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

Cyrus Mehta

NATURALIZATION WHILE WORKING ABROAD FOR AN AMERICAN FIRM

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By Cyrus D. Mehta

It is not uncommon for a permanent resident to receive a plum posting for an American corporation overseas or for its subsidiary. This is a frequent occurrence these days in a globalized world, and especially when jobs have become more scarce in the US since the economic downturn. While such an assignment may provide a great boost to the permanent resident’s career, he or she may still wish to preserve the ability to naturalize, but the overseas posting presents a challenge since it may be difficult to maintain continuous residence. One of the key requirements for applying for US citizenship under INA § 316(a) is the need to be physically present for half the time in the US during the qualifying period, which may either be five or three years (if one is married to a US citizen) and to have also resided continuously during this period. The challenges of maintaining residence while on an overseas assignment were addressed in a prior blog, Naturalizing In A Flat World, http://cyrusmehta.blogspot.com/2010/07/naturalizing-in-flat-world.html.

This blog specifically examines the inadequacy of the exception in INA 316(b), which was designed to avoid the need to maintain continuous residence for purposes of naturalizing if a permanent resident is employed by an American firm overseas, or its subsidiary, that engages in the development of foreign trade and commerce of the United States. INA § 316(b) further provides for exemptions when one works overseas for the US government, an American research institution or a public international organization. The USCIS requires the applicant to file Form N-470, http://1.usa.gov/h8HTyj, to seek this exemption.

So far so good. Unfortunately, very few can avail of this exception since INA § 316(b) also requires that the individual be physically present and residing in the US, after being admitted as a permanent resident, for an uninterrupted period for at least one year. One would think that a brief trip to Canada, even for a few hours, would still qualify as an uninterrupted period of at least one year. Wrong, according to the United States Citizenship and Immigration Services. In order to qualify, the permanent resident must demonstrate that he or she never left the US for even a single day (or less if it was to a neighboring country like Mexico or Canada) during that 365 day period. Even a single departure precludes the permanent resident from qualifying for this exception.

We can surely advocate for a re-interpretation of what constitutes an uninterrupted period of one year. Why should an “uninterrupted period of one year” require the individual to stay put in the US for an entire 365 day stretch? Let’s dig a little deeper. In Phinpathya v. INS, 464 US 183 (1984), the Supreme Court interpreted another unrelated statute, INA § 244(a)(1), with similar but not identical language, which granted suspension of deportation to a non-citizen who inter alia “has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application..”

The Supreme Court in Phinpathya reasoned that the ordinary meaning of these words does not admit any exception, and that the individual who qualifies for suspension of deportation must have been physically present without having departed during the 7 year period. Following the Supreme Court decision, the Commissioner of the then Immigration and Naturalization Service adopted a strict interpretation of the physical presence requirement under INA § 319(b) in Matter of Copeland, 19 I&N Dec. 788 (Comm’r 1988) and Matter of Graves, 19 I&N Dec. 337 (Comm’r 1985).

The author gives credit to David Isaacson for pointing out that the INA § 316(b) language and the INA § 244 language at issue in Phinpathya are a little bit different. § 316(b) refers to “the case of a person who has been physically present and residing in the United States, after being lawfully admitted for permanent residence for an uninterrupted period of at least one year, and who thereafter is” in one of the protected classes. The § 244(a)(1) language at issue in Phinpathya referred to an applicant who “has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application,” which is not quite the same thing. § 316(b) does say “physically present,” but it uses the word “uninterrupted” rather than the word “continuous”. Much of Phinpathya, according to Isaacson, goes on and on about the meaning of “continuous”. Although “uninterrupted” sounds similar, that doesn’t necessarily mean it should be interpreted in exactly the same way—especially because much of § 316 uses the word “continuous”, so the distinction between “continuous” and “uninterrupted” presumably means something.

