Cyrus Mehta

UNACCOMPANIED CHILD MIGRANTS TO THE UNITED STATES: DROP IN THE BUCKET AND SO MUCH HYPE

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The overreaction surrounding  57, 000 unaccompanied children who have come to the United States, with a population of 300 million, is not befitting of  a great nation of immigrants. Indeed, some of the reaction against these children has been nothing short of disgraceful. The waiving of the American flag against busloads of dazed and frightened children by residents of Murrieta in California did a great disservice to the ideals symbolized by this flag. The summoning of the Texas National Guard to the border against these children, unschooled in the complexities of immigration law,  is also unwarranted. Are they going to shoot at these kids?  It is further worth noting  that developing countries host 80% of the world’s displaced population, while most of the anti-refugee sentiment is heard loudest in industrialized countries.

To also characterize the flow of these children to our borders as illegal migration is a canard. People escaping harm in their countries are able to seek the protection of the United States through the asylum process under the rule of law.  As a signatory to the United Nations Refugee Convention, the United Nations Convention Against Torture and other international instruments, the United States cannot ignore expressions of fear of harm and turn these children and their families away. Section 208 of the Immigration and Nationality Act (INA), which Congress enacted in accordance with the obligations of the United States under the Refugee Convention, allows children fleeing harm to apply for asylum.   These children are not evading the border guards; rather they approach them and could hardly be charged under INA section 275 for an improper entry. Those who argue that these children have been brought here by smugglers and coyotes may have a point, but most people use all sorts of assistance while fleeing desperately persecution, and this should not bar them from seeking asylum under INA section 208. According to Commissioner Gil Kerlikowske, these mothers and children often run towards U.S. agents, turning themselves in and seeking detainment.

There is an incident in this nation’s history that is considered a grave blemish, which should never be repeated again.  In May 1939, the St. Louis set sail for Havana, Cuba carrying mostly Jewish refugees escaping the Third Reich in Nazi Germany. Most of them planned to immigrate to the United States as they were on the waiting list for admission, and had landing certificates permitting them entry into Cuba. When Cuba refused to honor the landing certificates, the ship sailed towards Florida and the captain appealed for help. The U.S. Coast Guard refused to allow the ship to dock in Florida and also prevented anyone from jumping  for freedom into the water. When the St. Louis turned back to Europe, Belgium, the Netherlands, England and France admitted the passengers. However, within months, the Germans invaded Western Europe,  and  hundreds of these passengers became victims to the Nazi’s “Final Solution.”

While it is difficult to compare any other event to the horror of the Holocaust,  a child who may be fleeing gang violence and certain death in San Pedro Sula,  Honduras, known as the murder capital of the world, should not be turned back by the United States. The poignant story of Alejandro, only 8 years old, making it all alone to the United States in search of his mother,  and also fleeing gang violence, should prompt us to find compassionate ways to find a solution rather than spit on these children. The Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) applies to all unaccompanied minors under the age of 18. It would be wrong for President Obama and the Congress to modify the TVRPA, and thus diminish the child’s ability to apply for asylum. Under the TVRPA, for unaccompanied minors coming from countries other than Mexico and Canada, the child must be turned to the Office of Refugee Resettlement (ORR) of the Department of Health and Human Services within 72 hours. ORR has more expertise than border agents to help children make their asylum claims in a humane setting.   If the government wishes to remove the child, the child must still be provided a full and fair removal hearing before an Immigration Judge under INA section 240 where he or she can assert all rights available under law, including asylum and related relief, the trafficking visa and special immigrant juvenile status. The TVRPA also incorporates a policy in favor of releasing the child or placing the child in the least restrictive and most humane detention setting as possible. While unaccompanied children from Mexico and Canada do not get the same initial protections, they too will be covered under TVRPA if the answer to any of the following three questions is “No”: 1) whether the child is unlikely to be a victim of trafficking; 2) whether the child has no fear of returning to his or her country of origin; and 3) whether the child has the ability to make to make an independent decision to withdraw his or her application for admission to the United States.

Although the protections in the TVRPA do not apply to children who are accompanied, they too along with their parents may apply for asylum after passing a credible fear test and even if they face expedited removal. Still, after the increased migration from the Central American countries, there are reports of claimants not being able to adequately express their fear of persecution at the Artesia detention facility in New Mexico. According to a press release of the American Immigration Lawyer Association,  “[w]omen are being asked to share intimate details about past persecution and violence right in front of their children because DHS has not created a safe and separate interview space,” said Karen Lucas, AILA Legislative Associate. Congress now wishes to lower the standards in the TVRPA, and if the HUMANE Act introduced by Sen. Cornyn and Rep. Cuellar got passed, vulnerable children will be forced back to the same dangerous conditions from which they recently fled without proper screening for ascertaining the harm or the sexual abuse they may have faced and will face. Furthermore, under the HUMANE Act, victims may be further traumatized when questioned by officers who lack training and sensitivity, especially with respect to sexual assault interviewing techniques. Clearly, the best interest of the child is paramount when addressing this humanitarian crisis, and asylum standards should not be compromised for the sake of political expediency. Lowering safeguards and sending back children under the specious ground that they would bring diseases to the United States is repulsive. Under such perverse reasoning, lice infested concentration camp survivors may never be able to seek asylum in another country.  Fear of opening the floodgates is also not a reason for sending back people fearing harm without hearing their claim. Each asylum case must be individually judged on its own merits under the applicable law.

Rather than diminish  the ability of minors to seek asylum, the United States must instead provide more funding for better access to courts and lawyers, where they can meaningfully make claims for asylum and other relief. As the Supreme Court famously stated in a case regarding the appointment of counsel in juvenile delinquency proceedings, “The child requires the guiding hand of counsel at every step of the proceeding against him.” In re Gault, 387 U.S. 1, 37 (1967) (quoting Powell v. State of Alabama, 287 U.S. 45, 69 (1932)). If after the child has meaningfully asserted all claims for relief, and been turned down after exhausting all appeal options, he or she may be removed from the United States in a humane manner. Alternatively, the child can also be the subject of prosecutorial discretion if he or she meets the criteria under the Morton June 2011 memo. All children deserve protection, and Congress should be focused on strengthening protections rather than weakening them through the oxymoronic HUMANE Act. The recent announcement by the United States to consider refugee claims of children in their own countries is salutary, but that should still not diminish their ability to seek asylum here.

The United States, as the world’s sole superpower and the lumbering giant in the backyard of countries of Central America, ought to step up and take more responsibility. It is no coincidence that the gang related violence in Central America, resulting in harm to the children fleeing,  stems from  the insatiable demand for illicit drugs in the United States.  Moreover, the love that bonds a parent to the child and vice verca pervades through all countries and cultures. With so many people living in the United States in an undocumented capacity and under a broken immigration system, many of these children, who are vulnerable to gang violence and poverty,  would be united with parents in a more legal and orderly process if we had immigration reform.  The recent calls from GOP leaders to abolish the Deferred Action for Childhood Arrivals (DACA) program is ill-conceived and will backfire against the party in future Presidential elections. DACA has nothing to do with the flood of unaccompanied child migrants to the United States.  What we need is sensible immigration reform, so that the undocumented leading productive lives in this country can legalize and have their children, vulnerable to gang violence,  join them in a legal manner. If Congress continues to obstruct immigration reform, President Obama should have the guts – and he has the authority to do so under the INA – to improve the immigration system through bold administrative fixes.  It is also equally, if more important, to preserve the asylum protections so that people, especially children,  fleeing harm are never turned away like those on the St. Louis.

Michelle S. Velasco

DACA RENEWALS AND THE UPHOLDING OF EXECUTIVE ACTION IN ARIZONA DREAM ACT COALITION V. BREWER

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August 15, 2014 marks the two-year anniversary of the implementation of Deferred Action for Childhood Arrivals (DACA) by the Department of Homeland Security (DHS).  The policy was announced through a memorandum by then Secretary of Homeland Security Janet Napolitano on June 15, 2012.  The Memo directed the heads of Customs and Border Protection (CBP), Citizenship and Immigration Services (CIS), and Immigration and Customs Enforcement (ICE) to implement DHS’s decision to grant deferred action, and employment authorization, to certain eligible individuals who entered the U.S. when they were younger than 16 years old.  Now, nearly two years have passed since DHS began accepting applications for the program on August 15, 2012.  DACA recipients who were among the first to apply and receive DACA and employment authorization must now undergo the process of renewing their DACA.

ICE and USCIS released their renewal processes in February and early June, respectively.  ICE had begun issuing DACA to eligible immigrants in removal proceedings prior to August 15, 2012, when USCIS began accepting applications.  To be eligible for DACA renewal, the recipient must (1) not have departed from the U.S. on or after August 15, 2012 without advance parole; (2) have continuously resided in the U.S. since the first DACA approval; and (3) not have been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and does not otherwise pose a threat to national safety or public safety.

The renewal process for ICE-granted and USCIS-granted DACA recipients is the same:

Complete and submit the following forms:

    • The new version of Form I-821D (6/4/2014 edition)
    • Form I-765
    • Form I-765 Worksheet
  • Submit the $465 fee for the employment authorization application
  • Submit only new documents involving removal proceedings or criminal history that was not previously provided to USCIS (Note: USCIS does not require previously submitted documentation establishing the applicant’s DACA eligibility)

USCIS has advised DACA recipients to renew approximately 120 days (4 months), but no more than 150 days (5 months), before their current DACA grant expires.  USCIS also anticipates that in the event it cannot process the submitted applications before the initial DACA expires, it might issue extensions of the initial DACA to prevent any lapse in time before the renewal is approved.

Since its implementation, DACA has been granted to over 550,000 recipients, according to USCIS statistics released on March 2014.  DACA has provided more than half a million young immigrants security from removal and a means to work lawfully in the U.S. The DACA recipients, sometimes also called Dreamers, can now live openly, work, and contribute to their own and their families’ wellbeing.  The economic and social repercussions of this have not yet been fully studied or revealed, though the American Immigration Council recently published a studyof the economic impact of DACA on the recipients.  The study found that through DACA, many young immigrants have benefitted economically through such activities as obtaining new jobs, getting driver’s licenses, and opening bank accounts.  We can also imagine what has been the psychological impact on these young immigrants of coming out of hiding and being able to be productive members of American society and the American workforce.  They have experienced the excitement of receiving an approval notice and the much sought after work permit, then a valid Social Security Number and card, and then oftentimes a State Identification Document in the form of an ID or driver’s license.

Though it has undoubtedly bettered the lives of half a million recipients, DACA has been a double-edged sword.  While it provides recipients protection from removal from the U.S. and allows them to work legally, DACA is still far less than what these young immigrants would have received from the government had the DREAM Act or Comprehensive Immigration Reform (CIR) passed in Congress.  The DREAM Act would have granted a way for eligible young immigrants to apply for permanent residence, and therefore, lawful status.  S.744, the CIR bill passed by the U.S. Senate on June 27, 2013, and that has since stalled in the House of Representatives, included stipulations for the implementation of the DREAM Act’s provisions.  In contrast, DACA is only granted for two years, and DACA recipients must renew before the expiration of their deferred action and work permits.  Moreover, DACA recipients do not have lawful status in the U.S. (although they do not accrue unlawful presence upon the grant of DACA since they are still authorized to remain), and there is no direct pathway to permanent residency or U.S. citizenship.

