Cora-Ann Pestaina

BALCA ON THE HOME OFFICE OPTION

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It’s time for another lesson, courtesy of BALCA (Board of Alien Labor Certification Appeals).  In a November 2010 blog entitled PERM AND THE ROVING EMPLOYEE I discussed different types of roving employees and the existing BALCA or DOL (Department of Labor) guidance on how recruitment for these types of positions ought to be conducted. I raised the question, “What should the employer do when the employee works from home in a location that is different from the employer’s headquarters?” and stated “[this] less common issue of the home office has not yet been the subject of a BALCA decision.”

In an October 2011 blog entitled, BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS, with still no definitive word from BALCA on the home office issue, I discussed Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) where the DOL’s CO (Certifying Officer) had denied the employer’s PERM application because the recruitment failed to state that subsidized housing was being offered to the qualified US worker. In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. In my blog, I suggested that an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment and that the choice not to list the “work from home” benefit should not serve to deter any US workers from applying for the position because US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. While I presented an argument that could have been made after receipt of a PERM denial, readers of that blog would likely have taken away that it is certainly better to list the “work from home” benefit in all of the recruitment. BALCA has finally spoken on this issue and has made the requirement very clear.

In Siemens Water Technologies Corp., 2011-PER-00955 (July 23, 2013), the employer filed a PERM application for the position of Field Service Engineer. In all its recruitment the employer listed Houston, Texas as the location for the job opportunity and conducted recruitment from that location. The PERM was audited and in its audit response, the employer explained that the primary worksite listed on the ETA Form 9089 was the same as the foreign worker’s home address because the Field Service Engineer would be permitted to work from home and travel to various client sites as necessary. The CO denied the application because the benefit of working from home was not offered to U.S. workers.

In its Request for Reconsideration, the employer argued that there is no regulation that requires advertisements to indicate that the geographic location is a home office. The employer argued that its recruitment was properly conducted based on the Texas worksite address and in support of its position cited minutes from the DOL’s March 15, 2007 Stakeholders Liaison Meeting which read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer’s headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer’s headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee’s region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company’s headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite. AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer’s headquarters.

Please see answer to number 19 above.

The employer argued that its recruitment did not contain any terms and conditions of employment that were less favorable than those offered to the foreign national. The CO denied reconsideration and forwarded the case to BALCA.

BALCA held that the employer’s reliance on the minutes of the Stakeholders Liaison Meeting was misplaced and stated that while the employer may indeed conduct recruitment from the location where the foreign national resides and may list the foreign national’s address as the primary worksite on the ETA Form 9089, the minutes of the Stakeholders Liaison Meeting are silent on what geographic location should be included in the advertisements in cases where the applicant would work from home. BALCA found that applicants reading the employer’s advertisements would think that they were restricted to working in Houston, Texas when, in contrast, the foreign national was given the option to work from his home which did not necessarily have to be in Houston, Texas. BALCA held that the recruitment was unduly restrictive and misleading and could have prevented potential US applicants from applying for the job. Although the CO did not cite this in the initial denial, BALCA also found that the recruitment violated 20 CFR § 656.17(f)(3) and (4) because it was not specific enough to apprise applicants of where they would have to reside to perform the job and applicants were also not informed of the travel requirement that the employer explained in its audit response.

Time and time again we see that the fact that the PERM regulations provide no guidance on a particular issue is no defense when the DOL decides that an error has been made. As practitioners, we are left constantly trying to anticipate potential novel reasons for denial. We cannot confidently rely on existing guidance but must somehow anticipate future guidance and comply with that! One of the main takeaways from this case is that, as a rule of thumb, it’s a good idea to include in the recruitment any unusual benefit that will be given to (e.g. work from home, subsided housing) or requirement that will be asked of (e.g. travel, relocation, mandatory week-end employment) the qualified candidate for the offered position.
Cyrus Mehta

CAN AN UNDOCUMENTED LAWYER PRACTICE IMMIGRATION LAW?

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All eyes are focused on whether the California Supreme Court will grant an undocumented lawyer a law license in the case of Sergio Garcia. If an undocumented lawyer like Garcia is granted a license, what would happen if he chooses to practice immigration law? In the past, undocumented lawyers who practiced immigration law have been disciplined by bar counsel within the immigration agencies.  The same fate should not befall future undocumented lawyers if they choose to practice immigration law after the state has granted them a license to practice law.

The first question is whether an undocumented lawyer can be granted a law license by the relevant state.  The Department of Justice has arguedthat 8 USC §1621 prohibits a state from granting a public benefit to an undocumented alien, which also includes a professional license. At the oral argument last Wednesday, September 4, the judges seemed to agree with the DOJ’s position. However, 8 USC §1621 also allows a state to bypass §1621 by enacting specific legislation that could grant a benefit to an undocumented alien. Thus, even if the California Supreme Court rules against Garcia,  the California legislature has passed specific legislation, AB 1024, that would authorize the granting of law licenses to undocumented aliens. This legislation, if signed by the governor,  will moot the case in the California Supreme Court, but the DOJ is likely to make the same argument in other states.

The DOJ’s hypertechnicalargument clearly goes against the spirit of the Obama Administration’s deferred action for childhood arrivals (DACA) policy, although Garcia was too old to take advantage of it. The DOJ has also argued in a similar case in Florida that §1621 precludes a state from granting a law licenses to a person who has since received work authorization under DACA.  It boggles the mind as to why the DOJ would read §1621 so broadly so as to oppose the granting of a license to a lawyer who has been authorized to remain in the US and work under DACA.

There are compelling arguments why an undocumented lawyer should be granted a law license. A law license should be separated from the ability to work in the US. There are many foreign lawyers who get law licenses in this country even though they may not be eligible to work in the US. They have entered the US on student or tourist visas, and take the state bar exam. While they may not be able to remain in the US longer than their visa and plan to return to their countries, they are nevertheless granted a license based on their competence and fitness to be lawyers. Such lawyers can practice US law in their own countries, and even apply their knowledge of such law, when they legitimately visit the US for business purposes.

With respect to an undocumented lawyer who may remain in the US, he or she need not be employed by an employer in violation of federal immigration law. Such a lawyer could potentially work as an independent contractor or perform pro bono work as a volunteer without potentially violating the employer sanction laws. The DOJ in its brief cites Matter of Tong, 16 I&N Dec. 593 (BIA 1978) to argue that self-employment qualifies as working without authorization. But Matter of Tong was decided long before the Immigration Reform and Control Act of 1986, which made it unlawful for an employer to hire a person who is not authorized to work in the US. Matter of Tong only held that an alien who engages in self-employment, when otherwise not authorized to work, cannot adjust status under INA §245. It does not prohibit self-employment, and in any event, an undocumented person is ineligible to adjust status.

So, what would happen if an undocumented lawyer is granted a license, which is about to happen in California,  and then decides to practice immigration law? The DOJ’s brief in the Sergio Garcia case cites instances of disciplinary action taken against licensed attorneys who were not authorized to work in the United States by disciplinary counsel within the USCIS and the EOIR . See Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ July 8, 2009) and Matter of Noel Peter Mpaka Canute, D2020_124 (OCIJ March 16, 2001). In both the cases, the attorneys had work authorization and then fell out of status, but never contested the charges and consented to the order of discipline. They were indefinitely suspended, but could apply for reinstatement if they could demonstrate that they had lawful immigration status or were granted employment authorization. Both of these attorneys were then reciprocally disciplined by their state bars in New Yorkand Coloradoand other states where they were admitted as attorneys.

Despite the groundswell of support for granting licenses to undocumented attorneys, bar counsel within the immigration agencies could potentially start disciplinary actions against them if they practice immigration law based on the prior precedents.  When a state has granted a law license to an undocumented lawyer, knowing fully well that the lawyer is undocumented, one is hard pressed to think about the ethical basis to discipline a lawyer who decides to practice immigration law. Under 8 CFR 1.1 and 1001.1, both the DHS and EOIR must recognize an attorney “who is eligible to practice law in and is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, and is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law.” An undocumented attorney who falls under this definition is recognized under federal law to engage in the practice of immigration law.

Although the two published decisions are devoid of details as the immigration attorneys conceded to the disciplinary charges, it is hard to find a disciplinary ground under the federal immigration rules in 8 CFR 1003.102 that would sanction an undocumented attorney who chooses to practice immigration law, especially if such an attorney is not employed in violation of the employer sanction provisions, practices as an independent contractor and otherwise engages in ethical conduct. Moreover, in the unfortunate event that such an attorney does get disciplined by the immigration agencies for merely being undocumented, it would be equally hard for a state disciplinary authority to find a reciprocal disciplinary ground under the various state rules of professional responsibility, which have largely adopted the ABA Model rules.  Even ABA Model Rule 8.4(c), which can sanction attorneys who “engage in conduct involving dishonesty, fraud, deceit or misrepresentation” or Rule 8.4(d), which sanctions attorneys who “engage in conduct that is prejudicial to the administration of justice” can hardly apply to an undocumented lawyer who has been granted a license by his or her state bar, and who otherwise does not engage in unethical conduct.