Incidentally, INA §244(a)(1) no longer exists. The current version of suspension of deportation, now known as cancellation of removal, allows the individual to have been out of the US for a period of not longer than 90 days on any trip and for an aggravated period of not more than 180 days to still qualify for this relief. See INA § 240(d)(2). Even long before cancellation of removal replaced suspension of deportation, Congress restored the “brief, casual and innocent” departure exception to suspension applicants, as set forth in Rosenberg v. Fleuti, 374 U.S. 183 (1963) in the Immigration Reform and Control Act of 1986. The rationale for the Service to cling on to the rigid interpretation is that Congress never amended 319(b), while it explicitly provided an exception for applicants seeking relief from deportation Prior to Phinpathya, the interpretation of 316(b) was more in line with the “brief, casual and innocent” test, and the old pre-Phinpathya interpretation ironically still remains. See USCIS Interpretation 316.1(c), http://1.usa.gov/fBeMMU. One can only assume that the USCIS has inadvertently failed to withdraw these interpretations and has not left them there purposefully.

Ideally, it would be simple for Congress to fix it. We are not asking for Comprehensive Immigration Reform here ! But we know that Congress may never act. On the other hand, there is no reason for lawyers not to advance a more generous interpretation of the uninterrupted physical presence requirement under INA § 319(b) to allow brief trips outside the US in an age when frequent overseas travel has become the norm. It is impossible for a high level executive to remain land locked within the US for 365 days. Apart from the two decisions of the INS Commissioner in Graves and Copeland, no federal court has interpreted this provision. In addition to the distinction of the terms “continuous” and “uninterrupted,” from a policy perspective, it makes no sense to analogize 316(b), which furthers our commercial and trade interests overseas, with a defunct provision that allowed undocumented non-citizens to seek a waiver from deportation. Moreover, the term “uninterrupted” appears nowhere else in the statute, except in § 316(b) and in a parallel naturalization provision, INA § 317, for religious workers who work overseas. Why cannot “uninterrupted” allow for short trips that do not meaningfully interruptive of physical presence? Such an interpretation, while consistent with the “brief, casual and innocent” test set forth by the Supreme Court in Rosenberg v. Fleuti to the defunct “entry” doctrine, can also further the trade and commerce of the United States, one of the goals of INA § 316(b), by permitting the executive to take up an overseas assignment for an American firm without fearing the loss of the coveted naturalization benefit at the end of the assignment.

As a practical matter, though, until Congress provides a fix, or there is a sensible reinterpretation of the INA § 319(b) exception to continuous residence, one should only file Form N-470 upon meeting the uninterrupted 365 day requirement.

David Isaacson

POTENTIAL IMMIGRATION IMPLICATIONS FOR SAME-SEX COUPLES OF JUSTICE DEPARTMENT’S ANNOUNCEMENT REGARDING DOMA SECTION 3

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By David A. Isaacson

The Justice Department announced Wednesday, that, based in part on the recommendation of Attorney General Eric Holder, President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, and will no longer defend it in court. This is because, facing litigation within the jurisdiction of a circuit court of appeals (the Second Circuit) that has never ruled on the appropriate standard of review to be applied to laws concerning sexual orientation, the Administration determined that a heightened standard of review is appropriate, and that Section 3 of DOMA cannot withstand review under such a standard (although the Justice Department had previously argued that Section 3 could survive the looser rational-basis test applicable under the precedent of some courts of appeals). The announcement is available online at http://www.justice.gov/opa/pr/2011/February/11-ag-222.html, and a related letter sent by Attorney General Holder to Speaker of the House John Boehner is available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. The announcement states, however, that Section 3 of DOMA will remain in effect until either it is repealed or “there is a final judicial finding that strikes it down,” and until such time “the Executive Branch will continue to enforce the law.” The letter to Speaker Boehner states even more specifically that “the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”

Section 3 of DOMA, 1 U.S.C. § 7, provides that for purposes of federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Among other consequences under federal law, this means, according to the consistent interpretation of USCIS and the former INS, that a same-sex spouse cannot be granted immigration benefits by virtue of his or her marriage to a U.S. citizen or lawful permanent resident. This aspect of DOMA, as interpreted in a 2003 memorandum by William Yates of USCIS, was discussed in a March 2004 web article by Cyrus D. Mehta (https://blog.cyrusmehta.com/News.aspx?MainIdx=ocyrus200591724845&Month=&Source=Zoom&Page=1&Year=All&From=Menu&SubIdx=964).

