Cyrus Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Cyrus Mehta & Kaitlyn Box

Emerging Immigration Issues Arising from Violence in the Middle East

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

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

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

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

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

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

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

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

Cyrus Mehta

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

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By Cyrus D. Mehta and Jessica Paszko*

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

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

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

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

It contains two main types of information:

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

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

 

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

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

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

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

  • Complete mandatory training annually.

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

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

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

  • Request the associated underlying documentation via INTERPOL Washington.

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

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

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

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

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

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

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

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

Cyrus Mehta

Shaping Immigration Policy Through EADs

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By Cyrus D. Mehta and Kaitlyn Box*

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

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

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

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

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

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

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

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

The administration’s humanitarian parole program, which allows 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years and apply for work authorization, is currently facing a challenge by Texas and nineteen other states. The plaintiff states allege that the program “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so”. In an October 2022 Court of Appeals case, the Washington Alliance of Technology Workers (Washtech) similary argued that the F-1 STEM Optional Practical Training (OPT) rule should be struck down on the ground that INA § 101(a)(15)(F)(i) authorizes DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study and does not specifically authorize post-graduation practical training. The U.S. Court of Appeals for the D.C. Circuit, however, upheld STEM OPT as a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The Supreme Court recently denied  certiorari allowing STEM OPT and the EAD emanating under 8 CFR 274.12(c)(3) to continue.

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

*Kaitlyn Box is a Senior Associate

Cyrus Mehta

Although the October 2023 Visa Bulletin is Disappointing, the Administration Still Has the Option to Advance the Dates for Filing in the Next Visa Bulletin

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By Cyrus D. Mehta

The October 2023 Visa Bulletin was disappointing. There was some expectation that the Administration would radically advance the Dates for Filing so that many more could file I-485 adjustment of status application, but that never happened notwithstanding a bipartisan letter signed by more than 50 Congresspersons advocating for this reform.  It was hardly any consolation that the India EB-1 Final Action Dates moved from January 1, 2012 in the September 2023 Visa Bulletin to January 1, 2017 in the October Visa Bulletin and the India EB-3 Final Action Date moved from January 1, 2009 in the September 2023 Visa Bulletin to May 1, 2012 in the October Visa Bulletin. While the USCIS in the October Visa Bulletin has permitted filing I-485 applications under the Dates for Filing, they were still dishearteningly retrogressed for India born applicants at July 1, 2019 for EB-1, at May 15, 2012 for EB-2 and August 1, 2012 for EB-3. Interestingly, the USCIS has stated  that the employment-based FY 2024 limit is 165,000, which is more than the 140,000 annual limit but not as significant as the increased limit resulting from the spillover from the family based preferences in prior recent years during Covid. This has resulted in many Final Action dates advancing from the September 2023 Visa Bulletin but the advances will not bring too much cheer to the backlogged community with the exception of the worldwide EB-1,  whose Final Action Dates and Dates for Filing have become current.

Following the heels of the October 2023 Visa Bulletin, the USCIS posted a bulletin entitled “USCIS Actions to Support Adjustment of Status Applicants Who are in H-1B Status in the United States” extolling all that it has done so far relieve H-1B beneficiaries in the crushing backlogs such as options following the termination of employment and broadening the ability of children under 21 to claim CSPA protection under the DFF. The USCIS has not done enough and more can surely be done. At the end of the bulletin USCIS states, “We will keep working within our legal authority to provide as much flexibility, predictability, and dignity as possible for all those waiting for their chance to become a lawful permanent resident and ultimately a U.S. citizen.” This claim sounds hollow unless the Administration starts taking bold action.

Long before the bipartisan Congressional letter was issued in July 2023, I have been advocating for advancing the Dates for Filing for several years. The State Department has never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future. Although the administration disappointingly did not dramatically advance the DFF, it can do so in next month’s and subsequent visa bulletin.

Below is an extract from my recent  interview with Stuart Anderson in Forbes entitled “Changing Visa Bulletin Can Save Immigrants and H-1B Visa Holders” that provides the blueprint for the Administration to advance the Dates for Filing:

Anderson: You have written that the State Department and the Biden administration could provide relief by changing the dates in the Visa Bulletin. Can you explain how this would work?

Mehta: The State Department Visa Bulletin consists of dual dates–Final Action Dates and Dates for Filing. The dates under the Final Action Dates determine when the green card can be issued to the foreign national, while the Dates for Filing indicate when the foreign national can file an I-485 application for adjustment of status. One easy fix is to advance the Dates for Filing to current so that many more backlogged beneficiaries of approved petitions can file I-485 adjustment of status applications.

Anderson: What would be the impact of this change?

Mehta: By being able to file I-145 applications, skilled foreign workers caught in the employment-based backlogs can get ameliorative relief such as an employment authorization document (EAD), travel permission and be able to exercise job mobility under INA section 204(j). Spouses and minor children can also avail of work authorization and travel permission after they file their I-485 applications.

Many more of the children of these backlogged immigrants would also be able to protect their age if the date for filing is made current. While it would be ideal for Congress to provide more immigrant visas so that people become permanent residents, in the face of Congressional inaction, allowing skilled workers to file I-485 applications would give them and their families more mobility and flexibility.

Anderson: Why do you believe the State Department has the legal authority to make this change in the Visa Bulletin?

Mehta: INA section 245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa is immediately available” to the applicant.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next Visa Bulletin, May 2012, a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007.