Even from a public policy standpoint, a foreign national lawyer, who is otherwise in H-1B visa status, can fall out of status unbeknownst to him or her if the employer forgets to timely file an extension of the H-1B status. This lawyer may have also mistakenly received an I-94 authorizing him or her to remain in the US up to a date earlier than the date on the H-1B approval notice, and the lawyer only finds out after it is too late.  A lawyer may have also applied for adjustment of status based on marriage to a US citizen, and timely applies for a renewal of the employment authorization document, but may not receive such a document from the USCIS in a timely manner. Lawyers who find themselves in such situations, and while waiting for the government to extricate themselves from this mess, may still wish to engage in a pro bono case for a foreign national client. Should such a lawyer be disciplined for unethical conduct?

The disciplining of an undocumented lawyer also goes against the grain of prevailing policies and attitudes towards undocumented immigrants. There are millions of undocumented people who are waiting for immigration reform, and the Senate has already passed S. 744, which will give them Registered Provisional Status, and then put them along the pathway to permanent residency and eventually citizenship. Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria pursuant to INA §240A(b), such as by being physically present in the U.S. on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or a permanent resident. Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. Until the recent fall of DOMA, a lawyer in a same sex marriage with a US citizen could not even apply for an immigration benefit through that marriage.  At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status (TPS), if a calamity were to befall his or her country such as the recent TPS program and its extension for Haitians after the devastating earthquake on January 12, 2010. Conversely, a documented person, such as one in H-1B status can according to the government also technically be considered not in status, during the pendency of an extension request, although this position has been successfully challenged.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), which held that undocumented children could not be deprived of a public education, is worth noting:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

As undocumented immigrants become attorneys, many may want to get involved in some way in the practice of immigration law. Many of them were brought to the US as children and are without status for no fault of their own.  They may engage in advocating for the rights of immigrants, for immigration reform and may also perform pro bono work in the immigration field.  They can hardly be accused of engaging in unethical conduct by bar counsel within the immigration agencies, especially when their states have granted them licenses after being fully aware of their undocumented status.

(The view’s expressed in this blog are the author’s personal views and do not necessarily represent the views of any organization that he is a part of)

Cyrus Mehta

AMERICA’S ROLE IN SYRIA AFTER THE CHEMICAL WEAPONS ATTACK AND IMMIGRATION REFORM

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By Gary Endelman and Cyrus D. Mehta

After hearing about the horrific killing of civilians in Syria in a chemical weapon attack, President Obama stated:  “We have concluded that the Syrian government in fact carried these out. And if that’s so, then there need to be international consequences.” The United States may resort to this military action alone, even though Britain has backed out, although France too believes that there must be a serious deterrent to discourage the use of chemical weapons again. The potential use of force against another country brings up the specter of Iraq, when we went to went to war on false information that Saddam Hussein had weapons of mass destruction. This time it is different. There is conclusive proof of a chemical weapons attack, and it is sad to see images of rows of bodies of innocent children, which was most likely perpetrated by the Assad regime in Syria.

Still, people are legitimately questioning America’s role and whether it is legal for America to use force without a Security Council resolution. It is a foregone conclusion that Russia, which is a steadfast ally of the Assad regime, will veto any proposal in the Security Council to militarily intervene through a UN force to protect the Syrian people from future chemical weapon attacks. The United States, along with France, is attempting to assert and develop a new legal doctrine to bypass the Security Council, which is that a country can use force to protect the citizens of another country that have been killed, such as in the Syrian chemical weapon attack.  They use the recent example of NATO’s use of force during the Kosovo crisis in 1999 and bypassing the Security Council in the face of a Russia veto, that prevented Milosevic from further slaughtering the Albanians, and which resulted in his downfall. Today, Serbia is a member of the European Union and Kosovo is an independent country. Kosovo is a successful example of countries intervening through force to stop a humanitarian disaster. On the other hand, the world stood by when there was genocide of unimaginable proportions in Rwanda.

No matter what people think, but America still remains the superpower and is expected to lead the rest of the world during such a crises. America will never win universal admiration as a superpower and it will make terrible mistakes, like the Iraq invasion, whose specter still haunts us and inhibits countries today from intervening in the affairs of another sovereign state even in the face of an actual chemical weapon attack that has resulted in the slaughter of thousands of innocents (including 400 children) like insects killed by pesticide.

If America, as a superpower, continues to play the role of a cop in world affairs by virtue of its superpower status, it will have more moral legitimacy to do so if it embraces people from the world through a humane and compassionate immigration system.  It is a system that allows immigrants to quickly integrate and become part of America regardless of their nationality, religion or ethnicity. Even though our immigration system is presently broken and does not permit all deserving people to become legal, American has not en mass deported its 10 million undocumented immigrants.   The world would much rather prefer America as a superpower that embraces immigration than a rising superpower such as China, which may not in the same way as America. In the same vein, if America is trying to develop a new international legal norm, which is the right to protect people and bypass the moribund Security Council, even if one does not agree whether use of force is the only way to protect, America will have more legitimacy to do that if it is still looked upon as the beacon for hope through its immigration system.

At the dawn of the American Republic, Thomas Paine in Common Sense rightly and most proudly proclaimed that “the cause of America is in a great measure the cause of all mankind.” In this fateful hour of decision, with history and our conscience the only sure guide, surely the reverse must be true.  From the time that Thomas Jefferson in the Declaration of Independence attacked King George III for interfering with immigration, since the first Congress enacted the Naturalization Act of 1790, our immigration system has been a symbol of what kind of a people we are and what manner of nation we seek to become.  The many ideological grounds of exclusion in the 1952 Immigration Act eloquently reflected the anxieties and prejudices of the Cold War.  The abolition of the national origins quota in 1965, passed the same year as the Voting Rights Act, testified to the nation’s belief in the promise of equality for all. The Refugee Act of 1980 was the embodiment of our continued commitment to the preservation and promise of America as a refuge for the persecuted and the oppressed. The Immigration Act of 1990 by tripling the number of employment-based visas and creating the national interest waiver reflected a growing national realization that participation in a global economy required an enhanced readiness to accept and admit the best and the brightest from all nations regardless of nationality. An American that readily  embraces immigrants from around the world will be more likely to better understand the world.

Therefore, while the Obama Administration and Congress are involved with Syria, they must not lose focus on Comprehensive Immigration Reform. The Senate Bill, S. 744, which has already passed the Senate, will expand pathways for people to come to the US, and will also legalize more than 10 million people. If the House passes a similar version of S. 744, a reformed immigration system will continue to burnish America’s role in the world.  Perhaps, no other country would have legalized 10 million of its undocumented population ever, regardless of where they have come from, and put them on the path towards becoming Americans. The significance and impact of such an immigration measure would give America more moral legitimacy to speak on behalf of the world and to seek to establish new international legal norms that would protect vulnerable populations from future humanitarian disasters such as the chemical weapons attack we witnessed in Syria. Now, it is our turn to decide if our policy abroad and our actions at home will honor Dr. King’s teaching that “the arc of history is long but it bends towards justice.”

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

Cyrus Mehta

Nearly 12 Years After 9/11 Applicants Perceived as Muslims Still Targeted Under a Secret Immigration Program

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After the 9/11 attacks, anything and everything concerning immigration has been viewed through the prism of national security. Even a straightforward bona fide marriage between a US citizen and foreign national spouse will only be approved after every aspect of the spouse’s information is extensively checked against humongous and error-prone national data bases. In the immediate aftermath of 9/11, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism.

The Bush Administration in 2003 implemented Special Registration, which applied to males from 26 countries, 25 of which had significant Islamic populations. Dutifully, 85,000 people lined up to register, thinking that they should cooperate with the government. 13,000 men who were found to have immigration violations, many of whom may have been on the path to getting green cards, were placed in deportation proceedings. Those who failed to register during the filing window continue to be affected even today, and may be unable to apply for an immigration benefit even through marriage to a US citizen.

One would like to think that in 2013, this wholesale profiling against people because of their nationality or religion would have stopped, but a little known program known as Controlled Application Review and Resolution Program or CARRP since 2008 has been targeting some  applicants who are Muslim or perceived as Muslim for immigration benefits from Arab, Middle Eastern, Muslim and South Asian communities, resulting in their applications languishing in limbo or being denied for reasons other than merit. Immigration attorneys have always suspected this all along, but thanks to the ACLU, there is now a damming report that has unearthed the workings of CARRP, which according to the ACLU is code for “Muslims Need Not Apply.”

