Cyrus Mehta

Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo

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By Cyrus D. Mehta and Kaitlyn Box*

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

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

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

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

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

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

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

 

 

 

Cyrus Mehta

Will “Head of Team Anywhere” and Other New Fangled Jobs That Have Popped Up During the Pandemic Be Able to Fit  Under Existing Visa Categories?  

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By Cyrus D. Mehta and Kaitlyn Box*

From reliance on Zoom meetings to conduct business to an increased emphasis on employees’ health and wellbeing, COVID has ushered in fundamental alterations to many workplace cultures. But innovations in the ways in which employees carry out their day-to-day duties have not been the only change. As a result of the pandemic, entirely new jobs have popped up as well. A recent N.Y. Times article highlights some of these positions, which include a Chief Heart Officer, who provides mental health support to employees, a Head of Dynamic Work, who coordinates hybrid and remote work schedules, a Head of Team Anywhere, who is responsible for keeping the engines of collaborations for software development smoothly,  and a Chief Science Advocate, who is charged with drumming up public support for scientific developments. If employers wish file H-1B and L-1 petitions and labor certifications to employ noncitizens in these innovate positions, creative arguments will need to be made to ensure their approval.

The Occupational Information Network (O*NET) and the Occupational Outlook Handbook do not have entries for the new positions that have arisen from the era of remote work, so employers could have difficulty selecting Standard Occupational Classification (SOC) codes for these jobs in order to file Labor Conditions Applications (LCA) or Prevailing Wage Requests. Similarly, in the absence of O*NET and OOH descriptions, it may prove difficult to demonstrate the typical educational requirements for a nontraditional job. If positions like Vice President of Remote Work and Chief Heart Officer endure even after the pandemic abates, the Department of Labor may eventually recognize them and develop corresponding O*NET and OOH entries. In the meantime, though, employers and their immigration attorneys would need to find alternate ways of establishing that these jobs are specialty occupations requiring underlying bachelor’s degrees in specialized fields.

Though the job titles may seem novel, employees holding bachelor’s degrees in established fields like business and technology can qualify for many of these new, remote-work related positions. A position like Chief Heart Officer might require a degree in psychology or HR, while a candidate for a Chief Science Advocate position would likely need to possess a bachelor’s degree in a scientific field. Employers who wish to file H-1B petitions must demonstrate not only that the attainment of a bachelor’s or higher degree in a specific specialty is a minimum for entry into the occupation, but also that the position requires the theoretical and practical application of a body of highly specialized knowledge. Additionally, the position must also meet one of the following criteria:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position
  • The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree
  • The employer normally requires a degree or its equivalent for the position
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

When a position is especially unique, it may be a challenge for employer to demonstrate that a bachelor’s degree is normally the minimum entry requirement for the position, or establish that that a bachelor’s degree is the common industry requirement. If the position is newly created, the employer may even be unable to provide evidence that the company itself normally requires a bachelor’s degree for the position. However, the fourth criteria provides some solace for employers seeking to file an H-1B petition for an innovative position. Many of the positions described above require highly specialized knowledge, whether of technology, psychology, or science. By demonstrating that the position is so unique and complex that it could only be performed by an individual who has attained the equivalent of a bachelor’s degree, employers can establish that the position qualifies as a specialty occupation.

Employees who have worked abroad for a year or more in an innovative managerial position and will now be transferred to a U.S. office of the same company could also qualify for L-1 classification. An L-1A visa “enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States”. To qualify, the executive or managerial employee must:

  • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately before your admission to the United States; and
  • Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

A Vice President of Flexible Work who supervises and controls the work of teams of remote employees could potentially qualify for an L-1A visa as a manager. An employee who “manages an essential function of the organization at a high level, without direct supervision of others” can also be eligible for L-1A classification. As remote work becomes a more integral component of the functioning of many companies, managers who develop the employer’s remote strategy, and coordinate schedules and trainings for fully remote employees could qualify as functional managers.

The pandemic has forced many employers to get creative about how their employees can work remotely. This innovation has led to the creation of job titles and positions that would previously have been unheard of. Obtaining nonimmigrant visas for employees in unique positions can often be difficult, but employers who can put this same creativity to work in demonstrating why their employees qualify for H-1B or L-1 classification may be able to find success. Likewise, obtaining labor certification for these positions would also pose some challenges. If an employer requires experience in these positions, most would not have gotten this experience including the foreign national being sponsored in this new fangled position. The Labor Department would thus potentially object that the experience requirements for this new position may not meet the employer’s actual minimum requirements as the employer could not have hired workers with the same training and experience for this new position. Fortunately, even though the titles may be fanciful, they relate to positions that have probably existed before in another form and with different albeit related duties.  Thus, the duties involving  Head of Team Anywhere would most likely be related to a product development manager or innovation manager, and so an employer who files a labor certification for such a position can also require related experience involving product development in the advertisements when testing the US labor market for qualified US workers. The USCIS along with the DOL will need to adapt to these evolving occupations. There was a time when Chief Information Officer was considered novel, although presently this occupation is as commonplace and conventional as a Chief Financial Officer or Chief Marketing Officer.

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

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

 

 

Cyrus Mehta

The Long, Windy, Bumpy, and Outrageous Road to Labor Certification feat. Two Sunday Ads

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By Cyrus D. Mehta and Jessica Paszko*

It’s no secret that employers wishing to sponsor a foreign national for permanent employment must jump through many bureaucratic hoops that Congress once envisioned would ensure that foreigners are not stealing jobs from U.S. workers. One of those bureaucratic hoops in the PERM labor certification process is conducting a series of recruitment steps. In addition to conducting two mandatory recruitment steps, including placing a job order with the State Wage Agency and placing two print advertisements on two different Sundays in a paper of general circulation, employers must also select any three out of ten additional recruitment steps that are outlined in the regulations. Although well intentioned and enacted to ensure that employers first demonstrate that they were unable to find qualified U.S. workers, the Department of Labor (“DOL”) continues to use these very technical requirements as a pretext to deny labor certifications, as was the case in Matter of Kolla Soft, Inc., 2018-PER-00184 (March 30, 2022).

In Matter of Kolla, an Arizona based employer filed a PERM labor certification sponsoring a foreign worker for permanent employment for the position of software engineer. The DOL denied certification on the grounds that the employer failed to comply with the mandatory recruitment step of placing two Sunday ads because the newspaper East Valley Tribune used by the employer “is not a newspaper of general circulation in the area of intended employment most likely to bring responses from available U.S. workers.” Pursuant to 20 C.F.R. § 656.17(e)(1)(i)(B), the employer must place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers.”

The DOL pointed to the newspaper’s “About Us” section on its website which stated that the newspaper is delivered to selected areas in Mesa, Gilbert, Chandler, Tempe and Queen Creek only and not available for delivery or pick up in the Phoenix or Scottsdale area. On reconsideration, the employer argued that the East Valley Tribune “is distributed through Maricopa County, the largest populated county in Arizona which obviously includes the county’s two largest cities, Phoenix and Scottsdale.” According to the employer, it was a given that the newspaper would be available in the newspaper’s two largest cities in its area of circulation in Maricopa County. In support, the employer submitted an affidavit from the publisher of the East Valley Tribune stating that its newspaper is available for home delivery and in the cities of Phoenix and Scottsdale, Arizona, and is a newspaper of general circulation throughout Maricopa County, Arizona. The employer also urged the DOL to consider the fact that the East Valley Tribune has placed numerous PERM advertisements and that its status as a newspaper of general circulation has never been previously questioned. The employer even submitted evidence that the newspaper updated its “About Us” section on its website and that it now includes Scottsdale as an area of home delivery and retailer distribution as well as evidence that the East Valley Tribune is the third largest newspaper in Arizona.

