Cyrus Mehta

Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options

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By Cyrus D. Mehta

The sudden layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies in the US create additional concerns as their visa status is tied to the employer. Those who have been sponsored for permanent residence face additional concerns. We provide a quick guide to employees who have been laid off and how they can still be able to take steps to remain in status, and take advantage of the priority date already established on their behalf if they have been sponsored for permanent residency.  Although this blog provides guidance to terminated nonimmigrant workers, our recent prior blogs,  here and here, guide employers on their obligations when nonimmigrant workers are terminated

60 Day Grace Period

 As discussed in our prior blog, 8 CFR §214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all time, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on their own, such as to F-1, after enrolling in a school. If the worker may need more time to leave the US beyond the 60 days, they can apply for a change to B-2 visitor status. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR §214 .1(c)(4) and 8 CFR §248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Thus, an H-1B worker who has been terminated may be able to seek another employer to file an extension of status on their behalf within the 60 day grace period. As this worker has already been counted under the H-1B cap, the employer will not need to register under the next H-1B lottery and can immediately transfer H-B status through the new employer.

The maximum time that a noncitizen can spend in H-1B status is six years. If the worker has spent less than six years in the US, they can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. Any time not spent in the US during the prior H-1B status period can be recaptured based on trips made abroad. See 8 CFR 214.2(h)(13)(iii)(C).  If the individual is the beneficiary of an approved I-140 petition, and the final action date is not yet current under the State Department Visa Bulletin in the employment second (EB-2) or employment third preference (EB-3), the worker can obtain a three year H-1B extension even beyond the six years until the date has become current pursuant to § 104(c) of the American Competitiveness in the 21st Century Act. If the final action date is current under EB-2 or EB-3, the worker is entitled to a one year H-1B extension beyond six years under §106(a) of AC21. However, if an I-485 adjustment of status application has not been filed within one year, a worker may be precluded from talking advantage of the one year extension unless it can be shown that failure to file an immigrant visa or adjustment of status application was beyond the worker’s control, and this has been further explained in our prior blog.

Although a laid off L-1 worker will also be able to avail of the 60-day grace period, and is entitled to a maximum of seven years if in L-1A status or five years if in L-1B status (including recaptured time), filing an L extension through another employer would be challenging as the worker has to demonstrate that they have had one year of qualifying experience in an executive, managerial or specialized knowledge capacity for a parent, branch or subsidiary of the US entity in the past three years. If the employer can only file a change of status to H-1B, then unless the worker has previously been counted under a prior H-1B cap, they will have to wait to be registered in the next H-1B lotter in March 2023. Other options could include changing status to  O-1A if the terminated L-1  worker can qualify as a person of extraordinary ability.

 

Garden Leave and Nonproductive Status

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on November 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on November 1, 2022, but continues to be paid from November 1, 2022 till December 1, 2022 while in nonproductive status. This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor or as part of a severance agreement. Does the termination in this scenario occur on November 1, 2022 or on December 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a June 2020 USCIS Policy Memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination as occurring on November 1, 2022 rather than December 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act, even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be December 1, 2022 rather than November 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider November 1, 2022 as the termination date.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

 

Termination after Employment Sponsorship for Permanent Residence Already Commenced

 If the worker is already the beneficiary of an approved I-140 petition and is terminated, a new employer in addition to transferring the H-1B status may also file a new labor certification, and upon approval, file another I-140 petition. The priority date of the prior I-140 petition can still be retained.

Under 8 CFR 204.5(p), an employment authorization document (EAD) may be issued to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and if their priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble to the high skilled worker rule, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

Anecdotal evidence suggests that USCIS has been very niggardly in issuing employment authorization under compelling circumstances.

If the Form I-485 application has been pending for 180 days or more, the worker can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak.

[This blog is for informational purposes, and should not be viewed as a substitute for legal advice]

 

 

 

 

 

 

Cyrus Mehta

USCIS Guidance Enabling STEM Graduates to Obtain O-1 Extraordinary Visas Should Apply Equally to EB-1 Extraordinary Petitions for Green Cards

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By Cyrus D. Mehta & Jessica Paszko*

Earlier this year, the USCIS issued policy guidance in the USCIS Policy Manual to clarify how the USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on persons in science, technology, engineering, or mathematics (STEM) fields. The O-1A nonimmigrant visa is available to persons of extraordinary ability in the sciences, business, education, and athletics. The O-1B is available to  persons with a record of extraordinary achievement in the motion picture of television industry or to persons who have gained distinction in the arts. The new guidance has not added additional criteria or requirements for O-1A applicants in STEM, but has, among other things, added a chart in an appendix describing examples of evidence that may satisfy the O-1A evidentiary criteria, as well as considerations that are relevant to evaluating such evidence (with a focus on evidence and considerations that are relevant to STEM fields) and provides examples of qualifying comparable evidence that petitioners could provide in support of a petition for a beneficiary in a STEM field.

The O-1A visa is the nonimmigrant “cousin” of the employment based first preference immigrant visa (EB-1A) for individuals with extraordinary ability, often dubbed the Einstein visa. The two visa categories mirror one another and require petitioners to effectively establish the same evidentiary criteria. But note that the regulatory standards for an O-1A require that the beneficiary meet only eight rather than 10 criteria as the criteria for beneficiaries in the arts have been moved under a different section in the regulations at 8 C.F.R. § 214.2(o)(3)(iv). See the INA provisions for EB-1A under INA § 203(b)(1)(A) and the O-1A under INA § 101(a)(15)(O). See also the regulatory criteria for the EB-1A under 8 C.F.R. § 204.5(h)(3) and for the O-1A under 8 C.F.R. § 214.2(o)(3)(iii). However, and most notably, a victory under EB-1A comes with a green card, while a victory under O-1 comes with a temporary period of authorized employment. While there is no limit on the number of times that an O-1 can be extended, there are virtually no paths to citizenship for O-1 beneficiaries unless they can qualify under any of the other employment-based (EB) preference categories, such as EB-1, EB-2, or EB-3. However, the very reason that one many apply for the O-1 is because the other EB categories are not the right fit for that particular beneficiary. For instance, because they don’t have a qualifying degree or an employer who wishes to pursue the lengthy and costly PERM labor certification process on their behalf. Many who seek an O-1A are founders of their own companies which would make labor certification virtually impossible. Those who are unable to file labor certifications because they own their companies may sidestep the labor certification process by applying for a National Interest Waiver. Still, to apply for a National Interest Waiver, the USCIS considers whether the person’s proposed endeavor has both substantial merit and national importance, the person is well positioned to advance the proposed endeavor, and that it would beneficial to the U.S. to waive the job offer and thus the permanent labor certification requirements. See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). At the same time though, for some EB-2 beneficiaries, even those who can benefit from a National Interest Waiver, this path may not befit them with a green card for many years, even decades, if they are nationals of backlogged countries such as India or China. If Indian born beneficiaries can qualify for the O-1A under the new guidance, they should similarly be able to qualify for the EB-1A as this category is current for India and all other countries under the State Department Visa Bulletin.