CAARP essentially discourages the granting of an application, whether it is for citizenship or for another immigration benefit, to anyone who presents a national security concern. CAARP, an unusual acronym in its own right has engendered other peculiar acronyms and terms, many with devastating consequences for the applicant. An applicant may be identified as a national security concern if she is a Known or Suspected Terrorist (KST) or a Non-Known or Suspected Terrorist (Non-KST). A KST is someone whose name has been thrown into the over-inclusive Terrorist Watch List. One need not be suspected of terrorist activity for one’s name to be included in the Terrorist Watch List.

If the person is not a KST, then CARRP directs immigration officers to look to any other relevant sources to find whether an applicant is a national security concern, and thus a Non-KST. First, CAARP directs officers to examine the security and terrorism grounds of  inadmissibility and deportability under INA Sections 212(a)(3)(A), (B), (F) and 237(a)(4)(A) and (B) to determine whether the applicant’s association with any persons or associations can render him a Non-KST. Second, CAARP instructs that the assessment under these overbroad INA provisions do not need to satisfy the legal standard for determining admissibility or removability in order to designate an applicant as a national security concern. As a result of this directive, many Muslim applicants who may have given donations to charitable organizations that have later been designated as terrorist organizations have become national security concerns even though they did not know of the designation. Such a person cannot have provided “material support” to a terrorist organization if he or she “did not know or should not have reasonably known” of it and cannot be found inadmissible or removable. Still, CAARP allows officers to implicate applicants under these provisions as national security concerns even though they are not technically admissible or removable.

CAARP allows officers to even look beyond the parameters of these provisions through “other suspicious activities” such as unusual travel patterns, large scale transfers or receipt of funds, or membership or participation in organizations outlined in sections 212(a)(3)(A), (B), or (F), or 237(a)(4)(A) or (B) of the INA.   Finally CAARP allows officers to wander much further to look at whether the applicant has a family member or “close associate” who is a national security concern. Such a “close associate” could be a roommate, co-worker, employee, owner, partner, affiliate or friend.

Once an applicant is designated as a national security concern, CAARP introduces another strange term, but again with adverse consequences for the applicant, called “Deconfliction.” Deconfliction means coordination between USCIS and any investigative agency, which is the owner of the national security information “to ensure that planned adjudicative activities (e.g. interview, request for evidence, site visit, decision to grant or deny a benefit or timing of the decision) do not compromise or impede an ongoing investigation.” This subjects the application to even more mind boggling bureaucratic procedures reflective of a post 9/11 paranoid national security apparatus such as internal vetting/eligibility assessment, external vetting and adjudication (aka denial).  It is not difficult to imagine that “Deconfliction” allows another agency such as the FBI to control the adjudicative process, resulting in the pretextual denial of the immigration benefit if the national security concern is not resolved. Attorneys have seen denials of naturalization applications, especially involving Muslims, where the applicant has not listed “membership” or “association” with every organization or group. The overbroad question on the Form N-400 asks –“Have you ever been a member of or associated with any organization, association, fund, foundation, party, club, society or similar group in the United States or in any other place?” It is likely that a Muslim applicant could get denied for inadvertently failing to list his association with a religious group, but a Christian applicant may not face a similar denial for failing to list her church.

With the revelation of CAARP, attorneys can explain to clients why applications have been delayed for so long, as well as take steps to protect their clients from pretextual denials if they have been designated as national security concerns. It would be worthwhile to accompany all clients for interviews who could be potentially CAARPed as well as insist that the USCIS video tape their interviews. It is also incumbent to advise the client on how to answer the overbroad question regarding his or her membership in associations or organizations on the Form N-400 or other applications, and it is best to err on the side of caution and interpret this question broadly to also include organizations to which the applicant may have made a charitable contribution. If the client forgets to provide information at the interview, it is important to provide that information as soon as possible in order to avoid a denial based on a misrepresentation to obtain benefits. An attorney can also challenge a denial if the client was not provided adverse information prior to the denial or for not being given the opportunity to contest a CARRP determination. Finally, an applicant subject to CAARP will not only face a denial, but the government may also find a way to place her in removal proceedings or even initiate a criminal prosecution. It is important to protect the client by being familiar with her history, and to pay attention to irregularities, which even if minor and may be overlooked for others, could result in the institution of removal proceedings or criminal proceedings.

While there are still legitimate concerns regarding national security, our government should not be encouraged to use secret programs like CAARP to deny the legitimate and meritorious applications of certain people applying for citizenship, green cards and other benefits for which they are legally eligible. If there is truly a national security concern, the non-citizen should be charged with removability or inadmissibility under Sections 212(a)(3)(A), (B), and (F), and 237(a)(4)(A) and (B) of the INA. Moreover, it the government has evidence, it also has the tools to criminally prosecute an individual.  The reason for not doing so is that the government does not have sufficient evidence, and instead, delays or denies the application for an immigration benefit.   Such policies do not in any way prevent terrorism; rather they alienate communities and people who are aspiring to become Americans. Just like Special Registration turned out to be a colossal failure and waste of government money, CAARP too is heading that way.  The USCIS should cancel this program and ensure that all applications be adjudicated in conformance with existing immigration law, as well as adhere to basic standards of fairness and due process.

Cyrus Mehta

The Lazarus Effect: How Comprehensive Immigration Reform Can Survive The House GOP and Come Back to Life

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By Gary Endelmanand Cyrus D. Mehta

“The only true test of leadership is the ability to lead and lead vigorously”

President John F. Kennedy

The Republican National Committee passed a resolution on Friday calling on Congress to pass immigration reform by the end of the year. Unlike the Senate Bill, s. 744, the Border, Security, Economic Opportunity and Immigration Modernization Act, which grants a path way to citizenship, the RNC resolution contemplates legalizing immigrants who came to the US above the age of 18, but only by granting them 2 year renewable work permits. For those who came to the US as minors, they would get a renewable 5 year permit. There is no pathway to citizenship in the RNC’s resolution.

This tepid resolution is completely at odds with BSEOIMA, which will dramatically reform the immigration system. Although the bill does not have everything that everyone wants, S. 744 offers a pathway to legalization for the 10 million undocumented, a new W visa to allow for future flows of lower skilled immigrants and attempts to clear up the backlogs in the employment and family preferences. It also reforms the existing system in many ways by removing the 1 year bars to seeking asylum, creating a startup visa for entrepreneurs, clarifying a contentious provision under the Child Status Protection Act, providing greater discretion to both Immigration and Judges to terminate removal proceedings, among many other beneficial provisions.

Therefore, it remains uncertain whether any measure that the House passes can get reconciled with BSEOIMA, which truly reforms the immigration system. The intransigence in the GOP controlled House, while frustrating the hopes and aspirations of all those who believe that a reformed immigration system will benefit America, also further foreshadows doom for the party in future elections.  What caught our attention was a statement by Senator Rubio on the anniversary of the Deferred Action of Childhood Arrivals (DACA) program, one of the main Republican architects of BSEOIMA, when he warned his party members in Congress that if they did not pass a reform bill then President Obama could extend the administrative relief for young people to everyone through administrative action.

The authors have since 2010 been advocating the ability of the President to ameliorate the plight of non-citizens trapped in a broken system through administrative measures. We have also proposed that the President can resolve the crisis in the backlogs in the employment and family based preferences by not counting derivative family members.  It was thus heartening to know that Rubio also acknowledged the President’s ability to pass an executive order, although he sees this more as a threat for his party.  First, if Obama provides ameliorative relief to millions of immigrants, it will benefit the Democrats in future elections, just as DACA benefited the President in his reelection in November 2012. Second, if the President were to expand DACA to a broader group of undocumented people, and allow them to apply for work authorization and travel permission, this might be better than the GOP immigration reform proposal, if it got passed into law as part of a compromise with the Senate. Such an executive order will not be accompanied by a needless and expensive militarization of the border (which is also a feature of S. 744), along with mandatory E-Verify that will bog down business large and small.  It will not include draconian provisions that the House might likely pass in exchange for legalization, such as authorizing enforcement of immigration law by state police or criminalizing undocumented status.

This is not to say that a Presidential executive order is a substitute for comprehensive immigration legislation. The President will not be able to grant permanent residence to the undocumented, only work authorization and travel permission, and the family and employment based preferences will continue to have a limited supply of visas. Still, in the absence of Congress passing a comprehensive bill to reform the broken system, something is better than nothing. As we have already commented, if we do not count family members, that in itself would dramatically reduce waiting times in the family and employment preferences. Many of the people who will be legalized under an executive order may be able to ultimate get permanent residence through existing pathways.  It is true that the President will not be able to increase badly needed H-1B visas through executive fiat, but it may be possible to give employers greater access to the unlimited O-1 visa by broadening the definition of “extraordinary ability” to allow many more accomplished foreign nationals to work in the US. While an executive order will not include a new start up visa, if the current Entrepreneurs Pathways initiative is implemented faithfully, many entrepreneurs can start companies in the US under existing work visa categories.

