David Isaacson

THE PREJUDICE CAUSED BY SUMMARY REMOVAL AFTER VISA WAIVER ADMISSION: WHAT THE THIRD CIRCUIT MISSED IN VERA AND BRADLEY

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In its decision earlier this month in the case of Vera v. Attorney General of the U.S., the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration judge, even though the government could not produce proof that she had actually waived her right to such a hearing. The Third Circuit in Vera relied on a presumption that the waiver must have been properly executed since this was required by statute in order for Ms. Vera to be admitted under the VWP, and also on the argument, first accepted by the Third Circuit in the case of Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. 2010), that there was no prejudice to Ms. Vera from any lack of a knowing and voluntary waiver because the summary removal that she now faced was the same consequence that she would have faced if she had refused to sign the waiver. This second argument, similar to one made by the en banc Seventh Circuit in Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010), appears to be based on a misunderstanding regarding the consequences of the different types of summary removals that can occur under the VWP.

Additional background details regarding the VWP, as well as regarding the original decision by the Seventh Circuit in Bayo (preceding the en banc decision relied upon by Bradley), are available in a March 23, 2009 article by this author on our firm’s website. For present purposes, it suffices to note that VWP entrants are required by statute, as noted in Vera and its predecessors, to waive their rights to contest removal other than on the basis of an application for asylum, or similar relief from removal based on the threat of persecution or torture. If a VWP entrant who has waived these rights is found inadmissible at the time of applying for admission, or is later found to be deportable, he or she may be summarily removed without a hearing, absent an application for asylum or related relief. There are, however, important differences between the consequences of summary removal upon initial application for admission under the VWP, and summary removal after admission under the VWP.

The procedures regarding determinations of inadmissibility and deportability under the VWP are set forth in the regulations at 8 C.F.R. § 217.4(a)-(b), available online from the Government Printing Office. The provision regarding “Determinations of inadmissibility” at 8 C.F.R. § 217.4(a) addresses the procedure by which “[a]n alien who applies for admission under [INA § 217], who is determined . . . not to be eligible for admission under that section or to be inadmissible to the United States . . . will be refused admission into the United States and removed.” 8 C.F.R. § 217.4(a)(1). Relevant here, 8 C.F.R. § 217.4(a)(3) provides that “Refusal of admission under paragraph (a)(1) of this section shall not constitute removal for purposes of the Act.”

With regard to those admitted under the VWP, on the other hand, 8 C.F.R. § 217.4(b)(1) lays out the procedures for summary deportation of “[a]n alien who has been admitted to the United States under [the VWP] who is determined by an immigration officer to be deportable from the United States under one or more of the grounds of deportability listed in section 237 of the Act.” The immediately following paragraph, 8 C.F.R. § 217.4(b)(2), makes clear that “Removal by the district director under paragraph (b)(1) of this section is equivalent in all respects and has the same consequences as removal after proceedings conducted under section 240 of the Act.”

The key distinction between an initial refusal of admission under 8 C.F.R. § 217.4(a) and a later summary deportation under 8 C.F.R. § 217.4(b), then, is that the former “shall not constitute removal for purposes of” the Immigration and Nationality Act (INA), but the latter has the same consequences as removal after full-fledged removal proceedings under INA section 240, 8 U.S.C. § 1229a. This distinction is important because removal under the INA has long-term consequences.

Most notably, one who has been removed is inadmissible under section 212(a)(9)(A) of the INA, 8 U.S.C. § 1182(a)(9)(A), for a period of time varying between five years and indefinitely, depending on the circumstances of removal. In the ordinary course, when a removal order is issued after proceedings that were not initiated upon the arrival of the person removed, and there is no question of a second removal or an aggravated felony conviction, the period of inadmissibility is ten years pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)(I). One who wishes to seek readmission before this period has lapsed must obtain special consent to reapply for admission, pursuant to 8 U.S.C. § 1182(a)(9)(A)(iii). Such permission to reapply for admission can be sought from USCIS by filing an application on Form I-212, but will be granted only in the exercise of discretion and not automatically.

Summary refusal of admission to a VWP applicant, under 8 C.F.R. § 217.4(a), is not an order of removal for purposes of the INA according to 8 C.F.R. § 217.4(a)(3), and thus does not lead to a requirement that the refused applicant seek special permission to reapply for admission. Summary removal of a VWP applicant subsequent to admission under 8 C.F.R. § 217.4(b), on the other hand, has the same consequences as removal following ordinary removal proceedings according to 8 C.F.R. § 217.4(b)(2), which is to say that it will lead to at least a ten-year bar on readmission under 8 U.S.C. § 1182(a)(9)(A)(ii)(I) absent special, discretionary permission to reapply.

Thus, it was incorrect for the Third Circuit to say in Bradley and again in Vera that “Had Bradley known the contents of the waiver and refused to sign, he would be in the same position as he is now – subject to summary removal without a hearing” and thus unable to obtain status based on his marriage to a U.S. citizen. Bradley, 603 F.3d at 241; Vera, slip op. at 20. The summary removal without a hearing that Mr. Bradley and Ms. Vera would have faced at the time of their initial applications for admission, if they had refused to sign the VWP waiver based on a true understanding of what it meant, carried no collateral consequence of future inadmissibility to the United States. The summary removal that they faced after admission, on the other hand, carried a penalty of inadmissibility for 10 years.

Had Ms. Vera been refused admission when she came to the United States as a minor because she refused to sign the VWP waiver or was found unable to understand it, she would not have faced any bar on readmission to the United States. Now, however, she will, if removed under 8 C.F.R. § 217.4(b), be inadmissible under INA § 212(a)(9)(A) for a period of ten years. That alone would constitute the prejudice that the Third Circuit claimed was absent. Ms. Vera will also, if she is removed, likely be inadmissible for ten years under INA § 212(a)(9)(B), given her unlawful presence subsequent to admission, which she and Mr. Bradley would not have accrued if they had been refused admission because of refusal to sign a waiver—and which, even after they had accrued it, would not have precluded her or Mr. Bradley from adjusting status under INA § 245(a) based on a petition by a U.S. citizen immediate relative (such as a spouse) in the absence of the order of removal under 8 C.F.R. § 217.4(b) that is at issue here, so that there is indeed prejudice in this regard as well from subjecting Ms. Vera and Mr. Bradley to the strictures of the summary removal process despite the asserted lack of a knowing and voluntary waiver of rights by either of them. The Third Circuit’s suggestion that there was no prejudice in Vera and Bradley appears to have been based on the assumption that refusal of VWP admission under 8 C.F.R. § 217.4(a) and subsequent summary deportation under 8 C.F.R. § 217.4(b) are legally identical procedures with identical consequences, but this is not the case.

With this erroneous argument out of the way, the Third Circuit’s ruling in Vera appears to rest solely on the notion that a twelve-year-old girl must be presumed to have executed a knowing, voluntary, and meaningful waiver of her due process rights with regard to future removal from the United States simply because the governing statute and regulations indicate that the government ought to have required such a waiver prior to allowing her to enter the United States. That is a slender reed indeed, as discussed in a recent posting on the AILA Slip Opinion Blog. The Second Circuit’s decision in Galluzzo v. Holder, which the Third Circuit in Vera declined to follow and which held that a VWP entrant’s due process rights would have been violated (if prejudice were shown) when he was subjected to summary removal without any actual waiver, is significantly more convincing on that subject, and should be followed by other courts in the future. Indeed, it would make sense for even the Third Circuit, in the event of future panel or en banc reconsideration of Vera (or en banc reconsideration of its precedential value in a future case), to follow Galluzzo once the prejudice to someone in Ms. Vera’s situation has been explained.

Cyrus Mehta

Stop the Assault on Employment Immigration to the USA

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At the behest of Senator Grassley (R-IA), the DHS Office of Inspector General recently issue a controversial report, The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Service Officers. I wonder about the intentions of Senator Grassley who put a hold on the Fairness For High Skilled Immigrants Act, which passed the Republican controlled House of Representatives by a landslide on November 29, 2011. More recently, Senator Grassley also put a hold on the Startup Visa Act, which has also received bipartisan support. Is he truly concerned about the integrity of the system or is there a deeper hidden agenda. Mind you, he has also been a foe of immigration from India with his recent opposition to the use of the H-1B and B-1 visas by Indian IT professionals. It is amazing how one Senator, who has only one vote among 100 Senators, can have so much influence over immigration policy. It is time to speak out.The report stems from a pet concern of Senator Grassley, as expressed by Judiciary Committee Chairman Lamar Smith in a February 15, 2012 hearing  before the House Subcommittee on Immigration, about whether “senior [USCIS] leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible.”

The Inspector General interviewed 147 managers and staff, received 256 responses to an online survey, and reviewed USCIS policies related to the effort to detect benefit fraud. The report was based on testimonials, not empirical data. The report recommended process improvements, such as instituting more training and collaboration to improve the fraud referral process; developing additional quality assurance or supervisory review procedures to strengthen identification of names and aliases of those seeking an immigration benefit; performing nationwide onsite outreach efforts to discuss the performance management system with Immigration Service Officers (ISOs); developing standards to permit more time for an ISO’s review of case files; revising policy on requests for evidence (RFEs) to clarify the role that the requests play in the adjudication process; and developing a policy to “establish limitations for [USCIS] managers and attorneys when they intervene in the adjudication of specific cases.” The report stated that “special treatment of complainants fosters a sense among ISOs that USCIS inappropriately grants benefits in certain cases.”

