Cyrus Mehta

USCIS Broadens Compelling Circumstances Parameters for Skilled Immigrants in the Green Card Backlogs So That They Can Continue to Work in the US Even After Job Loss

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By Cyrus D. Mehta and Kaitlyn Box*

In our previous blog, we suggested several ways that the Biden administration could follow to allow nonimmigrant workers who have been laid off to remain in the U.S. As major tech companies continue to lay off workers, nonimmigrant employees are often left with few pathways to continue working in the U.S. if they cannot quickly secure alternate employment. H-1B visa holders are allowed only a 60-day grace period to change or extend their nonimmigrant status in the U.S. following a termination, after which they must depart the country. Layoffs have a particularly harsh impact on Indian born H-1B workers who are caught in the employment based green card backlogs. Skilled workers born in India must wait decades to become permanent residents, remaining dependent on their employers to file continued nonimmigrant visa petitions on their behalf in the meantime. In recent months, the State Department Visa Bulletin has reflected that all countries of the world are now subjected to retrogression in most of the employment based preferences although Indians still bear the brunt due to additional per country limits within each  employment based preference.

Among the suggestions posed in our previous blog was the recommendation that the Biden administration employment authorization documents (EADs) to laid off nonimmigrant workers based on compelling circumstances under 8 CFR § 204.5(p). As discussed in the prior post, this provision allows EADs to be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. Although DHS has never precisely defined what constitutes “compelling circumstances”, the examples provided in the preamble to the high skilled worker rule that took effect on January 17,  2017 included serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has also suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid might constitute significant disruption to the employer. USCIS has historically issued EADs based on compelling circumstances very seldomly as mere unemployment would not rise up to the level of compelling circumstances, and  more needed to have been shown such as that the unemployment was as a result of a serious illness,  employer retaliation or the skills used by the worker in the US could not be utilized in the home country.

USCIS recently implemented a version of this suggestion, broadening the criteria for implementing EADs based on compelling circumstances specifically linked to job termination. It is no coincidence that the parameters for compelling circumstances have broadened now that beneficiaries of approved I-140 petitions from all countries are facing visa retrogression as opposed to only India.  In a June 14, 2023 Policy Alert, USCIS states that it “may provide employment authorization to beneficiaries of approved employment-based immigrant visa petitions who face delays due to backlogs in immigrant visa availability. Beneficiaries who face adverse circumstances resulting from termination from employment and loss of nonimmigrant status, may qualify for an Employment Authorization Document (EAD) if they face compelling circumstances beyond the usual hardship associated with job loss.” According to the USCIS Policy Manual, principal applicants must demonstrate that they are the beneficiaries of an approved I-140 petition, in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period at the time Form I-765 is filed, have not filed a Form I-485 Application to Register Permanent Residence or Adjust Status, and that an immigrant visa is not available based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State (DOS)’s Visa Bulletin in effect at the time the applicant files Form I-765 in order to be eligible for an EAD based on compelling circumstances. USCIS does not provide an exhaustive list of the scenarios that could constitute compelling circumstances, but outlines several examples in the Policy Manual, which include “a serious illness or disability that substantially changes employment circumstances” or financial hardship “when coupled with circumstances beyond those typically associated with job loss”, such as when termination would cause an applicant with a serious medical problem to lose their health insurance. Applicants who can demonstrate that their inability to change or extend their status would result in a serious disruption to their employers, such as where “due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer”, may also be eligible for EADs based on compelling circumstances. The Policy Manual further states that “reaching the maximum statutory or regulatory period of allowed nonimmigrant status does not, without compounding factors, constitute compelling circumstances. An officer may consider this factor in determining whether the applicant merits a favorable exercise of discretion”. EADs based on compelling circumstances will be valid for up to one year, and spouses and children of a principal applicant who receives a compelling-circumstances EAD are also eligible. The EAD is renewable for an additional year based on 1) either a continuing showing of compelling circumstances or 2) if the difference between the applicant’s priority date and the Final Action Date for the applicant’s preference category and country of chargeability is 1 year or less according to the Visa Bulletin in effect on the date the applicant filed the renewal application.

While some nonimmigrant workers who have been laid off will no doubt be able to benefit from the broadened criteria to obtain EADs and remain in the U.S., the measure is still quite narrow in scope. The expanded criteria will apply primarily to nonimmigrant workers who have been laid off or terminated from their jobs, not those who remain employed, and applicants must still demonstrate compelling circumstances, such as being “forced to sell their home for a loss, pull the children out of school, and relocate to their home country” due to the job loss. Furthermore, an EAD based on compelling circumstances confers no nonimmigrant status, and is intended only as a stopgap measure to assist nonimmigrants whose lives who be severely upended if their were forced to return to their home countries on short notice. USCIS considers recipients of a compelling circumstances EAD to be in a period of “authorized stay”. Thus, recipients will not accrue unlawful presence or trigger the 3- or 10-year bars to reentry, but are not provided with any path to permanent residence. USCIS has not indicated that any automatic extension will apply to EADs based on compelling circumstances, so recipients who need to apply for a renewal may temporarily lose work authorization while the application is pending. Even the initial request for the EAD will take several months as the USICS has not indicated that applicants will be able to use premium processing and there is also a biometrics requirement that can further hobble the process. One of the conditions for eligibility is that the applicant and dependents have not been convicted of a felony or two or more misdemeanors.

Recipients of an EAD based on compelling circumstances will likely need to look for other solutions if they wish to remain and work in the U.S. on a long-term basis until they obtain permanent resident status. An individual who finds new employment under a compelling circumstances EAD would need to have their new employer file a new labor certification and I-140 petition on their behalf, which could recapture the old priority date from the previous I-140 petition under 8 CFR  § 204.5(e). The foreign worker and derivative family members such as the spouse and minor children could then go abroad for consular processing when the priority date becomes current under the Final Action Date. Due to lengthy backlogs for oversubscribed countries, there is a risk that older children may “age out”, or reach the age of 21, before the principal applicant’s priority date becomes current.

A new employer could also file a new H-1B visa petition for the foreign worker alongside the new labor certification and I-140 petition. Recipients of a compelling circumstances EAD will be in a period of authorized stay in the U.S. and will not be maintaining their nonimmigrant status. Thus, recipients cannot extend their H-1B status in the U.S. If the new employer files an H-1B petition for consular processing, however, this would allow the foreign worker and their family to return to the U.S. in H-1B/H-4 status after obtaining visa stamps at an overseas consulate and file for adjustment of status in the U.S. when the recaptured priority date becomes current.

In the end, the compelling circumstances EAD is just a band aid and not a solution. There is no need for decade long backlogs in the legal immigration system, and Congress must pass legislation to infuse more visas in each category as well as eliminate per country limits. While previously only India and to a lesser extent China were impacted by the backlogs, now all countries have been impacted,  and so everyone must unite to demand more visas to ensure that skilled workers with approved petitions be granted permanent residence within a reasonable period  of time.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Although Section H.10-B Has Disappeared in the New ETA 9089, Will Its Ghost Continue to Haunt Us?

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By Cyrus D. Mehta and Kaitlyn Box*

The new ETA 9089 form has gone into effect and DOL stopped using the old version of the form on the evening of May 31, 2023. The new form does not have Box H.10-B. In our previous blog, we discussed the rise in PERM labor certification denials related to question H.10-B between October 2022 and March 2023. Does that mean that the problem has gone away? Not entirely, since the new ETA 9089 links to the Form ETA 9141 – the application for a prevailing wage determination – which asks an analogous question to H.10-B regarding the occupation required if employment experience is required. If the employer did not respond appropriately to the analogous question in ETA 9141 that now links to the new ETA 9089, will the DOL still deny labor certification?

This blog is part of a series, see here and here, that  address some of the numerous questions and issues raised by these new forms.

As background, Box H.10-B of the previous version of the ETA 9089 asked employers to “identity the job title of the acceptable alternate occupation” if experience in an alternate occupation is acceptable. The DOL had promulgated little guidance on this question, so immigration lawyers completed this question in a variety of ways, including describing the experience such as “2 years of experience in engineering management emphasizing cloud-based product development” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. This is because foreign national workers often had a number of job titles in their prior experience, which may not have reflected the job offered in the labor certification. For instance, with respect to the position of Engineering Manager, the foreign worker may have had similar experience in prior engineering management positions, but may have held titles that had little direct connection to the duties, such as Associate or Specialist. Hence, it was more appropriate to describe the experience gained rather than the titles in the prior positions, as this approach would define the employer’s job requirements with greater clarity.  Historically, the DOL had accepted PERM applications that responded to question H.10-B in this way. Since the spate of denials from October 2022, the Office of Foreign Labor Certification (OFLC) communicated the following guidance to the American Immigration Lawyers Association (AILA) in November 2022 in response denials on this issue:  “Employers may list a specific job title, a number of related job titles, or even language such as ‘any occupation in which the required experience was gained.’ The answer does not have to be an exact job title, but employers still have to answer the question. If employers reference H.14 to answer the question in H.10-B, employers must be sure to answer the H.10-B question. Just providing a list of requirements is not acceptable.” See AILA Doc. 22092601.

The denials concerning question H.10-B centered on the idea that question H.10-B is not properly completed if the employer fails to list specific job titles. The DOL therefore took the position that the entire PERM application is rendered incomplete if this question is not completed properly. The DOL cited to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

The DOL responded to reports of increasing PERM denials concerning question H.10-B, and posted a notice that read as follows as its website on April 14, 2023:

OFLC has stopped issuing denials for this issue for pending applications and will not deny for this reason for any application submitted on or before May 30, 2023, by which point OFLC expects to be accepting the updated version of Form ETA-9089 in the Foreign Labor Application Gateway system. Further, OFLC will overturn denials based solely on this issue. OFLC will identify applications that were denied for this issue and for which reconsideration has not yet been requested; employers whose applications have been denied solely for this reason and have not yet requested consideration are encouraged not to submit a request for reconsideration. Where reconsideration has been requested, OFLC will prioritize processing for any pending reconsideration requests based on denials where this is the only denial issue.

