by Cora-Ann V. Pestaina

We’ve pretty much gotten used to (but not accepted!) the vast inconsistencies that exist in degree-equivalency requirements with regard to filing an H-1B, a PERM or an I-140. We’ve been forced to cope with (though we will never understand!) the fact that the degree-equivalency regulations that govern EB-2 and EB-3 professionals are inconsistent with the degree-equivalency regulations that govern H-1B specialty occupations and that USCIS degree-equivalency regulations and the DOL’s SVP scheme applied to labor certifications widely differ. We’ve come to understand how vital it is that we map out the entire green card process prior to filing a PERM application and that we anticipate every potential pitfall and make early strategic decisions to prevent them. Yet, despite all our hard-earned knowledge and efforts, most of us will, at some point, be forced to deal with an unanticipated snag on an equivalency issue especially when the government changes its interpretation on an particular foreign degree.

Ronald Y. Wada, who many of us turn to for guidance through the frustratingly obscure law of degree-equivalency, has written a new article, The Nth Degree – Issues and Case Studies in Degree Equivalency: Crossing the Borderland Between DOL and USCIS Requirements, 15 Bender’s Immigr. Bull. 863 (June 15, 2010). The article addresses the differences between the reviewing practices of the DOL and USCIS. While we’ve always focused on degree-equivalency requirements, the article highlights a different issue – experience.

The PERM program established a “substantially comparable” standard when considering whether prior experience gained on-the-job with the same employer may be used to qualify a foreign national for the job offered. Specifically, under the PERM regulations, a sponsoring employer is permitted to consider experience gained with that employer in instances where it establishes that the position in which the alien gained the qualifying experience is not “substantially comparable” to the job for which labor certification is being sought. Substantially comparable is defined by the regulations as a job or position requiring performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). Then, there is the USCIS rule, established in Matter of Wing’s Tea House, 16 I&N Dec. 158 (Acting Reg’l Comm’r 1977), a precedent decision, which holds simply that the foreign national must possess the qualifications specified on the labor certification as of the priority date.

In his article, Mr. Wada writes, “Since the AAO has stated in numerous nonprecedent decisions (and federal courts have affirmed) that USCIS has the authority to determine whether the beneficiary meets the job requirements shown on the PERM application, once the labor certification is approved by the DOL the rule regarding what experience can be counted shifts to the USCIS rule.” This circumstance could provide the escape from the snare of a badly designed PERM, provide another option when the foreign national presents new information at the I-140 phase (“Sorry, I guess I can’t get all those experience letters after all!”) or even help in instances where the USCIS attempts to revoke a previously approved I-140.

The Wada article presents the case where a PERM was designed with a Master’s degree requirement and was certified. At the I-140 phase, the USCIS refuses to accept the foreign national’s Master’s degree deeming his credentials equivalent to only a U.S. Bachelor’s degree. A bachelor’s degree plus five years of post-baccalaureate progressive experience equates to a Master’s degree. If the foreign national is able to demonstrate five years of progressive, post-degree work experience prior to the priority date of the PERM application, then under the USCIS policy in Matter of Wing’s Tea House, the foreign national may yet qualify for the offered position and for EB-2. Importantly, the foreign national may even utilize experience gained on the job with the sponsoring employer – something he could not do during the labor certification phase especially if the two positions with the same employer were not more than 50% different! He may combine experience gained with a previous employer and experience gained with the sponsoring employer to arrive at the requisite 5 years of post-degree experience. It is only necessary that the foreign national meet the job requirements prior to the priority date, which is established when the labor certification is filed. USCIS does not set forth any “substantially comparable” standard à la the DOL.

Matter of Wing’s Tea House could also work in instances where, whether it’s an EB-2 or an EB-3 I-140, the foreign national belatedly discovers that her previous employer still harbors ill-will toward her and thus refuses to issue her an experience letter. If the foreign national is left short 1 year of experience and she had been employed with the sponsoring employer for at least 1 year before the labor certification was filed on her behalf, under Matter of Wing’s Tea House, the foreign national could combine experience gained with the sponsoring employer and her previous experience to qualify her for the offered position despite the fact that her on-the-job experience would not have qualified her for the offered position at the labor certification phase due to the DOL’s “substantially comparable” rule.

But will it actually work? Having said all that, we should bear in mind that the USCIS is afforded grounds in 20 C.F.R. §656.30(d) to invalidate a labor certification based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. While the scenarios outlined above would not compel such a finding, is there a chance that the USCIS could request that the DOL revoke the labor certification? Under 20 C.F.R. §656.32(a) the DOL may revoke an approved labor certification, based on a finding that the certification was not justified. If the foreign national is found not to possess the degree or the experience listed on the PERM, which is not being used consistently at the time of the I-140, could it be held that the certification was not justified? It is interesting food for thought. However, Matter of Wing’s Tea House indeed presents an innovative path that could possibly be used to save an I-140 in trouble.