Unconvinced by the employer’s arguments and mountains of persuasive evidence, the DOL affirmed the denial on reconsideration. According to the DOL, the regulations require “that the mandatory advertisements appear in the newspaper most appropriate to the occupation and the workers most likely to apply for the job opportunity,” and the East Valley Tribune was not the most appropriate newspaper to advertise the job opportunity because with three day per week publishing and a circulation of 97,573 copies, it was the third largest newspaper in the area of intended employment. Upon administrative review, the Board of Immigration Appeals (“BALCA”) found that the employer provided sufficient evidence on reconsideration demonstrating that the East Valley Tribune is a newspaper of general circulation in the area of intended employment. It ultimately affirmed the denial, however, due to the employer’s failure to state why the East Valley Tribune is the “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers” (emphasis included). Absent such evidence, the BALCA found that the record demonstrated that The Arizona Republic, a daily newspaper in Phoenix, Arizona published seven days a week with circulation of 321,600 copies, rather than the East Valley Tribune, which is published three days each week and a circulation of 97,563 copies, “is the most appropriate newspaper to advertise the job opportunity and most likely to solicit responses from U.S. workers.” Similarly, in a prior decision, Matter of Intercontinental Enterprises, Inc., 2011-PER-02756 (July 30, 2012), the BALCA similarly concluded that the employer had not satisfactorily compiled with the Sunday ad requirement because even though it placed the ads in The Washington Examiner which had a “reasonably large circulation”, the employer failed to establish that it was the best choice for the job at issue.

Business immigration practitioners who have failed to consider the significance of the regulation’s requirement that Sunday ads be placed, not only in a newspaper of general circulation but also, in a newspaper “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers” may be feeling unsettled by the decision in Matter of Kolla. It appears that the employer in Matter of Kolla was no stranger to the PERM labor certification process and had placed ads in this particular newspaper before without issue. Perhaps this particular labor certification was intended for a position that the employer had never filled before or maybe this unlucky employer’s labor certification simply fell onto the desk of a particularly picky certifying officer at the DOL. Admittedly, the BALCA does seem to have a point given that there exists a daily newspaper in Phoenix which is published more frequently and circulated to a higher volume of readers. Maybe if the employer had proffered a good enough reason for choosing the newspaper that it did to advertise for the position, for instance, because that particular newspaper was read by a higher number of U.S. workers seeking software engineer positions, the case would have turned out differently. By contrast, the BALCA held in Matter of Gallup McKinley Schools, 2013-PER-03215 (Oct. 3, 2017), that ads placed in local or ethnic newspapers, which employers may place to satisfy one of the additional recruitment steps, need not comply with the same standard as the Sunday ad. In that decision, the BALCA concluded that because the regulation at 20 C.F.R. § 656.17(e)(1)(ii)(I) does not contain similar to § 656.17(e)(1)(i)(B)(1), i.e., language requiring that the ad be placed in a newspaper “most likely to bring responses from able, willing, qualified, and available U.S. workers”, it does not follow that an employer must abide by the “most likely” standard when selecting a local or ethnic newspaper. But still, if the employer places such an ad in bad faith, the DOL can deny the labor certification under the catch all provision at 20 C.F.R. § 656.24(b)(2) which provides, in pertinent part, that the “Certifying Officer makes a determination either to grant or deny the labor certification on the basis of whether or not: . . . [t]here is in the United States a worker who is able, willing, qualified, and available for and at the place of the job opportunity.”

As business immigration attorneys based in New York City with corporate clients in New York City, we hardly ever see employers place Sunday ads in newspapers other than the New York Times. There is no doubt that the New York Times is a newspaper of general circulation in New York, the tri-state area, and maybe even the entire United States, but the decision in Matter of Kolla has left us wondering whether the New York Times is always the most appropriate newspaper. In light of this decision, we cannot forget to take into account that Sunday ads must not only be placed in newspapers of general circulation but also in newspapers that are most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. While an ad in the New York Times may be the most appropriate for most professional positions, an ad for the position of a welder, for instance, may be more appropriately placed in a different newspaper of general circulation in New York, such as the New York Post or the Daily News.

At the same time though, we cannot help but balk at this decision and the government’s strict reading of the regulations and its pretextual use of them to close the door on employment of foreign workers every chance they get. As lawyers, we understand and appreciate the need to comply with the letter of the law, but also cannot help but wonder if the government lives under a rock. While we agree that U.S. workers should be given first dibs on available jobs, we also recognize and see firsthand how tight the U.S. job market continues to be and that there are plenty of jobs to go around for both U.S. and foreign workers. The regulations have been carefully crafted to protect the very important obligation that employers first attempt to find U.S. workers by requiring, not one, not two, not three, but rather, five recruitment steps, thus ensuring that available and qualified U.S. workers will be informed of the job opportunity before a labor certification is filed. Yet, even in today’s modern, digital age, the government, with its rose-colored glasses, continues to place an unnecessarily high importance on two Sunday ads as if today’s technologically savvy workforce still flocks to the newsstands each Sunday to look for open job positions. The reality of searching for a job is markedly different today than what the legislators envisioned when they drafted the regulations. It also bears reminding that the labor certification process is not designed for employers to hire U.S. workers. Although the employer is required to conduct a good faith test of the U.S. labor market, if a qualified U.S. worker does apply, the employer is not required to hire the U.S. worker and is only precluded from filing the labor certification. Of course, based on the lessons learned from the Facebook settlement, if the employer does not hew closely to how it would normally recruit for U.S. workers, the Department of Justice’s Civil Rights Employee and Immigrant Rights Section can accuse an employer with discriminatory practices under INA § 274B(a)(1).

While we understand that compliance with the law, however absurd, is necessary, and will continue to advise clients to purchase ad space in newspapers, we also disagree with the government’s reluctance to ease up on these very technical, outdated requirements. Instead of finding insufficiencies between a newspaper with a circulation of 321,600 copies that is published seven days a week and a newspaper with a circulation of 97,573 copies that is published three days a week, the regulation’s purpose may be better served by the government’s focus on how much traffic a particular job search website gets, for instance. The government’s focus on these insignificant details, on the ground that they are accurate measures of how likely workers are to apply for a job opportunity, is truly misguided. Instead of spending time and resources to review cases like Matter of Kolla, and not simply granting labor certifications when an employer facially meets all requirements, the government may stand to benefit and get a much needed wake up call by obtaining statistics on how many U.S. workers actually read the Sunday paper to find work. Until that happens, denials of labor certifications like that in Matter of Kolla will continue and will further confirm our suspicion that the government’s primary concern is not that job opportunities are taken away from U.S. workers but that the road to permanent employment remain rampant with obstacles.

 

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

 

Cyrus Mehta

Considerations When Terminating a Foreign Worker

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By Cyrus D. Mehta

Terminating an employee is always a very difficult decision, and requires the employer to comply with various state and federal laws. Terminating a noncitizen employee requires additional considerations under US immigration law. The American Immigration Lawyers Association has issued a  flyer  to its members that provides a useful guide to employers. In this blog, I will reiterate the guidance and also  provide further commentary and insights that would benefit the employer and the employee.