While the authors support the passage of  S.744, it is tempting to add that executive action can avoid the economic illiteracy that plagues the H-1B wage provisions embraced by the Senate as the price of passage and avoid the misguided tendency of House Republicans to extend this inflationary regime to other categories such as the TN.  Unlike S. 744, it will not discourage employers from hiring foreign nationals by mandating artificially inflated wages for foreign nationals, a feature of S. 744 that sharply conflicts with expanded H-1B quotas and more generous provisions for employment-based migration. It will not cripple start-up companies who badly desire key foreign personnel but will under the new law be unable to afford them. It will not price American companies out of the green card sponsorship market, divert precious funds that would otherwise be invested in cutting-edge research or  dry up surplus capital that would be better spent on equipment modernization. Executive action will be devoid of the hugely inflationary wage rules adopted by the Senate as part of the deal making that resulted in the passage of S. 744, thereby encouraging more employers to refrain from moving jobs offshore or to low wage labor markets out of the United States. As a result, when compared to S. 744, action now by President Obama might make it more, not less, likely that companies will sponsor foreign workers for green cards.

The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform. If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote. It is more likely that a future Congress will bless such administrative measures like the way BSEOIMA did with DACA recipients. So, in light of  all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as Rubio presciently realized)  may not be such a bad thing.

The invocation of executive action would allow the undocumented to remain in the United States with the opportunity for employment authorization and seek to utilize existing avenues for transition to lawful permanent resident status. It puts them in the same position as everyone else who seeks the green card. From this perspective, executive action would be consistent with the compromise proposal advocated by House Judiciary Committee Chair Robert Goodlatte ( R-Va.).  Many of the undocumented already have, or will, over time, acquire adult US citizen children; others may marry American citizens and still others could attract employer sponsorship. Keep them here, allow them to come in from the shadows, and let the undocumented regularize their status through the disciplined utilization of existing remedies. Not only is this a solution that does not require the House GOP to abandon dysfunctionality as their prime governing philosophy, something they are manifestly loath to do, but, even if Congressional ratification subsequently is felt necessary or desirable, this is precisely the path to legalization that Represenative Goodlatte has already outlined.

The President cannot grant more L-1 intra-company transferee visas but he can restore the relevancy of those that now exist by ending the war on claims of specialized knowledge. No new allowances for extraordinary ability can come through the stroke of a pen but an enlightened decision to banish the suffocating Kazarian final merits determination would give new hope to aliens who now have none but otherwise satisfy what the law requires.  Only Congress can exempt green card categories from the tender mercies of PERM but no legislative sanction is required to halt the use of audits as a tool of intimidation. The need for change should not blind us to the ample opportunities for remediation that the present law affords.  As valuable as comprehensive reform is, as badly needed as the benefits it will bring most surely are, no law will succeed if those who enforce and interpret it lack the moral courage and political will to usher in a newer world. As that fan of Tudor prerogative told us long ago in no less contentious times, “the fault dear Brutus is not in our stars but in ourselves.”

(Guest author Gary Endelman is Senior Counsel at FosterQuan)

David Isaacson

Waiving Goodbye to Unappealable Decisions: Indirect AAO Jurisdiction, or Why Having Your Appeal Dismissed Can Sometimes be a Good Thing

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The USCIS Administrative Appeals Office, or AAO, has administrative appellate jurisdiction over a wide variety of USCIS decisions that are not appealable to the Board of Immigration Appeals.  This jurisdiction is primarily set forth in a regulatory list that has been absent from the Code of Federal Regulations since 2003, but was incorporated by reference that year into DHS Delegation 0150.1.  Pursuant to that delegation, as manyAAOdecisionsstate, the AAO exercises appellate jurisdiction over the matters described at 8 C.F.R. 103.1(f)(3)(iii) as in effect on February 28, 2003.  (It has been previously pointed out by attorney Matt Cameron that a currently nonexistent jurisdictional regulation is an undesirable state of affairs for an appellate body; USCIS recently indicated in a July 2013 Policy Memorandum regarding certification of decisions that DHS intends to replace the list in the regulations in a future rulemaking.)

The regulatory list of applications over which the AAO has jurisdiction does not include Form I-485 applications for adjustment of status, with a minor exception relating to applications based on a marriage entered into during removal proceedings denied for failure to meet the bona fide marriage exemption under INA §245(e).  Thus, it would appear that the AAO would not have appellate jurisdiction over denials of adjustment applications, and that one’s sole administrative recourse if an adjustment application is denied would be to seek review before an immigration judge in removal proceedings, as is generally permitted (except for certain arriving aliens) by 8 C.F.R. §1245.2(a)(5)(ii).  But appearances can be deceiving.

Many, although not all, of the grounds for denial of an adjustment application are potentially subject to waiver under appropriate conditions.  If an application is denied because the applicant was found inadmissible under INA §212(a)(2)(A)(i) due to conviction for a crime involving moral turpitude (“CIMT”), for example, a waiver can be sought under INA §212(h) if either the criminal conduct took place more than 15 years ago, or the applicant can attempt to demonstrate that the applicant’s U.S. citizen or lawful permanent resident spouse, parent, son or daughter would face extreme hardship if the applicant were not admitted.  Similarly, one who is found inadmissible under INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation (not involving a false claim to U.S. citizenship taking place after September 30, 1996) can seek a waiver of inadmissibility under INA §212(i) based on extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.  Various other grounds of inadmissibility are waiveable as well.

While the AAO does not have jurisdiction directly over the denial of an adjustment application, the AAO does have jurisdiction over the denial of most waiver applications.  And in the AAO’s view, appellate jurisdiction to determine whether someone should have been granted a waiver necessarily includes jurisdiction to decide whether that applicant even needed a waiver in the first place.  If the AAO finds that a waiver was unnecessary, it will dismiss the waiver appeal and remand for further processing of the adjustment application.  That is, it will decide on appeal that the applicant was not, in fact, inadmissible, and thus in effect will have reviewed the denial of the underlying adjustment application even without regard to whether a waiver would be justified if one were indeed necessary.  Although this process does not appear to be documented in any precedential AAO decision, comparatively few AAO precedent decisions of any sort having been published, this exercise of indirect appellate jurisdiction by the AAO occurs with some frequency in non-precedential, “unpublished” decisions that have been made available online (generally by USCIS itself, or occasionally by other sources).

Dismissal of a waiver appeal as moot can occur in the context of a §212(h) waiver, for example, where the AAO finds that the applicant’s conviction was not for a CIMT (see also these additional decisionsfrom 2012; 2010; February, March, Apriland June of 2009; 2008; and 2007).  Even if the applicant does have a CIMT conviction, that AAO may conclude that the applicant’s only conviction for a CIMT qualifies for the petty offense exception under INA §212(a)(2)(A)(ii)(II) and thus does not give rise to inadmissibility (see also these decisions along the same lines from Januaryand Marchof 2009, 2008, and 2006).  Dismissal of a §212(h) waiver application as moot can also occur when the AAO finds that the applicant was not convicted of a crime at all given that the official disposition of a charge was a “Nolle prosequi”, or that an applicant who was not convicted of a crime had not given a valid admission to the elements of a crime, in accordance with the procedural safeguards required by precedent, so as to give rise to inadmissibility in the absence of a conviction.  Outside the CIMT context, as well, the AAO can dismiss a §212(h) waiver appeal as moot upon a finding that no waiver is needed, such as when someone who was thought to have a waiveable conviction involving 30 grams or less of marijuana successfully points out on appeal that disorderly conduct under a statute not mentioning drugs is not an offense relating to a controlled substance.

In the context of a denial based on inadmissibility for fraud or misrepresentation, the AAO can dismiss an appeal from the denial of a §212(i) waiver as moot if it finds that the misrepresentation was not material (see also these decisions from 2010, 2009and 2007), or that an applicant who was victimized by others submitting a fraudulent application on his behalf without his knowledge did not make a willful misrepresentation, or that any misrepresentation was the subject of a timely retraction (see also this decision from 2006).  AAO dismissal of a §212(i) waiver appeal as moot can also be used to vindicate the legal principle that presenting a false Form I-94 or similar false documentation to an employer to obtain employment does not give rise to inadmissibility under §212(a)(6)(C)(i), and neither does procuring false immigration documentation from a private individual more generally, because a misrepresentation under 212(a)(6)(C)(i) must be made to an authorized U.S. government official.  Finally, AAO dismissal of a §212(i) waiver appeal as moot can occur where the only alleged misrepresentation occurred in the context of a legalization program which is subject to statutory confidentiality protection, such as the SAW (Special Agricultural Worker) program under INA §210 or a LULAC late legalization application or other application under INA §245A, and therefore any such misrepresentation cannot be the basis of inadmissibility under §212(a)(6)(C)(i) because of the confidentiality protection.

