Cora-Ann Pestaina

BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION’S VALIDITY PERIOD

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Cora-Ann V. Pestaina

Pardon me while I take a moment to pump my fist! I am just really excited (and also relieved that sanity finally prevailed!) over the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), http://j.mp/jAQRfO. Along with many fellow practitioners, I have long been irked by the Department of Labor’s (DOL) continued erroneous and hypertechnical interpretation of the rule found in 20 C.F.R. §656.40(c). I first wrote on this issue in August 2009 on www.cyrusmehta.com, in my article entitled, “How the Definition of the Word “Begin” Could Affect Your PERM Application.” http://j.mp/k1e5e6.

The DOL has long interpreted 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the prevailing wage determination’s (PWD) validity period. The DOL has consistently denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. Rather than fight with the DOL (and suffer through the long wait in the appeals queue!), most employers simply conducted new recruitment and filed a new PERM application. In my article, I argued that the DOL’s interpretation of the rule was (1) overly narrow and contrary to the plain meaning of the regulation; and (2) contrary to the Employment and Training Administration’s (ETA) intent when promulgating the regulation which was to have the employer conduct at least one form of recruitment within the PWD validity period. I expressed the hope that a well-crafted Motion to Reopen and Reconsider would bring forth a more definitive statement from BALCA.

We finally have this statement in Matter of Horizon Computer Services! In this case, the employer began its earliest recruitment by placing a job order on January 22, 2007. The employer obtained a PWD with a validity period from January 25, 2007 to June 30, 2007. The employer filed the PERM application on July 20, 2007, after the PWD had expired. The DOL denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period and cited 20 C.F.R. §656.40(c) as authority for the denial. The employer fought back in a Request for Review and cited to the ETA’s notice of proposed rulemaking for PERM regulations wherein the ETA sought to explain the need for specific PWD validity periods and stated:

2. Validity Period of PWD
We are proposing that the SWA must specify the validity period of PWD on the PWD form, which in no event shall be less than 90 days or more than 1 year from the determination date entered on the PWDR. Employers filing LCA’s under the H-1B program must file their labor condition application within the validity period. Since employers filing applications for permanent labor certification can begin the required recruitment steps required under the regulations 180 days before filing their applications, they must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the PWD to rely on the determination issued by the SWA. Employment and Training Administration, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 CFR Part 656, 67 Fed. Reg. 30466, 30478 (May 6, 2002).

Based on the ETA’s statements, the employer in Matter of Horizon Computer Services argued that the ETA did not intend that the employer’s first recruitment step begin during the validity period but only that some recruitment step be initiated during that time. In fact, with the exception of the job order, the employer had initiated all of its recruitment during the PWD validity period.

BALCA agreed with the employer, vacated the DOL’s denial and held that the timing of the employer’s recruitment complied with the regulations and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA agreed that the ETA intended only that the employer initiate some recruitment during the PWD validity period and not the earliest recruitment.

Accordingly, under Matter of Horizon Computer Services, in order to rely on an expired PWD in the filing of a PERM application, the employer must have initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application.

Matter of Horizon Computer Services is an important decision especially at this time of the year when the DOL issues PWDs with only a narrow 90-day validity period. The DOL updates its prevailing wage databases on July 1st. PWDs issued around this time of year have only a 90-day validity period as opposed to PWDs issued after July 1st which are typically valid until June 30th of the following year. Employers who initiated recruitment prior to obtaining the PWD, initiated additional recruitment during the PWD’s 90-day validity period but were then unable to file the PERM application within the brief 90-day validity period of the PWD, would previously have had no recourse.

David Isaacson

IF EVEN THE CHIEF JUSTICE CAN MISUNDERSTAND IMMIGRATION LAW, HOW CAN WE EXPECT STATES TO ENFORCE IT PROPERLY? REMOVAL ORDERS AND WORK AUTHORIZATION

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By David A. Isaacson

In part of the Supreme Court’s recent decision in Chamber of Commerce v. Whiting upholding an Arizona law that imposed sanctions on employers (formally implemented as suspension or revocation of business licenses) for hiring “unauthorized alien” workers, the Court found that the Arizona law was not impliedly pre-empted because it tracks the federal definition of an “unauthorized alien” and insists that the state rely on the federal determination of an alien’s status. According to the majority opinion, written by Chief Justice Roberts, the verification of an individual’s “citizenship or immigration status” that the federal government is required to provide under 8 U.S.C. § 1373(c) is likely to be a sufficient determination under many circumstances. As the Chief Justice wrote for the Court, in response to the concern expressed in Justice Breyer’s dissent that § 1373(c) “says nothing about work authorization”:

But if a §1373(c) inquiry reveals that someone is a United States citizen, that certainly answers the question whether the individual is authorized to work. The same would be true if the response to a §1373(c) query disclosed that the individual was a lawful permanent resident alien or, on the other hand, had been ordered removed.

Chamber of Commerce v. Whiting, 563 U.S. ___ (2011), slip op. at 17.

The clear implication is that the Chief Justice, and the Court majority for which he wrote, believed that verification that an individual “had been ordered removed” would establish that individual’s lack of authorization to work. As explained below, this is incorrect. The fact that even the Chief Justice of the United States and a majority of the Supreme Court could make such a mistake is a vivid demonstration of the perils of involving non-specialists less qualified than Supreme Court Justices, such as state authorities, in determinations relating to immigration status and work authorization.

Under section 274A(h)(3) of the Immigration and Nationality Act (“INA”), the Attorney General and now the Secretary of Homeland Security have long had broad regulatory authority to determine who shall be authorized to work in the United States. That section says that “the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” This subsection (B) power to authorize employment has been exercised through the promulgation of regulations at 8 C.F.R. § 274a.12 (and related regulations at § 274a.13-14), which list many categories of aliens who are authorized to be employed incident to their status or can apply for and receive employment authorization. Although the existence of a removal order or ongoing removal proceedings certainly is not itself a basis for employment authorization, there are many regulatory bases for employment authorization that are not inconsistent with the existence of a removal order.

Perhaps the most common way for someone to have valid employment authorization despite having been ordered removed is when the person who has been ordered removed is challenging the removal order in federal court by a petition for review filed in the federal Court of Appeals for the appropriate Circuit (say, the Second Circuit if the case took place in New York). Pursuant to 8 C.F.R. § 274a.12(c), when employment authorization is based on the pendency of an application, the “validity period for an employment authorization document . . . may include any period when an administrative appeal or judicial review of an application or petition is pending.” An asylum applicant who obtains employment authorization under 8 C.F.R. § 274a.12(c)(8), for example, may renew this employment authorization if the asylum application has been denied by an immigration judge and even the Board of Immigration Appeals (“BIA”), and the applicant has been ordered removed, but a court challenge to this denial of asylum and the accompanying removal order is pending. This seems only fair, given that it is hardly uncommon for a BIA denial of asylum to be overturned by a federal court, and the victim of this BIA error should not be denied the right to work while the error is being corrected—but it means that one who has been ordered removed, and whose order of removal has not yet been vacated by a court, may well have valid employment authorization.

The same scenario can arise when an applicant for adjustment of status under INA § 245 or cancellation of removal for nonpermanent residents under INA § 240A(b) has his or her application denied by an immigration judge and the BIA, is ordered removed, and petitions for judicial review of the order of removal under 8 U.S.C. § 1252(a)(2)(D) on the ground that a legal or constitutional error has been made by the BIA in adjudicating the application. An applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). Both would be entitled, pursuant to the introductory language in 8 C.F.R. § 274a.12(c), to renew this employment authorization while their federal court case was pending, despite the fact that they had been ordered removed.

