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IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS

December 21, 2011/0 Comments/in Blog/by Cyrus Mehta

U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate. The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.” Visits are conducted pre- and post-adjudication on randomly selected applications and petitions. Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status. Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear. There is a great deal riding on these site visits: if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition. If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice? Nothing earth shattering: Be prepared. If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a site visit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany the officer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary. The officer will usually want to speak with the signatory and the beneficiary. If those individuals are not available, the officer should be asked to provide contact information for a follow up discussion. The officers may also want to verify details with the signatory or beneficiary by phone or via email after conducting the site visit, if they are not available at the time of the visit. If the beneficiary is not available at the worksite, for example because he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocation could result. If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees are aware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include:

To the petitioner, about the petitioner

Verify the signatory of the petition, his or her position within the organization
Whether the signatory is aware that an H-1B petition was filed for the beneficiary
Check the ID of the petitioner’s signatory
Total number of employees at the petitioner’s company
Number of employees on H-1B status
Number of employees with LPR status
Gross annual income
Net annual income

To the petitioner, about the beneficiary:

Start date with the organization
Current salary
Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

Name of the employer/petitioner
Offer letter for the position with the petitioner
W2 for the most recent year
Most recent paystubs
Description of job duties
Photocopies of qualifying degrees
Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

Describe the relationship between end client and the petitioner
Does the end client anticipate receiving the services of the beneficiary?
If the answer is yes, the end client may be asked to provide
- beginning and ending dates of beneficiary’s employment;
- job description/duties;
- beneficiary’s physical work location
- project description of the task to which beneficiary has been assigned; and
- name and title of the beneficiary’s supervisor
Is end client aware that the beneficiary is an employee of petitioner?
Who assigns work to the beneficiary?
Who does the end client contact about employee related issues for the beneficiary?

You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary. We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition. After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary. As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them. Where is the attorney in this process? Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process. Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices). Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored. USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement: “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.

BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD

December 12, 2011/0 Comments/in Blog/by Cyrus Mehta

U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate. The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.” Visits are conducted pre- and post-adjudication on randomly selected applications and petitions. Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status. Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear. There is a great deal riding on these site visits: if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition. If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice? Nothing earth shattering: Be prepared. If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a site visit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany the officer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary. The officer will usually want to speak with the signatory and the beneficiary. If those individuals are not available, the officer should be asked to provide contact information for a follow up discussion. The officers may also want to verify details with the signatory or beneficiary by phone or via email after conducting the site visit, if they are not available at the time of the visit. If the beneficiary is not available at the worksite, for example because he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocation could result. If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees are aware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include: To the petitioner, about the petitioner

Verify the signatory of the petition, his or her position within the organization
Whether the signatory is aware that an H-1B petition was filed for the beneficiary
Check the ID of the petitioner’s signatory
Total number of employees at the petitioner’s company
Number of employees on H-1B status
Number of employees with LPR status
Gross annual income
Net annual income

To the petitioner, about the beneficiary:

Start date with the organization
Current salary
Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

Name of the employer/petitioner
Offer letter for the position with the petitioner
W2 for the most recent year
Most recent paystubs
Description of job duties
Photocopies of qualifying degrees
Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

Describe the relationship between end client and the petitioner
Does the end client anticipate receiving the services of the beneficiary?
If the answer is yes, the end client may be asked to provide
- beginning and ending dates of beneficiary’s employment;
- job description/duties;
- beneficiary’s physical work location
- project description of the task to which beneficiary has been assigned; and
- name and title of the beneficiary’s supervisor
Is end client aware that the beneficiary is an employee of petitioner?
Who assigns work to the beneficiary?
Who does the end client contact about employee related issues for the beneficiary?

You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary. We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition. After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary. As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings. When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them. Where is the attorney in this process? Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process. Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices). Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored. USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement: “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.” Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.

How Fair is the Fairness For High-Skilled Immigrants Act?

December 5, 2011/0 Comments/in Blog/by Cyrus Mehta

H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

H.R. 3012 only redistributes the allocation of visas, it does not increase the visas that are fixed in number each year. As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only 300,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the Employment-based second preference (EB-2), those born in India and China have to wait for over 5 years to obtain green cards while all other nationalities do not have any wait times. The situation is even more dire in the Employment-based third preference for India (EB-3). Under the per country limit for India in the EB-3, only 2,800 visas can be allocated each year while an estimated 210,000 Indians, along with their dependants, are eligible for green cards. As a result, according to a report of the National Foundation For American Policy, the waiting time for a green card for an Indian under the EB-3 has been estimated to be 70 years, while it may be over 5 years for others.

As a result of such unmanageable waiting times, skilled foreign nationals in the pipeline for a green card, especially from India and China, have no incentive to stay in the US even though they may be invaluable to their employers who have sponsored them by demonstrating that there were no US workers available for the position. Many of these skilled immigrants have graduated with degrees in science, technology, engineering and math (STEM), vital to US growth and innovation. Such skilled workers are generally on H-1B visas, but many are on other nonimmigrant visas such as the L visa too. Even though they are able to extend their H-1B visas beyond the six year limit while waiting for the green card under provisions in the American Competitiveness in the 21^st Century Act (AC21) (and many are already past 10 years on the H-1B visa), they are generally bound to the same employer during the green card process and their spouses cannot work. If their children turn over 21, they lose the ability to remain on the H-4 dependent status and most likely will also be unable to derivatively get the green card along with the parent.