This sort of indirect AAO jurisdiction can also be used to correct errors regarding inadmissibility for unlawful presence under INA §212(a)(9)(B), if a waiver application is filed under INA §212(a)(9)(B)(v).  For example, in a 2012 decision involving an applicant who was admitted for duration of status (D/S) and had been incorrectly found to have accrued unlawful presence after failing to maintain status even absent any finding of such by USCIS or an immigration judge, contrary to the 2009 Neufeld/Scialabba/Chang USCIS consolidated guidance memorandum on unlawful presence, the AAO dismissed the appeal as moot upon finding that the applicant was not, in fact, inadmissible under §212(a)(9)(B).

The AAO’s indirect appellate jurisdiction over inadmissibility determinations has even been exercised where the initial inadmissibility determination was made not by a USCIS officer in the context of an application for adjustment of status, but by a Department of State consular officer in the context of a consular application for an immigrant visa.  In a 2009 decision, the AAO dismissed as moot an appeal from the denial of a §212(h) waiver by the Officer in Charge (OIC) in Manila, holding that the applicant did not require a waiver because the applicant’s admission to an examining physician that he had used marijuana in the past did not give rise to inadmissibility, and that Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002) (finding a valid admission to the elements of a crime resulting in inadmissibility under similar circumstances) did not apply because the applicant and the office that made the decision were located in the Philippines rather than within the jurisdiction of the Ninth Circuit.  The AAO ordered “the matter returned to the OIC for further processing of the immigrant visa application.” It explained the source of its authority in this context as follows:

The Secretary of Homeland Security (and by delegation, the AAO) has final responsibility over guidance to consular officers concerning inadmissibility for visa applicants. See Memorandum of Understanding Between Secretaries of State and Homeland Security Concerning Implementation of Section 428 of the Homeland Security Act of 2002, issued September 30, 2003, at 3.

Matter of X- (AAO June 17, 2009), at 4.

Nor was that Manila case an isolated exception, although the detailed explanation of the source of the AAO’s authority in the consular context that was contained in that decision is rarer that the exercise of the authority itself.  The AAO has also dismissed as moot an appeal of the denial of an application for a §212(h) waiver by the Mexico City district director in the case of an applicant who sought an immigrant visa in the Dominican Republic and had been convicted of a firearms offense which would properly give rise to deportability but not inadmissibility; dismissed an appeal from a decision of the Frankfurt, Germany OIC denying a §212(h) waiver for an applicant whom the AAO determined had not been convicted of a CIMT; dismissed an appeal from a decision of the Vienna, Austria OIC denying a §212(h) waiver for an applicant the AAO found had only been subject to juvenile delinquency proceedings not giving rise to a conviction for immigration purposes under Matter of Devison-Charles, 22 I&N Dec. 1362 (BIA 2001); and dismissed another appeal from a decision of the Vienna OIC where the AAO found that the applicant’s conviction qualified for the petty offense exception.  Indeed, the AAO has exercised its indirect appellate jurisdiction over a consular inadmissibility determination in at least one appeal from a decision of the Mexico City district director where “the applicant did not appear to contest the district director’s determination of inadmissibility” but the AAO found that neither of the crimes of which the applicant had been convicted was a CIMT.  The AAO’s indirect appellate jurisdiction has also been exercised in a case coming from the New Delhi, India OIC where an applicant disputed his date of departure from the United States which started the running of the ten-year bar, and the AAO found that the applicant’s actual departure had been more than ten years prior and thus no §212(a)(9)(B)(v) waiver was required.

Perhaps most interestingly, it appears that the AAO will even exercise its indirect appellate jurisdiction over inadmissibility determinations in some cases where the applicant has failed to demonstrate prima facie eligibility for the relevant waiver, although the only examples that this author have been able to find of this involve the AAO’s indirect jurisdiction over USCIS adjustment denials rather than consular-processing of an immigrant visa.  In a 2006 decision, an applicant who had not provided any evidence that his wife was a Lawful Permanent Resident who could serve as a qualifying relative for either a §212(i) waiver or a §212(a)(9)(B)(v) waiver was found not to be inadmissible because he had made a timely retraction of any misrepresentation, and had accrued no unlawful presence due to last departing the United States in 1989.  In a 2009 decision, an applicant who had pled guilty to hiring undocumented workers, and who had been found inadmissible under INA §212(a)(6)(E)(i) for alien smuggling and appealed the denial of his application for a waiver of inadmissibility under INA §212(d)(11), was found not inadmissible by the AAO, which withdrew the district director’s contrary finding—even though the district director had found that the applicant did not meet the requirements of §212(d)(11), and seems very likely to have been right about that, since §212(d)(11)applies only to an applicant who “has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offense was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.”  And in 2010, the AAO declared moot a waiver application under INA §212(g) by an individual infected with HIV who apparently had not established any relationship with a qualifying relative, on the ground that in January 2010 the Centers for Disease Control had removed HIV from the official list of communicable diseases of public health significance, and therefore HIV infection was no longer a ground of inadmissibility.  Some potentially difficult ethical and practical questions would need to be resolved before deliberately filing a waiver application on behalf of an applicant ineligible for such waiver in order to obtain AAO review of whether the applicant was inadmissible at all, but it is at least a possibility worthy of further analysis.

So when an application for adjustment of status, or even for a consular-processed immigrant visa, is denied, it is important to keep in mind that an appeal may be available even if it does not appear so at first glance, and that establishing the necessary hardship to a qualifying relative to support a waiver application is not necessarily the only way to win the case.  If a waiver of the ground upon which the denial was based is at least theoretically available, so as to support AAO jurisdiction over the denial of that waiver, then one can leverage the waiver to seek AAO review of whether a waiver was necessary in the first place.

Cyrus Mehta

Hey Boss, I Need Premium Processing: Can An H-1B Employee Pay The Premium Processing Fee?

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By Cyrus D. Mehta and Myriam Jaidi

An employer is in the process of preparing an H-1B extension for an employee.  The employer is preparing the petition several months before the expiration of the employee’s current H-1B status, and therefore has determined to file without premium processing. Moreover, pursuant to 8 CFR § 274a.12(b)(20), the employee can continue working for the same employer for a period not to exceed 240 days after the expiration of the H-1B status provided a timely request was filed.   The employee, however, has approached the employer, expressing a need for premium processing because of upcoming travel plans or other personal reasons.  If the employer does not need premium processing for its own business reasons, and premium processing would be only for the employee’s benefit, may the employee pay the premium processing fee, which is currently $1225? (Please note that this blog post addresses the premium processing fee in the H-1B context only; payment of the premium processing fee by a beneficiary of an I-140 immigrant petition is allowed without question.)

This is a gray area, like so many things in immigration law, because there is no clear rule on the issue and, believe it or not, different government agencies have taken different stances on the issue over time, and of course, no one approach is clearly definitive. Anecdotal data provides some guidance, as so much in our practice comes from cumulative experience on issues like the one here, i.e., whether a beneficiary may pay the premium processing fee.  Although no agency has opined on the issue since 2009, allowing the H-1B beneficiary to pay the premium processing fee may be defensible where the benefit inures solely to the employee, the employer has no need for the premium processing, and the payment of the premium processing fee does not drop the H-1B beneficiary’s wage below the required wage.  

In 2001, legacy INS (the agency that was dissolved in 2003 and reconstituted as three agencies within the Department of Homeland Security, specifically US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (USICE), an US Customs and Border Protection (USCBP)) confirmed with AILA (American Immigration Lawyers Association) liaison that “there is no bar to employees providing the Premium Processing fee checks.”  See ISD Liaison Report for 8/9/01 (AILA InfoNet Doc. No. 01082431 (posted 8/24/01)).  On August 12, 2009, the Vermont Service Center (one of the Service Centers of USCIS) issued a practice pointer prepared by their Adjudications Branch that made the following statement on page 12: “The petitioner, attorney, or beneficiary can pay $1000 Premium Processing fee.” See Adjudications Branch, Vermont Service Center, VSC Helpful Filing Tips (August 12, 2009; AILA InfoNet Doc. No. 09112363 (posted 11/23/09)).  No restrictions on the beneficiary paying the premium processing fee were noted by legacy INS or USCIS.  

