Cyrus Mehta

DON’T GET TOO COMFORTABLE: STATUS AFTER THE GRANT OF AN H-1B EXTENSION UNDER AC 21

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By Gary Endelman and Cyrus D. Mehta

The American Competitiveness in the 21st Century Act (AC 21) has been a great benefit for those whose applications for permanent residency cannot be completed before the sixth year in H-1B status. Under Section 106(a) of AC 21, an individual is able to extend H-1B status beyond six years if, inter alia, a labor certification was filed 365 days prior to the end of the 6th year. In companion Section 104 (c) of AC 21, the H-1B status may be extended for three years at a time if one is a beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for the backlogs in the employment-based first (EB-1), second (EB-2) or third preferences (EB-3).

AC 21 is therefore a generous ameliorative measure against delays in processing of permanent residency application, or even if there are no processing delays, against delays caused by backlogs in the EB preferences. For example, a beneficiary of an I-140 petition in the EB-3 for India may well have to wait for the green card for over a decade, and AC 21 allows the H-1B status to be extended long after the six year limitation has ended, thus allowing the intending immigrant to work in the US and remain in status.

This benefit to extend H-1B status comes to an end if one of the applications that served as the basis for the extension – the underlying labor certification, I-140 petition or adjustments of status application – gets denied. The authors will argue that once the H-1B status is extended under AC 21, it cannot be switched off if there is a denial of the underlying application or petition during either the one year or three year extension period. Such a denial, on the other hand, should only preclude a further H-1B extension under AC 21.

We give great credit to immigration scholar and guru, Naomi Schorr, for bringing to our attention in her recent article, It Makes You Want To Scream: Who Knows? 15 Bender’s Immigr. Bull. 1387 (Oct. 15, 2010), that there is ambiguity in a not so clearly written USCIS memorandum that seems to suggest that the H-1B status may no longer be valid after the denial of the underlying application or petition. In a Memorandum from William R. Yates on a number of AC 21 issues dated May 12, 2005, http://bit.ly/aMjERW, one section indicates that the H-1B extension under AC 21 could be applied during the remainder of the sixth year for whatever time was left for that year plus the additional extra year under AC 21. Question 3 is worth repeating:

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?

Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

We agree with Ms. Schorr that we cannot precisely understand what this question and answer actually means. It could mean, as Ms. Schorr suggests, a situation “where a petition for a sixth year has been approved, but the underlying basis for the extension is denied before the end of the six years? Or, does it reach someone who’s already in an extended period of H-1B status and act to immediately, by operation of law, put an end to that status? If so, it’s certainly a trap for the unwary.”

The authors offer an alternative reading of this question and answer. We note that the Yates Memorandum talks about the extension rather than the revocation of status. It could mean that the USCIS may deny the H-1B after the filing but before it is adjudicated during the sixth year. For example, an H-1B extension is filed requesting an additional three months remaining in the sixth year (based on 3 months of time spent abroad that can be recaptured towards the sixth H-1B year) and an additional 7th year under AC 21. If at the time of adjudication, the USCIS examiner finds that the underlying labor certification has been denied, the extension request can still be granted for an additional 3 months, which is the remainder of the sixth year, but not for the 7th year. Once the USCIS has allowed the H-1B temporary worker to cross the 6th year Rubicon, that decision remains intact even if the labor certification or I-140 immigrant petition later go down in flames. Denial of any of these applications does not mean that the 7th year extension was improvidently granted nor is it a reason to revisit it.

Our reading suggests that once the H-1B extension is approved, it cannot terminate by operation of law based on a denial of the underlying application. Such a radical interpretation, if at all the government meant it that way in the Yates Memorandum, contravenes the plain language of the AC 21 statute and also defies logic with respect to prior USCIS polices regarding how it treats status violations. Section 106(b) of AC 21 states that “[t]he Attorney General shall extend the stay of an alien who qualifies for an exemption under section (a) in one-year increments until such time as a final decision is made” This can be clearly read as allowing H-1B extensions so long as there is no final decision at the time of filing the extension but not after the extension has been granted. Indeed, a later USCIS Memorandum dated May 30, 2008 further interpreting AC 21 by Donald Neufeld, http://bit.ly/c5YV4j, further supports our position. Mr. Neufeld instructs USCIS adjudicators that the State Department visa bulletin regarding whether the priority date is current or not should be checked at the time of filing the H-1B extension. This suggests that if during the three year H-1B extension period, the priority date does become current, the H-1B status continues and will not terminate.

This reading is further supported by the fact that if the Yates Memorandum is construed broadly, the alien would go out of status as soon as the underlying application is denied, even though the alien has the right to continue to pursue it further on appeal within a few days or weeks. If the labor certification gets denied, the H-1B status will extinguish, but then it ought to get revived when an appeal to the Board of Alien Labor Certification Appeals BALCA) is filed within 30 days. If BALCA affirms the denial of the labor certification, the H-1B status will again get extinguished, but the employer has 6 years to seek review in federal court under Chapter 7 of the Administrative Procedures Act and continue to pursue the labor certification beyond the BALCA denial. If an APA action is taken prior to the filing of the next extension request, the H-1B status ought to get revived again.

Under different circumstances, however, H-1B status and any other nonimmigrant status cannot be switched on and off like a light bulb. We wish this were the case, but it is not so. Once an alien falls out of status, say by failing to work for a few months, H-1B status does not get revived when the alien reports back to work. The right way to rectify status is to leave the US and reenter or file a new extension and ask that the status violation be excused under 8 CFR §214.1(c)(4).

Similarly, with respect to three year H-1B extensions under AC 21 § 104(c), the alien “may apply for [the extension] and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision made thereon.” If the Yates Memorandum also applies to a § 104(c) extension, which the plain reading of the text suggests may not be the case, and if the adjustment of status application is denied, under a literal reading of the Yates memo, the H-1B status comes to an end within the 3 year period. But, pause and take a deep breath. If USCIS denies the AOS, the application may be renewed in a removal proceeding pursuant to 8 CFR § 245.2(a)(5)(ii). And at the time of the renewal of the AOS before the Immigration Judge, the same regulation provides that an applicant does not have to meet the statutory requirements of § 245(c) again so long as she or he met them at the time the renewed application was initially filed. This event, the placing of the alien in removal proceeding, ought to again “turn on” the H-1B status, which if it does, would also be an instant ground to terminate removal proceedings as the alien is in status and should not be removed. Thus, the very act of placing the alien in removal proceedings would automatically give grounds to terminate the removal proceeding. How logical (or illogical) will that be from a policy perspective?

Also, neither the employer nor the H-1B worker may know about the termination of status. It is possible for an H-1B extension under AC 21 to occur with a new employer based on the prior employer’s labor certification or I-140 petition, See On The Edge Of The Precipice – Being Laid Off During The 7th year H-1B, http://bit.ly/cqmC16. If the prior employer yanks the I-140 petition during the three year extension period, and the H-1B is no longer in status, what does this portend for the new employer’s obligation under the Form I-9, Employment Eligibility Verification? What if the H-1B beneficiary files for adjustment of status unwittingly not knowing that his or her H-1B status switched off some time ago and is now not found to be eligible for the benefit?

Clearly, the termination of H-1B status could not have been intended by Congress when it enacted AC 21, otherwise the Congress would have been more explicit about it. Therefore, a sensible reading of both § 106(a) and § 104(c) ought to support the argument that once the AC 21 extension is granted, the H-1B beneficiary is home free until it is time to again request a further extension. Still, as our teacher Naomi Schorr rightly reminds us, there is not much in immigration law these days that is safe from challenge. So, no matter how confident we are that our views on AC 21 make sense, the authors feel it prudent to pay homage to the sage counsel of baseball immortal Satchel Paige: “ Don’t look back. Something might be gaining on you.”

Cora-Ann Pestaina

PERM AND THE ROVING EMPLOYEE

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by Cora-Ann Pestaina

Practitioner to Employer Client: We can certainly assist you in the filing of a PERM application for your employee. Where will the employee be working?

Employer Client: Well, he will work out of his home in New Jersey and additionally at three different client sites in Pennsylvania, New York and Connecticut.

Practitioner: *silent groan* This will require some special attention.

Filing a labor certification for a roving employee is akin to navigating a minefield. One tiny “mistake” and BOOM! It doesn’t matter that there is precious little guidance from the DOL to begin with. The DOL will happily issue you that denial listing in nice, bold print the various “obvious” reasons why you did not draft the advertisement correctly, recruit correctly or use the proper prevailing wage, etc.

A lot of what we now know about filing a labor certification for a roving employee has been learned through trial and error. The above scenario is merely one type of roving employee. The most common type of roving employee is the IT consultant who will not work at the employer’s headquarters but instead will be assigned to one or more known or unanticipated client sites. As described in the scenario above, a roving employee could also work from home and visit various client sites confined to one region or spread throughout the US. The issues surrounding roving employees include ensuring that the advertisements contain all the required language and choosing the location out of which to base the recruitment and the prevailing wage determination and deciding where to post the Notice of Filing.

In the ordinary course, a labor certification is filed in the area of intended employment. The Department of Labor’s regulations require an employer to prove through a test of the labor market that there are not sufficient workers in the US who are able, willing, qualified, and available at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. In the case of the roving employee, where the area of intended employment is presently unknown or subject to constant change, it becomes difficult to determine the location where the labor certification should be filed and thus where the recruitment should be performed and the prevailing wage obtained. The statute or the regulations are both silent on this issue. As indicated in a paper analyzing recent BALCA decisions by Cyrus D. Mehta for the AILA New York Immigration Symposium on December 1, 2010, the most recent guidance comes from a decision by the Board of Alien Labor Certification Appeals (BALCA) in Amsol, Inc., 2008-INA-00112. In Amsol, the employer filed several labor certifications listing its address as Casper, Wyoming and the address where the aliens would work as “Casper, WY and any other unanticipated location in the US.” The employer argued, and BALCA agreed, that the employer should be governed by the Employment and Training Administration’s Field Memorandum No. 48-94 (May 16, 1994) § 10, which provided that “[a]pplications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.” In Amsol, BALCA referenced Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007) and pointed out that the mere business presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location. In Paradigm the employer’s office in Erie, PA was not the appropriate location for a labor market test where the offered position involved unanticipated locations because the prevailing wage in Erie, PA was lower than the prevailing wage at the employer’s headquarters in Columbia, MD. Accordingly, at least in the most common case of the roving employee, where a job will involve various unanticipated work sites, the employer’s headquarters is accepted as the appropriate location for filing the labor certification. Following that, it is also therefore acceptable to obtain the prevailing wage determination from that location and to post the Notice of Filing at the employer’s headquarters. In Amsol, it was also important that the employer advertised in a national magazine, demonstrating that the employer did not choose Casper, WY in an attempt to test the market least likely to provide qualified US workers.