The passage of H.R. 3012 has been met with jubilation by Indians and Chinese, but those from the rest of the world may not be so happy. While Indians and Chinese may still need to wait, the waiting times will get more tolerable, but others who did not have to wait in the EB-2 will now need to wait. While it is hard to predict, there may eventually be waiting times of 1-2 years for all countries in the EB-2. While everyone in the EB-3 is subject to unreasonable waiting times, upon the elimination of the per country limits, Indians may still need to wait but it will not be for 70 years. Instead, it may be 10-12 years for all EB-3 nationals, according to the NFAP report. Those who have priority dates prior to November 2005 in the EB-3, according to the NFAP report, will need to wait only 1 to 2 more years instead of an additional torturous 11-18 years. While waiting times for Indian and Chinese may likely lessen, waiting times for all others may go up in both the EB-2 and the EB-3.

H.R. 3012 is thus not a perfect bill. It also has to be passed by the Senate before it becomes law, and there is an identical version introduced in the Senate. At present, Senator Grassley (R-1A), who has been a foe to skilled immigrant from India, including H-1Bs used by Indian IT companies, has placed a hold on legislation in the Senate. Senate procedures allow any member of the Senate to place such a hold on legislation, and it is uncertain whether Grassley will release his hold in the near future, although he is being persuaded to do so by colleagues and advocates. What is so significant about H.R 3012 is that it received bipartisan support and that too by a landslide, especially in a time when such bipartisan support on other measures is rare or non-existent. The easy passage of H.R. 3012 also shows that there is concern about the unfairness and imbalance in the system towards certain countries, especially India and China. Indeed, although the country limits were originally enacted for all countries, it has resulted in invidious discrimination within the immigration system for Indians and Chinese.

Things may work out better than expected if H.R. 3012 became law, though, as we have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because AC 21, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand in the EB outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today. The notes in the January 1, 2005 Visa Bulletin, when there was retrogression in the EB-3 for the first time after AC21, explains it all.

In conclusion, even if H.R. 3012 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness.

The words of Justice Jackson ring true with respect to H.R. 3012 too:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

Of course, H.R. 3012 ought to be viewed as a first baby step towards more comprehensive immigration reform. Even if it does become law, and skilled immigrants continue to wait, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities. If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to EB immigrants, Congress can exempt certain people from the numbers such as graduates with STEM degrees, or better still, dependent family members. Such carve outs too could restore further balance and integrity to the US immigration system.

SHUTTING DOWN GLOBAL BUSINESS IN AMERICA: WHY THE H-1B CAP HURTS US ALL

November 24, 2011/2 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

The USCIS announced that November 22, 2011 was the final receipt date for accepting H-1B petitions under the 65,000 cap of FY2012. The 20,000 advanced degree cap was reached even earlier on October 19, 2011. Any H-1B petitions filed after that date will get rejected. The new fiscal year started only on October 1, 2011 and the H-1B cap was reached less than 2 months later.

If a company now wishes to hire a badly needed engineer from abroad, it will need to wait till October 1, 2012 before this person can come on board. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers.

What is particularly counterintuitive with the H-1B cap is that it completely negates the recent Administration’s policy to encourage foreign entrepreneurs to create startup companies, resulting in job growth. On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” In the H-1B Question and Answers accompanying the August 2, 2011 announcement, the USCIS appears to reaffirm the existence of the separate corporate entity, and its ability to sponsor its owner or investor on an H-1B visa so long as an employer-employee relationship can be demonstrated between the company and the beneficiary. This may be established by creating a separate board of directors, which has the ability to hire, fire, pay supervise and otherwise control the beneficiary. There is nothing preventing such a board constituting foreign nationals or family members of the beneficiary.

In the experience of this author, the August 2, 2011 announcement fired the imagination of lots of entrepreneurs who had dreams of making it big in the US, notwithstanding the sluggish economy and the stubbornly high unemployment rate. With the convergence of social media, wireless technology and the cloud, it has never been easier for anyone anywhere to be an entrepreneur and also have access to the best infrastructure. Foreign students while still in their dorms have dreamed of starting Facebook-style ventures and being able to work for them under an H-1B visa. Many inquiries came in from people in other parts of the world with bold new ideas about how to go about this, and while the August 2, 2011 policy may yet not have seeped down into the rank and file of the immigration bureaucracy, it was possible to outright win the occasional H-1B visa for a client who was part of an interesting startup. All these entrepreneurial dreams have now been dashed with the announcement of the H-1B cap being reached on November 22, 2011 – and that too just before Thanksgiving. The August 2, 2011 policy will never be able to take fruition, at least until October 1, 2012, and allow entrepreneurs to thrive in the US and create jobs. While there are other options for entrepreneurs, using a startup for an H-1B visa did not require huge sums of money or a close affiliation with a foreign entity. Unlike the Treaty Investor Visa, which only applies to nationals of countries that have a treaty with the US (and the dynamic BRIC countries are excluded), the H-1B visa was open to all nationals.

