Cyrus Mehta

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

/0 Comments/in /by

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

/1 Comment/in /by

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?

/2 Comments/in /by

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

/0 Comments/in /by
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

/0 Comments/in /by

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

Cyrus Mehta

HOW EXTRAORDINARY DOES ONE NEED TO BE TO QUALIFY AS A PERSON OF EXTRAORDINARY ABILITY?

/1 Comment/in /by

When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary. Read on….

As background, an individual can obtain permanent residence in the US by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

 

  1. Receipt of lesser nationally or internationally recognized prizes or awards.
  2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  3. Published material about the person in professional or major trade publications or other major media.
  4. Participation as a judge of the work of others.
  5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  6. Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  7. Artistic exhibitions or showcases.
  8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  9. High salary or remuneration in relation to others in the field.
  10. Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field, in professional or major trade publications or other media.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that  the new Kazarian decision reversed, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Unfortunately after the initial victory, Kazarian, as interpreted by the USCIS,  has resulted in a two part test. In the first part of the test, the USCIS has to determine whether the individual has met three of the 10 criteria to establish extraordinary ability. However, that is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now – and the focus of this article is to suggest ways to confront it and still win petitions for persons of extraordinary ability or outstanding professors and researchers.

In its December 22, 2010 Policy Memorandum, (“Policy Memorandum“), USCIS implemented a “two-part adjudicative approach” for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. The Service cites Kazarian as the basis for modifying the Adjudicator’s Field Manual to include a second step in the adjudication process, the “final merits determination.” Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (vi), the Service seized on the following excerpts in Kazarian as a basis for justifying a “final merits determination” analysis:

(1) While other authors’ citations (or lack thereof) might be relevant to the final merits determination of whether a petitioner is at the very top of his or her field of endeavor, they are not relevant to the antecedent procedural question of whether the petitioner has provided at least three types of evidence (emphasis added); and
(2) …[W]hile the AAO’s analysis might be relevant to a final merits determination, the AAO may not unilaterally impose a novel evidentiary requirement (emphasis added).

Kazarian v. USCIS, 596 F.3d  at 1121.

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

Unfortunately, post Kazarian decisions seem to be affirming the two-part test and final merits determination analysis notwithstanding the holding in a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, “[o]nce it is established that the alien’s evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234.  Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. In fact, such a burden shifting approach is not unknown in other aspects of immigration law. As my colleague David Isaacson has pointed out, in the asylum context, an applicant who demonstrates that he or she has suffered past persecution on account of a protected ground is rebuttably presumed to have a reasonable fear of future persecution on that same ground.  8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).  In such cases, by regulation, “the Service shall bear the burden of establishing by a preponderance of the evidence” that a change in circumstances, or the reasonable possibility of relocating within the country of persecution, should lead to a denial of asylum.  8 C.F.R. §§ 208.13(b)(1)(ii), 1208.13(b)(1).

Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) is a decision that explicitly follows the Policy Memorandum, and ignores the burden shifting approach as set forth in Buletini.  Although the petitioner in Rijal, a Nepali documentary film maker, submitted a UNICEF prize, the USCIS concluded that it did not meet the evidentiary criterion of  “lesser nationally or internationally recognized prizes or awards of excellence”   as it was awarded more than 4 years ago and did not provide evidence of the alien’s sustained acclaim. While the court criticized the USICS for failing to consider this evidence under 8 CFR §204.5(h)(3)(i) and for similar errors under other evidentiary criteria, it nevertheless held that the petitioner did not suffer prejudice from these errors as “it made those errors with an eye toward the ultimate merits determination.” Rijal at 1347.  Based on a holistic determination of the petitioner’s evidence, the court held that the USCIS appropriately found that the petitioner did not demonstrate sustained national or international acclaim. It is clear that the Ninth Circuit in Rijal affirmed the two step test set forth in the  Policy Memorandum even though the suggestion of a “final merits determination” was mere dicta in Kazarian.

Noroozi and Assadi v. Napolitano,  ___ F. Supp. ___ (SDNY Nov. 14, 2012), available on AILA InfoNet at Doc. No. 12111644 (posted 11/16/12), is another recent decision from the Southern District of New York that has agreed with the Kazarian two-step analysis. Petitioner Noroozi represented Iran in table tennis at the 2008 Olympics in Beijing. Although neither Noroozi nor the Iranian table tennis team won any medal at the Olympics, the USICS initially approved the EB-1 petition, but then subsequently revoked it. A second EB-1 petition was filed, which was denied on the ground that Noorzi only met two of the criteria, but not three. The court agreed with the USCIS that there was no evidence to substantiate that he played a “leading or critical role” for his team and nor did the “published material” about him pass muster since it focused more on the team and only briefly mentioned Noroozi. Even though the failure to meet the evidentiary criteria could have ended the analysis, the court also discussed how Noroozi did not merit a favorable judgment under the second part “final merits determination.”  Since Noroozi ranked 284th in the world in table tennis, and finished 65th place in table tennis in the 2008 Olympics, the court noted that this would oblige the USCIS to hypothetically grant EB-1 petitions to the 283 higher ranked table tennis players, and also to the 283 higher ranked players in other sports, assuming they were non-US citizens, as well as to the 64 table tennis players who outperformed Noroozi in the 2008 Olympics. The court’s  “final merits determination” in Noroozi  is troubling as the EB-1 was never intended only for the number one player in a sporting field, and this decision should be contrasted with a pre-Kazarian decision involving an ice hockey player in the National Hockey League whose team won the Stanley Cup, but was not an all-stars or one of the highest paid players, but was still found to be qualified  under EB-1. See Muni v. INS, 891 F. Supp. 440 (N.D. Ill 1995).  The “final merits determination” permits USCIS to set subjective baselines with respect to rankings of   players in sports even if they would potentially qualify under the ten evidentiary criteria as Muni did after he sought reversal of the denial of his EB-1 petition in federal court. Interestingly, in Noroozi, the attorney also became a plaintiff along with the petitioner on the ground that the USCIS denied the EB-1 petition based on the petitioner’s association with the attorney who had been unfairly singled out in a DOS cable. That strategy too failed since the court rejected that there was any bad faith on the part of the USCIS in denying Noroozi’s EB-1 petition.