One limitation that some DACA recipients face is getting a driver’s license.  Until recently, two states, Arizona and Nebraska, refused to grant driver’s licenses to DACA recipients.  The Ninth Circuit, on July 7, 2014, struck down Arizona’s law that denied driver’s licenses to DACA recipients.  Arizona Dream Act Coalition v. Brewer, No. 13-16248, WL 3029759 (9th Cir. July 7, 2014).  This much-maligned law (see Cyrus Mehta’s take down of it here) was put in place as soon as DACA was first announced in the summer of 2012.  Governor Jan Brewer issued Executive Order 2012-06 “Re-Affirming Intent of Arizona Law In Response to the Federal Government’s Deferred Action Program,” August 15, 2012, directing Arizona state agencies to design rules to prevent DACA recipients from becoming eligible to obtain state identification such as driver’s licenses.  Arizona’s Department of Transportation’s Motor Vehicle Decision changed its requirements for state identification eligibility such that Employment Authorization Documents (EADs or work permits) with the DACA category code of (c)(33) would not be accepted as proof that the license or ID applicant’s presence was authorized in the U.S.  Five DACA recipients living in Arizona, along with the Arizona Dream Act Coalition, filed suit to stop Arizona from enforcing its policy.  The Ninth Circuit found that the law violated the Equal Protection Clause and there was no rational basis for the Arizona government’s policy.  The decision hinged on Arizona’s refusal to accept as proof of “authorized presence” in the U.S. an EAD based on DACA category (c)(33) work while they continued to accept EADs based on (c)(9) and (c)(10) categories, which respectively correspond to applicants for adjustment of status and applicants for cancellation of removal.  The Ninth Circuit systematically rejected each of Arizona’s arguments that it had a legitimate state interest in upholding the policy. Initially the Court rejected Arizona’s argument that (c)(9) and (c)(10) noncitizens could demonstrate authorized presence in the U.S. while (c)(33) could not.  Putting aside the nonsensical use of the term “authorized presence” which holds no actual meaning in immigration law, Arizona conflates the immigration concepts of unlawful presence and unlawful status – two very different things.  Unlawful presence is used in determining admissibility under the 3- and 10-year bars, while a noncitizen not in lawful status may be authorized to stay in the U.S.  The Court’s clearly did not make that mistake: “Employment Authorization Documents merely “tied” to the potentialfor relief [i.e. (c)(9) and (c)(10) categories] do not indicate that the document holder has current federally authorized presence, as Arizona law expressly requires.”  Arizona Dream Act Coalition, at *9.  Moreover, the Court found that Arizona’s other four arguments also could not hold up against a rational basis test. Arizona could not show it might have to issue licenses to 80,000 unauthorized immigrants (less than 15,000 Arizona residents have applied for DACA). DACA recipients cannot access state or federal benefits using a driver’s license alone.  Though the DACA program might be canceled at any time and DACAs could lose their authorized stay, the same could occur to (c)(9) and (c)(10) noncitizens whose corresponding applications are denied.  Therefore, these arguments also do not pass the rational basis test.  The Court went on and mentioned that additionally, Arizona’s policy “appears intended to express animus toward DACA recipients themselves, in part because of the federal government’s policy toward them.”  Id. at *25.  The court pointedly stated: “Such animus, however, is not a legitimate state interest.”  Id.

Interestingly, the Court struck down the law on equal protection grounds rather than conflict-preemption.  Generally, courts use preemption analysis to strike down a conflicting state law acting to regulate immigration.  In a concurrence, Circuit Court Judge Christen analyzed the case’s conflict-preemption argument and found that Arizona’s policy effectively created a new class of noncitizens who are not under “authorized presence” – a descriptor not recognized in immigration law.  The act of creating a new immigration classification, in Judge Christen’s view, is preempted by federal law because states may not directly regulate immigration.  Id. at *13, citing Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023 (9th Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014).  Moreover, in footnote 3, the Court notes that Judges Pregerson and Berzon agree with the concurring opinion, and specifically that the plaintiffs in the case could succeed on a conflict preemption argument.

Here, however, the Court’s majority analyzed Arizona’s law from an equal protection perspective, which gives it lasting and powerful impact.  By going this route, the 9th Circuit recognized DACA recipients to be part of a protected class.  This can have huge implications for any other state laws that purport to discriminate against this now recognized protected class of noncitizens.  Moreover, the Court, in footnote 4, acknowledged that the Supreme Court in other cases applied strict scrutiny standard of review when state action discriminates against noncitizens authorized to be present in the U.S., see e.g. Graham v. Richardson, 403 U.S. 365 (1971).  But here, the Court states it did not have to analyze under strict scrutiny review because Arizona could not even make its case under the lower rational basis test.  In its analysis the Court found it could “identify no legitimate state interest that is rationally related to Defendant’s decision to treat DACA recipients disparately from noncitizens holding (c)(9) and (c)(10) Employment Authorization Documents”  Arizona Dream Act Coalition at *8. (emphasis added).  It is also worthwhile to note that, unlike the Arizona district court which also held that the Arizona government’s arguments failed a rational basis review, the 9th Circuit found that the protected class, here the DACA recipients, would likely suffer irreparable harm in the absence of a preliminary injunction.  The irreparable harm was the limiting of the DACA recipients’ professional opportunities, hurting their abilities to seek or maintain a job in a state where 87 percent of its workers commute by car.

The decision lays bare the type of backlash that occurred after the Obama administration introduced DACA.  Conservative pundits and anti-immigration groups believe that these young people should receive no acknowledgement or benefits from a country to which they do not belong.  This type of thinking is not only wrong, but it fuels hatred toward a group that, for all intents and purposes, took no part in the decision to enter the U.S. without inspection or to overstay visas.  The point of the DACA policy is to respond to the cries from millions of young immigrants brought into the U.S. as children, who have grown up in the U.S., but who are forced to stay in hiding.  They are punished for someone else’s sins.

I have personally processed over 100 DACA applications in the past two years.  When talking to these young immigrants and their families, it is often impossible to tell apart the individuals who were born here and the ones who were brought here.  DACA requestors speak like Americans, look like Americans, and dream the American dream like native-born Americans.  It is hard to put into words the unfairness of their lives: to live in a country that is oftentimes the only one they have known, and yet to be denied full recognition and basic equal treatment.  Worse, they are called “illegal” and are made to feel unwanted and unwelcome.  This treatment is confusing and painful to many of these young people who had no choice about coming to the U.S.  Yet they are undoubtedly the future of this country.  They will help shape the U.S. cultural, economic, and political landscape.  And we are not doing enough to acknowledge their presence, since they are here to stay, and provide them with the tools to be full active members of American society.

The Obama administration has implemented regulations and executive policies to alleviate some of the pain from long-standing immigration problems that Congress has time and again failed to address.  DACA, for instance, was the Executive’s response to Congress’s failure to pass the DREAM Act in 2010.  Recently President Obama spoke out angrily against Congress’s ability to compromise on immigration reform, calling it the reason behind his decision to direct more resources to address the ongoing crisis of unaccompanied children.  As has been pointed out on this blog, Obama can expand the use of Executive action to confront problems in immigration law while we wait for Congress pass CIR.  The Obama administration can do more than just grant deferred action to young immigrants.  DHS could grant deferred action to DACA parents.  The Department of Education could grant federal student loans to DACA recipients.  Paradoxically, the Obama administration has specifically rendered DACA recipients ineligible for healthcare benefits under the Affordable Care Act even though prior to the August 2013 rule, DACA recipients would have been eligible.  There are myriad ways Executive action, such as DACA, can provide relief to millions of immigrants who live and work beside us every day.  Until such time that Congress takes action, the Executive will have to be the branch taking action, and immigrants must be content with its limitations.

Because the basis of a deferred action grant is DHS’s policy of prosecutorial discretion, it remains only in the form of executive action and it is not an actual law passed by Congress and signed by the President.  DACA and any other executive action are thus vulnerable to attacks from groups and individuals who consider them an overreach by the Obama administration. These attacks, such as Arizona’s driver’s license law, are often informed by fear and a fundamental misunderstanding of immigration law.  Litigation to strike down these anti-immigrant and anti-immigration state laws, which are arguably preempted by federal law, can sometimes take years.  Moreover, executive action while necessary in the face of Congressional inaction is limited in scope: it cannot grant visas or permanent residence, which only Congress can do by expanding the eligibility categories for permanent residence.  Meanwhile, immigrants languish in backlogged visa lines, wait months and years for hearings before an immigration judge, face harsh vitriol from anti-immigration groups, and DACA recipients still do not have a way to become fully integrated into American life.

Cora-Ann Pestaina

LISTING THE FOREIGN NATIONAL’S QUALIFICATIONS ON THE PERM FORM

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One of the most surprising lessons to learn for practitioners who regularly file PERM labor certifications is that past certifications do not always mean future certifications. In other words, just because 10 PERM labor certifications prepared in the same way have all been certified without issue does not mean that the 11th one will also be certified. That is the nature of PERM. The Department of Labor (DOL) is notorious for suddenly coming up with new and previously unheard of reasons for denial.

Most recently, there have been reports of a slew of PERM denials, primarily for physician and teaching occupations, on the basis that Section H.14 of the ETA Form 9089 indicates that a medical or other license is required, but Section K does not list that the PERM beneficiary holds a license. What makes these denials even more baffling is that in many of these cases, the foreign national’s work experience practicing medicine or teaching in the US was listed in Section K thereby providing proof that the foreign national was indeed licensed.  Moreover, the ETA Form 9089 does not provide any specific section in which to list licenses. Most disturbing is the fact that the DOL did not previously deny any PERM applications for failing to list a license on the form. But that did not stop the denials from coming.  The American Immigration Lawyers Association (AILA) recommends that denials of a PERM labor certification solely because of not listing a license should be reported to the AILA-DOL liaison committee. A motion for reconsideration should be filed at the same time.

The DOL has promised to issue an FAQ (Frequently Asked Questions) on this issue. But since the ETA Form 9089 will remain unchanged, it is anticipated that the FAQ will advise practitioners to list the foreign national’s qualifications in Section K.9. AILA raised the issue of the denials in a DOL Stakeholders Meeting on December 12, 2013 (AILA Doc. No. 14011449). In sum, the DOL responded with:

In general, if an employer states that a specific position requires a license, the employer should indicate that the beneficiary has the license. The appropriate place to list the license is under K.9 so that the analyst can compare the requirements and the beneficiary’s qualifications. OFLC will issue an FAQ to spell this out more clearly. When stakeholders asked OFLC to consider in the future, issuing an FAQ in advance of the change in practice, OFLC agreed to take this into consideration if there is a decision to make a policy change. OFLC is continuing to examine how to address cases already denied on the basis that Section K did not list the license or certification. Employers with denials on this basis may wish to file a Request for Reconsideration of the denied case to at a minimum preserve the issue until OFLC develops further guidance.

