • Prostitution or commercialized vice
  • Smuggling of a person
  • Polygamy
  • Gambling
  • Habitual drunkard

Here are highlights of some of the more complex conditional bars:

Crime Involving Moral Turpitude

Being convicted of a crime involving moral turpitude (CIMT) during the statutory period precludes a finding of GMC.  This excludes a conviction for a purely political offense as well as an offense that falls within the petty offense exception in INA § 212(a)(2)(ii)(II) (maximum penalty possible does not exceed one year and the person was sentenced to 6 months or less imprisonment) or the youthful offender exception in INA § 212(a)(2)(ii) (committed crime when under 18, crime committed (and person released from resulting confinement) more than 5 years before application for the benefit).  If the client is unclear on whether they have been convicted or what they may have been convicted of, make sure you obtain any and all records relevant to their brush with the criminal justice system.  You can have them request a copy of their file from their criminal defense attorney, obtain an FBI rap sheet, have them go to the court where their case was heard and request a record or court disposition.  Try to get as much documentation as possible and do not rely solely on the FBI rap sheet because it may be incomplete.  Like GMC, CIMT is not defined in the INA or implementing regulations and is incredibly complex.  Moral turpitude refers generally to conduct that “shocks the public conscience,” conduct that “is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995). Key to the determination of moral turpitude is “whether the act is accompanied by a vicious motive or a corrupt mind.” Id.  Each statute must be examined to determine whether it involves moral turpitude, but some common elements of CIMTs are fraud, theft (intent to permanently deprive the owner of property), crimes involving bodily harm to another with an intent to harm, and even some instances of harm resulting from criminally reckless conduct.  The CIMT concept has developed over time through a multitude of court decisions, and the steps one must take in analyzing whether a crime amounts to a CIMT continues to be fought out in the courts.  The determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue, and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law) or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things. Because the topic of CIMTs can fill many volumes, an in-depth analysis of how to identify a CIMT is beyond the scope of this blog post, and the reader is referred to resources such as Mary E. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (5th Ed. 2012)(an AILA publication), that deal in more depth with CIMTs and other issues relating to crimes and immigration.Keep in mind that in addition to precluding a finding of GMC, one CIMT within 5 years of admission where the crime is one for which a sentence of one year or more may be imposed makes a person deportable, see INA § 237(a)(2)(A)(i), as do two or more CIMTs at any time. See INA § 237(a)(2)(A)(ii).  An advocate also has to be aware of the impact of a criminal conviction on a lawful permanent resident who wants to travel outside the United States.  If a lawful permanent resident with one or more CIMTs on her record travels outside the United States, upon return she may be considered an applicant for admission under INA § 101(a)(13), and may be subject to mandatory detention under INA § 236(c).

False Testimony

Giving false testimony with the intent of obtaining an immigration benefit precludes a finding of GMC even if the information provided in the false testimony is not material. “Testimony” must be oral and must have been made under oath.  False statements in writing, such as false information provided in an application or fraudulent documents submitted with an application do not constitute “false testimony” for the purposes of this basis for denying GMC.  Note however, that failure to truthfully answer the questions on the Form N-400 when combined with the fact that an applicant is usually asked to reaffirm his or her answers under oath during the naturalization interview can constitute false testimony.  Providing a false written statements and/or fraudulent documents can result in a finding of a lack of GMC under the catchall provisions.  For example, an individual provides a forged document to the government in conjunction with application for naturalization. Although the document does not meet the requirements for “false testimony,” the fact of having submitted a forged document to the government could qualify as an “unlawful act” because it would be a violation of 18 USC 1503 and/or 18 USC 1519, among others. A similar outcome could result from the submission of a false affidavit or declaration made under penalty of perjury, which could qualify as an “unlawful act” as a violation of 18 USC 1623.  For an in-depth and engaging discussion of how statements, both written and oral, can result in the inability to show GMC, see Etape v. Napolitano, 664 F.Supp.2d 498 (D. MD 2009). Be aware that not all incidents of false testimony need be fatal to a finding of GMC. Where an individual gives false testimony under oath for reasons other than obtaining an immigration benefit, such statements may not undermine a showing of GMC. False statements or misrepresentations made because of “faulty memory, misinterpretation of a question, or innocent mistake,” United States v. Hovsepian, 422 F.3d 883, 887 (9th Cir. 2005), or as a result of “embarrassment, fear, or a desire for privacy,” Kungys v. United States, 485 U.S. 759 (1988), should not preclude a showing of GMC.  See also, Lawson, 795 F.Supp.2d at 294-295. False testimony raises another crucial issue for naturalization, separate from GMC. In a naturalization case, aside from showing GMC, an applicant must also demonstrate that he was lawfully admitted to the United States for permanent residence under INA 318.  Any fraud, misrepresentation, or material omission in the individual’s adjustment of status or immigrant visa process will not only prevent a person from naturalizing, it can also lead to recission of permanent residence under INA 246, if discovered within 5 years of admission, and to removal proceedings at any time. Even after naturalization, an individual can be subject to denaturalization and removal proceedings because of fraud, misrepresentation or material omission. Naturalization may be revoked pursuant to INA 340(a) where it was procured by concealment of a material fact or willful misrepresentation.