Mr. Mayorkas has also been receptive to initiating changes in the USCIS Adjudicators Field Manual and training manuals for the USCIS, based on suggestions by Vivek Wadhwa and other entrepreneurs. These suggestions intend to make USCIS examiners aware of some unique features of startups, especially those in stealth mode, which may lack extensive promotional materials and the like. The lack of an organizational structure in a startup ought not to dissuade the USCIS from granting an H-1B visa. While entrepreneurs may be able to avail of other green card categories, such as the National Interest Waiver, the H-1B visa allows the entrepreneur to quickly enter the US and be able to work through his or her startup. After the announcement of the H-1B cap, unless one has been the subject of a prior approved H-1B petition, and thus been counted before in the past 6 years, the H-1B visa will not be available until Ocotber 1, 2012, and a person brimming with bright ideas may be better off setting up the startup in another country even if Mr. Mayorkas is willing to make changes in the AFM.

It is obvious that we need more H-1B numbers, but will Congress, which is in a stalemate, rush to the rescue of US employers and startups? Other factors have also contributed to the cap being reached so soon this year. Perhaps, certain parts of the economy have been ticking again, and employers were scrambling to fill positions with badly needed foreign skilled workers. Business immigration lawyers, after all, tend to see upticks and downturns in the economy faster than others! The wholesale denial of L-1B visas at the US Consulates in India may have probably forced companies to rely on the H-1B visa more than necessary. Note, though, that many prefer the L-1B to the H-1B since the spouse of an L-1 worker can also work in the US. The H-4 spouse, by contrast, is not allowed to partake in any activities that have the semblance of work, even if it is selling a work of art that was created as part of a hobby. The H-4 spouse has to obtain his or her own H-1B. Clearly, the decline in L-1 approvals in India has sucked up more H-1B numbers this year. Finally, the B-1 in lieu of H-1B visa was also placed under a lot of scrutiny this year, which robbed those who were assigned to the US on short term assignments easy flexibility and also forced them to use the H-1B visa.

AILA President Eleanor Pelta sums it all up very nicely, “During a time when job creation is the nation’s number one priority, why are we still fiddling around with an outmoded quota system that ignores the importance of immigrants to the economic engine? The marketplace dictates the pace and type of demand by business for specialized workers. To be more competitive globally, we really should be smarter about our high skilled visa distribution so that it is related to market needs instead of pinned to a static limit that was determined by Congress in the last decade. Congress needs to be working on ways to make the visa system work for fueling the economy. The status quo is no longer acceptable.”

THE ETHICAL ROLE OF THE ATTORNEY UNDER ALABAMA’S ANTI-IMMIGRANT LAW

November 12, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

Alabama’s immigration law, HB 56, is aimed at making life miserable for unlawfully present immigrants, and is intended to drive them out of the state. The law criminalizes a person’s very existence in Alabama. Many portions of the law have been enjoined pending appeal by the 11^th Circuit Court of Appeals in USA v. Alabama, 2011 WL 4863957 (C.A 11 (Ala.)), although some very troubling provisions still remain and have taken effect.

What is the role of the attorney in advising non-citizens who may be committing crimes in Alabama by virtue of simply being alive in Alabama? At this point in time, Section 30, which is very much in effect, makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof. Although “business transactions” may be thought of as activities such as renewing a license or commercial activities with the government, it already appears to be going beyond these activities and can apply to any dealings with state or local governments. A powerful IPC Report highlighting Section 30’s impact, Turning Off The Water, gives the example of an Alabama probate court putting out a notice that all individuals conducting business transactions with it must provide proof of US citizenship or that they are lawfully present in the US. Hence, a woman unlawfully present in the US who is applying to change her name after divorce from her abusive husband may be committing a felony under Section 30. The IPC Report also states that the town of Allgood, Alabama, has interpreted this provision to require all water customers to provide an Alabama driver’s license or Alabama picture ID in order to keep current water service. Alabama Power has asked for proof of lawful presence when a family tried to get electricity reconnected.

Model Rule 1.2(d), which has its analog under state bar rules, provides, “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows to be criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Does this mean that an attorney cannot advise a client who is unlawfully present to apply for the probate of her deceased husband’s will? Must an attorney thus advise an unlawfully present parent of three US citizen children to no longer contract with an Alabama utility for water and electricity in her modest dwelling? There are other provisions that also criminalize the person’s very being but have been temporarily blocked. Section 11(a) makes it a misdemeanor for an unauthorized alien to apply for, solicit, or perform any kind of work. Section 13(a)(2) makes it unlawful to encourage an unlawful alien to come to Alabama. Thus, an immigration attorney who represents a US citizen living in Alabama temporarily for work related reason, and who wants to sponsor his unlawfully present spouse living in Tennessee for a green card, may violate Section 13 if the attorney encourages her clients to live together in Alabama in order to strengthen their case to further establish that the marriage is bona fide.

Some provisions were not blocked before the law took effect. For instance, Judge Blackburn in the lower district court decision, USA v. Alabama, 2011 WL 4469941 (N.D. Ala.) did not enjoin Section 10, which criminalizes one who fails to carry a registration document and who is in the US unlawfully. Section 10 was enjoined only on October 14, 2011 by the 11^th Circuit Court of Appeals and was effective from September 30, 2011 until October 14, 2011. An attorney may have represented an unlawfully present client who had no registration documents, but who was eligible for asylum, and it took time to prepare and file a solid asylum application. If this attorney, even if outside Alabama, in the course of the representation logically advised the client to remain in Alabama in violation of Section 10 while it was in effect, would he or she have breached an ethical rule?