The report noted that “[t]here may be a basis for clarifying adjudication policy for O visa petitions. A low approval rate is not one of them.” The Inspector General found that O visa petitions are granted at a high rate. “Quality assurance information we examined demonstrates that excessive O visa approvals are more likely than denials.” The report stated, “From January 2008 through March 2011, the California and Vermont service centers approved 40,719 of 44,386 O visa petitions (91.7%). This approval rate exceeds the approval rate for many other nonimmigrant worker petitions. During the same time period, the two centers approved 78.5% of H-1B (specialty occupations) and 76.1% of L-1B (specialized knowledge worker) petitions.”

The Inspector General’s report noted, however, that: (1) the testimonial evidence shared by interviewees may not represent views shared by other employees; (2) USCIS has taken action to diminish threats to the immigration benefits system; (3) general employee concerns about the impact of production pressure in the quality of ISO decisions “do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats; (4) “[n]o ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats”; and (5) “[e]ven those employees who criticized management expressed confidence that USCIS would never compromise national security on a given case.”

The report concluded, however, that “[e]ven with the additional security checks and process improvements USCIS has made in the past several years, national security and fraud concerns may require more thorough review of immigration applications and petitions.” The OIG noted that “[a]dditional documentation, or further insight gained through more interview questions, would ensure that ISOs have greater confidence before making a decision.” Also, the report suggests that “Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions.”

As an immigration practitioner, the Inspector General’s conclusions about applications being granted  too easily have no bearing with reality.  A filing of an H-1B or L petition, especially in certain industries such as IT consulting, results in a lengthy and detailed RFE asking for every aspect of the job duties, elaborate itineraries and unrealistic work schedules (such as the percentage of time performing each duty)  and other unnecessarily and trivial information about the employer and the employment. This is true even if the USCIS has been approving an H-1B petition previously on the exact facts for the very same worker who must be now be on his 10th year in H-1B status. Also, in the case of an H-1B worker in an IT consulting company who is placed at a third party client, the employer has to repeatedly demonstrate that it has a right of control  under the Neufeld Memo over this worker’s employment even if the employer demonstrated this in great detail when it last filed a request for an H-1B extension.

Senator Grassley, I ask you to put yourself in the shoes of this H-1B worker who has an approved I-140 immigrant visa petition for the green card, but is still waiting endlessly for it, along with his family, only because of the long waits in the EB-2 or EB-3 for India. If you did not put a hold on the Fairness for High Skilled Immigrants Act, this H-1B worker may have received a green card by now or close to receiving one. He now needs to wait nervously each year for an approval, with the fear that the H-1B may be denied this time around even though it got approved under the same facts the year before and the year before that. If the H-1B gets denied this time under some arbitrarily invented heightened scrutiny standard,  he and his family will fall out of status and will have to most likely need to leave the US after working in the US legally for 10 years, paying taxes and otherwise contributing to the productivity of his employer and clients. He will also be forced to yank his brilliant children out of school disrupting their lives and causing great turmoil in their young  impressionable minds.

If the OIG report becomes USCIS policy, it will kill and stifle a US employer’s ability to bring in skilled foreign national workers on H-1B, L-1 and O-1 visas. Despite Senator Grassley placing a hold on the Startup Visa Act, the DHS in August 2011 announced initiatives for entrepreneurs who founded their own startups to be able to have the company file for an H-1B visa on their behalf. This initiative too will get killed because if the government wants to look for fraud for the sake of satisfying certain statistical requirements, it will find it by shifting the goal posts. Look how many times over the past 10 years the USCIS has redefined what it means by the US equivalent of an Indian bachelor’s degree or equivalent education, thus blowing apart I-140 petitions approved after the employer meticulously but unsuccessfully tested the US labor market. Or look how the Neufeld Memo has been aimed against a very successful business model that has served the needs of Fortune 500 US corporations. If we see stricter adjudications, the US will be deprived of the talents and vision of foreign entrepreneurs who have a burning desire to set up startups in the US even in the absence of the Startup Visa Act, which have the potential to do brilliantly well like Google, E-bay or Yahoo.

At the February 15, 2012 Congressional hearing, the testimony of Bo Cooper, former General Counsel of the Immigration and Naturalization Service, is worth noting. Summaries of other witnesses at this Congressional hearing can be found in our forthcoming March 2012 Immigration Update.  Mr. Cooper said that USCIS has released official data since the report came out. He noted that recent analysis shows that the data refute concerns “that USCIS may be institutionally biased toward unjustified approvals and that the agency observes policies that would suppress RFE issuance.” The data tell the opposite story, he said: “Particularly with respect to the key nonimmigrant categories for foreign professionals, denial rates and RFE rates have risen very sharply in recent years.”

The “most startling example,” Mr.Cooper said, appears in the L-1 program, which is used by multinational corporations to transfer managers, executives, and specialists into the United States. Noting that such visas “are an essential component of a huge range of productive economic activity in this country,” he said that L-1 visas are critical to attracting foreign investment that supports the creation of jobs for U.S. workers and are critical when U.S. companies acquire companies based oversees and need to have the acquired company’s specialists come to the United States to integrate their expertise and processes. L-1 visas are also critical to companies who need to bring specialists from their overseas affiliates into their research centers and operations in the United States, he noted. “Without predictable, reliable access to these visas, employers find themselves having to move jobs and projects to other countries.”

The data for employees with specialized knowledge in the L-1B program “shows a steep rise in denials and requests for evidence beginning in 2008,” he said, noting that the denial rate for L-1B petitions more than tripled in 2008 and is now at nearly quadruple the pre-2008 rate, at 27 percent in 2011. The RFE rate change is even starker, he said. From 2005 to 2011, the rate soared from 9 percent to 63 percent of L-1B cases.

He also noted that in the L-1A program for managers and executives being transferred within multinational corporations, the RFE rate rose from 10 percent in 2005 to 51 percent in 2011. Denial rates rose 75 percent over five years, from 8 percent in 2007 to 14 percent in 2011. In the H-1B program for professionals in specialty occupations, the denial rate increased from 11 percent in 2007 to 17 percent in 2011. Over a quarter of all H-1B filings generated an RFE in 2011.

Seen in the light of this data, Mr. Cooper said “there is no basis for the concern expressed in the OIG report that USCIS has an institutional bias in favor of approvals or against RFEs.” In fact, he said, the data show the opposite trend. Noting that USCIS said in its response to the OIG report that it is reviewing its RFE policy and aims to issue new RFE guidance this year, Mr. Cooper recommended that the new policy reflect “the needs of today’s business environment and the innovation economy,” and that it be monitored carefully once put into practice.

Finally, the Inspector General’s report asks that the standard for adjudicating visa petitions be raised from the “preponderance of evidence standard” to something higher, such as the “clear and convincing evidence” standard or the even higher standard used in criminal proceedings, which is “beyond a reasonable doubt.” Under the preponderance of evidence standard, applicants have to demonstrate that the facts in their case are slightly more true than not true. Even though the preponderance of evidence standard requires a lesser degree of proof than the clear and convincing standard, this does not mean that it provides an invitation for fraud. The preponderance of evidence is the common standard used in civil proceedings, and allows the USCIS examiner to fairly evaluate very nebulous criteria while giving the benefit of doubt to the application, for instance, whether an O-1 visa applicant is extraordinary or not or whether an L-1B worker has specialized knowledge. If the applicant provided patently fraudulent documentation, he or she can be charged with the fraud ground of inadmissibility under INA § 212(a)(c)(6) and there also exist tough criminal sanctions.  In any event, it does not seem that the USCIS is faithfully adhering to the preponderance of evidence standard even today, and officially raising the bar will surely serve as an invitation for USCIS officials to arbitrarily deny even more case without fairly weighing the evidence. This would further undermine the ability of US employers to use our employment-based immigration system in an effective and rational manner to benefit them and simultaneously make the US prosper.

Cora-Ann Pestaina

THE SUPERVISED RECRUITMENT ROLLER COASTER -THE RIDE THUS FAR

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You filed a spotless labor certification. It was a perfect case, a perfect employer and a perfect employee with the perfect qualifications. Yet, one day, there it was in the mail. The dreaded Notification of Supervised Recruitment (“NSR”). The Department of Labor (“DOL”) had long advised to expect increased Supervised Recruitment. You knew the possibility of receiving an NSR existed and had advised your client accordingly. Still, its arrival was disappointing. Initial indignation (“How dare they?”) gave way to resignation (“Oh well, that’s just the way the cookie crumbles.”) to actual enthusiasm (“Hey, this will give me chance to finally see what this crazy process is about!”). And so, assuring your client that all will be well, you took their hand and boarded the Supervised Recruitment roller coaster.

The DOL is authorized, under 20 C.F.R. § 656.21, to conduct Supervised Recruitment.  The article by Cyrus Mehta, Maggie Murphy and David Ware, Supervised  Recruitments in Tough Economic Times – Practical Tips For Compliance quoted Solicitor of Labor Gregory F. Jacob who said, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.” This article also indicated that the DOL will target employers in industries with publicized layoffs in specific geographic locations, e.g. employers in the financial industry in New York City. The DOL may also target employers in the computer and auto industries. The DOL has begun to make good on its threat to increase Supervised Recruitment and like most practitioners, I am currently in the middle of the Supervised Recruitment process, with no telling where this ride will take me next. Based on experiences thus far, here is some of what can be expected.