Various unpublished AAO decisions [See e.g. AILA InfoNet Document Nos. 12062752 and 12062753]   suggest that the government’s final merits determination will consider evidence whether or not the petitioner has demonstrated : 1) a “level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the[ir] field of endeavor,” 8 CFR § 204.5(h)(2); and 2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” § INA 203(b)(1)(A); 8 CFR § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.   While it makes sense to preserve the argument in the record that the final merits determination is inapplicable and to propose the burden shifting approach under Buletini instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis given that it has been blessed in post-Kazarian decisions.  The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria. For instance, if a petitioner has met 3 out of 10 evidentiary criteria, the agile practitioner may be able to argue that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination. Moreover, under the final merits determination, a petitioner may be able to point to other evidence that may not categorically fall under the 10 evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s stellar academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then the practitioner must not rest on these laurels and take pains to highlight this for the “final merits determination.”Finally, the practitioner must always remind the USICS that the “final merits determination” is governed by the preponderance of evidence standard, as suggested in the Policy Memorandum too, which requires only 51% certainty.

It need not be this way as Congress probably did not intend for the USCIS to create a subjective final merits determination, when it enacted the priority worker categories under the Employment-based first preference in the Immigration Act of 1990. The starting point for examining the legislative history of the Immigration Act of 1990 is the House Report. See H.R. Rep. No. 723, Pt. 1, 101st Cong., 2d Sess. 4 (Sept. 19, 1990).  With respect to aliens of extraordinary ability, the House Report states:

 

In order to qualify for admission in this category an alien must (1) demonstrate sustained national or international acclaim in the sciences, arts, education, business or athletics (as shown through extensive documentation); (2) be coming to the United States to continue work in that area of expertise; and (3) by virtue of such work benefit the United States. Documentation may include publications in respected journals, media accounts of the alien’s contributions to his profession, and statements of recognition of exceptional expertise by qualified organizations. Recognition can be through a one-time achievement such as receipt of the Nobel Prize. An alien can also qualify on the basis of a career of acclaimed work in the field. In the case of the arts, the distinguished nature of the alien’s career may be shown by critical reviews, prizes or awards received, box office standing or record sales. In short, admission under this category is to be reserved for that small percentage of individuals who have risen to the very top of their field of endeavor.
H.R. Rep. No. 723 at 69.

There is nothing in this passage that suggests that the USCIS needed to conduct a two-step analysis to determine extraordinary ability. On the contrary, the House Report broadly suggests a number of possibilities under which an alien can establish extraordinary ability, such as through publications in respected journals, media accounts or statements of recognition of exceptional expertise by qualified organizations. Moreover, the House Report also indicates that “[a}n alien can also qualify on the basis of a career of acclaimed work in the field.”

The implementing regulations appropriately relied on the House Report in defining “extraordinary ability” to mean “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” See commentary on implementing regulations at 56 Fed. Reg. 60897 (Nov. 29, 1991). The proposed regulations would have used one of the “few (emphasis added) who has risen to the very top of the field,”  but after listening to the objection of commentators, the Service substituted the word “few” with “small percentage” in deference to the same, albeit broader, verbiage that was used in the House Report. By developing the ten evidentiary criteria at 8 C.F.R. §204.5(h)(3)(1)-(x), and recognizing that if an alien met three out of the 10 criteria, the Service appropriately followed Congressional intent by allowing this alien to demonstrate  extraordinary ability, which is “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” There is nothing more that is required within the regulatory criteria to demonstrate whether an alien was within that “small percentage,” and this appears to be consistent with the House Report too. Given the broad examples in the House Report for demonstrating extraordinary ability, the Service also promulgated an additional regulation, 8 C.F.R. § 204.5(h)(4),  that permits submission of comparable evidence when the given criteria do not apply to the candidate’s occupation or achievements. The DHS Ombudsman’s recommendations to improve the quality of extraordinary ability adjudications also discusses that the administrative practice prior to Kazarian was to base an applicant’s extraordinary ability on complying with 3 out of the 10 evidentiary criteria.

The extraordinary ability provision, as crafted by Congress in 1990, should be viewed in the context of other introductory passages in the House Report preceding the section on extraordinary ability. Congress was clearly concerned about the US labor market facing two problems, which immigration policy could help correct. Id. at 52. “The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.” Id. The following passage from the House Report is worth extracting, and while written in 1990, is relevant even in 2013:

The competitive influences of the Asian Pacific Rim, Caribbean Basin, and the European Community are forcing re-evaluation of the U.S. role in the world. Immigration law is not now in synchronization with these global developments. Its current structure inhibits timely admittance of needed highly skilled immigrants. The highest preference in the employment category, relating to people of exceptional ability, currently involves an 18-month wait for a visa. The other employment category, for skilled and unskilled workers, is subject to a 2 ½ year wait. This lack of responsiveness may impede the ability of businesses to plan and operate efficiently and effectively in the global economy.
Id. at 53.