At the recent AILA National Immigration Conference in Boston on June 18-21, 2014, representatives of the DOL indicated that the instructions in Section K.9 of the ETA Form 9089 already instruct practitioners to list “job duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc.” Accordingly, the DOL expects practitioners to list all the experience and qualifications gained with a particular job under the particular job experience listed on the ETA Form 9089. At the AILA national conference, it was also suggested that Section K of the ETA Form 9089 can be completed to only indicate the foreign national’s license or other special qualification earned during a specific time period when he was not also earning work experience and the ETA Form 9089 will not be denied for failure to list an employer’s name and other details. Other qualifications that need to be included in Section K.9 of the ETA Form 9089 include (See AILA InfoNet Doc. No. 14041655. (Posted 04/16/14):

 

  • Licensure, or eligibility for license, e.g., Medical License, Teacher Certification, Professional Engineer (PE).
  • Knowledge or coursework acquired in a course of study.
  • Professional certificates or diplomas, e.g., Microsoft certification, Health and Safety Certificate, CPR Certificate, Engineer-in-Training Certificate.
  • Board Certification, or Certification Eligible, e.g., Board Certification in Internal Medicine, Board Certification in Immigration Law.
  • Second degree, if required by employer, e.g., Bachelor’s in Civil Engineering, in addition to a Ph.D.
  • Degree or other credential required at H.4, “education: minimum level required,” does not match the foreign national’s credential at J.11, “highest level achieved relevant to the requested occupation” [e.g., H.4 requires a BS in Chemical Engineering; J.11 indicates foreign national has a (relevant) Ph.D. in Process Engineering, but foreign national also has a BS in Chemical Engineering that cannot be entered anywhere in Section J or K].

The issue of making every attempt to set forth the foreign national’s qualifications on the ETA Form 9089 in a manner that ensures the Certifying Officer’s (CO) comprehension was also highlighted in the Board of Alien Labor Certifications (BALCA) case, Matter of The Clariden School, 2011-PER-02857 (January 30, 2014). In that case, the primary job requirements for the position of “AMI Montessori Elementary Teacher” as listed on the ETA Form 9089 included a Bachelor’s degree in any discipline and AMI (Montessori) Certification. The Employer indicated in Section H.7 of the ETA Form 9089 that an alternative field of study was acceptable; specifically a Bachelor’s in Education plus AMI Certification. In Section H-8 the Employer also indicated that it would accept the alternative combination of a Master’s degree, and one year of experience. In Section H-14, the Employer noted that AMI Certification is required.

In Section J.11 of the ETA Form 9089 which requires the Employer to list the highest level of education achieved relevant to the occupation, the Employer checked “Other” from a list of options that included “None,” “High School,” “Associate’s,” “Bachelor’s,” “Master’s,” “Doctorate,” and “Other.” The Employer specified in Section J.11-A that the “Other” classification was AMI Certification. The Employer reported that the Alien obtained the AMI Certification in 2006 at the Montessori Institute of Milwaukee. The CO denied certification under 20 C.F.R. § 656.17(i)(1) on the ground that the application did not indicate that the foreign national met either the primary or the alternative educational requirements of a Bachelor’s degree in any discipline or a Master’s degree in any discipline.

In its request for reconsideration/review, the Employer argued that it answered Section J.11 accurately because AMI Certification was the highest education level achieved by the foreign national and that such a certification is a level of education higher than Bachelor’s but lower than a Master’s or a Doctorate. The Employer pointed out that the motion for reconsideration was its first opportunity to explain and clarify its answer on the ETA Form 9089, Section J, and that it was supplying supporting documentation which included a document from the Montessori Training Center of Minnesota stating that one of the admission requirements for its AMI Montessori Diploma program is that the applicant holds a Bachelor’s degree.

The CO refused to bend and affirmed the denial arguing that the employer’s representation on the ETA Form 9089 that Other – AMI Certification is the highest education level achieved by the foreign national did not enable the DOL to verify from the face of the application that the foreign worker earned a Bachelor’s degree which is the minimum education level required. The CO then went on to present the novel argument that “there is sufficient free form space on the ETA Form 9089” for the employer to disclose, for example, that the foreign national possessed a Bachelor’s degree (or its equivalent) in addition to AMI Certification.

BALCA thankfully saw reason and held that while the initial denial could be understood since it is hardly intuitive that AMI Certification is a higher level of education than a Bachelor’s degree, the CO’s insistence that the Employer disclose the foreign national’s holding of a Bachelor’s or Master’s degree be disclosed on the ETA Form 9089, even in the face of documentation on a motion for reconsideration showing that a Bachelor’s degree is a prerequisite for the foreign national’s admission to the Minnesota Montessori Training Facility for its AMI certification program, was unreasonable and unsupported by the regulations. BALCA was not persuaded by the CO’s claim that the ETA Form 9089 had adequate free form text fields finding, as any reasonable person would, that the form actually does not have any obvious free form space for clarifying why a person would necessarily have at least a Bachelor’s degree to have obtained an AMI certification.

Matter of Clariden and the recent PERM denials highlight the fact that practitioners need to find some way to list all of the foreign national’s credentials somewhere on the ETA Form 9089. While we await the DOL’s forthcoming FAQ, it is important to make every attempt to alert the CO that the foreign national possesses the qualification required for the offered position. If the offered position requires experience in specific technologies then these technologies need to be listed somewhere in the job descriptions of the foreign national’s past experience. If the offered position requires any license, certification, knowledge or anything other than work experience, it needs to be listed in Section K. This information can be listed in Section K.9 between asterisks or in capital letters or in any manner at the bottom of any job description for the foreign national’s past experience or it can be listed on its own in Section K.9.

The moral of the story is basically that anything which could remotely be unclear to the CO should be explained somewhere on the ETA Form 9089, notwithstanding the space limitations. But with regard to the recent Section K denials, the hope is that once the FAQ has been published the DOL will apply its requirement prospectively rather than to already pending cases. In such matters, the DOL really ought to hold itself accountable for setting a precedent for how the ETA Form 9089 should be completed merely by its certification of all prior cases.

Cyrus Mehta

TWO ACES UP PRESIDENT OBAMA’S SLEEVE TO ACHIEVE IMMIGRATION REFORM WITHOUT CONGRESS – NOT COUNTING FAMILY MEMBERS AND PAROLE IN PLACE

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Nothing more poignantly describes the current humanitarian crisis at the Southwest border than a recent New York Times article describing the journey of Alejandro, 8, who came to the United States on his own with only his birth certificate looking for his parents who are somewhere in San Antonio or an aunt in Maryland. The story of an adorable, courageous and resourceful 8 year old braving a dangerous journey in search of his parents will pull at the heartstrings of any parent. 

There may be many reasons for this crisis and what may draw unaccompanied young children to the United States, but one reason for this is our broken immigration system. This system does not allow people accessible pathways to come to the United States legally or gain legal status.  Even those who are here as permanent residents or naturalized citizens have to wait years before their loved ones can join them due to the backlogs in our family and employment-based immigration preferences.  Until recently there was some hope that the House would pass its own version of immigration reform after the Senate passed S. 744 last year. Those hopes have now been dashed. 

The impetus to preserve family unity is pervasive and exists across all cultures, and so is the deep love that parents have for their children and that children have for their parents. Many of the children fleeing violence in Central American countries are trying to unite with parents living in the United States. However, the broken immigration system does not allow families to unite through legal means Instead of beefing up the border with more enforcement; President Obama can bring some balance to the immigration system through bold administrative measures that will promote family unification in a legal and orderly manner. While there are several proposals on the table, one that resonates is to not count derivative family members in the employment and family preferences. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression, resulting in family members waiting endlessly, will quickly become a thing of the past. 

Not Counting Family Members 

Section 203(d) of the Immigration and Nationality Act (INA) is the provision that deals with family members. Let us examine what section 203(d) says: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.” There is nothing in section 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees, it makes no sense if half or more are used up by family members.  

There is no regulation in 8 Code of Federal Regulations (C.F.R.) instructing what section 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. 42.32 only parrots section 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. 42.32 does not provide further amplification on the scope and purpose of section 203(d). We acknowledge that section 203(d) derivatives are wholly within the preference system and bound by its limitations. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits.  

If the Executive Branch wanted to reinterpret section 203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X can be used as a force for good. For instance, in  Sciallaba v. Osorio: Does the Dark Cloud Have A Silver Lining, Cyrus  Mehta and David Isaacson propose that notwithstanding the Supreme Court’s recent decision concerning  section 203(h)(3) of the INA, where the Court agreed with the  Board of Immigration Appeal’s (BIA) more restrictive interpretation of this Child Status Protection Act provision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009),  the BIA has the power to reverse Matter of Wang under Brand X. Matter of Wang held that not all children who are unable to protect their age under the Child Status Protection Act can claim the earlier priority date under which their parent immigration to the United States.  

As the plurality opinion in Sciallaba v. Osorio explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33. 

Thus, when a provision is ambiguous such as section 203(d), the government agency may reasonably interpret the provision in a reasonable manner. In our prior article relating to not counting relatives, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm, we discussed  that  there are admittedly some statutory provisions which might be read as pointing against an interpretation to not count family members. Most notably, it has also been pointed to us that  INA section 202(b) permits a spouse or child to “cross charge” to the foreign state of either of the parents or the spouse to avoid family separation, and this may suggest that derivatives must be individually counted for purposes of the per country cap. Still, this too can be interpreted differently under Chevronand Brand X, namely, that the entire family be counted as single unit to the other spouse or parent’s country. Of course, the statutory provision which militates in favor of such an interpretation is most notably the text of INA §203(d) itself. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center!

Expansion of Parole in Place

The very idea of “parole” in section 212(d)(5) of the INA is linked to  allowing deserving aliens to come to the United States for “urgent humanitarian reasons or significant public benefit.” In most cases, we think this only applies to people who are not yet here. Not so. Digging a bit deeper into the INA, we find in section 235(a)(1) this golden nugget: an applicant for admission is “an alien present in the United states who has not been admitted…” Putting all of this together, there is nothing in law or logic that prevents the full embrace and unfettered application of parole to those already in the United States outside the color of law. The invocation of ‘parole in place” is another example of using new interpretive techniques to mine the existing law for greater benefits. It is the antidote to the inability of Congress to enact comprehensive immigration reform. There should be no concern over a possible infringement of separation of powers for the authority of Congress over the legislative process is being fully respected.  Part of the responsibility of the President to enforce the laws is to adopt an understanding of them that best promotes what Congress had in mind when it passed the law in the first place. Parole in place does precisely that. This is not amnesty. The requirements for obtaining legal status on a permanent basis apply in full. It is merely an attempt to think of the law we have not purely or primarily as an instrument of enforcement but as a platform for remediation of the human condition. Indeed, is this not how law in the American tradition is meant to function?

The creation of new solutions by federal agencies has become the norm rather than the exception in our system of governance if for no other reason that the sheer multiplicity of issues, as well as their dense complexity, defies traditional compromise or achievable consensus which are the hallmarks of Congressional deliberation. They require timely and directed executive action as a formula for keeping present problems from getting worse. This is exactly why Congress authorized the Attorney General to grant employment authorization without terms or limitations pursuant to INA 274A (h) (3)(B), a provision that should be linked with the robust exercise of the Executive’s parole power. The INA leaves the granting of parole completely up to the discretion of the Attorney General, now shifted to the DHS. It is hard to imagine a more open invitation to Executive rule- making to provide when parole can be extended, as there is absolutely nothing in the INA that would contradict a DHS regulation allowing parole in place. Not only is it appropriate for the DHS to formulate immigration policy on highly minute technical issues of surpassing moment such as parole in place, but the Constitution expects that to happen. Indeed, without this, who would do it? Far from crossing the line and infringing the authority of Congress, what we ask the DHS to do augments Congressional prerogative by providing a practical way for them to function.

In addition to not counting derivatives, the Obama Administration can extend parole in place (PIP) that has been granted to military families to all immediate relatives of US citizens, which would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility under sections 212(a)(9)(B)(i)(I) and (II) of the INA. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.

The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the current memogranting PIP to military families states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. For purposes of section  245(c) of the INA, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.

There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.