 

Terminating  H-1B, H-1B1 and E-3 Employees

The terminating of H-1B, H-1B1 and E-3 employees is the most burdensome because of the additional DOL rules that govern the underlying Labor Condition Application and which  intersect with the USCIS rules. If the termination is not effectuated properly with the USCIS, an employer will be liable for back wages until there is a bona fide termination.

The termination of H-1B, H-1B1 and E-3 employees requires:

•written notice to the employee,

•written notice to USCIS (if the petition was filed with USCIS), and

•withdrawal of the labor condition application (when possible).

AILA also correctly notes that the  cost of reasonable transportation to the employee’s country of last residence must be offered to H-1B and E-3 workers if the employer terminates the employee. The employer is not required to pay transportation for dependents. This offer is not required if the employee resigns or chooses not to leave the United States. We direct readers to our prior blog for more detailed analysis on when the employer may choose not to pay the return transportation expenses especially where the worker has chosen to stay in the US through other options such as  filing an extension of H-1B status through another employer or through filing an application of adjustment of status to permanent residence after marriage to a US citizen.

The AILA flyer also discusses the regulation that gives a grace  period of up to 60 days to workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status following termination to remain in the US and not be considered to be in violation of status. The worker can use this time to prepare to depart, find another employer that will file a petition within the grace period or change to another status.

 

When Does Termination Occur?

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

According to a USCIS Policy Memo dated June 17, 2020, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination occurring on June 1, 2022 rather than August 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act even if the worker is not paid.

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

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

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

 

Terminating Employees in Other Nonimmigrant Statuses  

The AILA Flyer provides the following recommendations when terminating O-1, TN, L-1 and E-1/E-2 employees:

Termination of O-1 employees requires:

• written notice to USCIS and

• offer to pay the cost of reasonable transportation to the country of last residence.

Termination of TN and L-1 employees:

•There is no specific immigration notification requirement or return transportation requirement.

Termination of E-1/E-2 employee:

•While not mandatory, it is recommended that the U.S. consulate that issued the E visa be notified that employment was terminated.

 

I-140 Petition Withdrawal

 The AILA flyer wisely notes that there is no requirement that an employer withdraw an approved I-140 petition after a foreign worker’s employment is terminated. If withdrawal is desired, consider the timing of that request carefully, as it may have adverse consequences for the foreign worker. A withdrawal request made before 180 days have passed from approval will automatically revoke the petition. The worker will retain the priority date for future I-140 petitions but will be unable to rely on the I-140 approval to qualify for H-1B extensions beyond the standard six-year limit. Submission of a withdrawal request after 180 days have passed from approval will not result in automatic revocation of the I-140, and the terminated worker will be entitled to I-140 approval benefits, including continued eligibility for H-1B extensions beyond the six-year limit. The I-140 that is withdrawn after 180 days can still provide the legal basis for the H-4 spouse to receive employment authorization.

Thus, an employer may want to allow an I-140 to reach the 180-day mark before withdrawal as this would be  a benefit for the departing employee. When the attorney is representing the employer and employee, advising the employer to withdraw the I-140 at the 180 day mark or not withdraw at all will minimize the conflict of interest between the employer and employee at the time of termination.

Attorneys often do not wish to provide a copy of the I-140 petition to the employee who has been terminated even when it has been concurrently filed with an I-485 adjustment of status application. They view it as the employer’s I-140 petition. However, providing a copy of the I-140 petition and the underlying PERM labor certification would enable the terminated employee to file an I-485J that is required when the employee is porting to a new job in a same or similar occupation. Attorneys who do not wish to part with the I-140 should realize that there is a growing legal recognition of a foreign national’s interest in an I-140 petition where there is also a pending I-485. See, e.g., Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017) (clarifying that beneficiaries are “affected parties” under DHS regulations for purposes of revocation proceedings of their visa petitions and must be afforded an opportunity to participate in those proceedings”); see also Lexmark Intern. v. Static Control, 134 S. Ct. 1377 (2014) (holding that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects); USCIS, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc., PM-602-0152, Nov. 11, 2017 (“The traditional distinction of petitioner, beneficiary, and affected party breaks down, however, when the law allows the beneficiary to leave the employ of the original petitioner and take a job elsewhere without disrupting the validity of the underlying immigrant visa petition on which the pending adjustment application depends.”); Kurapati v. USCIS, 775 F.3d 1255 (11th Cir. 2014) (“We agree that a beneficiary of an I-140 visa petition who has applied for adjustment of status and has attempted to port under [AC21] falls within the class of plaintiffs’ Congress has authorized to challenge the denial of that I-140 visa petition. It is clear from the statutory framework that such immigrant beneficiaries fall within the zone of interests it regulates or protects.”); Khedkar v. USCIS et al, No. 1:2020cv01510 – Document 23 (D.D.C. 2021) (USCIS acted unlawfully be issuing an RFE on the pending I-140 to the petitioning employer rather than the beneficiary who had ported who was also a party in the  I-140 adjudication proceeding).

It would thus behoove the employer to share a redacted version of the I-140 and labor certification with the terminated employee especially when it is associated with an I-485 application. Information pertaining to the employer such as sensitive financial information and documents can obviously be redacted, although the employee must be given sufficient information to know the exact nature of the position and duties for which he or she was sponsored in order to file an I-485J and make a cogent case for portability under INA 204(j).

 

Dual Representation

Finally, the AILA flyer advises that the attorney is generally representing both the employer and the employee. While sole representation may be possible when filing the nonimmigrant visa petition and the foreign national employee is still overseas and thus not in contact with the attorney, at the time when the employee has come to the US and especially after the I-140 and I-485 have been filed, it would be difficult for the attorney to justify that he or she is only representing the employer when the employee has been advised about legal issues pertaining to maintenance of nonimmigrant status and adjustment of status.

AILA thus cautions:

There is a dual representation situation in immigration cases where a firm represents both the petitioner (employer) and worker (employee). When this occurs, the attorney is required to keep each party (petitioner and beneficiary) adequately informed of any

information related to that representation. Any information revealed by either party during this representation cannot be kept confidential from the other party. If looking for guidance related to the termination of a foreign worker, keep in mind that you should not mention specific names of individuals unless you intend to share this information with all parties.

Of course,  at the point of termination it becomes difficult and tricky to represent both employer and employee  because of potential conflicts of interest and especially when the employee seeks to port to another employer in a same or similar occupation. Under these circumstances, it would either require the attorney to withdraw from the representation of one or both clients or to continue to represent one or both clients if the clients have agreed to the conflict in advance or at the time of its occurrence. My article, “Finding the Golden Mean in Dual Representation”, available on AILA InfoNet at AILA Doc. No. 07081769, realizes that withdrawing from the matter entirely is impractical and provides guidance and strategies on how attorneys can set forth the parameters of the representation between the employer and employee client at the outset of the representation, and be able get agreement from both clients on how the attorney will handle the representation if there is termination down the road.

[This blog is for informational purposes and should not be relied upon as a substitute for legal advice.]