If the State Department were absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007. Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 may still potentially be waiting and have yet to receive their green cards even as of today.

Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007, to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards.

More recently, the September 2022 Visa Bulletin had a Final Action Date of December 1, 2014, for EB-2 India. In the next, October 2022 Visa Bulletin the Final Action Date for EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014, or earlier should have been issued permanent residence.

These three examples, among many, show that “immediately available” in INA section 245(a)(3), according to the State Department, has never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Anderson: Why do you suggest that the Dates for Filing be advanced to “current”?

Mehta: Although INA section 245(a)(3) requires that an immigrant visa be immediately available to file an I-485, the Dates for Filing are based on an elastic view of visa availability and are generally ahead of the Final Action Dates by a few to several months. According to U.S. Citizenship and Immigration Services: “If USCIS determines there are more immigrant visas available for a fiscal year than there are known applicants for such visas, we will state on this page that you may use the Dates for Filing chart.” While it is salutary that the Dates for Filing are ahead of the Final Action Dates by a few months based on an estimate of visa availability, there is no reason why the Dates for Filing cannot be set even more ahead of the Final Action Dates.

Taking this to its logical extreme, visa availability for establishing the Dates for Filing may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly, one visa can also be left intact rather than used by a noncitizen beneficiary.

So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under the Dates For Filing, and this would be consistent with INA section 245(a)(3). This is reflected in the August 2023 Visa Bulletin as the first visa in the India EB-3 has a priority date of January 1, 2009. Hence, there is one available visa in the India EB-3 skilled worker, otherwise it would have stated “Unavailable.” The Dates for Filing could potentially advance and become current based on this available visa with a January 1, 2009 priority date in the India EB-3, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

The point that I have tried to make about the Administration’s elastic interpretation of “immediately available” under INA 245(a)(3) is underscored by the dates in the Family Second 2A Second Preference in the October 2023 Visa Bulletin. The Final Action Dates for the F2A in the Worldwide is February 8, 2019. On the other hand, the Dates for Filing for the F2A in the Worldwide is September 1, 2023. If the term “immediately available” was strictly construed, there would not be a 4+ year difference between the two dates but yet applicants under both the Final Action Dates and Dates for Filing are able to file I-485 applications under INA 245(a)(3).

Many were understandably both disappointed and outraged after the release of the October 2023 Visa Bulletin. Noted immigration attorney  Greg Siskind posted this on X (formerly Twitter):

If Congress won’t do its job, the Administration certainly has options. Allowing everyone to file to adjust (the @cyrusmehta theory) or get EADs and be free agents and not counting derivatives all have strong legal support. Those protesting and saying that USCIS can’t legally do it have a status quo bias.

I agree. There is no need for this Administration which is otherwise pro immigrant to stonewall good ideas. It is hoped that some courageous folks within the Administration shatter the status quo and radically advance the Dates for Filing in the next visa bulletin.

 

 

 

Cyrus Mehta

NYC Should Welcome Migrants Rather Than Have a Mayor Who Disparages Them

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Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, New York City Mayor Eric Adams has made a series of increasingly uninformed and disparaging comments about migrants arriving in New York. In a town hall meeting on September 6, Adams said of the influx of migrants: “this issue will destroy New York City”. Adams further stated that “every community in this city is going to be impacted” by the arriving migrants, and warned the audience: “It’s going to come to your neighborhoods.” On September 9, 2023, Adams directed agencies to prepare plans for reducing the city’s budget by 15 percent, stating that the cost of caring for increasing numbers of migrants has put a strain on NYC’s financial resources.

Adams’ comments are incredibly troubling to immigration advocates, who view the mayor as demonizing asylum seekers. Murad Awawdeh, executive director of the New York Immigration Coalition, told the New York Times that: “What we’ve seen with the rhetoric he’s using is that it’s activating people in a negative way against their new neighbors. The mayor should know better. The contributions of the immigrant community here have been seismic.” New York City has a rich tradition of welcoming immigrants, and the contributions of immigrants have long shaped the fabric of the city. Even Emma Lazarus’ poem, printed at the base of the iconic Statue of Liberty in New York Harbor, issues the following directive: “Send these, the homeless, tempest-tost to me”.  Adams’ remarks run entirely contrary to the vision and history of New York City as a refuge for immigrants.

Moreover, Adams seems to ignore the fact that asylum seekers are often eager to find work and begin contributing to their communities. A recent New York Times article also emphasizes that there is no shortage of available jobs for migrants, stating “across the state, many large and small employers have expressed an overwhelming willingness to hire recent asylum seekers”. The article further notes that there is a tremendous need for workers in “service industries like landscaping, manufacturing and hospitality”, particularly in areas of upstate New York that have suffered from declining populations in recent years.

However, the path to obtaining work authorization is less than straightforward for many migrants. Pursuant to INA § 208(d)(2) and 8 CFR 208.7(a)(1), asylum applicants may apply for an employment authorization document (EAD) no earlier than 150 days after the submission of a completed asylum application. The Form I-765 application must then remain pending for an additional 30 days, for a total of 180 days, before the asylum applicant is eligible for work authorization and USCIS can issue an EAD. Thus, despite some elected officials urging the Biden administration to expedite the process for issuing the EAD for asylum seekers, the administration is hamstrung by the statute precluding an asylum applicant from applying earlier than 150 days from submitting an application, and then issuing the EAD only after 180 days from the submission of the application.