Although this notice has now been removed, it is reproduced as AILA Doc. No. 23041700. In our firm’s experience, PERMs denied solely on a question H.10-B issue were certified rather quickly after a Requestion for Reconsideration (“RFR”) was filed. Interestingly, though, while OFLC acknowledges that it has not adjudicated H.10-B issues in a consistent manner, it states that some of the denials were justified, stating:

…OFLC concluded that some employers have not consistently answered the question accurately by providing acceptable alternate job titles; rather, they include statements such as “see H.14 – Special Skills.” The information provided in H.14 does not identify what alternate occupations are acceptable to meet the experience requirements for the job that is the subject of the PERM application. Instead, the application only lists a series of the special skills requirements and/or other alternative combinations of education and experience that the employer is willing to accept. As a result of employers providing insufficient information in either H.10-B. or H.14, OFLC has recently denied applications for being incomplete.

OFLC evaluated these denials and determined that while they are appropriate, it has not been consistent about when it denies an application for this reason, which could confuse filers.

On April 24, 2023, the Board of Alien Labor Certification Appeals (BALCA) issued an important decision addressing H.10-B denials. In Matter of Charter Communications, Inc., 2020-PER-00171 (Apr. 24, 2023), BALCA held that an employer’s failure to list specific occupation titles in box H.10.B. alone was not sufficient grounds for denial of a PERM application, also noting that the OFLC has dealt with this issue in an inconsistent manner in its adjudication of PERM applications. The employer in this case had inserted the following in box H.10-B: “Please see [Section] H-14.” Id. The employer’s response to section H.14 read as follows: “Bachelor’s degree, or foreign equivalent, in Engineering, Computer Science, or [a] related field. Must have 7 years of experience working with DSG/DAVIC set top boxes; and managing, maintaining, and configuring Linux operating systems. Must have 5 years of experience supporting software applications for back office servers.” Id. The Certifying Officer denied certification, and affirmed its denial after the employer filed a Request for Reconsideration (“RFR”), asserting that section H.10-B requires an occupation or job title. BALCA vacated the denial and remanded the PERM application for certification, reasoning that: “…the Employer persuasively argued why, in this matter, failing to include the job title of an acceptable alternative occupation was immaterial to the CO’s review of the substance of the Form 9089. The Employer precisely detailed the skills needed to satisfy the requirement that “experience in an alternate occupation” was acceptable. […] Section H.10-B conveyed significantly more information than simply listing the job title of an acceptable alternate occupation.” Id.

While box H.10-B has disappeared from the new ETA 9089, box F.b.4.b. of the new 9141 with respect to minimum job requirements still asks employers to “indicate the occupation required” if employment experience is required for the position. See AILA Doc No. 23050101. On the previous version of the ETA 9141, which included the same version of this question as the new 9141, employers often responded  by indicating “see addendum” and listing the full requirements of the position rather than just the occupation, such as “2 years of experience in engineering management emphasizing cloud based product development”, in the addendum. Because the new ETA 9141 will link to the ETA 9089 and certain fields will be populated automatically, uncertainty for practitioners remains, even though box H.10-B itself has disappeared, as the response to box F.b.4.b may not have been in compliance to the recent guidance provided by OFLC with respect to H.10-B. These ETA 9141s were prepared and submitted in 2022, even before the H.10-B denials, and do not contain the preferred language recommended by OFLC in November 2022. They will now link to the new ETA 9089. The employer will not have an opportunity in the new ETA 9089 to include any rehabilitative language as it did in response to H.10-B closely analogous to DOL’s suggested  “any occupation in which the required experience was gained” language.  Will the DOL deny the ETA 9089 because the preferred language was not included in the previously approved ETA 9141?

Although only time will tell whether section H.10-B will haunt us despite its disappearance in the new form, employers who have not listed specific job titles  in box F.b.4.b. of the 9141 should be able to take reassurance from BALCA’s decision in Matter of Charter Communications, which although it pertained to an H.10-B denial, seems to support the more general idea that an employer’s failure to list specific job titles is not sufficient justification for denial of a PERM application.  Employers should also be able to argue that 20 CFR § 656.17(a), the provision used to justify PERM denials based on box H.10-B, pertains only to an  incomplete Form ETA 9089. If the DOL issues a denial based on an incomplete ETA 9141, there should be a strong legal basis to challenge the denial under 20 CFR § 656.17(a) in addition to the reasoning provided in Matter of Charter Communications. Another point in favor of challenging any denial is that the ETA 9141 with respect to alternative job requirements at box F.c.4.a asks for the number of months of alternate experience. It does not ask for the job title in the alternate occupation even if box F.b.4.b asks for the occupation required. It is hoped that DOL will not use the logic from its H.10-B denials to deny ETA 9089s in the new system because the occupation was not mentioned in response to box F.b.4.b. of the 9141. If it does, there will be ample basis to challenge the denial and forever exorcize H.10-B’s ghost.

The DOL sees the new 9089 as the solution to all the ambiguities in the old ETA 9089.  However, we all know that the new ETA 9089 is not the panacea to all the problems in the old form and continues to create additional ambiguities. We will need to remain vigilant and point these issues out as they play out including challenging potential denials to BALCA and even in federal court.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Remembering Mark Von Sternberg Through Matter of Recinas

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By Cyrus D. Mehta

I write this blog  in fond memory of Mark Von Sternberg who passed away on May 16, 2023. Mark was a brilliant lawyer, scholar and writer who worked very hard on behalf of the most vulnerable immigrants.  He was a Senior Attorney with Catholic Charities Community Services/Archdiocese of New York where he concentrated his practice in defending noncitizens in removal proceedings.  Mark was also an adjunct professor of law at Pace University School of Law and St. John’s University School of Law. He wrote extensively, particularly in the areas of refugee law, international humanitarian law, and human rights. Mark was universally respected by all – lawyers, students and even judges – for his kindness, compassion and humanity.

As the Chair of  the annual  Basic Immigration Law conference of the Practicing Law Institute (PLI), I always made sure that Mark was on the faculty where he usually spoke on  Cancellation of Removal under the Immigration and Nationality Act.  We know how difficult it is for non-lawful permanent residents to win cancellation of removal under INA 240A(b). In addition to demonstrating ten years of physical presence in the United States, and good moral character, the respondent seeking cancellation must also establish “exceptional and extremely unusual hardship” to the qualifying relative under INA 240A(b)(1)(D). The Board of Immigration Appeals (BIA) has set a very high bar for establishing “exceptional and extremely unusual hardship”  as in Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) and Matter of Andaloza, 23 I&N Dec. 319 (BIA 2002). In both these cases the hardship that would have resulted to the minor US citizen children of the parent to Mexico was not sufficient notwithstanding the lower standard of living they would face in that country.

However,  Matter of Recinas, 23 I&N Dec. 467 (BIA 2002) is one of very few decisions of the BIA which found that the “exceptional and extremely unusual hardship” standard had been met. This case involved a Mexican woman who was the mother of six children four of whom were US citizens. She was able to show that if she was removed to Mexico, she would not be able to support her children. She was divorced from her husband who was the father of the children and had a small business that generated profits of $400-$600 per month. As a single mother, the BIA found that she would find it difficult to provide support and a safe shelter for her children in Mexico.

The BIA noted the hardship of the children in Matter of Recinas as follows:

“The respondent’s ability to provide for the needs of her family will be severely hampered by the fact that she does not have any family in Mexico who can help care for her six children. As a single mother, the respondent will no doubt experience difficulties in finding work, especially employment that will allow her to continue to provide a safe and supportive home for her children.”

Mark viewed Matter of Recinas from an international law and human rights point of view.  His article in one of the PLI conference handbooks, see “Cancellation of Removal Under the Immigration and Nationality Act: Emerging Restrictions on the Availability of ‘Humanitarian’ Remedies”, Chapter 20, Basic Immigration Law 2015,    illustrates how one can make an effective argument for meeting the onerous hardship standard:

“The case is a constructive lesson that Cancellation of Removal, Part B, like the suspension remedy, can be based on economic hardship. There must be a showing, however, that hardship anticipated is more than comparative hardship. Comparative economic hardship refers to the situation where the applicant’s situation in his/her country will be less favorable, in economic terms, than it would be in the United States. Rather, using standards of “absolute” economic hardship, it must be demonstrated that the respondent’s predicate relatives will suffer significant deprivations – e.g. that because of adverse economic conditions, there will be substantial impact on a relative’s right to adequate nutrition, adequate health car, adequate housing and a reasonable standard of living.”

Mark thus provided practitioners with guidance on how to distinguish their cases from Matter of Monreal and Matter of Andaloza  by showing that the  qualifying US citizen children would face absolute economic hardship rather than comparative economic hardship if the parent got removed to a country that would be unable to provide a child with the  basic rights to nutrition, health care and education. His article also pointed to Cabrera-Alvares v. Gonzales, 423 F.3d 1006 (9th Cir. 2005) where it was plausibly argued that customary international law should play some role in the “hardship” analysis, including the mandate of the Convention on the Rights of the Child that the “best interests of the child” be observed in all instances, although in this case, the Ninth Circuit noted that the best interests of the child were factored when ordering the removal of the parent.  Also of persuasive guidance, according to Mark’s article, is the customary law emanating from the International Covenant on Economic, Social and Cultural Rights (ICESCR), which emphasizes that “the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.” If the rights under the ICESCR, inspired by Roosevelt’s Four Freedoms, specifically the right to freedom from hunger (art 11), the right to enjoy the highest standard of physical and mental health (art 12) and the right to education (art 13) are not protected in the state of return then the case is appropriate for humanitarian relief cancellation of removal. Mark forcefully pointed  this out in the article and also stated in his lecture that there needs to be a fundamental infringement of certain basic human rights to meet the economic hardship standard for cancellation of removal.