Indeed, it is very clear that IMMACT90, as reflected by the intent of Congress in the House Report, has failed to address the problem of timely admittance of highly skilled immigrants. The waits under the employment-based second preferences (EB-2) for India and China and in the employment-based third preferences (EB-3) for all countries, and worse for India, are far greater in 2013. In the case of the India EB-3, the wait could be several decades long. If immigration law was not in synchronization with global developments in 1990, it is much less so in 2013 especially since the world has become far more globalized and interdependent. Indeed, one way to correct the imbalance is for the USCIS to faithfully interpret the pivotal extraordinary ability provision in light of Congressional concern in 1990, which continues to be even more of concern today, and that is to expeditiously allow an alien of extraordinary ability who meets 3 out of the 10 evidentiary criteria to be able to obtain permanent residence  in the employment-based first preference (EB-1), which unlike the EB-2 for India and China, and the EB-3, remains current and has always remained current. A second-step subjective merits analysis, as proposed by the USCIS, would continue to thwart Congressional intent as it would lead to arbitrary denials of aliens who otherwise can demonstrate extraordinary ability, and who would clearly be able to benefit the U.S.

(This article is partly based on Demystifying the Final Merits Analysis of Extraordinary Ability by Cyrus Mehta, Roberto Caballero and Rita Sostrin, Immigration Practice Pointers, AILA 2013-14 Ed. The article contains general information and should not be relied upon as a substitute for legal advice.)

Cyrus Mehta

HOW LONG IS A LAWYER OBLIGATED TO CORRECT FALSE EVIDENCE THAT WAS SUBMITTED ON BEHALF OF THE CLIENT?

/1 Comment/in /by

One of the cardinal ethical rules governing a lawyer’s conduct is the prohibition, with some exception, from revealing a client’s confidential information. This information, which must be kept confidential, is normally gained during the course of the representation of the client. Still, at the same time, a lawyer is also prohibited from offering or using evidence before a tribunal that the lawyer knows to be false.  If a lawyer gets to know about the submission of false evidence to the tribunal, the lawyer is required to take reasonable remedial measures, and in some states, when the lawyer is unsuccessful in obtaining the client’s cooperation to remedy the fraud, the lawyer is also required to inform the tribunal. ABA Model Rule 1.6 governs a lawyer’s duty of confidentiality while ABA Model rule 3.3 governs a lawyer’s duty of candor to the tribunal. These two rules are often in tension.

The modern trend in legal ethics is that the lawyer’s duty of candor to the tribunal will almost always trump his or her duty of confidentiality to the client. This is especially true in New York. New York’s Rule 3.3 not only prohibits a lawyer from offering evidence that he or she knows to be false, but requires a lawyer to take reasonable remedial measures, including, if necessary, disclosure to the tribunal. The proper course, when the lawyer learns that false evidence has been submitted, is to first remonstrate with a client confidentially, and seek the client’s cooperation with respect to the withdrawal or correction of the false statement. Most clients will likely understand that taking such a measure is also in their best interests, and that a lawyer is likely to take steps that are least damaging to the client. For instance, if an asylum claim otherwise includes truthful elements but some false information or evidence, the withdrawal of the damaging evidence may be presented at the same time as part of a packet of evidence that is otherwise truthful and supportive of the client’s claim. If the client is uncooperative and withdrawal from the representation cannot remedy the false statement, the lawyer, under Rule 3.3(b), must make disclosure to the tribunal as is reasonably necessary to remedy the situation, even if such disclosure is protected under the attorney client rule of confidentiality.

Prior to April 1, 2009, New York did not require a lawyer to reveal a client’s submission of false evidence to a tribunal if it was protected as confidential information between an attorney and the client, but all that changed when New York adopted Model Rule 3.3. After this sea change in New York, I wrote from an immigration lawyer’s perspective, What Remedial Measures Can A Lawyer Take To Correct False Statements Under New York’s Ethical Rules? When writing the article I puzzled on how long does the lawyer’s obligation to correct a client’s false statement last. Does it last till the completion of the case or forever?  Unlike Comment 13 to ABA Model Rule 3.3, which clearly suggested that the obligation lasts till the conclusion of the proceeding, there is no similar comment to New York’s Rule 3.3.

This has now been answered in New York City Bar’s Formal Opinion 2013-2.  Recognizing that the New York rule does not contain a similar limiting comment like the ABA Model Rule, the New York City Bar concludes that the lawyer’s obligation to correct the presentation of false evidence survives the conclusion of proceedings. However, agreeing with opinions of its sister NY State Bar (see State 831, fn 4 and State 837), the NYC Bar opinion states that this obligation does not last forever, and “should end when a reasonable ‘remedial’ measure is no longer available.” Still, a lawyer is required to take remedial measures even after the conclusion of the proceeding if the tribunal in question, or a reviewing tribunal,  is still in a position to review the new evidence, which in turn could result in an amendment, modification or vacatur of the prior judgment.  Action that cannot result or is highly unlikely to result in such a reversal or modification of the judgment cannot be said to be “remedial,” and then the obligation of the lawyer under Rule 3.3 may end. The opinion also cautions, “The amount of work involved in fulfilling the 3.3 obligation should neither force the lawyer into insolvency or jeopardize the lawyer’s ability to continue to diligently and competently perform legal services on behalf of the lawyer’s other clients [citations omitted].”

How does the lawyer’s continuing obligation even after the conclusion of the case to take remedial measures under Rule 3.3 work in immigration practice?  The term “tribunal” is broadly defined in Rule 1.0(w) to encompass not just a court but even an “administrative agency or other body acting in an adjudicative capacity.” But the definition of “tribunal,” and its reference in Rule 3.3, as well as in the NYC Bar opinion, with respect to an administrative agency still connotes a court-like adversarial proceeding involving two parties and opposing counsel. At issue is whether the United States Citizenship and Immigration Services, along with the Department of Labor and Department of State, would be considered “tribunals” under this definition. The definition of tribunal goes on to state: “A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting the party’s interests in a particular matter.” There is no question that a proceeding before an Immigration Judge or the Board of Immigration Appeals,  would be before a “tribunal,” but there is ambiguity as to whether it would extend to the above governmental agencies too as it is unclear whether there is a neutral official who will render a legal judgment “after the presentation of evidence or legal argument by a party or parties” when one files an application with the USCIS or with a U.S. Consulate.  There is also no opposing counsel in such instances. It is thus arguable whether such agencies constitute a “tribunal,” and whether the 3.3 obligation exists regarding the need to take reasonable remedial measures to correct a client’s false statement or submission of false evidence, even after the case has been completed.