Interestingly, also in August 2009 the Department of Labor, Wage and Hour Division issued a Fact Sheet that conflicts somewhat with the USCIS position on the premium processing issue, but does not prohibit the employee from paying it.  That Fact Sheet states that an H-1B employee, “whether through payroll deduction or otherwise, can never be required to pay the following. . . .  Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate (20 CFR § 655.731(c)(9)), including . . . any expense, including attorney’s’ fees and the premium processing fee (INA § 286(u)) directly related to the filing of the Petition for Nonimmigrant Worker (Form I-129/I-129W) (20 CFR §655.731(c)(9)(ii) and (iii)(C).” Other things included in that list were tools and equipment, travel expenses while on employer’s business, and any expenses, including attorney’s fees, directly related to the filing of the Labor Condition Application (LCA).  

The only other statement from the DOL was a decision by an Administrative Law Judge (ALJ) in 2008 where the ALJ cited the regulation provision referring to the then $1000 training fee to find that the regulation requires that the employer pay the premium processing fee.  See Toia v. Gardner Family Care Corp., 2007-LCA-00006 (ALJ Apr. 25, 2008) at page 20.  This was clearly an erroneous decision because the ALJ was confusing the premium processing fee, which the regulations do not  specifically prohibit payment by the H-1B beneficiary, and the training fee, which the regulations specifically state must not be paid by the H-1B beneficiary, because both happened to be $1000 at the time of the decision.  The DOL Fact Sheet is in fact more amenable to the idea that a premium processing fee could be paid by a Beneficiary because unlike the ALJ decision purporting to ban that practice, the DOL Fact Sheet leaves room to allow a beneficiary to pay a premium processing fee if doing so does not drop the wage below the required wage. 

The immigration law treatise, Buffenstein & Cooper, Business Immigration Law & Practice, Volume 1, Nonimmigrant Concepts (AILA 2011), confirms this is a gray area, and provides no conclusive answer.  The discussion in the treatise supports the argument that where premium processing is pursued at the insistence of the beneficiary, it could be considered the individual’s expense.  

The crux of the matter is whether the premium processing fee would be viewed as a “business expense” of the employer under the DOL regulations governing the H-1B LCA, in which case the DOL could view it as a wage & hour issue and analyze whether the deduction of the premium processing fee worked an impermissible dropping of the H-1B employee’s wage below the required wage (the higher of the actual or prevailing wage). This is something of a distinction without a difference because in any cases where you have more than one similarly situated employee in a position (i.e., where the position is not unique) the deduction of the premium processing fee would always drop the wage below the actual wage.  In positions that are unique, whatever is paid to the unique employee is the actual wage so the premium processing fee would not necessarily drop the wage below the prevailing wage.  

There is anecdotal evidence, based on surveying attorneys on a private list serve, that the DOL in at least two LCA investigations did not consider the premium processing fee to be an employer’s expense where the employee has requested premium processing for the employee’s benefit.  Many attorneys on the AILA list serve seemed to agree that premium processing should not be considered an employer expense, but this thread has not been updated since 2007. 

One interesting question is whether the premium processing fee could be deducted from a benefit such as a performance bonus.  Cash bonuses are considered a “benefit” under the DOL regulations.  The regulation states as follows: 

Benefits and eligibility for benefits provided as compensation for services (e.g., cash bonuses; stock options; paid vacations and holidays; health, life, disability and other insurance plans; retirement and savings plans) shall be offered to the H-1B nonimmigrant(s) on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.

Thus, a company is required to *offer* H-1B employees the same benefits as US workers. However, another section of the regulation makes clear that the H-1B employee may choose to turn down benefits: 

The benefits received by the H-1B nonimmigrant(s) need not be identical to the benefits received by similarly employed U.S. workers(s), provided that the H-1B nonimmigrant is offered the same benefits package as those workers but voluntarily chooses to receive different benefits (e.g., elects to receive cash payment rather than stock option, elects not to receive health insurance because of required employee contributions, or elects to receive different benefits among an array of benefits)

The upshot is that there is a strong argument to be made for the conclusion that where an employee demands premium processing of an H-1B petition solely for the employee’s benefit, that premium processing fee should not be deemed an “employer business expense” such as to trigger a wage/hour analysis of the offered wage that could result in a finding against the employer.  In addition, the fee could be deducted from the performance bonus so long as the employee has been offered benefits on the same basis and using the same criteria as offered to US workers, but opts for a different benefit.  If an employer takes this approach it would likely be best to get the employee’s agreement in writing that they are opting out of the full bonus because of their own need for premium processing on an H-1B petition to accommodate their personal circumstances, and that the premium processing is not done for the employer’s benefit. 

Obviously, given the conflicting positions taken by USCIS and the DOL regarding premium processing fees, this remains a gray area and the most risk adverse and cautious approach would be to avoid any question of the employer paying the appropriate wage by having the employer pay the premium processing fee.  However, as noted above, it is defensible to have the employee pay the premium processing fee where it inures solely to the employee’s benefit.

What are the risks?  The regulations provide for various penalties relating to LCA violations.  A DOL action would only likely come to pass in the event of an employee filing a wage and hour complaint with the DOL, and based on a single complaint on any LCA issue, the DOL could audit all of the LCA files of an employer.  

If an employee complains and the DOL determines that the premium processing fee worked a reduction in the required wage, the employer would be required at the very least to reimburse the employee for the premium processing fee.  Assuming in the worst case that the DOL misconstrues the premium fee to be like the training fee, which is what the ALJ did in the 2008 decision noted above, the DOL may also impose a $1,000 fine per violation.  As a practical matter, an employee may first make a demand for reimbursement or back wages before complaining to the DOL, and under those circumstances, it would be advisable for the employer to reimburse the employee for the premium processing fee.  The regulations provide for enhanced penalties for “willful” failure to pay the required wage such as fines up to $5,000 and debarment from filing new H-1Bs.  However, this is truly a worst case scenario speculation, based on collective experience with DOL investigations where DOL auditors have taken the position that the fee was not an employer’s business expense and have not required the employer to reimburse the employee for payment of the premium processing fee.  The expectation would be that an employer would be able to present a strong argument that this is a gray area and there was no willful failure here.  

We hope that the DOL and USCIS will coordinate their positions on premium processing in H-1B cases and recognize that it is often employees, not employers, who truly need premium processing on their H-1B cases, and thus should be able to make the payment in those cases to facilitate their own personal plans.  Moreover, premium processing is not directly related to the filing of an H-1B petition.  It only expedites the petition, which has in any event been filed, and the employee often then desires that the H-1B petition be expedited for personal reasons.  In such cases the premium processing fee should not be viewed as an employer’s business expense, thus allowing both the employer and employee the best outcome.

Cyrus Mehta

BAD TIMING ALBERTO: BIA HAS CONFIRMED THAT SAME SEX SPOUSES CAN GET IMMIGRATION BENEFITS AFTER UNITED STATES V. WINDSOR

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Former Attorney General Alberto Gonzales, along with an immigration attorney, David Strange, published an Op Ed in the New York Times entitled What the Court Didn’t Say on July 17, 2013. They muddy the waters by contending that despite the recent Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013) which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, it is not clear whether same sex spouses may be entitled to immigration benefits as Congress always intended spouses to be of the opposite sex under the Immigration and Nationality Act (INA). For those who do not know, Mr. Gonzales was the Attorney General who authorized the infamous torture memos during the Bush administration. His essay too involves tortured reasoning as we shall see.

What the Op Ed does not tell us is the dramatic extent to which DOMA was an aberration, a break from the long-standing American tradition that the regulation of marriage belonged to the states:

The durational residency requirement under attack in this case is a part of Iowa’s comprehensive statutory regulation of domestic relations, an area that has long been regarded as a virtually exclusive province of the States. Cases decided by this Court over a period of more than a century bear witness to this historical fact. In Barber v. Barber, 21 How. 582, 584 (1859), the Court said: “We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce . . . .” In Pennoyer v. Neff, 95 U. S. 714, 734-735 (1878), the Court said: “The State . . . has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved,” and the same view was reaffirmed in Simms v. Simms,175 U. S. 162, 167 (1899)

Sosna v. Iowa, 419 U.S. 393, 404 (1975)

From this perspective, it is DOMA that stands out as a radical departure from well-established jurisprudence and its judicial invalidation as a prudent exercise in constitutional restoration. Ambiguity over the immigration impact flowing from DOMA’s demise, contrary to what Gonzales contends, is not created by Windsor’s unremarkable reaffirmation of the Congressional power to disallow any immigration benefit from marriage fraud. This issue was not before the Court. The question of the moment was not whether Congress could define the scope of marriage as part of its plenary power over immigration, something which all acknowledge, but whether DOMA was a constitutionally permissible manifestation of such authority. We now know that it was not.