The less common issue of the home office has not yet been the subject of a BALCA decision. What should the employer do when the employee works from home in a location that is different from the employer’s headquarters? Thus far, the only DOL guidance can be found in the minutes of a March 15, 2007 DOL Stakeholders meeting which can be found at AILA Doc. No. 07041264. On the subject of the home office, the minutes read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer’s headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer’s headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee’s region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company’s headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite.

AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

The DOL’s response to the Stakeholders’ query indicates that the choice is left to the employer. If the employer lists the worksite as the employee’s home then the employer can perform recruitment and also request the prevailing wage from the location of the employee’s home. Alternatively, the employer can list the worksite as the employer’s headquarters and recruit out of that location. However, if adopting this alternative strategy, the employer should be mindful to conduct recruitment that also covers the home office (e.g. recruitment that is national in scope). Additional guidance was also provided in the following question which was asked and answered as follows:

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer’s headquarters.

Please see answer to number 19 above.

This guidance also indicates that whenever the job requires work in various locations, the employer may post the Notice of Filing at the company’s headquarters.

But what should the employer do when the employee will work from home, in a location different from that of the employer’s headquarters and will also work from unanticipated locations throughout the US? From the DOL’s response to the Stakeholders’ queries, it would appear that the employer could recruit in the location of the employee’s home. However, in such a case, the employer should take pains to show that it is not filing from the employee’s home location in an attempt to lower the prevailing wage or to minimize US worker applicants. As in the Amsol case, the best course of action would be to obtain prevailing wages for both the employer’s headquarters location and the employee’s home location and ensure that the offered wage exceeded the higher of the two and, also ensure that at least one of the additional three forms of professional recruitment is national in scope. The Notice of Filing can be posted at the employer’s headquarters. The above mentioned Stakeholders Meeting minutes provided further guidance as follows:

21. For purposes of completing ETA-9089, if an employee works from home, what address should be identified in H.1 and H.2–the actual home address of the employee or the address of the employer’s headquarters or office from which the employee is based/paid?

Please see answer to number 19 above.

Final Note: When a job is regional, such as an employee working out of a home office but travelling throughout a specific geographic area, the analysis of where to obtain the prevailing wage and recruit can be thorny. Prior to PERM guidance was that the prevailing wage would be determined where the majority of duties are performed. Best practice under PERM would be to use the highest wage within the region/MSA and recruit in the regional edition of a nationwide paper. This gets complicated as there are few nationwide papers with regional editions or newspapers that could be considered regional.

As in the scenario described at the beginning of this article, what if the employer is located in one state, the employee will work from home in another state and also in three other specific states in the region? Again, this issue has not been directly addressed by the DOL. But, employers should ensure that recruitment is performed in the manner best likely to discover qualified US workers. As described above, the employer could recruit from the location of the employee’s home choosing the regional edition of a national newspaper as one form of recruitment; ensure that prevailing wage exceeds the highest of the prevailing wages for each state in which the employee will work; and post the Notice of Filing at the employer’s headquarters.

With regard to roving employees, it is critical that the employer’s advertisement inform US workers that a “home benefit is available” or that the worker “must be willing to work anywhere in the US” or that “travel is required.” Any such requirement must also be included in the prevailing wage request and in Box H.14 on the ETA Form 9089 lest the employer be accused of offering conditions in the advertisements that were less favorable than those offered to the alien in violation of 20 CFR § 656.17(f)(7).

It would seem that the DOL has adopted a “You will know if you made the wrong choice when the PERM gets denied” attitude to the issue of the roving employee. At the recent AILA PERM Conference in New Orleans, many practitioners expressed ongoing frustration with the lack of guidance. Learning through trial and error is not acceptable for a process as costly as PERM and practitioners can ill-afford to demonstrate an inability to correctly advise clients. Another AILA Stakeholders meeting was held last week and roving employee issues were certainly on the list of questions for the DOL. While holding one’s breath is not suggested, the minutes of that meeting will hopefully shed some well-needed light on this tricky issue.

Cyrus Mehta

Silver Lining on Immigration After the November 2010 Mid-Term Elections

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Now that the Republican party controls the House, what does it portend for immigration? There is a sense of foreboding and pessimism. Most fear that any prospect for Comprehensive Immigration Reform is dead, although it never got jump started even though the Democrats controlled both the chambers of Congress from 2006 until now. Instead, we will see enforcement oriented measures being passed. FAIR has already issued a statement of what it considers immigration reform, which obviously is all enforcement and no sensible expansion of visa categories that would provide for a more orderly flow of legal immigration and stem illegal immigration, http://ht.ly/33QoA. AILA’s President David Leopold worries that Rep. Lamar Smith, the expected chair of the House Judiciary Committee and Rep. Steve King, the slated chair of the House Subcommittee on Immigration will pass mean spirited immigration legislation, like HR 4437, which would have criminalized the undocumented, or to use their subpoena powers to investigate harass the President or other leaders of the immigration agencies, http://ailaleadershipblog.org/2010/11/03/the-morning-after/.

An article in Bloomberg BusinessWeek also suggests that businesses may not even see any changes in the immigration system for skilled workers, such as an expansion of H-1B visa numbers or an expansion of the employment preferences, where some applicants must wait for at least a decade or more before they can get green cards, http://bit.ly/cDVMcD. Rep. King has stated in this BusinessWeek article that he would first want to pass measures that would crack down on illegal immigrants before considering proposals that business want regarding much needed expansion in visa categories. But what has skilled immigration, which is mostly legal, have to do with cracking down on illegal immigration and closing the borders? In August 2010, Senator Schumer’s border security bill substantially raised the H-1B and L visa fees on companies that had more than 50% of their workforce on H-1B and L visas (all legal workers to boot) to pay for border security, including deploying a couple of drone aircrafts on the US-Mexico border that are used in Pakistan and Afghanistan, https://blog.cyrusmehta.com/2010/08/the-world-according-to-senator-schumer-if-its-not-a-chop-shop-its-a-body-shop.html.

Let’s hope that our pessimism is off the mark, although I admit that I might be dreaming given that Rep. King’s anti-immiration rhetoric is shriller than most even among other enforcement oriented Republicans, http://bit.ly/a6S0ac. There might be common ground between the President, Democrats and Republicans to pass incremental measures, which is now the new mantra if anything can ever be achieved. The Economist also feels that it might be premature to write off any prospect for immigration reform, http://www.economist.com/node/17366155. Indeed, there is precedent for this. Some of the most innovative ameliorative immigration legislation such as the American Competitiveness in the 21st Century Act and the Child Status Protection Act got passed in a Republican controlled Congress. One common ground between the Administration and the new Congress, at least in the short term, is to work together to pass more business friendly immigration measures, such as more H-1B visas for skilled workers and an expansion in the employment-based preferences, with perhaps adding new categories for business entrepreneurs and those with advanced skills in the sciences and technology. Even Rep. King in the BusinessWeek article seems to be inclined to pass measures “for higher-skilled workers only if the potential employees meet criteria to boost the U.S. economy.” All these proposals should be appealing to the new Republican leadership at the helm in the House who believe in the spirit of personal responsibility, hard work and enterprise, without relying on the government for a handout. Immigrants best exemplify this ideal.

Finally, even though Republicans gained a lot in the mid-term elections, beware that an overtly anti-immigration agenda will see you go down in flames like Sharon Angle in Nevada who demonized immigrants in her election campaign commercials or Meg Whitman whose hypocritical attitude towards her immigrant nanny was telling on the voters, http://bit.ly/cZX2Zo . Indeed, it is likely that the reason why the Democrats still control the Senate is because of Latino voters who either rewarded or punished candidates based on their attitude towards immigrants. Barbara Boxer, as an example, was the recipient of this reward.

In the past, one of the reasons for lack of support from Republican leaders, who traditionally supported immigration, was that the Democrats would take credit. This is no longer true after the recent Republican election gains. Now is the time for both the Democrats and the Republicans to work together in Congress, along with the President’s support, to pass immigration friendly measures so that both parties can claim credit among voters in future election cycles.

Cyrus Mehta

INDIAN IMMIGRATION POLICY AND THE TRANSNATIONAL PREVAILING WAGE FOR IT WORKERS

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By Gary Endelman and Cyrus D. Mehta

For many years, those concerned about the hemorrhaging of good paying jobs to India, especially in the IT sector, have blamed overly liberal US immigration policies for their ills. Precisely the opposite is true. Right now, there is a deep and growing IT shortage for world-class talent in India, something that is openly acknowledged in the India press and by top Indian corporate leadership, http://bit.ly/d5TSsO. Even an Internet giant like Google is having a devil of a time in recruiting top-drawer talent, http://bit.ly/a2kT22. Despite the huge numbers of engineering graduates each year, a far smaller number are employable in the global economy and Indian IT firms are increasingly forced to launch innovative initiatives in a desperate attempt to solve the problem, http://bit.ly/cFMSIn.

In response to this talent crunch, Indian IT firms have been compelled to raise salaries. Already, wage inflation is a fact of life in India. The low wage advantages of India are steadily being eviscerated. http://www.indiadaily.com/editorial/17290.asp. Yet, despite this sharp rise in compensation, the fact that inflation is going up even faster threatens to wipe out much, if not all, of these highly prized gains. http://news.bbc.co.uk/2/hi/business/8563743.stm

Faced with all of this, how has the United States responded through its immigration policies? By adopting manifestly inadequate immigrant visa quotas combined with a miserly 65,000 H-1b visa allotment, the United States has done its best to keep the best and the brightest Indian IT talent at home. As a result, the talent shortage, while severe, and the wage inflation, while undeniable, has not nearly been as far reaching or dramatic as they would have been if US policies were more welcoming. In effect, US immigration policies have achieved the worst of all possible results. Indian IT workers do not earn as much as they could or should; as a result, they spend and consume less so that there is a reduced stimulative impact, thereby diminishing the purchasing power of all sectors of the Indian economy who depend upon the IT salaries for their own well being. Beyond that, precisely because they serve as a powerful though unintended depressant upon Indian IT wages, protectionist US immigration policies promote the exodus of white collar IT jobs and allied occupational opportunities from the US to India! How? Simple. Read on.

Despite what the US Department of Labor thinks, there is a transnational prevailing wage that governs IT compensation irrespective of national boundaries. The greater the difference in IT salaries between the US and India, the more pressure will be exerted upon IT employers in the US to leave and the greater will be the loss of jobs, not to mention the loss of many allied jobs that depend upon the continued presence of a vibrant IT sector. Correspondingly, if the IT wage differential between our two economies narrowed, the pressure to outsource would ease. If we wanted to even the playing field, the US would greatly expand both temporary and permanent work visas for India in the IT professions so that more IT jobs would remain here and Indian IT workers would be able to keep pace with inflation. It is a win-win situation. Right now, by bashing Indian migration, immigration restrictionists are accelerating outsourcing and enabling India to develop an effective strategic alternative to Silicon Valley years faster than need be happening.