 

 

 

Cyrus Mehta

A Practical Guide to Spending the 3 and 10 Year Bars in the US

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By Cyrus D. Mehta and Kaitlyn Box*

 On June 24, 2022, USCIS issued a Policy Alert on inadmissibility under § 212(a)(9)(B) of the Immigration and Nationality Act (INA)  This provision states that a noncitizen was unlawfully present in the United States for a period of more than 180 days but less than 1 year will be inadmissible to the United States for 3 years after departure or removal, while an individual who has accrued more than one year of unlawful presence will be barred for 10 years. The Policy alert, which is included in Volume 8 of the USCIS Policy Manual,  clarified that a noncitizen who seeks admission after the 3- or 10- year bar has expired “is not inadmissible under INA § 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.” Further, “a noncitizen’s location during the statutory 3- or 10-year period and the noncitizen’s manner of return to the United States during the statutory period are “irrelevant” for purposes of determining inadmissibility under INA § 212(a)(9)(B)”, the alert stated. USCIS stated that noncitizens whose applications were denied because they had entered, or remained in, the U.S. during the period of inadmissibility may be able to file Form I-290B, Notice of Appeal or Motion to request that their applications be reopened.

Whether noncitizens can spend the 3-and 10-year bars in the United States has long been a source of uncertainty. In a 2008 blog, we discussed this issue in the context of a July 14, 2006 letter from Robert Divine, former Chief Counsel of the USCIS, to attorneys David P. Berry and Ronald Y. Wada. See AILA Doc. No. 08082930. In the letter, Mr. Divine confirmed that the 3-year inadmissibility period continues to run even if the noncitizen subsequently returned to the US on parole under INA §212(d)(5). The letter included the caveat that a noncitizen who is unlawfully present in the U.S., leaves, and later attempts to reenter would be inadmissible and could trigger additional bars.

The guidance laid out in the new policy guidance applies most readily to a noncitizen who has been unlawfully present in the U.S. departs and reenters on a nonimmigrant visa along with a nonimmigrant waiver under INA §212(d)(3). Individuals who are subject to the 3- and 10-year bars could seek to be admitted in a nonimmigrant status such as H-1B or O-1 with a §212(d)(3) nonimmigrant waiver and spend the bars in the US. After spending the 3- or 10- year bar in the US, this individual would no longer be inadmissible and be eligible to adjust status to permanent residence.  Of course, those who have a qualifying relative can obtain an immigrant waiver under 212(a)(9)(5) by demonstrating extreme hardship to that relative and would not need to spend all the 3 or 10 years before they can adjust status to permanent residence. The new policy guidance truly comes to the rescue of those who do not have qualifying relatives as they can spend the 3- or 10-year bars in the US and no longer be inadmissible under INA § 212(a)(9)(B).

Take the example of a person who came to the US in B-2 status on January 1, 2020 and has remained in the US unlawfully long after the authorized stay ended on June 30, 2020. If this individual was offered a job in early 2022, got selected in the H-1B lottery and became the beneficiary of an H-1B visa petition with a start date of October 1, 2022, she would not be eligible to change status to H-1B on October 1, 2022 as she has been out of status. If she left the US to apply for an H-1B visa at a US Consulate, she would become subject to the 10-year bar and be denied the visa due to inadmissibility under INA §212(a)(9)(B)(i)(II). However, she can request the US consul to recommend the nonimmigrant visa waiver under §212(d)(3). If the waiver is granted by the Admissibility Review Office within Customs and Border Protection, she can be admitted in H-1B status and be able to spend at least six years in H-1B status.

The standard for obtaining  a §212(d)(3) nonimmigrant waiver is quite broad. It does not require a showing of extreme hardship to a qualifying relative as one has to demonstrate to apply for the corresponding immigrant waiver under §212(a)(9)(v). In Matter of Hranka, 16 I&N Dec. 491, 492 (BIA 1978), the Board of Immigration Appeals (BIA) explained the factors used to adjudicate a § 212(d)(3) waiver:

[T]here are essentially three factors which we weigh together.  The first is the risk of harm to society if the applicant is admitted.  The second is the seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.  The third factor is the nature of the applicant’s reasons for wishing to enter the United States.

Matter of Hranka, 16 I&N Dec. at 492.

The BIA also clarified that “there is no requirement that the applicant’s reasons for wishing to enter the United States be ‘compelling.’”  Id.

Notwithstanding the broad standard set forth in Matter of Hranka, the waiver is still discretionary and can be easily refused by the Admissibility Review Office or not even be recommended by the US Consul. Individuals who have spent long periods unlawfully in the US and who leave, and then immediately request the waiver through the US Consulate can be denied in the exercise of discretion. Moreover, the chances are better when one is applying for an H-1B or L visa that clearly allows “dual intent”  as opposed to applying for an F-1 visa. In the latter instance, the US Consul can simply refuse the visa on the grounds that the applicant is presumed to be an intending immigrant under INA §214(b). H-1B and L visas are exempted from this presumption in §214(b). Even though an O visa is recognized as a “dual intent” visa under 8 CFR §214.2(o)(13), the recipient while being exempted from requiring a residence abroad must still return home at the end of the O-1 validity period. Therefore, even an O-1 visa applicant would be susceptible to a refusal under INA §214(b) when seeking a 212(d)(3) nonimmigrant waiver.

An individual who is subject to the 10-year bar and already in the United States in H-1B status can potentially wait the period out by getting one-year H-1B extensions beyond the sixth year under §106(a) of the American Competitiveness in the 21st Century Act (AC 21). If this individual is born in India, she can become eligible for 3 year H-1B extensions under §104(c)  of AC 21.  As cautioned in our previous blog, though, one year extensions under AC 21 can potentially be denied under 8 CFR § 214.2(h)(13)(iii)(D)(10) if the individual has not filed his adjustment of status application within one year of the priority date becoming current, unless good cause is shown. USCIS has the discretion to excuse a failure to file an I-485 if the noncitizen establishes that the failure to apply was due to circumstances beyond his or her control. It is unclear whether USCIS might accept a good cause argument from an individual who wished to continue applying for H-1B extensions in order to spend the 10-year bar in the United States.

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

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

Cyrus Mehta

Impact of the Overturning of Roe v. Wade on Immigrants

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By Cyrus D. Mehta, Kaitlyn Box*, and Jessica Paszko**

On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning the landmark decision Roe v. Wade, and holding that there is no constitutional right to an abortion. Justice Alito, writing for the majority, first held that abortion is not implicitly protected by any constitutional provision, including the Due Process Clause. The opinion further states that although the Due Process Clause protects some rights that are not specifically enumerated in the Constitution, those rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Because abortion was not a recognized legal right until the latter half of the 20th century, according to the majority, and was until then often punishable as a criminal offense, the court reasons that it cannot fall into the category of activities protected by the Due Process Clause. The opinion also addresses whether the right to obtain an abortion “part of a broader entrenched right that is supported by other precedents”. The Court concludes that overturning Roe would not upset other precedential decisions that involve fundamental rights not specifically mentioned in the Constitution, like Griswold v. Connecticut (contraception), Obergefell v. Hodges (same-sex marriage), and Lawrence v. Texas (same-sex sexual conduct), because abortion involves a unique moral question not implicated in other cases – the destruction of “potential life”. Finally, the Court held that the doctrine of stare decisis does not require the preservation of Roe because this doctrine is not an “inexorable command” and other landmark Supreme Court cases have overturned prior precedential decisions.