Ironically, the publication of the essay coincided with the issuance of Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) by the Board of Immigration Appeals on the same day, which held that United States v. Windsor was applicable to non-citizen same sex spouses seeking immigration benefits. Even before Windsor and Zeleniak, there had been hints of a thaw in the way that federal authorities thought about same sex marriage. In Matter of Dorman, 25 I& N Dec. 485 (A.G. 2011), Attorney General Holder vacated the BIA’s removal order so that it could consider whether, absent DOMA, a same sex spouse could create the kind of familial relationship to sustain remedial relief through cancellation of removal.

Matter of Zeleniak affirms the long held view that the marriage must be legally valid in In Zeleniak the same sex marriage was valid under the laws of Vermont. As with the Windsor decision itself, Zeleniak marked not the breaking of new ground but a long overdue return to orthodox principles that the BIA had repeatedly embraced: 

Therefore, the validity of a marriage for immigration purposes is generally governed by the law of the place of celebration of the marriage… Matter of Luna, 18 I&N Dec. 385 (BIA 1983); Matter of Bautista, 16 I&N Dec. 602 BIA 1978); Matter of Arenas, 15 I&N Dec. 174 BIA 1975); Matter of P-, 4 I&N Dec. 610 (BIA, Acting A.G. 1952)

Matter of Hosseinian 19 I&N Dec. 453, 455 (BIA 1987); See also In re Gamero, 14 I&N Dec. 674 (BIA 1974)

The next question in Zeleniak was whether the restrictions in section 3 of DOMA were applicable, which prior to United States v. Windsor they were. Section 3 of DOMA provided: 

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the work “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 

On June 26, 2013, while the appeal in Zeleniak was still pending at the BIA, the Supreme Court in US v. Windsor struck down section 3 of DOMA. The following passage of the Supreme Court decision, also cited in Zeleniak, is worth noting: 

The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. 

US v. Windsor at 2693

As a result of the repeal of the section 3 DOMA impediment, the BIA in Matter of Zelenaik held that since the marriage was valid under the laws of the state where it was celebrated, it would be recognized for immigration purposes. The BIA remanded to the USCIS to determine whether the marriage was bona fide, which was the sole remaining issue. The ruling is applicable to various provisions of the INA, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status). 

While Zeleniak has clearly interpreted“spouse” to mean someone of the same sex or opposite sex, so long as the marriage was valid in the place where it was celebrated, Gonzales and Strange still argue that there is sufficient legal ambiguity in the definition of spouse in the INA. 

They cite a 1982 case, Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) where the United States Court of Appeals for the Ninth Circuit held that Congress only intended to define a citizen’s spouse as a person of the opposite sex in the INA. It is worth noting the genesis of that case: the marriage petition was denied by the then Immigration and Naturalization Service on the ground that “[Adams and Sullivan] have failed to establish that a bona fide marital relationship can exist between two faggots.” Whatever reliance that Gonzales and Strange may have placed in Adams v. Howerton, it may no longer have any force after Zeleniak since Zeleniak has overruled Adams v. Howerton. 

How can a lowly decision of the BIA overrule a decision of the lofty Ninth Circuit Court of Appeals? Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute. 

Congress had delegated to the legacy INS, and now to the DHS (and to the EOIR), the authority to unpack the meaning of the INA. Nowhere in this foundation statute do we find any definition of “spouse” though INA Section 101(b) defines both “parent” and “child”.The possibility exists that this is no accident. Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of all else), one logical inference from this conspicuous omission is that Congress did not feel the imposition of a statutory definition was central to its regulation of immigration law or policy, preferring instead to leave it to those federal agencies charged with its administration to interpret what a “spouse” properly meant. That is precisely what the BIA in Zeleniak has done. Rather than seeking to prolong indecision when no reason for it exists, which is the purpose and consequence of the Gonzales and Strong position, the swift and sure response by USCIS to the end of DOMA reflects a deference to the Constitution that Attorney General Gonzales would do well to emulate. As a professor of constitutional law, doubtless Attorney General Gonzales knows full well that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong…” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 395 (1969).

Thus, under Brand X, the BIA’s interpretation of spouse in the INA, which is undoubtedly ambiguous, has been interpreted to mean a spouse of the same or the opposite sex in Zeleniak. Whatever doubts Adams v. Howerton may have caused with respect to the definition of spouse in the immigration context, and further sowed by Gonzales and Strong, they have been laid to rest by the agency’s interpretation of “spouse” in Zeleniak.

Even if Gonzales and Strong could not have foreseen Zeleniak spoiling their show on the day their Op Ed was published in the New York Times, they ought to have known that the immigration agency has always recognized the validity of the marriage based on where it is celebrated. But for DOMA’s impediment, whether the marriage was been same sex or opposite sex spouses, the marriage would have been recognized. Thus in Matter of Lovo, 23 I&N Dec. 746 (BIA 2005), decided long after Adam v. Howerton, so long as North Carolina recognized the marriage between a male citizen and a post-operative transsexual female, the marriage would be considered valid under immigration law and section 3 of DOMA would no longer be an impediment. 

While Congress has enormous powers over immigrants, and can determine that even a valid marriage has to be a bona fide marriage and not be entered into solely to gain an immigration benefit, it cannot pass laws that our patently unconstitutional – even if those affected are immigrants. Secretary Napolitano recognized this soon after Windsor found section 3 of DOMA unconstitutional by announcing: “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Brand X has also done a great hatchet job by allowing the BIA to forever demolish Adams v. Howerton. 

America’s immigration laws have often been a window into our national psyche. The national origins quota of 1924 flowed directly from the widespread disillusionment with World War I and rising concerns over the dangers of foreign radical thought. The myriad ideological grounds of exclusion strewn throughout the McCarran-Walter Act of 1952 were eloquent if silent testimony to the tensions of the early Cold War. The Immigration Act of 1965 which abolished the national origins quota and opened up America to global migration was part and parcel of the civil rights crusade of the Great Society. Just the same way, the judicial emasculation of DOMA supported by the ready cooperation of the BIA, Attorney General Holder and Secretary Napolitano did not happen in a vacuum but, rather, emerged out of a societal sea change on marriage equality that has finally found legal expression. This is as is it should be for the meaning of America has always changed as Americans themselves have changed. The great American poet of the anti-slavery movement James Russell Lowell once famously remarked that “Once to every man and nation comes the moment to decide.” Mr. Attorney General, when it comes to the cause of marriage equality, America has made its decision.

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

Cyrus Mehta

How Cyrus’ View of Religious Toleration May Have Inspired the American Constitution

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By Gary Endelman and Cyrus D. Mehta

The display of the Cyrus Cylinder in museums across America has sparked interest on whether Cyrus, who founded the Persian Empire in 549 BC, may have influenced the U.S. Constitution.1  Our essay explores  the  extent to which Cyrus  may have influenced one of the Founding Fathers, Thomas Jefferson, who in turn inspired the Religion Clauses in the First Amendment, which provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

The Cyrus Cylinder describes how Cyrus freed people enslaved by the Babylonians, and allowed them to practice their religion and returned their various gods to their sanctuaries. A notable inscription from the Cyrus Cylinder reads, “I returned them unharmed to their cells, the sanctuaries that make them happy.” 2  The Cyrus Cylinder, often referred to as the first charter of human rights, demonstrates that Cyrus was a tolerant king who allowed people in his vast multinational empire to freely practice their various religions. The Old Testament also has references to Cyrus permitting the Jews to return from exile and to rebuild their temple in Jerusalem.  Indeed, the father of Israeli independence, David Ben Gurion, openly cited Cyrus as a hero and President Harry S. Truman proudly compared himself to Cyrus when, in 1948, the United States became the first nation to recognize the new state of Israel. Much as Cyrus ended the Babylonian captivity, enabling the Jews to return to their biblical homeland and rebuild their ancient temple, Truman made possible the re-establishment of an independent Jewish state after almost 2000 years.