The recent Administration announcement suggests that, following successful litigation, same-sex spouses whose marriages are recognized by their state of residence may find themselves able to seek immigration benefits based on their marriages, although this will for the moment not be possible without litigation given the Administration’s position that Section 3 of DOMA will continue to be enforced until a court declares it unconstitutional. Litigation is not certain to succeed, however, because Congress or individual members of Congress may intervene to defend the constitutionality of DOMA. Indeed, one of the purposes of the statutory provision, 28 U.S.C. § 530D, that required Attorney General Holder’s notification to Speaker Boehner was to enable such defense by a House of Congress or individual members, and the Attorney General said of the pending challenges to Section 3 of DOMA in his letter that Justice Department attorneys “will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.” Moreover, there is some risk that any challenge to Section 3 of DOMA could be less likely to succeed in the immigration context than in other contexts, given the “plenary power” doctrine and the history of judicial deference to Congress in this context – as in Fiallo v. Bell, 430 U.S. 787 (1977), where the Supreme Court upheld a provision of the INA that discriminated against illegitimate children – although it is also possible that Section 3 of DOMA will be voided in all contexts by a judicial holding that it is, as a general matter, unconstitutional.

Given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be quite risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student). This risk and others were discussed in more detail in a July 8, 2010 advisory from Gay and Lesbian Advocates and Defenders (GLAD) following their victory in a district court case challenging Section 3 of DOMA, http://www.immigrationequality.org/template.php?pageid=1115.

Same-sex spouses of U.S. citizens or lawful permanent residents who are already in removal proceedings, however, should consider seeking adjustment of status under INA § 245 based on an I-130 petition filed by their spouse if they are otherwise eligible for that relief, and/or cancellation of removal under INA § 240A(b) based on the hardship to their spouse if they were to be removed if they are otherwise eligible, and preserving the issue for judicial review. Similarly, same-sex couples who are not yet married could consider moving to a state that recognizes same-sex marriages if they do not reside in one already, entering into a state-recognized marriage, and seeking adjustment of status or cancellation of removal for the non-U.S.-citizen spouse based on that marriage—bearing in mind that like any other marriage, a same-sex marriage could only be a basis for immigration benefits if it were established to the satisfaction of the immigration authorities that such a marriage was bona fide, that is, was truly meant to establish a shared life together rather than being done purely for immigration purposes, and that in the case of adjustment of status based on a marriage entered into while one spouse is in removal proceedings, INA sections 204(g) and 245(e) would require a showing by clear and convincing evidence that the marriage was not entered into for immigration purposes. The concerns raised by GLAD in its previous advisory continue to apply, however, and it is therefore this author’s view that the preferable course in cases where removal proceedings have not already been commenced would generally be to await further developments before filing any petition or application based on a same-sex marriage.

Cyrus Mehta

EAWA HAS SUNSET

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By Cyrus D. Mehta

Does anyone remember EAWA, the Employ American Workers Act and its effect on H-1B petitions, http://bit.ly/hDQnHd?

This legislation was passed on February 17, 2007 and was set to sunset in two years. Congress has not extended this provision even though the second anniversary passed on February 16, 2011.

The law created additional attestation requirements on employers filing H-1B visa petitions who received funds through the Troubled Asset Relief Program (“TARP”), Pub. L. 110-343, Div. A, Title I, or under section 13 of the Federal Reserve Act (collectively referred to in this document as “covered funding”).

The additional attestations required a demonstration that the employer had not displaced US workers and had taken steps to hire US workers prior to filing the Labor Condition Application underlying the H-1B petition. As a result, many companies who received funding under TARP shied away from filing H-1B petitions. Many F-1 students who had been hired after graduating with MBAs from top universites were terminated when the employer did not file the H-1B petition.

EAWA was a blatant exercise in American protectionism. While these attestations were similar to the attestations that H-1B dependent employers have to also make, entities that received TARP funding or funding under section 13 of the Federal Reserve Act could not even get an exemption from these attestations if they hired an exempt worker – one who receives a salary of $60,000 or more or has a Master’s degree.

Thank goodness that the EAWA has sunset so that the best and brightest from all over the world, especially foreign students who have graduated from American universities, can be employed like other H-1B workers at institutions that need their talent to recover from the Great Recession, and thrive and prosper.

PS. The latest version of Form I-129 H-1B Data Collection Supplement still asks whether the H-1B petitioner has received TARP funding when the legal basis to ask this question no longer exists.