Requests for extension may/may not be granted

The NSR describes the steps involved in the Supervised Recruitment process and gives the employer 30 calendar days, from the date of the NSR, to submit a draft advertisement and any additional information requested in the NSR. The NSR also indicates that the employer may submit a timely request for one extension of the 30-day timeframe by e-mailing the DOL at SR.processing@dol.gov. A good reason for an extension would be that you are a new attorney of record. However, the employer cannot rely on the mere timely submission of an extension request. The request must be officially granted.  The problem is that the DOL may respond within 1-2 days; may take longer than a week to respond; or may not respond! Moreover, there is also no guarantee that the response will be favorable. Because of this uncertainty, it is best to begin to prepare a response to the NSR which can be timely filed in the event that no response from the DOL has been received.

The requirements for the advertisement are different

The NSR lists the required content for advertisements. One immediately becomes aware that the rules under Supervised Recruitment are different from the PERM rules. Under Supervised Recruitment, the advertisement must contain the job title; the job duties; the work schedule; the education and experience requirements; the geographic location(s) of employment; the Kellogg language, “Any suitable combination of education, training or experience is acceptable;” the offered wage; and a list of any training to be provided to employees. The advertisement must direct applicants to submit their applications to the DOL’s Recruitment and Employment Office.

The NSR may also request additional documentation. For example, the DOL may require the employer to “explain any limitations on training…with regard to [the offered] position.” The DOL does not clarify what is meant by this request but asks that the employer note that a worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.

Requests for additional information

Once the draft advertisement has been submitted, the DOL may request additional information. For example, a draft ad requesting that applicants “must be willing to work in unanticipated locations across the US” may elicit a request that the employer establish the business necessity for this requirement. The employer will be given 30 calendar days from the date of the request within which to submit its response.

Making changes to the ad after it has been submitted

Once the draft advertisement has been submitted, it may be possible to make amendments to the ad by e-mailing the DOL. For instance, in one case, after the draft advertisement had been submitted to the DOL, the employer asked whether it could indicate that there were multiple, identical positions available within the company. The DOL responded favorably to an e-mail inquiry requiring only that the specific number of positions be indicated. However, it may not be possible to make a drastic amendment to the advertisement from what was stated in the PERM form.

Issues with recruitment

Once the employer’s draft advertisement has been approved, the DOL will issue its Recruitment Instructions.  The Recruitment Instructions are specific instructions informing the employer where and when the advertisement must run. Again, here, the recruitment process will differ from what is required under PERM.  For example, for a professional position, the DOL may require that a 30-day job order be placed with the State Workforce Agency (SWA); that the ad run in a specific major newspaper and online for 3 consecutive days including a Sunday; that the ad run on the employer’s website for 7 consecutive days; that the ad run on 2 other websites for 7 consecutive days; and that the employer post the Notice of Filing for 10 consecutive business days.  All of the recruitment must commence within 15 days of the date of the Recruitment Instructions notification.

The problem is, sometimes, it takes several days for the Recruitment Instructions notification to arrive in the mail. By the time the instructions arrive, the employer may only have 10 days left of the initial 15 days. Then, the employer may encounter problems with some of the recruitment steps. For instance, depending on the particular SWA, it may take up to 7 days to post the job order. To make matters worse, some SWAs may edit the posting (e.g. directing that applications be sent to the employer’s headquarters).  Some SWAs are notorious for randomly editing the job order even after it has been posted for a few days.  The word “sabotage” inevitably comes to mind but I digress. It is important to constantly and painstakingly check the contents of the job order.

Sometimes, the DOL will instruct that the advertisement be placed in the most expensive newspaper of general circulation. For instance, the DOL may instruct that an advertisement for a professional position in Edison, New Jersey, run for 3 consecutive days including a Sunday in the New York Times when the New Jersey Star Ledger is a perfectly appropriate and less expensive newspaper. Considering the extensive requirements for the advertisement (discussed above), it may cost several thousand dollars to run the ad in the newspaper.  Of course, the employer may e-mail the DOL to request a change of newspaper. But again, the DOL may respond in 1-2 days, may take a long time to respond or may never respond. Oftentimes, the employer is forced to simply pay the advertising fees.

The employer is required to e-mail a recruitment schedule to the DOL, no later than 15 days after the last placed advertisement.

Resumes

The DOL will not wait to gather any number of resumes but will forward them to the employer as they are received. In some cases, the resumes will only be sent to the attorney and in other cases, the attorney will only be cc’d on the communication.  If an attorney receives a resume, it is important that this be forwarded to the employer immediately upon receipt so that it can be appropriately evaluated. Also, it is important that the attorney not evaluate the resume before the employer does. Remember the DOL insists that the employer first consider a US worker applicant and not the attorney.  Employers are also required to consider any resumes that may be sent directly to them.

Expected next steps are that the DOL will issue its request for the final written Recruitment Report and will issue a determination whether to grant or deny the application.

I am sure that practitioners can provide countless anecdotes on their experiences with Supervised Recruitment. The only thing I think we can count on is that Supervised Recruitment is not going away. Stay tuned for more highlights from this journey that I have just embarked upon.

Cyrus Mehta

What a Company Needs to Know That Hosts but Does Not Employ Skilled Nonimmigrant Workers

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I would like to share my article, Due Diligence Considerations For Companies Contracting With Vendor Service Providers, which appeared in the New Jersey Lawyer, October 2011 issue. This is an emerging area and it behooves corporations that contract with companies for skilled nonimmigrant workers on H-1B, L-1 or B-1 visas to know more about whom they are getting on board. Indeed, exercising greater due diligence can be a win-win for all the parties involved – the petitioning company, the end user client company and the nonimmigrant worker. In addition to protecting itself from potential liability, the client company by cooperating with the petitioning company on a number of fronts can also ensure a swift and more firm approval of the visa.

Many corporations in need of specialized skilled workers who are in short supply do not sponsor foreign nationals for their work permits. Instead, these companies contract with other entities that employ skilled workers, who in turn are then assigned to the client company for a specific project. This is especially true with information technology (IT) services, where foreign nationals on temporary visas predominate. While the obligations for a sponsoring employer are onerous, it is important for the end user client company to be vigilant to ensure that foreign national workers assigned to a company are working under the appropriate visa categories. In the event that the end user client has knowledge or encourages activities not authorized under these visa categories, there is potential for the company to be ensnared in criminal liability.  Even short of criminal liability, it is important to make sure due diligence has been done to avoid being caught up in an embarrassing investigation against a partner company.

Here are a few examples of how an end user company can get unwittingly caught up with liability. If the end user company urgently needs software engineers through its IT contracting company for a project, a manager within the end user company may be requested to write a let­ter as a client of the contracting compa­ny to justify the need for its employee overseas to visit the U.S. on a B-1 visa. If this letter indicates that the software engineer is required for meetings, or to conduct an analysis of the project to be subsequently worked on overseas (a per­missible B-1 activity), but the actual pur­pose is for the engineer to actually par­ticipate in programming and working on the solution in the U.S., it may come back to haunt the end user company if there is a criminal investigation against the IT contracting company. Therefore, when drafting such a letter, it is important to ensure that the proposed activities discussed in the letter are per­missible B-1 activities, and when the foreign national arrives, he or she engages in activities that are consistent with the listed activities.

Similarly, under a January 8, 2010, USCIS guidance memorandum by Donald Neufeld, concerning employer/employee relationship in H-1B petitions, especially where an H-1B employer places employees at a third-party site, it is important for the sponsoring employer to demonstrate that it exercises the right of control over its non-citizen employee if he or she is placed at a third-party client site. In order to win an H-IB approval, the petitioning employer generally requests confirmation from its client company about the H-IB worker’s assignment arrangement at its location, and that it is the employer who actually exercises the ultimate control over the employment. The end user client company, often through lay­ers of middlemen vendors, must take care that the letter accurately describes the arrangement. On the one hand, the issuance of such a letter confirms that the company is not the employer, thus eliminating a situation where it may be held liable as an employer for wages and benefits. On the other hand, there may be situations where the petitioning enti­ty exercises no control over the H-IB worker’s employment, and the person reports directly to a manager with the client company rather than the petitioner. In the post Neufeld Memo era, client companies may also want to cooperate with the petitioning company to allow a representative to visit the client location to evaluate its employee’s performance and to provide regular assessments and feedback of the nonimmigrant worker’s performance to the petitioning employer even while the immediate supervision lies with the client company.

Care should, therefore, be taken not to inadvertently misrepresent the nature of the assignment at the company.  Moreover, the petitioner must demonstrate that the position being filled by the H-1B worker at the company requires a bachelor’s degree or higher in a specialty.  Here too, the client must take the utmost precautions to not misrepresent the minimum requirements of the position.  Some end user companies choose not to issue letters as they are not obligated to do so. If however they really need the services of the skilled nonimmigrant worker for a project, it would be more prudent for them to cooperate with respect to such a letter – as well as confirming who exercises immediate supervision and ultimate control – as that would allow the nonimmigrant to win the visa approval while giving the client company an opportunity to also conduct due diligence regarding the hosting of such an individual.