Although the Cyrus Cylinder was discovered long after the death of the Founding Fathers of the U.S. Constitution in 1879, it is well known that Jefferson was influenced by Xenophon’s Cyropaedia, which dwells on Cyrus as an ideal ruler, although it is by no means a historical account. It is well known that Jefferson possessed two copies of Cyropaedia – one of which was a Greek and Latin version. All the Founders were familiar with Xenophon’s Anabasis and Isaiah in the Hebrew Scriptures. Jefferson mentions Xenophon as a master of rhetoric in his autobiography. Xenophon viewed Cyrus as a just and tolerant ruler, who ruled over his subjects with persuasion rather than through force. Cyrus did not force his religion, presumably a Zoroastrian, on the various subjects of his vast empire. 3

There are also several biblical references to Cyrus, most notably the words of Deutero-Isaiah, in which he presents Cyrus in a divine manner: “That says to Cyrus, He is my shepherd, and shall perform all my pleasure; even saying to Jerusalem, Thou shalt be built; and to the temple, Thy foundation shall be laid.” 4 Surely, these references to Cyrus would not have escaped Jefferson’s attention, given that he was a keen student of Xenophon’s Cyrus. Jefferson’s interest in and appreciation for Cyrus was an inheritance from the Scottish Enlightenment.  Scottish intellectuals often cited Cyrus in their own efforts to arrive at the proper relationship of church and state. 5

Jefferson strongly believed that religion was a personal matter and should be free from government influence. In his Notes on the State of Virginia, Query XVII,  Jefferson objected to laws that allowed children who could be taken from their parents if they had not been baptized by stating, “But it does me no injury for my neighbor to say that there are twenty gods, or no gods. It neither picks my pocket nor breaks my leg.” 6 It was in Jefferson’s letter to the Danbury Baptist Association in 1802, in response to why as President he had not proclaimed national days of fasting that he famously referred to the “wall of separation between church and state” which has served as the basis for interpreting the Establishment Clause. 7

Like Cyrus, Jefferson saw in the lack of government intervention not the absence of piety but the creation of an opportunity for the robust expression of individual conscience. Cyrus’ true gift to Jefferson and to us is the sublime realization that liberty of thought and action is the one true measure of devotion whose inheritance can only strengthen those bonds which unite a people to their rulers and to their God.  The measure of great power Cyrus knew and the Founders realized was not its ruthless exposition but the principled decision to refrain from its exercise. It was this insight that turned imperial obedience into civic acceptance both for ancient empires and the young republic. The one true test of power is the strength not to use it, either to compel the dictates of individual conscience or to shape the conduct of subjects and citizens in the public arena.

The First Amendment in the U.S. Constitution expresses America’s commitment to religious pluralism through two provisions – one protecting the free exercise of religion (the Establishment Clause) and the other barring the establishment of the religion (the Free Exercise Clause). The interpretation of these two clauses has remained contentious, but their very existence has endowed freedom of worship with a secular legitimacy that it might otherwise have lacked, much as Cyrus did  by treating diversity as a source of strength not weakness. While some believe that the government should strictly enforce separation by not supporting any form of religion in schools or other governmental institutions, including references to God on currency and pledeges, others contend that the Judeo-Christian values of the Founding Fathers provide a historical sanction for overt religiosity such as prayer in public school and references to God in the public sphere. 8

Notwithstanding the lack of unanimity in interpreting the  Religion Clauses, America has been  successful in integrating so many groups of immigrants since its founding  as it is  similar to Cyrus’ model, where the government does not support one dominant religion while at the same time is not against religion. Indeed, the American model relating to freedom of religion was later adopted in the Indian Constitution. Even though India  is a religious country, where the majority belong to the Hindu religion, it is also a home to other major religions. The Indian Constitution in Article 25 grants to citizens of India of all religious persuasions freedom to profess, practice and propagate their faith in a way that does not disrupt public order and does not affect public health and morality adversely. It is thus no coincidence that Zoroastrians and Jews have been able to worship freely, and prosper, in India and America.

 In an age where governmental actors are increasingly foisting their religious beliefs on people, resulting in strife, Cyrus’ model of not interfering in religion, which influenced America’s and India’s system of government, is worthy of further consideration and emulation even in the second decade of the  21st century. Cyrus understood that only the strong can be tolerant, that the wise ruler encourages a government powerful enough to protect the people but wise enough to restrain it.

Whatever doubts Jefferson may have entertained on key Christian doctrines, such as the divinity of Jesus or the truth of his resurrection, he did not feel the need to impose such skepticism upon others, respecting their faith even as he doubted the value of adopting it. For Cyrus and Jefferson, tolerance was at the core of their approach towards governance. As effective rulers, they made it easy for those whose beliefs they did not share to accept, indeed to embrace, their political supremacy, whether it be the evangelical Baptists who loved Jefferson or the ancient Hebrews who honored Cyrus. Circumspect in their public manifestations of piety, Cyrus in his day and Jefferson in his knew the pragmatic dividend to be reaped from toleration. The Declaration of Independence speaks fleetingly of “Nature and Nature’s God” and the Constitution makes no mention of the Deity nor imposes any religious test for office. Cyrus and the Founding Fathers sought not to banish religion but to subordinate it as an organizing principle to what they regarded as a more meaningful immortality, imperial fame for Cyrus and the republican nobility of the American revolutionary experiment for Jefferson. That was the one, true and abiding glory they both sought.

As more countries in a globalized world attract immigrants who follow different religions, Cyrus’ model of religious toleration will go a long way in fostering peace and harmony. The fact that in America new immigrant groups can freely establish their places of worship, even after facing religious persecution elsewhere, is redolent of the inscription on the Cyrus Cylinder that “I returned them unharmed in their cells, in the sanctuaries that make them happy.” The lasting attraction of America was and remains the one central truth that here one could become all that they were capable of being regardless from where they came from. For that to live on, the American creed has always celebrated personal freedom and religious diversity. No one in the ancient world exemplified that more completely than Cyrus. That is the enduring meaning of what Cyrus first established more than 2,000 years ago by allowing people for the very first time to freely practice their own religion, and which inspired Xenophon’s Cyropaedia.

Cyrus was not a Jeffersonian reformer and the link between them is more diffuse than direct. In our desire to make Cyrus relevant, we must not forget that, like all rulers, he was a product of his own time.  Yet, it remains true to note that his philosophy of toleration lived on far beyond what Cyrus ever could have imagined and its continuing influence upon those who launched the American experiment in freedom was  both pervasive and undeniable. Thomas Jefferson was hardly a naïve reformer. Like the other Founding Fathers, he followed Cyrus not because he shrank from power but because he wished to exercise it more effectively, knowing that the ability to weave together a mosaic of culture and thought will in the end produce a more enduring fabric. This remains our most sacred inheritance.

Gary Endelman is the Senior Counsel at FosterQuan, Houston, TX. Mr. Endelman graduated with a B.A. in History from the University of Virginia, a Ph.D. in United States History from the University of Delaware, and a J.D. from the University of Houston. From 1985 to 1995, he was with one of the largest immigration firms in the country. From 1995 to 2011, he was the in-house immigration counsel for BP America Inc. He is a frequent national speaker and writer on immigration related topics. In July 2005, Mr. Endelman testified before the United States Senate Judiciary Committee on comprehensive immigration reform. The views expressed by Mr. Endelman in this article are his personally and not those of FosterQuan

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is the current Chair of the American Immigration Lawyers Association’s Ethics Committee and former Chair of AILA’s Pro Bono Committee.  He is a frequent speaker and writer on various immigration-related issues, and is also an adjunct associate professor of Law at Brooklyn Law School.  Mr. Mehta received the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. Mr. Mehta was named Best Lawyers’ 2013 New York City Immigration Law “Lawyer of the Year”. The views expressed by Mr. Mehta in this article are his personally and do not not those of any of the organizations he is a part of.

1. See e.g. Cyrus Cylinder: How a Persian monarch inspired Jefferson, BBC News, http://www.bbc.co.uk/news/world-us-canada-21747567 ↩

2. The British Museum Translation of the Text on the Cyrus Cylinder, http://www.britishmuseum.org/explore/highlights/articles/c/cyrus_cylinder_-_translation.aspx  ↩

3. In Mary Boyce, Zoroastrians – Their Religious Beliefs, the author at p.51 suggests that Cyrus was a Zarathushti as there was evidence of fire holders and that one of his daughters was referred by the Greek writers as “Atossa,” which in Persian is “Hutaosa,” who was the queen of King Vishtaspa, Zarathustra’s first royal patron. Clearly, Cyrus’s successors such as Darius and later were more explicit that they were Zarathushtis and invoked Zarathustra’s God, Ahura Mazda.  ↩

4. For a commentary on the biblical references to Cyrus, See Joseph Wiesehöfer, Ancient Persia, I.B. Taurus; Pierre Briant, From Cyrus to Alexander – A History of the Persian Empire, Eisenbrauns; Mary Boyce, supra.  ↩

5. Ancient Persia Influenced Thomas Jefferson, US Democracy, IIP Digital, US Department of State, http://iipdigital.usembassy.gov/st/english/article/2013/03/20130312143982.html#ixzz2RsF6GhFX  ↩

6. Notes on the State of Virginia, Query XVII, http://etext.virginia.edu/toc/modeng/public/JefVirg.html  ↩

7. Jefferson’s Wall of Separation Letter, personal correspondence with Danbury Baptist Association in 1802, http://www.constitution.org/tj/sep_church_state.htm  ↩

8. The Supreme Court decision in McCreary County v. ACLU 545 U.S. 844 (2005), which narrowly held that the display of the Tenb Commandments at a county court violated the Establishment Clause, best exemplifies how difficult it is to inerpret the Religion Clauses in the First Amendment.  ↩

The article originally appeared in the Summer 2013 of the Fezana Journal