8 CFR § 214.2(o)(3)(iii) provides that:

An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

To satisfy the second criterion, USCIS has typically required that the petitioner show that membership in the association requires outstanding achievements in the field for which classification is sought, as judged by recognized national or international experts. In cases where associations may have multiple levels of membership, the petitioner must show that in order to obtain the level of membership afforded to the beneficiary, the beneficiary was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. In light of the new policy guidance, USCIS has provided a possible example that may be helpful to STEM beneficiaries. It states:

[M]embership in the Institute of Electrical and Electronics Engineers (IEEE) at the IEEE fellow level requires, in part, that a nominee have “accomplishments that have contributed importantly to the advancement or application of engineering, science and technology, bringing the realization of significant value to society,” and nominations are judged by an IEEE council of experts and a committee of current IEEE fellows. As another possible example, membership as a fellow in the Association for the Advancement of Artificial Intelligence (AAAI) is based on recognition of a nominee’s “significant, sustained contributions” to the field of artificial intelligence, and is judged by a panel of current AAAI fellows.

With respect to the fifth criterion, the USCIS provides that “evidence that the beneficiary developed a patented technology that has attracted significant attention or commercialization may establish the significance of the beneficiary’s original contribution to the field. If a patent remains pending, USCIS will likely require additional supporting evidence to document the originality of the beneficiary’s contribution.”

While all O-1A petitioners may submit comparable evidence under 8 C.F.R. § 214.2(o)(3)(iii)(C) if the enumerated criteria do not readily apply to a particular beneficiary, in the STEM context, USCIS reiterates that “[a]s with all O-1A petitions, officers may consider comparable evidence in support of petitions for beneficiaries working in STEM fields. Specifically, if a petitioner demonstrates that a particular criterion does not readily apply to the beneficiary’s occupation, the petitioner may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition.” Relatedly, with respect to the evaluating the totality of the evidence, the policy manual provides that when “the evidentiary requirements specified above are satisfied, an officer proceeds to evaluate the totality of all the evidence in the record to determine whether the beneficiary has extraordinary ability with sustained national or international acclaim.” Here, “officers may consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence.” In the STEM context, this may occur when the “record establishes that the beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research.” In turn, this “type of evidence can be a positive factor indicating a beneficiary is among the small percentage at the top of the beneficiary’s field.”

The Biden Administration has clearly expressed its desire to expand immigration benefits for those in the STEM field but has not allowed them to take advantage of all immigrant visas, such as the EB-1A. While we applaud the government’s move to expand the O-1A visa category to cover those in the STEM field, we wonder why a similar expansion has not occurred for the EB-1A. After all, as mentioned, the two visa categories share similarities and both intend to welcome extraordinary individuals to the U.S. Both categories also require “a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” See 8 CFR §214.2(o)(3)(ii); 8 CFR §204.5(h)(2).  If the government endeavors to promote STEM fields, then it should also allow extraordinary individuals working in the STEM field to apply for the EB-1A. Allowing an extraordinary individual in the STEM field to easily become a permanent resident after obtaining the O-1A visa will allow this individual unfettered by the limitations of a temporary visa status to thrive and flourish, which in turn will benefit the United States.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

 

 

Cyrus Mehta

DOL Fails to Side with H-1B Worker who Claimed Back Wages Against Employers After Being Terminated

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By Cyrus D. Mehta and Kaitlyn Box*

H-1B workers can file complaints against employers to the Department of Labor if they are not paid the promised wage.  Ankit Jain is one such worker who filed complaints against two of his employers, Metromile, Inc, and Hinge Health, for back wages. When Mr. Jain was not satisfied with the initial decisions, he appealed them to an Administrative Law Judge (ALF). The ensuing decisions of the ALJ limiting back wages to Mr. Jain are instructive as the DOL will not always side with H-1B workers who claim back wages against their employers on grounds that they had not been properly terminated under technical DOL rules.

In Jain v. Metromile, Inc., ALJ Case No. 2021-LCA-00018 (July 19, 2022), Mr. Jain sought back wages after being terminated by his employer, Metromile. He accused his employer of not effectuating a bona fide termination, which required the employer to continue to pay him the wage.  Under the Labor Condition Application that is submitted with the H-1B petition, an employer must pay the required wage that has been promised in the LCA until the employer terminates the H-1B worker.

Earlier, in  Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006), the Administrative Review Board (ARB)) held that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii):  (1) the employer must expressly terminate the employment relationship with the H-1B worker,  (2) the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11), and (3) the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). The ARB in Amtel held that an employer can still be obligated to pay an H-1B worker back wages if it explicitly terminates his employment but fails to notify USCIS of the termination and/or pay for the employee’s return transportation.

Metromile had not paid for Mr. Jain’s return transportation to India and did not notify USCIS that his employed had been terminated until long after the fact. A few months after Mr. Jain was fired by Metromile, a second employer, ForeThought, filed an H-1B change of employer petition on his behalf, which got approved. The ALJ held that a “bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified an H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a ‘change of employer’.” Because Mr. Jain was aware that he had been terminated by Metromile and had no present need to leave the United States given that he was to begin work for a new employer in H-1B status, the ALJ did not find his previous employer liable for his return transportation costs. Moreover, the court held that Metromile was liable for back wages only for the period from Mr. Jain’s termination until the change of employer petition filed by ForeThought was approved, at which time a bona fide termination had been effectuated.

Jain v. Metromile reinterprets Amtel Group of Fla., Inc. v. Yongmahapakorn. The ARB in Amtel held that an employer can still be obligated to pay an H-1B worker back wages if it explicitly terminates his employment but fails to notify USCIS of the termination and/or pay for the employee’s return transportation. In a previous blog, we discussed Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017), which had previously modified the ARB’s holding in Amtel. In Vinayagam, the ARB held that an employer’s failure to pay return transportation costs for a terminated H-1B employee was not fatal when the worker voluntarily decided not to return to her home country but instead remained in the U.S. and sought H-1B status through a new employer.