Another way that someone who has been ordered removed can obtain valid employment authorization based on a pending application stems from an anomaly created by the BIA’s decision in Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). In that case, the BIA recognized that USCIS often has jurisdiction over an application for adjustment of status filed by someone who has been ordered removed as an “arriving alien” (for example, after entering on advance parole based on a different application), but said that it would generally refuse to reopen such a removal order while the application for adjustment was pending before USCIS. That is, the BIA said that if, for example, someone enters on advance parole because of a pending employment-based adjustment application, then enters into a bona fide marriage with a U.S. citizen, and then is placed in removal proceedings following the denial of their employment-based adjustment application, an application for adjustment of status based on the marriage would go forward with USCIS independently of the removal proceedings before the Immigration Judge and BIA (in which the person would not be allowed to apply for adjustment of status based on the marriage as relief from removal). If someone who had already been ordered removed as an arriving alien more than 90 days ago applies for adjustment of status with USCIS, then according to Matter of Yauri, USCIS has jurisdiction to grant them adjustment of status notwithstanding the removal order, but in the meantime while the adjustment application is pending, the BIA generally will not reopen the removal order. Someone with a pending adjustment application as an arriving alien under Matter of Yauri, therefore, can have been ordered removed by an immigration judge and the BIA, and yet have a perfectly valid application for adjustment of status pending before USCIS, based on which they may have employment authorization under 8 C.F.R. § 274a.12(c)(9). The peculiarity of a pending application before USCIS, valid employment authorization, and an outstanding removal order all existing at the same time (even absent federal court involvement or some similar complication) may be an argument against the BIA’s refusal in Matter of Yauri to reopen removal orders based on applications for adjustment by an arriving alien, but as long as the rule of Matter of Yauri remains, this possibility will remain entirely plausible despite the applicant’s best efforts to resolve his or her situation.

Yet another way for people who have been ordered removed to have valid employment authorization is if their removal to particular countries (usually their countries of nationality) has been withheld under INA § 241(b)(3) or under the Convention Against Torture, because they would, more likely than not, face persecution or torture in those countries. This often occurs, for example, when an otherwise meritorious application for asylum is rejected as untimely under the one-year deadline of INA § 208(a)(2)(B). Someone who has been granted withholding of removal can theoretically be removed to another country besides the country of feared persecution or torture, but it is very rare for this to happen in practice, since most countries will not simply volunteer to accept a deportee with whom they have no previous connection. While they remain in the United States for lack of a third country willing to accept them, withholding of removal grantees are entitled to employment authorization pursuant to INA § 274a.12(a)(10). They too, therefore, will be authorized to work despite the fact that they have been ordered removed.

In addition, there is a section of the regulations that explicitly contemplates the issuance of employment authorization to certain people who have been ordered removed simply because the order of removal cannot be executed, even when withholding of removal to a particular country has not been granted due to the threat of persecution or torture. Pursuant to 8 C.F.R. § 274a.12(c)(18):

An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be removed from the United States.

For this reason, as well, one who has been ordered removed may nonetheless be authorized to accept employment.

It was therefore incorrect for the Court in Whiting to say that it “answers the question whether the individual is authorized to work . . . . if the response to a §1373(c) query disclosed that the individual . . . had been ordered removed.” An individual may have been ordered removed, and yet nonetheless be authorized to work pursuant to 8 C.F.R. § 274a.12(a)(10), 8 C.F.R. § 274a.12(c)(8), 8 C.F.R. § 274a.12(c)(9), 8 C.F.R. § 274a.12(c)(10), or 8 C.F.R. § 274a.12(c)(14)—and even this is not intended as an exhaustive list of the regulatory provisions authorizing employment that may be applicable to someone against whom an order of removal has been entered. Disclosure that an individual has been ordered removed simply does not foreclose the possibility that the same individual is authorized to work.

The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable. Immigration law, both in the area of employment authorization and in other areas, is highly complex, and can confuse even specialists or legal generalists of the highest caliber. It seems reasonable to say, without fear of insult, that the legal education and acumen of most state law-enforcement officials as it relates to matters of federal law is often not going to meet the high standard required of a Justice of the U.S. Supreme Court. Thus, implementation of immigration law by such state officials is likely to lead to frequent errors.

Cyrus Mehta

B-1 IN LIEU OF H-1B VISA IN JEOPARDY: DON’T THROW THE BABY OUT WITH THE BATHWATER

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By Cyrus D. Mehta and Myriam Jaidi

The “B-1 in lieu of H-1B” visa has been an important and legitimate source of flexibility facilitating the needs of global businesses and business travelers, with significant benefit to the United States economy. The April 14, 2011 letter from Senator Charles E. Grassley to Secretary of State Hilary Clinton and Secretary of Homeland Security Janet Napolitano in light of the lawsuit against Infosys, may threaten the existence of this important category. We write to clarify its utility for American businesses in a globalized world, and strongly urge that the “B-1 in lieu of the H-1B” not be eliminated as this will undermine US competitiveness.

As we noted in a recent article on the B-1 category, the B-1 business visa remains one of the “most ill-defined” visas but plays a very important role in providing flexibility to business travelers. While the B-1 visa is associated with visiting the US to participate in meetings and negotiate contracts, the “B-1 in lieu of H-1B” was created to facilitate travel to the US of individuals who would otherwise qualify for an H-1B visa, but only needed to come to the United States for a limited period of time. In the current controversy over the US of the B-1, scant attention has been paid to the “B-1 in lieu of the H-1B,” which permits broader activities than the regular B-1 visa, albeit for a short period of time. Indeed, many of the activities that have been alleged to be outside the scope of the B-1 may be permissible under the “B-1 in lieu of the H-1B.” Hence, what has been alleged to be fraud may not really be the case if viewed under activities permissible under the “B-1 in lieu of the H-1B.”

The “B-1 in lieu of the H-1B,”, which is in 9 Foreign Affairs Manual § 41.31 Note 8, and available on the US Consulate, Mumbai, website is tightly regulated and involves strict requirements. First, qualified individuals must otherwise qualify for an H-1B visa, meaning they must be working in a specialty occupation and qualify for the position by means of a bachelor degree in a specific field required for the occupation. In addition, they must show nonimmigrant intent (established by showing significant ties to their home country, including establishing that they have a residence abroad that they have no intent to abandon), must be regularly employed abroad and their salary must be paid by their employer abroad. They may perform work in the United States only for a limited time and only if they continue to be paid abroad, and not by the United States entity for which they are performing services. These are not simple showings to make, especially to consular officers trained to spot applicants who may wish to stay beyond the term of their B-1 visa status.

One issue raised in the controversy concerning the “B-1 in lieu of H-1B” is the absence of the prevailing wage obligation by the employer. The H-1B visa is one of the few visa categories that requires that nonimmigrants in this status be paid at least the “prevailing wage” (the average rate of wages paid to workers similarly employed in the geographical area of intended employment) and to have a labor condition application (LCA) certified before the petition may proceed. Prevailing wage data is available from many sources, including the Department of Labor’s Foreign Labor Certification Data Center, available here: http://www.flcdatacenter.com/. Other temporary nonimmigrant work visa categories such as the O-1, TN, L, E, P and others do not require an LCA or a promise to pay the prevailing wage in order to be approved. Thus, contrary to Senator Grassley’s assertions, the fact that an LCA is not required for the “B1 in lieu of H-1B” is not so unusual within the US nonimmigrant visa system, and if properly applied, should not be viewed as an attempt to skirt the rules, nor should it be mischaracterized as a loophole.