Mark’s refreshing interpretation of Matter of Recinas from an international law perspective at a conference for beginner lawyers was a teaching moment even for an experienced practitioner like me. Mark has inspired a whole generation of lawyers who were his colleagues or students. I am one of them. Mark will forever be remembered by us who will emulate him to effectively advocate on behalf of vulnerable immigrants and find creative ways to interpret the law so that they can get humanitarian relief.

 

Cyrus Mehta

Termination in the Twilight Zone When the I-485 Application Has Been Pending for Less Than 180 Days

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By Cyrus D. Mehta & Jessica Paszko*

Just a couple of months ago we considered the options available to terminated H-1B workers who want to become entrepreneurs. Since then, layoffs have not abated and we’ve continued thinking about the options available to laid off nonimmigrant workers. This time, we consider the options available to H-1B workers whose employers have filed I-485 adjustment of status applications on their behalf before they were laid off and the I-485 has been pending for less than 180 days.

For starters, laid off workers can remain in the US while their adjustment applications are pending. They are authorized to remain in the US so long as their I-485 application has not been denied.  They should also request that the employer not withdraw the prior approved I-140. Unlike 8 CFR § 214.2(h)(11) which obligates employers to notify the USCIS when an H-1B worker’s employment has ended before the end of their authorized period of stay – as that could trigger back wage liability – employers are under no such obligation with respect to I-140 beneficiaries. Therefore, the laid off workers can make a case against the employer’s withdrawal of the I-140. Under 8 CFR § 205.1(a)(3)(iii)(C), a petition that is withdrawn 180 days or more after its approval, or 180 days or more after the associated adjustment of status application has been filed, remains approved unless its approval is revoked on other grounds.

Thereafter, the laid off workers should seek new employment. Although they may be able to rely on employment authorization that will be issued based on the I-485 filing, it is recommended that their new employer file an extension of H-1B status on their behalf. They must do that within the 60 day grace period that they have in H-1B status from the termination under 8 CFR § 214.1(l)(2).  Remaining in H-1B status provides an added layer of security in case the I-485 is denied for any reason. However, once 180 days passes from the I-485 filing, and they can port, they would be more secure even if there is no underlying H-1B status.

If the laid off worker’s adjustment application has been pending for 180 days or more, then they can port to a new employer, and even self-employment, in a same or similar occupation that was the basis of their I-140 petition under INA § 204(j). Once they can port under § 204(j), the labor certification and I-140 petition are preserved, and the foreign worker can be granted permanent residence.  8 CFR § 245.25(a)(2)(ii)(B) even allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing. The ability to port under § 204(j) when the I-485 application has been pending for 180 days or more, however, is the best case scenario. If the laid off worker’s adjustment application has not been pending for 180 days or more, then he or she cannot port to a same or similar occupation under § 204(j).

Although the laid off worker can remain in the US throughout the pendency of their adjustment application even if no longer employed by the sponsoring employer, the worker may face a bit of a predicament if the USCIS takes an action on the pending adjustment application, for instance, by issuing a Request for Evidence (RFE) or scheduling an interview. If the RFE requests an I-485 Supplement J, Confirmation of Bona Fide Job Offer or Request for Job Portability Under INA Section 204(j), and the adjustment application has not been pending for 180 days or more, then the laid off worker is in trouble. As there is usually a 90 day deadline to respond to RFEs, the laid off worker may be able to submit a completed Supplement J, either signed by a new employer or by themselves if self-employed, if the 180th day of submitting their adjustment application comes around before their RFE response deadline. But of course, there may be individuals who are not as lucky. If they do not respond to the RFE, then the adjustment will likely be denied. On the other hand, under INA § 204(j), they cannot submit a Supplement J if 180 days have not elapsed since the filing of their adjustment application. If the adjustment application is subsequently denied, they can submit an I-290B Motion to Reopen or Reconsider. There is at least an arguable basis that the motion might work

The laid off worker faces a similar problem if they are scheduled for an adjustment interview that will fall on a date that is before the 180th day of their I-485 application filing and will thus be unable to produce an executed Supplement J. While one can reschedule a USCIS interview due to a medical or family emergency, unforeseen events, or other personal circumstances such as a wedding, funeral, or important family event that conflicts with the interview, one may not be able to reschedule an adjustment interview on account of not being able to present a Supplement J, but it is always worth trying.

Suppose the laid off worker does not have to respond to any RFEs or attend any interviews and USCIS approves the adjustment application even though the laid off worker no longer works for the employer that sponsored the green card or intends to work for that employer – then what? From the foreign worker’s perspective, they can argue that they were willing to work for the employer who sponsored them but the employer was not willing to give them the job in accordance with the I-140 petition and they should still be granted adjustment of status. There are decisions holding that as long as the noncitizen took up the job or reported for work, and then left later due to a change in intention (as a result of finding a more attractive job elsewhere), this individual could not be found excludable or deportable. In Matter of Cardoso, 13 I.&N. Dec. 228 (BIA 1969), the respondent, a Portuguese citizen, was sponsored to work for a Rhode Island employer as a braider tender. Upon reporting to the employer with his wife for work, the foreman indicated that there was a possibility that both would be laid off if they both worked for the employer. Based on the foreman’s well intentioned advice, who also stated that he would keep the braider tender job offer open, the respondent worked elsewhere first as a shoelace tipper and then as a bobbin machine operator. The BIA held that it could not impugn the validity of such an admission where a person reported for work and did not take up the job under the circumstances described above or if the person worked for some time with the certified employer but quit because he did not like the work or found a better job elsewhere. See also Matter of Marcoux, 12 I.&N. Dec. 827 (BIA 1968) (respondent who left certified trainee weaver job after 5 days for a fiber glass repairer job because he did not like the former job was not found to be deportable because he still had a valid certification at time of entry).

Notwithstanding, the USICS during a naturalization interview may still determine that lawful permanent residence status was not properly obtained, or even prior to naturalization, the USCIS could rescind that status. Even if the foreign worker can argue that they intended to accept employment there may have still not been a valid offer of employment after the foreign worker was terminated. See Matter of Rajah, 25 I.&N. Dec. 127 (although the foreign worker is not required to be employed at the time of adjustment, he must still show the continued existence of an offer of employment as set forth in the labor certification and I-140, and must also demonstrate an intent to accept employment). Therefore, it would be safest if there has been a termination during the twilight period – when the I-485 has not been pending for 180 days – to have another employer file an H-1B extension. Even if the USICS denies the I-485 application if there is an RFE before the 180 days, which cannot be complied with, the foreign worker will be in H-1B status through another employer and that new employer can recapture the old priority date under 8 CFR § 204.5(e) when starting all over with a new labor certification and I-140 petition. If the date is current at the time the I-140 will be filed, then a concurrent I-485 application can also be filed.

Given the glacial pace in adjudicating I-485 applications to completion, it is unlikely that the USCIS will currently issue an RFE within 180 days from its filing, although this blog provides guidance on steps that need to be taken just in case the USCIS becomes efficient!

(This blog is for informational purposes and cannot be relied upon as a substitute for legal advice).

*Jessica Paszko is an Associate at Cyrus D. Mehta &  Partners PLLC.

 

 

 

 

Cyrus Mehta

Kellogg Has Reared its Ugly Head in the New Labor Certification Form: How Do We Deal with Alternate Requirements?

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By Cyrus D. Mehta and Kaitlyn Box*

Our most recent blog in this series discusses the new Application for Permanent Employment Certification, Form ETA 9089 (“ETA 9089”) and corresponding Application for Prevailing Wage Determination, Form ETA 9141 (“ETA 9141”) promulgated by the Department of Labor (DOL), and, specifically, how issues concerning dual representation and familial relationships can be dealt with on the new form. In this blog, we discuss how to handle alternate requirements in the new ETA 9089.

The Office of Foreign Labor Certification (OFLC) of the DOL has now delayed the implementation of the new ETA 9089 until June 1, 2023. The new form was originally scheduled to go into effect on May 16, 2023. OFLC will continue accepting the older version of form ETA 9089 until June 1, 2023. Significantly, the new ETA 9141 will link to the new ETA 9089, automatically populating certain fields on the PERM application form. Watermarked versions of both new forms are available on the DOL website. This functionality of the new form has introduced uncertainty for practitioners, who must now ensure that information, specifically that pertaining to alternative requirements, is listed on the ETA 9141 in such a way that it will be correctly incorporated into the ETA 9089 as well.

The new ETA 9089 has undergone formatting changes, as well. The new form appears to change the way employers must list alternative requirements and specifically incorporate the Kellogg “magic language”.  The controlling guidance on alternative requirements comes from the Board of Alien Labor Certification Appeals (BALCA)’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998). As discussed in a prior blog, Kellogg held that employers should indicate that they will accept “any suitable combination of education, training or experience” if the primary and alternate requirements for the position are not “substantially equivalent”. 20 CFR §656.17(h)(4)(ii) broadened the holding of Kellogg to apply whenever there are alternate requirements, providing as follows:

“If the alien beneficiary already is employed by the employer and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.”