Some migrants need not wait for 180 days before becoming eligible for employment authorization, though. Pursuant to a special Department of Homeland Security (DHS) program, certain nationals of Cuba, Haiti, Nicaragua, and Venezuela may be paroled into the U.S. for a period of up to two years. Because these individuals are not asylum applicants, but rather have been paroled into the U.S., they are eligible to apply for an EAD immediately.

Similarly, U.S. Customs and Border Protection (CBP) has recently begun using the CBP One app to schedule appointments for migrants seeking to enter the U.S. through a port of entry at the Southern border. According to a DHS fact sheet, “individuals who are processed into the United States are generally placed into immigration proceedings and, on a case-by-case basis, may be considered for a period of parole for up to two years to continue their immigration proceedings”. Migrants who entered the United States through this process are eligible to apply for an EAD immediately upon being paroled into the country, even if they applied for asylum less than 150 days prior. The Biden administration has recently begun sending text messages to migrants who are eligible for work authorization to encourage them to apply, as well as circulating QR codes that link to information about applying for work authorization.  While this is all salutary, the Biden administration should also process the EADs expeditiously for eligible applicants.

Adams’ assertion that migrants will destroy New York City is utterly misguided. He is foolishly playing into the hands of Republican politicians who have never been friendly towards asylum seekers.  Rather, immigrants have played an instrumental role in building New York City into what it is today. The city’s newest arrivals are equally eager to contribute, and Adams seemingly disregards the fact that many migrants are already authorized to apply for work authorization and entering a community that is ready to employ them. Once these migrants are employed they will contribute to New York City and the economy.  The key to ensuring that New York City can successfully welcome arriving migrants is not to vilify these individuals, but rather to ensure that eligibility for work authorization is extended to as many migrants as possible, and to facilitate the application process for those who are already eligible. This will be a win-win for migrants and New York City!

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

Cyrus Mehta

To What Extent Can Immigration Practitioners Ethically Rely on ChatGPT to Aid Their Practice?

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To what extent can ChatGPT assist immigration lawyers in their immigration practice? What are the ethical pitfalls if a lawyer relies on ChatGPT?

There is one case that was widely publicized all over the world In Mata v. Avianca Inc, Judge Castel in the Southern District of New York sanctioned two New York lawyers and their law firm for $5000 for submitting a brief citing fake cases generated by ChatGPT. The brief was submitted in opposition to a motion to dismiss by Avianca Airlines after Roberto Mata sued the airline for incurring an injury during a flight to JFK, New York. The 10-page brief  cited more than half a dozen relevant court decisions such as Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, Varghese v. China Southern Airlines, with a learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.” None of these cases existed and were made up by ChatGPT. Judge Castel pointed out that “[Varghese v. China Southern Airlines] shows stylistic and reasoning flaws that do not generally appear in decisions issued by United States Courts of Appeals. Its legal analysis is gibberish.” Judge Castel further noted that he would not have sanctioned the attorneys if they had immediately come clean when confronted with the fake cases generated by ChatGPT. Instead the lawyers “doubled down and did not begin to dribble out the truth” for a month and a half after the cases were brought to the court’s attention. Rather than accept an apology from the lawyers, in addition to the $5000 fine, Judge Castel ordered that the lawyers inform their client and the judges whose names were wrongfully invoked of the sanctions imposed.

If a  brief with made up cases and citations generated by ChatGPT is submitted in Immigration Court or with the USCIS, EOIR and DHS Disciplinary Counsel can impose sanctions under the disciplinary grounds articulated in 8 CFR 1003.102. For instance, a practitioner can be sanctioned for knowingly or with reckless disregard making false statements under 8 CFR 1003.102(c), engaging in frivolous behavior under 8 CFR 1003.102(j), engaging in conduct that is prejudicial to the administration of justice or undermines the integrity of the adjudicative process under 8 CFR 1003.102(n), failing to provide competent representation under 8 CFR 1003.102(o),  failing to act with reasonable diligence and promptness under 8 CFR 1003.102(q) or repeatedly filing briefs and other pleadings that reflect little or no attention to the specific factual or legal issues applicable to a client’s case, but rather relying on boilerplate language  under 8 CFR 1003.102(u).  Of course, state bar disciplinary authorities where the lawyer is admitted can also start an investigation under that state’s analogous rules governing the professional conduct of attorneys and impose discipline.

Even before  the advent of ChatGPT,  lawyers have been disciplined for filing inaccurate or sloppy briefs. For instances, in Coboy v. US Small Business Administration, 992 F.3d 153 (3d Cir 2021), the court sanctioned a lawyer for a  sloppy cut and paste job. “The relevant extract from the Third Circuit’s holding is worth noting:

It’s not easy to become a lawyer. The practice of law is challenging, and even the best lawyers make mistakes from time to time. So we err on the side of leniency toward the bar in close cases. But the copy-and-paste jobs before us reflect a dereliction of duty, not an honest mistake.

This does not mean that the lawyer should completely shun AI technology in their practice. The lawyer could use an AI generated response as the starting point but should not be taking for granted that ChatGPT will always be accurate. In an ABA practice advisory, “Future Proofing: A Present Look at ChatGPT in Your Future” by Dan Pinnington and Reid Trautz, the authors provide the example of how an immigration lawyer has been testing ChatGPT for his busy practice:

Miami immigration lawyer Michael Harris has been testing ChatGPT for his busy practice by seeing how it could write analytical essays or letters typically used in his practice. Harris reports that he immediately was impressed that it could write detailed letters with the same type of instruction he would give a paralegal or associate lawyer. “If the draft had weaknesses, I would refine my instruction and the AI was able to further adjust. I don’t think ChatGPT can yet write a complex memorandum of law, but it can help draft detailed fact statements when given the right in put prompts.