On the other hand, according to one commentator, ending the forced sexual and reproductive servitude of black girls and women who were forcibly brought into the country was a critical part of the passage of the 13th and 14th Amendments, which sought to protect them from forced pregnancies and provide them privacy and freedom. The opinion in Dobbs will likely not be the last word as present and future generations of activists will seek to continue to restore women’s rights to privacy and bodily autonomy.

Until then, the Dobbs decision will have a devastating impact on the countless women in the United States who will no longer have access to safe and legal abortions, and the demise of Roe also carries worrying implications for other precedential Supreme Court decisions, including those that concern the rights of immigrants. Though the majority asserted that overturning Roe would not undermine other decisions involving fundamental rights due to the unique moral question posed by the right to abortion, Justice Thomas in his concurring opinion recommended that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Plyler v. Doe, which held that children of undocumented immigrants have the right to receive a K-12 education in the United States, escaped Justice Thomas’ mention, but has much in common with decisions like Roe and Obergefell. The Court in Plyler stopped short of calling education a “fundamental right”,  focusing instead on the Equal Protection Clause argument that undocumented children would suffer undue hardship due to circumstances outside their control if they were denied access to an education. According to Justice Burger’s dissenting opinion, once the Court established that undocumented children are not a suspect class and that education is not a fundamental right, the Court’s analysis should have considered whether the legislative classification bore a rational relationship to a legitimate state purpose. Under this rational-basis level of scrutiny, Justice Burger opined that it would not be irrational for a state to conclude that it owes a lesser responsibility to undocumented individuals. He further reasoned that because unlawfully present individuals have no right to be here, the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expenses of those who are lawfully in the state. In the final part of his dissent, Justice Burger remarked at how the majority’s opinion effectively set social policy and impermissibly usurped Congress’ policymaking role.

The idea that Plyler could be the next landmark decision that is threatened is not purely speculative. Governor Greg Abbott of Texas has already indicated that he would like to see Plyler to be revisited in the aftermath of Roe’s demise. On the other hand, Abbott’s attempts to get Plyler overruled will not be a slam dunk even under the Supreme Court’s current composition since providing undocumented children access to public education was not based on substantive due process but equal protection.

In addition to leaving open the possibility for other fundamental rights cases to be overturned, the Court’s decision in Dobbs will also have a disproportionately severe impact on certain immigrant women who need access to an abortion. The decision will undoubtedly cause the most harm to the women who have the least financial resources available for reproductive care. According to some sources, immigrant women who seek abortions are often lower-income and less likely to have medical insurance than U.S. citizens who seek the same care. While no states currently have abortion laws in place that attempt to prosecute residents who travel to another state to seek an abortion, a now-blocked Missouri law would have allowed individuals to sue anyone who assisted a woman in crossing state lines to seek an abortion. If similar state laws follow, a criminal conviction of this type could render non-citizens inadmissible to the United States and consequently ineligible for a host of immigration benefits, including visas and permanent residence, as well as leaving individuals vulnerable to being placed in removal proceedings.

Even where traveling across state lines to obtain an abortion does not carry the possibility of criminal convictions, this option will not be available to incarcerated women, including those in immigration detention facilities. Of the thirteen states that have “trigger laws” in place that immediately banned or restricted abortion upon the overturning of Roe, seven, including Idaho, Oklahoma, South Dakota, Wyoming, Kentucky, Arkansas and Mississippi, have some of the country’s highest rates of incarcerated women. Reports of women in immigration detention facilities being denied access to abortions, or receiving delayed or insufficient reproductive care, were already rampant. After the Court’s decision in Dobbs, it is likely that women with the least freedom to seek reproductive care will suffer even more.

 

Cyrus Mehta

Still Disadvantaged Even When Your Priority Date Becomes Current

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By Cyrus D. Mehta and Kaitlyn Box*

Individuals who are caught in the employment-based immigrant visa backlogs must navigate myriad issues that are associated with waiting for their priority dates to become current and applying for adjustment of status. Generally, it is cause for celebration when these individuals’ priority dates  become current, as then are eligible to apply for adjustment of status. When the Final Action Date becomes current, the individual should receive permanent residence.  But a Final Action Date becoming current can also bring about a number of additional issues that must be considered carefully. In our previous blog, we discussed the problems that can arise when workers do not apply for adjustment of status within one year of their priority date becoming current. For individuals who are the beneficiaries of more than one I-140 petition, another set of questions can come about when one I-140 is current but the other is not.

Pursuant to § 104(c) of the American Competitiveness in the 21st Century Act (AC21), an individual who is the beneficiary of an I-140 petition and would be eligible for adjustment of status “but for application of the per country limitations applicable to immigrants”, is eligible for extensions of his nonimmigrant status in three-year increments until the adjustment of status application has been processed. Similarly, 8 CFR § 214.2(h)(13)(iii)(E) provides that “an alien who currently maintains or previously held H-1B status, who is the beneficiary of an approved immigrant visa petition…and who is eligible to be granted that immigrant status but for application of the per country limitation, is eligible for H-1B status beyond the 6-year limitation…”. 8 CFR §214.2(h)(13)(iii)(E) plainly requires that an individual must be the beneficiary of an approved I-140 petition under the first, second, or third preference category in order to obtain H-1B extensions beyond the sixth year, but provide little further guidance, especially concerning individuals who may the beneficiaries of more than one I-140 petition.

One conundrum arises when an individual is the beneficiary of two approved I-140s, one under EB-2 and the other under EB-3, but she has filed her adjustment of status application in connection with only one of I-140s and the other remains unutilized. In recent months, EB-2 dates have raced ahead while EB-3 dates have retrogressed, so many individuals’ priority dates may have become current under the second preference category, but are not current under the third. If an adjustment applicant has already filed her I-485 in connection with her approved EB-2 I-140, may she still seek a three-year extension of her H-1B status based on her EB-3 I-140, which is not current? The language of AC21 § 104(c), and 8 CFR §214.2(h)(13)(iii)(E) do not seem to prohibit an application for an extension in this scenario. The regulations do not specify that the individual seeking an H-1B extension must not have another I-140 petition that is current, or must be seeking adjustment of status pursuant to the same I-140 petition being utilized for the H-1B extension.

Another difficult situation arises when an individual is similarly the beneficiary of two approved I-140s, one under EB-2 and one under EB-3, but filed his adjustment of status application in conjunction with the EB-3 I-140 when his priority date was current, but it has now retrogressed. If this individual’s priority date has become current under EB-2, he would likely want to consider filing a transfer of underlying basis request to connect his adjustment of status application to the EB-2 I-140 instead, hopefully ensuring more expeditious approval. Complications arise, however, when an applicant in this situation has not yet filed a transfer of underlying basis request but also wants to seek an H-1B extension beyond the sixth year based on the EB-3 I-140, which is no longer current. Given the ambiguity regarding USCIS stating that the 180 day portability clock starts again upon an interfiling request, some have chosen not to interfile and remain in EB-3 especially when they have changed to new employers.  As in the above-described scenario, the regulations may not preclude an individual in this situation from seeking a three-year H-1B petition.