In Jain v. Metromile, the ALJ held that the “Amtel definition is not the only means of making a bona fide termination.” Citing Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ Case No. 2011-LCA-025, slip op. at 10 (ARB) July 16, 2014, the ALJ held that when there are multiple H-1B employers, a strict reading of Amtel would render a former employer liable for back wages even if the H-1B worker changes employers, and this former employer would remain liable until the H-1B worker was provided the return transportation costs. Thus, when USCIS approves a “change of employer” petition, the back wage claim against the former employer stops accruing. Batyrbekov v. Barclays Capital involved an H-1B worker who was terminated by Barclay’s Capital, which failed to notify USCIS of the termination. Though another employer filed an H-1B petition on his behalf, Batyrbekov never began working for this employer. Batyrbekov sought back wages, but the Administrative Review Board (ARB) found that Barclays’ liability ended on the date that an H-1B petition filed by a new employer was approved on Batyrbekov’s behalf. The ARB held that “the Amtel definition of a bona fide termination cannot be strictly applied to cases involving multiple H-1B employers”. The ARB further opined that a bona fide termination can occur when an employer expressly notifies an H-1B worker that his employer is terminated and a new employer then files an H-1B “change of employer” petition for the worker that is approved by USCIS.

In January 2020, Mr. Jain began working for a third employer employer, Hinge Health. See Jain v. Hinge Health, Inc., ALJ Case No. 2021-LCA-00015 (July 19, 2022). Hinge Health terminated Mr. Jain in October 2020 and he filed a complaint to the DOL, which found that Hinge Health had failed to pay Mr. Jain required back wages in violation of 20 C.F.R. § 655.731 and had failed to either “offer equal benefits or equal eligibility for benefits or both” in violation of 20 C.F.R. § 655.731(c)(3). Jain appealed, arguing that Hing Health owed him additional back pay.  Jain alleged that the company failed to pay for his return transportation to his home country, failed to inform USCIS of his termination, and did not timely notify him of the withdrawal of his LCA. Shortly after his termination, Mr. Jain had signed a “Confidential Severance and General Release Agreement” in which he agreed to absolve Hinge Health of any claims under federal or state law. The ALJ found that this broad waiver precluded Mr. Jain for pursuing any of the claims he had raised, including the alleged LCA violation, and accordingly dismissed the case. The ALJ relied on Gupta v. Headstrong, ARB Case Nos. 15-032, 15-033 (ARB Jan. 26, 2017), which involved a claim for back wages by a terminated H-1B employee who had signed a similarly broad release agreement. In Gupta, the ARB held that the release agreement was valid and barred recovery, noting that it “did not have authority to adjudicate collateral attacks on a facially valid contract and that Gupta had ‘evoked no statute, regulation, or precedent authorizing’ it to do so”.  Additionally, the ALJ found that Hinge Health had fulfilled its duty to inform USCIS that Mr. Jain’s employment had been terminated, even though it did so several months after the fact. Hinge Health was not required to pay for Mr. Jain’s return transportation because he never intended to leave the country. Even if the release agreement is not upheld, the ALJ found that Hinge Health would not be liable for Mr. Jain’s return transportation costs because he did not intend to return to his home country and instead had immediately begun seeking new employment in the United States following his termination. Interestingly, the ALJ is both cases found that Mr. Jain was not a credible witness. In Jain v. Hinge Health, the ALJ determined that Jain’s testimony regarding whether he had hired attorney to assist him and the timeline in which he found another job was unreliable. Similarly, in Jain v. Metromile, the ALJ did not find Jain’s statements regarding when his complaints were filed to be credible.

Both the decisions limited liability for the employer where the H-1B worker claimed that his termination was not effective by not following the steps set forth in Amtel. In Jain v. Metromile, an employer is no longer liable for back wages once the H-1B employee obtains an approval of an H-1B change of employer petition even if the employer did not notify the USCIS or provide return transportation costs prior to the transfer to the new employer. In Jain v. Hinge Health, a properly drafted release agreement can absolve the employer of liability under the LCA.

* Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners, PLLC. She is admitted to practice in New York.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

 

 

 

Cyrus Mehta

Biden’s Pardons: The First Drops in a Big Bucket of Criminal Reform

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By Stacy Caplow∗

President Biden pardoned thousands of United States citizens and lawful permanent residents who committed or were convicted in federal courts of simple marijuana possession since 1992, and even earlier if those records can be located. This is a record number of mass pardons since Vietnam draft resisters were pardoned by President Carter in 1977.  Predictably, no one is totally satisfied with this announcement.  The right quickly denounced Pres. Biden for being soft on criminals; criminal and immigration advocates consider these pardons to be a good start but only a small step in addressing in the unforgiving wave of over-criminalization over the past 30 years that affected so many.

While these new pardons acknowledge the racism inherent in these arrests and convictions—it’s good to express this– they also are reacting to the wave of marijuana decriminalization initiatives in almost 50% of the states where some form of marijuana use and possession has been essentially legalized. but theses pardons do not affect individuals convicted of marijuana possession in state courts. Recently, Brooklyn District Attorney dismissed over 3,500 pending marijuana cases in light of New York State’s new legislation.

Marijuana possession is a small corner of the universe of people who have been arrested, prosecuted, and incarcerated for crimes that stem from poverty and its attendant social problems. And, largely forgotten in this multitude of people caught in the net of the war on crime are the many noncitizens facing deportation for a single, often long-ago crime.  Marijuana, in particular, justified many police stops and arrests, often the first step in many more intrusions by the criminal legal system, and for some, to eventual removal proceedings.

The consequences of any conviction do not stop in the criminal courts.  Particularly harsh deportation laws enacted in the late 1990s made it almost impossible for either criminal or immigration courts to recognize any form of rehabilitation, family or community factors, physical or mental health, the context in which a crime was committed or even its age. Even convictions that carry no prison sentence or that have been vacated or expunged cannot forestall deportation.  When a citizen’s criminal case and sentence is over, they return to their communities—often burdened by civil disabilities which clearly make getting work, finding housing, securing credit, and often voting exponentially difficult.  Noncitizens are sentenced twice—they are placed in removal proceedings, often moving directly from prison to immigration detention, a difference in location but not in conditions of confinement. Sometimes, they are put into removal proceedings years later but languish in detention their cases drag on.  Their life had been back on track and then they are whisked into the horrible world of immigration detention where, for example, one of our clients, a young mother of three who came to the U.S. as a refugee, was so medically mistreated that she almost died from sickle cell disease.  The destabilizing threat of deportation hangs over their heads for years.

The Immigration and Nationality Act does contain one surprisingly generous provision:  a full, unconditional Executive pardon is a waiver of deportation for most criminal convictions.  Assuming there is no other basis for deportation, removal proceedings would be terminated because of the pardon. For the lawful permanent resident, this means restoration of that status.  For others, it may provide an opportunity to gain some form of status.