In an AILA advisory, “What is ChatCPT and Why Does It Matter to Immigration Lawyers?” by Michele Carney, the author provides this valuable insight on how ChatGPT might be able to assist the immigration lawyer:

Think of ChatGPT as a blank piece of paper that can populate ideas. ChatGPT can get the ball rolling on ideas as it uses a predictive model, and the more information the lawyer inserts into the query, the more responsive the answer will be. The lawyer can get several responses from ChatGPT, and then perhaps the writer’s block will be lifted, and the lawyer will have a springboard from which to draft a document.

I asked ChatGPT to see whether it could help me draft a letter in support of an O-1B for an Indian chef. This was my question:

Can you assist me in drafting a letter in support of an O-1B petition for a prospective chef of an Indian restaurant in New York who has gained acclaim in India for his innovations in Mughlai and Dum pukht cuisine. Please also provide some background on the origins of Mughlai and Dum pukht cuisine.

This was ChatGPT’s response:

Certainly, here’s a letter in support of an O-1B petition for a prospective chef specializing in Mughlai and Dum Pukt cuisine, along with some background on the origins of these cuisines:

[Your Name] [Your Title] [Restaurant Name] [Restaurant Address] [City, State, ZIP Code] [Date]

[USCIS Address] [City, State, ZIP Code]

Re: O-1B Visa Petition for [Prospective Chef’s Full Name]

Dear Sir/Madam,

I am writing to wholeheartedly support the O-1B visa petition on behalf of [Prospective Chef’s Full Name], an extraordinarily talented chef from India, whose culinary prowess and innovative contributions to Mughlai and Dum Pukt cuisine have earned him accolades and acclaim in his home country.

Mughlai Cuisine, originating during the Mughal Empire’s reign in India, represents a culinary tradition characterized by its opulent flavors, aromatic spices, and meticulous preparation methods. This culinary heritage is a testament to the grandeur and refinement of the Mughal courts. Mughlai cuisine is celebrated for its use of cream, yogurt, and an array of spices, resulting in dishes of unparalleled richness and taste. The hallmark of Mughlai cuisine lies in its ability to transform ordinary ingredients into extraordinary culinary masterpieces.

Dum Pukt Cuisine, another gem in the treasure trove of Indian gastronomy, emerged from the royal kitchens of the Mughal emperors. The term “Dum” translates to “breath” in Persian, symbolizing the slow, luxurious breath that food takes as it is carefully slow-cooked in a sealed container. This technique allows flavors to meld and intensify, resulting in dishes of exquisite depth and complexity. Dum Pukt cuisine is a living testament to the legacy of generations of chefs who have preserved and perfected this timeless culinary art.

[Prospective Chef’s Full Name] has not only embraced these culinary traditions but has also elevated them to new heights through his innovative techniques and creations. His culinary journey reflects a profound understanding of the roots and history of Indian cuisine, coupled with a relentless passion for pushing the boundaries of flavor and presentation.

His achievements include:

  1. Innovative Culinary Creations: [Prospective Chef’s Full Name] consistently pushes the boundaries of traditional Mughlai and Dum Pukt cuisine, reimagining classic dishes with contemporary twists that have captivated diners and critics alike.
  2. Acclaim in India: He has received widespread recognition in India, earning accolades and awards for his culinary innovations.
  3. Cultural Ambassador: Through his culinary artistry, [Prospective Chef’s Full Name] has effectively served as a cultural ambassador, promoting Indian cuisine and traditions both domestically and internationally.
  4. Mentorship: He has mentored and trained aspiring chefs, ensuring the preservation and continued evolution of these culinary traditions.

Enclosed with this letter, you will find the necessary documentation, including letters of support from renowned culinary experts, evidence of [Prospective Chef’s Full Name]’s significant contributions to the culinary industry, and proof of his acclaim in India.

We kindly request that you consider this petition favorably and grant [Prospective Chef’s Full Name] the O-1B visa, which will allow him to bring his extraordinary talents and culinary innovations to our restaurant in New York, enriching our city’s culinary landscape and further enhancing cultural exchange.

Thank you for your attention to this matter, and we look forward to the possibility of welcoming [Prospective Chef’s Full Name] to the United States.

Sincerely,

[Your Name] [Your Title] [Restaurant Name] [Contact Information]

 

 

If the practitioner submits this letter by filling in the blanks, he or she will likely not be providing competent and diligent representation. If this is going be the main letter in support of the O-1B petition, it does not set forth the evidentiary criteria for proving distinction in the arts under 8 CFR 214.2(o)(3)(iv) and how this chef may meet three out of the six evidentiary criteria. This AI generated draft should only serve as the opening for a more detailed letter pertaining to how the chef can qualify for O-1B classification, and it would require more research and investigation about the chef’s acclaim and achievements in Mughlai and Dum pukht cuisine. I give credit to ChatGPT that it gave me some idea of Mughlai and Dum pukht cuisine although note that ChatGPT spelt it as Dum pukt rather than Dum pukht, which is how I spelt it. Perhaps, this AI generated letter might be more suitable as a sample template  from a peer of the chef who writes a recommendation rather than the main letter brief summarizing the evidence and establishing how the chef meets the chef meets the O-1B visa standards.  If a paralegal is relying on ChatGPT to draft a letter in support of an O-1B petition, it would behoove the lawyer to supervise the paralegal and ensure that the paralegal is not solely relying on a document generated by ChatGPT. If the practitioner carelessly submits the letter as is without even filling out the blanks, it would be tantamount to a frivolous filing. The lawyer should also be aware that ChatGPT can hallucinate and generate gibberish as it did in Mata v. Avianca.