Individuals who find themselves in this situation may find some refuge in AC21 § 106, which states that an H-1B nonimmigrant may receive extensions of status in one-year increments if more than one year has passed since either the labor certification or the I-140 has been filed. Even if the labor certification and/or I-140 petition have been approved, the individual can continue obtaining one-year extensions until an adjustment of status application can be filed. An individual whose priority date is current cannot ensure continued H-1B extensions by delaying filing an adjustment of status application, though. Proof must also be provided that the worker applied for adjustment of status within one year of his priority date becoming current, and if not, demonstrate that the failure to apply was due to circumstances beyond her control. To err on the side of caution, individuals who are the beneficiaries of one I-140 petition that is current and another that is not may consider requesting a three-year extension of H-1B status, but disclosing the existence of the second I-140 and asking in the alternative that USCIS grant a one-year extension, provided that either the labor certification or the I-140 petition was filed more than one year before the individual’s sixth or final year in H-1B status. Adopting this approach could prevent an outright denial of the petition if USCIS declines to approve a three-year extension.

In addition to requiring frequent renewal, one-year H-1B extensions are subject to other pitfalls as well. If H-1B visa holders are confined to one-year extensions of their statuses, H-4 spouses seeking initial EADs are disadvantaged. Many are in this situation as the USCIS has been so slow in approving adjustment applications even when the Final Action Dates have been current for several months.   Based on current USCIS processing times, an initial application for an H-4 EAD can take up to 8.5 months to be issued. Because the expiration date of the EAD will be tied to the validity of the H-1B petition itself, an EAD based on a one-year H-1B extension might only be valid for a couple of months by the time it is issued. Similarly, it can take several months for EADs and advance parole based on a pending adjustment application to be issued, potentially leaving H-4 spouses without work authorization if the H-4 EAD is issued with a very limited validity.

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

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

Cyrus Mehta

Ethical Dimensions of Patel v. Garland

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By Cyrus D. Mehta and Kaitlyn Box*

On May 16, 2022, the Supreme Court issued its decision in Patel v. Garland, a decision that has devastating implications for the reviewability of U.S. Citizenship and Immigration Services’ (“USCIS”) actions in federal court. Federal courts, according to the Supreme Court, will no longer be able review factual errors of the USCIS that result in the denial of an application. As there has been plenty of  analysis of this decision, see here and here and here, our blog will instead  address the ethical implications that Patel v. Garland will have on immigration practitioners.

The factual background of the case is strikingly sympathetic. Pankajkumar Patel and his family entered the United States without inspection in the 1990s, and Mr. Patel applied for adjustment of status some years later under § 245(i) of the Immigration and Nationality Act (INA). USCIS, however, became aware that Mr. Patel had checked a box indicating that he was a U.S. citizen on a Georgia driver’s license application, and found him inadmissible under § 212(a)(6)(C)(ii)(I) for falsely misrepresenting himself as a U.S. citizen. Mr. Patel was placed in removal proceedings and renewed his adjustment of status application in Immigration Court, testifying that he had checked the wrong box on the driver’s license application by mistake. In fact, under Georgia’s law, it did not make a difference regarding his eligibility for  a license whether he was a citizen or not. He was eligible because he had an application seeking lawful permanent residence had a valid employment authorization document.  The Immigration Judge denied Mr. Patel’s adjustment application and ordered him removed. The Board of Immigration Appeals (“BIA”) denied his appeal. Mr. Patel sought review of the decision at the Eleventh Circuit, but the court held that it  § 242(a)(2)(B)(i), a statutory provision which prohibits judicial review of “any judgment regarding the granting of relief” under § 245, prevented it for exercising jurisdiction over his claim.

By the time the Supreme Court heard the case, Mr. Patel had lived in the United States for some 30 years and his children, now adults, had become lawful permanent residents. Despite Mr. Patel’s plight, the Court held that it lacked the jurisdiction to review facts found as part of adjustment of status proceedings under INA § 245. The majority opinion, authored by Justice Amy Coney Barrett, focused on the meaning of the word “judgment” in § 243(B)(2)(B)(i), the statutory provision preventing federal courts from reviewing “any judgment regarding the granting of relief”. Mr. Patel argued that this provision, called the jurisdictional bar, applies only to an Immigration Judge’s ultimate decision of whether to grant relief.  The Government argued that the use of “judgment” refers exclusively to a decision that requires discretion. The majority was not persuaded by Mr. Patel’s or the Government’s arguments, and instead adopted the interpretation asserted by attorney Taylor Meehan, acting as an amicus, who defined a “judgment” for §1255 purposes as “any authoritative decision—encompassing any and all decisions relating to the granting or denying of discretionary relief”.

Finding that it did not have the jurisdiction to review his adjustment of status claim, the Court’s decision not only leaves Mr. Patel potentially vulnerable to removal, effectively eviscerates the ability of federal courts to review USCIS errors. Justice Gorsuch emphasized this issue in a surprisingly forceful and stirring dissent, stating: “Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court will even hear the case.” Justice Gorsuch, whose dissenting opinion was joined by Justices Breyer, Sotomayor, and Kagan noted that the Immigration Judge who heard Mr. Patel’s case mistakenly asserted that only U.S. citizens and lawful permanent residents are eligible for driver’s licenses in Georgia, a mistake that informed his conclusion that Mr. Patel must have intentionally held himself out to be a U.S. citizen on the application in order to obtain a license. In fact, as noted, a broader group of individuals who are not U.S. citizens or LPRs can obtain a driver’s license in Georgia. Despite the devastating consequences of this error and others like it, federal courts are powerless to intervene after Patel.

Practitioners following Patel v. Garland need to be aware of various ethical considerations when representing a client on an I-485 adjustment of status application. ABA Model Rule 1.1 requires the practitioner to provide competent representation to clients.  ABA Model Rule 1.3 requires the practitioner to act with reasonable diligence and promptness in representing the client. There are also parallel grounds for disciplining practitioners who practice before the DHS or EOIR for failing to represent the client competently and diligently at 8 CFR §1003.102(o) and 8 CFR §1003.102(p) respectively.   If the USCIS makes a mistake on an applicant’s I-485 adjustment application resulting in a denial, every effort must be made to convince the USCIS to correct the error as the practitioner will no longer be able to rely on a federal court to correct it. In an adjustment of status proceeding, there is no administrative appeal after the USCIS denies the application. Therefore, the practitioner would need to file a motion to reopen or reconsider the denial within 30 days of the decision. Although the applicant can seek review of the denial of the I-485 application in removal proceedings, the USCIS does not routinely place the applicant of a denied I-485 application in removal proceedings. While an applicant can request the USCIS to initiate removal proceedings when an I-485 application is denied through a Notice to Appear, the USCIS may choose not to do so. In this case, the practitioner can potentially file another I-485 application and request the USCIS to review its prior determination in the context of a new I-485 application. Alternatively, when removal proceedings have not been initiated, filing an action under the Administrative Procedures Act in federal district court may still be a possible avenue under Pinhoe v. Gonzales, 432 F.3d 193 (3rd Cir. 2005) which has likely not been impacted by Patel v. Garland.