Prostitution

If a person has engaged in prostitution, procured or attempted to procure or to import prostitutes or receives the proceeds of prostitution, or was engaged in any other type of commercialized vice during the statutory period, he will be precluded from showing GMC.  This section does not require a conviction and applies even if the prostitution occurs in a jurisdiction where it is legal.  Prostitution is defined in the Department of State regulations as “promiscuous sexual intercourse for hire.”  22 CFR § 40.24(b).  However, one incident of prostitution does not constitute “engaging in” prostitution for the purpose of this bar to GMC.  See Matter of T, 6 I&N Dec. 474, 477 (BIA 1955).  Rather, to “ ‘engage in’ means to carry on over a period of time a type of conduct, a pattern of behavior, or form of activity in which sale of the body for carnal intercourse is an integral part . . . .”  Id. Similarly, in Matter of Gonazalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), the BIA agreed with the respondent in that case that “ ‘procure’ does not extend to an act of solicitation of a prostitute on one’s own behalf.”  The PM cites to and indicates its agreement with these two cases.  Keep in mind that prostitution is generally considered a CIMT, see Matter of W, 4 I&N Dec. 401 (Cen. Office 1951), but a single conviction for prostitution will most likey fall within the petty offense exception in INA § 212(a)(2)(A)(ii)(II), and thus will not trigger the CIMT bar to GMC. Obviously, if a client has a prostitution conviction, you should check to make sure the petty offense exception applies.  More than one conviction, however, will bring the person within the CIMT bar to GMC, if during the statutory period, and will also make the person deportable under INA § 237(a)(2)(ii), inadmissible under INA § 212(a)(2)(A)(i), and subject to mandatory detention under INA § 236(c).  Please note that whether simple prostitution is a CIMT is currently being contested before the Board of Immigration Appeals, and AILA has submitted an amicus brief arguing that “the BIA should hold that simple prostitution is not categorically a crime involving moral turpitude for the sex worker or client.”A victim of human trafficking who had T nonimmigrant status and adjusted to LPR status, would presumably not have to be concerned about the prostitution bar to showing GMC, because his or her involvement with prostitution would likely have been over for at least 8 years, given that in order to qualify for LPR, one has to have been in T status for 3 years, and then to qualify for naturalization, one must be in LPR status for at least 5 years. However, any arrests and/or convictions must be disclosed in the naturalization process, and extenuating circumstances and equities will need to be presented to convince an officer to exercise discretion in the applicant’s favor.

Habitual Drunkard

A person who is a “habitual drunkard” during the statutory period cannot show GMC. The PM directs officers to examine various documents that may reveal habitual drunkenness including “divorce decrees, employment records, an arrest records.” PM Ch.5J.  Other factors that officers may look to in determining whether someone is a habitual drunkard include “termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence.”  Id.  It is not clear how many convictions for or arrests for driving under the influence (DUI) would trigger a finding that someone is a habitual drunkard.  As a general matter, a single conviction for a simple DUI (or driving while intoxicated (DWI), without any aggravating factors, should not result in a negative determination regarding GMC.  See, e.g., Rangel v. Barrows, No. 07 Civ. 279(RAS), 2008 WL 4441974, at *3 (E.D.Tex. Sept. 25, 2008) (“[A] single DWI conviction is insufficient to preclude an applicant from establishing good moral character.”); Ragoonanan v. USCIS, No. 07 Civ. 3461(PAM), 2007 WL 4465208, at *4 (D.Minn. Dec. 18, 2007) (“[A] single DWI conviction, standing alone, does not statutorily bar a naturalization applicant from establishing good moral character when he has been candid about the conviction.”).  Even multiple DUI convictions have not resulted in a negative determination of GMC.  See, e.g., Yaqub v. Gonzales, No. 05 Civ. 170(TSH), 2006 WL 1582440, *5 (S.D.Ohio June 6, 2006) (holding that two DUI convictions do not preclude finding of good moral character, especially where applicant is “forthright”); Puciaty v. Dep’t of Justice, 125 F.Supp.2d 1035, 1039 (D.Haw.2000) (holding that two DUI arrests do not preclude finding of good moral character).  Moreover, simple DUI should not constitute a CIMT or a “crime of violence” aggravated felony. A single DUI conviction without aggravating factors, for example under a statute that does not include any elements relating to intent, such as an intent to harm, would not qualify as a CIMT, nor would multiple convictions for simple DUI. See e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (finding that multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude) (citing Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996)).  After the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), simple DUI convictions do not generally qualify as “crime of violence” aggravated felonies.  Of course, each statute must examined to ensure the analysis in Leocal applies; in that case the key was the absence of a mental state that would give rise to a finding of moral turpitude.   However, if a client does have even just one DUI conviction, you have to be prepared to support the argument that a single DUI should not preclude demonstration of GMC, especially in light of the number of cases that go to the BIA and federal courts on this issue and reports coming out of field offices.