Moreover, if an H-1B worker is assigned to a client location, DOL regulations require that the petitioning employer must have posted notice at two conspicuous places where the work is actually performed informing about the occupational classification, wages offered, period of employment and the work location, among other things. While the petitioner is solely responsible for posting the notice at the physical location, it would behoove the responsible officer at the client company to cooperate with the posting in order to ensure that its contractor is fully compliant with the attestation requirements.

Finally, the USCIS’s fraud detection national security division may also pay a “friendly” surprise visit to the client company to ensure that the work location and other terms of employment are consistent with the H-1B petition. Similarly, specialized knowledge workers on L-1B visas at client locations must satisfy the FDNS investigator that they are under the “control and supervision” of the petitioning company, and this person should also be implementing a product or application of the contracting company or deploying a methodology that is unique to the petitioning company. Moreover, any letters issued by the client company can also be verified via a surprise call from the State Department when the foreign national applies for the nonimmigrant visa at the US consulate.

By exercising due diligence, a client company can avoid an investigation, which even if not targeted against it can still generate bad publicity, as well as potential liability. More important, by cooperating with the petitioning company, the nonimmigrant visa petition can withstand scrutiny while it is being processed, and can potentially result in a quicker and surer approval, resulting in the skilled nonimmigrant worker being able to come on board to work on a critical project for the client company.

Cyrus Mehta

Immigration Reform Through Green Card Stories

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Green Card Stories is a gem of a book, and I feel inspired to write about it. Written by award winning journalist, Saundra Amrhein, with stunning photographs by award winning photographer, Ariana Lindquist, the book puts a human face on immigration through the journeys of 50 individuals who got their green cards. My good friends, Laura Danielson and Steve Yale-Loehr, produced the book with a lot of dedication and tenacity. Hopefully, their hard work will reap rewards resulting in more rational and humane immigration laws.

Most Americans, whatever their view on immigration may be, tend to see immigrants whom they may know with a different lens, especially if they are co-workers, friends, neighbors or parents in the same school community. Even if immigrants may be demonized in the current political climate, especially those who are undocumented, when one gets to actually know this person,   you may probably not view him or her with the same bias. This is what Green Card Stories tries to do. One gets to like the immigrants portrayed in the book even if you do not know them in person. In fact, they all magically come alive when you read their stories and the photographs also reveal facets that no amount of words will ever tell.

Take the example of Francis Price, who is photographed as a successful person meditating on his journey in his well appointed home adorned with tasteful art. He came to the US from Jamaica with $25 to become a businessman in the United States who also served as a trustee of the University of Rochester, his alma mater. Somewhere along the way after he received his green card and built businesses employing hundreds of people, he was put into deportation when applying for citizenship because of the mistake of his lawyer in Jamaica who had not finalized his divorce to his former wife. It was thus discovered after several years that he wrongfully entered as the single son of a sponsoring parent when he was actually married. Fortunately, while in deportation, his current US citizen wife again sponsored him for a green card, while he applied for a waiver to forgive the past violation, and the Immigration Judge again granted him the green card.

Or Gulnahar Alam, whom I represented pro bono, who escaped  a horrific domestic violence situation in Bangladesh,  only to find herself working grueling domestic jobs for families in the New York area. She applied for political asylum and won, being one of the first to assert that domestic violence constituted a form of persecution. Today, she is a well known advocate on behalf of immigrant domestic workers, won several awards,  and works for a diabetes education project among minorities at New York University.

There is also the amazing story of Mikel Murga from Spain, who now teaches at MIT, and who got his green card three times. He abandoned his first green card after returning to his country, but gave up the second green card, so that his minor son could accompany him as a derivative under the third green card. While most immigrants are lucky to be able to get green cards just once, Murga is quoted while looking quite the professor in his portrait, “That’s what makes America unique – not how rich it is, they say there are many opportunities, but the most important opportunity is the opportunity to reinvent yourself.” There are 47 other equally inspiring and poignant stories, including one on Jerry Yang who went on to found Yahoo. Read them.

Putting a human face to immigration is the best way to convince others about who they are and the benefits they bring to this country through their struggles, inspiration, ambition and successes. It is also an effective way to counter the lies about immigrants espoused by a loud and vocal minority. The canard against immigrants is an old one.  This is what the first Select Committee of the House of Representatives to study immigration concluded in the 1850s:

that the number of emigrants from foreign countries into the United States is increasing with such rapidity as to jeopardize the peace and tranquility of our citizens, if not the permanency of the civil, religious, and political institutions of the United States… Many of them are the outcasts of foreign countries; paupers, vagrants, and malefactors….sent hither at the expense of foreign governments, to relieve them from the burden of their maintenance.

One would have thought that this kind of sentiment would have ended by the second decade of the 21st century, but don’t we hear the same things about immigrants today?  Today, it is fashionable in some quarters even by Presidential candidates, members of Congress and state officials to espouse attrition by enforcement, which is a policy to make life so harsh, brutish and unbearable for undocumented immigrants that they will “self deport” themselves. Acknowledging that it would be very costly, if not impossible, to deport the millions of undocumented immigrants, a May 2005 report of Center of Immigration Studies, an anti-immigration organization, writes this in support of attrition:

But there is a third way that rejects this false choice, and it is the only approach that can actually work: Shrink the illegal population through consistent, across-the-board enforcement of the immigration law. By deterring the settlement of new illegals, by increasing deportations to the extent possible, and, most importantly, by increasing the number of illegals already here who give up and deport themselves, the United States can bring about an annual decrease in the illegal-alien population, rather than allowing it to continually increase. The point, in other words, is not merely to curtail illegal immigration, but rather to bring about a steady reduction in the total number of illegal immigrants who are living in the United States. The result would be a shrinking of the illegal population to a manageable nuisance, rather than today’s looming crisis.

This is analogous to the approach a corporation might take to downsizing a bloated workforce: a hiring freeze, some layoffs, plus new incentives to encourage excess workers to leave on their own.

This attrition by enforcement policy has spawned draconian anti-immigration laws such as Arizona’s SB 1070 and Alabama’s HB 56, which aim to banish undocumented immigrants from the state even though they may be pursuing legal status under federal law or legitimately defending themselves in federal removal proceedings. Their goal is to make it a crime if it is suspected that a person is in the state unlawfully (even though under federal law some may remain in the US), for not carrying documentation, and for harboring and transporting unauthorized immigrants. HB 56 goes further by requiring children to provide proof of immigration status prior to enrollment in public schools, and restricting unauthorized immigrants from engaging in contracts and business transactions. Many of these nasty provisions have been temporarily blocked for now, but they can gain a new lease of the life if the US Supreme Court upholds the constitutionality of such laws later this year.

Tellingly, many of the people profiled in Green Card Stories could have been snared under these draconian state laws or stricter federal laws prior to getting their green cards. Their stories also show how terribly complex our immigration laws can be, and how easily someone can fall through the cracks. Even while there may be anti-immigrant sentiment, what is most touching in many of the stories is how they were helped by the kindness of strangers in America, which has left a lasting impression on them. The more stories we tell about immigrants desiring to do well in America for themselves and their children, the less scope will there be for politicians and hate groups to dehumanize them in the abstract. After all, immigrants are people, like everyone else, with the same dreams, aspirations, vulnerabilities and frailties. The policies of attrition and self-deportation view undocumented immigrants as vermin that can be quietly driven away notwithstanding the fact that they have loved ones here and have set down strong roots. However, this is less likely to happen if Americans get to know them more from their stories. It is only then that more Americans will come to realize that the better solution is to reform our broken immigration system that would be able to tap into the industry and aspirations of immigrants of all stripes, such as the ones in Green Card Stories, rather than to deport them – and everyone will be better off.

Cyrus Mehta

WORKING : H-4 SPOUSES GET TO TAKE A STEP FORWARD, BUT IS IT A GIANT ONE?

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By Gary Endelman and Cyrus Mehta

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses is a good example. In late March 2010, the authors urged In The Tyranny of Priority Dates that this be done, with or without an employment authorization document (EAD). A few months later, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended precisely this same step to USCIS Director Alejandro Mayorkas, but only for those “H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to Comprehensive Immigration Reform (posted as AILA InfoNet Doc. 10073063 on July 30, 2010). The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until a few days ago on January 31, 2012 when the Department of Homeland Security brought this idea back to life. The announcement includes other goodies too, but this is what it specifically says about the possibility for an H-4 spouse to work:

  • Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

Those who dig a bit deeper on the government’s regulatory agenda site find a key qualifier that severely limits the benefit granted. Some H-4 spouses it seems are more deserving of the right to work than others: employment authorization is to be extended only to those “H-4 spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or “stay” in the U.S. under section 104(c) or 106(a) of Public Law 106-313 also known as the American Competitiveness in the 21st Century Act.” This means that no H-4 spouse whose H-1B principal has not spent more than 6 years in the USA will be eligible to apply for an EAD. At a minimum, a PERM labor certification or I-140 would have to have been filed, and even approved to qualify for the 3 year H extension under Section 104(c) of AC 21, if less than 365 days had elapsed since submission. After all this, while it seems as if we should celebrate, how loud should the cheering be?