If the applicant is placed in removal proceedings following the denial of an I-485 application, the practitioner must continue to competently and diligently represent the client before an Immigration Judge. Every effort must be made to convince the IJ that the USCIS’s denial was based on a factual error. The practitioner must ensure that all evidence is submitted that would convince the IJ to render a favorable decision. If the IJ still denies the application, the respondent in removal proceedings can file an appeal to the Board of Immigration Appeals. Here too, in this proceeding, the practitioner must continue to competently and diligently represent the client and ensure that the record contains evidence and arguments that were submitted in support of client’s position. If the BIA affirms the denial, although Patel v. Garland forecloses judicial review of factual errors, INA §242(a)(2)(D) makes an exception with respect to judicial review of constitutional claims or questions of law. Therefore, every effort must be made to explore whether there was a constitutional claim or question of law when seeking review in a court of appeals following the dismissal of the appeal by the BIA. See, e.g. Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir 2005)(there is no bar to reviewing a non-discretionary decision of whether person is eligible as a matter of law under §245(i)); Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (permitting review of legal error where IJ looked behind application to deny I-485 based on a police report).

If the practitioner has acted competently and diligently in representing the client, and the I-485 application still remains denied, the practitioner cannot be held responsible for the denial. On the other hand, if it can be demonstrated that a practitioner’s representation constituted ineffective assistance to the client, the client can seek to reopen a removal order by following the procedure under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) as set forth below:

  • The motion must be supported by a declaration from the respondent attesting to the relevant facts. The declaration should include a statement of the agreement between the respondent and the attorney with respect to the representation.

  • Before the respondent files the motion, he or she must inform counsel of the allegations and give counsel the opportunity to respond. Any response should be included with the motion.

  • The motion should reflect whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.

  • The respondent must show that the representation was ineffective and prejudiced the respondent.

Therefore, practitioners must maintain a record in their files that they had acted competently and diligently in representing the client notwithstanding that there was a denial of the I-485 to insulate themselves against ineffective assistance of counsel motions under Matter of Lozada.

Another ethical consideration is whether disclosure must be made in response to questions on the I-485 application, and this obligation continues even after the I-485 application has been filed and prior to the conclusion of the proceeding. Thus, if a client has made a false claim to citizenship on another application such as for a driver’s license, disclosure must be made on the I-485 application at Part 8, Question 66.  In Patel v. Garland, Patel was prosecuted by Georgia, although the state dropped its prosecution after concluding that it had insufficient evidence that Patel committed a crime. The driver’s license application incident arose after Patel filed the I-485 application, and it is not clear whether Patel voluntarily made disclosure or whether the USCIS asked for it after Georgia prosecuted him. Of course, when there has been a criminal prosecution, Part 8 Question 25 also requires a response in the affirmative whether the applicant has been charged, cited or arrested or detained by a law enforcement official for any reason.  Under ABA Model Rule 3.3, the practitioner shall not make a false statement or fail to correct a false statement to a tribunal. If a false statement has been knowingly offered, the lawyer is obligated to take reasonable remedial measures, including if necessary, disclosure to the tribunal. In case there is any ambiguity whether USCIS is a tribunal under ABA Model Rule 1.0(m), 8 CFR 1003.102(c) contains an analogous sanction for immigration practitioners that does not distinguish whether any DHS agency is a tribunal or not, as follows:

Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures.

If a practitioner confronts a similar situation with a client who made a false claim to citizenship on a driver’s license, would there be an obligation to disclose this on the I-1485 application when the claim was not material to the benefit being sought as in Patel’s case? INA §212(a)(6)(C)(ii)(I) renders a noncitizen inadmissible “who by fraud or willfully misrepresenting a material fact seeks to procure (or has sought to procure or has procured) a visa, or other documentation, or admission into the United States or other benefit provided under this Act.” The Supreme Court in Patel cited the BIA’s decision in Matter of Richmond, 26 I&N Dec. 779 (2016), which held that INA §212(a)(6)(C)(ii)(I) is only applicable when a noncitizen 1) makes a false representation of citizenship, 2) that is material to a purpose or benefit under the law and 3) with the subjective intent of obtaining the purpose or benefit.

If the client met the standard under Matter of Richmond, and it is determined in good faith that the client did not implicate INA §212(a)(6)(C)(ii)(I), would there be a duty to disclose on the I-485 application that the client made a false claim to citizenship? While not disclosing under these circumstances might be defensible,  it would be more prudent to disclose and then explain why the applicant should not be found inadmissible under Matter of Richmond.

Hundreds of thousands of noncitizens have filed I-485 adjustment applications based on family and employment-based petitions. Immigration practitioners must be even more vigilant in representing a client competently and diligently in ensuring that the USCIS does not make a mistake when rendering a decision on an I-485 adjustment application, and if that happens, must continue to represent the client competently and diligently in seeking to redress the mistake under the limitations imposed by Patel v. Garland. The stakes have never been higher.

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

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

 

 

Cyrus Mehta

The Pathos of Patel v. Garland

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By Stacy Caplow∗

There are many reasons for despair over the Supreme Court’s technocratic decision in Patel v. Garland which strikingly depends on arguments advanced by an amicus rather than the Government. The decision effectively forecloses judicial review of fact-finding by immigration courts or agencies regardless of whether the fact-finding was unreasonable and produced an incorrect legal conclusion.  In 1996, Congress did insulate certain specific discretionary decisions, which already have an almost impossible standard of review in most contexts and, by their nature are highly subjective, from judicial review. But, in Patel, the effort to protect the courts’ dockets from revisiting a “matter of grace” shields incorrect, biased, ignorant, illogical, and indefensible fact-finding by low-level or quasi-judicial officials.

As Justice Gorsuch laments in his surprisingly critical and forceful dissent, life-altering consequences ensue based on the assessment of a single Immigration Judge, or worse immigration functionaries in local offices—in this case the deportation of a person whose ties to the U.S. were substantial and longstanding.  He describes this an “assertion of raw administrative power.”

Mr. Patel made a mistake—checked a wrong box which happens to be the worst wrong box possible: misrepresentation of U.S. citizenship.  His mistake related to a Georgia driver’s license not any immigration benefits.  Apparently, he may even have been entitled to a license without being a citizen.  More importantly, when his misrepresentation was discovered, Georgia declined to prosecute him, crediting his claim of mistake.  That was the end of the road for his good luck.

Anyone familiar with the bureaucracy of the immigration system must cringe at Mr. Patel’s misfortune at every stage thereafter.  The Georgia decision apparently was unpersuasive to immigration authorities who denied lawful permanent residence, and several years later, placed Mr. Patel into removal proceedings.

This is the first cringe: Why did USCIS seek his removal?  Both the agency and then the ICE lawyers in Immigration Court had could have exercised discretion by declining to prosecute.  His basis for removal was unlawful presence making him a low priority for deportation.  The equities of his situation were in his favor.

The next cringe is geographical: While none of the reported decisions specify the jurisdiction of his removal proceedings or name the judge, as a Georgia resident he likely was venued in Atlanta Immigration Court where every judge has a denial rate over 90% in asylum cases.  While his application for relief was Adjustment of Status, this astonishingly miserly grant rate reveals how immigrant-unfriendly the judge who decided that Mr. Patel was untruthful must have been.

From one of the most immigrant-hostile immigration courts, Patel’s case eventually landed in the Eleventh Circuit, whose pro immigrant rulings are below average for all circuits.

The final cringe is ideological:  Despite the Government’s basic agreement with Patel’s legal theory that the law permits judicial review in cases like his, the Court invited an amicus defense of the Eleventh Circuit’s decision, enlisting a former law clerk of Justice Thomas.  Then, early in its opinion the majority states “Amicus’ interpretation is the only one that fits [the statute’s] text and context.” The outcome, however laboriously reasoned, was a foregone conclusion.