The category plays an important role in filling a gap in the available visa categories for short-term, professional workers. Moreover, it can only be used by a multinational business that has the ability to regularly employ the individual at an overseas entity while he or she is in B-1 status. There are other companion “in lieu of” B-1 categories such as the “B-1 in lieu of the H-3” and the “B-1 in lieu of the J-1.” These B-1 categories allow for short term training assignments in the US without the need for a US employer to file a lengthy petition or obtain authorization through a J sponsor. All of these are extremely useful and legitimate short term B-1 uses that allow a US business to remain competitive and responsive to spontaneous short-term needs in a globalized economy. We urge that the baby not be thrown out with the bathwater just because of ex-parte allegations by a plaintiff in one law suit against an IT consulting company, which has led to further investigations by the US authorities.

The Department of State’s (DOS) response to Senator Grassley’s missive is troubling in that it conveys that the “B-1 in lieu of H-1B” may be at risk. In a letter by Joseph Macmanus, Acting Assistant Secretary for Legislative Affairs, he says that DOS is “working with the Department of Homeland Security (DHS) to consider removing or substantially amending the FAM note” allowing the B-1 in lieu of H-1B category. However, all hope is not lost as Mr. Macmanus points out that problems with the B-1 category usually result from misrepresentation in the visa application, not from a misapplication of visa law. In addition, Mr. Macmanus’s letter makes clear that consular officers are carefully trained to determine whether issuing a B-1 visa or a “B-1 in lieu of H-1B” is appropriate. These categories are not taken lightly and have strict requirements, carefully enforced, with fewer than 1000 “B-1 in lieu of H-1B” visas issued each year worldwide. This restrictive view of the category is sometimes too carefully enforced to the detriment of companies that need individuals from their foreign entities to come to the United States entity for training that is unavailable at the foreign entity, and that is crucial to the global operations of the company as a whole.

We hope that the DOS and DHS continue to recognize and defend the importance of the “B-1 in lieu of H-1B” and other companion “lieu of” categories to international commerce and the benefits that accrue to the United States economy, rather than eliminate it or read it out of existence as a knee jerk reaction to a Senator’s objections, especially one who has generally been opposed to the existence of the H-1B and L visa programs.

Cyrus Mehta

IMMIGRATION LESSONS FROM THE FALL OF STRAUSS-KAHN

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By Cyrus D. Mehta

From an immigration lawyer’s perspective, the fall of Dominique Strauss-Kahn, the former head of the International Monetary Fund, who has been charged with attempted rape and other serious sex offenses against an immigrant hotel worker from Guinea in a posh New York hotel, resonates with important immigration themes.

Most important, the word of an immigrant worker who was subject to attempted rape, imprisonment and other charges has been taken extremely seriously against one of the world’s most powerful men. So seriously was her word taken that the NYPD actually arrested Strauss-Kahn while his Air France plane was about to take off from JFK airport last Saturday.

It is difficult for any victim of a sex crime to come forward, given that the defense will seek to turn the tables against her and undermine her credibility. It is even more difficult for an immigrant who has been a victim of a sex crime to come forward since this person’s immigration status, or lack thereof, will also be put under the microscope.

While media reports indicate that Strauss-Kahn’s accuser was granted asylum, and as a result, is in a lawful status, there are many survivors (rather than victims) of domestic abuse and sex crimes who may not even be in a lawful status. Despite all the flaws in the US immigration system, one shining spot is that survivors of domestic violence and sex crimes do have recourse. The battered spouse of a US citizen or lawful permanent resident, and in some cases of a nonimmigrant, can apply on their own for status without the help of the abuser. Those who are the victims of sex crimes, even though the perpetrator may not be a spouse, can apply for U or T visas if they are helpful to the investigation or prosecution. Once the application is approved, many of the grounds of ineligibility that would apply to other prospective immigrants either do not apply to this group of vulnerable immigrants or can be more easily waived.

Another lesson can also be drawn from the sordid Strauss-Kahn saga. Even the alleged perpetrator, Strauss-Kahn, is not a citizen of the US and has been on a nonimmigrant visa, presumably a G-4 visa for officers of international organizations, while he was with the IMF. I have observed that many nonimmigrants, who are accused of crimes, even non-violent white collar crimes, have a harder time to get bail after they have been arrested. In many situations, the nonimmigrant visa status is linked to the employment in the US, which more often than not disappears after the defendant is accused of the crime. The prosecutor seizes upon this to argue that the defendant is more of a flight risk than a defendant who is a US citizen. While Strauss-Kahn is in a different league from a regular nonimmigrant who is charged with a crime, and poses additional flight risk considerations, the fact of the matter is that one who is on a temporary visa in the US has a harder time to get bailed out. Still, Strauss-Kahn has done better than most other criminal defendants on a nonimmigrant visa because he just got bail.

Cyrus Mehta

EXPANSION OF STEM FIELDS AS AN EXAMPLE OF ADMINISTRATIVE FIXES FOR A BROKEN IMMIGRATION SYSTEM

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By Cyrus D. Mehta

I was pleased to see the announcement below. Immigration and Customs Enforcement, (ICE) of all agencies, expands immigration benefits to students who have graduated in science, technology, engineering and math degree programs (STEM) fields. ICE, which has been deporting non-citizens in high numbers in recent times, ironically acknowledges that this is a “continued commitment to fixing our broken immigration system and expanding access to the nation’s pool of talented high skilled graduates in science and technology fields.”

The 17 month extension of Optional Practical Training for STEM graduates is a good example of how the Administration can fix problems within our broken immigration system in the face of Congressional inaction. The 17-month extension was in response to the crisis caused by the H-1B cap in previous years. Even if presently, under the FY2012 H-1B cap, there are still plenty of H-1B visas, the quota is likely to get filled prior to the end of FY 2012. The expansion of STEM fields will benefit both employers and foreign students when they are next confronted with the filling of the H-1B cap. The 17-month STEM OPT extension rule was promulgated in the absence of any Congressional action. The rule also withstood a court challenge by the Programmers Guild in the Third Circuit on the ground that Congress acquiesced by never objecting to the concept of practical training whenever it previously legislated on immigration. See Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009).

In The Tyranny of Priority Dates by Gary Endelman and Cyrus D. Mehta, we have forcefully argued that the Administration has the power to creatively fix our immigration system administratively, and used the STEM OPT extension as an example. What is intriguing about this ICE announcement that it comes closely on the heels of President Obama’s speech on immigration in El Paso on May 10. While many think that Obama’s recent meetings on immigration and his El Paso speech do not amount to much, the fact that his administration expanded STEM fields after the speech reveals that he may still have a nuanced plan to change the game on immigration. Expanding STEM fields is a baby step, and he can do a lot more administratively such as halting deportations for DREAM students. The President can justify such administrative fixes as our immigration system no longer works and is not what Congress intended when it enacted the preference system in 1965, which was expanded in 1990., but is unable to cope with present day realities. By taking bold administrative steps now, he can force Congress to bless them later either through acquiescence (by taking no action) or by affirming through legislation.