There is no need for the USCIS to adopt such an exceedingly narrow interpretation. After all, if we look at the essentially unlimited authority granted by INA 274A(h)(3)(B), it seems clear that the USCIS can grant employment authorization to anyone at any time for any purpose. As our insightful colleague David Isaacson has cogently pointed out, under these circumstances, an EAD can be issued to someone who is not attached to either a PERM or an approved I-140. Indeed, an H-4 spouse whose H-1B principal is the beneficiary of an approved family-based third preference I-130 benefits not at all since such approval would not sustain a 7th H year under AC 21. Save for National Interest Waivers and Persons of Extraordinary Ability, which do not need a job offer, the right of an H-4 spouse to work is conditioned upon the willingness of the H-1B principal’s employer to sponsor his/her mate for LPR status, something over which the H-4 spouse has no control.

There is nothing in the INA that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. That being the case, what prevents the USCIS from taking a more generous view? We would do well to remember that the unavailability of an EAD outside the adjustment of status context forces people into the H-1B category who might not otherwise need or even want to be there. Allowing all H-4 spouses to work would ease the pressure on the H-1B category and, by so doing, serve to diminish opposition to all employment-based immigration. While it is true that the H-1B is subject to an annual limitation each year, most other nonimmigrant work visas do not have an annual cap. Beyond that, America suffers when the nation forgets that many talented H-1B beneficiaries choose not to stay here because their H-4 spouses are unable to work. See Matt Richtel , Tech Recruiting Clashes with Immigration Rules, N.Y.Times, Apr.12, 2009.

Truth be told, there is no need for any H-4 spouse to apply for an EAD. Why not simply include H-4 spouses as part of 8 CFR Section 274a.12(a) so that they could work incident to status? This is a simple yet elegant way to ameliorate the extreme economic hardship that our system needlessly inflicts upon H-4 spouses. In fact , why limit this to H- 4 spouses? There is nothing to prevent the Executive from granting work authorization to teenage children on H-4 visa status.

There is no reason why an H-4 spouse should have to wait for years before being allowed to work. Since both the H and L categories are clothed with dual intent – both visa categories allow the holder to apply for a green card from the very outset – the H-4 spouse should be treated exactly like the L-2 spouse when it comes to applying for an EAD. Indeed, the H-4 spouse may be more deserving of a work permit if the wait for the green card under the employment based second and third preferences can take several years, or even decades, especially if the spouses are born in India or China. In fact, despite a cap on H1B visas compared to unlimited L migration, AC21 makes it possible, and certainly more frequent, for the H4 spouse to remain in the USA far longer than the L-2 counterpart, thus making the need for employment authorization more not less compelling. If the USCIS wants to limit the scope of this benefit, allow it to be conditioned upon the filing of a non-frivolous labor certification, or I-140 if no labor certification is required, regardless of how long the H-1B has been in the United States. This would advance the national interest by enhancing the incentive for H-1Bs to come to the United States and remain here, despite chronic visa backlogs.

Ours is a policy of audacious incrementalism designed to maximize the remedial possibilities within the INA as it now exists while waiting for something better, namely congressional enactment of comprehensive immigration reform. Not only is it fitting and proper for the USCIS to formulate immigration policy on highly minute technical issues of surpassing importance, it is no exaggeration to contend that the Constitution expects this to happen. Indeed, without this, who would do it? Far from crossing the line and infringing upon the authority of Congress, what we ask the USCIS to do augments Congressional prerogatives by providing a practical way forward. For those who say that we ask too much too soon, we respond with one simple question, the same one that Hillel the Sage asks in Ethics of the Fathers: “If not now, when?”

(The views expressed by guest author, Gary Endelman, are his and not of his firm, FosterQuan LLP)

Cyrus Mehta

DRUGS AND INADMISSIBILITY

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By Myriam Jaidi

From the Comedy Central Show “South Park”(Season 2, Episode 204). The scene: Chef, an adult, is speaking with 4th graders Stan, Kyle, Kenny, and Cartman:

    Chef: I just want to tell you that drugs are bad.
    Stan: We know, we know, that’s what everybody says.
    Chef: Right, but do you know why they’re bad?
    Kyle: Because they’re an addictive solution to a greater problem, causing disease of both body and mind with consequences far outweighing their supposed benefits.
    Chef: And do you have any idea what that means?
    Kyle: No.
    Cartman: I know. Drugs are bad because if you do drugs you’re a hippy, and hippies suck.
    Chef: Look children: this is all I’m gonna say about drugs. Stay away from them. There’s a time and a place for everything and it’s called college. Do you understand?
    Children: Yes!

If Chef had been speaking to non-U.S.-citizens, he should have stopped at “Stay away from them,” given the draconian state of our immigration laws relating to any type of drugs, including marijuana, despite the fact that it has been decriminalized in many jurisdictions in the United States.

We learn in various contexts that drugs are bad, and we should just say no. The exchange above references some of the documented problems with drugs – their use or overuse can result in disease of both body and mind and other serious consequences. Nevertheless, many people identify with the statement Chef makes above. The assumption or joke being that many Americans will have or have had experiences with alcohol and/or drugs, such as marijuana, in college. This assumption may be good for a laugh, but for non-US citizens drugs (meaning controlled substances, for non-medical use) are not only bad, using drugs can lead to inadmissibility on various grounds including public health, criminal, and misrepresentation.

The ground of inadmissibility that comes to mind immediately is the criminal ground under INA INA 212(a)(2)(A)(II). If someone has a criminal conviction relating to a controlled substance, or even admitted to committing the crime, he or she is inadmissible and there is no waiver, although, in certain circumstances, enumerated in INA 212(h)(1), it may be possible to obtain a waiver where the crime “relates to a single offense of simple possession of 30 grams or less of marijuana.” Please note that convictions involving controlled substances (other than a single offense involving less than 30 grams of marijuana for personal use) and having been or being a drug addict or abuser are treated similarly harshly after admission into lawful permanent resident status has been granted. These are both grounds of deportability under INA 237 INA 237(a)(2)(B). This blog addresses issues prior to being admitted as a lawful permanent resident.

What if someone used drugs but was never arrested for it? For example, what if Stan, who is not a US citizen, now lives in New York and went to college in New York on an F-1 visa. In college, during his freshman year, Stan made friends with a group of people that smoked pot a couple of times a week. After freshman year, he stopped smoking pot. After he completes his studies, he is sponsored by a company for an H-1B visa and is working in New York. A few years later, he meets and falls in love with Wendy, a UScitizen. They get married and she wants to sponsor him for a green card. Stan goes to a Civil Surgeon to get the required medical exam done on Form I-693. In the course of providing his medical history, Stan tells the Civil Surgeon, without being asked, that he smoked pot twice a week during his freshman year in college. He doesn’t think it is a big deal — as Chef implied, a lot of people use marijuana in college.

The Civil Surgeon’s role is to perform a medical exam to determine whether a person who is applying for adjustment of status within the United Statesmay be inadmissible to the United States on public health grounds. (Outside the United States, a similar role is performed by a “panel physician”.) They request a medical history and conduct a physical exam to ensure that a person does not have tuberculosis, syphilis and other sexually transmitted diseases, leprosy and other communicable diseases noted in 42 CFR 34.2(b)(4) – (9). They also inquire about physical health and medications a person may be taking to ensure that any vaccines the individual might need are not contraindicated.

According to the Center for Disease Control Immigration Requirements: Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders (hereinafter“CDC TI”), drug screening is not a routine part of the medical exam. See CDC TI at p.11. However, there is a section on the Form I-693 addressing Drug Abuse/Drug Addiction (see Form I-693 at p.3). In order to complete this section, Civil Surgeons are instructed to “evaluate the applicant’s history, behavior and physical appearance when determining if drug screening should be performed.” CDC TI at p.11. If a Civil Surgeon reviews an applicant’s medical history with them and in the course of doing so sees no tell-tale signs of drug use or abuse, they may not ever inquire about recreational drug use. If they do inquire, however, and an individual lies and the truth is later discovered, the individual could potentially, based on the certification on the Form I-693, be subject to civil or criminal penalties, be found inadmissible for fraud under INA 212(a)(6)(C)(i), be at risk of having any immigration benefit derived from the medical exam revoked, and could be subject to removal from the United States.

Many Civil Surgeons do not inquire, but some do. The CDC TI for Civil Surgeons provides a table (at page 12) of indicators that drug screening might be necessary. Among the indicators provided is the following: “history of any substance abuse or dependence.” The terms “drug abuse” and “drug addiction”(aka dependence) are defined in the regulations of the Department of Health and Human Services (HHS) as follows:

    Drug abuse. The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has not necessarily resulted in physical or psychological dependence.

    Drug addiction. The non-medical use of a substance listed in section 202 of the Controlled Substances Act, as amended (21 U.S.C. 802) which has resulted in physical or psychological dependence.

42 CFR 34.4(g) & (h). These terms are further elucidated in the CDC TI, which draws information from the DSM and states as follows:

    the DSM criteria for substance dependence, either on alcohol or other psychoactive substances are characterized by compulsive long-term use of the substance despite significant substance-related physical, psychological, social, occupational, or behavioral problems. Tolerance and withdrawal are often associated with substance dependence.