While a document generated by AI could potentially lift writer’s block, it should only be the starting point for the lawyer to further investigate the facts and research the law. Submitting a letter generated by ChatGPT without further reworking could potentially result in sanctions for the lawyer under the disciplinary grounds in 8 CFR 1003.102 and under the relevant state bar rules of professional conduct. Even if the lawyer escapes sanctions, the USCIS may be able to detect that the letter was generated by AI and may not give it the same weight.

A final word on confidentiality. There is concern that the data of a client provided to ChatGPT will not be anonymized and kept confidential, and may  thus violate ABA Model Rule 1.6. However, when I asked ChatGPT this question, this was its answer:

Yes, I can assure you that any information you provide, including the date of a client for an O-1B petition, will be kept confidential and anonymized. I don’t have the capability to store or recall personal data from one interaction to the next, and I am designed to respect user privacy and confidentiality. Your data and questions are not stored or used for any purpose beyond the current conversation. Your privacy and the security of your information are of utmost importance. If you have any concerns about privacy or data security, please feel free to let me know, and I’ll do my best to address them.

Notwithstanding ChatGPT’s assurance of maintaining confidentiality, I would still get the consent of the client if I might provide their data to ChatGPT in the hope of generating a more specific letter in support of the O-1B petition.

As final experiment, I gave ChatGPT data about Marcus Samuelsson who is an  Ethiopian-born Swedish-American celebrity  chef and is not my client. Nor is the Aquavit restaurant my client. Perhaps, ChatGPT could provide a better letter if I gave it more specific information about a particular public figure like Mr. Samuelsson and the restaurant that would sponsor him. I asked the following question:

Assuming that Marcus Samuelsson will hypothetically apply for an O-1B visa, please draft the letter in support of the O-1B petition that Aquavit will file on his behalf demonstrating that he meets the evidentiary standards under 8 CFR 214.2(o)(3)(iv)

 

This is how ChatGPT responded:

Your Name] [Your Title] Aquavit Restaurant [Address] [City, State, ZIP Code] [Date]

U.S. Citizenship and Immigration Services [Service Center Address] [City, State, ZIP Code]

Re: O-1B Visa Petition for Marcus Samuelsson

Dear Sir/Madam,

I am writing this letter in support of the O-1B visa petition on behalf of Mr. Marcus Samuelsson, a renowned chef and culinary artist, who we are proud to have as a valuable member of our team at Aquavit Restaurant. We firmly believe that Mr. Samuelsson meets and exceeds the evidentiary standards outlined in 8 CFR 214.2(o)(3)(iv) for an O-1B visa, and we are enthusiastic about his continued contributions to the culinary world in the United States.

Mr. Samuelsson’s exceptional achievements in the field of culinary arts have earned him national and international acclaim. He has demonstrated extraordinary ability and expertise in his craft, distinguishing himself as a culinary innovator and influencer. His contributions to our restaurant and the broader culinary community have been nothing short of remarkable.

To meet the regulatory criteria for the O-1B visa, Mr. Samuelsson can provide the following evidence:

  1. Awards and Recognitions:
    • Samuelsson has received numerous prestigious awards and accolades throughout his career, including multiple James Beard Awards, Michelin stars, and recognition in the culinary industry’s most respected publications.
  2. Critical Acclaim:
    • His culinary creations have consistently garnered critical acclaim, with glowing reviews from renowned food critics and journalists.
  3. Expert Appearances:
    • Samuelsson has been invited to participate as a guest judge on top culinary television shows, further demonstrating his prominence in the field.
  4. Original Contributions:
    • He has made significant original contributions to the culinary arts, introducing innovative techniques, flavors, and concepts that have influenced the industry.
  5. International Standing:
    • His influence extends beyond national borders, as he has represented the United States on the global culinary stage and has been invited to collaborate with chefs from various countries.
  6. Industry Leadership:
    • Samuelsson is recognized as a leader in the culinary world and has served as an inspiration to emerging chefs, mentoring and supporting them in their careers.
  7. Prominent Partnerships:
    • His collaborations with leading culinary institutions, world-famous restaurants, and renowned chefs have solidified his status as a prominent figure in the culinary world.

We believe that Mr. Samuelsson’s achievements, expertise, and contributions to the culinary arts unquestionably meet the criteria set forth in 8 CFR 214.2(o)(3)(iv) for the O-1B visa. We are confident that his continued presence in the United States will enhance our culinary landscape, further promote cultural exchange, and inspire aspiring chefs.

We respectfully request that you grant Mr. Samuelsson the O-1B visa, allowing him to continue sharing his extraordinary talents with the American public and contributing to our vibrant culinary scene. We appreciate your time and attention to this matter and are prepared to provide any additional documentation or information that may be required to support this petition.

Thank you for considering Mr. Samuelsson’s O-1B visa application. If you have any questions or need further information, please do not hesitate to contact me at [Your Contact Information].