Sections 5 and 6 state that government officials including “an officer of a court” cannot block the enforcement of immigration laws by “limiting communication between its officers and federal immigration officials.” Because “an officer of the court” could include an attorney, this might require attorneys to reveal information about their clients to immigration officials, if demanded by government officials. This provision has already stirred consternation among local attorneys, and the President of the Morgan County Bar Association has predicted that there will be many lawyers who will challenge this provision before turning client information in to the government. Clearly, Sections 5 and 6 breach the Sixth Amendment right to counsel as the essence of this right is the ability to have privacy of communication with counsel. See U.S. v. Rosner, 485 F.2d 1213 (2d Cir. 1975). Even outside the criminal context, the same analogy applies to Sections 5 and 6. Federal statutes and regulations provide a right to counsel in removal proceedings, INA § 240(b)(4)(A), 8 C.F.R. § 1003.16(b), 8 C.F.R. § 1240.3, and any Alabama attacks on lawyer-client confidentiality would most certainly be a violation on the Supremacy Clause.

An ethical argument can be made that a lawyer may represent unlawfully present non-citizen clients in Alabama if they can ultimately seek an immigration benefit under federal law. For instance, a person who is unlawfully present is not driven out of the US under federal law, unlike Alabama, but has a right to appear before an Immigration Judge in a § 240 removal proceeding. As indicated in my prior blog on the ethical role of the lawyer in advising undocumented clients, under federal law, being unlawfully present is generally an infraction under civil immigration statutes. This individual may seek various forms of relief in removal, including cancellation of removal under INA § 240A or adjustment of status under § 245. He or she may still be considered unlawfully present under federal law, but can apply for work authorization, while pursuing relief applications, even if they have been denied in the first instance and are being appealed in federal court. Even a person who has an outstanding order of removal may seek to apply for an administrative stay of removal or supervised release as well as apply for work authorization. While this unlawfully present individual legitimately pursues relief and is permitted to work, his or her existence in Alabama is criminalized and is not allowed to contract with the state for electricity and water. Further examples of how Alabama’s, and even Arizona’s, anti-immigrant laws absurdly conflict with federal law are amplified in David Isaacson’s blogs. A lawyer, after discussion the consequences of various courses of conduct, may permit a client to disobey a law if the lawyer in good faith believes that this law will ultimately be held unconstitutional. Arizona’s law, SB 1070, which contain many similarly ridiculous provisions that conflict with federal law, has been enjoined as unconstitutional in USA v. Arizona, 641 F.3d 399 (9^th Cir. 2011). A law that is ultimately held to be unconstitutional is no law at all. Of course, the lawyer bears some risk if the law’s constitutionality is ultimately upheld, but it may also be possible, that under federal law his or her client may have obtained permanent residency after being unlawfully present, or at least been granted permission to remain in the US to pursue applications for immigration benefits.

VISA OPTIONS FOR FOREIGN ENTREPRENEURS IN THE US – WHILE KEEPING AN EYE ON THE POTENTIAL TRAPS AND PITFALLS

November 7, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

On paper, there are many attractive options for foreign entrepreneurs to live and work in the US temporarily without investing large sums of money. This blog takes the reader through these options, but will also make one aware about the many traps that may befall him or her on the way to achieving fame and fortune in the land of opportunity. This may sound a bit cliché as the US economy remains sluggish and the unemployment rate hovers over 9%, along with the fact that immigration bureaucrats have been tending to restrictively apply the rules. Yet the Administration, at the highest levels, has welcomed entrepreneurs and investors. On August 2, 2011, the Department of Homeland Security Secretary Napolitano Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.” Many were left wondering whether this was simply hot air or whether it represented an attitudinal shift to encourage a surge of entrepreneurs into the US.

H-1B Visa

The DHS announcement acknowledged that the H-1B visa, which is the workhorse nonimmigrant work visa, could be used by entrepreneurs who formed their own entities and were even the owners of these entities.The H-1B visa requires the employer to demonstrate that the position normally requires a bachelor’s degree is a specialized field, regardless of the size of the company or the investment. Prior decisions have recognized the existence of the separate corporate entity as being able to petition for the beneficiary, even though it may be solely owned by him or her. However, in recent times, this concept got somewhat muddied by the insistence that the sponsoring entity also control the H-1B worker’s employment, and such a sponsorship could not be possible when the H-1B worker owned the sponsoring entity. In the H-1B Question and Answers accompanying the August 2, 2011 announcement, the USCIS appears to still hold the line about the need to demonstrate an employer-employee relationship, but has conceded that this can nevertheless be demonstrated even when the owner of the company is being sponsored on an H-1B visa. This may be established by creating a separate board of directors, which has the ability to hire, fire, pay supervise and otherwise control.There is nothing preventing such a board constituting foreign nationals or family members of the beneficiary.

Yet, despite this announcement, USCIS officers in the field still appear to display an anti-small business attitude. Take the example of Amit Aharoni, an Israeli citizen who graduated with an MBA from Stanford University. He founded a hot startup, www.cruisewise.com, and received over $1.65 million in venture capital funding. The H-1B visa that was filed on his behalf by the company got denied and he was forced to leave the US and run his company from Canada. It was only after ABC news reported the story that the USCIS changed its mind and reversed the denial.Since the H-1B visa requires a bachelor’s degree in a specialized field, be aware that when one is managing a small company as its CEO, the USCIS may absurdly view the position based on old administrative decisions as too generalized and not requiring a specialized bachelor’s degree. See Matter of Caron International Inc., 19 I&N Dec. 791 (Comm. 1988). While Mr. Aharoni was fortunate that the USCIS relented because the media shone a bright light on his case, one wonders how many similar deserving cases that have not received media attention have been denied, resulting in the loss of so many jobs here. The H-1B visa is also subject to a 65,000 annual cap, which gets exhausted well within the fiscal year.