As a practical matter, though, whether an immigration-related agency is a tribunal or not should not matter. If an attorney knowingly assists a client in filing a false application, such conduct may trigger criminal liability regardless of whether the application was made to a tribunal or not. An attorney is also required to be truthful to third persons, governmental or otherwise, under Rule 4.1. Moreover, Rule 1.6(b)(3), while not mandating it, allows a lawyer to withdraw a written or oral opinion or representation relied upon by a third person (even if not with a tribunal), where the lawyer belatedly learns of its falsity. In such a situation, as confirmed by NY State Opinion 837, a noisy withdrawal may constitute a reasonable remedial measure under Rule 3.3.  Finally, a similar duty of candor applies to immigration agencies under parallel ethical rules in 8 C.F.R. §1003.102(c) and 8 C.F.R. 292.3(b), governing the conduct of private immigration attorneys, although the requirement is to “take appropriate remedial measures” without a specific requirement to disclose to the tribunal.

Regardless of the ambiguity in the definition of tribunal with respect to immigration agencies, it behooves a lawyer to ensure at the outset of the representation, and prior to filing an immigration application, that there is no false, misleading or inaccurate statement. For example, it always makes sense to meet with both the spouses, and run some typical questions by them, to ascertain that the marriage is bona fide prior to taking on the case and filing the applications.

Let’s examine how the NYC Bar Formal Opinion 2013-2 requiring a lawyer to take remedial action works in immigration practice. In the most obvious case of a tribunal setting, which is a proceeding before an Immigration Judge, a lawyer would have a continuing obligation to take “reasonable remedial measures” even after the case has concluded based on the NYC Bar opinion. So in the example of the client who submitted material false evidence in her asylum claim, and the lawyer learns of it after the client has been granted asylum by the Immigration Judge, to what extent does the lawyer’s obligation last? First, the lawyer must have actual knowledge that such evidence was false, although such knowledge “may be inferred from circumstances.” Rule 1.0(k). The false evidence that was submitted must also be “material,” which is whether the evidence could have changed the result of the outcome.  Assuming that the lawyer has actual knowledge of its falsity and it is material, a case can only be reopened no later than 90 days after the issuance of a final administrative order. INA 240(c)(7); 8 CFR 1003.2(c)(2), 8 CFR 1003.23(b)(1). If the lawyer has actual knowledge of the false evidence after 90 days from the final order, can a lawyer argue that the law does not allow for a motion to reopen, and thus any action will not result in a modification of the grant of asylum by the Immigration Judge?

The NYC Bar Opinion was not written for immigration practitioners, but there are exceptions to the 90 day time limitation, such as the BIA’s sua sponte reopening authority under 8 CFR 1003.2(a). Also, reopening is possible when both parties, including the government, agree to reopen under 8 CFR 1003.2(c)(3)(iii) or 8 CFR 1003.23(b)(4)(iv). Even after the foreign national gets lawful permanent residence, the government can start rescission proceedings within 5 years or place her once more in removal proceedings. And even after this client naturalizes, it is possible for the government to start de-naturalization proceedings against her on the ground that she did not properly obtain permanent residence due to the false evidence that resulted in her grant of asylum.

In the immigration context, it may appear that a lawyer’s obligation to remedy a client’s fraud or false statement, if it was made to a tribunal, could last in perpetuity. It could result in draconian results, if say, a child or a spouse derived a green card, or even a derivative citizenship benefit innocently based on the false evidence that was submitted by the principal applicant.  As I had suggested in my previous article, there are very good policy reasons to limit the obligation to the end of the proceeding, or at least when the statutory limit for filing a motion to reopen has passed. As time passes, the undoing of previously committed fraud implicates the status and rights of other people, such as spouses, children and other relatives. Indeed, even the Board of Immigration Appeals has held in an unpublished decision, Matter of Gumapas, that a person who became a citizen through fraud is still a citizen, and can sponsor a spouse for permanent residence.  The imposition of such a limitless obligation on an attorney would also diminish the purpose of the ethics rules themselves in preventing fraudulent representations to the tribunal. In this example, the lawyer acted in good faith before the tribunal even though the client may have presented false evidence without the knowledge of the lawyer. Also, there are other processes in place that can rectify the situation, such as the government’s ability to commence de-naturalization proceedings against her through their own investigations, without relying on the attorney to inform them.   And last, there are reasons to end the obligation at the conclusion of the proceeding similar to why statutes of limitation exist.   Over time, witnesses and documents may not be available and memories fade.  This author has heard speeches by distinguished personalities whose parents may have entered the US as immigrants where they wax lyrical about how their parents perpetrated a small misrepresentation in order to immigrate to the US so that their children could succeed and realize the American dream. If a lawyer who represented this distinguished person’s parents is in the audience, is this lawyer today under a 3.3 obligation to inform the relevant immigration agency regarding the parent’s fraud even if the parent is deceased?