Sincerely,

[Your Signature] [Your Name] [Your Title] Aquavit Restaurant [Phone Number] [Email Address]

 

The letter that ChatGPT generated did not meet my standards. It was still canned and used the same verbiage from the letter that it gave me for the Indian chef who specialized in Mughlai and Dum pukht cuisine. The letter was lacking in detail about Mr. Samuelsson’s achievements, which are widely accessible on the internet.  A lawyer who is required to provide competent and diligent representation needs to substantially rework and rewrite an AI generated letter if it will be used in support of an O-1B petition.

 

Cyrus Mehta

USCIS Updates Policy Guidance on CSPA ‘Sought to Acquire’ Requirement After Using Filing Date to Protect the Age of the Child

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By Cyrus D. Mehta and Kaitlyn Box*

As detailed in a prior blog, USCIS issued updated guidance on February 14, 2023 on when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age under the Child Status Protection Act (CSPA). Prior to February 2023, USCIS had taken the position that only the Final Action Date (FAD) protects a child’s age, not the Date for Filing (DFF). This position resulted in children aging out before the FAD became current, and their I-485 applications getting denied, although they had been permitted to apply for adjustment of status using the DFF. In numerous previous blogs (see here, here, and here), Cyrus Mehta advocated for a change in USCIS policy to allow the DFF to protect children’s ages under CSPA rather than the FAD. In its February 2023 guidance, USCIS finally adopted this recommendation, acknowledging that “the same applicant for adjustment of status could have a visa ‘immediately available’ for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation”, and stating that “USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application”.

Regardless of whether the FAD or DFF is used for CSPA purposes, however, INA § 203(h)(1)(A) makes clear that a child’s age is locked “only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability”. In updated guidance issued on August 24, 2023, USCIS clarified that it considers “applicants to have met the sought to acquire requirement if their application to adjust their status was pending on Feb. 14 and they applied to adjust their status within 1 year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied”. The updated guidance:

  • Explains that USCIS considers the February 14 policy change to be an extraordinary circumstance that may excuse an applicant’s failure to meet the “sought to acquire” requirement;
  • Clarifies that the agency may excuse an applicant’s failure to meet the requirement if they did not apply to adjust status because they could not calculate their CSPA age under the prior policy or their CSPA age would have been calculated as over 21, but they are now eligible for CSPA age-out protection under the new policy; and
  • Clarifies that the agency considers applicants to have met the requirement if their application to adjust their status was pending on February 14 and they applied to adjust status within one year of a visa becoming available based on the Final Action Dates chart under the policy guidance that was in effect when they applied.

USCIS further explains that under the policy guidance in effect before February 14, 2023, some noncitizens may not have applied to adjust status because a visa was not available to calculate their CSPA age under the prior policy or their CSPA age would have been calculated to be over 21 years old. If these noncitizens apply to adjust their status under the new policy issued on February 14, USCIS said, they may not be able to meet the one-year “sought to acquire” requirement. “However, noncitizens who do not meet this requirement may still benefit from the CSPA if they can establish that their failure to meet the requirement was the result of extraordinary circumstances,” USCIS noted.

 

Although it is clear that individuals who were unable to apply for adjustment of status within one year of the DFF becoming current can now claim an exception if the delay in filing was the result extraordinary circumstances, this updated guidance still leaves some questions unanswered.

USCIS’s policy of using the DFF to protect a child’s age seems only to pertain to individuals who apply for adjustment of status within the United States. The Department of State (DOS) has yet to issue any corresponding guidance or update the Foreign Affairs Manual (FAM) in accordance with USCIS’s new policy. The FAM still states that an applicant’s “’CSPA age’ is determined on the date that the visa, or in the case of derivative beneficiaries, the principal applicant’s visa became available (i.e., the date on which the priority date became current in the Application Final Action Dates and the petition was approved, whichever came later) (emphasis added)”. Thus, an applicant outside the U.S. who pays an immigrant visa (IV) fee may satisfy the “sought to acquire” requirement, but only based on the FAD becoming current. This uneven policy makes little sense, and the DOS should promulgate its own guidance in accordance with USCIS’s policy to ensure that the DFF can also be used to protect the age of a child who processes for a visa overseas.

Additionally, some derivative children may not have applied for adjustment of status with their parent while the previous policy was in effect because only the DFF was current and it would not have protected their age. Are these children now able to assert that the policy change constitutes extraordinary circumstances and apply for adjustment of status although more than a year has passed since the visa became available (and the DFF has retrogressed, and the USCIS’s stated policy guidance on retrogression is at odds with this update)?  Based on the new policy, one can argue that the child was eligible to apply for adjustment of status when the DFF became current, and is now eligible to file a late, sought-to-acquire I-485 under the extraordinary circumstances exception. The same logic should also apply to children whose I-485s were denied based on the prior policy because they aged out before the parent’s priority date became current under the FAD and they can file a late motion to reopen.

Finally, the DFF only protects the age under the CSPA if the USCIS has indicated that the DFF can be used to file I-485 applications. For instance, the USCIS for the September 2023 Visa Bulletin has only permitted filing of employment-based I-485 applications under the FAD and not the DFF. Thus, the DFF will not be able to protect the age of the child under the CSPA even if an I-140 is approved and the DFF is current for that I-140 under the relevant employment-based preference.

While it is salutary that the DFF can be used to protect the age of the child under the CSPA, USCIS needs to provide more clarification and harmonize the application of the DFF with the FAD to protect the child’s age under the CSPA.