Cyrus Mehta

The LCA in the Age of Telecommuting

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By Cyrus D. Mehta and Myriam Jaidi

An H-1B employee has a job with a company based in New Jersey. Her job can, however, be performed remotely from virtually anywhere in the United States or the world. So long as she has good internet access, she can sign in to her employer’s server and perform her work as if she were in the office. She usually works at her office, but has decided to work from home in Pennsylvania for two months. When her boyfriend’s mother, who lives in California, becomes ill, she and her boyfriend go out to care for her, staying for six weeks. She then goes on a cruise in US waters, still telecommuting to work. She has no work-related duties in Pennsylvania or California (or out in US waters during the cruise), such as working with clients there, and will be effectively telecommuting to the New Jersey office. What would her employer need to do in order to comply with the Department of Labor’s regulations for H-1B workers, specifically with regard to the Labor Condition Application (LCA) rules?

As a background, the LCA is to an H-1B worker like a leash is to a dog. The LCA ensures that notice is provided to US workers about the fact that an H-1B worker is being sought, the occupational classification, the wages offered, the period of employment, locations at which the H-1B worker will be employed, and that the LCA and accompanying documents are available for public inspection. See 20 CFR § 655.734.

Telecommuting (or “telework” as labeled by the US government) has become more and more prevalent. (See studies here, http://tinyurl.com/6jcc7ww.) Telecommuting employees raise important questions and issues in the immigration context, especially with regard to the Labor Condition Application required for H-1B nonimmigrant workers.

The first issue raised under the facts above is whether a new LCA is required for each location, and if so, whether the posting should be done in the employee’s home and in her boyfriend’s mother’s home.

These situations raise interesting concerns about how (and where) work is “actually” performed (as stated in the regulations) in a global economy increasingly characterized by telecommuting. Can it be argued that because the employee is logging into the employer’s system in New Jersey, the work is actually being performed in New Jersey? Not likely given the structure of the regulatory scheme, but it is something that should be considered in the global economy.

The laws governing the LCA and H-1B processes are out-dated. They do not recognize, and in fact guidance issued by USCIS in 2010, available at http://tiny.cc/z3ZU8, makes clear that some government agencies view with skepticism, the global economy and the increasing frequency of telecommuting.

The LCA and the attestations an employer makes when submitting one were developed as a means to protect wages and working conditions, and to ensure that US workers are made aware of the hiring of H-1B professionals (which makes the concept of posting an LCA in someone’s home or vacation hotel room somewhat absurd). The regulatory scheme is largely location-oriented. Violation of the regulatory framework may result in fines, debarment from participation in the LCA (and thus H-1B) process, and further investigations. Thus, even where a company pays the required wage for any location and has no intent of violating the procedures, a failure to comply with the specific technical requirements, even where compliance seems absurd, may result in penalties.

USCIS has become more location-oriented in its analysis of H-1B petitions. USCIS now examines worksite issues more closely and, with the recently issued Form I-129, has begun to request greater detail on worksites and itineraries for all H-1B petitions. The agency’s interest stems in part from its concern with the existence of a proper employer-employee relationship to support an H-1B petition. (For more information, see From Problem to Springboard: Tips on Using the Neufeld Memorandum in Support of H-1B Petitions, available at http://tinyurl.com/33t7fkz.) Such a relationship is defined in part by where an employee is working and whether the employer has control over the employee’s work at that location. The companies currently subjected to the highest scrutiny are those that place workers at end client sites (i.e., work locations not controlled by the petitioning employer) to perform services/work. But the concerns raised in that category may spread to other circumstances, such as the employee telecommuting from home.

The definitions addressing where an H-1B employee works were developed originally with a focus on the worker’s actual physical location, assuming that the job duties would need to be performed in a particular location. Gathering statistics and issuing prevailing wage determinations require pinpointing a particular city or geographic area. The entire prevailing wage framework is place-based. 20 CFR 655.715 provides the following definitions:

Area of intended employment means the area within normal commuting distance of the place (address) of employment where the H–1B nonimmigrant is or will be employed. …

Place of employment means the worksite or physical location where the work actually is performed by the H–1B, H–1B1, or E–3 nonimmigrant.