Our proposal to grant PIP retroactively so that it erases unlawful presence can also assist people who face the permanent bar under section 212(a)(9)(C) of the INA. If PIP can retroactively erase unlawful presence, then those who entered the country without inspection after accruing unlawful presence of more than 1 year will not trigger the bar under this provision if the unlawful presence has been erased.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 year, 10 year and permanent bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the bars.  Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation. 

Achieving Something Close to Comprehensive Immigration Reform Without Congress

Not counting family members and expanding parole in place can be a potent combination for nearing comprehensive immigration reform administratively in the face of Congressional inaction. The waits in the EB and FB preferences will disappear, and family members waiting abroad can unite with their loved ones more quickly and need not be forced to take the perilous path across the Southwest border in desperation. The expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would allow them to obtain lawful permanent residence, rather than being stuck in permanent limbo due to the 3 and 10 year bars. After removing the obstacle of the bars, the grant of lawful permanent residence would be more rapid as there would be no backlogs in the FB and EB preferences, and loved ones from abroad can unite with newly minted immigrants in the United States through an orderly and legal process. 

Our proposals fall squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. We acknowledge that immigration reform passed by Congress would solve more problems in a fundamental way. We seek less dramatic but no less meaningful advances through the disciplined invocation of executive initiative only because these are the ones that can be achieved sooner and with greater predictability. Our justifiable zeal for immigration reform must not blind us to the benefit of more moderate proposals. We are confident that future progress will follow in a way that minimizes disruption and maximizes acceptance. We hold fast to the distinction between prudence and absolutism, between incremental reform and revolutionary upheaval. In the long run, the American experience has been characterized more by the former than the latter and it has led to a fruitful stability that has been the envy of the world.

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

David Isaacson

CERTIFICATION OF QUESTIONS OF STATE LAW: A NEW TREND IN SECOND CIRCUIT IMMIGRATION CASES?

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In both February and May of this year, the U.S. Court of Appeals for the Second Circuit did something that it appears not to have done in an immigration case in more than fifteen years, and that is rare for other courts to do in such cases as well.  In Nguyen v. Holder, on February 14, 2014, and Efstathiadis v. Holder, on May 20, 2014, the Second Circuit chose to certify questions of state law about which it was uncertain to the highest court of the relevant state – New York in Nguyen, and Connecticut in Efstathiadis — rather than seeking to answer those questions itself.  This is at least a notable coincidence given the historical rarity of such certification in immigration cases, and merits watching to see if it is the beginning of a broader trend.

The issue in Nguyen involved the validity, under New York law, of a marriage between an uncle and his half-niece.  The petitioner, Huyen V. Nguyen, had been admitted to the United States in 2000 as a conditional permanent resident based on her marriage to Vu Truong, a U.S. citizen.  Her joint I-751 petition to remove those conditions, filed in 2002, was ultimately denied by U.S. Citizenship and Immigration Services (USCIS) in 2007 because she was the half-niece of her husband—that is, her grandmother was also her husband’s mother.  USCIS concluded that this marriage was incestuous and void, and an Immigration Judge (IJ) reached a similar conclusion in removal proceedings, holding that a New York statute which voids a marriage between “an uncle and a niece” also applies to a marriage between a half-uncle and a half-niece.  On appeal, the Board of Immigration Appeals (BIA) affirmed the IJ’s conclusion that “a marriage between a niece and a half-uncle is invalid under New York law.”  Nguyen, slip op. at 4.

The Second Circuit, however, was not sure that the BIA and IJ were correct. The relevant New York statute, N.Y. Domestic Relations Law §5, voids as incestuous a marriage between
  1. An ancestor and a descendant;
  2. A brother and sister of either the whole or the half blood;
  3. An uncle and niece or an aunt and a nephew.

N.Y. Dom. Rel. Law §5, quoted in Nguyen, slip op. at 6.  Subsection 2 of the statute, regarding siblings, specifically includes relationships “of either the whole or the half blood”, but subsection 3 does not.  As the Second Circuit noted, “two cases from New York’s intermediate appellate courts,” that is,Audley v. Audley, 187 N.Y.S. 652 (N.Y. App. Div. 1921), and In re May’s Estate, 117 N.Y.S.2d 345 (N.Y. App. Div. 1952), aff’d, 305 N.Y. 486 (1953), “hold that marriages between half-nieces and half-uncles are void for incest notwithstanding the omission of the ‘whole or the half blood’ language from subsection (3) of the statute.”  Nguyen, slip op at 6.  However, this holding is drawn into question by dicta in In re Simms’ Estate, 26 N.Y.2d 163 (1970), a decision of the New York Court of Appeals, New York’s highest court.  As the Second Circuit explained:

In Simms, the Court of Appeals did not decide the question of statutory interpretation that is before us here, see id. at 167, but it nevertheless cast doubt upon the analysis given by the Appellate Division in Audley. TheSimms opinion observed that the omission of the phrase “whole or half blood” from the applicable statutory language was troublesome given the inclusion of that language in the statute’s immediately preceding interdiction of marriages between brothers and sisters, and further noted that “it seems reasonable to think that if the Legislature intended to prohibit marriages between uncles, nieces, aunts and nephews whose parents were related to the contracting party only by the half blood, it would have used similar language.” Id. at 166. The Court of Appeals further opined that 

[i]f the Legislature had intended that its interdiction on this type of marriage should extend down to the rather more remote relationship of half blood between uncle and niece, it could have made suitable provision. Its failure to do so in the light of its explicit language relating to brothers and sisters suggests it may not have intended to carry the interdiction this far.

Id. While the Court of Appeals’s analysis in Simms can fairly be called dicta, it nonetheless gives us pause in considering the continued vitality of Audley’s interpretation of subsection (3).

Nguyen, slip op. at 8-9.  If, as Simms suggested, marriages between a half-uncle and a half-niece are actually permitted under New York law, then Huyen Nguyen’s marriage would have been valid and the removal proceedings against her would need to be terminated.

Rather than attempting to predict how the New York Court of Appeals would decide this outcome-determinative issue of New York law, the Second Circuit decided to certify the question to the New York Court of Appeals, allowing that court to provide the answer. As the Second Circuit explained, there are criteria established in case law for such certification:

Before exercising our discretion to certify the question before us to the New York Court of Appeals, we must satisfy ourselves that the question meets the following criteria: 1) it must be determinative of this petition; 2) it must not have been squarely addressed by the New York Court of Appeals and the decisions of other New York courts must leave us unable to predict how the Court of Appeals would rule; and 3) the question must be important to the state and its resolution must require value‐laden judgments or public policy choices.

Nguyen, slip op. at 10.  The Second Circuit determined in Nguyen that these criteria were met. The New York State Court of Appeals appears to agree, as it has already accepted the certification in Nguyen and included it on its list of certified questions pending before that court, by an order reported at 22 N.Y.3d 1150 (2014).  Once the New York Court of Appeals answers the certified question, the Nguyen case will return to the Second Circuit for a final ruling.

In Efstathiadis, decided three months after Nguyen, the issue was not one of state family law, as in Nguyen, but one of state criminal law.  Petitioner Charalambos Efstathiadis was a lawful permanent resident of the United States, having immigrated to the US in 1967.  In 2005, he pled guilty to four counts of sexual assault in the fourth degree under Connecticut General Statute (CGS) §53a-73a(a)(2), which criminalizes subjecting “another person to sexual contact without such other person’s consent.” Under the related definitional provision at CGS §53a-65(3), “sexual contact” is defined as contact “with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”  Efstathiadis, slip op. at 3.  Mr. Efstathiadis was placed in removal proceedings and ultimately found deportable under INA §237(a)(2)(A)(ii), 8 U.S.C. §1227(a)(2)(A)(ii), on the basis that each of his convictions was for a crime involving moral turpitude (CIMT), and that they did not arise out of a single scheme of criminal misconduct.  

In attempting to determine whether a conviction for sexual assault in the fourth degree under CGS §53a-73a(a)(2) was indeed a CIMT so as to support Mr. Efstathiadis’s removal, the Second Circuit found itself stymied by uncertainty regarding the mens rea, that is, “the degree of mental culpability with which a defendant committed the acts underlying a conviction,” that was required under the Connecticut statute with regard to the element of lack of consent of the victim. Efstathiadis, slip op. at 11.  Based on the text of the statute, some case law applying the statute as written, and the model jury instructions, it appeared that there might be no mens rea requirement at all—that with respect to lack of consent, the crime might be a strict-liability offense, where it was not necessary for the government to prove any particular mental state of the defendant. However, the decision of the Connecticut Supreme Court in State v. Smith, 554 A.2d 713 (Conn. 1989), addressing a different provision of law relating to sexual assault in the first rather than fourth degree, could potentially be read to imply that a reasonable mistake of fact as to consent was a valid defense, meaning that some culpable mens rea would effectively be required for a conviction.  

The question of what if any mens rea or “evil intent” was required for a conviction was potentially key to the determination whether the crime was a CIMT, since a CIMT has been variously described as requiring “a vicious motive or corrupt mind,” or “[a]n evil or malicious intent,” and Second Circuit case law has indicated that “corrupt scienter is the touchstone of moral turpitude” and that “it is in the intent that moral turpitude inheres.” Michel v. I.N.S., 206 F.3d 253, 263 (2d Cir. 2000) (internal quotation marks omitted),quoted in Efstathiadis, slip op. at 14.  Moreover, as the Second Circuit pointed out, while the statute at issue in Efstathiadis does at least have some mens rea requirement insofar as the sexual contact must be committed “for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating [the victim],” this is not necessarily dispositive, because “the intent to receive sexual gratification, standing alone, is not evil.”  Efstathiadis, slip op. at 14.  Thus, the mens rearequirement, or lack thereof, with respect to the lack of consent element was significant.  But the Second Circuit could not definitively determine whether such a mens rea requirement existed, and if so, what it was.

In Efstathiadis as in Nguyen, the Second Circuit therefore decided to certify the question that was puzzling it to the highest court of the relevant state.  In addition to being potentially dispositive, the Second Circuit said, the question of the mens rea requirement with regard to lack of consent in a sexual assault case had significant policy implications, since “[w]hether or not Connecticut imposes strict liability for intentional sexual touching without consent implicates important policy concerns,” Efstathiadis, slip op. at 21. The Second Circuit therefore certified the following two questions to the Connecticut Supreme Court: 
  1. Is C.G.S. § 53a‐73a(a)(2) a strict liability offense with respect to the lack of consent element?
  2. If C.G.S. § 53a‐73a(a)(2) is not a strict liability offense with respect to the lack of consent element, what level of mens rea vis‐à‐vis that element is required to support a conviction?

Id. at 22.  It does not appear that the Connecticut Supreme Court has yet decided whether to accept or reject the certification in Efstathiadis.

The certification of two questions of state law in immigration cases by the Second Circuit in a single year (a year that is not yet half over) is noteworthy, given the historical rarity of such certifications.  Before 2014, the last time the Second Circuit appears to have sought to certify a question of state law in an immigration case was in 1998.  In Yesil v. Reno  and Mojica v. Reno, two of the consolidated cases addressed in Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), the Second Circuit attempted to certify a question relating to the existence of jurisdiction over a non-New-York District Director of the then-Immigration and Naturalization Service under the New York “long arm” statute. The New York Court of Appeals respectfully declined the certified questions, Yesil v. Reno, 705 N.E.2d 655 (N.Y. 1998), and the appeals were subsequently withdrawn after the parties settled, as explained in Yesil v. Reno, 175 F.3d 287 (2d Cir. 1999).  