    Substance abuse is characterized by a pattern of recurrent substance use despite adverse consequences and impairment. To establish any substance-related diagnosis, the examining physician must document the pattern of use and behavioral, physical, and psychological effects associated with the use or cessation of use of that substance.

CDC TI at p.6. In our hypothetical, the Civil Surgeon conducting the medical exam for Stan might see Stan’s use of marijuana throughout his freshman year in college as drug abuse, drug addiction, or neither. If she determines that Stan’s behavior actually does not fall within either category, she will indicate “No Class A or B Substance (Drug) Abuse/Addiction” on the I-693.

If the Civil Surgeon determines that Stan’s circumstances do indicate he is either an abuser or addict, there are various options the Civil Surgeon might pursue. She might collect evidence from Stan to determine whether Stan is in“full remission.” “Full remission” is another term taken from the DSM and it is defined as a period of at least 12 months during which no substance use has occurred. CDC TI at p.14. If she determines that Stan was either a drug abuser or drug addict but has been through full remission, she could classify Stan as Class B and mark the appropriate box on the I-693. A Class B finding does not make a person inadmissible under the public health grounds but could trigger an inquiry as to whether Stan’s condition might make him inadmissible under INA 212(a)(4) as likely to become a public charge. Health is one of the factors that statute requires adjudicators to take into consideration in determining whether someone might be inadmissible as a public charge. Thus USCIS would look into whether Stan’s past problems make it likely that Stan might become a public charge. According to the Foreign Affairs Manual (the Adjudicator’s Field Manual does not currently contain guidance on the issue of public charge, as the section for that topic is “reserved”),someone is likely to become a “public charge” if they are likely to become primarily dependent on the U.S. Government for subsistence either through cash assistance for income maintenance or institutionalization for long-term care at U.S. Government expense. See 9 FAM 40.41 N.2.

What else might the Civil Surgeon do? If the Civil Surgeon determines that Stan has a Class A issue, Stan will be inadmissible on public health grounds unless and until a finding of remission is made that can move him to Class B. If the Civil Surgeon decides she wants more information before reaching a diagnosis, she could also defer her diagnosis to a later date. If the Civil Surgeon decides to defer diagnosis, she would provide Stan with instructions on what steps he would need to take, what information he would need to provide, and the time frame for providing the information to her. If the Civil Surgeon feels that she will not be able to reach a conclusion regarding Stan’s condition, she can also refer Stan to a specialist consultant for further analysis on the drug issue. The specialist consultant’s findings would then be reflected on the I-693.

Could the information Stan provided to the Civil Surgeon about his past drug use trigger any other issues for him with regard to inadmissibility? Depending on exactly what Stan said and what the Civil Surgeon explained in response about the illegality of Stan’s freshman year marijuana habit, Stan might be inadmissible under INA 212(a)(2)(A)(i)(II) if he is found to have admitted “committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

How could this happen? How could a visit to the doctor turn into a trigger of a criminal ground of inadmissibility? It could happen if certain criteria established by the Board of Immigration Appeals (BIA) are met (or even if they are not and the person lives in the Ninth Circuit, as noted below). The BIA set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). These requirements have been strictly followed in published BIA cases, and only in the Ninth Circuit have some of the Matter of K- factors been effectively ignored, arguably without a sufficient justification. See Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002).

In Stan’s case, whether or not his discussion with the Civil Surgeon would make him inadmissible under this section of the law would depend on exactly what he said he did, what the elements of the crime in that specific jurisdiction are, whether the Civil Surgeon provided him with the definition and essential elements of the crime in understandable terms, and whether his admission was voluntary.

Does the analysis change if the Civil Surgeon never asked about drug use? If the Civil Surgeon had not asked Stan and Stan had not offered the information there should be no issue. The Civil Surgeon made a determination based on her medical knowledge and observation of Stan that there was no reason to pursue any drug testing or line of questioning. Stan has not technically misrepresented anything because he was never asked about drug use and therefore did not misrepresent his past.

However, there is a question on the adjustment of status application (Form I-485) that Stan may have trouble answering: “Have you knowingly committed any crime of moral turpitude or drug related offense for which you have not been arrested?” The question on the Form I-485 (and the question regarding inadmissibility on the DS-260, for consular processing of an immigration visa, which is presented differently but raises the same issues) contains many legal terms Stan may not understand. In addition, because the question is on a form with which there can be no discussion and no interaction, clearly the requirements for an admission under Matter of K have not been satisfied. Furthermore, it would be very difficult for applicants to know that they have committed a crime for which they have not been charged or arrested, because one would have to figure out the applicable law, the elements of the crime or crimes, and whether all the elements of any crime have been satisfied. We have a complex penal law system in the United States. It requires the charging authority to determine the applicable law in each particular case and then demonstrate beyond a reasonable doubt that all the elements of that law were satisfied in order for a person to be convicted. This cannot happen on a form.

If Stan had ever been arrested for possession, he could only be convicted if the prosecution established all of the elements of the crime beyond a reasonable doubt, including proving that the substance was in fact marijuana by doing a lab test. For all Stan knows, he may have been smoking oregano during his freshman year. Then there is the question of whether Stan’s use of marijuana is equivalent to“possession” of marijuana in a manner that, under New York law, is prohibited. All of these issues must be pondered before the question can be answered.

The outcome might be different depending on the circumstances – if Stan had mentioned it to the Civil Surgeon, if the Civil Surgeon had pursued the line of questioning, the answer might be different. If Stan had gone to rehab for an addiction issue and his drug use had been confirmed, the result of the analysis might be different, impacting the appropriate answer to the question on Form I-485. The question can only be answered after an in-depth analysis on a case-by-case basis.

Even in the scenarios discussed here– where Stan had revealed his drug use to the Civil Surgeon or to the rehab program – and a determination was made that he was not inadmissible under the public health ground, can it be argued that he should not then face a sort of“double jeopardy” by being implicated under the criminal ground of inadmissibility? Disclosure was made and Stan legitimately cleared the issue of inadmissibility on a public health ground. It seems reasonable that clearing the public health ground should not leave an individual subject to the criminal ground. If Congress wanted one potentially subject to the public health ground of inadmissibility to remain inadmissible under the criminal ground, then Congress would not have provided a way to overcome the public health ground of inadmissibility. Congress would have collapsed drug use or abuse under one ground of inadmissibility. How to answer the question on the forms and the issue of the interplay between the various grounds of inadmissibility are issues that could be the focus of another article, and we raise the issue here to provide a glimpse of its complexity.

The upshot here is that the humorous, somewhat cavalier attitude about drugs displayed in U.S. pop culture by no means reflects the reality faced by those present in the United States who are not citizens. For non-citizens the “Just Say No” slogan developed in the 1980s has greater meaning given the stunning consequences non-citizens face if they do engage in use of controlled substances.

Cyrus Mehta

STATE DEPARTMENT’S VISA OFFICE TAKES BROADER VIEW OF “SOUGHT TO ACQUIRE” PROVISION UNDER THE CHILD STATUS PROTECTION ACT

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Many cases involving complex interpretations of the Child Status Protection Act (CSPA) occur while the applicant is applying for an immigrant visa at an overseas consular post. The CSPA protects a child who may turn 21 or more from “aging out,” and thus being eligible for permanent residence as a derivative, when his or her parent is issued permanent residence.  Often times, while there is room for interpretations under the CSPA, the consular officer may take a restrictive view of a CSPA provision and refuse the visa. There is no appeal process to review a consular officer’s decision at an overseas post, and the refusal may seem to be the end of the road and separation from the “aged out” child from the parent. Fortunately, despite the absence of an appeal process, one can seek an advisory opinion on a purely legal issue with the State Department’s Visa Office in Washington DC via legalnet@state.gov, and a denial under the CSPA mostly involves a legal issue rather than a factual issue. By contrast, the denial of a tourist visa application is almost always fact based, and under such circumstances, it may not be possible to seek an advisory opinion from the Visa Office.

This author has had success in overturning a consular official’s denial on at least two occasions in the past. On both these occasions, the State Department’s Visa Office agreed that the 45 days provided in section 421(2) of the USA Patriot Act can be subtracted from the age of a child if the age subtraction formula under the CSPA did not bring down the age of the child under 21 years. In other words, the child can use the benefit of both the Patriot Act and the CSPA to lower the age of a child below 21 years. Although this author had previously advocated that there was nothing in the CSPA preventing the use of the 45 days from the Patriot Act in addition to the age subtraction formula provided in  the CSPA, this is now no longer an issue as it has been clearly acknowledged in 9 FAM 42.42 N12.4(e.) and 9 FAM 42.42 N12.8(b.).

Our recent success, which we report here for the benefit of others, was regarding the interpretation of “sought to acquire the status of permanent residency” within one year of visa availability. At issue is whether the payment of the visa processing fees with the National Visa Center within the one year period constituted “sought to acquire” permanent residency within the one year period. The actual application for the immigrant visa, DS 230 Part I or II, had not been filed within one year. The applicant was unrepresented at that time and was not aware of the precise requirement to apply for permanent residence within one year of visa availability.

As a background,  INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability.

The CSPA thus artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements, however, is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline.

Both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly, although unpublished decisions of the Board of Immigration Appeals have taken a broader view. DHS limits this phrase to filing an I-485 application for adjustment of status. See “Revised Guidance for CSPA” (April 30, 2008).  The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 230, Part I, is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January 17, 2003), See “Child Status Protection Act: ALDAC 2” (January 17, 2003). If the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application. The DOS has also indicated that since Form I-824 is not the only way to initiate the process, posts may seek advisory opinions in cases in which some other “concrete” step has been taken.