L-1A Visa

If the entrepreneur has been running a company in his or her home country as a manager or executive, the L-1A visa also readily lends itself to a foreign national who wishes to open a branch, subsidiary or affiliate in the US, but it is important that the beneficiary must still be able to establish that he or she will work in an executive or managerial capacity. The source of the salary can come from the foreign entity. Matter of Pozzoli, 14 I&N Dec. 569 (RC 1974). A sole proprietorship can also qualify as a qualifying entity for L purposes. Johnson-Laid v INS, 537 F.Supp. 52 (D. Or. 1981). If the beneficiary is a major stockholder or owner, then “the petition must be accompanied by evidence that the beneficiary’s services are to be used for a temporary period and evidence that the beneficiary will be transferred to an assignment abroad upon the completion of the temporary services in the United States.” 8 CFR § 214.2(l)(3)(vii). The purpose of this regulation is to ensure that the beneficiary will maintain the qualifying foreign entity, which is a pre-requisite for the L visa. The entity in the US must generally be the subsidiary, parent or affiliate of the foreign entity.

Yet, in recent years, the USCIS has come down on L-1A petitions by small businesses with a heavy hand. Denial decisions often argue, albeit erroneously, that the manager in a small business would also be involved in day to day operations, which are considered disqualifying activities. Despite the salutary amendment to the L-1A definition by the Immigration Act of 1990 to also include one who manages an essential function, INA § 101(a)(44)(A)(2), as opposed to people, the USCIS appears to have read this provision out of the INA by insisting that such a manager still cannot perform the duties of the function. There have also been credible reports that the US Consulates in India have been denying L visa applications in what is thought to be an unofficial trade war against India, although these also include employees of established global companies who are applying for L-1B specialized knowledge visas.

E-1 and E-2 Visas

The E-1 and E-2 visa categories lend themselves readily to foreign entrepreneurs, but they are only limited to nationals of countries that have treaties with the US. This category thus disqualifies entrepreneurs from dynamic BRIC countries – Brazil, Russia, India and China. For the E-1 visa, the applicant must show substantial trade principally between the US and the foreign state. For the E-2 visa, the applicant must demonstrate that he or she has made a substantial investment in a US enterprise. While there is no bright line amount as to what constitutes a substantial investment, it must be weighed against the total cost of purchasing the enterprise and whether the investment will lead to the successful operation of the enterprise. However, based upon the proportionality test in the Foreign Affairs Manual,the lower the cost of the enterprise, the investor under the E-2 will be expected to make a higher proportion of investment. 9 FAM 41.51 N.10. Note that the E-2 visa will be denied if the enterprise is marginal – if it does not have the present or future capacity to generate more than a minimal living for the investor and family.

Conclusion: The Importance of Foreign Entrepreneurs

These three options, if applied consistent with the true intent under their respective statutory statute provisions, provide wonderful opportunities for foreign entrepreneurs, including students graduating out of a US university, to implement their business ideas in the US. Unfortunately, in recent times, immigration adjudicators have become the self-appointed guardians of US economic well being by assuming that the entry of foreign nationals in the US would eliminate US jobs. In fact, it is quite the opposite as such individuals through their innovations will generate more jobs for Americans. New York City Mayor Bloomberg has categorically called the failure to bring in foreign entrepreneurs and skilled workers as being akin to committing “national suicide.”There also exists the Employment-based Fifth Preference (EB-5) pursuant to INA §203(b)(5) resulting in permanent residency, which is specifically designed for investors, but this involves an investment of $1 million (or $500,000 in targeted areas with high unemployment or that are rural) and the creation of 10 jobs. Investments in designated regional growth centers allow the showing of the indirect creation of 10 jobs and also allow passive investment. The H-1B, L and E categories can offer speed and flexibility to a foreign entrepreneur who may not be able to afford a $ 1 million or $500,000 investment, and the need to immediately create 10 jobs. Also, the EB-5 option is fraught with risks if the investor cannot show his or her own source of funds and if the 10 jobs are not created directly or indirectly at the end of the two year conditional residency period. Another important bill, the Startup Visa Act, remains stuck in Congress as a result of partisan stalemate, which would allow the investor to demonstrate that he or she has obtained funding or created jobs to a lesser degree than the EB-5. While we wait for the Startup Visa, an enlightened interpretation of the already existing H-1B, L and E visa categories for entrepreneurs will surely benefit the US at this point of time and be consistent with the Administration’s August 2, 2011 announcement.

EB-3 to EB-2 BOOST MAY NOT PROTECT YOUR CHILD UNDER THE CHILD STATUS PROTECTION ACT

October 22, 2011/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta

If you were born in India and are being sponsored for a green card through your employer under the employment-based third preference (EB-3), the wait is likely to be 70 years. If your employer filed the first step towards the green card, the labor certification, sometime in 2006, and you managed to file an adjustment of status application (Form I-485) when the EB-3 miraculously opened up for one month under the July 2007 Visa Bulletin and closed after that, the wait may be shaved off by a few decades, but it will still be very long. The only saving grace, besides being able to derive the benefits as a pending adjustment applicant, is that the filing of the I-485 application in July 2007 may have frozen the age of your child under the Child Status Protection Act (CSPA) even if your child is substantially over 21 today. If the green card comes through for you finally after 40 years, your child will still be protected under the CSPA, even if he or she is middle aged by then, and be able to derivatively obtain the green card with you as a child.