It seems as if India is coming to the rescue of the United States. The Indian Ministry of Home Affairs (MHA) has announced the elimination of the prior odd 1% quota rule for all employment visa applications filed by Indian host companies or a maximum of 20 foreign nationals per company. To qualify for employment visas, the workers must now be highly skilled or professional, and in addition to meeting the other visa requirements, demonstrate that they will be paid a salary equivalent to at least $25,000 per year. This minimum salary requirement does not apply to ethnic cooks, interpreters or language teachers (other than English language teachers), or staff working for an Embassy or High Commission in India. Full details of the new rules for an Employment Visa are set forth in the Indian Ministry of Home Affairs FAQ, pp. 6-7, http://www.mha.nic.in/pdfs/work_visa_faq.pdf.

By restricting work visas to highly skilled workers making at least $25, 000, India is not only reducing the transnational wage differential but essentially eliminating it since the true wage for visa issuance will be $75,000.It is an article of faith that wage recoupment must be 3 times the normal amount in order to compensate for all other inefficiencies inevitably associated with the outsourcing process. If we cannot adopt intelligent immigration policies to save ourselves, it seems that India will do it for us.

It is true that the Indian rules only affect foreign knowledge workers rather than directly changing the wage scale for the domestic work force. We also note that the Indian rules apply to highly skilled workers across the spectrum, although our essay focuses on IT workers. However, the indirect impact is profound, greatly exceeding the sheer numbers which will be limited. Foreign IT workers earning $25,000 in India can exert enormous purchasing power upon other sectors of the Indian economy that will inevitably benefit. Beyond that, these changes create a two track wage system, one for foreigners and one for Indian workers. Inevitably, the two will exert an influence upon each other. Indian workers will demand equal wages for equal work, refusing to be paid less than their foreign colleague at the neighboring work station doing the same work but earning much more. They will move to another country if denied for these are the Indian IT gurus who enjoy global occupational mobility, a freedom without precedent in Indian history. The inflationary pressure exerted by foreign wage levels upon domestic compensation will increase as we climb the food chain so that the more experienced workers, the supervisors and experienced IT professionals whose expertise makes outsourcing from the United States possible, are also the very same workers who will demand that the wage gap between the two wage systems be narrowed, if not eliminated. This is precisely what will happen over time as Indian companies seek to alleviate the talent shortage whose existence poses a real and direct threat to Indian IT world market share. Ironically, India is repeating the mistakes of the H-1B labor condition application where the wages of foreign workers are kept artificially high not in response to actual market conditions but solely as a result of government diktat. As in the United States, this is an unsustainable condition whose primary consequence will be the injection of systemic wage instability that complicates intelligent business planning and spreads pervasive incoherence.

It also remains to be seen how India will administer the other requirement in the MHA FAQ that “Employment Visa shall not be granted for jobs for which qualified Indians are available.” How will that be determined? It is hoped that the visa applicant is allowed to make the case, and India does not adopt the rigid rules of the US Labor Certification system, requiring employers to undergo an artificial test of the labor market to establish that no US worker is available for the position. This system has been an abject failure in the US. Serving mainly to frustrate employers, it has conspicuously failed to expand job opportunities for domestic workers. One hopes that Indian officials will accept an employer’s attestation regarding shortage of skills in the occupation that will be filled by the foreign worker, along with the business need to hire such a person in India, supported by general statistics of shortage of talent in a particular occupation.

We cannot help but observe, though, that India is learning precisely the wrong lessons from the United States. For both nations, giving in to domestic protectionist pressures amounts to a voluntary and wholly unnecessary surrender of global market share. Expansion of bureaucratic restraints upon the IT sector may satisfy domestic critics but it will undermine job creation. If India adopts the “minimally qualified” standard that has given labor certification in this country its Twilight Zone character, the vitality of the IT industry which drives the entire Indian economy will suffer a powerful blow with untold consequences for India and the world. Once India’s immigration policies turn inward, a fateful, perhaps irrevocable step has been taken. Economic leadership in the 21st century will fall to those who win the global competition for talent and innovation, much as the race to capture natural resources shaped the recent past. Enlightened immigration policies that view the movement of human capital as an asset to be maximized rather than a problem to be controlled are central to seizing and defending the economic high ground. Will India turn away from the future and can the United States seize the unexpected opportunity this presents?

There is a silver lining in this for India as well. While wage inflation will cause a temporary loss in market share, in the long run, it will serve to refocus the Indian IT industry on the core need to win clients by superior service and quality of performance, precisely the character traits that has and will serve India well, long after their short-term low wage advantages had disappeared. National greatness cannot rest upon a race to the bottom. That is not where India’s future lies. The sustained pursuit of excellence is a goal to which India can and should dedicate itself for only this will allow the full and proper development of its enormously impressive talent base. Over time, not only will fewer IT jobs flee America, but higher Indian wages, both within the IT sector and beyond, will make possible the creation of a business model that can sustain Indian leadership in IT and reinforce its inherent value. In fact, this is exactly what is already happening. As the wage gap shrinks between India and the major outsourcing countries, IT giants are strategically positioning themselves so that future growth will come from experience and maturity rather than labor arbitrage. Diversification is the hallmark of this next generation business model. Wipro is actively moving into solar and other forms of renewable energy, http://bit.ly/bBcGVz. Infosys has pumped $100 million into Europe to expand its software footprint all across the Continent, http://bit.ly/ahPCbP. At the same time, by expanding into Southeast Asia, Infosys will widen India’s access to other emerging markets, http://bit.ly/da929d. No longer content to win new markets on the cheap, Infosys grows its Australian customer base through award-winning excellence as the IT consultant of choice, http://bit.ly/ceXxjj.

India may still remain a hub for IT services regardless of rising costs due to the sheer number of skilled workers and the fact that it has a high level of IT sophistication on which to build. As India diversifies, greater symmetries between the Indian and American economies will present themselves as both countries profit from maximizing what they do best. This is not a zero sum gain. On the contrary, everyone benefits from a more rational prevailing wage whose consistent application stabilizes global commercial relationships. Based on the comparative purchasing power in India relative to the United States and the large pool of low wage workers whose presence will remain a constant factor on the Indian scene for the foreseeable future, any discussion of the transnational prevailing wage and its impact must necessarily be both modest and evolutionary in its assessments. The changes that are coming may well take a long time in getting here. Nonetheless, given the dynamic nature of both the American and Indian economies, the inevitably of change is cannot be denied. It is on the way and both nations should use the time they have now to prepare for it. If that happens, an expanded H quota for Indian IT managers and professionals is a win-win formula for both countries.

Cyrus Mehta

BIA CONTINUES TO REAFFIRM BROAD “SOUGHT TO ACQUIRE” STANDARD UNDER CSPA

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by Gary Endelman and Cyrus D. Mehta

In a recent unpublished decision, the Board of Immigration Appeals, in In re Jose Jesus Murillo, A099 252 007, October 6, 2010, http://drop.io/oucv5fe, reaffirmed its broadened “sought to acquire” standard under the Child Status Protection Act (CSPA). The CSPA artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline.

The Board in In re Jose Jesus Murillo held that the term “sought to acquire” includes substantial steps towards the filing of the relevant application, although these steps may fall short of an actual filing or submission to the relevant agency. The Board’s interpretation will provide further relief to children who are otherwise protected by the CSPA but unable to comply with or navigate the complex bureaucratic requirements to file within one year. It should be noted that In re Jose Jesus Murillo is an unpublished decision, devoid of any precedential authority, and does not bind the DHS or the DOS. Still, it follows closely on the heels of other unpublished Board decisions that have applied the same “sought to acquire” standard and thus provides more ammunition to those who need to make similar arguments. See In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child beneficiary “sought to acquire” LPR status within one year of visa approval because her parents hired an attorney to start preparing the adjustment application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759 (BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year period when, during this time, he informed both the Immigration Judge and the Board that he wished to file an adjustment application, even though the application was not actually filed within one year).

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

Both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly. DHS limits this phrase to filing an I-485 application for adjustment of status. See “Revised Guidance for CSPA” (April 30, 2008), http://www.uscis.gov/files/nativedocuments/CSPA_30Apr08.pdf. The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 230, Part I, is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January 17, 2003), http://travel.state.gov/visa/laws/telegrams/telegrams_1369.html. In cases where the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application. The DOS has also indicated that since Form I-824 is not the only way to initiate the process, posts may seek advisory opinion in cases in which some other “concrete” step has been taken.

We question why the DHS and DOS sought and continue to seek the most restrictive interpretation of what is clearly a remedial statute. Here is the legislative history of the CSPA, which is worth reproducing from the Board’s decision in In re Jose Jesus Murillo:

The congressional. intent in enacting the CSPA was to “bring families together” (Rep. Sensenbrenner, 148 Congo Rec. H4989-01, H49991, July 22, 2002) and to “provide relief to children who lose out when INS takes too long to process their adjustment of status applications”(Rep. Gekas, id. at R4992); see also, Rep. Jackson-Lee, “where we can correct situations to bring families together, this is extremely important.’.’ ld. atH4991. In enacting the CSPA, Congress expressed its concern that alien children “through no fault of their own, lose the opportunity to obtain immediate relative status.” H.R. Rep. 107-45, H.R. Rep. No.4 5, I 07th Cong., 1st Sess. 2001, reprinted in 2002 U.S.C.C.A.N. 640, 641 (Apr. 20, 2001). Indeed, the United States Court of Appeals for the Ninth Circuit has held that the CSPA should “be construed so as to provide expansive relief to children of United State citizens and permanent residents.” Padash v. INS,358 F.3d 1161, 1172 (9th Cir. 2004).

In In re Jose Jesus Murillo, the Board rejected the DHS’s position that “sought to acquire” means the actual filing of an application or petition. The Board stated that “it is not bound by the interpretation of the DHS or DOS as to the statutes which it administers” (citing Matter of M/V Saru Meru, 20 I&N Dec. 592, 595 (BIA 1992)). The Board observed that INA §203(h)(1)(A) includes the unique term “sought to acquire” rather than terms such as “file,” “submit” or “apply,” which appear in other parts of the INA. While each of these terms require the presentation of an application to relevant officials, the meaning of words such as “seek” or “sought” include “to try to acquire or gain” or “to make an attempt” according to the Board, which referred to the Merriam-Webster’s Collegiate Dictionary.