However, in Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), BALCA held that there is no appropriate place on the ETA 9089 to include the Kellogg language, so an employer’s failure to do so should not be a basis for denial of the PERM application.

As the holding of Federal Insurance suggests, the old ETA 9089 was not well formatted to incorporate the Kellogg language. Box H.6 of the old ETA 9089 asks “Is experience in the job offered required for the job?”. Box H.10 then asks “Is experience in the alternate occupation acceptable?” If the employer answered both H.6 and H.10, it would likely trigger the requirement to state the Kellogg language.  Many employers chose to avoid stating the Kellogg language on the form by answering “no” to  question H.6. Instead, one could respond “yes” to box H.10., which asked “Is experience in an alternate occupation acceptable?” This approach resulted in the alternate requirement listed in H.10 becoming the primary requirement. Because Box H.6 was answered “no”, there was only one requirement in H.10 rather than a primary and alternate requirement. However, this approach became irrelevant after Federal Insurance was decided on February 20, 2009, although employers still attempted to only have a primary requirement just in case the DOL revived the Kellogg language.

Take the example of  a Systems Engineer with the following job duties and requirements:

Conduct project execution in a global delivery model using various methodologies like Agile to deliver projects in enterprise applications space. Utilize Oracle Peoplesoft HCM, SCM and CRM, SaaS, and cloud based software like Salesforce. Conduct architecture, analysis, design, development, customization, and maintenance of applications using PeopleSoft, Salesforce Cloud, Data analytics tools like Tableau, PL/SQL, SQL, Oracle, HP Quality Centre, Rally, ServiceNow along with testing, application packaging, release co-ordination, security administration and product management from ideation to delivery of the product.

Reqs: Master’s degree (or equiv) in CompApps, CompSci, Engg (Comp/Mech/Electronic), or related field, plus 3 years of experience in position involving similar duties/technical capabilities.

In this case study, the employer instead of requiring 3 years of experience in the exact duties of the position as offered above has asked for “3 years of experience in a position(s) involving similar duties/technical capabilities.”

The employer will address this in H.10 rather than H.6.  in the existing ETA 9089 by answering “no” to H.6 and “yes” to H.10 – Is experience in an alternate occupation acceptable? Then, by indicating the number of months of experience requirement in the alternate occupations in H.10A and  by referring to H.14 in H.10B that the employer will accept “3 years of experience in a position(s) involving similar duties/technical capabilities.”  Even before Federal Insurance,  by checking only H.10 rather than both H.6 and H.10, the employer could avoid the Kellogg language. However, if an employer chose to answer both H.6 and H.10 from February 20, 2009, the Kellogg language would not trigger because of Federal Insurance.

The new Form ETA 9089, however, appears to rectify the problem identified in Federal Insurance by specifically referencing the Kellogg language. This change could create confusion for employers who are not accustomed to including this language in recruitment or the ETA 9089 itself.

Box G.4. of the new ETA 9089 asks “Is the foreign worker currently working for the employer submitting this application?” An employer who answers “yes” to this question must then indicate in Box G.4.a. “whether the foreign worker only qualifies for the job opportunity by virtue of the employer’s alternative requirements identified in Section F of the ETA 9141 identified in Question E.1”. If the answer to this question is “yes” as well, Box G.4.b. asks the employer to “select the applicable statement describing the employer’s willingness to accept any suitable combination of education, experience, or training”, mirroring the Kellogg “magic language”. The two possible responses to this question are “I accept” or “I do not accept”.

Once the Kellogg magic language is included in the ETA 9089, it will be harder for employers to justify the lawful rejection of US workers. In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” which was the required Kellogg magic language. During supervised recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements.

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials. Thus, since the employer was required to evaluate US worker applicants under the Kellogg standard – will accept any suitable combination of education, experience and training – the employer’s rejection of US worker applicants based on only a review of their resumes were not considered to be lawful rejections.

Although the employer has to evaluate candidates who apply for the position under the Kellogg language, this language need not appear in the advertisements as confirmed in the following DOL Round 10 FAQs:

Does the advertisement have to contain the so-called “Kellogg” language where the application requires it to be used on the application?

Where the “Kellogg” language is required by regulation to appear on the application, it is not required to appear in the advertisements used to notify potential applications of the employment opportunity. However, the placement of the language on the application is simply a mechanism to reflect compliance with a substantive, underlying requirement of the program. Therefore, if during an audit or at another point in the review of the application it becomes apparent that one or more U.S. workers with a suitable combination of education, training or experience were rejected, the application will be denied, whether or not the Kellogg language appears in the application.

Still, the fact that the employer has to evaluate resumes in light of any combination of education, training or experience imposed by Kellogg in the new ETA 9089 may make it harder for employers to win labor certifications especially in industries where there have been many layoffs in recent times.

It remains to be seen whether the employer can avoid the Kellogg language like under the old form by making the alternative requirement the primary requirement. Under the revised forms, what is indicated in ETA 9141 will be linked to the ETA 9089. The question is whether under the new system the employer will be able to skip F.c. in ETA 9141, which asks details about the Alternative Job Requirements and instead complete only F.b. in ETA 9141, which asks details about the Minimum Job Requirements but would actually include information about the alternative job requirements.  By skipping F.c. in ETA 9141 (alternative requirements) and completing F.b. (minimum requirements) in ETA 9141, can the employer argue in Appendix C – Supplemental Information that the alternate has become the primary requirement and thus avoid using the Kellogg language?

It is unclear how well the approach of making the alternate requirement the primary will work in light of the “Kellogg language” question on the new ETA 9089. There is a chance that failure to accept the Kellogg question on Box G.4.b. of the new ETA 9089 when alternative sets of qualifications will be accepted, even if F.c. in ETA 9141 was left blank, could result in an audit or denial of the PERM application.

In Agma Systems LLC, 2009-PER-132 (Aug. 6, 2009), BALCA held that an employer was not required to include the Kellogg language where it has two sets of alternative requirements that are substantially equivalent. In Agma, the requirements in question were a Master’s Degree in Computer Science or Engineering and three years of experience in Computer Software Developing and/or Consulting — and a Bachelor’s Degree in Computer Science or Engineering and five years of experience in Computer Software Developing and/or Consulting. Because these two sets of requirements were essentially the same and neither was the “primary”, BALCA reasoned that the Kellogg language need not be invoked because Kellogg expressly recognizes this type of equivalent requirements as acceptable. When requirements are substantially equivalent, BALCA’s holding in Agma lends support for the strategy of making the alternative requirement the primary requirement, thereby obviating the need to use the Kellogg language even in the revised ETA 9089.

The Kellogg language has returned with a vengeance in the new ETA 9089, and it remains to be seen whether employers and their attorneys will be able to avoid it if the alternate requirement can still become the single primary requirement. Employers need to deal with Kellogg with the respect that it deserves in order to avoid a denial.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Answering Tricky Questions on the Revised Labor Certification Form on Dual Representation and Familial Relationships

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By Cyrus D. Mehta

The Department of Labor’s Office of Labor Certification (OFLC) has revised the Application for Permanent Employment Certification, ETA Form 9089, as well as the corresponding Application for Prevailing Wage Determination, Form ETA 9141. OFLC will begin accepting these revised forms on May 16, 2023, and has posted an “unofficial watermarked preview copy” of the form “to allow stakeholders to become familiar with changes to the form.” The link to the form can be found at https://www.dol.gov/agencies/eta/foreign-labor

OFLC will no longer accept any new applications submitted via the legacy PERM Online System after May 15, 2023, at 6:59 pm ET. OFLC also will no longer accept the previous version of Form ETA-9089 after May 15, 2023, either electronically or by mail.

This will be the first in a series of blog discussing selected issues in the new ETA-9089 that are confounding practitioners.

1. How to answer the dual representation question?

 The question below asks whether the employer has contracted with an attorney that also represents the foreign worker covered by the application, as follows:

D.2. Has the employer contracted with an agent or attorney that also represents the foreign worker covered by this application?

Yes

No

It is difficult to understand why the DOL has included this question. Many practitioners take the position that they are representing both the employer and the foreign worker, which is commonly referred to as dual representation. Representing two or more clients is appropriate if the goals of both the clients are aligned. If the practitioner is engaging in dual representation then “Yes” should be checked off rather than “No”. It should not prejudice the case if “Yes” over “No” is checked.

Question D.2 also refers to an agent. It would have been good if the DOL did not include an “agent” as only attorneys admitted to a state bar in the US can engage in the practice of law. Agents should not be encouraged to represent the employer or foreign worker as they will then be involved in the practice of law and are also not bound by the ethical rules that attorneys are subjected to. The ABA Model Rules of Professional Conduct include Rule 1.7 that set forth the parameters under which an attorney can jointly represent more than one client, such as the employer and the employee, and the attorney is precluded from such dual representation if there is an irreconcilable conflict of interest. Non lawyer agents are not subject to any rules of ethical conduct.

This question piqued my interest as I once co authored an article “The Role of the Lawyer in the Labor Certification Process”, a version is available at https://www.ilw.com/articles/2009,0310-endelman.shtm,  which explored dual representation in the labor certification context. There are many decisions of the Board of Alien Labor Certification Appeals discussed in the article that recognize that the lawyer for the employer is also the employer for the foreign worker.

The starting point for this analysis is the DOL rule at 20 CFR 656.10(b), which provides:

(i) It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. As the beneficiary of a labor certification application, the alien can not represent the best interests of U.S. workers in the job opportunity. The alien’s agent and/or attorney can not represent the alien effectively and at the same time truly be seeking U.S. workers for the job opportunity. Therefore, the alien and/or the alien’s agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer’s representative, as described in paragraph (b)(2)(ii) of this section.