 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

 

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

 

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Changes in Work From Home Policies After Labor Certification Has Been Filed

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Cyrus D Mehta and Jessica Paszko*

As a response to the COVID-19 pandemic, employers implemented telecommuting policies, and work-from-home became the norm for much of the workforce. Three years later, many of those employees are dusting off their lunchboxes and ironing their work suits as their employers call them back to the office. While the turning back of these policies may be met with groans from employees who grew comfortable in their home offices, for foreign nationals in the process of being sponsored for permanent employment, the change could mean something much worse than a mere change of work scenery. For instance, if the employer indicated in its test of the labor market that the position allows telecommuting and then later requires all employees to report to the office, could the labor certification be deemed invalid?

The PERM labor certification process is typically begun by submitting the Department of Labor (DOL) Form ETA 9141, Application for Prevailing Wage Determination (PWD). Some key “Job Offer Information” that ETA 9141 asks for in Section F is the job title (F.a.1), job duties (F.a.2), the minimum degree (F.b.1) and experience requirements (F.b.4), and whether the employer requires any special skills or other requirements (F.b.5). In F.b.5, the employer clearly must list any tools, software, or programs that the employee is required to know for the position, but the employer should also use this field to list other key information about the job, such as that telecommuting is permitted. The ETA 9141 also requires the employer to provide the full address of the place of employment (F.e). Based on the regulations’ definitions of employment and employer, the “place of employment” has been interpreted to mean a physical office or location in the U.S. Specifically, 20 CFR § 656.3 defines employer as a “person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States . . . . An employer must possess a valid Federal Employment Identification Number (FEIN).”.  In the case of “roving employees”, the 1994 Barbara Farmer Memo states that the employer’s main or headquarters (HQ) office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated. Note, the information from the ETA 9141 automatically gets included in the ETA 9089, the DOL form used to electronically submit the labor certification, since the revised ETA 9089 took effect on June 1, 2023. Under the old ETA 9089, the employer had to repeat the information from the ETA 9141 in the relevant boxes. Many of the approved labor certifications are under the old ETA 9089.

Once the ETA 9141 is certified by the DOL, employers can move onto the second stage of the PERM process which is to conduct a series of mandatory and optional recruitment steps to confirm that there are not sufficient U.S. workers who are “able, willing, qualified, and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work”, i.e., the labor market test. 20 CFR § 656.1(a)(1). The employer’s advertisements must indicate all of the “Job Offer Information” that was listed in the ETA 9141, or in the old form it was the ETA 9089 and box H.14 was answered. The recruitment steps must be conducted in the area of intended employment that was listed in Section F.e. If an employer intends for an employee to work solely at a designated worksite, such as a company office or its HQ, then the ETA 9141 need only list one worksite location and the employer need only conduct recruitment in that area of intended employment. If the employer will permit the employee to perform work remotely from their home, then the ETA 9141 still need only list the employer’s main or HQ office as the worksite, but F.b.5 on the ETA 9141, and in turn each of the ads used in recruitment, should indicate that the employer will permit telecommuting from anywhere in the U.S.

Turning back to the question we posed at the outset – what should happen to a labor certification that indicated “telecommuting permitted” but where the employer later decides that all employees must report to the office five days a week? Arguably, the labor certification should not be deemed invalid in such a scenario because the labor market test was conducted in the area of intended employment, i.e., the company’s main office or HQ, which is where the foreign worker will need to report to. Additionally, by issuing the labor certification, the DOL determined that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application for a visa and admission into the U.S. and at the place where the alien is to perform the work. Indeed, the employer, by indicating that telecommuting would be allowed, cast a wider net and potentially made the position “available” to more U.S. workers “at the place where the alien is to perform the work” since the U.S. applicant not need be physically present in the employer’s area of intended employment listed in the ETA 9141, Section F.e or in the old ETA 9089. Therefore, the labor certification should not be invalid as the employer properly made the two attestations required by it.

But what if the issue was flipped and now the employer wishes to allow telecommuting even though the ETA 9141 and subsequent recruitment did not indicate that telecommuting would be permissible? Here, the employer’s attestation that there are not sufficient U.S. workers who are able, willing, qualified and available at the time of application for a visa and admission into the U.S. and at the place where the foreign worker is to perform the work may be called into question. By failing to indicate in its ads that workers could telecommute from anywhere in the U.S., the employer arguably made the position more restrictive as qualified U.S. applicants may have not applied to the position due to the location of the employer’s office or HQ, though they would have applied if telecommuting was allowed. Still, we would argue that the employer’s telecommuting change after the labor certification should not invalidate the labor certification. The Barbara Farmer Memo made clear that the employer’s main or HQ office should be indicated as the worksite when a job opportunity will require a beneficiary to work in various locations throughout the U.S. that cannot be anticipated. That HQ worksite in turn determines the course of the labor market test and where it is to be conducted. The labor certification should not be later deemed invalid just because the employer changes its mind as to whether or not telecommuting is allowed as the labor market test is still valid since it was conducted in the area of intended employment.