Yesil and Mojica appear to be the only immigration cases, before this year, in which the Second Circuit attempted certification of questions of state law. Historically, the Second Circuit has more commonly utilized certification of questions of state law in other legal settings, but not in the immigration context.  Nor is the technique especially common among other courts in the immigration context, although it is not entirely unheard of.  

In 2011, the U.S. District Court for the Middle District of Tennessee, in the case of Renteria-Villegas v. Metropolitan Government of Nashville and Davidson County, certified to the Supreme Court of Tennessee an issue relating to the powers of the Metropolitan Government of Nashville and Davidson County under state law.  That lawsuit was filed by a U.S. citizen who had twice allegedly been subjected to an investigation of his immigration status following his arrest, pursuant to an October 2009 Memorandum of Agreement between Immigration and Customs Enforcement (ICE) and the Metropolitan Government which he believed to be illegal.  The Supreme Court of Tennessee accepted the certified question, and ruled in an October 4, 2012, decision that the agreement was not illegal as a matter of state law.  

Earlier, the U.S. District Court for the District of Nebraska had attempted to certify a somewhat similar question regarding the powers of a local government body in the Keller v. City of Fremont litigation, regarding a local anti-immigrant ordinance somewhat similar to that struck down by the Third Circuit in Lozano v. City of Hazleton.  However, in November 2010 the Supreme Court of Nebraska declined the certified question in Keller, just as the Court of Appeals of New York had done years earlier in Yesil andMojica. The Court of Appeals for the Eighth Circuit ultimately upheld that Fremont ordinance as a matter of federal law, and the U.S. Supreme Court recently denied certiorari in the case, allowing the Eighth Circuit’s decision to stand.

Going back further into U.S. legal history, there is also the Supreme Court’s 1978 decision in Elkins v. Moreno, 435 U.S. 647, which certified to the Maryland Court of Appeals the question whether Maryland state law prevented G-4 nonimmigrants from acquiring domicile in that state.  But overall, certification of questions of state law has been fairly rare in the immigration context, not only in the Second Circuit but elsewhere, at least until this year.

It is possible that the reappearance of certification in two unrelated Second Circuit immigration cases this year is merely a coincidence, but the possible trend merits further observation. Certification can be, in many areas of the law, a valuable tool for determining the proper answer to a question of state law rather than leaving that question to speculation by a federal court.  If the increased use of certification in immigration cases is indeed a trend in the Second Circuit, it is a potentially promising one for some immigrants whose cases may turn on questions of state law, and for their attorneys.
Cyrus Mehta

Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?

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By Cyrus D. Mehta and David A. Isaacson

On June 9, 2014, the Supreme Court issued its ruling in Scialabba v. Cuellar de Osorio. (The case had previously been known as Mayorkas v. Cuellar de Osorio before Lori Scialabba was appointed as Acting Director of USCIS, replacing former Director Alejandro Mayorkas.)  The Court ruled in Cuellar de Osorio that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope.

As discussed in several severalpreviousposts onthis blog, INA §203(h)(3) provides for “automatic conversion” in the cases of certain beneficiaries of preference visa petitions whose age, even as adjusted under the CSPA to account for the time taken to process the visa petition, is determined to be above 21.  Some principal and derivative beneficiaries, according to the statute, will under these circumstances have their petitions automatically converted to the appropriate category, and retain the original priority date.  The question in Cuellar de Osorio and Matter of Wang was who gets to benefit from this automatic conversation.  The en banc Court of Appeals for the Ninth Circuit in Cuellar de Osorio, as well as the Court of Appeals for the Fifth Circuit in Khalid v. Holder, had argued for a broad interpretation which allowed all derivative beneficiaries to benefit, as at least some of the language of the statute seemed to suggest.  The BIA in Matter of Wang, as well as the Court of Appeals for the Second Circuit in Li v. Renaud and an earlier Ninth Circuit panel decision in Cuellar de Osorio, had chosen narrower approaches, which in effect allowed automatic conversion and priority date retention only for the principal and derivative beneficiaries of family 2A preference petitions, not the derivative beneficiaries of other categories of preference petitions.  The Supreme Court took the Cuellar de Osorio case to resolve this disagreement.

There was no single Supreme Court majority opinion in Cuellar de Osorio, but a total of five justices accepted the BIA’s narrow interpretation of the statute as set out in Matter of Wang, for two different sets of reasons.  The plurality opinion was written by Justice Kagan, and supported by Justices Kennedy and Ginsburg.  Chief Justice Roberts, joined by Justice Scalia, authored an opinion concurring in the judgment, but for somewhat different reasons.  Justices Sotomayor and Alito authored dissenting opinions; Justice Sotomayor’s dissent was joined by Justice Breyer in its entirety and by Justice Thomas except with regard to one footnote.

To appreciate the different opinions in Cuellar de Osorio, it is helpful to review the text of §1153(h)(3), quoted in the opinion of the Chief Justice and in a footnote to the plurality opinion.  It states:

If the age of an alien is determined under paragraph [1153(h)](1) [the CSPA provision the adjusts the age of a preference petition beneficiary to compensate for elapsed processing time] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

The different opinions in Cuellar de Osoriotook different views of what Congress may have meant in prescribing that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Justice Kagan’s plurality opinion described §1153(h)(3) as “Janus-faced”.  Kagan slip op. at 14.  The first half of the provision, she said, looks toward a broader interpretation of the sort supported by the Ninth Circuit, but the second half describes a remedy, automatic conversion, which Justice Kagan and the plurality saw as most naturally applying only when the new petition to which automatic conversion would occur would have the same petitioner and same beneficiary.  Given this “internal tension”, Justice Kagan said, the BIA was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  As Justice Kagan and the plurality saw it, there are “alternative reasonable constructions” of §1153(h)(3), “bringing into correspondence in one way or another the section’s different parts.  And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.”  Kagan slip op. at 14.  As the plurality opinion explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33.

Chief Justice Roberts, joined by Justice Scalia, reached essentially the same conclusion as the three-Justice plurality led by Justice Kagan, but for different reasons.  Concurring in the judgment, the Chief Justice wrote that he did not see “conflict, or even internal tension . . . in section 1153(h)(3).”  Roberts slip op. at 2.  Rather, he “d[id] not think the first clause points to any relief at all.”  Id.at 3.  Instead, he described the second clause of §1153(h)(3) as “the only operative provision.”  Id.at 3-4. In that only operative provision, he took the view that beyond certain basic requirements, “Congress did not speak clearly to which petitions can “automatically be converted.”  Id. at 4.

The dissenting Justices, in contrast, were of the view that even if there was some ambiguity in the statute, it was not sufficient to justify the interpretation that the Board adopted in Matter of Wang.  While “Section 1153(h)(3) is brief and cryptic” and “may well contain a great deal of ambiguity, which the [BIA] is free to resolve,” Justice Alito wrote, it was at least clear that “the alien’s petition shallautomatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  Alito slip op. at 2 (emphasis added in original).  The BIA, he contended, was “not free to disregard this clear statutory command.”  Id.  Justice Sotomayor, as well, argued in her dissent that because a reading of the statute was possible that gave effect to both the automatic conversion language and the statute’s broad description of who was eligible for automatic conversion, that reading should have been followed.  Because there were potential interpretations that “would treat §1153(h)(3) as a coherent whole,” she said, “the BIA’s construction was impermissible.”  Sotomayor slip op. at 9

On the surface, the Supreme Court’s decision in Cuellar de Osorio is obviously disappointing for a great many immigrants who were hoping to recapture priority dates of petitions initially filed for their parents through automatic conversion.  Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference—which for most of the world has a backlog of more than seven years as of the June 2014 Visa Bulletin, and is backlogged many years more for those chargeable to Mexico or the Philippines.  While it is an unfortunate decision from that perspective, however, Cuellar de Osorio does contain some seeds of hope for better outcomes in the future.

The first seed of hope, with respect to §1153(h)(3) itself, is the latitude which the Court has provided for the executive branch to reconsider its decision.  Justice Kagan’s plurality opinion is careful to state that “we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged out beneficiaries.”  Cuellar de Osorio slip op. of Kagan, J., at 21.  The concurring opinion of Chief Justice Roberts and Justice Scalia is not as explicit in this respect, but it describes its disagreement with the plurality as involving “a different view of what makes this provision ambiguous under Chevron” rather than going to the question whether the provision is ambiguous at all. Indeed, the Chief Justice criticized Justice Kagan’s “Janus-faced” metaphor of §1153(h)(3). “But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice.” Id. at 2.   Thus, a majority of the Court agrees that the meaning of §1153(h)(3) is an ambiguity subject to Chevron deference, rather than suggesting, as the Second Circuit had done in Li v. Renaud, that a narrow reading of §1153(h)(3) is compelled by the statute.

When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. Thus, the Court’s description of §1153(h)(3) as an ambiguous statute subject to Chevrondeference to the BIA’s interpretation implies that the BIA could, even after Cuellar de Osorio, reverse its position in Matter of Wang.  So too could the Attorney General, on whose behalf the BIA ultimately acts, go against Matter of Wang and adopt a broader interpretation of §1153(h)(3).  As the INA provides, within the executive branch, “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”  INA §103(a)(1), 8 U.S.C. §1103(a)(1).  Ultimately, it is within the power of Attorney General Holder to save those beneficiaries who have waited in line for many years, and now find themselves pushed to the back of a new line that may be decades long.  Whether or not these results of the Wang interpretation affirmed in Cuellar de Osorio may be legally permissible, they are not desirable as a policy matter, and the Supreme Court has left the Attorney General the power to recognize this.  In light of the Obama Administration’s many noteworthy administrative reform measures in the face of Congressional inaction, the provisional waiver rule and Deferred Action for Childhood Arrivals being such examples, a broader interpretation of §1153(h)(3) would be consistent with these efforts.

Of course, Congress too could fix the problem, by redrafting the statute to make it clearer that all derivative beneficiaries whose adjusted age is over 21 can retain the principal beneficiary’s priority date.  This was done in section 2305(d)(5)(C) of  S. 744, the comprehensive immigration reform bill passed by the Senate, which unfortunately has not been brought to a vote in the House of Representatives.  But if Congress continues not to act, the executive branch has the power to remediate the unfairness of requiring those who have waited in line with their parents for many years to go to the back of a new line and start over from the beginning.

Another policy argument in favor of such a reversal of Matter of Wang which would be worth the consideration of the BIA or the Attorney General, or for that matter Congress, is that the Matter of Wang interpretation of §1153(h)(3), now affirmed in Cuellar de Osorio, reintroduces some of the arbitrariness which the enactment of the CSPA had sought to avoid.  The age-adjustment process under INA §203(h)(1), 8 U.S.C. §1153(h)(1), in effect subtracts from the adjusted age of a visa applicant the time during which a visa petition was pending.  If the adjusted age of a derivative applicant is under 21, the CSPA as interpreted in Wang and Cuellar de Osorio will allow the applicant to utilize a principal beneficiary parent’s priority date; otherwise, the benefit of the priority date will be lost entirely.  But that means that children whose parents were petitioned for on the same date, and whose parents’ priority dates become current simultaneously, may be treated in dramatically different fashion depending on how long it happened to take USCIS to process the petition on behalf of their parents during the time that no visa number was available.  The broader interpretation of §1153(h)(3) rejected by the BIA in Matter of Wang would have reduced this arbitrariness, by enabling even a child whose parent’s petition happens to be processed relatively quickly, and whose CSPA-adjusted age is therefore over 21 when the priority date becomes current, to enjoy some benefit from that petition and its priority date.