The Clemency & Pardon Project of Brooklyn Law School is a clinical program in which students file pardon applications on behalf of individuals facing removal to federal and State pardon authorities.  Our clients, most of whom came to this country as lawful immigrants decades ago, generally have been convicted of a single crime that renders them deportable.  These convictions may have occurred 10, 20 or even 30 years ago. Our clients are parents of U.S. citizens who often have health or mental health problems.  Our clients work hard to support their children, have extended families and solid community ties in the United States.

Our harsh immigration laws bar our clients from immigration relief because of their single conviction.  So, we file applications in the hope that a pardon, operating as a waiver of deportation for some crimes, will allow them to remain in the U.S.  For example, we filed federal pardon applications in early 2022 on behalf of two women both of whom have been longtime lawful permanent residents—one came as a refugee, the other gained status as a result of an abusive marriage.  Both come from countries riven by violence, corruption, and social disorder. They essentially were “drug mules” at a time in their lives when they were desperate for money to support their families.  They were convicted in federal court.  They completed their sentences and their post-release supervision.  Then, they were detained by I.C.E. and placed in removal proceedings.  Ultimately, they were released. While neither has been deported yet, their pardon applications are pending along with thousands of others.  So far, according to the U.S. Office of the Pardon Attorney, only three pardons have been granted during the Biden administration while 3,357 applications are pending.

Our other clients, mostly in New York State, face similar odds and are equally deserving of the kind of justice-correction that pardons accomplish. One of our clients whose case is pending in the New York State Executive Clemency Bureau came to the U.S. as a child of a refugee, and on the verge of starting college, played a minor role in an armed robbery.  He was just over the age limit for Youthful Offender treatment which would have prevented deportation.  He served a hefty sentence but while in prison he earned a boxful of certificates. Then, upon release, went to college, earning a B.A. with distinction.  He married and became a father of a son who is autistic.  He survived the pandemic as a food deliverer and finally just got a full-time job.

My students, their immigration lawyers and I cannot find a single reason aside from their conviction to justify their deportation.  We have more examples of people equally deserving of a pardon. Our students work hard to paint a detailed portrait of our clients to make sure that anyone reading the application truly understands the full person, their life circumstances, and the impact of deportation on their families, employers, communities and themselves.

Recently, the Governor of Oregon, Kate Brown, granted clemency, including pardons, to 73 people.  This most recent spate of clemency follows earlier grants and is a manifestation of Governor Brown’s efforts to respond to mass incarceration by performing “acts of mercy.”  This remarkable record addresses the social costs of our punitive society, but it takes courage and conviction to act this boldly.  Other governors have been a bit active in the clemency/pardon space, including former NY State Governor David Patterson, but none have specifically targeted productive, rehabilitated noncitizen offenders for particular attention.

President Biden acted decisively, if not as radically as he might have.  Now that he has tested the waters of mercy, he can use his powers even more generously and set an even stronger example to governors.  Pardon power is absolute. When its exercised cravenly, as during the Trump years, it seems corrupt.  But it also is a tool for redressing injustice.  There are nails everywhere; use that hammer.

Guest Author Professor Stacy Caplow teaches the Clemency & Pardon Project at Brooklyn Law School as well as Immigration and Criminal Law.

Cyrus Mehta

A Tale of Two Cases – Washtech v. DHS and Texas v. USA: To What Extent can the Executive Branch Allow Noncitizens to Remain and Work in the US

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By Cyrus D. Mehta and Kaitlyn Box*

To what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. One court found authority while the other court did not. The D.C. Circuit addressed the question of F-1 students and whether they could remain in the U.S. after graduation for practical training. Citing DHS’ authority under INA § 214(a)(1) and the long history of post-graduation practical training, the court upheld OPT. The Fifth Circuit confronted a different issue – that of young people who came to the U.S. and whether they could remain in the country through deferred action. Finding that DACA exceeds DHS’ inherent authority to exercise prosecutorial discretion, the court struck down the program, though deferred action is a well-established practice like OPT.

On October 4, 2022, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”). The case involved a challenge to the STEM Optional Practical Training (OPT) rules by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In Texas v. U.S., decided on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful, upholding an earlier decision by Judge Andrew Hanen of the United States District Court for the Southern District of Texas. Although the practice of deferred action, of which the DACA program is a form, has also existed for decades, the Fifth Circuit’s decision was much less favorable than that of the D.C. Circuit. The court reasoned that the DACA program exceeds DHS’ inherent authority to exercise prosecutorial discretion, as “declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change”. Further, the court found that there is no “clear congressional authorization” for DACA. In light of a recent regulation promulgated by the Biden administration to “preserve and fortify” DACA, the case was remanded to the U.S. District Court for the Southern District of Texas. Although DACA lives for now, it remains on the respirator as both the district court and the Fifth Circuit have consistently held that DACA is not authorized by the INA, and notwithstanding the new regulation, may still be held to be unlawful.

Though the courts in these cases arrived at few different outcomes, the two decisions share at least one commonality – both made reference to the “major question” doctrine recently introduced in West Virginia v. EPA, 142 S. Ct. 2587 (2022). There the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance.  Interestingly, the dissent in Washtech indicated that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority is a “major question”. Finding that the major questions doctrine applied, the dissent in Washtech directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle.

In footnote 206, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement DACA. The court also held that DACA did not pass the first step of the Chevron test, which asks “whether Congress has ‘directly addressed the precise question at issue.’” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The court in Washtech analyzed the OPT rule under the lens of Chevron also, but gave DHS’ interpretation of INA § 214(a)(1) deference.

If the major questions doctrine is implemented in this way, it could result in fewer agency actions receiving Chevron deference. Chevron gives the Biden administration the ability to interpret the INA by implementing OPT and DACA programs, so it is hoped that the major questions doctrine does not impede the application of this longstanding precedent. Moreover, immigration decisions unlike environmental cases ought not to be cases involving vast economic and political significance.  The majority decision in Washtech involved challenges to the INA provisions that provide the authority for noncitizens to remain in the U.S. The court gave due deference under Chevron to the executive’s interpretation of INA § 214(a)(1) and upheld OPT. The majority did not reference the “major questions” doctrine in Virginia v. EPA.  The Fifth Circuit, on the other hand, held that  DHS cannot rely on INA § 103(a)(3) as a basis for implementing DACA, and cited Virginia v. EPA. This provision states that the DHS Secretary “shall establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of the Act.” This provision is comparable to INA § 214(a)(1), which the First Circuit held provided the basis for F-1 OPT. INA § 214(a)(1) provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…….”