(ii) The employer’s representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

 

This rule precludes attorneys from interfering in the recruitment process by interviewing or considering US workers who apply for the job offered to the foreign worker. Only the employer is allowed to interview and consider the resumes of US worker candidates. Even the foreign worker cannot be involved in the recruitment process. Although most of the verbiage in the rule prohibits the attorney of the foreign worker form interfering in the recruitment process, the rule was amended in the fall of 2008 to also include “It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien.” (emphasis added). Thus, even the attorney for the employer is prohibited from interfering in the recruitment process since 2008 after the DOL slipped in the phrase “for the employer” in 20 CFR 656.10(b)(i).

Regardless of this amendment to the rule, there are a number of BALCA decisions even before 2008 that have acknowledged dual representation, and thus recognizing that the attorney for the employer is also considered the attorney for the beneficiary. In Sharon Lim Lau, 90-INA-103 (BALCA 1992),  the attorney for the employer sent letters to the only two applicants who responded to the advertisements inviting them to interviews and also presided over the initial interviews to screen the applicants.   The foreign beneficiary, who was the subject of this labor certification application, lived in Taiwan, and the attorney argued that he was the foreign worker’s agent only for purposes of providing a mailing address and to facilitate the foreign worker’s responses to requests by the government for information or documents.  BALCA disagreed by holding that it was common in labor certification cases for the same attorney to be listed as the attorney for both the employer and the foreign worker on the labor certification form.

Contrast Sharon Lim Lau with the earlier BALCA decision in Matter of Marcelino Rojas, 87-INA-685 (BALCA 1988).  In Rojas, the employer contended that his attorney interviewed U.S. applicants because he had difficulty communicating effectively in the English language.  Here too, the certifying officer alleged that 20 CFR §656.20(b)(3)(i) had been violated because the attorney had interviewed a U.S. applicant for the position. BALCA initially noted:

In labor certification cases, the employer’s attorney is almost automatically the  alien’s pro forma attorney.  The employer’s attorney “represents” the alien to the  extent that if the employer succeeds in its application then the alien also succeeds   by receiving labor certification.  It would be the rare exception to find the alien  and the employer represented by different attorneys.

 

But BALCA, in Rojas, held that the attorney represented the employer rather than the foreign worker in the conduct of the interviews.  The employer was present at the location of the interviews to observe the applicants and to decide, after conferring with his attorney, whether to conduct follow-up interviews.  Therefore, the attorney only represented the employer and 20 CFR §656.20(b)(3) was inapplicable to this case.  Rojas, can thus best be described as an exception to the generally accepted rule that the attorney for the employer will also be treated as the attorney for the foreign worker. Of course, Rojas was decided before the amendment to the rule in 2008.

In a later decision, Chicken George, 2003 BALCA LEXIS 72,   the attorney for the employer and the foreign worker was the one who issued letter for the interview to one of the U.S. applicants who applied for the job.  The letter was written on the letterhead of the law firm. Since the employer’s attorney assented that he was the attorney for both the employer and the alien, BALCA held that 20 CFR §656.20(b)(3)(i) and (ii) had been violated.

Finally, in Matter of Scan, 97-INA-247 (BALCA 1998),  the labor certification was denied because it appeared that the applicant was to have been screened by the attorney rather than by the employer.  There, the Certifying Officer concluded:

The initial assessment of the applicant’s qualifications constitutes attorney  involvement and is prohibited by the Regulations.  It is clearly adverse to the  interests of U.S. workers for the alien’s attorney to have any involvement in the  recruitment process.  The rebuttal provides no satisfactory assurance that the  attorney did not initially assess the applicants’ qualifications in this case despite the fact that the employer actually interviewed the workers and made the ‘hiring  decision.’  We cannot say that U.S. workers were not prejudiced by the attorney’s          actions in this case.

 

Although it is unclear from the fact that the attorney claimed to only be the employer’s attorney, BALCA appeared to have broadly held that the attorney violated 20 CFR §656.20(b)(3)(i) because he had engaged in the “filtering process” which is part of the personnel procedures that the employer follows when the employer hires staff personnel.

Thus, under the predecessor provision, 20 CFR §656.20(b)(3),  with the sole exception of Rojas, BALCA has held that an attorney interfering in the recruitment process, either by interviewing or initially screening applicants, violated the regulation.  Of course, the regulation does carve out an exception where if the attorney is the person who normally interviews job applicants outside the labor certification process, this provision will not be implicated.

I have provided this history to demonstrate that the DOL has recognized dual representation in the labor certification process. If the employer is engaging in dual representation, then there will be no downside in answering the question as “Yes” to Question D.2 in the revised ETA 9089.

 

2. How to Answer the Question on Familial Relationships?

The revised ETA 9089 asks the following two questions:

A.16. Is the employer a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest?

Yes

No

A.17. Is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and/or incorporators?

Yes

No

In the current ETA 9089, Question C.9 asks:

Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the alien?

The question needed to be answered “Yes” only if the employer was a closely held corporation, partnership or sole proprietorship and the foreign worker either had an ownership interest or there is a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the foreign worker. The language in C.9 was consistent with the language in 20 CFR 656.17(l), which provides:

If the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the alien, or if the alien is one of a small number of employees, the employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers, and must provide to the Certifying Officer, the following supporting documentation…….

The new ETA 9089 now separates out this question into two questions removing any ambiguity regarding whether the corporation has to be closely held for both parts in the same C9 question of the current form.

Question A.16 asks:

Is the employer a closely held corporation, partnership, or sole proprietorship in which the foreign worker has an ownership interest?

 

Question A.17 asks:

Is there a familial relationship between the foreign worker and the owners, stockholders, corporate officers, incorporators, or partners?

The DOL has taken the position that if the foreign worker either has an ownership interest or there is a close family relationship the recruitment that the employer is required to conduct to test the US labor market will be suspect. If the foreign national has an ownership interest or familial relationship BALCA has set forth a “totality of circumstances” test under Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc) to determine whether there is a bona fide job offer to US workers. Modular Container Systems considers whether the foreign national:

a) Is in a position to control or influence hiring decisions regarding the job for which LC is ought;
b) Is related to the corporate directors, officers or employees;
c) Was an incorporator or founder of the company;
d) Has an ownership interest in the company;
e) Is involved in the management of the company;
f) Is on the board of directors;
g) Is one of a small number of employees;
h) Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; or
i) Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue without the foreign national.

 

In the current version of the form the question had to only needed to be responded to in the affirmative if the employer is a closely held corporation. The new question A.16 regarding whether the foreign worker has an ownership interest need only be answered “Yes” if the employer is a closely held corporation. This makes sense since even if the foreign worker held shares in a large publicly traded corporation it would be hard to imagine how the recruitment would be tainted.

Question A.17, however, is no longer conditioned by whether there is a closely held corporation, and this is clearly not consistent with 20 CFR 656.17(l). So, let’s say the foreign worker is a second cousin or grandnephew to a corporate officer in Walmart which has over a million employees, the answer now has to be “Yes”. For a publicly traded company, how is one supposed to know whether there is “a familial relationship between the foreign worker and the . . . stockholders”?

In DOL’s FAQ, a  “familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term ‘marriage’ will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.”

If the employer is not a closely held corporation and there is a familial relationship, one view is to assume that the intention of the DOL was to only expect an answer to the question in the affirmative if the employer is a closely held corporation. On the other hand, if the intention of the DOL was to ask the question without regard to whether the employer is a closely held corporation,  the practitioner must require the foreign worker to ascertain whether  there is any familial relationship foreign worker and the owners, stockholders, corporate officers, incorporators, or partners. This would be the more prudent approach until we get further clarification from the OFLC. The foreign worker can endeavor in good faith to find out whether any relative as defined in the DOL FAQ owns stock in the company that is filing the labor certification. If so, A.17 must be marked as Yes. In the supplemental information, Appendix C, it can be explained that notwithstanding the familial relationship the foreign worker under the totality of circumstances test in Matter of Modular Containers had no influence on the recruitment process especially in the context of a large publicly held corporation.

There will be many instances when the foreign worker may not be able to identify every relative who owns stock in the company that is filing the ETA 9089 on their behalf. Even if the question A.17 is marked as “No” and it later comes to light that the question should have been “Yes” and the DOL denies the application, such a finding can be challenged as BALCA does not take too kindly to the DOL denying applications when the instructions are not clear. For instance, when the employer requires alternative experience and the foreign worker qualifies through that alternative experience, 20 CFR 656.17(h)(4), which adopted the holding in Matter of Kellogg, 1994-INA-465 (Feb. 8, 1998),   provides that certification will be denied unless the application states that “any suitable combination of education, training, or experience is acceptable.” In Federal Ins. Co., 2008-PER-37 (Feb. 20, 2009), BALCA reversed the denial on grounds of fundamental fairness and procedural due process  where this language was not included as the ETA 9089 or its instructions gave no guidance where to put this language.

The new ETA 9089 now specifically instructs applicants about where and how to insert the Kellogg language, and how to respond to the question on the new form will probably be the subject of the next blog in this series.

 

 

 

 

 

Cyrus Mehta & Kaitlyn Box

Ethical Considerations When the Removal Case is Dismissed

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By Cyrus Mehta and Kaitlyn Box*

In recent times, immigration courts are dismissing the cases of noncitizens with great zeal. Even government attorneys are moving to dismiss these cases and Immigration Judges (IJ) are going along. This bodes well for the noncitizen who is no longer facing the specter of a removal order. On the other hand, the dismissal of the case often leaves the noncitizen in limbo. The noncitizen may have filed a viable cancellation of removal case and has been obtaining interim work authorization for many years due to the case being stuck in an IJ’s overcrowded court docket. After the dismissal, the noncitizen can no longer renew work authorization and can lose their job.