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ICE announces expanded list of science, technology, engineering, and math degree programs

Qualifies eligible graduates to extend their post-graduate training

WASHINGTON – U.S. Immigration and Customs Enforcement (ICE) today published an expanded list of science, technology, engineering, and math (STEM) degree programs that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension-an important step forward in the Obama administration’s continued commitment to fixing our broken immigration system and expanding access to the nation’s pool of talented high skilled graduates in the science and technology fields.

The announcement follows President Obama’s recent remarks in El Paso, Texas, where he reiterated his strong support for new policies that embrace talented students from other countries, who enrich the nation by working in science and technology jobs and fueling innovation in their chosen fields here in the United States, as a part of comprehensive reform.

By expanding the list of STEM degrees to include such fields as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design, Mathematics and Computer Science, the Obama administration is helping to address shortages in certain high tech sectors of talented scientists and technology experts-permitting highly skilled foreign graduates who wish to work in their field of study upon graduation and extend their post-graduate training in the United States.

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly-expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

Cyrus Mehta

REFLECTING ON OUR IMMIGRATION POLICY AFTER OSAMA BIN LADEN’S DEATH

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One cannot help reflect on how Osama bin Laden so radically changed immigration policy for the worse After the 9/11 attacks, masterminded by bin Laden, everything concerning immigration was viewed through the prism of national security. Even a garden variety bona fide marriage case between a US citizen and foreign national spouse will only be approved after every aspect of the spouse’s information is extensively checked against humongous and error-prone national data bases.

While Bin Laden may have had his footprints on terrorist attacks even before 9/11, the paradigm shift occurred only after that day when planes spectacularly and tragically crashed into the twin towers, the Pentagon and in a field in Pennsylvania while on its way to a more sinister mission. Just a few days before, on September 6, 2001, a compromise was reached between the Senate and the House (the Senate had earlier passed its version) to extend the Section 245(i) provision to April 30, 2002, which would have allowed those unlawfully in the US to adjust status, albeit under more limited terms. After the Bin Laden inspired terrorist attacks of September 11, the Section 245(i) extension never saw the light of day. To come to think of it, we may have had Comprehensive Immigration Reform a long time ago if Bin Laden never inspired the attacks on 9/11 .

Instead, the Executive under Attorney General Ashcroft tweaked the rules to make it easier to detain immigrants. The expanded regulation, which took effect on September 20, 2001, authorized the then INS to hold any non-citizen in custody for 48 hours or an unspecified “additional reasonable time” before charging the person with an offense. In the post 9/11 sweep, immigrants from mainly Muslim countries were detained and deported in secret. Although they were detained because of immigration violations, it was under the pretext of investigating them for suspected links to terrorism. In the end, the 1000+ immigrants who were detained and deported in secret were not charged or convicted of terrorism.

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

The INS was dismantled and folded into the Department of Homeland Security bureaucracy. A new agency within DHS, Immigration and Customs Enforcement (ICE) came into being, which continues to expand and deport immigrants with even greater zeal under the Obama administration, disregarding its inherent power to favorably exercise discretion (which it had no compunctions in exercising unfavorably to arrest and deport immigrants after 9/11). Several efforts to achieve CIR in Congress have failed. The last effort to pass the DREAM Act in December 2010 also failed. Even business immigration, which can spur growth and more jobs, has gotten bogged down because of national security concerns. An entrepreneur finds it next to impossible to obtain a visa for the purpose of establishing a branch of his foreign business in the US. This branch can potentially create more employment for US workers, but national security concerns trump job creation when we most need it. Various states are competing with each other to pass laws that will punish suspected immigrants who are not in lawful status.

There are admittedly other forces also at work. The sluggish economy, along with joblessness, can also serve as a disincentive for immigration reform, along with nativist backlash. But the main bogeyman has been national security, largely as a result of the trauma caused by the 9/11 attacks. Surely, the danger is not over. New members of Al Qaida can rise and retaliate against the US. But there is no one with the same mythical status as Osama bin Laden, who was able to perpetuae it by evading capture or death. His death, if it makes the world more safe, should lessen the trauma in the days, months and years to come.

Can we hope for more sensible bi-partisan immigration reform, that will lead to economic growth and more prosperity as Michael Bloomberg suggested in the Wall Street Journal on May 1, 2011? Can we revert to our old values of not being fearful and embrace immigrants because of all the wonderful benefits they bring to the US? Can we restore due process because the erosion of the rights of immigrants ultimately result in the loss of rights for all? Can we overcome the fearmongering of rabidly nativist anti-immigration organizations through a more postive message that believes in the dignity of all persons including the immigrant?

There may be a sliver of a chance for all this to happen especially since Osama bin Laden is no more.

Cyrus Mehta

RESUMPTION OF SOCIAL SECURITY NO-MATCH LETTERS AND CONSTRUCTIVE KNOWLEDGE

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By Cyrus D. Mehta

On April 6, 2011, The Commissioner of the Social Security Administration announced that SSA would resume sending “no-match” letters, https://secure.ssa.gov/apps10/public/reference.nsf/links/04052011011437PM. Two I-9 compliance mavens, John Fay, http://www.electronici9.com/enforcement/the-return-of-the-social-security-no-match-letter/ and Kevin Lashus, http://www.immigrationcomplianceblog.com/ice/social-security-administration-resumes-sending-no-match-letters/, have adequately commented on this new development, and I will not go into the technicalities of the specifics of such a letter. This post analyzes whether an employer who receives such a letter from the SSA – indicating that its employee’s number does not correspond with an account at the agency – has constructive knowledge that he or she is employing an unauthorized worker in violation of the law.

While INA §274A(a)(1)(A) clearly makes it unlawful to hire “an alien knowing (emphasis added) the alien is an unauthorized alien,” an employer cannot bury his or her head in the sand in the ground like an ostrich, and ignore telltale signs that the person may indeed not be authorized. The regulations at 8 C.F.R. §274a.1(l)(1) defining “knowing” includes “constructive knowledge” and defines the term as follows:

The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer:

(i) Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;

(ii) Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or

(iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

2) Knowledge that an employee is unauthorized may not be inferred from an employee’s foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.

Yet, not all courts or administrative tribunals have found that an employer had knowledge that an alien was unauthorized to work in the US. In Collins Food International, Inc. v. INS, 948 F.2d 549 (9th Cir. 1991), a seminal case involving the application of constructive knowledge, an employer was sanctioned for knowingly hiring an alien as he made a job offer prior to checking the alien’s documents and because the employer did not verify the back of the social security card. The Ninth Circuit rejected the government’s charges under both the factual circumstances. First, there was nothing in the law or regulations that required an employer to verify documents at the time of the job offer and prior to the hire of the alien. In fact, pre-employment questioning concerning the prospective employee’s national origin, race or citizenship would expose the employer to charges of discrimination under Title Seven. Regarding the employer’s failure to properly verify the back of the social security card, the Ninth Circuit held that under INA §274A(b)(1)(A) an employer will have satisfied its verification obligation by examining a document which “reasonably appears on its face to be genuine.” There was also nothing in the statute that required the employer to compare the employee’s social security card with the example in the handbook of the Immigration and Naturalization Service, and the “card that Rodriguez presented was not so different from the example that it necessarily would have alerted a reasonable person to its falsity.” Finally, the Ninth Circuit was concerned that if the doctrine of constructive knowledge was applied so broadly, the employer may be tempted to avoid hiring anyone with appearance of alienage to avoid liability.