These definitions are vague and do seem to leave room to argue that an H-1B worker who can be anywhere but works through the employer’s location via the internet (thus the work arguably “actually is performed” at the employer’s location), is always within “normal commuting distance” so long as the employee has proper internet access. If all that the worker needs is a computer and an internet connection to perform the work, then it would be most logical to post the LCA where the employer’s server is located! To go back to our hypothetical and show how absurd it can be, imagine our H-1B telecommuter embarking on a voyage on a cruise ship for more than 30 days from San Francisco, CA to Anchorage, Alaska. Each time the ship enters a location, which is not within commuting distance from the original location posted on the LCA, a new LCA will need to be posted on the cruise ship. So, her employer, who is a stickler about compliance, posts an LCA with a San Francisco, CA location, which is where the ship starts its voyage. By the time, the cruise ship sails up the waters adjoining Oregon and Washington, new LCAs will need to be obtained and posted on the cruise ship. Once the cruise ship is in Canada, we can assume that the DOL’s LCA regulations do not apply in foreign territories, but with the DOL you can never tell as it passionately attempts to expansively interpret its rules. Once the ship reaches Alaska, more rounds of LCA’s will need to be posted (as Alaska is a huge territory) until its final destination in Anchorage, Alaska.

Nevertheless, using the employer’s address even where the employee telecommutes because the work is being done virtually at the employer’s location has not been tested. This problem does not arise in the PERM labor certification process with roving employees, because an employer can obviate the problem by using headquarters as the base from which to conduct recruitment. See Cora-Ann Pestaina’s article PERM and the Roving Employee, available at http://tinyurl.com/64dhcv5. A DOL auditor who reviews a company’s LCA public access files may not accept this 21st century application of the policies and definitions. Therefore, however absurd it may sound, it might still be advisable to file an LCA for the worker who telecommutes, and have the worker post the LCA in two conspicuous locations in his or her home or the location from which he or she is telecommuting. In the alternative, the LCA notice provision may be satisfied by an electronic posting directed to employees in the relevant occupation classification. Pursuant to 20 CFR 655.734(a)(ii)(B), such electronic posting may be accomplished:

by any means [the employer] ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its “home page” or “electronic bulletin board” to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer’s newsletter. Where affected employees at the place of employment are not on the “intranet” which provides direct access to the home page or other electronic site but do have computer access readily available, the employer may provide notice to such workers by direct electronic communication such as e-mail ( i.e., a single, personal e-mail message to each such employee) or by arranging to have the notice appear for 10 days on an intranet which includes the affected employees (e.g., contractor arranges to have notice on customer’s intranet accessible to affected employees).

The benefit of electronic posting is that it may protect an employer in situations where the employee is working remotely from various locations (not office sites, but locations such as a relative’s home or vacation spot) for more than 30 days per year, based on the argument that the electronic posting covers all potential locations. There are some general problems with electronic notification – it does not obviate the need to obtain a new LCA when the H-1B telecommutes, nor does it obviate the need to pick an address to indicate on the LCA. Electronic posting only obviates the absurd situation of having an employee post the LCA in his or her home. Furthermore, the rules governing electronic posting are quite vague and thus fraught with risk. The rules do not make clear who has to be notified – all employees everywhere and anywhere who fall within the same “occupational classification” (and the rules do not indicate how narrowly or broadly that should be interpreted) or only those in the “area of intended employment.” Where is that in an economy increasingly characterized by telecommuting?

The DOL’s framework is location-focused, and gives no clear guidance on whether the work a telecommuting employee does is “actually is performed” at the employer’s address as listed on the LCA, and not where the telecommuting employee is located. What is clear is that one who works remotely for less than 30 days (or in some limited circumstances, up to 60 days, see 20 CFR 655.735((c)) in a one year period need not have a new LCA to cover that employee’s new location.

Even if the DOL has not taken a position on the issue, it is hoped that the DOL auditor who wishes to rigidly apply this 20th century rule on work locations in the 21st century may exercise discretion in not imposing a penalty if the employer has complied in every other aspect. The DOL auditor may decide that given the lack of clarity in this area, the employer took a good faith position. However, to ensure against such risks, employers may wish to prepare a new LCA indicating the address from which the individual will be telecommuting, and have the individual post the LCA in two locations at that address. Until the regulations catch up with reality in the 21st century, this would be the appropriate course of action.