Indeed, Comment 13 to ABA Model Rule 3.3 is clearer than the New York rule:

A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Even NY State Bar Opinion 831, supra,  tempers the absurd effects of rule 3.3 by holding that if the client’s fraud on the tribunal took effect before April 1, 2009, then the old NY Disciplinary Rule 7-102(B)(1) applies where any confidence or secret that arose in the attorney-client relationship could not be disclosed even if it was false at the time of submission to the tribunal. Footnote 4 in Opinion 831 is also worth noting:

It is unclear when the disclosure obligations under the new rule end.  In past opinions, we appear to have assumed that the disclosure obligations in DR 7-102(B) where information was not “protected” as a confidence or secret ended when the proceeding in question concluded.  N.Y. State 674 (discussing whether a lawyer must reveal perjury “discovered after the fact when the proceeding in which the perjury was committed (and later discovered) has not yet concluded”); N.Y. State 466 (“since the existence of the negotiable instrument is not relevant to any pending proceeding”).  The New York State Bar Association proposal for the new rule, adopting the language of the ABA Model Rules, would have codified this interpretation in Rule 3.3.  The proposal stated, “The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.”  New York State Bar Association Proposed Rules of Professional Conduct 160 (Feb. 1, 2008) (emphasis added) (available at www.nysba.org/proposedrulesofconduct020108.  As noted in the text, Rule 3.3 as adopted by the courts omits the phrase “continue to the conclusion of the proceeding and.”  There is thus an argument that the courts in adopting the rule intended the obligation to continue past the end of the proceeding and, potentially, indefinitely – or at least for some reasonable period of time.  The broadest version of this interpretation seems to us implausible.  We believe the obligation extends for as long as the effect of the fraudulent conduct on the proceeding can be remedied, which may extend beyond the end of the proceeding – but not forever.  If disclosure could not remedy the effect of the conduct on the proceeding, but could merely result in punishment of the client, we do not believe the Rule 3.3 disclosure duty applies.

As interpretations regarding the continuing obligation of an attorney under Rule 3.3 evolve in New York and elsewhere (at least in states where the obligation does not end at the conclusion of the case), it is hoped they take into account how an attorney’s potential obligation to report a client’s fraud  in perpetuity might impact foreign nationals who may have obtained immigration benefits a very long time ago, as well as their impact on innocent families.

(The views expressed in this blog are solely those of the author and do not necessarily reflect the views of any of the organizations that he may be involved with.)

Cyrus Mehta

Meet Our New Friend: Who Is An “H-1B Skilled Worker Dependent Employer” In Senate Immigration Bill, S. 744?

/0 Comments/in /by

By Gary Endelman and Cyrus D. Mehta

Since we last wrote about the H-1B visa provisions in Senate Immigration Bill, S. 744, Workable Or Unworkable? The H-1B And L-1 Visa Provisions In BSEOIMA, S. 744, there have been several changes to this portion of the bill. The amendment proposed by Senator Hatch (after reaching a compromise with Senator Schumer), which passed the Judiciary Committee, sought to water down some of the restrictions that would otherwise make the H-1B visa program unworkable. Seeking to advance the interests of the many high tech companies that have settled in Utah, an accommodation with Senator Hatch implicitly held out the promise of attracting other GOP Senators to vote for the bill when it reached the Senate floor. A bi-partisan Senate bill that passed with 70 votes might serve to provide political cover for embattled Speaker John Boehner to maneuver around the objections of Republican obstructionists and pass CIR with the aid of Democratic votes.

The main concern of many technology companies in Silicon Valley was that the new recruitment requirement would make it impossible for them to use the H-1B visa program, despite the increase in the H-1B visa cap. Under the bill’s original provision, the employer would first have to offer the job to any US worker who applied, who is equally or better qualified than the nonimmigrant H-1B worker. It was feared that this would allow the Department of Labor (DOL) to micromanage the employer’s recruitment processes, and also determine who an equally or better qualified US worker would be rather than leave it to the employer’s best judgment. To the extent that the Hatch amendment shifted power over the H-1B away from the DOL in favor of more market-oriented forces, it represents a significant attempt to rely upon such influences rather than direct federal regulation as the operating principle of protection for US workers in the immigration context.

As a result of the Hatch amendment, an employer who is not an H-1B Skilled Worker Dependent Employer (SWDE) or a Dependent Employer (DE), which we will explain below,   is required to use recruitment procedures that meet industry wide standards and offer compensation that is at least as great as that required to be offered to H-1B nonimmigrants. It no longer requires such an employer to offer the job to an equally or better qualified US worker. Still, it is hard to determine how this would be interpreted by the DOL  Does the employer need to establish that there were no qualified US workers who applied or does the employer only need to demonstrate that it does normally also recruit US workers for the same position? We believe that the latter interpretation is more consistent with the language of the Hatch amendment. An employer that is not a SWDE and not a DE will not be subject to the  non-displacement  attestation unless it files the petition with the intent or purpose of displacing a specific US worker for the position to be occupied by the beneficiary, or workers are displaced who provide services at worksites owned, operated, or controlled by a Federal, State, or local government entity that directs and controls the work of the H-1B worker, or workers are displaced who are employed as public school kindergarten elementary, middle school or secondary school teachers.

But here’s the catch. The Hatch amendment also creates a new concept – the SWDE. The SWDE is different from the H-1B dependent employer (DE) as we have known it under the existing law. An SWDE is “an employer who  employees H-1B nonimmigrants in the United States in a number that in total is equal to at least 15 percent of the number of its full time equivalent employees in the United States employment in occupations contained within Occupational Information Network Database (O*Net) Job Zones 4 and Job Zones 5.” Under this definition, many employers will be SWDE even if they are not dependent employers. Even if they hire thousands of US workers at lower skill levels, one needs to count how many workers are hired at Job Zone 4 and 5, and if the number of H-1B workers exceed 15% of that number, the employer becomes a SWDE. One can imagine the kind of intricate investigations and calculations that an immigration attorney may need to make on behalf of an employer client to find out how many people it hires at Levels 4 and 5 so as to determine whether the employer is a SWDE or not. As long as an employer employs even one US worker at a Level 4 or 5 positions, the hiring of an H-1B worker will render this employer a SWDE (as the hiring of this one H-1B worker will be more than 15% of the number of employees hired in Level 4 or 5). Once the employer is a SWDE, such an employer would  be required to have offered the job to any US worker who applies and is equally or better qualified for the job than the H-1B worker..