If the labor certification is approved but the I-140 petition still needs to be filed, it would behoove the employer to provide a justification in the support letter to the I-140 that the labor certification is still valid despite a change in work from home policy. Alternatively, the employer is only obligated to offer the position in accordance with the terms of the labor certification upon the grant of permanent residence. See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).  Thus, even if the work from home policies have currently changed, but the employer still wishes to offer the job in accordance with the labor certification, then there is no need for any further justification. Assuming that the employer does not intend to offer the position per the labor certification upon the grant of permanent residence, obtaining an I-140 approval after full disclosure has been made would be the ideal situation. If the I-140 petition is already approved, the employer could again go with the assumption that the underlying labor certification is valid despite the change in work from home policy and perhaps explain in the letter in support the I-485 or in the I-485J supplement, whichever is applicable. When there is doubt regarding the validity of the labor certification due to changes in work from home policies, and the I-140 is already approved, the employer can file a new labor certification and upon approval of the labor certification, file an I-140 petition and recapture the earlier priority date under 8 CFR § 204.5(e)(1).

Given the extraordinary time it takes to obtain labor certifications, starting again when there is a change in a work from home policy can be very burdensome especially when the foreign worker is running out of H-1B time. Our blog provides a legal basis for keeping the labor certification in intact when there is a change in work from home policies, and making full disclosure when submitting the subsequent I-140 petition and I-485 application.

(This blog is for informational purposes and should not be relied upon as substitute for legal advice)

*Jessica Paszko is an Associate at Cyrus D. Mehta &  Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

 

 

 

 

 

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Will United States v. Hansen Come Back to Bite Trump?  

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By Cyrus D. Mehta and Kaitlyn Box*

Former President Trump was indicted on August 1, 2023 by Special Counsel Jack Smith for his efforts to overturn the 2020 elections. Although Trump believes his actions were protected by the First Amendment, a recent Supreme Court case involving an immigration statute, United States v. Hansen,  held that speech constituting fraud  is not protected under the First Amendment.  Will Hansen come back to bite Trump?

In two previous blogs, here and here, we have discussed the United States v. Hansen case, the central question of which was whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen, who ran an organization called Americans Helping America Chamber of Commerce (“AHA”) purporting to help undocumented immigrants become U.S. citizens through adult adoption, had been convicted of violating INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen’s convictions eventually were vacated by the Ninth Circuit, which held that the encouragement provision is overbroad and unconstitutional, as it prohibits a broad range of protected speech . Hansen and amici argued that the encouragement provision could punish even a lawyer who provides certain types of legal advice to a noncitizen, or an aide worker who advises an undocumented immigrant to take shelter in the U.S. during a natural disaster.  The government sought review by the Supreme Court, asserting among other arguments, that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The Supreme Court granted certiorari and, in its decision issued on June 23, 2023, held that the encouragement provision is not unconstitutionally overbroad because it uses “encourage or induce” “in its specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”.

In our previous blogs, we noted the troubling implications that Hansen could have for immigration lawyers and their ability to effectively advise their clients, as the plain language of the statute could be read to prohibit an immigration lawyer from advising an undocumented client to remain in the U.S. to avail of an immigration benefit that would be unavailable to the client if he left the country. We also noted that immigration lawyers might choose to adopt a practice of advising clients only about the risks and benefits of remaining in the U.S., though giving elliptical advice of this kind might not always constitute competent representation. In its decision, however, the Supreme Court read the encouragement provision to narrowly apply only to intentional facilitation and solicitation. By making it clear that the encouragement provision “stretches no further than speech integral to unlawful conduct, which is unprotected”, the Supreme Court’s decision may alleviate, at least in part, concerns that upholding the provision would have a chilling effect on competent legal advice.

Hansen has recently come back into the spotlight in relation to Donald Trump’s August 1, 2023 indictment on four charges under federal statutes – conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct a federal proceeding, and conspiracy against rights – stemming from the administration’s efforts to overturn the results of the 2020 presidential election. Trump’s supporters, including his lawyer John Lauro, have portrayed the indictment as an attack on Trump’s First Amendment right to engage in political speech. As Walter Olson points out in a Cato Institute essay, the indictment itself outlines many of the false claims that Trump made in the context of the 2020 presidential election, but does not explicitly “punish the former president for speech or advocacy as such”. Moreover, the Constitution’s generous protections of political speech do not extend to all types of speech, including speech constituting fraud, as analyses of the indictment have noted.  The Supreme Court’s holding in Hansen makes clear that the First Amendment does not protect speech that facilitates the commission of crimes under federal statutes. Helaman Hansen, too, had been charged with criminal solicitation under INA §274(a)(1)(A)(iv) and the Supreme Court ultimately rejected the idea that his conduct was protected by the First Amendment. The Supreme Court in Hansen, quoting Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003), clearly noted that “the First Amendment does not shield fraud[.]” In an Election Law Blog post, Ciara Torres-Spelliscy observes that “…the Supreme Court […] treats fraud as a different and unprotected category that is outside of the First Amendment’s protections.”

The Trump administration was characterized by overwhelming negative views on immigrants and the promulgation of draconian immigration policies, many of which are analyzed in our prior blogs. In his remarks to the Executive Office for Immigration Review in 2017, then-Attorney General Jeff Sessions once made a reference to “dirty immigration lawyers”, indicating that the administration held immigration lawyers in contempt, as well. It is thus ironic that the same Supreme Court decision that could leave immigration lawyers vulnerable to prosecution has the potential to snare Trump himself, as well. Hansen is a rather double-edged decision – although it could have problematic aspects for immigration lawyers, it may by the same token prove useful in striking down any claims by Trump that the misinformation he spread in an attempt to fraudulently overturn the 2020 election is protected as First Amendment speech.

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