Although the Washtech case dealt with students, the D.C. Circuit’s decision can serve as a template for the Supreme Court to uphold the authority for other categories of noncitizens to remain in the U.S., including DACA recipients. The same deference that the D.C. Circuit afforded to the executive’s authorization of OPT ought to also be given to the government’s interpretation of INA § 103(a)(3) and 6 USC § 202(5) so that the DACA program is upheld.

Another interesting issue discussed in both cases is whether the Executive Branch can issue work authorization to noncitizens. The court in Washtech upheld the authority of the executive to grant employment authorization documents (EADs) under INA § 274(a)(h)(3), which has long provided authority for the Executive Branch to provide employment authorization to broad categories of noncitizens. The executive’s authority to grant EADs under this provision had been soundly rejected by the Fifth Circuit in the earlier DAPA decision and Judge Hanen’s lower court decision in Texas v. U.S. In footnote 37, Hanen’s decision makes reference to INA §274a(h)(3) as a definitional miscellaneous provision, which cannot provide the basis for DACA and the grant of EADs, while the First Circuit relied on the same provision as a statutory basis for OPT EAD.

Charles Dickens opened his A Tale of Two Cities with the following famous line: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” Like London and Paris in Dickens’ novel, Washtech and Texas are comparable in some respects and very different in others. Though Texas may represent the worst of times and the age of foolishness, Washtech ushers in an age of wisdom and the best of times for foreign students hoping to gain practical training in the U.S.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Solutions for the Family Member Who Did Not Get the Employment Based Green Card with the Principal Family Member on September 30, 2022

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By Cyrus D. Mehta & Jessica Paszko*

This past month, we said our goodbyes to summer beach days and cookouts, welcomed the crisp autumn weather, crossed our fingers for clients with current employment-based priority dates and hoped that they would be one of the lucky few to get their green cards before the end of Fiscal Year 2022. As discussed in an earlier blog, September 30, 2022 marked the end of Fiscal Year 2022 for the Department of State and the last day by which USCIS promised to use as many available employment-based visas as possible. We hope that the dream of obtaining a green card came true for many of our readers or clients of our readers. To those that have finally gotten their long awaited green cards, which for many have been over a decade in the making, we wish a big congratulations and extend an official welcome to the U.S. as lawful permanent residents. To those that are still waiting, we wish patience and good fortune for the new fiscal year.

Typically, principal and derivative adjustment applicants get approved at the same time. Unfortunately, the process for others is not as smooth. While many families begin this new month of October celebrating their new status as lawful permanent residents, other still wait to get adjusted themselves or for family members to get adjusted. Under the State Department Visa Bulletin of October 2022, the India Employment-Based Second Preference (EB-2) retrogressed to April 1, 2012. Until September 2022, the India EB-2 Final Action Date was December 1, 2014. If the beneficiary of an I-140 petition with a priority date after April 1, 2012 and till December 1, 2014 did not adjust to permanent residence by September 30, 2022, this individual will have to wait until the date becomes current again. It would be even worse if the principal beneficiary adjusted by September 30, 2022 but not the spouse or the minor child. And far worse if both parents adjust status and not the minor child.  For instance, if the principal beneficiary of an I-140 petition has a priority date of December 1, 2014, she would be eligible to adjust status on or before September 30, 2022. If she did not adjust status by that date, she will not be able to adjust status under the October 1, 2022 Visa Bulletin as the Final Action Date retrogressed to April 1, 2012. If the principal beneficiary adjusted status, but not the spouse and the minor child, then the spouse and minor child will no longer be eligible to adjust status on October 1, 2022 as their I-485 applications are linked to the priority date of the principal applicant. They will need to wait until the Final Action Date in a future Visa Bulletin reaches December 1, 2014.

Today, we endeavor to explore some of the options that may be available for family members who have been left out and who still have not been approved despite the approval of the rest of their family. Take for instance, a principal applicant who received his green card this past month but his spouse’s application is still pending as of October 1, 2022, even though they both applied for adjustment of status at the same time, or a child whose application still remains pending even though both parents received their green cards. What can one do in such situations?

The first option, as always, is to wait and see and hope that the Final Action Date moves ahead after the October 1, 2022 Visa Bulletin for those family members left behind. They can continue to remain in the U.S. based on their pending I-485 application.  However, given that once current priority dates have retrogressed, the prognosis for the near future seems to be grim, and the EB-2 is unlikely to move or move quickly enough in the first quarter of Fiscal Year 2023 even though there will an infusion of 60,000 visas beginning on October 1. Assuming the coming months of Fiscal Year 2023 are slow moving, a potential solution is for the freshly minted green card holders to file an I-130 petition on behalf of their left behind family members. Thankfully, the family preference (F2A) visa category for spouses and children (unmarried and under 21 years of age) of lawful permanent residents is current. Thus, principal applicants who have already received their green cards, may file I-130 petitions for eligible spouses and children and could potentially rely on their currently pending adjustment applications by transferring the underlying basis of the I-485 to the new I-130 petition. This process is also known as interfiling.  The USCIS Policy Manual at Chapter 8 contemplates this precise scenario:

The applicant who originally applied for adjustment based on a pending or approved employment-based petition and later married a U.S. citizen now prefers to adjust based on a family-based petition filed by the new U.S. citizen spouse.

However, to be eligible for F2A, one needs to have maintained lawful nonimmigrant status at all times in the US. Once the principal beneficiary, who may have been in H-1B status, adjusted status, the derivative family member will no longer in in a valid nonimmigrant status. Fortunately, the I-485 application that was previously filed and which is the subject of the transfer of underlying basis is still pending and was filed while the spouse and child may have been in a nonimmigrant status such as H-4. The fact that the nonimmigrant status has extinguished upon the adjustment of the principal spouse should not matter if the underlying basis of the I-485 is being transferred to the I-130 petition and the applicant was in nonimmigrant status at the time of filing the I-485 application.

The plot thickens in cases where the applicant may have not been in lawful status at the time of filing the I-485 application but took advantage of INA § 245(k). INA § 245(k) allows one who is filing an I-485 under one of the five employment based preferences to still file an I-485 application so long as the violation was for a duration of 180 days or less since the last lawful admission. Hence, if the spouse or child were not in status for less than 180 days or at the time of filing the I-485 application, their I-485 might have been valid so long as it was filed in conjunction with the employment based I-140 petition. Unfortunately, one who is filing an I-485 as a family preference beneficiary must have maintained a lawful immigration status at all times. 8 CFR § 245.1(d)(1)(ii) defines “lawful immigration status” for purposes of I-485 eligibility as an alien “whose initial period of admission has not expired or whose nonimmigrant status has been extended in accordance with part 214 of 8 CFR chapter 1.” USCIS also interprets this requirement of being in valid nonimmigrant status at all times under INA § 245(c)(2) and § 245(c)(8) to prior stays in the US for family preference beneficiaries. The INA § 245(k) exception would be unavailing to this person if the underlying basis of the I-485 application is transferred from the I-140 petition to the I-130 petition.