The US consular post we were dealing with insisted that the applicant did not seek to acquire permanent residence within one year because the applicant only paid the visa processing fees with the National Visa Center, but did not file the DS 230, Part 1, within one year of visa availability. The payment of the visa processing fee was not sufficient to constitute “sought to acquire” permanent residence within the one year time frame.

Upon receiving official confirmation of the refusal at the US consular post, we sought an advisory opinion from the Visa Office through legalnet@state.gov. Although we acknowledge that they are not binding on the State Department, we pointed to recent unpublished decisions of the Board of Immigration Appeals (BIA), which have interpreted the “sought to acquire” term more broadly, that should still be persuasive. For example, In In re Murillo, 2010 WL 5888675 (BIA Oct. 6, 2010) the BIA reaffirmed its broadened “sought to acquire” to include substantial steps towards the filing of the relevant application, although these steps may fall short of an actual filing of an application. In this case, the applicant claiming protection under the CSPA hired an attorney to prepare an I-485 adjustment application within the one year time frame, but filed it within a reasonable time thereafter. This decision follows closely on the heels of other unpublished Board decisions that have applied the same “sought to acquire” standard. See In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child beneficiary “sought to acquire” LPR status within one year of visa approval because her parents hired an attorney to start preparing the adjustment application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759 (BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year period when, during this time, he informed both the Immigration Judge and the Board that he wished to file an adjustment application, even though the application was not actually filed within one year).

It is in the same spirit as the unpublished BIA decisions, and consistent with INA §203(h)(1)(A),   we requested that the Visa Office advise the Consul to consider the fact that the filing fee paid within the one year time frame constituted a very concrete step towards seeking permanent residency. Indeed, payment of the fees constituted a much more credible step  towards seeking permanent residency than making an informal request to the NVC or contacting an attorney, which are the facts supporting the aforementioned BIA decisions.  We also pointed out to Visa Office, as we did with the consulate unsuccessfully, that the Foreign Affairs Manual (FAM) at 9 FAM 42.42 N12.9 recognizes the complexity of the CSPA, and advises that a Consul may seek an advisory opinion in the following instance:

If the officer encounters a case involving a derivative following to join a legally admitted immigrant, or adjusted principal, who has not filed Form I-824, Application for Action on an Approved Application of Petition, on the derivative’s behalf within the required time frame, but the consular officer determined that the derivative has taken some other concrete step to obtain LPR status within the required one year time frame.

We therefore asked that the Visa Office provide such an advisory opinion under the authority laid out in the FAM, and advise the consular officer that other concrete steps taken to obtain LPR status, such as the payment of immigrant visa fees that occurred here, may be considered.

In less than two weeks from seeking the advisory opinion just prior to the New Year (2012), we received the following communication from the Visa Office:

Thank you for your inquiry to LegalNet.  Since the derivative applicants submitted their IV fee within one year of visa availability, the Consular office will consider CSPA’s sought to acquire requirement satisfied.  The visa unit in [redacted] will contact the applicants to resume processing.

Cyrus Mehta

EDGE SAYS INDIAN 2- YEAR MASTER’S DEGREE FOLLOWING 4-YEAR BACHELOR’S IS NOT EQUIVALENT TO US MASTER’S DEGREE

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Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3. Indeed, the EB-3 backlog for India is unimaginable and totally untenable. It is estimated that it will take 70 years for the green card for a person from India who establishes his or her priority date in 2012!

To be classified under the EB-2  pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign equivalent 4-year bachelor’s degree plus five years of post baccalaureate experience.

In the United States, one normally obtains a master’s degree after completing a 2-year program following a 4-year bachelor’s degree. Thus a student has to undertake 6 years of study in order to be awarded a master’s degree from an accredited US college or university.

It has generally been assumed that a foreign master’s degree, obtained after 6 years of education, would generally be equivalent to a US master’s degree.  EDGE (Electronic Database For Global Education), administered by the American Association of Collegiate Registrars and Admissions Officers provides information on foreign degree equivalence from educational institutions from around the world. It is treated as gospel truth by the USCIS in determining whether a foreign degree is equivalent for immigration purpose. Till recently, EDGE has correctly said that an  Indian 4-year degree, such as a Bachelor of Technology degree, followed by a 2-year master’s degree, is equivalent to a US master’s degree. On the other hand, a master’s degree following a 2- or 3-year Indian bachelor’s degree only equated to a US bachelor’s degree and not a master’s degree.

It has recently come to our attention, thanks to Natalie Muehlberger of Trustforte Corporation, that EDGE has recently downgraded many Indian master’s degrees. This is how EDGE, a paid  service, describes it now:

Credential Description

Awarded upon completion of 1.5-2 years of study beyond the three-year bachelor’s degree or four year BTech or BEngr degree.

Credential Advice

The Master of Science represents attainment of a level of education comparable to a bachelor’s degree in the United States. 

Thus, regardless of whether the master’s degree is obtained after a 3- year or a 4- year bachelor’s degree program in India, EDGE is now equating both to a US bachelor’s degree. This downgrade of Indian master of science degrees would impact those who would otherwise qualify under the EB-2 as the USCIS closely relies on EDGE. We do hope that EDGE realizes that it is wrong and reverts to its earlier assessment that a master’s degree, following 6 years of education, is equivalent to a US master’s degree and not a bachelor’s degree. In addition, EDGE has also downgraded the Indian MBA, regardless of whether it was preceded by a 4-year engineering degree and the Indian master of science by research degree (which no longer appears in EDGE at present). While EDGE used to maintain that  2 years of coursework in business management leading to a post-graduate diploma from the prestigious Indian Institute of Management, India, was  comparable to a master’s degree in the United States, this degree to has been downgraded to equate to only a US bachelor’s degree since only a three year bachelor’s degree is required

[Updated on 9/2/2013]. EDGE also still finds that an Indian master of technology or engineering degree, and master of computer applications degree, is  equivalent to a US master’s degree. The same logic should hold true for other Indian master of science and MBA degrees, following a 4 year bachelor degree. It is therefore important to constantly check the foreign national’s educational credentials with EDGE before embarking on an employment-based green card sponsorship.

Since USCIS follows EDGE, the beneficiary of an I-140 petition with an Indian master’s in the above situations may be only able to qualify under the EB-2 if he or she can demonstrate a bachelor’s degree (since this master’s degree will still equate to a single source bachelor’s degree) plus 5 years of progressive experience following this degree. If the beneficiary does not have the 5 years of post-baccalaureate experience, he or she will have no choice but to be classified under the EB-3, and if born in India, the green card will materialize after decades.

If EDGE does not revert to its original position with respect to Indian master of science degrees and the MBA, petitioners and their attorneys should still endeavor to convince the USCIS, or then litigate before the AAO and in federal court, that a 2-year Indian master of science degree following a 4- year bachelor’s degree ought to be comparable to a US master’s degree.   In a 2009 USCIS liaison meeting, the agency indicated that it would still be receptive to arguments notwithstanding a contrary EDGE finding:

USCIS considers all sources, including EDGE and AACRAO databases, and has received many evaluations where the evaluators list membership in AACRAO in their credentials and list AACRAO publications as their reference materials. USCIS adjudicators review all evidence in the record and make determinations based on the individual facts of each case. The AAO’s decisions are available to the public and provide an extensive compilation of the results of its findings as to the equivalency of particular foreign degrees. 

The USCIS pursuant to its 2009 guidance ought to be receptive to arguments that an Indian master’s degree following 6 years of post-secondary education is functionally equivalent to a US master’s degree. Otherwise, the EDGE downgrade with Indian master of science and other degrees will strike another blow to Indians, who will then be endlessly mired in the EB-3 even though they qualify for a position that requires an advanced degree. It will also be another example of how the USCIS constantly shifts the goal posts concerning foreign equivalent degrees, adversely and unfairly impacting mostly skilled foreign nationals with Indian degrees.

(The blog was amended on January 18, 2012 to clarify that the downgrade only applies to Indian master of science degrees and a few other degrees but not all Indian master degrees)

UPDATE: EDGE FLIP FLOPS – SHOULD USCIS BE RELYING ON EDGE SO SLAVISHLY?  – JANUARY 20, 2012

The author has learned today that EDGE has again reverted to its former position. It has deleted within the entry that a master of science degree beyond a 4 year degree is equivalent to a US bachelor’s degree. It leaves intact within that entry that a master’s degree following a 3 year bachelor’s degree is equivalent to a US bachelor’s degree. Does this mean that a master of science degree following a 4 year bachelor’s degree is equivalent to a master’s degree? We hope that the USCIS follows this logic and agrees. On the other hand EDGE now has an entry , and this is very strange, indicating that the master of engineering or master of technology degree following a 4 year bachelor of technology or bachelor of engineering degree is equivalent to a US bachelor’s degree. This cannot be the case and must be an error!  In yet another entry, EDGE says that an Indian master of physiotherapy, master of science (nursing), master of science in engineering/technology, master of pharmacy and master of laws, following 4 or 5 year bachelor degree programs is equal to US master’s degree. All this is completely inconsistent with the downgrade, and results in uncertainty for those who rely on EDGE in filing immigrant visa I-140 petitions to get classified under the EB-2. Perhaps, USCIS, given these flip flops and inconsistencies, should no longer treat EDGE as the gospel truth with respect to determining whether these degrees are equivalent to US degrees, and give more credence to justifications provided from other reliable sources determining the accurate equivalence of such degrees.