The potential positive implications of Cuellar de Osorio beyond the CSPA context are also worth considering.  As previously discussed in postsonthis blog and articles by co-author Cyrus D. Mehta and Gary Endelman regarding “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, the executive branch’s authority under Brand X can potentially be used as a force for good in the immigration context.  This occurred for example in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), where, as discussed in one of the aforementioned blog posts, the BIA chose not to follow an unfavorable decision by the Court of Appeals for the Third Circuit regarding procedures for acquisition of citizenship under former section 321(a) of the Immigration and Nationality Act.  If, as the plurality in Cuellar de Osorioindicates, tension between the apparent meaning of different statutory provisions is sufficient to activate the Chevronand Brand X authority of the executive branch even if one could conceive of a potential interpretation which could harmonize the different provisions (at the cost of some awkwardness), this will expand the power that the executive branch may have to use Chevron and Brand X for pro-immigration ends.

Take, for example, the proposal in “The Tyranny of Priority Dates” that the executive branch re-interpret INA §203(d) so that derivative family members do not consume additional visa numbers beyond those taken up by the principal beneficiaries of visa petitions, thus freeing up a greater quantity of visa numbers for use by others.  As discussed in that article, there are admittedly some statutory provisions which might be read as pointing against such an interpretation.  But there are also statutory provisions which pull in favor of such an interpretation, most notably the text of INA §203(d) itself when it states that a derivative family member is “entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”  INA §203(d), 8 U.S.C. §1153(d).  If family members must be provided with separate visa numbers, then how can one fulfill this command for the family members of the principal immigrant who receives the last available visa number in a fiscal year for a particular category—will they not inevitably be subject to a delay in their “order of consideration” that is inconsistent with §203(d)?  This tension, interpreted in line with the version of Chevron deference implemented by the Cuellar de Osorioplurality, would provide sufficient authority to reinterpret the priority-date system in a way that could significantly reduce the current backlogs in the visa preference categories.

Remarkably, Cuellar de Osorio was not decided on the usual conservative-liberal ideological lines as with many Supreme Court decisions. The pairings of justices who decided one way or the other are rather odd much like combining a full-bodied red Malbec with a delicate white fish –  Ginsburg and Scalia were part of the plurality that denied relief to children while Sotomayor and Thomas vigorously dissented. The outcome in this case is neither a liberal nor a conservative victory.  This could potentially give President Obama through his Attorney General some political cover if they decided to use Brand X as a force for good by reversing Matter of Wang. Of course, the government caused this in the first place by litigating all the way to the Supreme Court. Sceptics will rightly question why the government would change course after having gone so far. However, the Attorney General, through the BIA, has reversed course before. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced to Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). If Congress fails to  enact Congressional reform, it is likely that the Administration will endeavor to provide relief through further administrative measures. Our blog provides the Administration with a way to do so for children who were left out of the American Dream solely because they were unlucky to have aged out.

Cyrus Mehta

A WORK IN PROGRESS: MENTAL COMPETENCY ISSUES IN IMMIGRATION PRACTICE

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It is already hard enough for an immigration lawyer to represent a foreign national client in an immigration proceeding, given the language and other cultural barriers, along with the fact that immigration law can be extremely complex and unforgiving. On top of this, an immigration lawyer who represents a foreign national client with mental competency issues faces even greater challenges, including ethical conundrums.

To what extent can a lawyer represent a client who may not even have the capacity to consent or to comprehend the fact that there is a lawyer who can assist him or her? This client may be discovered in immigration custody while in the middle of complex removal proceedings. The lawyer may also encounter a client with mental competency issues who may need to file for immigration benefits such as adjustment of status or naturalization.  This issue has gained even more importance in light of the mandatory appointment of counsel for unrepresented respondents in immigration custody who have mental disorders.

While clients with diminished mental capacity also include children, this blog focuses on the challenges that lawyers face in representing clients with mental disorders. The first breakthrough with respect to the development of safeguards came about in Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011),  where the Board of Immigration Appeals held that for an alien to be competent to participate in an immigration proceeding, he or she must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by the law.  The decisive factors are whether the respondent understands the nature and object of the proceedings, can consult with the attorney or representative, and has a reasonable opportunity to examine adverse evidence, present favorable evidence and cross examine government witnesses.  Further guidance relating to Matter of M-A-M- can be found in the excellent practice advisory of the Litigation Action Center.

Subsequently, in Franco-Gonzales v. Holder, No. 10-02211 (C.D. Cal Apr. 23, 2013),  a class action law suit, the court ordered that non-citizen detainees with severe mental disabilities in Arizona, California and Washington be provided qualified legal representatives at government expense in removal and bond proceedings. The court also ordered bond redetermination hearings for those detained more than 180 days. The EOIR on December 13, 2013 issued guidelinesto provide enhanced procedural protection to unrepresented detained respondents with mental disorders. These guidelines are more robust than the principles set forth in Matter of M-AM-, and require an assessment of eight competencies in order to determine whether the respondent is competent to represent him- or herself:

A rational and factual understanding of:

  • The nature and object of the proceeding;
  • The privilege of representation, including but not limited to, the ability to consult with a representative if one is present;
  • The right to present, examine, and object to evidence;
  • The right to cross-examine witnesses; and
  • The right to appeal

A reasonable ability to:

  • Make decisions about asserting and waiving rights;
  • Respond to the allegations and charges in the proceedings; and
  • Present information and respond to questions relevant to eligibility for relief.

If a detained respondent is unable to perform any one of the above functions, then he or she is unable to represent him-or herself. An Immigration Judge is required to detect facts suggesting incompetency, conduct a judicial inquiry, and follow up with a competency review. If the Immigration Judge determines that a respondent is not competent to represent him-or herself, the EOIR may provide a qualified representative who is found to be incompetent to represent him-or herself. While this elaborate process to determine whether a respondent is competent or not is a good first step, one wonders why this process is conducted on behalf of a respondent without the presence of a lawyer. This writer believes that the respondent should have a legal representative earlier in the process, when his or her competency is being evaluated.

Even when a lawyer is appointed by the court to represent a respondent who is not found to be competent, there is a potential for conflict of interest as the appointment will generally only last while the client is detained. If the client is bonded out, the lawyer will no longer be paid by EOIR after the client is released. This creates an ethical dilemma. If the client desperately needs the assistance of a lawyer who is paid by the government, he or she can only be represented by counsel at government expense while in immigration custody.  Would it be in the client’s best interest to be released but not to have appointment counsel, or rather to have appointed counsel while in custody? This might be easier to resolve if the client could make decisions and provide informed consent, but clients with severe mental disabilities might be unable to make informed decisons.

On the other hand, there are no safeguards relating to non-citizens applying for immigration benefits outside a custodial setting. Practitioners representing clients with mental disorders should advocate for the application of the safeguards enunciated in Matter of M-A-M even outside a removal hearing, which include:

–          Legal representation

–          Identification of close friends or family members who can assist

–          Docketing/managing case to give time for legal representation or medical treatment

–          Participation of a guardian in the proceedings

–          Continuance or administrative closure

–          Closing hearing to the public

–          Waiving respondent’s appearance

–          Assistance with development of record

–          Reserving appeal rights

 

Lawyers must also consult ABA Model Rule 1.14, and its analog in a state bar ethics rule, which relates to representing a client with diminished mental capacity. Rule 1.14 instructs a lawyer to maintain a normal lawyer-client relationship as far as possible. Thus, to the extent that an impaired client is capable of making competent decisions, the lawyer must follow them. A lawyer may seek help from a family member or others in communicating with a client with a mental disorder, while at the same time taking into consideration whether the presence of others would affect the attorney-client privilege.

This writer has represented clients for benefits applications, and has found it extremely useful to communicate with the client through trusted family members. A client with a mental disorder may have moments of lucidity, and it is important for the lawyer to ascertain how best to work with such a client through a professional diagnostician. At the benefits interview, counsel must insist that the USCIS generously provide accommodations for a client, including having the presence of a family member during the interview and to only ask the most basic questions, while relying on documentary evidence to determine eligibility for the immigration benefit. Note that 8 CFR 103.2(a)(2) allows a legal guardian to sign a form for a person with mental disabilities.

With respect to applying for naturalization, the law has developed favorably towards persons with disabilities. Applicants who are physically or developmentally disabled, or have mental impairment are exempt from the English as well as civics/history test. Applicants may also seek a waiver of the oath requirement if they are unable to comprehend it. Designated representatives can complete the Form N-400, such as a guardian, surrogate, US citizen spouse, parent, son, daughter or sibling. It is potentially possible for a comatose applicant on a respirator to be able to apply for and obtain US citizenship, and sponsor a qualifying spouse through an I-130 petition, who in turn files his or her own adjustment application for lawful permanent residence.

Rule 1.14 also allows a lawyer to take reasonably protective action when a client is at risk of harm by either consulting with individuals or entities, and in appropriate cases, seek the appointment of a guardian or guardian ad litem. The lawyer may be impliedly authorized to reveal information protected by rule 1.6, but only to the extent reasonably necessary to protect the client’s interests. While resorting to the appointment of a guardian may appear to be an obvious step on behalf of one who is unable to comprehend the nature of the proceedings or consent to the representation, it may also be a traumatic and expensive process, and may undermine the autonomy that the client is required to have under Rule 1.14. The guiding principles, as much as possible, are that the client determines the ends while the lawyer has control over the means.  According to Comment 7 to Model rule 1.14, “In many circumstances, however, appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require. Evaluation of such circumstances is a matter entrusted to the professional judgment of the lawyer. In considering alternatives, however, the lawyer should be aware of any law that requires the lawyer to advocate the least restrictive action on behalf of the client.”

To the extent that a client with mental disorders can provide informed consent, the lawyer’s role is made that much easier. The challenge lies with a client who is unable to consent at all. Under these circumstances, should the lawyer still play an activist role and represent the client? Is counsel then always required to seek the appointment of a guardian? Or are there less restrictive alternatives such as seeking the assistance of family members in determining the client’s best interests.   If counsel has been appointed by an immigration judge, how relevant is the client’s incapacity to consent if the lawyer believes it is still in the client’s best interests to have a legal representative? 8 CFR 1292.1(a)(1) &(a)(4) state, without reference to consent, that attorneys are entitled to appear in removal hearings. An attorney can play a crucial role on behalf of a client who is unable to consent.  Indeed, if the goal is for the respondent to remain in the United States (but that may only be assumed if the client is unable to comprehend the nature of the immigration proceeding), the very fact that a respondent may have a mental disorder may prompt an immigration judge to consider granting asylum if the respondent will be removed to a country that is unable or unwilling to protect its citizens with mental disorders. An immigration judge may also grant cancellation of removal pursuant to INA section 240A(b) if the documentation is able to demonstrate eligibility, such as 10 years of physical presence, good moral character and the qualifying relatives, who may be US citizens or permanent residents, are able to demonstrate exceptional and extremely unusual hardship.  There may be times, especially with clients who cannot seek relief, to advocate for administrative closure of the case or even termination. Again, when the client is unable to consent, would administrative closure or termination be in the client’s best interest over being removed from the United States and being with close family members abroad?

There is much work that needs to be done to develop standards and provide clearer guidance.  In the meantime, the lawyer must grapple with emerging standards from the courts and EOIR, as well as interpret Rule 1.14 within the immigration context, although not all states have adopted this rule.  While representing non-citizen clients with mental competency issues can pose additional challenges, obtaining a successful outcome for the client under difficult circumstances can be extremely rewarding to the immigration lawyer.