But all hope is not lost even under this scenario. The derivative family member can always go overseas for consular processing once the I-130 petition has been approved. While the EB-2 remains retrogressed, this person can remain in the U.S. on the I-485 application and continue to obtain work and travel authorization. If the Employment-Based (EB) date moves forward, she can adjust status under this I-485 application and not pursue the I-130 petition. If the EB date continues to remain retrogressed, then once the I-130 petition is approved (a process that can take anywhere from 6 months to 30 months), and an interview is scheduled at the U.S. consulate overseas, she can leave the U.S. and process for the immigrant visa and return as a permanent resident. If the I-130 takes long to process, then there is a good chance that the EB dates will advance and become current again before the I-130 gets approved. Under this unfortunate scenario, where delays are the norm,  the left behind family member may still have options.

Obviously, this entire rigmarole can be avoided if the USCIS efficiently adjudicated I-485s applications of the whole family together and have not wasted green cards as they did in FY2021. This hardship could be further avoided if Congress allocated more visa numbers in the EB backlogs so that skilled beneficiaries of I-140 petitions do not have to wait endlessly for permanent residence.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021.

 

 

 

 

 

 

Cyrus Mehta

Asylum Seekers are Legally in the US Notwithstanding the Political Stunts of Governors Abbott and DeSantis

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By Cyrus D. Mehta and Kaitlyn Box*

In a reprehensible political stunt, Governor Greg Abbott of Texas and Governor Ron DeSantis of Florida sent around 150 immigrants to liberal states by bus and plane last week. Some of these individuals were abruptly dropped out outside Vice President Harris’ residence in Washington, D.C., while others were transported to Martha’s Vineyard. These immigrants, many of whom had come from Central American countries, had recently presented themselves at the southern border to request asylum. Reports have emerged that some of the asylum seekers were promised that they would receive work authorization more easily if they agreed to be sent to one of these locations. Some individuals believed they were going to Boston, only to be transported to Martha’s Vineyard instead.

Abbott and DeSantis’ action caused untold harm, placing individuals who were already vulnerable in a situation that was undoubtedly terrifying. Many of the asylum seekers were dropped off on the side of the road with nowhere to stay and few possessions. Some individuals had not been given food for hours. Because some of the asylum seekers had been issued Notices to Appear for immigration proceedings in Texas, Abbott and DeSantis effectively ensured that these individuals would have more difficulty attending their court dates by transporting them to a different part of the country. They also risk missing their court dates and be subjected to in absentia removal orders.

The governors’ cruelty stands in sharp contrast to the warm welcome the asylum seekers were given by the communities in Martha’s Vineyard and other locations. Individuals and community organizations rallied to provide the immigrants with food, clothing, and shelter. Immigration attorneys have also sprung into action to provide legal services. This heartwarming response illustrates that most Americans, unlike Abbott and DeSantis, want to welcome and support immigrants.

Though the asylum seekers who unwittingly become pawns in Abbott and DeSantis’ stunt happily found safety and compassion in the communities they were dropped into, this ploy was, at the very least, inhumane and could carry legal consequences for the two governors. California Governor Gavin Newsom has asked the Justice Department to investigate whether fraudulently inducing the asylum seekers to be transported across state lines could support charges of kidnapping under state law. Deliberately lying to and misleading vulnerable people could also render Abbott and DeSantis liable for fraud or severe emotional distress under the relevant state laws. It has even been suggested that luring the asylum seekers onto planes and buses with the false promise of work could constitute labor trafficking. Recently obtained documentary evidence confirms that idea that the asylum seekers were lured to Martha’s Vineyard and other locations with false promises. Lawyers for Civil Rights (LCR), a Boston-based legal organization that represents some of the asylum seekers, provided a brochure that was given to some migrants. The brochure erroneously states that the asylum seekers who were sent to Massachusetts would be eligible for numerous benefits, including “8 months cash assistance,” “assistance with housing,” “food,” “clothing,” “transportation to job interviews,” “job training,” “job placement,” “registering children for school,” and “assistance applying for Social Security cards”.

At first blush, one may also wonder whether the governors have violated INA § 274(a)(1)(A)(ii), which imposes severe criminal penalties on persons for knowingly or in reckless disregard transporting a noncitizen who has come to, entered, or remains in the US in violation of law. However, invoking this provision may be less than helpful, as it pertains only to individuals who have come to, entered, or remained in the U.S. in violation of law, and thus feeds into the narrative that asylum seekers like the ones transported by Abbott and DeSantis are in the United States “illegally”. It is important to recognize that it is not illegal for individuals to enter the United States to seek asylum. These individuals were lawfully released into the United States to pursue their asylum claims after an initial interview and processing by the Department of Homeland Security at the border. The asylum seekers involved in this situation did nothing wrong by seeking protection under U.S. asylum laws. Rather, it is Abbott and DeSantis who engaged in a despicable, and possibly illegal, act.

It is clear that the poisonous attitudes of Trump, who catapulted himself to the presidency while calling migrants “criminals” and “rapists”, are now being borrowed by his apprentices like DeSantis and Abbott as a ploy to whip up anger against Democrats prior to the midterm elections. This strategy is unlikely to succeed as the American tradition of welcoming immigrants remains robust, as demonstrated by the Martha’s Vineyard community. While the pathway for people seeking asylum should remain, our immigration laws need to be radically overhauled to provide more pathways for people to come to the U.S. legally to work and to unite with family members. Asylum should not be the only option for those seeking to come to the U.S. If asylum is the sole option, the system will get overburdened as it has already and will also encourage spurious claims, which in turn undermine genuine claims of persecution.  Both Democrats and Republicans need to work together in order to forge new pathways for immigration.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Will USCIS Waste Precious Employment Based Green Cards as it Announces Push to Use as Many as Possible by September 30?

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U.S. Citizenship and Immigration Services (USCIS) announced that the overall employment-based annual limit for immigrant visas in fiscal year (FY) 2022 is approximately twice as high as usual, primarily due to consular closures abroad during the COVID-19 pandemic. USCIS said it is “dedicated to ensuring we use as many available employment-based visas as possible in FY 2022,” which ends on September 30, 2022. It is hoped that USCIS does not waste visa numbers as it did at the end of FY 2021.