These dismissals have their genesis in an  April 3, 2022 memorandum from  the U.S. Immigration and Custom Enforcement (ICE) Office of the Principal Legal Advisor (OPLA) Kerry E. Doyle (“Doyle Memo”),  which empowered ICE attorneys to exercise prosecutorial discretion in handling the cases of noncitizens who are not considered enforcement priorities under the criteria laid out in the earlier Mayorkas memo. The goal of the ICE prosecuting attorney under the Doyle memo was to achieve justice rather than removing the noncitizen. Indeed, under the Doyle memo, the ICE attorney’s role as the government’s representative in removal proceedings was to proactively alert the immigration judge to potentially dispositive legal issues and viable relief options they have identified.

On June 10, 2022, the U.S. District Court for the Southern District of Texas vacated the Mayorkas memo in Texas v. United States, No. 6:21-cv-0016 (June 10, 2022), holding that the guidance laid out in the memo violates the two mandatory detention provisions at INA § 236(c) and INA § 241(a)(2), as well as the Administrative Procedure Act (APA). As such, OPLA attorneys are no longer relying on the Mayorkas memo, or the sections of the Doyle memo that rely on the criteria provided in the Mayorkas memo. However, recent OPLA guidance on prosecutorial discretion states as follows: “OPLA attorneys, however, 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.”

Although the Doyle memo is no longer applicable, the government continues to dispense with many cases in the way it recommends, relying now on traditional principles of prosecutorial discretion rather than a guiding memorandum.  As an alternative to dismissing the case, EOIR has recently begun removing some cases from the active calendar. The case thus remains technically open, but without any scheduled hearing date. 8 CFR § 1003.0(b)(1)(ii) provides the authority for this practice, stating:

“(b) Powers of the Director—(1) In general. The Director shall manage EOIR and its employees and shall be responsible for the direction and supervision of each EOIR component in the execution of its respective duties pursuant to the Act and the provisions of this chapter. Unless otherwise provided by the Attorney General, the Director shall report to the Deputy Attorney General and the Attorney General. The Director shall have the authority to:

. . . .

(ii) Direct the conduct of all EOIR employees to ensure the efficient disposition of all pending cases, including the power, in his discretion, to set priorities or time frames for the resolution of cases; to direct that the adjudication of certain cases be deferred; to regulate the assignment of adjudicators to cases; and otherwise to manage the docket of matters to be decided by the Board, the immigration judges, the Chief Administrative Hearing Officer, or the administrative law judges…”

This provision thus empowers EOIR to “ensure the efficient disposition of all pending cases”, “set priorities” for the resolution of cases, “direct that the adjudication of certain cases be deferred”, and “otherwise to manage the docket of matters to be decided”, which can include removing cases from the active calendar. For the noncitizen who has a cancellation of removal case and has been renewing work authorization, taking the case off the calendar is preferable than outright dismissal as they can continue to renew work authorization.

Dismissal of the proceeding can raise ethical conundrums for immigration practitioner representing the noncitizen. As already noted, if an individual in removal proceedings has an application for relief pending before EOIR such as an application for cancellation of removal and the case is outright dismissed, the noncitizen might lose work authorization or another benefit associated with the pending application. This individual will also be deprived of the ability to pursue the application and win cancellation of removal. Dismissal will put the noncitizen back to square one as an undocumented person. It is possible that a noncitizen who has been granted cancellation of removal but is waiting in the queue for a number can also be subject to a unilateral motion to dismiss by an ICE prosecutor.  Thus, it is crucial for attorneys to promptly notify clients of an outright dismissal and any associated consequences.

Before accepting the dismissal, the client should consent to the dismissal. Winning a request for cancellation of removal is never guaranteed as the respondent has to demonstrate, among other things, that “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” See INA § 240A(b)(1)(D). Hence, even if dismissal would deprive the client of work authorization, in the long term, the client would not want to risk a removal order. On the other hand, a client who may not have any alternative relief on the horizon may want to take the chance and pursue cancellation of removal in the hope of winning even though there is a risk that an IJ may deny the claim.

It is important to communicate the risks and benefits to the client who is facing a dismissal of the proceeding. ABA Model Rule 1.4 requires the attorney to inform the client of any decision or circumstance with respect to which the client’s informed consent is required. Under ABA Model Rule 1.0(e) “‘Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” The attorney must also check the state analogue to the ABA model ethical rules where they may be admitted. Moreover, there are independent grounds promulgated by the EOIR that can result in sanctions for an immigration conduct such as failing to  maintain communication with the client throughout the duration of the client-practitioner relationship,  8 CFR 1003.102(r), and failing to abide by a client’s decisions concerning the objectives of representation and failing to consult with the client as to the means by which they are to be pursued. 8 CFR § 1003.102(p).

Board of Immigration appeals case law also provides a basis for attorneys to be able to challenge outright dismissals that are deleterious to their clients. In Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998), the BIA held that once the NTA is filed  an Immigration Judge must not simply cancel a charging document upon USCIS’ invocation of prosecutorial discretion, but should adjudicate the motion to dismiss on the merits, considering arguments from both sides. Certain noncitizens have a right to be placed in removal proceedings. One whose affirmative asylum application is not granted must be referred for removal proceedings pursuant to 8 CFR § 208.14(c)(1). Similarly, under 8 CFR § 216.4(d)(2) and 8 CFR § 216.5(f), the denial of a joint I-751 or waiver I-751 petition requires the issuance of an NTA. A dismissal of such an application would clearly be in violation of not the applicable regulations. Still, the IJ can dismiss a proceeding where a meritless asylum application was filed with the USCIS for the sole purpose of seeking cancellation of removal in immigration court. See Matter of Andrade, 27 I&N Dec. 557 (BIA 2019). Thus, attorneys must be vigilant to contest a motion to dismiss if the facts of the case can be distinguished from Matter of Andrade. For instance, even if the asylum application may have been filed with the intention for seeking cancellation of removal, but the asylum application had merit, this would not be a basis for an IJ dismiss the proceeding.

ICE attorneys move swiftly to dismiss cases.  There is often a short time frame to respond to these motions, so advocates must be vigilant in ensuring that they inform clients and submit a timely response. Advocates should ensure that clients have an avenue for relief before joining a motion to dismiss, and should inform clients about what a dismissal would mean for their case and any negative consequences.

Further, although the current practice is to outright dismiss the case, ICE attorneys may agree to administrative closure when the noncitizen does not oppose and the specific facts of the case warrant administrative closure over other means of clearing the case from the docket. In some instances, though, OPLA can unilaterally seek administrative closure regardless of the wishes of the noncitizen. As explained above, the case can also be removed from the active calendar.  Immigration attorneys should inform their clients of the impact that such actions would have on their case, and vigorously oppose if the clients’ interests would be harmed. It is also important to recognize that administrative closure or removing the case from the active calendar is not a permanent termination of removal proceedings, so attorneys must continue to monitor administratively closed cases and seek more lasting forms of relief for their clients.

Despite its beneficial aspect, the various methods for exercising prosecutorial discretion can place noncitizens in uncertain situations and raise ethical dilemmas for their immigration lawyers. The attorney must be competent, diligent and must communicate with the client to ensure that the client is not worse off than in pending removal proceedings. Most important, the attorney must obtain the client’s informed consent before responding to any discretionary initiative by the ICE prosecutor or reaching an agreement with the government. The pros and cons of seeking relief under prosecutorial discretion over seeking relief under the INA must be carefully considered and discussed with the client.  Because OPLA does not include language in motions that would preserve a noncitizen’s ability to work, dismissal of the case often means that a noncitizen will lose work authorization with little warning. Dismissal of a case may also leave individuals with essentially no authorization to remain in the US, giving them little choice but to work without authorization, not pay taxes, and potentially violate the law in other ways. Immigration attorneys must carefully analyze these issues and advocate for their clients when a dismissal or administrative closure may do more harm than good.

 

This is an update of Ethical Considerations When ICE Moves to Dismiss Removal Proceedings Under the Doyle Prosecutorial Memo, published on May 9, 2022, available at https://blog.cyrusmehta.com/2022/05/ethical-considerations-when-ice-moves-to-dismiss-removal-proceedings-under-the-doyle-prosecutorial-discretion-memo.html

 

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Second Circuit Upholds Trump Era Interpretation on Administrative Closure Even Though Biden Has Changed It. Does This Leave Open Possibility that Biden Era Interpretation May Also Be Upheld If Future Administration Changes It?

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By Cyrus D. Mehta and Kaitlyn Box*

The Second Circuit in Garcia v. Garland upheld the BIA’s decision not to grant administrative closure under Matter of Castro-Tum, despite the fact that that the case has since been overruled.

Matter of Castro -Tum, a Trump era decision, held that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases, unless expressly authorized by a previous regulation or a previous judicially approved settlement. We have previously advocated that Matter of Castro-Tum be withdrawn and its predecessor, Matter of Avetisyan, be reinstated. Avetisyan held that IJs and the BIA may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances, and that IJs or the BIA should weigh all relevant factors in deciding whether administrative closure is appropriate. In prior blogs, see here and here, we have argued that Avetisyan sets a more common sense standard for administrative closure that and would go a long way towards clearing the Immigration Court’s backlogged dockets.