Many who are in the never ending pipeline for the green card under the EB-3, especially those born in India, may have upgraded their qualifications and obtained an advanced degree, or if they already possess an advanced degree or the equivalent, they may today qualify for a position that requires an advanced degree. Their employers could file new labor certifications with a view to obtaining classification under the employment-based second preference (EB-2), which applies to job positions requiring advanced degrees or their equivalent while the EB-3 is applicable to positions requiring bachelor’s degrees or 2 or more years of training or experience. The EB-2, while still backlogged for India, is moving substantially faster than the EB-3.

Take the example of a foreign national born in India whose employer originally filed a labor certification on November 1, 2006 for a position requiring only a bachelor’s degree and some experience. The next step in the process upon the approval of the labor certification, the I-140 immigrant visa petition, was filed on March 1, 2007 under the EB-3 and was subsequently approved. At the time of filing the I-140 petition, his daughter, who was born on March 1, 1988, had just turned 19. When the State Department opened up the EB-3 during July 2007, our foreign national from India rushed to file the I-485 applications for himself, his spouse and his daughter who was still 19. The filing of the I-485 application for his daughter, on say July 15, 2007, permanently froze her age under INA section 203(h)(1). Under Section 3 of the CSPA, which has been codified in INA section 203(h)(3), if the child’s age is below 21 when the visa petition is approved and the priority date becomes current, whichever happens later, the child’s age remains permanently frozen under 21 provided she also sought to apply for permanent residence within one year of visa availability. In our example, the daughter’s priority date became current on July 1, 2007, when the State Department announced that the EB-3 was current. Eligible people could file adjustment applications until August 17, 2007 as a result of a threatened law suit, which compelled the State Department to extend the filing period beyond July 30, 2007. After the July 2007 Visa Bulletin, the EB-3 severely retrogressed several years and has moved forward again at a snail’s pace, especially for India, since then. As of the time of writing, the cut-off date for India under the EB-3 is July 22, 2002. However, since the daughter filed her I-485 when the EB-3 date became current in July 2007, her age at that time, which was 19, permanently froze under the CSPA.

Today in 2011, even though the daughter is over 23, her CSPA age is technically still 19 and she can some day in the distant future, when the priority date of November 1, 2006 becomes current under the India EB-3, adjust with her father as a derivative (as if she’s still under 21) however old she may be.

While our Indian foreign national, his wife and his daughter can remain legally in the US as pending adjustment of status applicants, this is not of much solace for her father who is yearning to break free with a green card. He has been stuck with his job for many years, and even if he is provided some job mobility under INA section 204(j), he must work in a similar occupation under which he was sponsored through the labor certification. Thus, if he was sponsored as a Computer Programmer, and can now qualify for a position as a Controller of his new IT company after obtaining an MBA in Finance through an evening executive MBA program at an Ivy League business school, his adjustment application will get denied when ultimately adjudicated if he is unable to show that he has “ported” to a same or similar occupation. One way to resolve this is if his present employer can file a new labor certification presently under the EB-2 as a Controller requiring an MBA and experience in the peculiar financial aspects of an IT company. Once the labor certification is approved, the employer files a new I-140 petition but can magically capture the priority date of the old I-140 under EB-3, which is November 1, 2006. A USCIS rule, 8 CFR 204.5(e), allows you to do this provided that petition is not subsequently denied or revoked. Once the I-140 petition under the EB-2 is approved, it can be inter-filed with the pending I-485 application that was initially filed with the original I-140, and since the EB-2 cut-off date is well beyond November 1, 2006, he will suddenly get the green card.

While this may be manna from heaven for him and his spouse, the filing of the new I-140 will most likely not be able to protect the daughter under the CSPA at this point as it was filed much after her 21^st birthday, even though the new I-140 petition will recapture the priority date of the old I-140 petition filed under EB-3. While this can be open to interpretation, the CSPA applies to the “applicable” petition only, and it will be difficult to bootstrap the new I-140 onto the “applicable” EB-3 I-140 petition, which is no longer being utilized but was filed before her 21^st birthday. While there may be some room to interpret the term “applicable” petition to include the new I-140 petition under EB-2, especially since the new I-140 petition recaptured the priority date of the prior I-140 petition especially if it was filed by the same petitioning employer (See Li v. Renaud), it will be extremely risky to go ahead with this knowing that there is an aged out child who is otherwise protected under the CSPA. Thus, while dad and mom get the green card, their daughter may get left behind. Parents who thus wish to upgrade from EB-3 to EB-2 should beware about doing so if they have a child who is over 21 but who has been protected under the CSPA through the filing of an adjustment application under a prior I-140 petition.

We have already written extensively about the Fifth Circuit’s recent decision in Khalid v. Holder, which correctly interpreted INA section 203(h)(3) providing for the automatic conversion of the priority date of the earlier petition to the appropriate category. If the daughter is unable to seek the protection of the CSPA, after her parents got their LPR status under EB-2, she can use the November 1, 2006 priority date, if she resides in a jurisdiction where Khalid v. Holder is binding, to a family-based second preference petition for an adult child (F2B) that her father can potentially file on her behalf as a green card holder. But even Khalid v. Holder may not throw her an immediate life line since the current cut-off date under the F2B is much earlier than November 1, 2006 at this time.