Cyrus Mehta

WHAT THE PROPOSED PROVISIONAL WAIVER RULE MEANS FOR THOSE FACING 3- OR 10-YEAR BARS

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By Cyrus D. Mehta and David A. Isaacson

In the raging immigration debate concerning the millions of undocumented immigrants in the US, one important issue has received scant attention. We have yet to meet a person who has roots in the US who desires to choose to remain undocumented. Most are forced to remain undocumented even though they have a pathway to a green card due to a perverse Catch 22 effect in our immigration law as a result of the 3 and 10 year bars imposed under INA § 212(a)(9)(B).

Those who have remained unlawfully present in the US for 1 year or more face a 10 year bar to reentry if they depart the US. Similarly, those who have remained unlawfully present for more than 180 days face a 3 year bar to reentry if they depart the US. It should be noted that the term “unlawfully present” is a complex legal term and a discussion of this term is beyond the scope of this blog. These individuals, if they are the beneficiaries of an approved immigrant visa petition filed by a US citizen spouse or parent or a US citizen child (who is over 21), may often be unable to adjust their status in the US. Under INA § 245(a) one has to be inspected or paroled in order to qualify to adjust status to permanent residence in the US. Thus, a non-citizen spouse of a US citizen who previously surreptitiously crossed the border from Mexico into the US would be ineligible to adjust status because she was not inspected under § 245(a). Of course, there are exceptions to this rule too, which is beyond the scope of this blog and an article discussing these exceptions can be found here. This spouse would need to leave the US and apply for an immigrant visa at the US consulate in her home country. However, if she was unlawfully present in the US for 1 year or more, it would result in her triggering the 10 year bar to reentry. Although, under the current regime, she can apply for a waiver under INA § 212(a)(9)(B)(v), she can only do so after she has departed the US.

Obtaining the waiver is no small matter because she has to demonstrate extreme hardship to the US citizen spouse if the waiver is denied. The emotional angst resulting from the separation of two spouses is not enough. She will need to demonstrate, in addition to the emotional issue, financial, cultural, political and health conditions, among many others, as well as the balancing of ties within and outside the US. See Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999), aff’d, Cervantes-Gonzales v. INS, 244 F.3d 1001 (9th Cir. 2001). Thus, this spouse will be rolling the dice if she departs the US to chance winning the waiver while outside the US. If the waiver is denied, she will be stuck outside the US and will be separated from her loved ones. Moreover, she can only demonstrate extreme hardship to a limited universe of qualifying relatives, which include a spouse or a parent. If she has US citizen children, under INA § 212(a)(9)(B)(v), she cannot demonstrate extreme hardship to them if she is separated.

It is not hard to see why there has been such a huge build up of the undocumented population in the US. Even while people may be eligible for permanent residence, they are unwilling to leave and chance a waiver from outside the US. While Congress enacted INA § 212(a)(9)(B) to deter overstays, it has had the exact opposite effect. People overstay, despite being approved for a green card, because of fear of facing the 3 or 10 year bars.

It is thus heartening that the Obama administration has proposed a rule that will be published in the Federal Register on January 9, 2012 in the form of a Notice of Intent to publish such a rule, which will permit intending immigrants to apply for a provisional waiver in the US prior to their departure from the US. This rule, if published, will remove the uncertainty in leaving the US and being barred for 3 or 10 years if the waiver application is denied. Under the proposed rule, the waiver can be applied for while in the US. With the waiver in hand, the individual departing the US can more readily hope to reenter the US without facing the 10 year bar. This move has received thunderous applause from the immigration advocacy community and rightly so. In a time when Congress is virtually paralyzed and cannot even make small tweaks to improve the immigration system, the proposing of a smart administrative rule such as this one is consistent with the intent of the law. People subject to the 3 or 10 year bars still need to apply for the waiver and meet the rigorous “extreme hardship” standard, except that they can apply for it in the US prior to their departure. If they obtain the waiver, they can at least be assured of not triggering the 3 or 10 year bars upon their departure.

Apparently, if and when the rule takes effect, which under the formal rule making process may take some time, it will be limited to immediate relatives of US citizens who are seeking a § 212(a)(9)(B)(v) waiver of unlawful presence based on hardship to a US citizen, although the petitioning US citizen and the one to whom extreme hardship exists need not be the same (so that, for example, it appears that the parent of a 21-year-old US citizen petitioned for by that son or daughter would qualify if seeking a waiver based on extreme hardship to a US citizen parent, the grandparent of the petitioning relative). It appears that the rule will not cover people who are not immediate relatives of a US citizen (such as the over-21-year-old son or daughter of a US citizen who is petitioned for by their parent and not protected by the Child Status Protection Act), or whose qualifying relative for the waiver is a lawful permanent resident. It also will not cover people who need some other sort of waiver in addition, such as a waiver under INA § 212(i) for fraud. It is not entirely clear whether the proposed rule would cover people who in addition to a waiver under § 212(a)(9)(B)(v) need to obtain permission to reapply for admission because their departure will execute an order of removal and create inadmissibility under INA § 212(a)(9)(A), but it would seem that it should, since such applications for permission to reapply can already be filed in advance under existing regulations– the actual proposed rule may clarify this when it comes out. We do urge the USCIS to at least include sons and daughters of US citizens who do not qualify as immediate relatives. A child who has turned 21, and who may not be protected under the Child Status Protection Act, still remains very much part of the nuclear family especially in hard economic times when their parents are still the lifeline. These adult children, technically referred to as sons and daughters, would otherwise qualify under DREAM Act legislation, and may at least be able to take advantage of this provisional waiver if the proposed rule is adjusted to allow them to do so.

Although this new proposed rule may be portrayed as some sort of radical innovation by immigration restrictionists, it is actually nothing of the sort. The governing regulations, specifically 8 C.F.R. § 212.2(j), have long provided that one who is consular processing an immigrant visa, and will need permission to reapply for admission because his or her departure will execute an order of deportation or removal and create inadmissibility under INA § 212(a)(9)(A), can file the Form I-212 application for permission to reapply in advance of departing from the United States, and “shall receive a conditional approval depending on his or her satisfactory departure.” That is, people who will be subject to the 5- and 10-year bars based on executed removal and deportation orders (the length of the bar can vary depending on the circumstances of a removal order) have long been able to apply for advance waivers of those bars before they leave the US to consular-process an immigrant visa. This new proposed rule would simply update the regulations to create a similar procedure for the parallel 3- and 10-year bars created by IIRIRA (the “Illegal Immigration Reform and Immigrant Responsibility Act of 1996”), for people who remove themselves from the United States after being unlawfully present even though there may have been no removal proceedings against them. It can therefore be seen as a long overdue technical fix. However, it remains to be seen how long the rule making process will take, which includes notice and comment. There is also bound to be opposition to the rule. The USCIS still has to publish rules from the enactment of IIRIRA provisions in 1996! Hopefully, the Obama administration will give this high priority as the promulgation of such a rule may even reduce the undocumented population in the US.

This technical fix could also reduce inefficiency in the era of Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010), especially if accompanied by an additional change in the proposal relating to potential issues of fraud. Under Quilantan, entering the United States at a port of entry with the permission of an immigration officer is sufficient to create eligibility for adjustment of status as an immediate relative of a U.S. citizen, regardless of whether one’s entry was procedurally proper, as long as the entry did not involve a knowing false claim to U.S. citizenship. Many people who were waved through the border as passengers in a car or the like have little corroborating evidence of their manner of entry. Absent this regulation, if such a Quilantan entrant is married to a U.S. citizen and is denied adjustment because USCIS rejects their testimony regarding manner of entry, they will effectively be forced to request that removal proceedings be commenced against them so that they may testify before an Immigration Judge and seek to establish their manner of entry by credible testimony as Ms. Quilantan did in her case. Under the new procedure, some such Quilantan entrants may decide that it is simpler to seek an advance waiver of inadmissibility, as long as their qualifying relative’s particular form of extreme hardship is such that a brief trip abroad to pick up an immigrant visa will not be intolerable. If the advance waiver is approved, the already overcrowded immigration court system would then be spared the necessity of hearing testimony regarding the applicant’s manner of entry. One caveat, however, is that the current version of the proposal, which excludes waivers of fraud-related inadmissibility under INA § 212(i), could lead potential applicants and their attorneys to fear a potential finding of fraud inadmissibility by a consulate where the circumstances of the applicant’s prior entry into the United States are murky and difficult to prove (making it hard to refute an inaccurate consular suspicion that some fraud may have been committed). The potential efficiency would be much greater if the USCIS proposal were modified to allow either advance waivers under INA § 212(i), or at least an advance finding that no fraud was committed by an applicant. Otherwise, Quilantan­ entrants within the U.S. may be reluctant to give up their right to have an Immigration Judge (and if necessary the BIA) adjudicate their contention that they did not commit fraud in their entry, and to instead be at the mercy of an effectively unreviewable determination by a consular officer.