While Patel was found incredible by an Immigration Judge, the ramifications of this decision extend far beyond the 3,000 or so Adjustment of Status and the close to 3,000 Cancellation of Removal or related relief matters heard in Immigration Courts yearly, a small percentage of the overall caseload.  Every day, multiple thousands of cases decided by USCIS never reach even Immigration Court let alone the Circuits. These agency determinations rarely are explained or justified.   Bureaucrats—not judges—make life changing decisions invisibly, anonymously, and unaccountably.

This case has a sad ending for Mr. Patel personally.  Maybe one of the nameless agency decision makers will be compassionate enough to exercise their unlimited discretion now and defer deportation.  He may not gain lawful status, but he can remain in the U.S. with his family and his community.

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

∗Guest author Professor Stacy Caplow teaches immigration law at Brooklyn Law School where she has co-directed the Safe Harbor Project since 1997. 

 

 

 

 

 

Cyrus Mehta

H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date is Current and Green Card is Not Applied for Within One Year

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By Cyrus D. Mehta and Jessica Paszko*

The Immigration and Nationality Act (INA) § 214(g)(4) limits the amount of time that H-1B nonimmigrant workers may extend their H-1B status to six years. Under certain situations, however, H-1B status may be extended beyond the statutory six-year maximum, namely by way of a “Lengthy Adjudication Delay Exemption” or a “Per-Country Limitation Exemption”.

On January 17, 2017, regulations for high-skilled workers incorporating provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) were implemented. Under AC21 §106(a), H-1B status may be extended beyond the statutory six-year maximum for H-1B nonimmigrant workers if, inter alia, a labor certification or immigrant petition was filed 365 days prior to the end of the sixth year. Under AC21 §104(c), H-1B status may be extended for three years at a time if the individual is the beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. Therefore, a petitioner seeking an H-1B extension on behalf of an H-1B beneficiary pursuant to §104(c) must establish that at the time of filing for such extension, the beneficiary is not eligible to be granted lawful permanent resident (LPR) status on account of the per country immigrant visa limitations. In other words, if at the time of filing Form I-129 to extend H-1B status, the beneficiary’s priority date is not current under the Department of State’s Immigrant Visa Bulletin, the USCIS is authorized to grant the H-1B extension request for three additional years. Beneficiaries born in India and China can generally avail of the exemption under §104(c).

Based on §106(a) of AC21, 8 CFR § 214.2(h)(13)(iii)(D) provides a Lengthy Adjudication Delay Exemption by allowing extensions of H-1B status beyond the statutory six-year maximum if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. § 214.2(h)(13)(iii)(D)(2) further adds that H-1B approvals may be granted in up to one-year increments until either the approved permanent labor certification expires or a final decision has been made to, inter alia, approve or deny the application for permanent labor certification, immigrant visa petition, or adjustment of status application. Based on §104(c) of AC21, 8 CFR § 214.2(h)(13)(iii)(D)(10) precludes a noncitizen from taking advantage of the aforementioned Lengthy Adjudication Delay Exemption if the noncitizen is the beneficiary of an approved I-140 and fails to file an adjustment of status application or apply for an immigrant visa within one year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability. Notably, this section also provides that USCIS may excuse a failure to file in its discretion if the noncitizen establishes that the failure to apply was due to circumstances beyond his or her control. 8 CFR § 214.2(h)(13)(iii)(E) provides a Per-Country Limitation Exemption by allowing H-1B extensions beyond the statutory six-year maximum if the noncitizen is the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for application of the per country limitations. The petitioner must demonstrate such visa unavailability as of the date the H-1B petition is filed with USCIS. 8 CFR § 214.2(h)(13)(iii)(E)(1) authorizes USCIS to grant H-1B extensions of up to three years for as long as the noncitizen remains eligible for this exemption.

Even though the preamble to the rule is not binding, it at least suggests that for purposes of determining when an individual becomes eligible for the Lengthy Adjudication Delay Exemption, DHS will look to see if he or she failed to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance based on the applicable Final Action Date in the Visa Bulletin. In practice, it is advantageous for clients that visa availability be measured by the Final Action Date, instead of the Dates for Filing, as they are eligible to obtain three-year extensions, until their priority date becomes current under the Final Action Date. This is also consistent with the position that the USCIS has taken with respect to relying on the Final Action Date to freeze the age of the child under the Child Status Protection Act (see our blog criticizing use of the Final Action Date for CSPA purposes).

In other words, an H-1B nonimmigrant worker may hold H-1B status for more than six years if either 365 days have elapsed since an employer filed a labor certification or immigrant visa petition on his or her behalf.  Whether the H-1B worker may extend his or her status in one or three year increments depends on a different set of factors. H-1B status may be extended in one-year increments if a labor certification was filed 365 days prior to the end of the worker’s sixth year in H-1B status, and if the worker is the beneficiary of an approved I-140, he or she files an adjustment application or applies for an immigrant visa within one year of his or her priority date becoming current unless the failure to file timely was due to circumstances beyond the worker’s control. Meanwhile, H-1B status may be extended in three-year increments if the H-1B worker if the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for his or her priority date not being current. Thus, the key differentiating factor between the one and three year extensions is whether the H-1B worker’s I-140 priority date is current. If the H-1B worker’s priority date is current and he or she has filed an adjustment application within one year of the priority date becoming current, then he or she may only extend H-1B status in one-year increments. If the H-1B worker’s priority date is not yet current, then he or she may extend H-1B status in three-year increments provided the I-140 petition is approved.

Keep in mind that to qualify for a one-year extension, a labor certification must have been filed on the beneficiary’s behalf 365 days prior to the end of the H-1B worker’s sixth year, and to qualify for the three-year extension, the I-140, which could have been filed at any time, needs to be approved and the immigrant visa must be unavailable. But what happens when an H-1B worker’s priority date has become current and he or she has not filed an adjustment application or immigrant visa within one year? If an immigrant visa is available, then only the one year extension must be requested and proof must also be provided that the worker has applied for adjustment of status or immigrant visa within one year of the Final Action Date. If an employer mistakenly requests three years instead of one year in the H-1B extension request, USCIS will likely issue a Request for Evidence (RFE) questioning why a three year extension was requested and also whether an adjustment of status application has been filed if more than one year has elapsed since the visa became available.

Fortunately, under 8 CFR § 214.2(h)(13)(iii)(D)(10), USCIS may excuse failures to file timely upon a successful showing that the failure to apply was due to circumstances beyond the noncitizen’s control. Indeed, there are certain instances in which a noncitizen may not file an adjustment application or immigrant visa within one year of his or her priority date becoming current, for example, where the noncitizen switches employers. Under AC21 §§ 106(a) and 104(c), the worker is eligible for H-1B extensions even if a prior employer filed the labor certification or immigrant visa petition. Given that an adjustment of status application cannot be filed with the prior employer when there is no job offer, the current employer must start the PERM labor certification process anew and then file a new I-140 petition with the prior priority date recaptured. We believe that such facts present circumstances beyond the noncitizen’s control that warrant a waiver of the of the requirement that adjustment applications be filed within one year of the immigrant visa becoming available.

Skilled workers born in India who are caught in the EB-2 and EB-3 backlogs already face several obstacles while waiting for the green card. We have pointed out one more minefield that the worker needs to successfully overcome in remaining in the US in H-1B status while waiting for permanent residency.

 

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