In In re Jose Jesus Murillo, the respondent claiming status as a child did not file the I-485 application within one year of visa availability. However, the respondent argued that he still satisfied the “sought to acquire” element because he hired an attorney to prepare his adjustment of status application within one year of the visa numbers becoming available, and he filed his application within a reasonable time thereafter while he was still under the age of 21. The Board held that the respondent child, whose age was otherwise protected under the CSPA, clearly demonstrated an intent to file his application and made substantial advances towards having the application prepared and filed through an attorney within the one-year period. The Board observed that if it had found otherwise, the child would have aged out and would have been unable to seek CSPA protection for no fault of his own. The Board also did not require a showing that this attorney was ineffective in filing the document within one year.

The Board’s decision to broaden the term “sought to acquire” to include steps short of actually filing an application is indeed welcome. There are many situations in which a child protected under the CSPA may not be able to comply with the rigorous filing requirements of the DHS or the DOS within the one-year filing period. Moreover, the Board’s ruling would assist those who are in removal proceedings, and who may not be able to obtain a timely hearing with an Immigration Judge in order to file an adjustment application within one-year of the visa number becoming available, and an alternative filing with the clerk of the court is not made within the year or rejected. There may be other situations where the parent may have filed an I-485 adjustment application many years ago, and may not have included the I-824 application with his or her application. It was not usual to attach an I-824 with an unadjudicated I-485 adjustment application prior to the CSPA. Moreover, there have also been situations where the NVC, during the initial processing of a consular visa application, may have erroneously omitted the child’s name even though he or she was protected under the CSPA. As a result, the child or the parent of the child may not have complied with the DOS requirement of filing a DS 230, Part I, but may have taken other steps to seek LPR status such as attempting to contact the NVC by letter or telephone to include the child, or took other steps such as seeking the advice of an attorney.

In these situations too, one can demonstrate that the CSPA child “sought to acquire” LPR status within one-year of visa availability. On the other hand, not every step to seek permanent residence in the one year period will be viewed favorably especially when it does not comport with CSPA’s purpose, which was to protect an alien child from aging out due to no fault of his own. In In Re Mario Francisco Cisneros Baron, 2009 WL 3713334, the respondent asserted that neither did he nor his parents file an adjustment application within one year because of his criminal convictions. He was put into removal proceedings and left voluntarily, and then illegally reentered and lodged an adjustment application in connection with subsequent removal proceedings. The Board, in this case, remained unpursuaded that his parents consulted with a lawyer within one year of the visa availability date since, here, the respondent was himself partially responsible for failing to file an adjustment application “because of a tactical decision resulting from his own criminal behavior.”

While none of these are published decisions, those seeking CSPA protection should rely on In re Kim, In re Castillo-Bonilla and now In re Jose Jesus Murillo to make similar arguments in cases before the DHS, an Immigration Judges, the Board, before US Consuls overseas and even in federal court. We commend the Legal Action Center of the American Immigration Council for filing a winning amicus brief in In re Jose Jesus Murillo, and readers will surely profit from its CSPA Practice Advisory, http://www.legalactioncenter.org/practice-advisories/child-status-protection-act. Practitioners should continue to seek to interpret “sought to acquire” in a broadly humane way for their clients to achieve what the Congress intended, a formula for the protection of children and advancement of family unit

Cyrus Mehta

THE ENIGMA OF BOKHARI V. HOLDER: WORK AUTHORIZATION IS NOT LAWFUL STATUS

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By Gary Endelman and Cyrus D. Mehta
It has always been known that being authorized to work in the US is not the same thing as being in a lawful status. The Fifth Circuit Court of Appeals recently issued a decision in Bokhari v. Holder, No. 09-60538, September 29, 2010,  confirming this enigma. Simply stated, the fact that Mr. Bokhari timely filed an L-1A extension, which allowed him to continue working in the United States, was not sufficient for him to establish lawful immigration status that would have permitted him to file an application to adjustment status to lawful permanent residence. While this decision defies logic and has raised the hackles of many in the immigration bar, it does not break new ground and has been consistent with USCIS’s prior policy. The question is whether we should be affirming the status quo or continuing to litigate so that we can correct this contradiction. Read on.

Here are the facts in Bokhari v. Holder. On June 9, 2003, one day before his prior L-1A nonimmigrant visa status was due to expire, Mr. Bokhari’s employer filed form I-129 to extend his L-1A status. Unfortunately, the USCIS denied the I-129 petition on March 19, 2004. Mr. Bokhari diligently filed an appeal on April 19, 2004 which too got denied on September 2, 2005. While Mr. Bokhari was unsuccessfully attempting to extend L-1A status, he took another stab by filing an I-140 petition for permanent residence under the multinational manager category on June 8, 2004, and simultaneously filed an I-485 application to adjust his status even while he was not in lawful status. We know that Mr. Bokhari filed the I-485 late – long after his L-1A status expired – but he claimed the protection of INA § 245(k). This provision allows an applicant who has failed to maintain status for less than 180 days to still file for adjustment of status. Mr. Bokhara’s I-140 petition got approved on July 11, 2005, but his I-485 application got denied on September 20, 2005 and DHS commenced removal proceedings against Mr. Bokhari.

The sole issue in the case was whether Mr. Bokhari was in unlawful immigration status for more than 180 days and was thus ineligible to adjust status. Mr. Bokhari argued that while his request to extend L-1A status was pending, he was in lawful status. He actually had a solid argument since 8 C.F.R. § 274a.12(b)(20) authorizes an alien to continue working while the extension request for a nonimmigrant work visa status remains pending for 240 days. Thus, even though his original L-1 status expired on June 10, 2003, Mr. Bokhari asserted that he continued to remain in lawful status until March 29, 2004, when DHS denied the I-129 extension request. As he filed his I-485 application on June 4, 2004, he claimed that he had not been in unlawful status for more than 180 days. DHS disagreed and argued that he failed to maintain lawful status from June 10, 2003, and even though he was authorized to continue working, such a grant of authorization under 8 CFR §274a.12(b)(20) was not tantamount to lawful immigration status.

The Fifth Circuit agreed with DHS. It relied on another regulation, 8 CFR § 245.1(d)(1)(ii), which defines “lawful immigration status” with regard to a nonimmigrant, as one “whose initial period of admission has not expired or whose nonimmigrant status has been extended.” Hence, one whose status had not been extended, such as Mr. Bokhari’s, was not in lawful immigration status. The Court pointed to other similar paradoxical situations where an alien may be granted stay of removal and be granted employment authorization, but still be considered illegal, see United States v. Flores, 404 F.3d 320 (5th Cir. 2005), and also relied on an old administrative decision, see In re Teberen, 15 I.&N. Dec. 689 (BIA 1976), which made clear that an extension application in itself did not confer lawful status, and thus an alien could still be found deportable during this period.

The USCIS has also long drawn a distinction between maintaining lawful status and being lawfully present in the United States, See Unlawful Presence v. Out of Status, http://bit.ly/ahjXpj. Even though someone may be thoroughly out of status, such as an F-1 visa student no longer enrolled in school, this student is not accruing unlawful presence for purposes of the 3 and 10 year bars pursuant to INA § 212(a)(9)(B), which triggers after one departs the US and only after accruing more than 180 days of unlawful presence. Similarly, 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 but will still not be considered to be in lawful status. 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.

Let us first consider the merits of the government’s position. While an adjustment applicant is not in a lawful status, or for that matter, one whom like Mr. Bokhari has applied for an extension of nonimmigrant status, he or she is still in a period of stay authorized by the Attorney General. The whole notion of a “period of stay authorized by the Attorney General” was created by USCIS to cover the twilight period between the expiration of status and its renewal. The two ideas do not mean the same thing as one falls away when the other arrives, such as adjustment of status giving way to lawful permanent resident status or an L-1 extension giving way to L-1 status once the extension request is granted. If the two concepts mean the same thing, then we would not have need for these “periods of stay.” Why do we have 8 C.F.R. §274a.12(b)(20)? It is to provide continued work authorization incident to previously approved status pending renewal of such status. In other words, allowing for continued work authorization is an interim relief measure until the status can be renewed. Once the extension is approved and the status is renewed, the need for such temporary measures drops away.

On the other hand, such a person who is in a “period of stay authorized by the Attorney General” is also vulnerable to removal. It makes no sense to allow one to stay and work in the United States under 8 C.F.R. §274a.12(b)(20) and then put him or her into removal proceeding. Moreover, those who are more susceptible to deportation in a post 9-11 world through illegal racial profiling, are likely to get snared if they have pending applications at the time of apprehension. This is what happened to the plaintiff, an Egyptian national, in El Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008), http://www.bibdaily.com/pdfs/El%20Badrawi%209-22-08.pdf, who claimed he was falsely arrested while his employer, University of Connecticut, filed an extension to extend H-1B status. The court in El Badrawi v. DHS found the government’s position “bewildering” that Mr. El Badrawi was entitled to work in the United States but not entitled to be physically present in the United States. Even though Mr. Bokhari relied heavily on El Badrawi v. DHS, the Fifth Circuit gave short shrift to this decision. While Mr. El Badrawi was not claiming any entitlement to adjust status, his claim to be lawfully in the US and not be susceptible to arrest and deportation while his H-1B extension was pending was a legitimate one.

It is worth remembering that the INA never defines “status”. For this reason, consider the possibility that 8 CFR § §245.1(d)(1)(ii) may not be faithfully interpreting the statute. INA § 245(c)(2) only refers to an applicant not being eligible for adjustment of status because he or she is in “unlawful immigration status.” The authors credit the insight of David Isaacson who suggests that there must be a difference between “lawful immigration status” and “lawful nonimmigrant status, ” which is a separate bar to adjustment under INA § 245(c)(7), so that an extension can be viewed as a lawful status for the purpose of preserving § 245 eligibility. After all, pursuant to 8 CFR 245.1 (d)(1)(ii), extension of nonimmigrant status would qualify as a lawful immigration status. When the extension is still pending, such lawful status can be viewed as remaining valid in a provisional sense pending final adjudication of the extension request; in the interlude between expiration and renewal, the extension keeps the nonimmigrant status alive, looking back at the past yet open to the future.

This interpretation provides non-resident aliens with a more realistic assurance of being able to stay lawfully in the United States while their extension applications remain pending under §274a.12(b)(2). Those who are specifically granted work authorization while they file extension applications, or who file I-485 applications, should be less susceptible to removal that the student who had dropped out of school. It is neither legally sound nor logically persuasive to place non-citizens, and their derivative family members in removal, if they have pending applications for extensions or adjustment applications. They should also be considered to be maintaining a lawful immigration status while their requests for an extension are pending. Nobody would like to constantly live in fear, especially if they were in the EB-3 preference, and applying for yet another extension beyond the 6th year H-1B limitation, to imagine that ICE could issue a Notice to Appear for a removal proceeding when a timely non-frivolous H-1B extension along with H-4 extensions of family members were in process.