The CSPA is an extremely complex statute subject to varying interpretations, which even Circuit courts cannot agree upon, and the thin protective cover that it provides can quickly unravel based upon even an inadvertent misstep. Of course, this blog assumes that the child of an EB-3 beneficiary has already been covered under the CSPA through an earlier adjustment application. If the EB-3 for India is truly expected to take 70 years before a green card materializes, a foreign national being sponsored today with a 1 year old child will have absolutely no hope of protecting the age of this child under the CSPA!

BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS

October 15, 2011/1 Comment/in Blog, uncategorized/by Cora-Ann Pestaina

by Cora-Ann V. Pestaina

To practitioners who file numerous PERM applications, the Department of Labor’s (DOL) philosophy of solely protecting the U.S. labor market without regard to employers’ efforts, its constantly shifting goal posts, and its frightful game of “gotcha” which we involuntarily enter whenever we file a PERM application, have sadly all become par for the course. But, every so often, a valiant employer fights back and in recent times we have seen the Board of Alien Labor Certifications (BALCA) demonstrate more reason in its decisions. Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) reveals the most recent case of the DOL’s game of “gotcha.” In that case, BALCA held, reversing the Certifying Officer (CO), that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.”

In Emma Willard School, the employer, a boarding school, conducted a recruitment effort for the position of “Spanish Instructor” and timely filed an ETA Form 9089. The CO issued an audit notification requesting that the employer submit “a detailed explanation indicating the reason the foreign worker currently resides with the employer.” In its timely response, the employer submitted documentation of the school’s philosophy, which states that the school “offers housing as a resource that benefits the faculty, staff, and program” and that a “significant majority” of teachers and key administrators live in school owned housing. The school’s housing guidelines indicated that the school provided on-campus housing, off-campus housing and dormitory apartments to selected faculty and staff as a benefit of employment.

The CO denied the PERM application citing six reasons for denial, all related to the employer’s failure to indicate, in its advertisements and Notice of Filing, the benefit of employer-subsidized housing. Four of the reasons for denial fell under 20 C.F.R. §656.17(f)(7). According to the CO, because the employer’s advertisements in the newspaper of general circulation, in a local or ethic paper, on the employer’s website and on job search websites did not indicate that the employer offered subsidized housing, the advertisements did not comply with 20 C.F.R. §656.17(f). Because the Notice of Filing also did not list this benefit, one denial reason fell under 20 C.F.R. §656.10(d)(4), which requires that the Notice of Filing contain the information required for advertisements. The final reason for denial fell under 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO held that because the employer did not list the benefit of subsidized housing in its recruitment, the recruitment contained terms and conditions of employment that were less favorable than those offered to the alien, thereby disaffirming the employer’s attestation that the job is open to any US worker.

The employer submitted a request for reconsideration of the denial arguing that the regulations do not mandate that benefits be listed in advertisements. The CO forwarded the case to BALCA. In its brief to BALCA, the employer made the obvious point that many advertisements do not list employment benefits such as health insurance and vacation.

BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. The choice not to list the offered wage would not lead to an assumption, on the part of the US worker, that the employer is offering no wage. Similarly, the employer’s choice not to list employment benefits would not lead a US worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

At every step of the persnickety PERM process the DOL claims it is only doing its job to protect US workers, but here it appears that BALCA is finally giving US workers the credit they deserve for being intelligent enough to recognize that a tiny advertisement could not possibly list ALL the terms and conditions of employment. Perhaps BALCA recognized that any US workers who were interested in the position with Emma Willard School would have naturally contemplated whether the boarding school provided boarding to its employees! Therefore, the employer’s decision not to list the subsidized housing benefit in the ad in no way deterred US workers from applying for the position.

Yet, careful not to paint with too broad a brush, BALCA made sure to limit its decision to the facts of the case and to state that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Despite BALCA’s timidity, this decision is significant and bears on other situations as well. For instance, an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment. While the DOL may argue that a “work from home” benefit is different from the subsidized housing benefit, the employer choosing to not list the “work from home” benefit should not serve to deter any US workers from applying for the position especially if the advertisement was placed in a national magazine. US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. A prospective applicant can also inquire about this, and the advertisement on its own, without the listing of a “work from home” benefit should not deter US workers from applying for the position.

When will the DOL come to realize that US workers are smart enough to discern job advertisements themselves, and do not need this kind of misguided protection resulting in the needless denial of a labor certification for a much needed foreign national worker?

Prosecutorial Discretion and the “Criminal Alien”

October 7, 2011/0 Comments/in Blog/by Cyrus Mehta

The June 17, 2011 Memo calling for prosecutorial discretion by ICE Director John Morton is being applied in favor of low priority non-citizens who are threatened with removal. For instance, some who were brought to the US at an early age have been given a temporary reprieve, especially those who would qualify under proposed DREAM Act legislation, which thus far Congress has failed to pass. This is very commendable, and makes sense since the Administration cannot use its limited resources to deport the 10+ million undocumented immigrants in the US. It also makes sense to allow such immigrants with long ties in the US to somewhat regularize their status and obtain a work permit, while under a stay of removal or deferred action order, and thus be allowed to contribute to the US and its economy.

While the Administration showcases low priority non-citizens as model immigrants but for the fact that they violated the immigration law, the Administration is cracking down hard on what it calls the “worst of the worst,” generally characterized as “criminal aliens.” In a recent seven day sweep, called Operation Cross Check, the Administration arrested 2,901 immigrants with criminal records. While the ICE press release highlights some of these individuals with multiple criminal records, including attempted murder, armed robbery and sex crimes against minors, it is not clear whether all of the 2,901 immigrants that were subject to this sweep could be or ought to be characterized as the “worst of the worst.” It is also unclear as to how many of them were undocumented or had permanent resident status.