In another previous blog, extracts of which are reproduced here, we discussed the numerous Circuit Court decisions that have overturned Castro-Tum. In 2019, the Fourth Circuit in Romero v. Barr held that the language “may take any action…..appropriate and necessary for the disposition” of the case” at 8 CFR §§ 1003.1(d)(1)(ii) & 1003.10(b) unambiguously confers upon IJs and the BIA the general authority to administratively close cases. Meza-Morales v. Barr, decided by the Seventh Circuit in 2020, also concluded that the “immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Most recently, the Third Circuit in Sanchez v. Attorney General, held that 8 CFR §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. The Court in Sanchez relied on the Supreme Court’s 2018 decision in Kisor v. Wilkie, which held that an agency’s interpretation of its own regulations will only be entitled to deference if the following criteria are met: i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

On July 15, 2021,  Attorney General Garland issued a decision in Matter of Cruz-Valdez that overrules Castro-Tum in its entirety and held that “[i]mmigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan…” The decision noted that three courts of appeals have rejected Castro – Tum, “holding that administrative closure is ‘plainly within an immigration judge’s authority’ under Department of Justice regulations”, while only the 6th Circuit upheld it in Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020). Even the 6th Circuit eventually ruled that IJs and the BIA do have the authority to administratively close cases for the purpose of allowing noncitizens to apply for provisional unlawful presence waivers, however. See Garcia-DeLeon v. Garland, No. 20-3957 (6th Cir. 2021). The decision also pointed to the 2020 DOJ final rule codifying Castro-Tum, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81588, 81598 (Dec. 16, 2020), which was the subject of a nationwide preliminary injunction and undergoing reconsideration by the DOJ, as further justification for overruling Castro-Tum. Because Castro-Tum departed from longstanding practice regarding administrative closure, AG Garland held that IJs and the BIA should revert to the standards for administrative closure laid out in cases like Avetisyan.

Despite Castro-Tum being overruled, it is disappointing that the Second Circuit held that a decision not to close under a prior precedent is still binding even though the Biden administration has overruled it.  It is also surprising that Biden’s Justice Department defended the BIA’s decision. Garcia v. Garland involved a Petitioner, Antonio Luna Garcia, who was issued a Notice to Appear (“NTA”) in 2004 under 8 U.S.C. § 1182(a)(6)(A)(i) because he had entered the U.S. in 1999 and remained ever since without having been inspected or paroled. Garcia’s wife then filed an I-130 petition on his behalf, which was approved. Because he had never been admitted or paroled into the U.S., however, Garcia was ineligible to adjust status in the U.S. If he were to return to Mexico to consular process, he would be subject to the 10-year bar under 8 U.S.C. § 1182(a)(9)(B)(i)(II) as he had been accrued far more than a year of unlawful presence in the U.S. Garcia requested that the Immigration Judge (“IJ”) adjourn his merits hearing to a later date to allow him to apply for an I-601A waiver. The IJ declined to grant a continuance, finding that Garcia failed to show good cause. The IJ also declined to grant administrative closure, stating that it was “no longer an option in this case” after Matter of Castro -Tum. On appeal, the BIA upheld the IJ’s denial of administrative closure, citing Matter of Castro -Tum and holding that “[t]he Attorney General has explicitly held that the Board and the Immigration Judges lack the general authority to administratively close cases.”

Garcia appealed to the Second Circuit, arguing first that the agency’s overturning of Matter of Castro -Tum in Matter of Cruz-Valdez renders its previous reliance on Castro-Tum an abuse of discretion. Garcia also asserted that, even if the agency’s earlier application of Castro-Tum was not an abuse of the discretion, Castro-Tum conflicted with the regulations which expressly empower IJs and the BIA to grant administrative closure. Finally, Garcia argued that 8 C.F.R. § 212.7(e)(4)(iii) expressly contemplates administrative closure in cases like his, so the IJ or the BIA could have granted administrative closure in his case, despite the general rule of Castro-Tum.

The Second Circuit rejected all of Garcia’s arguments. First, the court held that the BIA’s previous reliance on Matter of Castro -Tum was not an abuse of discretion because the holding of the case was “valid and applicable” at the time of the agency’s decision. The court reasoned that agencies need not overturn precedential decisions in the same way that courts do, stating that “when an agency reinterprets an ambiguous statutory provision, it is making policy within the bounds of discretion that Congress has conferred on the agency by statute”. The court further stated that “[b]ecause an agency interpretation of its regulations may reflect policy judgment, the interpretation may vary at different times—especially between different administrations—without casting doubt on the validity of the interpretation at either time”. Additionally, the court held that the “regulations considered in Matter of Castro-Tum are at least ambiguous and that the Attorney General’s interpretation was reasonable”, so the BIA did not abuse its discretion by following that interpretation. The court disagreed with circuits that have found the “necessary and appropriate” language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) to unambiguously authorize administrative closure, reasoning that these provisions authorize actions necessary “for the disposition of” a case and administrative closure is arguably not a disposition because it does not resolve a case on its merits. The Sixth Circuit, as the court pointed out, adopted a similar interpretation of the regulations in Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020). Because the regulations can be read in this way, the court found both the AG’s interpretation to reasonable, and held that the IJ and BIA permissibly relied on this reading. Further, the court rejected Garcia’s contention that administrative closure remained an option in his case, reasoning that IJs and the BIA are delegates of the AG, not the Secretary of Homeland Security, so a DHS regulation cannot provide independent authorization for administrative closure.

On the whole, Garcia v. Garland upheld as valid the application of Castro-Tum before the case was overruled. It also unfortunate that the government did not decline to defend the BIA’s decision on that ground that it relied on Matter of Castro-Tum, which the Biden administration has since overturned.  Nonetheless, the case leaves open some interesting possibilities. In Garcia v. Garland the Second Circuit held that that agency’s interpretation on administrative closure was valid because Matter of Castro-Tum was valid and applicable at the time of the agency’s decision. Thus, if an IJ or the BIA grant administrative closure in reliance on Matter of Cruz-Valdez, that decision should be upheld even if a less immigrant-friendly administration overrules the decision in future. The same logic could apply to other Biden administration policies should they be challenged in future. Further, the decision in Garcia v. Garland asserts that principle that different administrations may reinterpret ambiguous statutory provisions. We have previously suggested, here and here, that the Biden administration could interpret INA § 203(d) to count derivatives with the principal family member. The language of INA § 203(d) provides authority for family members to be counted under the preference quotas, and states that family members are “entitled to the same status, and the same order of consideration” as the principal. The plain language of the statue does not require that family members be allocated separate visa numbers. Unfortunately, in Wang v. Blinken, the DC Court of Appeals held that there was no ambiguity under INA § 203(d) thus making it clear that derivatives need to be separately counted. If the Biden administration or another administration changes its mind and decides to adopt a nationwide policy to not count derivatives on the ground that INA § 203(d) is ambiguous, it would be precluded from implementing this policy for people living within the jurisdiction of the D.C Circuit, but the policy could be applicable to people outside the DC Circuit under the Brand X doctrine (thus overruling the case everywhere except in the DC Circuit). This situation exists today even with administrative closure. Matter of Cruz-Valdez has overturned Castro-Tum nationwide except in the Sixth Circuit.

Although Garcia v. Garland is a disappointing decision, it provides an opening for the administration to reinterpret ambiguous statutes as well as protects prior interpretations should a future administration decide to change the interpretation.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Dealing With Section H.10-B Labor Certification Denials

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, reports of PERM labor certification denials concerning the manner in which question H.10-B was completed on Form ETA 9089 have abounded from many immigration lawyers and their clients. This question asks employers to “identity the job title of the acceptable alternate occupation” if an alternate exists. The DOL has promulgated little guidance on this question, so immigration lawyers have been accustomed to completed it in a variety of ways. While some employers may prefer to list related job titles in H.10-B, a candidate’s qualifying experience may have been gained in positions with various nondescriptive job titles. Thus, employers may choose to respond by instead describing the experience such as “2 years of experience in engineering management” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. The DOL has historically accepted PERM applications that respond to question H.10-B in this way, and this approach is consistent with guidance that it has previously issued by the DOL’s Office of Foreign Labor Certification (OFLC), so the wave of recent denials is puzzling.

The uptick in PERM denials concerning question H.10-B seems to have begun between October and December 2022, when the percentage of PERM applications denied by the DOL nearly doubled when compared to data from the first quarter of FY 2022. The denials seem to focus on the idea that question H.10-B is not properly completed unless specific job titles are listed. Because DOL takes the position that this field in the form was not properly completed if an employer uses alternate language, it asserts that the entire PERM application is rendered incomplete. The DOL cites to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

On November 17, 2022, OFLC communicated the following guidance to the American Immigration Lawyers Association (AILA) in response to reports of numerous denials on this issue: “OFLC understands that there may be a variety of relevant specific job titles in which required experience may be gained. Employers may list a specific job title, a number of related job titles, or even language such as ‘any occupation in which the required experience was gained.’ The answer does not have to be an exact job title, but employers still have to answer the question. If employers reference H.14 to answer the question in H.10-B, employers must be sure to answer the H.10-B question. Just providing a list of requirements is not acceptable.” See AILA Doc. 22092601. Interestingly, AILA received reports of continued denials on the question H.10-B issue well into March 2023, even when the PERM application contained language similar or identical to that prescribed by OFLC in November 2022. Id.

Historically, BALCA’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998), has been the prevailing guidance concerning alternative requirements. In Kellogg, BALCA held that employers should indicate that it will accept “any suitable combination of education, training or experience” if the primary and alternate requirements for the position are not “substantially equivalent”. 20 CFR §656.17(h)(4)(ii) broadened the holding of Kellogg to apply whenever there are alternate requirements, providing as follows:

“If the alien beneficiary already is employed by the employer and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.”

However, in Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), BALCA held that failure to include the Kellogg language on an ETA 9089 should not be a basis for denial, noting that there is no suitable place on the form to include the language. Nothing in the holdings of Kellogg or its progeny, however, seems to be instructive regarding whether specific job titles must be listed for alternate occupations.