Similarly, even if 8 C.F.R. §274a.1(c)(1)(iii)(A) attributes an employer with constructive knowledge if the employee requests sponsorship through a labor certification, it should not be automatically assumed that the individual is not authorized to work in the US. Such an employee could possess a valid employment authorization as one who has been granted withholding of removal or temporary protected status, which without a sponsorship through the employer, may not provide him or her with any opportunity to obtain permanent residence.

The facts in Collins Food International ought to be contrasted with situations where an employer has been notified by the government after a visit to its premises that certain employees are suspected to be unlawful aliens and is asked to take corrective action. Thus, in US v. El Rey Sausage, 1 OCAHO no. 66 1989, aff’d, 925 F.2d 1153 (9th Cir. 1991), where the INS found several employees using improper or borrowed alien registration numbers, and the INS warned in a letter that unless these individuals provide valid employment authorization they will be considered unauthorized aliens, and the employer simply accepted the word of the aliens as to their legal status, the Ninth Circuit found constructive knowledge. Therefore, it is one thing when an employee who is untrained accepts a false document, as in Collins Food International, and quite another when an employer receives notice from ICE that certain employees may not have proper work authorization.

With regards to a social security “no-match” letter, the issue of whether the employer is deemed to have constructive knowledge continues to remain fuzzy. The employer’s receipt of a no-match letter does not fall squarely within the facts of Collins Food International, yet such a letter still does not constitute a direct indication, as in US v. El Ray Sausage, that the worker is unauthorized. The DHS promulgated a rule in 2007 that would have imputed constructive knowledge to an employer who received either a “no-match” letter from the Social Security Administration (SSA) or a DHS notice. 72 Fed. Reg. 45611 (August 15, 2007). The rule would have provided a safe harbor to an employer if it took the following steps to remedy the no-match within 90 days. The employer first checks its own records to determine whether there is a typographical error or similar clerical error. If it’s not the employer’s error, the employer asks the employee to confirm the information. If the employee says that the information is incorrect, the employer must correct its records and send the correct information to the SSA. If the employee insists that the information he or she gave to the employer is correct, the employer must request the employee to resolve the discrepancy with the SSA. If the employer is unable to verify with the SSA that the erroneous information has been corrected within 90 days, the employer must allow the employee to present new verification documents without relying on the documents that created the mismatch. The regulation was stayed as a result of a challenge in federal court, and the rule was finally rescinded.

In light of the vacuum resulting in the rescinding of this regulation, what guidance can employers rely on? Paul Virtue, former General Counsel of the INS, issued a letter stating that a no-match letter from the SSA did not, standing on its own, provide notice to the employer that the employee is not working without authorization in the US. Letter, Virtue, General Counsel, INS HQCOU 90/10.15-C (Apr. 12, 1999), available on AILA InfoNet at Doc. No. 01061431 (posted on June 14, 2001). However, in the same letter, Mr. Virtue stated that a subsequent action or inaction by the employer, after receipt of such a letter, would be viewed under the “totality of circumstances” in determining whether the employer possessed constructive knowledge of whether the employee was authorized or not in the US. Notwithstanding, employers must not be too hasty in terminating employees if they receive no match letters.


A recent decision on the precise issue of no-match letters, Aramark Facility Services v. Service Employees International, 530 F.3d 817 (9th Cir. 2008), sheds more clarity on whether the employer has constructive knowledge. There, the employer upon receiving no-match letters from the SSA gave its affected employees three days from the post mark of its letter to either get a new social security card or a receipt from the SSA that it has obtained a new one, and if the employee produced a receipt, the employee had 90 days to submit the new card. Those employees who could not comply with this demand were fired, but were told that they could be rehired if they obtained the correct document. Moreover, the employer did not have any specific basis to believe that the employees who were the subject of the no match letters were not authorized to work, and each of these employees had properly complied with the I-9 verification requirements at the time of their hire. The Ninth Circuit had to decide whether to set aside an arbitrator’s award under a narrow exception that the award violated public policy in ordering back pay and reinstatement as the firings were without cause. Aramark’s main argument under the public policy exception was that if it continued to employ these workers it would be sanctioned for knowing that they were not authorized to work in the US. The Ninth Circuit disagreed with the district court’s decision setting aside the arbitrator’s award and held that the mere receipt of no-match letters from the SSA without more did not put Aramark on constructive notice, and forcefully stated that by its own admission the SSA has acknowledged that “17.8 million of the 430 million entries in its database (called “NUMIDENT”) contain errors, including about 3.3 million entries that mis-classify foreign-born U.S.citizens as aliens.” The Ninth Circuit, which relied on Collins Food International, further noted that employers do not face any penalty from SSA, which lacks an enforcement arm, for ignoring a no-match letter. Furthermore, the Ninth Circuit also gave short shrift to Aramark’s second argument that the employee’s reaction to the notification to take corrective action imputed constructive knowledge on the ground that the arbitrator found no proof of any employee having undocumented status as well as to the fact that the employer’s demand to take corrective action was even more demanding than the DHS’s proposed 2007 regulations. Finally, the Ninth Circuit refused to upset the arbitrator’s award in failing to consider that Aramark had offered to rehire the workers if they came back with the corrected document even after the time frame that it had stipulated in its notification to its employees.

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number “no-match” letters, http://www.justice.gov/crt/about/osc/htm/SSA.php, which provide useful nuggets on what one can do and one cannot do when an employer receives a no-match letter.

DO:

•Recognize that name/SSN no-matches can result because of simple administrative errors.

•Check the reported no-match information against your personnel records.

•Inform the employee of the no-match notice.

•Ask the employee to confirm his/her name/SSN reflected in your personnel records.

•Advise the employee to contact the SSA to correct and/or update his or her SSA records.

•Give the employee a reasonable period of time to address a reported no-match with the local SSA office.

•Follow the same procedures for all employees regardless of citizenship status or national origin.

•Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.

•Submit any employer or employee corrections to the SSA.

DON’T:

•Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.

•Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.

•Attempt to immediately re-verify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.

•Follow different procedures for different classes of employees based on national origin or citizenship status.

•Require the employee to produce specific documents to address the no-match.

•Ask the employee to provide a written report of SSA verification.

In conclusion, an employer walks on thin ice upon receiving an SSA no-match letter, and is also caught within the cross currents of the conflicting policies of two agencies. While ICE may require an employer to take action upon receiving a “no match” letter, leading to the employee’s termination, the DOJ’s Office for Special Counsel may find that the employer has engaged in discriminatory practices. It is thus incumbent upon an employer in such a situation to consult with experienced immigration counsel to safely navigate through such murky waters by designing employer policies that would be consistently applied each time the employer receives a no-match letter.

Substantial portions in this blog post have been extracted from KEEPING TRACK: SELECT ISSUES IN EMPLOYER SANCTIONS AND IMMIGRATION COMPLIANCE by Gary Endelman and Cyrus D. Mehta, https://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus20101218204951#_ftn27

Cyrus Mehta

Victory in El Badrawi V. USA: Narrowing the Disconnect Between Status and Work Authorization

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In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless extremely significant as it provides the stepping stone for other courts to also be similarly persuaded.