Whether USCIS has a regulation or not granting work status, it is not good policy to render nonimmigrants who file timely applications be susceptible to removal from the US. However, not all such twilight statuses need to be deserving of such immunity, such as an F-1 student who has dropped out of school, and who may not be accruing unlawful presence for purposes of the 3 and 10 year bar, but can still be put into removal. As opposed to such a student who has dropped out of school and not reinstated status, it would be wrong to deport a nonimmigrant who has been lawfully in the US and who has applied for a timely extension of status. It is hoped that in the future we will see more decisions that follow El Badrawi v. DHS rather than Bokhari v. Holder.

Cyrus Mehta

DISTURBING TREND OF K VISAS BEING RETURNED FOR REVOCATION AT US CONSULATES

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By Cyrus D. Mehta

My distinguished colleague, Paul Parsons, in Austin, Texas, has justifiably complained to Jeff Gorsky, Chief, Legal Advisory Opinions Section, Visa Office, State Department, http://bit.ly/bl44VO, about the arbitrary manner in which consular posts administratively close K-1 or K-3 visa cases, and recommend revocation of the petition visas when they suspect the bona fides of the relationship. The K-1 visa allows a US citizen to sponsor a fiancé or fiancée. The K-3 visa allows the spouse of a US citizen to enter the US after the I-130 petition to sponsor the spouse for permanent residence has been filed.

If the consul has doubts about the relationship or a bona fide intent to marry, the case is quickly dispatched to the USCIS for revocation even before the attorney has a chance to intervene on behalf of the hapless client. It would be one thing if the USCIS acted quickly, by issuing a Notice of Intent to Revoke (NOIR), and allowing the petitioner to respond to any allegations of fraud or the alleged lack of a genuine relationship. Unfortunately, the USCIS takes its own sweet time, and it usually takes in excess of a year, and sometimes even in excess of two years, before the petitioner receives a NOIR. To add insult to injury, the K-1 approval has a validity date of only 4 months pursuant to 8 CFR § 214.2(k)(5). If the USCIS does not act quickly by issuing a NOIR within the 4 month period, which it most likely will not do, then the DHS never provides an opportunity to the petitioner to rebut the allegations on the ground that the 4 month validity period of the K-1 has lapsed. Another distinguished colleague, Brent Renison, in Portland, Oregon, has filed a class action suit complaining against this procedure and also challenging the validity of 8 CFR § 214.2(k)(5), http://www.entrylaw.com/tranclassaction.html. This is a most worthy law suit challenging a very arbitrary practice, and affected K-1 visa applicants may seek to join as class members. Details on the class action are provided in the link above.

A careful reading of 8 CFR § 214.2(k)(5), however, reveals that there is authority to extend the validity of the K-1 petition for an additional 4 months:

Validity . The approval of a petition under this paragraph shall be valid for a period of four months. A petition which has expired due to the passage of time may be revalidated by a director or a consular officer for a period of four months from the date of revalidation upon a finding that the petitioner and K-1 beneficiary are free to marry and intend to marry each other within 90 days of the beneficiary’s entry into the United States. The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States.

The State Department’s Foreign Affairs Manual at 9 FAM 41.81 Note 6.2 provides further authority to extend the K-1 any number of times:

An approved K-1 visa petition is valid for a period of four months from the date of Department of Homeland Security (DHS) action and may be revalidated by the consular officer any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary’s admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intentions of the couple, particularly the intentions of the petitioner in the United States. If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, the petition should be returned to the approving office of DHS with an explanatory memorandum.

Notwithstanding this authority in the 8 CFR and the FAM, it makes no sense for the USCIS to refuse to give the petitioner an opportunity to respond on the ground that the K-1 has a limited validity of only 4 months. If that is indeed the policy, it also makes no sense for a US Consulate to even return a K-1 petition for revocation. It is a waste of time, government expense, and falsely raises the expectations of the affected parties who may be looking forward to challenge the illusory revocation.

When a K-1 petition is sent for revocation, it is also not prudent to file a new I-129F petition for a new K-1 visa. Consuls can be quite cynical, and will most likely instruct the K-1 visa applicant to wait for a resolution of the prior petition, which was recommended for revocation, before they will adjudicate the new K-1 visa. The love birds may decide that enough is enough, and one may pop the question to the other, and they get married. This ends the fiancé or fiancée relationship, and the I-129F petition is now rendered moot, even though it has been sent for revocation. The US citizen files a well documented I-130 petition establishing the bona fides of the marriage so that the foreign national spouse can apply for an immigrant visa at the US Consulate upon the approval of this petition. Surely, the consul should not be able to say that the post is still awaiting the outcome of the resolution of the K-1 petition. There is no longer an intent to get married, the parties are now married! The petitioner cannot possibly fight the NOIR, if at all it is issued, on the I-129F. It is hoped that a consul will independently look at the bona fides of the marriage de novo without asking the spouse to wait for the outcome of the K-1 visa petition.

On the other hand, it should not be assumed that the marriage of the couple and the subsequent filing of an I-130 petition would provide the panacea to the problem of the K-1 being sent for revocation. The consul may also hold up the immigrant visa processing on the ground that there was fraud or misrepresentation in the K-1, and this would provide an independent ground of inadmissibility under INA § 212(a)(C)(6)(i) to deny the immigrant visa application. Under such circumstances, in the event that a belated NOIR is issued on the K-1, it may be well worth it to respond to the allegations even though there is no longer a fiancé or fiancée relationship, and Marc Ellis in an insightful article also suggests a similar strategy, http://www.ilw.com/articles/2006,0323-ellis.shtm. Here too, it makes no sense for the consul to find prior fraud during the K-1 visa interview (if the consul suspected their bona fide intention to marry) when the couple have further reaffirmed their bona fides after marrying, but as we know, a lot of things do not make sense in K-1 visa processing these days. In my opinion, the K-3 may not be worth it as the I-130 petition is being approved quite quickly, and if both the I-130 and the I-129F get approved simultaneously, the National Visa Center will process the I-130 and not the K-3 for consular processing.

Given the risks of K-1 revocations, and all the complications accompanying such revocations, it behooves an I-129F petitioner to thoroughly document the relationship with the fiancé or fiancée, including trips together or meetings, exchange of correspondence, gifts to each other, and affidavits from others, such as friends and relatives, attesting to the relationship. Moreover, although an engagement ceremony is not required, if such an engagement ceremony did indeed take place, it should be thoroughly documented and explained within its cultural or religious context. The petitioner and his or her fiancé (e) should also include a detailed statement about how they first met, their contacts with each other, and about their clear plans to get married in the US.

Finally, it is extremely important to note that the parties should not be married prior to the grant of the K-1 visa as that would vitiate the I-129F. Even an unregistered marriage ceremony, so long as it is recognized as a marriage in the country, such as a Hindu marriage in India, will be considered a marriage and would invalidate the I-129F petition. Under those circumstances, the petitioner should withdraw the I-129F, and instead, file an I-130 petition. Even if a marriage has occurred, it should not be assumed that it would be considered bona fide. Similar documentation must be submitted with the I-130 petition, including proof of the wedding, to further establish the bona fides of the marriage so as to ensure a smooth and quick grant of the immigrant visa at the consular post.

Cyrus Mehta

MATTER OF LEGASPI: NARROWING THE SCOPE OF 245(i) GRANDFATHERING FOR DERIVATIVE BENEFICIARIES

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By Cyrus D. Mehta

§ 245(i) of the Immigration and Nationality Act, which sunset on April 30, 2001, has been a great boon for those who are not in status in the United States. It permits adjustment of status of certain aliens who are unable to adjust under § 245(a) for entering without inspection or who are disqualified under § 245(c) of the Act, which include those who have accepted unauthorized employment or are in unlawful immigration status.

Even though more than 9 long years have elapsed since April 30, 2001, § 245(i) permits certain aliens to remain “grandfathered” if they were beneficiaries of visa petitions or labor certifications filed on or before April 30, 2001 provided they were properly filed and approvable as filed. See 8 CFR § 245.10(a). Derivative beneficiaries too, as specified in § 203(d), such as spouses or minor children who could accompany the principal beneficiary, can claim the benefit of grandfathering under § 245(i).

This is how § 245(i) works. A labor certification was filed prior to April 30, 2001 on behalf of principal alien “A” who was married to spouse “B” and who had a minor child “C” at the time of the filing. All of the aliens are grandfathered under § 245(i) even till this day. This is true even though “C” is no longer a minor and “B” may no longer be married to “A.” As long as the labor certification was properly filed and approvable as filed on behalf of “A” prior to April 30, 2001, it does not matter that the employer subsequently withdrew the labor certification in 2003. All of these aliens, “A,” “B” and “C,” if the subject of new labor certifications in 2010, may ultimately adjust status under 245(i) notwithstanding the fact they are not lawfully present. “A”, “B” and “C”, however, had to have been in the United States on December 21, 2000, assuming that the labor certification was filed after January 14, 1998.

In Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010), http://www.justice.gov/eoir/vll/intdec/vol25/3694.pdf, the Board of Immigration Appeals (BIA) narrowed the scope of § 245(i) grandfathering for derivative beneficiaries by depriving them of conferring a similar 245(i) benefit to their spouses. After Matter of Legaspi, spouses of derivative beneficiaries cannot grandfather by virtue of being married to an alien who is grandfathered under § 245(i). In this case, the respondent was married to Ms. Blanco who was grandfathered under § 245(i), and thus he too claimed to be similarly grandfathered under § 245(i). Ms. Blanco qualified as a derivative beneficiary by virtue of an I-130 visa petition that her grandfather filed on her father’s behalf in 1987. Even though she never became a permanent resident under the 1987 petition, the BIA acknowledged that she remained a grandfathered alien under § 245(i).

The BIA rejected the respondent’s claim to be an independently grandfathered alien under § 245(i) by virtue of his marriage to Ms. Blanco in 2003. He was unable to adjust status under § 245(a) because he was not in lawful status, and needed § 245(i), as a defense in removal proceedings. This part of the BIA’s decision is consistent with a Memo from William R. Yates, USCIS dated March 9, 2005 (USCIS 245(i) Memo), http://bit.ly/dsyJJb, which is the government’s latest interpretation on § 245(i), and states that a spouse who marries a grandfathered alien after April 30, 2001, cannot independently “grandfather” under § 245(i). On the other hand, the USCIS 245(i) Memo did acknowledge that such a spouse could still seek to adjust status under § 245(i) as a dependent of the “grandfathered” alien:

An application for labor certification is filed on behalf of principal alien “A” in 2000. At that time, principal alien “A” is unmarried. Principal alien “A” marries spouse “B” in 2002. Principal alien “A” and spouse “B” have child “C.” An I-130 is filed on behalf of principal alien “A” and is ultimately approved in 2004. Principal alien “A” applies for adjustment of status. May spouse “B” and child “C” apply for adjustment of status under section 245(i) in conjunction with principal alien “A”?