Bars that apply absent “extenuating circumstances”

For the following three conditional bars, which include the catchall of “unlawful acts,” unless the applicant can show extenuating circumstances, he will be found to lack GMC if any of the below occurred during the statutory period.  Keep in mind that with regard to these conditional bars, the applicant is effectively entitled to, and in all circumstances should, show extenuating circumstances.  In general, extenuating circumstances must precede or be contemporaneous with the commission of the offense – equities that arise after the commission of the offense will not be viewed as “extenuating circumstances” by DHS.  See PM, Ch.2E.

  • Willful Failure to Support Dependents
  • Extramarital Affairs which tended to destroy a marriage
  • Unlawful Act

The “unlawful acts” bar provides a broad spectrum of issues.  A person is precluded from showing GMC if, during the statutory period and in the absence of extenuating circumstances, he has committed “unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec.316.10(b)(1) or (2).”  According to the PM, an “ ‘unlawful act’ includes any act that is against the law, illegal or against moral or ethical standards of the community.  The fact that an act is a crime makes any commission thereof an unlawful act.”  PM Ch.5E.  The PM goes over the examples of unlawful voting, false claim to U.S. citizenship for voting, and failure to pay taxes.  Here we review common issues including traffic tickets, domestic disputes, and pending cases. In 2006, USCIS confirmed through AILA liaison that a “single traffic ticket that does not result in a disqualifying arrest or conviction under the INA or a non-criminal moving violation, standing alone, will not be the sole basis for a denial of naturalization for lack of the requisite moral character.”  You should review traffic tickets with your client and if they have a series of tickets, ask them to explain, because if they have a large number of tickets, this may lead to a question of whether an adjudicator will see your client as failing to live up to community standards in having a repeated series of unlawful acts.  Some clients may come to you with a history of domestic disputes.  Be sure to analyze carefully any contact your client may have had with the criminal justice system or family court, relating to any domestic altercations.  Determine whether the client has had arrests, convictions, or protective orders relating to a domestic incident. Domestic violence can result in convictions that count as CIMTs and/or aggravated felonies, and can trigger deportability under INA 237(a)(2)(E).  Where a client has been arrested but no charges resulted from the arrest, the arrest must still be disclosed on the Form N-400, because failure to disclose an arrest can constitute false testimony in the context of a naturalization interview. The arrest itself will likely trigger an inquiry into the “unlawful act” that led to the arrest, thus the client must be prepared to explain briefly what happened with the arrest in a way that will not lead to an admission that meets the definition of a “conviction” pursuant to INA § 101(a)(48) (Matter of K-, 7 I&N Dec. 594 (BIA 1957) mandates the specific procedure that a government official must follow in order to elicit an admission that may qualify as a conviction).  If a client has a pending case, even for something minor like a disorderly conduct or a simple DUI with no aggravating factors, it would be best to wait for the case to be resolved before applying for naturalization, or try to get the case resolved before the interview.  (Of course, even minor charges require analysis of the statute at issue to ensure what might at first appear minor is something more complex.) If it is not possible to reach resolution before an interview, when facing a charge that you have determined does not trigger any issues, such as a simple DUI (and there are no other problematic cases in your client’s history), you should be prepared to argue that even if a conviction were to result, your client can still meet his or her burden of establishing good moral character, especially in light of the fact that “we do not require perfection in our new citizens.”  Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961).

Catchall Provision

Finally, even if an individual does not fall within one of the permanent or conditional bars to establishing GMC, INA § 101(f) provides that this does not “preclude a finding that for other reasons such person is or was not of good moral character.”  This is where an adjudicator can exercise discretion in assessing GMC.  As noted above, adjudicators are required to consider the totality of the circumstances and engage in a balancing of factors in making a determination of GMC.  Thus it is our job as advocates to present as complete a picture of a client as possible where GMC is likely to be an issue.  A careful exploration of a client’s past and present will yield much useful information that can be used to present extenuating circumstances, reformation of character, and to demonstrate that the client has GMC sufficient to merit a grant of citizenship.  Keep in mind that GMC issues overlap with other issues and that if you get a red flag while going over GMC issues, your client might have much more significant problems and face risks including removal and mandatory detention.  Analysis of GMC will help you determine whether the client should or should not risk applying for naturalization, and in managing a client’s expectation as to how much of a fight will be necessary to show GMC, and in what venues (USCIS, AAO, federal court) that fight might need to take place.