The Department of Homeland Security, and the former Immigration and Naturalization Service, have always taken the position that being authorized to work in the US is not the same thing as being in a lawful status. Moreover, the benefits granting agency within the DHS, the United States Citizenship and Immigration Services, has long drawn a distinction between maintaining lawful status and being lawfully present in the United States.  For example, an applicant for adjustment of status, whose underlying nonimmigrant L or H status has expired, will not be considered unlawfully present for purposes of triggering the 3 and 10 year bars under INA § 212(a)(9)(B) but will still not be considered to be in lawful status even though this applicant is authorized to work. This unfortunate individual might even be amenable to removal as a deportable alien pursuant to INA §237(a)(1)(C), see USCIS Consolidated Guidance on Unlawful Presence, http://bit.ly/c9xHs9.

The holding in El Badrawi is narrow, and has been rendered in the context of a claim against the government for a false arrest of an employee while he was seeking an extension of his H-1B visa status. In dismissing the government’s motion for summary judgment, the court reaffirmed its prior holding in Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008) (El Badrawi 1), http://www.bibdaily.com/pdfs/El%20Badrawi%209-22-08.pdf, where the plaintiff claimed he was falsely arrested while an extension to extend H-1B status filed by his employer, University of Connecticut, was pending. . The court in El Badrawi 1 found the government’s position “bewildering” that the plaintiff was entitled to work in the United States pursuant to 8 CFR § 274a.12(b)(20) but not entitled to be physically present in the United States. In its most recent holding, which we will refer to as El Badrawi II, the court came down more strongly in favor of the plaintiff. The court’s opinion revolves around the meaning of 8 CFR § 274a.12(b)(20), which the court aptly summarized as follows:

A nonimmigrant alien [who was admitted under one of various forms of work-based visas, including an H-1B visa] whose status has expired but who has filed a timely application for an extension of such stay….[is] authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay.

The government contended that this regulation only applied to an alien’s authorization to work in the US but it did not extend to the alien’s authorization to remain in the US. The government also asserted that it always had the discretion to arrest, detain and remove such an alien. However, Judge Janet C. Hall, who wrote the opinion, gave short shrift to the government’s interpretation of this regulation. Although a government agency is entitled to its interpretation of its own regulation, such deference can be set aside if it is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997). According to Judge Hall, “[t]he fact that section 274a.12(b) pertains solely to aliens whose immigration status is based and conditioned upon their need to work in the country strongly indicates that the two rights go together here. An extension of only the right to work, without the right to remain in the country, is at odds with the nature and purpose of the affected work-based visa programs.”

In the absence of any policy guidance from the government on this issue, Judge Hall also relied on a USCIS “Customer Guide” pamphlet, which clearly advised the public that if the application for an extension is received before one’s status has expired, “you may continue your previously approved activities in the United States (including previously authorized work) for a maximum period of 240 days.” This permission, according to Judge Hall, was not just limited to work but also to all “previously approved activities,” such as being present and temporarily residing in the US.

More significantly, the court also held that the government’s proposed interpretation raised “grave” due process concerns. The fact that the DHS could arrest a law abiding alien who was complying with the rules was tantamount to a deprivation of liberty without due process under the Fifth Amendment. Here, the plaintiff, a Lebanese national, was arrested and detained from October 29, 2004 until December 22, 2004, when he was escorted out of the country after receiving a voluntary departure order from an Immigration Judge. Moreover, here there was no pre-enforcement notice provided to the plaintiff, and if there was any notice through the USCIS Customer Guide, it “plainly supports and fosters the expectation that aliens in El Badrawi’s position may remain in the country while awaiting a determination on their timely filed extension applications.” Judge Hall also noted the amicus brief of the American Immigration Council and the American Immigration Lawyers, which “highlights the substantial interest that employers have in the administration of the H-1B visa program, the lack of notice provided by the regulation at issue, and the hardship that the government’s proposed interpretation would impose upon them.”

While El Badrawi II may only apply to the plaintiff and is also limited to the circumstances of one in H-1B visa status timely applying for an extension of his or her status through the same employer, it does not mean that other persons in similar unfortunate circumstances as Mr. El Badrawi cannot use the same arguments in other administrative or litigation forums. After all, 8 CFR §274a.12(b)(20) provides the same work authorization rights to other nonimmigrant visa holders who are seeking extensions of their L-1, O, and TN statuses, to name a few. Also, if a person files an I-485 application for adjustment of status to permanent residence, he or she is also entitled to work authorization under a different regulatory provision, 8 CFR § 274a.12(c)(9), and if work authorization has been applied for and granted, the regulation states that such an alien will not be deemed to be an “unauthorized alien.”

How about an H-1B worker who is seeking an extension of H-1B status through a new employer? While the regulatory provision, 8 CFR §274a.12(b)(2), no longer applies, this person can invoke the protection of something much stronger – the statute itself. INA § 214(n) permits such a person the ability to “port” to a new employer upon the filing by the prospective employer of a new H-1B petition. While the H-1B petition is pending, such a person can accept employment with the new employer who filed the H-1B petition. This person too if arrested, detained and placed in removal can make similar arguments, which is that INA § 214(n) authorizes him or her to work in the US during the pendency of the petition. Such a person may “port” even if there was a gap in H-1B status, and could make the claim that the ability remain employed in the US also allows him the right to remain here, see H-1B Portability When There Is A Gap In Status.

And why should the logic of El Badrawi I and II only hold when the affected alien is authorized to work under a regulatory or statutory provision? There are several situations where a person can legitimately extend or change status even if there is no authorization to work. Thus, a person in B-1 status can apply for an extension of that status. Or an F-1 student can apply for a change to H-1B status, or one who is previously in H-1B status may change to H-4 status because she may have a spouse in H-1B status and has taken a break in her work because she has just given birth to a baby. Why should a new mother who is legitimately changing status from H-1B to H-4 be susceptible to arrest, detention and removal just because there is no provision authorizing her to work in the US? Indeed, this mother is changing status to H-4 dependent precisely because she does not choose to work during this stage in her life, but the H-4 status will still enable her to lawfully reside in the US with her spouse and her child. Providing the government with unbridled discretion to arrest, detain and remove her while she has filed an application to change status would also gravely offend the Fifth Amendment’s Due Process Clause.

A forceful due process argument can be made that if there is an established statutory or regulatory procedure to change or extend status, the government should not be permitted to deprive the person of his or her liberty during this interim period when it would be unable to do so prior to the status expiring or after the new status has been granted. The court in El Badrawi II relied on Zadvydas v. Davis, 533 U.S. 678 (2001), which has held that “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.” In Zadvydas v. Davis, the Supreme Court further held that indefinite detention is unconstitutional following a removal order beyond 6 months six months of detention because “Freedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that Clause protects.” Also, take note of these powerful words from the Supreme Court in Bridges v. Wixon, 326 U.S. 135, 164 (1945), “The impact of deportation…is often as great if not greater than the imposition of a criminal sentence. A deported alien may lose his family, his friends and his livelihood forever. Return to his native land may result in poverty, persecution and even death.” 