If all other grandfathering requirements are met, spouse “B” and child “C” may seek to adjust status only as dependents of the principal alien “A.” Principal alien “A” is grandfathered as described in Scenario 1. Because spouse “B” marries principal alien “A” after April 30, 2001 sunset date, spouse “B” and child “C” are not grandfathered.

Until Matter of Legaspi, it was thought that a spouse who married any grandfathered alien after April 30, 2001, even if not independently grandfathered, could still adjust under §245(i) as a dependent of the grandfathered alien. This was assumed even if the original alien became grandfathered as a derivative beneficiary, such as Ms. Blanco. While in Matter of Legaspi, the respondent spouse was not seeking to adjust with Ms. Blanco but was eligible to adjust as a following to join spouse (revised on 10/12/10), the BIA’s opinion threatens to shut off this possibility too. The BIA argues that had Ms. Blanco been married at the time of her grandfather’s petition in 1987, she would not have been qualified as a derivate beneficiary as she would not have met the definition of “child” for purposes of § 203(d).

It is this aspect of the BIA’s decision in Matter of Legaspi that is problematic. While one can agree that a derivative beneficiary such as Ms. Blanco must have been single in order to qualify as a “child” at the time the petition was filed in 1987, Ms. Blanco continues to remain “grandfathered” under § 245(i) even after she ceases to be a child and even after she marries. Should she adjust status through a post-April 30, 2001 filed labor certification, her spouse (who may not be eligible under § 245(a)) ought to be able to adjust with her as a dependent under § 245(i). § 245(i) provides an eternal grandfathering benefit to qualified aliens, even after they ceased to be spouses and children. Once they are “grandfathered,” a new spouse ought to be able to at least adjust with them as dependents under § 245(i).

Matter of Legaspi, in this sense, erroneously interprets § 245(i), which was a generous provision that sought to allow aliens who were not otherwise eligible to be able to file an adjustment application in the US. Under the BIA’s logic in Matter of Legaspi, aliens other than derivative beneficiaries could also be affected. Anyone who got protection under § 245(i) by virtue of being single, such as an adult son or daughter of a permanent resident spouse, may not be able to have their “after acquired” spouses adjust with them as dependents under § 245(i).

It is hoped that the BIA clarifies its position in a future decision. While Matter of Legaspi makes clear that an “after acquired” spouse cannot independently grandfather under § 245(i), such a spouse ought to at least be able to adjust status as a dependent.

Cyrus Mehta

BOOMERANG: THE MOSQUE CONTROVERSY AND OTHER IMMIGRATION EXCESSES

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By Gary Endelman and Cyrus D. Mehta

There is growing Islamophobia engulfing the country combined with a rise in xenophobia, http://www.time.com/time/nation/article/0,8599,2011798,00.html. The Islamophobia has been unleashed as a result of the unfortunate controversy over the Islamic center and mosque that will be built within two blocks of Ground Zero. Much has been written about this controversy, but there has been scant commentary about its impact on immigration and immigrants. It is time to step into this lacuna, which we do so in this blog post to link this Islamophobia to the xenophobia against immigrants. We are especially motivated to write after an immigrant Bangladeshi cabbie in New York last week was almost stabbed to death after the passenger, his assailant, realized he was a Muslim. More recently, arson has been suspected at a proposed construction site for a mosque and Islamic cultural center in Murfreesboro, Tennessee. Strangely, anti-Islamic sentiment, which was largely absent after September 11, has suddenly flared in New York City after the controversy surrounding the proposed Islamic center, even though two strip clubs, liquor stores and criminal defense attorneys who represent suspected terrorists thrive within two blocks of the WTC site, http://blogs.wsj.com/metropolis/2010/08/26/anti-muslim-bias-absent-after-911-surfaces-in-new-york/ . Ironically, two mosques have always existed in the vicinity for years and not a word was said about them.

An anti-Islamic sentiment seeped into immigration enforcement policy immediately after the September 11, 2001 attacks. Non-citizens from Muslim countries were rounded up, and when they could not charge them with links to terrorism, they were detained and deported in secret for immigration violations unrelated to terrorism. In late 2002 and early 2003, the immigration agency, under Attorney General Ashcroft, and his lieutenant Kris Kobach (who has also helped draft Arizona’s SB 1070), invented Special Registration to target only males from countries with mainly Muslim populations. They were required to report within a short time frame or face both immigration and criminal consequences. Those who faithfully reported, thinking they were helping law enforcement, but were found to have immigration violations, were quickly put in removal proceedings. Although more than 80, 000 males reported for Special Registration, no one was caught for terrorism. But over 13,000 men were put in removal while their wives, sisters and daughters were not. The program was a spectacular flop, a waste of resources for the immigration agency and tax payer, and most problematic of all, it antagonized immigrant communities who trusted that the government was neutral even after the September 11 attacks. Even though overt immigration polices against Muslims were disbanded, one still could not help notice the occasional visa applicant from a Muslim country not being approved for a visa or being denied naturalization for a flimsy reason.

But all this pales in proportion to the recent hate and invective we have see against Muslims after political leaders such as former Alaska Governor and Vice Presidential candidate Sarah Palin and former House Speaker Newt Gingrich, have made political capital of the mosque near Ground Zero controversy in the Summer of 2010. Gingrich has even equated Islam to Nazism, forgetting that those who caused the September 11 attacks hijacked Islam in the same way as the pastor of a Christian church in Florida has just hijacked Christianity by organizing a Koran burning day on September 11, 2010. Also note the nauseating description of Islam by Franklin Graham on national television calling it a devilish faith and his discussion of the “Muslim seed” of Obama.

Islamophobia is not growing in a vacuum and cannot be understood or appreciated without a reference to the pervasive economic anxiety gripping this nation and others in the developed world. It is the dramatic difference in economic conditions that accounts for the upsurge in Islamophobia now and its relative absence at the time of 9/11.This is not strange at all. Remember when Hitler came to power? The link between xenophobia and economic anxiety is a global rather than merely an American phenomenon, http://www.businessworld.in/bw/2010_07_31_Xenophobia_At_Work.html. A dark
tribalism has also engulfed Europe, with Switzerland constitutionally banning minarets and France outlawing the burqa, http://www.newsweek.com/2010/02/18/europe-s-big-choice.html. Migration itself is a global phenomenon and no country can frame immigration policies purely in a domestic context without reference to this wider movement of peoples across national boundaries. This is particularly the case throughout the developed economies of Europe, Japan and the United States where the population is aging, birth rates are dropping and only immigration can supply sufficient workers young enough to support complex and costly social systems. However, the very dependence on such migration in a time of economic anxiety also fuels a latent but increasingly emergent social dislocation, a sense that cultural realities are changing in a way that seems both menacing and hard to understand. This is what you see in the many tea party rallies when people bring signs saying they want to take their country back. Once again, this is an international problem. Even countries like the Netherlands that have long and proud traditions of humane immigration policies are changing in response.

The link between immigrants and radicalism goes back to the earliest days of the Republic. Federalists roundly condemned French immigrants as dangerous Jacobins and pressed President John Adams to sign the Alien and Sedition Acts in 1798 as a way to turn back the rising tide of Jeffersonian democracy. The nativist appeal of the Know Nothing movement in the 1840’s and 1850’s was fueled, in large measure, by the economic anxiety that swept through the industrialized North, especially among working class voters most fearful about competition for low-wage jobs that the enormous wave of recently arrived Irish immigrants presented. Throughout our history, the tenor of our immigration laws reveals a great deal about the national mood. The adoption of the first immigration restrictions in 1924 arose out of the disillusionment with foreign entanglements in reaction to the First World War. After the Pearl Harbor attack on December 7, 1941, 120,000 people of Japanese American ancestry were kept in internment camps from 1942 to 1946 (and approved by Cal. AG Earl Warren of all people!), which illustrates how the scapegoating of immigrants can come back to eviscerate the rights of citizens as well, http://www.immigrationpolicy.org/special-reports/have-we-learned-lessons-history-world-war-ii-japanese-internment-todays-secret-deten. The numerous ideological exclusionary grounds in the 1952 McCarran-Walter Act, unsuccessfully vetoed by President Truman, spoke of a frightened nation in the grip of Cold War hysteria. The abolition of the national origins quota in 1965 should properly be considered one of the hallmark civil rights measures of the Great Society. Passed the same year as the Voting Rights Act and only a year after the 1964 Civil Rights Act, the 1965 immigration law was the product of a confident and prosperous nation ready to embrace the world. The American Competitiveness in the 21st Century Act, passed at the peak of the dot.com boom in 2000, displayed an economic vitality whose expansion seemed to know no limit. The Schumer assault on H/L fees against companies that hire more than half their work force on H-1B and L visas, mainly Indian IT companies, most recently speaks of a frightened people who feel that they can no longer compete and worry that their time has past.

In light of this disturbing trend, noted columnist Tom Friedman in a recent New York Times Op-Ed best explains why it is important from a US immigration policy perspective to support the building of the Islamic Center, which will essentially be a 13 story building taken up by an auditorium, pool, gymnasium, offices and an exhibition space:

That resistance to diversity, though, is not something we want to emulate, which is why I’m glad the mosque was approved on Tuesday. Countries that choke themselves off from exposure to different cultures, faiths and ideas will never invent the next Google or a cancer cure, let alone export a musical or body of literature that would bring enjoyment to children everywhere.

When we tell the world, “Yes, we are a country that will even tolerate a mosque near the site of 9/11,” we send such a powerful message of inclusion and openness. It is shocking to other nations. But you never know who out there is hearing that message and saying: “What a remarkable country! I want to live in that melting pot, even if I have to build a boat from milk cartons to get there.” As long as that happens, Silicon Valley will be Silicon Valley, Hollywood will be Hollywood, Broadway will be Broadway, and America, if we ever get our politics and schools fixed, will be O.K. http://www.nytimes.com/2010/08/04/opinion/04friedman.html

We also admire Mayor Bloomberg for standing firm to his convictions and not retreating like other politicians have. How far will such a “no-mosque” zone stretch from the WTC site? Mosques that are being proposed in Staten Island, NY, and even as far in Murfreesboro, Tennessee, have met with virulent resistance. Even though President Obama admirably defended the right of Muslims to build the center, the next day he somewhat retreated by indicating that he was not commenting about the wisdom of building the mosque near Ground Zero. The following extract from Bloomberg’s no-compromise address at Gracie Mansion on August 24 is worth noting, http://blogs.wsj.com/metropolis/2010/08/24/bloomberg-on-mosque-a-test-of-our-commitment-to-american-values/:

Nonetheless, it was not so long ago that Jews and Catholics had to overcome stereotypes and build bridges to those who viewed them with suspicion and less than fully American. In 1960, many Americans feared that John F. Kennedy would impose papal law on America. But through his example, he taught us that piety to a minority religion is no obstacle to patriotism. It is a lesson that needs updating today, and it is our responsibility to accept the challenge.