Even a so called “criminal alien” can in some cases be deserving of prosecutorial discretion. Actually, the definition of “criminal alien” is rather amorphous, and could include one who has either been convicted of a crime or one who has been charged with a crime. Under the Administration’s Secure Communities program, information about a non-citizen charged with a crime and who is fingerprinted, is provided to the DHS, which can then start removal proceedings against this person even if there is no ultimate conviction or the resulting conviction is based on a very minor offense, such as disorderly conduct. While the use of the word “alien” is itself a pejorative, which applies to anyone who is not a citizen, the additional use of “criminal” is like rubbing salt into the wound. Apart from such a person not being charged at all or the charges being dismissed, non-citizens can also be placed into removal proceedings for having admitted to committing the essential elements of certain offenses, such as crimes involving moral turpitude or minor controlled substance offenses, including smoking pot as a student.

Also, a non-citizen convicted of a crime, even while a misdemeanor under the relevant penal law, can be characterized as an aggravated felon under section 101(a)(43) of the Immigration and Nationality Act (INA). For example, minor assault with a one-year suspended sentence can be an aggravated felony under INA 101(a)(43)(F). Take for example the well publicized case of Mary Anne Gehris who lived in the US since she was around one year old . Because she had pulled the hair of another woman in a quarrel over a boyfriend, and had pled guilty upon the advice of her public defender, she suddenly faced removal for the aggravated felony of misdemeanor assault, because she had gotten a one-year suspended sentence. Also, theft or forgery with a one-year sentence can be an aggravated felony under 101(a)(43)(G) [theft], 101(a)(43)(R) [forgery]. Thus, one who was convicted of a forgery of a check for $19.83 could be deportable as an aggravated felon. Shoplifting with a one-year sentence, suspended or not, could also be an aggravated felony. Even a “sex offense” relating to a consensual relationship between a 21-year-old man and his 16-year-old girlfriend can potentially be sexual abuse of a minor under INA 101(a)(43)(A).

Such cases are also deserving of prosecutorial discretion, and the DHS can exercise this discretion especially over permanent residents who are “aggravated felons” by not even issuing a Notice to Appear, which starts a removal proceeding. A non-citizen permanent resident who is convicted of an aggravated felony is generally foreclosed from relief from removal, such as cancellation of removal under INA 240A (a) or by applying for a waiver of inadmissibility under INA 212(h). Fortunately, with respect to the 212(h) waiver, two circuit courts, the Third, and Fifth, have held that the bar against permanent residents only applies to those who were admitted to the United States as permanent residents at a border or port of entry as opposed to those who adjusted status in the US to permanent residence. See Martinez v. Mukasey, 519 F.3d 532 (5^th Cir 2008); Lanier v. US, 631 F.3d 1363 (11^th Cir. 2011). The Ninth Circuit has also implied in Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010) that this may be the case. However, these decisions are only binding within the respective circuits, and the Board of Immigration appeals has further blunted these holdings in Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) by barring a permanent resident from applying for a 212(h) waiver who entered the US without inspection but who adjusted to permanent residence since the adjustment of status is this individual’s only admission.

Even non-permanent residents who have been convicted of crimes that have been re-characterized as aggravated felonies are similarly deserving of prosecutorial discretion, on a case by case basis, if they can seek relief by virtue of say a potential marriage to a US citizen and by filing a 212(h) waiver. Similarly, such an individual who is convicted of an aggravated felony may have a US citizen child who may be turning 21 years in a few years who will be able to provide the basis for an adjustment application and a 212(h) waiver. Prior to the June 17, 2011 Morton Memo, a similar memo in 2000 by former INS Commissioner Doris Meissner contemplated prosecutorial discretion in cases involving non-citizens convicted of crimes and who would be unable to seek relief against removal despite the presence of US citizen qualifying relatives. The same spirit behind the Meissner memo (although it was rarely implemented) should guide ICE prosecutors under the new Morton Memo too, which is being taken more seriously, even though the focus of the latter is on low priority individuals, who ostensibly are not “criminal aliens.” After all, the hyped up notion that “criminal aliens” are dangerous and should be immediately removed from the US is generally misguided as most have actually served their sentences or paid their fines under the penal system. If a US citizen is allowed to get a second chance after serving his or her sentence, an immigrant could also be given that chance if he or she is otherwise deserving of prosecutorial discretion through family ties and the gravity and nature of the past criminal conduct.

In the second decade of the 21^st century, in light of other pressing concerns and challenges, the draconian impact of the 1996 Immigration Act, especially pertaining to the retroactive re-characterization of minor criminal convictions as aggravated felonies, remains a distant memory and is taken for granted. Any movement for immigration reform of a broken immigration system must also press for a roll back on some of the harshest provisions of the 1996 law, especially the elimination of relief for persons convicted of aggravated felonies, despite evidence of reform, rehabilitation and close families ties in the US. While we continue to press ahead for reform in a Congress that is in a stalemate, including the DREAM Act for children who were brought into the US and are now out of status, the Administration has wisely used its powers to exercise prosecutorial discretion in favor of immigrants who clearly do not deserve to be deported from the US. Some of these people ought to also include those with criminal convictions.

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