Finally, the INA never defines “status,” and it may be worth advocating for a unified definition of status. One needs to be in status to avoid removal, but also to apply for other benefits such as adjustment of status. In Bokhari v. Holder, 622 F.3d 357 (5th Cir. 2010), which Judge Hall distinguished, the issue was whether a person who had applied for an extension of his L-1A status, triggering 8 CFR §274a.12(b)(2), would be eligible to file an I-485 adjustment of status application. Mr. Bokhari was not facing removal; rather he argued that he should have been considered to have been maintaining status in order for him to be eligible to file an I-485 application. The regulation in question in Bokhari v. Holder was 8 CFR § 245.1(d)(1)(ii), which seemed to preclude Mr. Bokhari from demonstrating that he was maintaining status. 8 CFR § 245.1(d)(1)(ii) defines “lawful immigration status” for purposes of I-485 eligibility as an alien “whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter 1.” Hence, one whose status had not been extended, such as Mr. Bokhari’s, was not in lawful immigration status. In a prior blog post, The Enigma of Bokhari v. Holder: Work Authorization Is Not Status, Gary Endelman and this writer argue that 8 CFR § 245.1(d)(1)(ii) may be ultra vires the statute, INA §245(c), as it does not allow persons who are in the process of seeking an extension of their status to demonstrate that they are not in “unlawful immigration status.” Just as persons like Mr. El Badrawi should not fear arrest, detention and removal while they have applied for an extension of their H-1B status, so should they be able to demonstrate eligibility for filing an I-485 application for adjustment of status.

Such a unified theme can be left for another day, but at least for the present after the victory in El Badrawi II, it is heartening that the many thousands of H-1B visa holders who legitimately apply for extensions of their status have a good argument to make in the event of an arrest or being placed in removal proceedings.

Cyrus Mehta

DEPORTING A US CITIZEN CHILD? TAKE A LEAF OUT OF THE STATE DEPARTMENT’S BOOK ON BIRTHRIGHT CITIZENSHIP

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By Cyrus D. Mehta

This week, while we have all been stunned at the way Customs and Border Patrol (CBP) sent a four year old US citizen child packing out of the country to Guatemala, http://edition.cnn.com/2011/OPINION/03/23/navarrette.child.deported/?hpt=Sbin, even though her parents lived in the US, we can take some comfort that the State Department scrupulously adheres to birthright citizenship enshrined in the 14th Amendment of the US Constitution.

Contrary to the common notion -that parents come to the US to give birth to children so that they may become US citizens – some non-US citizen parents do not desire that their minor children remain US citizens, notwithstanding their birth in the US. Their main motivation is that if they choose not to live in the US permanently, they would rather that the child enjoys the citizenship of their nationality so that he or she does not suffer any potential impediments later on in that country, such as the inability to vote, attend educational institutions or stand for elected office. Often times, the country of the parent’s nationality and the United States lay claims on the child’s citizenship, and this may often create conflicts between the citizenship laws of the two countries, particularly if the child will return to its parents’ country and live there.

For instance, a child born to Indian citizen parents in the US can still claim to be an Indian citizen by descent, even though India does not otherwise permit dual nationality, provided that the parents declare that the child does not hold the passport of another country, http://www.mha.nic.in/pdfs/ic_act55.pdf. This may not be possible if the child is born in the US, and thus a US citizen and potentially an Indian citizen, since the State Department’s regulation provides that “[i[t is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid passport.” See 22 CFR §53.1. Therefore, if the child obtains an Indian passport while in the US, it will still need to depart the US with a US passport, and this may conflict with the Indian requirement of submitting a declaration that the child does not hold the passport of another country.

Moreover, even after the child has left the US, unless the child can effectively renounce US citizenship at a US Consulate (and that too could be problematic as a child cannot make a knowing renunciation), the child will most likely have to return to the US on the US passport. Regarding the renunciation of US citizenship by a minor, the State Department’s Foreign Affairs Manual at 7 FAM 1292 clearly states that parents or guardians cannot renounce or relinquish the citizenship of a child who acquired US citizenship at birth. The relevant extract from 7 FAM 1292 is worth noting:

  1. occasionally, CA/OCS or a post abroad will receive an inquiry from the parent of a child born in the United States who acquired US citizenship at birth protesting the “involuntary” acquisition of US citizenship.

  1. Jus soli (the law of the soil) is the rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes. The 14th Amendment states, in part, that: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

  1. In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court examined at length the theories and legal precedents on which U.S. citizenship laws are based and, in particular, the types of persons who are subject to U.S. jurisdiction.

  1. Children born in the United States to diplomats accredited to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it [citation omitted].

  1. Parents or guardians cannot renounce or relinquish the U.S. citizenship of a child who acquired U.S. citizenship at birth.

While the FAM leaves open the possibility for a minor to renounce citizenship, there must be a determination by the consul whether the minor had the requisite maturity and knowing intent, free from parental influence. According to 7 FAM 1292(i)(3), “Minors who seek to renounce citizenship often do so at the behest of or under pressure from one or more parent. If such pressure is so overwhelming as to negate the free will of the minor, it cannot be said that the statutory act of expatriation was committed voluntarily. The younger the minor is at the time of renunciation, the more influence the parent is assumed to have.” 7 FAM 1292(i)(2) further states, “Children under 16 are presumed not to have the requisite maturity and knowing intent.” It should be noted, though, that even if a child successfully renounces US citizenship, upon reaching 18 years, the child has a six-month opportunity to reclaim US nationality. See INA § 351(b).

The deportation of the 4 year old child is one recent example. CBP’s sister agency, Immigration and Customs Enforcement (ICE), has also been notorious for detaining and deporting US citizens in recent times, http://stateswithoutnations.blogspot.com/2010/07/us-citizens-detained-and-deported-2010.html despite an ICE memo admonishing its officers to treat claims by US citizens with care and sensitivity, http://www.ice.gov/doclib/detention-reform/pdf/usc_guidance_nov_2009.pdf. In a time when a very vocal minority is advocating for the repeal of birthright citizenship, government agencies in charge of enforcing immigration laws ought not to be swayed by the passions of the day, and must scrupulously ensure that a child born in the US, regardless of the parents’ status, is treated as a US citizen under the 14th Amendment of the US Constitution, like the State Department does.

Cora-Ann Pestaina

BALCA ON USING A RANGE OF EXPERIENCE IN RECRUITMENT

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Cora-Ann Pestaina

As the Board of Alien Labor Certification Appeals (BALCA) continues to pump out decision after decision, it can be difficult to find time to review each case. But I am constantly being reminded that reviewing that one BALCA decision could truly mean the difference between approval and denial. I recently came across the BALCA decision in CCG Metamedia, Inc., 2010-PER-00236 (Mar. 2, 2011) and it raised some red flags with regard to previous recruitment practices that have not faced objection from the DOL. 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.

In CCG Metamedia, the employer filed an Application for Permanent Employment Certification (ETA Form 9089) for the position of “Technical Design Director” indicating that the job opportunity required 2 years of experience. In response to an Audit Notification, the employer submitted evidence of recruitment, which indicated that the employer had placed advertisements in a newspaper of general circulation, a local newspaper and on the employer’s website stating that the job opportunity requires “2-4 years of experience.” The Certifying Officer (CO) denied certification on grounds, which included that these advertisements contained experience requirements in excess of those listed on the employer’s PERM application.

The employer filed a Request for Reconsideration arguing that the “Technical Design Director” position indeed requires “2-4 years of experience” but that the ETA Form 9089 requires the employer to list a whole number and does not provide space to list a range of experience, thus forcing the employer to indicate only 2 years of experience. The employer also relied on Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009). In Federal Insurance, the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the Form for such language. BALCA held that a denial in that instance would offend fundamental fairness and due process. The employer in CCG Metamedia argued similarly that because the ETA Form 9089 does not accommodate its ability to express the requirement of 2-4 years minimum experience, it would “offend fundamental due process to deny the PERM application for failure to write the attestation on the ETA Form 9089.”