The SWDE is not based on a gradation like the traditional Dependent Employer (DE) as defined in Section 212n)(3) of the Immigration and Nationality Act:

  • An employer is considered H-1B-dependent if it has: 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers; or
  • 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or
  • 51 or more full-time equivalent employees of whom 15 percent or more are H-1B.

To qualify as an SWDE, you do not have the less than 25, 12-50 and 50+ to do the calculation.  Under the new SWDE definition where you need 15%, even if you have 1 employee in Job Zone 4 or 5, and hire one H-1B, you become a SWDE. This never happened under the DE definition, as you needed to have 7 H-1Bs if less than 25, or 12 H-1Bs if between 25 and 50, or 15% after that. Unlike the DE category, which was supposed to be the exception rather than the norm, the SWDE is more easily satisfied precisely.

Our colleague David Isaacson properly points out that, because of the different rules for small numbers, it will be relatively easy for a small employer to be a SWDE but not a DE.  If an employer has 20 or 25 full-time equivalent employees (FTEEs), and 5 of them are H-1Bs who are not intending immigrants, then that employer will be a SWDE even if all of its U.S. workers are in Job Zone 4 or 5, because the 5 H-1Bs are necessarily more than 15% of however many of the 20 or 25 total FTEEs are in Job Zones 4 or 5, but that employer won’t be a DE because it has fewer than 7 non-intending-immigrant H-1Bs and one must have more than 7 to be a DE.  It is also possible to be a SWDE and not a dependent employer as a large employer, if your total number of H-1B employees who are not intending immigrants is more than 15% of your total “number that in total is equal to at least 15 percent of the number of its full-time equivalent employees in the United States employed in occupations contained within Occupational Information Network Database (O*NET) Job Zone 4 and Job Zone 5” but is less than 15% of your overall FTEEs, because of your employees in Job Zones 1 through 3 who count towards the denominator of the DE calculation but not the denominator of the SWDE calculation.

Is a dependent employer in a more advantageous position than a SWDE after the Hatch amendment? As a practical matter, it would be very difficult for an employer to be a dependent employer without being a SWDE. So long as an employer hires at least one US worker in a Job Zone 4 or 5 positions, as noted earlier, the hiring of even one H-1B worker would make this employer a SWDE. But there may exist a company that does not hire anyone in a Level 4 or 5 Job Zone. Although Level 4 or 5 Job Zones generally require bachelor’s degrees, or higher, there are many Level 3 occupations in O*Net that may require bachelor’s degrees some times, but not all of the time. For instances, Business and Operations Managers,  Lodging Managers or Food Service Managers are in Zone 3, which can qualify under the H-1B visa,  and one can conceive of a hotel establishment hiring both US workers and  H-1Bs for such positions that are only in Zone 3.

Has the SWDE made the traditional H-1B employer definition redundant? That might be an incautious overstatement for notable differences still remain. The SWDE has to attest that for 90 days before and after the filing of the Labor Condition Application, it has not and will not displace a US worker. By contrast, an employer who is a dependent employer but not a SWDE, will have to attest that for 180 days before and after the filing of the Labor Condition Application, it has not and will not displace a US worker. Also, strangely, the bill as it exists in its current form, does not require a dependent employer to first offer the job to an equally or better qualified US worker. Is this an oversight where a dependent employer is exempt from the more onerous recruitment procedures that SWDE have to go through, but is still subject to a more vigorous anti-displacement attestation?  Only a dependent employer, but not a SWDE,  is  prohibited from  outplacing H-1B workers to third party sites.

The SWDE definition was introduced to catch US-based tech companies than the Indian IT companies, as the latter are in any event dependent employers.  In a twist of fate, while the Indian IT companies have been most affected by the H-1B provisions in the bill, the SWDE concept may wind up most severely affecting the very IT giants in this country who looked to Senator Hatch for legislative relief. The end result may well be to subject them to recruitment obligations that would otherwise not have applied under the traditional H-1B dependent employer definition. Such are the unintended consequences of a compromise that Senator Hatch had to make with other Gang of 8 members, such as Senator Durbin, who have been vehemently opposed to the H-1B visa program. In exchange for a more liberal recruitment regime, the law will make more employers SWDEs and subject them to the restrictive recruitment procedures. Not only may Facebook and Google, to name but two of many such companies, have to adjust to this unwelcome and rude surprise, but it is likely that many IT start-ups, the very entrepreneurs that the Obama Administration claims to want to encourage, will find their growth stymied by the SWDE recruitment obligations that likely were never intended by Senator Hatch to apply to them at all.

This bring us finally to the definitions of “covered employer” and “intending immigrant.” A SWDE will not be subject to the more onerous recruitment requirement, and a DE as well as an SWDE will not be subject to the anti-displacement attestations if they fall under the definition of “covered employer” and are filing an H-1B visa for an “intending immigrant.” The Hatch amendment slightly modified the definition of a “covered employer,”  in fact making it easier for a SWDE or DE to get out of the more restrictive requirements. An “intending immigrant” is one who intends to live and work permanently in the US as demonstrated by a pending or approved labor certification that was filed by a “covered employer.” An intending immigrant can also be the beneficiary of a pending or approved I-140 petition  A “covered employer,” as amended by Hatch,  is an employer who during the year before filing the labor certification on behalf of the intending immigrant, has filed an immigrant visa petition for 90 percent of current employees who were beneficiaries of approved labor certifications during the one year ending six months before the petition in question is filed.

How does this work? The employer who is filing an H-1B on behalf of an “intending immigrant” (for whom a labor certification or an I-140 petition has been filed or approved) needs to look back six months. If the employer had approved labor certifications during the one year period ending six months prior to filing the H-1B petition,  and filed immigrant visa petitions for 90% of them during that look back period six months prior, the employer qualifies as a covered employer. One can conceivably argue that if the employer did not have any approved labor certifications during that look back period, it might still qualify as a covered employer. The covered employer definition applies only to approved labor certifications, out of which 90% have I-140s filed on their behalf. So, if there are no approved labor certifications or no labor certifications even filed, the employer may still be a covered employer, provided the beneficiary of the H-1B petition currently has an approved or pending labor certification or I-140 petition filed on his/her behalf.