The ill-conceived sacrifice of religious toleration will neither ensure our safety nor promote our security. As Benjamin Franklin reminded the Pennsylvania Assembly in February 1775, those “who would give up Essential Liberty to purchase a little temporary safety deserve neither liberty nor safety.” Memoirs of the life and writings of Benjamin Franklin (1818). Think of this when former House Speaker Newt Gingrich pollutes the national discourse by comparing those who advocate the Muslim cultural center with Nazis. Remember well when Senator Schumer slanders major Indian IT giants like Infosys or Wipro and compares them to criminals who steal cars and chop them up for parts, http://cyrusmehta.blogspot.com/2010/08/world-according-to-senator-schumer-if.html. Indeed, the very use of the term “job shop” suggests illegitimacy and even the concept of an “H-1B dependent” employer, not to mention the refusal of Congress to expand manifestly inadequate immigrant visa quotas, derives in no small measure from an unspoken but powerful bias against the “threat” of Indian migration. Popular frustration over federal inaction metastasizes into state-sanctioned bigotry like that directed against illegal immigrants through SB 1070 in Arizona. http://cyrusmehta.blogspot.com/2010/07/no-room-at-inn-sb-1070-and.html.

Nativist excess has a price tag. Here is a great example.http://www.azcentral.com/community/chandler/articles/2010/06/24/20100624chandler-arizona-immigration-california.html. An Arizona construction company lost out on a major construction contract to expand LA international airport precisely because the LA City Council boycotted Arizona in the wake of their state immigration law. Moreover, the Immigration Policy Center reports that over 35,000 businesses in Arizona are Latino-owned and had sales and receipts of $44 billion in 2004, which employed over 39,363 people in 2002, the last year in which such data was available, http://www.americanimmigrationcouncil.org/newsroom/release/how-much-will-arizonas-immigration-bill-sb1070-cost. “Gov. Brewer should keep in mind that, if significant numbers of immigrants and Latinos are actually persuaded to leave the state because of this new law, they will take their tax dollars, businesses, and purchasing power with them.”

The demonstrable willingness of our political leadership to demagogue against immigration contributes to a willingness in the body politic at large to equate all immigrants with a malignant terrorism against which our heralded commitment to diversity must and will give way. It is not that far a walk from portraying immigrants as the source of our economic malaise to depicting all Muslims as silent accomplices in 9/11. Nor is this the first time in our history when such a sad state of affairs has come to pass. As Abraham Lincoln wrote to his great good friend Joshua Speed on August 24, 1855:

Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.” We now practically read it, “all men are created equal except negroes.” When the Know-nothings get control, it will read, “all men are created equal except negroes and foreigners and Catholics.” When it comes to this, I shall prefer emigrating to some country where they make no pretense of loving liberty–to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy.

Yet, all is not lost for we have emerged from other times of torment and returned to what Lincoln’s First Inaugural so rightly and famously called “the better angels of our nature.”. In time, the fever will break and America will regain its moral balance. The crusade against Islamophobia and all forms of nativist excess can only be won if America once again believes in itself. F. Scott Fitzgerald had it right:

France was a land, England was a people, but America, having about it still that quality of the idea, was harder to utter…. It was a willingness of the heart. The Crack-Up (1936).

Cyrus Mehta

Follow the Money: What the OES Counts That You Can’t

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By Gary Endelman and Cyrus D. Mehta

What is the main complaint against foreign workers? Simple: They undercut American wages. How do we know that one might ask? Well, critics like Senator Charles Schumer (D-NY), who unveiled and passed HR 6080, the Border Security Emergency Supplemental Appropriations Act of 2010, do not tell us but the government actually does have a well established program to measure all this called the Occupational Employment Statistics survey. The Occupational Employment Statistics (OES) program conducts a semi-annual mail survey designed to produce estimates of employment and wages for specific occupations, www.bls.gov/oes/oes_emp.htm. All you have to do is to pay the foreign worker, when filing either an H-1B or labor certification application, based on what the OES says he or she should be paid and you know why our economy is in the ditch. While an employer is free to challenge the DOL’s reliance on the OES with a private wage survey, such a challenge is often costly and time consuming. So, it seems that perhaps we might take a closer look at this OES survey to find out what it is all about. Then, so the argument goes, we will know why H and L visa fees need to be higher, why DOL needs to audit more labor certifications and why Congress should declare a moratorium on all immigration.

How does the OES define “wages”? Let’s take a look at the OES website,
http://www.bls.gov/oes/oes_ques.htm#Ques3

How are “wages” defined by the OES survey?

Wages for the OES survey are straight-time, gross pay, exclusive of premium pay.
Included in the collection of wage data are:
· base rate,
· cost-of-living allowances,
· guaranteed pay,
· hazardous-duty pay,
· incentive pay, including commissions and production bonuses,
· on-call pay, and
· tips

Notice the inclusion of tips and incentive pay including commissions and production bonuses. These are obviously not guaranteed by their very nature. Now, this is passing curious since the Department of Labor PERM regulations bar consideration of such incentive compensation: “wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis.” 20 CFR 6456.20(c)(3). Nor is this contradiction limited to PERM We find it in the H-1B regulations as well, something that Senator Schumer probably knew but the rest of us perhaps overlooked: If you look at the 20 CFR 655.731(C)(2)(v) definition of “cash wages paid” for purposes of satisfying H-1B required wage, you see the following: “future bonuses and similar compensation…may be credited toward satisfaction of the required wage obligation if their payment is assured(i.e. they are not conditional or contingent on some event such as the employers annual profits)…” ( emphasis added). So using this definition, tips, commissions, and other forms of incentive pay could not be considered by the employer in demonstrating satisfaction of the required wage obligation even though OES considers them in setting the prevailing wage!

Well, what about fringe benefits? This is a way that employers reward performance without raising base salaries. Surely, DOL allows this you ask? Not so fast my eager young friend! In 1991, the Board of Alien Labor Certification Appeals (BALCA) decided a case styled Kids“R”Us, 89-INA-311 (Jan 28,1991). If you read this case,and you will doubtless want to after reading this blog, pay special attention to page 4 which talks about calculating the value of fringe benefits and relies upon Peddinghaus, 88-INA- 79 (July 6, 1988). The whole point is to allow a precise determination of how much the fringe benefits were worth- in contrast to OES acceptance of tips, bonuses and other incentive pay that cannot possibly be calculated with any degree of exactitude unless and until they are paid. Even if unique, fringe benefits must be guaranteed and cannot be based on contingent payments, such as bonuses based on profits or tips. In Kids”R”Us, the following benefits were brought forward by the employer as part of the salary:

· medical plan with HOM and Major Medical for which employee only paid $5 per week
· paid vacation
· life insurance
· stock options
· stock purchase program which company assisted by paying all brokerage fees and adding 10% to any employee purchase
· company paid profit sharing where employee had to pay nothing while company kicked in 8% into a retirement fund
· 401K where the company matched 1/2 of employee’s contribution

None of these depended upon corporate performance or profitability. They were not contingent compensation.The discrepancy between how the OES determines wages and how employers are allowed to do so is not a new controversy. Consider the following discussion between the American Immigration Lawyers Association and the Department of Labor from the last century:DOL/AILA Liaison Meeting Minutes (3/19/99)
DRAFT MINUTES OF DOL/AILA LIAISON MEETING ON MARCH 19, 1999

Question: It is our understanding that the OES survey reflects “total compensation,” including incentive compensation and bonuses. We understand that the set of instructions sent with the questionnaires instructed participating companies to include items such as bonuses as part of the reported wages? Is this true? If so, does this not run contrary to the requirement that the “wage offered is not based on commissions, bonuses or other incentives, unless the employer guarantees a wage paid on a weekly, bi-weekly, or monthly basis.” 20 CFR 6456.20(c)(3). Similarly, does the Service Contract Act also report total compensation benefits? In general, may an employer include sign-on bonuses, incentive pay, transportation and relocation allowances, which are all, reported as income to the IRS, as part of the salary? It the OES wage survey definition of compensation includes incentive pay, should we not be citing surveys that report “total cash compensation” wages rather than the “base salary”?

Answer: USDOL indicated that if a guaranteed bonus was paid every year, it could be considered as part of the prevailing wage.Question kind sir: Do the companies that respond to the OES survey have to prove they pay a guaranteed bonus every year or any year for that matter? Fast forward a few years and we come another AILA-DOL discussion of OES wage methodology from March 22, 2001:

QUESTION: The OES survey includes the use of discretionary bonuses, including production bonuses, commissions, cost-of –living allowances and the like. The OES wage computations in OES do not comply with the definition of weighted average of the salaries of workers surveyed. OES does not obtain specific salaries for each worker but rather requests that employers identify how many employees fit into defined wage ranges. There are other flaws in the OES, including the fact that there are only two levels, and Level II has the same range for highly experienced workers and moderately experienced workers.

ANSWER: DOL is aware of the issues regarding the OES. The regs do not mandate it’s use, but it is the best that DOL has to offer. OES will not be changed in the near future, so we will all have to live with the status quo. The PERM proposal will address prevailing wages and AILA will have an opportunity to comment on this issue in that context. However, DOL is continuing to provide training to SESA’s on prevailing wage determinations and assessing employer-provided surveys.

What most attorneys practicing today do not realize is that the OES has only been applied to labor certification since General Administrative Letter 2-98 on October 31,1997. Before then, as us folks who have been in the practice for a few more years remember, the state workforce authorities ( SWA of blessed memory) conducted a customized wage survey for each employer. OES was never meant to apply to labor certification and always took incentive compensation into account because, for most wage settings, this is accepted as part of what workers really got paid. At the time, our eagle-eyed colleague Deborah Notkin wrote a prophetic article entitled Labor Certification Practice: Coping With GAL 2-98 and the Occupational Employment Statistics (OES) Program that appeared in the May 3, 1999 issue of Interpreter Releases. The clash between the OES and labor certification became more painful when the OES switched to the Standard Occupational Classification System in 1999. This is the same system that DOL uses today to determine prevailing wages. Listen to how it operates:

“In 1999, the OES survey began using the Office of Management and Budget (OMB) Standard Occupational Classification (SOC) system. The SOC system is the first OMB-required occupational classification system for federal agencies. The SOC system consists of 821 detailed occupations, grouped into 449 broad occupations, 96 minor groups, and 23 major groups. The OES survey uses 22 of the 23 major occupational groups from the SOC to categorize workers in 1 of 801 detailed occupations…he OES survey’s transition to the new SOC system, estimates are not directly comparable with previous years’ OES estimates, which were based on a classification system having 7 major occupational groups and 770 detailed occupations. Approximately one-half of the detailed occupations were unchanged under the new SOC system, with the other half being new SOC occupations or occupations that are slightly different from similar occupations in the old OES classification system.” http://www.bls.gov/oes/oes_emp.htm

O*NET is based on the SOC system. It is the compressed nature of this system in its occupational categorization that often produces distorted wage surveys. Note when the OES began using SOC, not that far after GAL 2-98. It was only then that the SOC system acquired legal and logical relevance for labor certification.