In forwarding the case to BALCA, the CO asserted, in a letter of reconsideration included in the Appeal File, that the employer’s advertisements did not represent the actual minimum requirements as required under 20 C.F.R. §656.17(i)(1). The CO argued that the employer’s requirement of “2-4 years of experience” communicated to the job applicant “a preference” that he or she possess more than 2 years of experience in order to qualify for the position and thus may have discouraged applications from US workers who met the minimum requirements (i.e. 2 years of experience). The CO further argued, citing The Frenchway Inc., 2005-INA-451, slip op. at 4 (Dec. 8, 1997), that BALCA has held that “employer preferences are actually job requirements.” The CO dismissed the employer’s arguments with regard to the ETA Form 9089 simply stating that the case was not about the shortcomings in the ETA Form 9089.

BALCA affirmed the CO’s denial of the case and held that “stating a range of experience in the recruiting materials that goes above the minimum experience requirements stated in the application inflates the job requirements in the job advertisements and does not accurately reflect the employer’s attestations on the ETA Form 9089.” BALCA cited the regulations at 20 C.F.R. §656.17(f)(6), which require that a newspaper advertisement “[n]ot contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089” and held that the employer was in violation of the regulations. BALCA agreed with the CO that this case was not about the shortcomings in the ETA Form 9089 but instead, was about the fact that the employer did not conduct an adequate test of the labor market because minimally qualified US applicants were discouraged from applying for the position. BALCA distinguished this case from Federal Insurance where the employer did not know how to comply with the requirement that Kellogg language be included on the ETA Form 9089 and stated that unlike Federal Insurance, in CCG Metamedia, the Form specifically requested the number of months of experience required for the job opportunity and this must be a discrete number, and not a range, because of the fact that the employer must state its actual minimum requirements.

After reading CCG Metamedia, one wonders whether this was correctly decided. The employer argued that its requirement for the job opportunity was indeed “2-4 years of experience” and that it was simply forced to indicate 2 years on the ETA Form 9089. But isn’t it implicit in a requirement of “2-4 years of experience” that the employer’s minimum requirement is 2 years of experience thus making the requirement listed on the recruitment and the ETA 9089 entirely consistent? The employer will clearly accept, at a minimum, 2 years of experience and a person with any level of experience upwards of 2 years (i.e. 2.5, 3 or 4 years) in the relevant area could potentially qualify for the position. The CO and BALCA claim that US workers could have been discouraged from applying for the position because the requirements indicated a “preference” that the job applicants have more than 2 years of experience. But how is this “preference” indicated? How can “[from] 2 [to] 4” be interpreted to mean “more than 2” such that a US worker would be discouraged from applying for the position? The CO and BALCA cited The Frenchway, Inc.’s for its holding that employer “preferences” are indeed requirements. But I would argue that the facts of CCG Metamedia are entirely distinguishable from those of The Frenchway, Inc. where the employer listed its preferences for a foreign language and European contacts. Clearly, a US worker with no foreign language skills and no European contacts could have been discouraged from applying for the position. On the contrary, based on the facts in CCG Metamedia, a US worker with 2 years of experience ought to have considered himself qualified based on the requirement of “2-4 years of experience.”

CCG Metamedia likely seems to imply that employers can no longer advertise seeking “2+” or “5+” years of experience as requiring applicants to have the minimum experience or more would also be perceived as a “preference, ” which will discourage applicants possessing the minimum experience from applying for the position. This would be absurd, but in labor certification land, an employer should now advertise asking for the exact years of experience for the position after CCG Metamedia. Two other recruitment scenarios immediately come to mind.

Take the case of a big corporation, recruiting for professional positions, which places an omnibus advertisement in a newspaper of general circulation indicating that it is “seeking individuals with Bachelor’s or Master’s degrees and relevant experience for the following positions” and lists all the positions, e.g. Software Engineer, Lead Technical Consultant, etc. including a brief description of the job duties for each position. All other requirements under 20 C.F.R. §656.17(f) are met. All additional professional recruitment contains the job requirements specific to each job opportunity, such as “Bachelor’s degree in Computer Science or a related field and 5 years of experience in the offered position or in a position performing similar duties.” In addition, the ETA Form 9089 filed for each particular position indicates the specific job requirements for that position. In light of the holding in CCG Metamedia, will the DOL now deny these PERMs on the basis that the newspaper advertisements violated 20 C.F.R. §656.17(f)(6) and indicated an impermissible range (Bachelors or Master’s degree) which discouraged US workers from applying for the job opportunities?

I would argue that the ‘either/or’ requirement indicated in “a Bachelor’s or a Master’s degree and relevant experience” is not a “range.” Thus, the potential applicant cannot reasonably be confused into thinking that a position requires a Master’s degree when in actuality the employer requires only a Bachelor’s degree. Furthermore, because the ad only states “and relevant experience” it cannot be argued that US workers were discouraged from applying for any of the positions due to a perceived lack of sufficient experience. A US worker with either a Bachelor’s or a Master’s degree and even less than one year of experience should feel encouraged to apply based on the requirements listed in the newspaper advertisement. Since the employer is essentially casting a wider net, it ought to be difficult for the DOL to assert that an adequate test of the labor market was not conducted.

In another scenario, an employer is conducting recruitment for a professional position that requires a Master’s degree in Chemistry and no experience and wants to recruit using a university’s campus placement office as one of the three additional recruitment steps for professional occupations required under 20 C.F.R. § 656.17(e)(1)(ii). The university’s website allows the employer to place its advertisement but requires that certain fields be filled, e.g. job location, job status (full-time or part-time), writing sample required (yes or no), etc. One of the fields asks “experience required?” and forces the employer to pick from a list of choices limited to “0-2 years”, “3-5 years” or “over 5 years.” Based on the holding in CCG Metamedia, if the employer chooses “0-2 years” for this advertisement and then indicates on the ETA Form 9089 that the position requires no experience, the employer will have listed job requirements in excess of the requirements listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6). (Recall that in Credit Suisse Securities (USA) LLC, 2010-PER-00103 (BALCA Oct. 19, 2010) BALCA held that the advertising requirements listed in 20 C.F.R. §656.17(f) for advertisements placed in newspapers of general circulation or in professional journals also apply to website advertisements.) But what if it is not feasible for the employer to conduct a different type of recruitment or to choose a different university’s campus placement office? The employer may be able to protect itself against a CCG Metamedia type denial by indicating in the job description that the job opportunity requires a “Master’s degree in Chemistry and NO EXPERIENCE IS REQUIRED.” It would be difficult for the DOL to argue that US workers with no experience were discouraged from applying for this position.

I was recently confronted with a scenario similar to scenario No. 2 above and based on CCG Metamedia I suggested that new recruitment be conducted. I am reminded that regardless of previous success utilizing a particular method or type of recruitment, we cannot afford to become comfortable with the ever-changing PERM process and that these BALCA decisions provide invaluable insight into continuing to avoid the pitfalls of PERM. For a detailed overview of recent BALCA decisions that provide practice pointers, see Cyrus D. Mehta’s article, ANALYSIS OF SELECTED RECENT BALCA DECISIONS AS PRACTICE POINTERS TO AVOID PERM DENIALS