“The test of our progress is not whether we add to the abundance of those who have much. It is whether we provide enough to those who have little.”

Franklin D. Roosevelt

Cyrus Mehta

Work Authorization for Some H-4 Spouses Liberates Them From the Tyranny of Priority Dates

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By Gary Endelman and Cyrus D. Mehta

All the forces in the world are not so powerful as an idea whose time has come.

Victor Hugo

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses of H-1B visa holders is a good example. It is in line with the policies of other countries, and if the United States wishes to attract the brightest and the best, such an individual may be dissuaded from coming to the United States if the spouse is not allowed to work.  This is especially true if the H-1B workers have to wait for several years before they and their families can apply for permanent residency.

Almost 4 years ago, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended that H-4 spouses  be granted employment authorization to USCIS Director Alejandro Mayorkas, but only for those “H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to Comprehensive Immigration Reform. The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until January 31, 2012 when the Department of Homeland Security brought this idea back to life.

On May 6, 2014, the Department of Homeland Security (DHS)   announced that it would allow certain H-4 spouses to obtain employment authorization. The proposed rule provides that an H-4 spouse may apply for employment authorization if  the principal H-1B spouse is the beneficiary of an approved I-140 immigrant petition; or, if the H-1B spouse  been granted an extension of beyond the 6-year limitation pursuant to section 106(a) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Under section 106(a) of AC 21, the filing of a labor certification or employment-based immigrant visa petitions 365 days prior to the sixth year allows the H-1B worker to apply for an additional year be yond the sixth year.

In Tyranny of Priority Dates and subsequent articles, we pointed out the long delays befalling skilled immigrants due to the backlogs in the priority dates, and proposed remedial measures, including the ability of an H-4 spouse to work. Our prior analysis of H-4 spousal employment and earlier indications that the USCIS recognized the problem and intended to do something about it provide a helpful context against which the importance of this latest development can be measured. .

The proposed rule to grant work authorization to H-4 spouses is much welcomed recognition of this problem. It acknowledges the contributions of foreign born immigrants, especially in the tech industry, and cites the findings of Vivek Wadhwa that in 25% of tech companies founded between 1995-2005, the chief executive or lead technologist was foreign born.  Indeed, the preamble to the proposed rule acknowledges that certain beneficiaries of I-140 petitions under the India EB-3 preference may have to wait over 10 years to obtain permanent residence. In the meantime, the H-4 spouse cannot seek employment, and is also prohibited from other work related activities such as engaging in self-employment through a home based business. While only Congress could create new visa categories, we argued that the Executive under section 103(a) of the Immigration and Nationality Act was charged with the administration and enforcement of the INA. Also, the Executive had authority to grant work authorization to any aliens under INA section 274A(h)(3). Under these provisions, we had proposed that the Executive could provide relief for beneficiaries, including spouses, of approved I-130 and I-140 petitions through the grant of employment authorization who were caught in the crushing backlogs. After all, these people were in the pipeline for the green card, but for the backlogs in the priority dates.  The H-1B visa also allows for “dual intent,” as it permits one to apply for permanent residency even though it is technically a nonimmigrant visa.

The proposed rule now recognizes, as we did in The Tyranny of Priority Dates, the ability of the Executive to pass ameliorative measures in the face of crushing delays for those in the green card queue.  While Congress has still not been able to pass a reform of the broken immigration system, the proposed rule  further acknowledges that the Executive has the legal authority to authorize spousal employment pursuant to INA sections 103(1) and 274A (h)(3) Resting on this foundation, the proposed rule further relies on INA sections 214(a)(1), which authorizes the Executive to prescribe regulations setting forth terms and conditions with respect to the admission of nonimmigrants into the United States.  Recognizing that H-1B workers and their spouses would be green card holders but for the backlogs in the priority dates, Commerce Secretary appropriately stated, “These individuals are American families in waiting.”

The granting of work authorization to H-4 spouses if the principal spouse has applied for an AC 21 extension also resolves the conundrum when both spouses are on H-1B visas and are reaching the sixth year on their H-1B visas. Under this situation, the spouse who was not the subject of a labor certification was generally forced to switch to H-4 status, and was then prohibited from continuing employment.  In Two H-1B Spouses: One Labor or Certification we advocated how both spouses could take advantage of the labor certification filed on behalf of one of the spouses in order to get a seventh year extension. While there is a sound basis to argue that AC 21 would benefit the spouse who was relying on the labor certification filed on behalf of the labor certification, since this is the basis for their adjustment of status,  the USCIS did not always interpret AC 21 section 106(a) broadly to benefit both spouses. Now, thankfully, this uncertainty will no longer exist. The spouse who is not the subject of the labor certification can switch to H-4 status and can still apply for work authorization. At the same time, we still advocate that a spouse on an H-1B visa be able to rely on the other spouse’s labor certification or I-140 to seek an H-1B extension beyond the sixth year limitation. There will be occasions when it is more expeditious for the spouse to file an H-1B extension and continue working, rather than file for a change of status to H-4 and then apply for an employment authorization document before re-starting work again. This is an excellent illustration of how doctrinal clarity by the USCIS can promote robust operational flexibility by aliens and their advocates.

The proposed rule also resolves another uncertainty. H-4 spouses who were able to file an I-485 adjustment of status application for permanent residency could always apply for work authorization by virtue of filing the I-485 pursuant to 8 CFR 274a.12(c)(9). What was not clear is whether such H-4 spouses forfeited their right to remain in H-4 status if they engaged in work pursuant to an employment authorization under 8 CFR 274a.12(c)(9) while their I-485 applications remained pending. The proposed rule in footnote 13 appears to suggest that they did not violate their status. The rule will create  8 CFR 274a.12(c)(26) as a basis for H-4 spouses to apply for work authorization, and suggests that H-4 spouses who previously availed of work authorization under 274a.12(c)(9) can also avail of work authorization under 274a.12(c)(26). If the spouse lost H-4 status by engaging in employment pursuant to 274a.12(c)(9), it would not be possible for the H-4 spouse to now take advantage of new 274a.12(c)(26).  As with the H-1B  itself, the proposed H-4 rule recognizes and diffuses the tension between the constraints of nonimmigrant visa categories, such as the H-1B which is employer-specific or the H-4 that  hitherto was not allowed to sustain employment, and the adjustment of status provision in INA Section 245 that grants open market employment.

Many advocates feel that the rule did not go far enough and could have granted work authorization for all H-4 spouses without condition.  After all, the L-1 and E visas, allow dependent spouses to apply for  work authorization immediately upon being admitted under those statuses. On the other hand, the authorization to grant spouses of L and E nonimmigrants work authorization stems from Congress, although J-2 spouses who do not support the principal J-1 exchange visitor work solely through regulation Congress has not specifically authorized work authorization for H-4 spouses, although there is authority in the INS, as discussed, which still provides such authority to the DHS. While this is fair criticism, the Administration also faces withering opposition from anti-immigration advocates, including the likes of Senator Charles Grassley (R-IA), who question whether there is any authority at all to grant work authorization. Hence, the middle ground to grant work authorization benefits to H-4 spouses who are already on the pathway to permanent residence but are caught up in the backlogs. The proposed rule also acknowledges that this ameliorative measure is consistent with AC 21, which was enacted so that the principal H-1B spouses could continue to remain in the United States beyond the sixth year, and thus avoid disruption to US employers. Limiting work authorization to H-4 spouses who are on the pathway to green cards can also more easily insulate such a rule from challenges in federal court.

Still, even under this logic, it would be preferable if H-4 spouses are able to apply for work authorization as soon as a labor certification is filed on behalf of the principal spouse. There is no need to pre-condition the grant of employment authorization upon the approval of the I-140 petition, given the delays in the PERM labor certification process, which can take two years if the application is subject to an audit or to supervised recruitment. The rule also recognizes that an H-4 can apply for employment when a labor certification is filed, but only when it is used to obtain an H-1B extension beyond the six years under AC 21. It is illogical to only allow the H-4 to apply for a work permit when the principal spouse relies on the labor certification to seek an extension beyond six years, and not otherwise. Furthermore, while the majority of H-1B visa holders may be sponsored by employers through I-140 petitions, some H-4 spouses may also be sponsored by prospective employers in their own right. H-4 spouses who are directly sponsored by employers under an I-140 petition should also be allowed to apply for employment authorization. And why limit this to only I-140s? Some H-1Bs or H-4s are also sponsored by qualifying family members through an I-130 petition. They too are Americans in waiting.

Finally, children in H-4 status have been left out and do not have the ability to apply for work authorization. Children of L-1 and E-1 visa holders are also not allowed to work, although children of J-1 visa holders can work. On the other hand, H-4 children can obtain work authorization benefits if they switch to F-1 student visa status.

We continue to call upon Congress to enact comprehensive immigration reform, including the expansion of H-1B visa numbers.  Any administrative initiative, however meaningful or positive, and this one is both, is, by its very nature, both tentative and subject to reversal. Only an INA worthy of the many difficult but exciting challenges that America must confront and master in the 21st century can provide the nation with the vision that it needs and deserves. Yet, until that happy day comes, the USCIS can and must do justice with the law that we all have. That is what has finally happened with H-4 spousal employment. Not a full and complete step certainly, but a stride forward towards a better day.

Something else needs to be said before we go. What we in the United States are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B visa debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. No decision on H quotas can or should be made separate and apart from an answer to a far more fundamental question: How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze.

An immigration system that restricts the importation of human capital hurts American competitiveness every bit as much as high tariffs or artificial subsidies. In each case, the controlled but predictable flow of capital across national boundaries is the lubricant of economic activity. Preserving the H-1B as an instrument of job creation for Americans while enhancing the ability of foreign professionals to make our cause their own is an essential and irresistible component of comprehensive immigration reform. Allowing some, though not all, H-4 spouses to work is a key step in this direction. The DHS estimates that 100,600 H-4 spouses will apply for work authorization in the first year and 35,900 will initially apply in subsequent years. For those concerned about the impact on the US labor market, these H-4 spouses would in any event be able to work once the principal H-1B spouse applied for adjustment of status. They will also be able to contribute to the US economy, and the incentive provided to them will also encourage the H-1B spouse to stay on in the United States. We have every good hope that is will lead to ever more confident strides in the days to come. It is in the very nature of reform in the liberal tradition for progress to be incremental.  If the Chinese maxim that “the journey of a thousand miles begins with a single step,” retains its power to teach,  as we believe it surely does, we who legitimately want much more than the H-4 spousal regulation offers should not, even for a single moment, divert our eyes from the very real progress that has now been taken.

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

WILL KAZARIAN CHANGE THE 0-1 VISA?

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By Gary Endelman and Cyrus D. Mehta
The value of the O-1 visa is its flexibility, an adaptive quality that enables it to respond to the different needs of different petitioners. Any formulaic approach that restricts the full and open expression of such subtlety not only reduces the value of the O-1 but undermines its bedrock utility. That is why the stated willingness of the USCIS to apply a subjective Kazarian-style final merits analysis in the O-1 context, even after the applicant has satisfied the evidentiary criteria, should arouse our most serious concern. This is true for several reasons. Not only does such a constricted view of the O-1 prevent it from being all that it can be, but it blurs the distinction between the O-1 and the EB1-1 extraordinary ability immigrant petition, two different visa categories with different purposes. Just as the approval of an O-1 nonimmigrant petition does not ensure similar approval of an EB1-1 immigrant petition, the analytical tools used by USCIS examiners to evaluate the merits of these distinct categories must themselves remain separate.