The Senate Judiciary Committee’s report on BSEOIMA has some alarming language regarding the “covered employer” definition:

“Intending immigrants are not counted as H-1B or L nonimmigrants for the purposes of determining whether an employer is an H-1B dependent company or a L visa dependent company.  Intending immigrants are defined as persons for whom their employer has started the green card process, including those for whom an Immigrant Petition for Alien Worker (Form I-140) or Application to Register Permanent Residence or Adjust Status (Form I-485) has been filed. However, employers may only take advantage of this counting rule if the employer has actually filed immigrant status petitions for not less than 90 percent of current employees for whom the company filed labor certifications in the previous year.”

Despite this language in the report, it can still be argued that Congress has intended that an employer who has approved labor certifications in the “look back” period follow through with the green card process (as opposed to nominally only filing labor certifications), and thus the requirement that the employer has filed I-140 petitions for not less than 90% of the relevant approved labor certifications.  Congress just does not want an employer to push paper and file labor certifications, but to actually carry through with the green card process for its employees.  However, if there is no filed or approved labor certification during the relevant period, an employer should still be treated as a “covered employer.”  If interpreted literally, only a covered employer can invoke the “intending immigrant” exception. Because the Hatch-Schumer amendment narrowed the definition of “covered employer” to require a labor certification as a condition precedent to an I-140 submission, the eligibility of any I-140 petition that does not  depend on a labor certification approval is suddenly and surprisingly called into question. Thus, outstanding researchers, persons of extraordinary ability, beneficiaries of approved national interest waivers, multinational managers, and advanced US degree STEM holders,  may never be considered as “intending immigrants” as no labor certifications need to be filed on their behalf.   The very people we need to keep most will not benefit.   At a time when there are more green card routes around PERM, can it possibly be that H-1B status will be withheld, or made more difficult, from those who take advantage of these new options?  Surely this cannot be the intended result of such imprecise drafting.  The most vociferous critics of the H-1B programs, such as the IEEE, claim to favor unlimited green cards for advanced US STEM degree holders.  Will it be necessary for them to forego, or so drastically curtail, the H category entirely in order to arrive the finish line? Despite this, as explained above, we believe that an employer who files no labor certifications can still seek protection under the chimera of “covered employer.” Moreover, despite not having to file a labor certification for the priority worker, the employer may have filed labor certifications for other sponsored employees so that the mantle of “covered employer” does not have to be alien centered so long as it applies generally to the employer in question. Doubtless, it may take a technical amendment to simplify the matter and to bring clarity to the perplexed.

Notwithstanding the exception that has been created for employers to get out of the more restrictive H-1B requirements, it would not be easy for an employer to file a labor certification in order to create an intending immigrant. It takes 60+ days of recruitment before an employer can file a PERM labor certification. An employer who wishes to quickly hire an H-1B worker, may not be able to wait for that long to file a labor certification before filing an H-1B petition, and may rather go through the recruitment requirement for an SWDE under the H-1B provision. Moreover, for a permanent labor certification, the employer has to demonstrate that there were no minimally qualified US workers who applied for the job, which is even more onerous than the recruitment requirement for a SWDE, where the standard is equally or better qualified. On the other hand, a SWDE would not have a choice and may be compelled to file a labor certification to establish that the worker is an “intending immigrant.” For instance, an employer whose business model relies on outplacement of employees to client sites will need to first have an “intending immigrant” before it can file an H-1B visa petition.

While an employer may ultimately desire to file for green cards on behalf of their employees,  the H-1B visa, like dating before marriage,  allows time for both the employer and employee to try each other out before making a commitment to sponsor the worker for permanent residence and expend resources, including considerable governmental resources to process and adjudicate a labor certification application. BSEOIMA will turn this logical progression upside down. Employers will be forced to start the green card processing for potential H-1B workers even before they have come on board under the H-1B visa, where they can be tested out first.  BSEOIMA is transformational as it gives more emphasis to green card sponsorship than temporary sponsorship. Employers will look to ways to avoid the H-1B process altogether, as well as the PERM labor certification process. They will be able to directly sponsor STEM advanced degree students on an F-1 visa for a green card without even having to go through the labor certification process. A merits based point system will kick in four years after BSEOIMA takes effect, which will also allow employers to bypass the H-1B and PERM labor certification.  Even for those employers who must resort to the H-1B visa, they may not have to depend on the H-1B visa for too long as one of the provisions in the Hatch amendment will allow a foreign national to apply for adjustment of status even before the priority date becomes current. If the foreign national gets an employment authorization after filing for adjustment of status, it may obviate the need to apply for a renewal of the H-1B status. Finally, BSEOIMA may have unintended consequences for the Indian heritage IT firms, which it seeks to disrupt and put out of business. These firms, besides being forced to file for more green cards, will change their business models and will hire more US workers or will merge with firms that would reduce their dependence on H-1B workers. Thus, in the long run, these firms may be more competitive in the US rather than weakened.

If BSEOIMA does take effect, how will it impact existing H-1B workers? The new recruitment and displacement provisions won’t kick in for existing workers. So, even if an employer files an extension for existing employees, these new provisions will not apply even after enactment. On the other hand, the ban on outplacement will take effect even for existing employees with respect to any application filed after enactment. It would thus be incumbent on employers to start planning in advance and file labor certifications on behalf of H-1B employees they were in any event planning to file in the future. This would allow a SWDE to become a covered employer and thus be able to file H-1B visas under the more liberal provisions. Still, BSEOIMA has made the H-1B visa, which was already complex, even more maddeningly difficult. The whole idea of a temporary visa is to provide employers with flexibility to bring in much needed foreign skilled workers. BSEOIMA utterly and completely fails in this department, and it remains to be seen whether employers will be able to cope with this new temporary visa regime, or whether the drumbeat for further reform will begin soon after the law’s enactment.