So, if there is a double standard in the calculation of what wage should be paid, and if the OES system is used to penalize employers who have the temerity to file H1Bs and labor certifications when the methodology underlying the entire OES concept was never meant to apply to immigration in the first place, how in the name of Sam Adams and the Continental Congress did we wind up in this mess? For that, dear reader, you must endure a little history lesson. In 1993, Vice President Al Gore inaugurated the National Performance Review. From the point of view of labor certification, the impact of the National Performance Review was that the DOL, among other federal agencies, was asked to identify opportunities for reducing expenditures. The resulting savings would contribute to balancing the federal budget, which at that time was running heavily in the red. At the DOL, the labor certification program was a prime candidate for cutbacks. Being at the center of the labor certification process, the DOL experienced its artificiality and unreasonableness “up close and personal.” It would be only natural for budget officials and other high officials in the DOL to dislike such a program. With this background, the DOL inaugurated its re-engineering” initiative for labor certification in 1995. See Reengineering of Permanent Labor Certification Program; Solicitation of Comments, 60 Fed. Reg. 36440 (July 17, 1995) reported and reproduced in 72 Interpreter Releases 976,993 ( July 24, 1995).

The National Performance Review reported to the President in September 1995 that $223.8 million could be saved over five years in the labor certification program by “streamlin[ing] the alien labor certification process[,] by decentralizing authority to state employment agencies and automating form processing.” National Performance Review, Ch. 2, “Getting Results” ( Sept. 7, 1995) It described its proposal as follows:

“Streamline Alien Labor Certification: Streamline and speed up the [DOL’s] Alien Labor Certification process by decentralizing authority to state employment security agencies, consolidating DOL regional processing centers from 10 to four, and automating forms processing. Under this proposal, DOL will conduct spot audits of about 2 percent of its cases rather than review all state certifications. Also, states will be authorized to charge user fees to those few employers who use this service.” National Performance Review, “Appendix C: New Recommendations by Agency” ( Sept. 7, 1995).

The Clinton Administration reduced the size of federal civilian workforce by 426,200 positions between January 1993 and September 2000, shrinking 13 of 14 departments.http://govinfo.library.unt.edu/npr/whoweare/appendixf.html. From 1992 to 2000, the federal workforce was reduced by about 20 percent. http://www.innovation.cc/discussion-papers/nat-performance.htm . None of the proposed changes that the DOL outlined in the National Performance Review actually happened. What did happen was that funding for labor certification was reduced from $60 million in 1993 to $40 million in 1997. These cuts contributed to the National Performance Review’s aims, but none of the proposed reforms materialized. With the National Performance Review looking for federal programs to cut, the DOL’s Employment and Training Administration (ETA) requested the DOL’s Office of Inspector General (OIG) to conduct an audit of the labor certification program: “Since ETA requested the audit, we have launched our own reengineering efforts through the National Performance Review initiative to address program weaknesses and to achieve a more rational allocation of resources.” U.S. Department of Labor, Office of Inspector General, Office of Audit, Final Report: The Department of Labor’s Foreign Labor Certification Programs: The System is Broken and Needs To Be Fixed. Rep. No. 06-96-002-03-321 ( May 22, 1996). Herein lay a double irony: not only was the ETA asking for an audit that criticized the ETA, but the ETA felt alienated from its own roots because the ETA’s predecessor agency grew out of the Bureau of Immigration. Such cultural contradictions are the inevitable, though unintended, consequence of a system founded on a negative premise.

From 1992 to 2000, as a result of Vice President Gore’s National Performance review, the federal workforce shrank by about 20 percent, http://www.innovation.cc/discussion-papers/nat-performance.htm. The Clinton Administration reduced the size of federal civilian workforce by 426,200 positions between January 1993 and September 2000, http://govinfo.library.unt.edu/npr/whoweare/appendixf.html. This was why GAL 2-98 came about, why the SWAs stopped doing wage surveys and the job of determining prevailing wages for labor certification cases went to Bureau of Labor Statistics that was already using OES for non-labor certification wage survey purposes. PERM today is the fruit of the Clinton Era emasculation of labor certification funding and is the perfect expression of a dysfunctional program whose internal contradictions have never been resolved. What began as a desire to reinvent government ended in the shot-gun marriage of OES and labor certification when the Department of Labor abandoned the very concept of a meaningful prevailing wage to the tender mercies of its critics.

The H/L fee hikes sponsored by Senator Schumer are a continuation of what Senators Durbin and Grassley began in 2009, namely to use the OES wage system as a way to punish employers for sponsorship of work visas. Under the Durbin- Grassley proposal (S. 887 ), an employer who transfers an L employee to the U.S. for a cumulative period of time in excess of over 1 year would have to pay the prevailing wage, for Skill Level 2 in the most recent Occupational Employment Statistics (OES) Survey. Incidentally, the Skill Level 2 requirement also applies to H-1B workers, and thus if someone is legitimately an entry level worker, and can qualify for the H-1B visa, Durbin- Grassley would still requires the employer to pay the higher level wage even though a U.S. worker in a comparable situation may command the entry level wage. The full text of S. 887 may be found here, http://www.govtrack.us/congress/bill.xpd?bill=s111-887. The OES is not neutral. From the time of GAL 2-98 to today, those who seek to choke off employment migration to this country have consistently sought to expand its reach and impose ever more onerous conditions so that employers who had the temerity to file an application would think twice.

Moreover, when one thinks of OES, it should be in concert with the replacement of the DOT by O*NET with a dramatic collapsing of occupational categories and a downgrading of SVP quotients for many technical and scientific occupations that are the frequent subjects of labor certification. The end result of all this is artificially inflated wage determinations that must be paid by employers for less experience. We now have two forms of immigration restriction: numerical quotas set by Congress and qualitative restrictions applied by the DOL through the targeted deployment of administrative systems whose combined effect is to render successful immigration sponsorship more expensive, tedious and difficult. It would then be a mistake to believe that the world has not changed absent passage of CIR. In fact, the immigration calculus has shifted to a much less favorable posture so that legislative inaction has given way to administrative restraint.

There is another problem with the OES.The DOL violated the Administrative Procedure Act by adopting the OES system without providing stakeholders with the opportunity of notice and comment. Remember what BALCA said about attempts by DOL to make law through promulgating FAQs. In Matter of HealthAmerica, 06-PER -1 (BALCA July 16, 2006), the Board of Alien Labor Certification Appeals chastised the Certifying Officer’s reliance on FAQ No. 5:, : ” Whether FAQ No.5 provides persuasive authority depends on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements and all those factors which give it power to persuade… We find that FAQ No.5 imposes substantive rules not found in the PERM regulations, nor supported by PERM’s regulatory history, nor consistent with notions of fundamental fairness and procedural due process.” Cannot the very same things be said with regard to the decision to abandon SWA wage surveys and use OES? We think they can and, for this reason, the decision to change the way wage surveys were conducted for LC purposes without notice and comment is an APA violation and unlawful. This represented an adoption by BALCA of the standard of deference previously articulated by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Applying Skidmore deference, the weight accorded to such an administrative judgment “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore, 323 U.S. at 140. The failure of DOL to do any of this at the time they first applied the OES methodology to labor certification prevailing wage determinations following the promulgation of GAL 2-98 violated fundamental fairness and deprived DPL’s decision of Chevron-style deference. We concede that the DOL did follow APA when it promulgated PERM rules at 20 CFR 656. However, as noted above, these rules bar consideration of any form of incentive compensation. When confronted with this contradiction in the past, DOL has routinely claimed that it cannot control what BLS does Yet, facts are indeed stubborn things. Every time the DOL uses the OES to tell an employer what the wage should be, the DOL, is intentionally and consistently violating its own regulations which it cannot do under the Chevron test.

We propose that the best way to free up wages is to ensure that the worker is not held captive to the same employer for years. Once the H-1B worker arrives to work for the company that sponsored him or her, the requirement that a new employer again go through the same tedious application procedure be eliminated if the worker is in the same or similar occupation. Let’s free the H-1B worker to work for another company without the need to file a new petition or to even start his or her own company in the same occupation. Also, while this H-1B worker is being sponsored for permanent residency, he or she could be allowed to continue the green card process if working in the same occupation much sooner than the law allows presently. Presently, Section 204(j) of the INA only allows “green card” portability at the final stage of the process, when the adjustment application has been filed and has been pending for over 180 days. An Indian waiting in the EB-3 queue may have to wait for over a decade before being able to file an adjustment of status application. The law should be changed to make the H-1B completely portable following initial approval. Once this happens, an H-1B worker will be on the same footing as a US worker. The employer will have less of an incentive to keep captive an H-1B worker. The market will determine the wage to be paid to an H-1B worker who would have an easier access to another employer. If the H-1B visa becomes truly portable, the protection of the market, via occupational mobility, replaces the false protection of the LCA. Moreover, we also propose three possible ways to solve the OES problem, first urged by AILA in March 2001. In each case, the effect would be to ameliorate the artificial wage inflation now resulting from the allowance of incentive compensation and once again, as before the application of OES to immigration, restore the primary of market driven forces as the ultimate arbiter of salaries:(a) Back out all non-guaranteed calculations from the OES averages; (b) allow employers to include these same items in their wage offers for labor certification purposes; or (c) return to the pre-PERM era and allow variance in wage offers to bridge the gap between what OES defines as prevailing wage and what the employer can guarantee as base salary.

We know there is fear and loathing in the land for very good reasons. We know too that the misapplication of the OES wage methodology to immigration is not the whole problem or even most of it. Yet, it is key to what plagues our national conversation today for those who most loudly condemn substandard wages for foreign workers do not bother for a moment to acknowledge that those who decide these things are playing with the house’s money and a stacked deck. The most damning indictment against the Schumer Bill and the other manifestations of immigration protectionism is not that they will cost American job by inciting retaliation by our major trading partners, which will happen, or even that they promote a fortress American mentality at a time when our economic revival requires even greater integration into the global economy. Rather, it is that such misplaced antagonism rests upon an ignorance of history and serves more than anything else as an unspoken but undeniable admission that America’s best days are behind it. This is a lie that must not stand.