With this as our starting point, what do the regulations tell us about the O-1? The O-1 visa is a useful visa for people, under INA §101(a)(15)(o), who can demonstrate extraordinary ability in the sciences, arts, education, business or athletics. Unlike the H-1B visa, it is not subject to an annual cap. It can also be availed of by artists and entertainers, people who are traditionally self-employed, as long as an agent serves as a sponsor. Although the “extraordinary ability” standard is a high one, artists can prove their eligibility under a lower “distinction” standard pursuant to INA §101(a)(46). Those qualifying for an O-1 visa in the motion pictures or television industry have to demonstrate extraordinary achievement, rather than extraordinary ability. There are thus three different standards under the O-1 visa.

Extraordinary ability in science, education, business or athletics means “a level of expertise indicating that the person is one of the small percentages who have arisen to the very top of the field of endeavor.” 8 CFR 214.2(o)(3)(ii).

The extraordinary criteria, as set forth in 8 CFR 214.2(o)(iii), are as follows:

(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media.

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

Extraordinary Achievement in the motion pictures and television means a “very high level of accomplishment in the motion picture or TV industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered.” 8 CFR 214.2(o)(3)(ii).

As already noted, an O-1 in the arts has to prove only distinction. While “extraordinary achievement” and “distinction” may appear to be two separate standards, the criteria for demonstrating extraordinary achievement in the motion picture or TV industry or distinction in the arts are almost identical, and  set forth at 8 CFR 214.2(o)(3)(iv) and (v), which are as follows:

(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements;

(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or

(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

If the above criteria do not readily apply, only those establishing distinction in the arts can submit comparable evidence. People trying to qualify for an O-1 visa under the extraordinary achievement standard for motion pictures and the TV industry cannot submit comparable evidence.

All O-1 petitions must be accompanied by consultations from the appropriate unions, and if they do not exist, may contain opinions from expert sources.

Recent unpublished decisions from the Appeals Administrative Office are applying the two-part approach in Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010). When Kazarian was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability under a green card category pursuant to INA § 203(b)(1)(A)(i) would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary. We point readers to Cyrus Mehta’s blog, How Extraordinary Does One Have to Be to Qualify as a Person of Extraordinary Ability, for a detailed analysis of the Kazarian decision and how the USICS has interpreted it.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum“), United States Citizen and Immigration Services (USCIS) implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. Here is the first, but unfortunately not the last, indication of a desire by the USCIS to utilize the final merits methodology of Kazarian in case types not mentioned in or justified by Kazarian itself. While the USCIS doubtless may view the extension of Kazarian to the O-1 as a logical expansion of its prior application to EB1-(2) outstanding researcher and EB-2 exceptional ability cases, skeptics may properly question whether this ever-widening deployment signifies not a greater precision but a lack of programmatic restraint.  The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to   include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (v), the Service seized on the following excerpts in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and

(2) … [W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d at 1121.

Under this two part test as it applies to an EB-1(1) extraordinary ability petition, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this extra evidentiary factor into consideration, namely, the lack of reaction in the research community, during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS can still do under the “final merits determination.”

The authors question whether it is appropriate for the AAO to adopt the Kazarian two step analysis to O-1 petitions. Kazarian involved an extraordinary ability petition under INA § 203(b) (1)(A)(i), which is the employment-based first preference category (EB-1), through which an alien obtains lawful permanent residence. While the extraordinary ability criteria under the EB-1 may be identical to the O-1 extraordinary criteria for science, education, business and athletics, the criteria for extraordinary achievement in the motion picture and TV industry and for distinction in the arts are markedly different. Moreover, the O-1 visa petition requires a consultation from a union or expert opinion. A favorable opinion from the relevant union for an artist ought to be given deference by the USICS.   Injecting Kazarian into the O-1 visa adds needless subjectivity into the decision making process.

Kazarian’ s two-part test and final merits determination analysis runs counter to  prior decisions such as, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234. Similarly, in Muni v. INS, 891 F. Supp. 440 (N.D. Ill. 1995), a federal court reversed a denial for a professional hockey player where INS did not apply the proper criteria for extraordinary ability, and based its decision  on the ground that he was not an all-star or one of the highest paid players. Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. In fact, such a burden shifting approach is not unknown in other aspects of immigration law. If the Kazarian final merits determination analysis was deployed at that time, both Muni and Buletini, a leading physician in Albania, may have suffered a different fate.  As our colleague David Isaacson has pointed out, in the asylum context, an applicant who demonstrates that he or she has suffered past persecution on account of a protected ground is rebuttably presumed to have a reasonable fear of future persecution on that same ground.  8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).  In such cases, by regulation, “the Service shall bear the burden of establishing by a preponderance of the evidence” that a change in circumstances, or the reasonable possibility of relocating within the country of persecution, should lead to a denial of asylum.  8 C.F.R. §§ 208.13(b)(1)(ii), 1208.13(b)(1).

Moreover the USCIS Policy Memorandum, which invented this two-part test from its interpretation of Kazarian, does not indicate that it would apply this test to O-1 visa adjudications, even though it has extended the two-art test to outstanding professors and researchers and aliens of exceptional ability.  On the other hand, the USCIS Adjudicator’s Field Manual (AFM) section on O-1s ( 33. 4(d))  states, as follows:

For an O-1 or O-2 case, the adjudicator must determine whether the alien meets the standards as outlined in the regulations cited above; however, he/she cannot make a favorable determination simply because the petitioner has submitted three of the forms of documentation mentioned. It must be a decision based on whether the total evidence submitted establishes that the alien of extraordinary ability has sustained national or international acclaim and recognition in his field of endeavor; or in the case of an alien of extraordinary ability in the arts and extraordinary achievement in the motion picture or television industry, whether he or she has a demonstrated record of high level accomplishment or a high level of achievement (or “distinction”).

However, it is not clear from this passage whether the USCIS intended to specifically apply the Kazarian “final merits determination” approach. The USCIS, and the predecessor Immigration and Naturalization Service, has always insisted that the alien overall meet the standard of extraordinary ability, but this was never meant to be as expansive as the Kazarian final merits determination. Rather, under the Buletini standard, the burden was on the government to the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.

The positive aspect of Kazarian, which established that the USCIS cannot create extra-regulatory criteria during the adjudication of a visa petition,  without formally amending the regulation through notice and comment to stakeholders, ought to be applicable to all visa petitions. On the other hand, introducing the vague and subjective “final merits determination” to O-1 visas will needlessly add subjectivity to the process, when Congress specifically required that O-1 visa petitions be accompanied by union consultations and expert opinions. Kazarian was also a decision that deals with the extraordinary criteria under the EB-1, while the O-1 visa has three different standards – extraordinary ability, extraordinary achievement and distinction. The guidance fails to alert USCIS adjudicators on how they could specifically apply the “final merits determination” standard to extraordinary achievement and distinction.  It is also important to restrict the application of the Kazarian final merits determination to other visa adjudications, or else there will be no limitation to the reach of the final merits determination. Will is also impact H-1B and L visa adjudications?  The long-range impact of what charitably be called “doctrine creep” is not hard to fathom. If the USCIS were to use the Kazarian final merits exercise much as it now deploys the Neufeld Memo, the meaning of “extraordinary ability” would be transformed beyond all ready recognition, much as the right of control has evolved beyond the imagination of the regulation that created it. When Congress enacted the standards for visa petitions, it intended adjudicators to faithfully apply those standards to either approve or deny the petitions. The infusion of the Kazarian “final merits determination” to visa adjudications would allow USCIS adjudicators to impermissibly stray from those standards.

Beyond that, to wrap the O-1 in an analytical straitjacket is yet another disturbing example of legislation through interpretation by the USCIS. While the INA itself does not change, what it means most certainly does change. All this comes about without the assent of Congress, whether expressed or implied, and in the absence of any notice and comment rulemaking mandated by the Administrative Procedures Act, thus eliminating the possibility of participation by concerned stakeholders. We all remember how the Administrative Appeals Unit decision in the New York State Department of Transportation case completely changed the meaning and practice of the National Interest Waiver. More recently, the USCIS jihad against the L-1B visa category and what amounts to a de facto rejection of the very concept of specialized knowledge has, in practice, repealed this visa provision to a very large extent. Is the O-1 now to suffer the same fate? What may be the most hard to detect damage resulting from invoking Kazarian in the O-1 arena is the fact that the evidence submitted by an O-1 petitioner is now to be judged by criteria that cannot be defined or even anticipated in advance Any attempt by the USCIS to use Kazarian to complicate the O-1 must be resisted. Complexity that exists for its own sake, not as an aid to an intellectually honest assessment but as a substitute for it does not advance the national interest. In a democratic society, the logic of any successful national policy must be transparently obvious to those who have to obey and support it. That is why the blurring of distinction between the O-1 and the Kazarian final merits determination is not only of little benefit to its intended beneficiaries, but actually frustrates any coherent attempt to make the system more amenable to consistent interpretation and effective enforcement.

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

Immigrant Power: Naturalized American Wins Boston Marathon

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Today is a day to celebrate. One year after the devastating bombings at the Boston Marathon, Meb Keflezighi won the Boston marathon. Keflezighi is a naturalized American. “I’m blessed to be an American and God bless America and God bless Boston for this special day,” Keflezighi said.

Read more here: http://www.star-telegram.com/2014/04/21/5753571/american-meb-keflezighi-wins-boston.html#storylink=cpy

This victory resonates much stronger as it comes one year after the horrific bombs resulted in 3 deaths and over 260 injured. The surviving bombing suspect, Dzhokar Tsarnaev, is also a naturalized American. His brother, Tamerlan Tsarnaev, who got killed in the shootout last year, unsuccessfully tried to naturalize.

In the immediate aftermath of last year’s bombings, Senator Grassley cynically attempted to tie the Boston marathon attacks to immigration reform. “We appreciate this opportunity to talk about immigration reform in light of all that has been happening in Massachusetts, ” said Senator Grassley. Fortunately, the Senate immigration reform bill, S. 744, still got passed, but it included provisions that would make it more difficult for people to get registered provisional status depending on their country of origin as a result of additional security screening,  and another provision would lead to the revocation of asylum or refugee status if the person visited his or her country of persecution without good cause.

Today, after Keflezighi’s spectacular win, against all odds, no one can and should link immigrants to terrorism. Most immigrants are like Keflezighi, who aspire success for themselves and their families. This is the story of immigration, which is also an Americans story, told over and over again.

Even after the 9/11 attacks, and despite the unfortunate profiling of immigrants from certain countries in the immediate aftermath, immigrants still won. Although  immigration benefits, including obtaining a green card through a marriage with a US citizen, are now viewed through the prism of national security, the immigration system was never radically altered. There was no diminishing of the already meager quotas, and immigrants still came and continue to come to America to make it richer and more diverse.

In this context, Keflezighi’s win is most powerful. An American, who was born in Eritrea,  has won the Boston marathon after Lisa Larsen Weidenbach won in 1985 and Greg Meyer in 1983. While an immigrant has won for America today, millions of  immigrants, through their achievements big and small, win for America all the time.

The urgency to reform our broken immigration system is felt more so today when we can be attracting many more Mebs who will not only excel in sports, but also in scientific achievements and creating innovative companies.  The marathon began last year when the Senate deliberated on and passed a comprehensive immigration reform bill. When will the House joins the race to reach the finishing line and help us all win big time for America?