Cora-Ann Pestaina

Say What? Did BALCA Just Say That Healthamerica Has Been Overruled?

/0 Comments/in /by

I hang onto every word of the Board of Alien Labor Certification Appeals (BALCA). It’s the only way to make it through the preparation and filing of labor certification applications under Program Electronic Review Management (PERM) as not knowing what BALCA has said on a particular issue could be fatal to any PERM.  This recent statement by BALCA stopped me in my tracks for a moment.

In Matter of Sushi Shogun, 2011-PER-02677 (May 28, 2013), BALCA said, “HealthAmerica has effectively been overruled by the promulgation of 20 C.F.R §656.11(b).” Practitioners who file numerous PERM applications can empathize with my initial panicked gasp at seeing “HealthAmerica” and “overruled” in the same sentence.

As a background, over six years ago, BALCA issued HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). In this important en banc decision, BALCA held that the Certifying Officer (“CO”) should have reconsidered the denial of a PERM application where documentation held by the employer pursuant to the recordkeeping requirements of PERM conclusively established that the apparent violation was an unintentional typographical error on the ETA Form 9089. The Form 9089 contained an erroneous date indicating that the employer had placed a Monday ad instead of the required Sunday placement, when in fact the employer had acted to place the ad on Sunday and had the newspaper tear sheets of the advertisement to prove it. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Since then, HealthAmerica has saved many PERM applications from certain doom and many employers from the Department of Labor’s (DOL) hyper-technical claws. BALCA even broadened HealthAmerica beyond typographical errors. In Matter of Pa’Lante, 2008 PER 00209 (May 7, 2009), the employer filed the ETA Form 9089 neglecting to list the alien’s experience gained before joining the employer and upon which he qualified for the offered position. But the alien’s substantial prior experience had been introduced in the employer’s response to the DOL’s audit notification through a September 2000 report of an Educational Consultant, who reviewed the alien’s education and experience credentials. The report clearly established that the alien had the requisite qualifications for the job well before he started work for the employer. BALCA reasoned that since the employer was able to introduce detailed evidence in its audit response and motion for reconsideration that was not fabricated or prepared after the filing, it would forgive the omission of experience and applied HealthAmerica.

After all this, does BALCA’s statement in Matter of Sushi Shogun now mean that employers can no longer cite HealthAmerica? In Matter of Sushi Shogun, the employer filed a PERM labor certification for the position of “Cook Assistant, Japanese Cuisine.” The application was audited and then denied because the ETA Form 9089 listed the prevailing wage as $10.04 per hour when the prevailing wage determination listed the prevailing wage as $10.14 per hour. The employer argued that this was a minor typographical error and a clerical mistake of minor importance; that the Notice of Filing listed the correct wage; that the offered wage was not listed in any advertisements or on the posting with the State Workforce Agency (SWA); and that no potential job applicant could possibly have been misled by the error. BALCA acknowledged that the error was likely just a result of someone mistyping the wage on the ETA Form 9089 and to deny the application essentially elevated form over substance (HealthAmerica at 19), but held that its hands were tied since the case was being considered after the promulgation of 20 C.F.R §656.11(b) which states that requests for modifications to an application will not be accepted for applications submitted after July 16, 2007. BALCA even went on to “reject the approach of the majority” in another case, Jesus Covenant Church, 2008-PER-200 (Sept. 14, 2009), in which case the employer listed a wage in the SWA job order that was the same as the prevailing wage determination, but 28 cents less than the wage offered to the alien.  The majority found that this was a harmless typographical error that did not lead to a conclusion that the job was not clearly open to any U.S. worker. In Matter of Sushi Shogun BALCA stated that it is “reluctant to second-guess the Secretary’s policy determination requiring applications filed after July 16, 2007, to be error-free.”

BALCA is taking a more firm stand in Matter of Sushi Shogun. But its holding can be limited to only preclude the use of HealthAmerica in situations involving a modification on the ETA Form 9089. This means that the employer in HealthAmerica and even in Pa’Lante whose harmless errors would essentially require a modification of the ETA Form 9089 would probably not be as successful in their appeals now. But HealthAmerica is still good law and can still be cited in cases where the denial of a PERM application is not consistent with notions of fundamental fairness and procedural due process; where the substantive integrity of the process was preserved; the test of the availability of US workers was valid; the Employer’s good faith is evident; the error is harmless; and does not require a modification of the ETA Form 9089.

HealthAmerica lives on by way of cases like Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) and Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009). Under Denzil Gunnels (which Cyrus Mehta has blogged about here) if a PERM application is denied without an audit and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. But, even in cases where the circumstances of a generic audit may not have been specific enough to put the employer on notice regarding a specific deficiency, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present supplemental evidence to the CO. For example, if the employer’s labor certification was denied because the DOL determined that a particular newspaper was not adequate, an employer could argue that the generic audit did not provide adequate notice of the deficiency and thus find its way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred under 20 C.F.R. §656.24(g)(2)(ii). HealthAmerica via Denzil Gunnels can be influential in such a case which does not involve a modification of the ETA Form 9089.

In Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the Form for such language. BALCA held that a denial in that instance would offend fundamental fairness and due process. A case with a similar type of issue, not involving a modification of the ETA Form 9089 can still be approved today despite BALCA’s grand statement in Matter of Sushi Shogun.

HealthAmerica is still alive and is still important to the preservation of the integrity of the PERM process in cases where there has been no demonstration of bad faith or after the fact fabrication and a modification of the ETA Form 9089 is not required.