Cyrus Mehta

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

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By Cyrus D. Mehta and Kaitlyn Box*

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

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

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

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

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

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

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

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

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

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

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

 

Cyrus Mehta

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

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By Cyrus D. Mehta & Jessica Paszko*

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

Cyrus Mehta

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

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By Cyrus D. Mehta and Kaitlyn Box*

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

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

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

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

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

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

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

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

 

 

Cyrus Mehta

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

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

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

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

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

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

Details:

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

Cyrus Mehta

The Legal Basis for DACA as Expressed in the Final Rule

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By Cyrus D. Mehta and Kaitlyn Box*

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

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

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

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

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

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

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

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

 

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

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

 

 

Cyrus Mehta

Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo

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By Cyrus D. Mehta and Kaitlyn Box*

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

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

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

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

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

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

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

 

 

 

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.