The DOL is aware of inconsistencies in the adjudication of PERM applications, and has communicated to AILA that it will review applications where an employer has filed a Request for Reconsideration (“RFR”) for a denial based on the manner in which question H.10-B was completed. According the AILA, “where the reason for denial is Question H.10-B only, OFLC will pull the case out of the usual order to review and certify the application where appropriate. OFLC has indicated that there are several hundreds of these cases. While OFLC will start reviewing these cases immediately, it may take several weeks to process them all.” See AILA Doc. 22092601. It thus seems that immigration lawyers and their clients who are dealing with an H.10-B denial may be able to get resolution simply by filing an RFR.

The recent denials still pose a number of complications, though. If the PERM was filed in the sixth year in H-1B status, because the DOL is likely to take at least several weeks to process RFRs, some employees may reach the end of their sixth year in H-1B status and be forced to leave the U.S. during this extended waiting period, even if the DOL ultimately certifies the PERM. On the other hand, if the PERM was filed one year or more prior to the end of the sixth year, the PERM that is the subject of an RFR is still considered pending and can provide the basis for a one-year H-1B extension under § 106(a) of the American Competitiveness in the 21st Century Act.   Moreover, immigration lawyers and their clients who process many PERM applications have been left wondering whether other pending PERM applications that use the same language for question H.10-B will be denied. If that is so, then employers should continue to file RFRs each time there is a denial.  If a Prevailing Wage Request or recruitment such as job orders and newspaper ads are already in progress and use general language like “5 years of experience in the biotechnology industry”, it is hoped that DOL will no longer deny such a PERM in light of its announcement that employers may file RFRs. It would be in violation of the Administrative Procedure Act for the DOL to deny pending and future applications without notice and the opportunity to comment on the change.

In general, it is a best practice to ensure that the Prevailing Wage Determination on Form 9141, all recruitment, and the ETA 9089 itself use identical language. While it would easier said than done for the employer to start all over again by requesting a new Prevailing Wage Determination if the language is not consistent with DOL’s latest guidance, obtaining a new 9141 Prevailing Wage Determination could take 12-14 months. If the prevailing wage request is pending and indicates experience rather than titles that have resulted in denials, or if the advertisements are already running with that language, it would be defensible to not change course and list the experience in the same way in H.10-B. Alternatively, the employer may include the “magic” language as suggested by OFLC to AILA in its November 17, 2022 guidance by stating in ETA 9089 H.10-B “any occupation in which the required experience or skills were gained as specified in H.14” . H.14 can list the skills or experience required for the position that was stated in the advertisements or the prevailing wage request. This modification would likely not be inconsistent with the way the job requirements were set forth in the 9141 or the recruitment.

Although it is salutary that the DOL has allowed employers with denied PERMs based on how H10-B was completed to submit RFRs, until this issue is resolved, employers must also find ways to prevent further denials by drafting the language in H.10-B to hew as closely as possible to the DOL guidance provided to AILA while also not veering too far off from the way the requirements have been listed in the prevailing wage determination and ongoing recruitment.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Pathways for Terminated H-1B Workers Who Want to Become Entrepreneurs

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By Cyrus D. Mehta & Jessica Paszko*

The list of options for an H-1B beneficiary who has been laid off is often narrow. At the top of the list sits the most obvious option: find another employer who will sponsor you for an H-1B. Although, in the current job market, which is growing more competitive due to the influx of laid off employees, there simply may not be enough open positions to fill. But laid off H-1B beneficiaries who can’t find another employer to sponsor them and who have been dreaming of setting up their own startups may not need to pack their bags and book their flights home just yet as there might be another, more creative option to consider: starting your own company and extending H-1B status through that company.  Whichever option laid off beneficiaries pursue; they have 60 days to get their affairs in order under 8 C.F.R. § 214.1(l)(2) which allows H-1B beneficiaries to remain in the U.S. for up to 60 days after their H-1B employment ceases.

The last time we explored the topic of H-1B entrepreneurs, the control test in the Memo “Determining Employer-Employee Relationship for Adjudications of H-1B Petitions, Including Third-Party Site Placements” by Donald Neufeld posed an obstacle. The Neufeld Memo attempted to clarify what constitutes a valid employer-employee relationship under 8 C.F.R. § 214.2(h)(4)(ii) and established a policy wherein H-1B petitioners had to establish that they had the right to control over when, where and how the beneficiary performed the job. Neufeld urged USCIS officers to consider eleven factors in determining whether a petitioner had sufficiently established its “right to control”. Despite the Neufeld Memo, we still entertained, in our blog, the idea of whether a startup owner can be able to get  sponsored on an H-1B through a startup, while simultaneously addressing the potential obstacles that one might experience in attempting such a feat.

Now, ten years after that blog was published, changes have occurred in immigration policy that contemplate scenarios in which entrepreneurs can remain in the U.S. on an H-1B through their startup or be paroled into the U.S. to set up their start-ups. For starters, on June 17, 2020, the Neufeld Memo was rescinded, effectively ending the “right to control” era. Instead, in assessing whether an employee and a beneficiary have an employer-employee relationship, USCIS officers were instructed to consider whether the petitioner has established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary. See 8 C.F.R. § 214.2(h)(4)(ii). Most recently, on March 10, 2023, USCIS issued comprehensive guidance on parole for international entrepreneurs.

USCIS has also provided FAQs where it addresses parole pathways for entrepreneurs under the International Entrepreneur Rule, a topic that is not the focus of this blog, but which also touches on the key requirements that one must fulfill to qualify for classification as an H-1B specialty occupation worker. The first requirement is establishing an employer-employee relationship with the petitioning U.S. employer. Here, the sole or majority owner of the petitioning company may be able to establish a valid employer-employee relationship if the facts show that the petitioning entity meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors.  Old decisions recognize the separate existence of the corporate entity as separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur when Neufeld has been rescinded. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if they have a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the U.S.

The second requirement is establishing that the job qualifies as a specialty occupation under one of the four criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). The third requirement is establishing that the job is in a specialty occupation related to the beneficiary’s field of study which may done by submitting a detailed description of the specific duties of the position, written opinions from experts in the field, resources describing the degree fields normally associated with the occupation, or evidence that similar companies in the industry require similar degrees for similar positions. USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Lastly, the fourth requirement is that an H-1B visa number be available at the time of filing the petition, unless the petition is exempt from numerical limits, though the topic of this blog assumes that one has already been counted against the cap. Notably, this new guidance does not seem to elevate control over all the other components in the employer-employee relationship under 8 C.F.R. § 214.2(h).

There are other challenges for an H-1B entrepreneur that may be beyond the USCIS’s control. Every H-1B petition must be accompanied by a certified Labor Condition Application (LCA) from the DOL. Under an LCA, the employer attests that it must pay the beneficiary the higher of the prevailing or actual wage, and must also do so on a regular prorated basis. In a startup, there may be no revenue stream to pay the entrepreneur initially. Thus, unless the startup is sufficiently capitalized through venture capital or other forms of financing that can ensure a steady stream of income to the H-1B beneficiary at the required wage, the petitioning entity may be in violation of the DOL rules if it cannot guarantee a regular prevailing wage.

Still, these challenges are not insurmountable. H-1B beneficiaries who wish to obtain H-1B status through their startups face a less hostile environment as they do not have to deal with the control test under the Neufeld memo. Before, our answer to the question of “can the startup owner be able to sponsor themselves on an H-1B through the startup?” was a shaky “maybe”. Now, however, while still not implying a definitive “yes”, there is at least more reason to believe that an entrepreneur should be able to successfully sponsor him or herself through their own startup, especially in light of the June 17, 2020 guidance and the latest FAQs. If the beneficiary has an approved I-140, then he or she can also get three year H-1B extensions if eligible. Recall though that those who qualify for three year extensions only do so because they are nationals of countries with per-country limitations. Thus, when their priority dates become current, they will no longer be eligible for three year H-1B extensions. At that point, they could file an EB-2 National Interest Waiver (NIW), for instance, in order to be to apply for a green card through a viable I-140 petition and in doing so, will be able to recapture their old priority date. As a result of starting their own companies, these entrepreneurs can now capitalize on their startups and use them as a basis for establishing their eligibility for the NIW. The NIW may also be a viable option for those in the STEM field as the USCIS Policy Manual was updated last year to clarify how the NIW can be used by STEM entrepreneurs.

On the other hand, H-1B beneficiaries who are terminated and have pending I-485 applications can attempt to port to self-employment. INA § 204(j) allows foreign workers who are being petitioned for permanent residence by their employer to change jobs once their I-485 applications have been pending for 180 days or more. 8 C.F.R.§ 245.25(a)(2)(ii)(B) even allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing. Therefore, H-1B beneficiaries who have a pending or approved I-140 and who have adjustment applications that have been pending for 180 days can, after being terminated by their H-1B/I-140 sponsor, start their company and port to that company, or even a sole proprietorship,  so long as their job duties are same or similar to the occupation that was the basis of the I-140 petition. They may ne able to rely on their pending I-485 application, and employment authorization document, rather than remain in H-1B status.

While there is no specific startup visa in the INA, USCIS should think of immigration in a strategic sense as a mechanism to create wealth and expand the economy. By encouraging H-1B entrepreneurs the USCIS should also think like an entrepreneur, use all its authority under the INA to allow entrepreneurs to remain and thrive in the U.S., and adjudicate H-1B petitions consistent with this objective. Notwithstanding a downturn in certain sectors of the economy, the talents and creative energies of H-1B workers who have been laid off can be unleashed so that they be part of the effort in turning around the economy in addition to landing on their feet.

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