USCIS explained that the annual limit for employment-based immigrant visa use in FY 2021 was 262,288, nearly double the typical annual total. Overall, USCIS and the Department of State (DOS) combined to use 195,507 employment-based immigrant visas in FY 2021. DOS issued 19,779 employment-based immigrant visas, and USCIS used 175,728 employment-based immigrant visas through adjustment of status, more than 52% higher than the average before the pandemic. Despite agency efforts, 66,781 visas went unused at the end of FY 2021, USCIS said. DOS has determined that the FY 2022 employment-based annual limit is 281,507 (slightly more than double the typical annual total) due to unused family-based immigrant visa numbers from FY 2021 being allocated to the current fiscal year’s available employment-based green cards. Through July 31, 2022, the two agencies have combined to use 210,593 employment-based immigrant visas (FY 2022 data is preliminary and subject to change). USCIS approved more than 10,000 employment-based adjustment of status applications in the week ending August 14, 2022, and DOS continues its high rate of visa issuance as well, USCIS noted.

Among other things, USCIS noted (emphasis in original):

If your underlying petition is approved and a visa is available to you, but you know that your previously filed Form I-485 does not have a valid Form I-693, Report of Medical Examination and Vaccination Record, we recommend you visit a civil surgeon and have a valid Form I-693 on hand when we send the request to you. This is particularly important if you recently received a notice that your application was transferred from a USCIS service center to a USCIS field office and you know your application does not have a valid Form I-693. If you are a noncitizen with pending adjustment of status applications, do not send an unsolicited Form I-693 to us…. The “60-day rule,” which has been temporarily waived, does not apply to Forms I-693 signed by the civil surgeon after you have filed Form I-485.

Last year 66,781 employment-based visas went unused at the end of FY 2021. If the visas go unused they get completely wasted and cannot get carried over into next year’s pool of visa numbers.  While unused family visa numbers get carried over into the employment based preferences, unused employment visa numbers do not go back into the family visa pool. When backlogged beneficiaries in the employment second and third preferences have been waiting for over a decade, it is tragic to waste even a single visa! It is uncertain regarding how many unused family visas get carried over into the employment based preferences in FY 2023. If the carry over from family to employment is not as large as FY 2022, then those who could not use a visa number in FFY 2022 may not be able to immediately obtain a visa number in FY 2023 despite waiting for so long.  USCIS should not waste a single visa number on September 30!

Details:

“Fiscal Year 2022 Employment-Based Adjustment of Status FAQs,” USCIS, updated Aug. 26, 2022, https://www.uscis.gov/green-card/green-card-processes-and-procedures/fiscal-year-2022-employment-based-adjustment-of-status-faqs

Cyrus Mehta

The Legal Basis for DACA as Expressed in the Final Rule

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By Cyrus D. Mehta and Kaitlyn Box*

On August 24, 2022, the Department of Homeland Security (DHS) issued a final rule aimed at “preserving and fortifying” the Deferred Action for Childhood Arrivals (DACA) program. The DACA program was initiated by a 2012 memo from then-DHS secretary Janet Napolitano (“Napolitano Memo”) and has been subjected to numerous legal challenges since. Many of our previous blogs discuss the DACA program. The Napolitano Memo stated that DHS would consider deferred action for individuals who met the following criteria pursuant to the DACA program: 1) came to the United States under the age of 16; 2) continuously resided in the United States for at least 5 years preceding June 15, 2012, and were present in the United States on that date; 3) are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; 4) have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and 5) were not above the age of 30 on June 15, 2012.

The new final rule takes effect on October 31, 2022, is expected to be published in the Federal Register on August 30, 2022. It retains the same criteria for DACA eligibility that were laid out in the Napolitano Memo and preserves the existing process for DACA recipients to request work authorization. The final rule also affirms USCIS’ longstanding policy that DACA recipient are considered “lawfully present”.

It is plain that the new final rule is aimed at insulating the DACA program from being invalidated by future litigation. In a July 16, 2021 decision, Judge Hanen of the U.S. District Court for the Southern District of Texas held that the DHS violated the Administrative Procedure Act (APA) as it was not established through notice and comment rulemaking.. Judge Hanen further reasoned that DHS did not have the inherent authority to enact the program, and held that DACA conflicts with sections of the INA that describe which individuals are removable and lay out a statutory scheme for work authorization. Because Congress had already clearly articulated rules surrounding removal, lawful presence, and work authorization, Judge Hanen held that DACA failed the first step of the Chevron test and violates the APA.  Prosecutorial discretion, of which DACA is a variant, is an established doctrine that does not need to be codified. Promulgating a regulation may protect DACA from some legal challenges, but not all. If litigation asserts that the program is not authorized under the INA, the fact that it was established through notice and comment rulemaking will not provide a defense.

The final rule’s definition of “lawful presence” is also a significant provision. The final rule points to 8 CFR § 1.3(a)(4)(vi), which defines “an alien who is lawfully present in the United States” as “an alien who belongs to one of the following classes of aliens permitted to remain in the United States because DHS has decided for humanitarian or other public policy reasons not to initiate removal proceedings or enforce departure” including “aliens currently in deferred action status”. As this provision makes clear, all recipients of deferred action, not DACA recipients alone, are considered lawfully present for certain purposes. Lawful presence does not confer any immigration status in the United States, a distinction that has long been misunderstood. In a 2017 decision that upheld a challenge to DAPA by the state of Texas, the Fifth Circuit viewed a grant of deferred action as something akin to an immigration status. Judge Hanen in 2021, too, seemed to conflate lawful presence with a legal immigration status. Rather, lawful presence renders individuals who have been granted deferred action eligible for certain federal benefits and ensures that they do not accrue unlawful presence for inadmissibility purposes, which could render them subject to the 3- and 10- year bars. Moreover, since they are considered lawfully present, DACA recipients will be eligible for Social Security benefits, including a Social Security number itself when they apply for EADs, which assists individuals in filing taxes, obtaining identification cards, and obtaining employment. Most important, a clarification of lawful presence not being legal status could potentially nudge a court to uphold DACA rather than find it unlawful.

It remains to be seen how DACA fares in the ongoing litigation, particularly in light of the current composition of the Supreme Court. While the U.S. Supreme Court allowed DACA to survive in Department of Homeland Security v. Regents of the University of California in 2020, the majority’s opinion was based on the improper procedure used by the Trump administration in its attempt to rescind DACA in 2017 in violation of the APA.  The Court in Regents did not reach the question of whether DACA itself was legal. The Supreme Court in Regents also faulted the then Trump administration for not factoring in reliance interests under Encino Motorcars, LLC v. Navarro, 579 U. S. ___ (2016) when rescinding DACA. Justice Roberts writing for the majority observed that DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae, which estimated that hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Unfortunately, notwithstanding the benefits of the DACA program to the US, the reliance interest doctrine may not be relevant if the Court rules that DACA was not authorized under the INA.

In any case, the new final rule is a good step forward and will give the program firmer legal footing. Unless the Supreme Court rules that DACA is not authorized under the INA, the final rule would render it very difficult, if not impossible, for a future administration not friendly towards immigrants to rescind DACA. It is hoped that the judges in the Fifth Circuit, and if not the Fifth Circuit, the Supreme Court removes any ideological lens and is able to see DACA as being lawful and authorized under the INA. If prior rulings have indicated that the government can exercise prosecutorial discretion  on a case by case basis, there is not much difference if the government exercises prosecutorial discretion in an orderly way through the DACA rule. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there.  Never has the size of a vulnerable population been a valid reason to say no. A prior 2012 blog by Gary Endelman and Cyrus Mehta, Yes He Can: A Reply to Professors Delahunty and Yoo,  provided an impassioned defense of  DACA. The arguments we made then are still relevant notwithstanding Judge Hanen’s decision that found DACA to be unlawful.  The court reviewing Judge Hanen’s decision need look no further than the newly promulgated provision at 8 CFR §236.21(c)(1) which sums up why DACA is lawful:

Deferred action is an exercise of the Secretary’s broad authority to establish national immigration and enforcement priorities under 6 U.S.C. 205(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on high priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.

While it is hoped that the court will uphold DACA, DACA recipients deserve better than the uncertainty of renewing  DACA  along with work authorizations every two years, and urgently need Congress to regularize their status and place them on a  pathway to citizenship.

 

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo

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By Cyrus D. Mehta and Kaitlyn Box*

On July 21, 2022, the Supreme Court granted certiorari in United States v. Texas, which involves a challenge to the U.S. Immigration and Customs Enforcement (ICE) enforcement priorities as originally laid out in the 2022 Mayorkas Memo. Pursuant to these priorities, ICE would have prioritize the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. In previous blogs, we have discussed some of the implications of the priorities. The attorneys general of Texas and Louisiana soon challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained. Judge Drew Tipton of the Southern District of Texas issued a decision precluding the enforcement priorities in the Mayorkas Memo from going into effect, and the Fifth Circuit affirmed Tipton’s order. The Department of Justice asked for a stay of Tipton’s order halting the implementation of the enforcement priorities, but the Court denied the request in its order granting certiorari, offering no explanation.

It appears that federal judges are running US immigration policy these days. Our esteemed colleague Steve Yale-Loehr was quoted by Time in “Why Judges Are Basically in Charge of U.S. Immigration Policy Now.” He said, “This is a manifestation of our broken immigration system. Today, almost every executive action on immigration is being challenged in the courts.” He also noted that judges having so much power to determine immigration policy puts the U.S. judicial system in a delicate spot, since federal judges are often wary of being drawn into issues of national sovereignty or of impinging on the executive branch’s authority to conduct foreign policy. But these days, they often have no choice. “Courts are loath to weigh in,” he said. Another reason for the recent explosion of court challenges was the pace at which the Trump administration moved on immigration issues, the article notes. That “unprecedented pace” led to an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Steve said. And now, he said, “Conservative states are suing every chance they get to challenge everything that the Biden administration is doing on immigration.”

Given the current composition of the Court, it may come as no surprise that the DOJ’s requested stay in United States v. Texas was denied. What is, surprising, though, is that Justice Amy Coney-Barrett voted in favor of granting the stay, along with the Court’s liberal justices, Sotomayor, Kagan, and Brown Jackson. Prior to Justice Barrett’s ascension to the Supreme Court, she had a history of voting to uphold President Trump’s oppressive immigration policies, including the public charge rule. A notable exception to her record, however, is the Seventh Circuit’s opinion in Meza-Morales v. Barr, which Justice Barrett authored. Meza-Morales challenged Attorney General Jeff Sessions’ ruling in Matter of Castro-Tum, which held that immigration judges cannot “administratively close” cases under most circumstances. Administrative closure allows immigration judges to avoid wasting resources on low priority cases or those awaiting action by another agency by indefinitely suspending removal proceedings. We have extensively covered administrative closure and the trajectory of Castro-Tum in previous blogs, see here, here, and here. Barrett, writing for the majority, rejected Sessions’ arguments in Castro-Tum and held that administrative closure is “plainly within an immigration judge’s authority to take “any action” that is “appropriate and necessary for the disposition of … cases” pursuant to 8 C.F.R. § 1003.10(b). The opinion emphasizes that immigration judges are afforded discretion to dispose of cases as they see fit. Given that Justice Barrett championed discretion in one context, it may not be such a stretch to think that she also recognizes the importance of allowing ICE prosecutors the discretion to decide which removal cases to pursue, a key tenet of the Mayorkas enforcement priorities.

Last year, Matthew Kacsmaryk, a Trump appointed judge, like Tipton, issued a similar order that required the Biden administration to reinstate Trump’s “Remain in Mexico” policy. The Supreme Court eventually ruled against Kacsmaryk, but it allowed his order to remain in effect for 10 months, leaving Remain in Mexico in place for that entire time. Six justices — the three liberal justices plus Chief Justice John Roberts, and Justices Brett Kavanaugh and Barrett — all agreed that Kacsmaryk misread federal immigration law when he held that the federal government is required to maintain the Trump-era program.  Barrett actually dissented from the Court’s holding, stating in her opinion that she agrees “with the Court’s analysis of the merits,” but she would have sent the case back to lower courts to consider a jurisdictional issue.

It is hoped that Tipton’s order will suffer the same fate. Even if Justice Barrett does not prove to be an unexpected supporter of prosecutorial discretion, it will not be so easy for the courts to kill the longstanding doctrine. ICE Office of the Principal Legal Advisor (OPLA) attorneys have the inherent authority to exercise prosecutorial discretion, whether or not the Mayorkas Memo ultimately remains in place. Because ICE has finite resources, OPLA attorneys will need to continue choosing which cases to aggressively prosecute. Even after the Supreme Court refused to stay Tipton’s injunction, the ICE OPLA provided guidance on prosecutorial discretion indicating that the doctrine will remain in place even though Mayorkas’ priorities will not explicitly be applied. This guidance states that “OPLA attorneys… may – consistent with longstanding practice – exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.”

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.