By Gary Endelman and Cyrus D. Mehta

While the Obama administration struggles to get votes to overhaul our dysfunctional immigration laws in Congress, http://tinylink.com/?Pky1KrfcfI, and Arizona passes its shameful immigration bill, SB 1070, which legalizes racial profiling, http://tinylink.com/?a2IUa39ATc, there is a growing yearning for Congress to pass Comprehensive Immigration Reform (CIR) that would provide more pathways to visas and permanent residency and legalize the millions who remain undocumented. But do we need to wait endlessly for Congress to Act? We demonstrate in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz, that it is possible for the Executive to legalize the status of non-citizens without Congressional intervention to achieve something close to CIR.

Work Authorization and Parole

For instance, there is nothing that would bar the USCIS from allowing the beneficiary of an approved employment based I-140 or family based I-130 petition, and derivative family members, to obtain an employment authorization document (EAD) and parole. The Executive, under INA § 212(d)(5), has the authority to grant parole for urgent humanitarian reasons or significant public benefits. The crisis in the priority dates where beneficiaries of petitions may need to wait for green cards in excess of 30 years may qualify for invoking § 212(d)(5) under “urgent humanitarian reasons or significant public benefits.” Similarly, the authors credit David Isaacson who pointed out that the Executive has the authority to grant EAD under INA §274A(h)(3), which defines the term “unauthorized alien” as one who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General” (emphasis added). Under sub paragraph (B), the USCIS may grant an EAD to people who are adversely impacted by the tyranny of priority dates.

Likewise, the beneficiary of an I-130 or I-140 petition who is outside the U.S. can also be paroled into the U.S. before the priority date becomes current. The principal and the applicable derivatives would enjoy permission to work and travel regardless of whether they remained in nonimmigrant visa status. Even those who are undocumented or out of status, but are beneficiaries of approved I-130 and I-140 petitions, can be granted employment authorization and parole. The retroactive grant of parole may also alleviate those who are subject to the three or ten year bars since INA § 212(a)(9)(B)(ii) defines “unlawful presence” as someone who is here “without being admitted or paroled.” Parole, therefore, eliminates the accrual of unlawful presence.

While parole does not constitute an admission, one conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection. On the other hand, it is possible for the Executive to rescind the grant of admission under INA §212(d)(5), and instead, replace it with the grant parole. As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to the Department of Homeland Security (DHS). who can retroactively rescind the grant of admission in B-2 status and instead be granted parole retroactively.

Historic Role Of Executive In Granting Immigration Benefits

While the authors have proposed the use of parole and EAD benefits to those who are beneficiaries of approved immigrant petitions and are on the path to permanent residency, but for the crushing backlogs in the employment and family quotas, parole and EAD can also be potentially granted to other non-citizens such as DREAM children or those who have paid taxes and are otherwise admissible. The Executive’s use of parole, sua sponte, in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict comes readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. Even those who are in removal proceedings or have already been ordered removed, and are beneficiaries of approved petitions, will need not wait an eternity for Congress to come to the rescue.

The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien. Like our proposal, Deferred Action is purely discretionary. They are both informal ways to allow continued presence in the United States. The INA never mentions deferred action. Neither does deferred action depends upon regulation. Deferred action is not mentioned in Title 8 of the Code of Federal Regulations (“8 C.F.R.”) but only in the old, and now inapplicable, Operations Instructions. Both, our proposals and deferred action, are the products of limitations. The exercise of prosecutorial discretion to grant deferred action status is an expression of limited enforcement resources in the administration of the immigration law. Our advocacy of EAD and Parole outside the adjustment context is an expression of limited EB quotas and the impact of visa retrogression. Since both are inherently discretionary, they are not proper subjects for judicial review since, in both cases, there is no law to apply.

Deferred Action has also been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. Mr. Neufeld’s memo, issued on June 15, 2009, provides extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries may request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute to allow, inter alia, a widow who was married less than two years at the time of the citizen’s death to apply for permanent residence. See Pub. L. No. 111-83, 123 Stat. 2142 (2009).

Even more recently, on November 30, 2009, USCIS announced in a press release that certain affected persons in the Commonwealth of the Northern Mariana Islands (CNMI) would be granted parole under INA § 212(d)(5). The Consolidated Natural Resource Act of 2008 (CNRA) extends most provisions of the United States immigration law to the CNMI beginning on November 28, 2009. As of this date, foreign nationals in the CNMI will be considered present in the United States and subject to U.S. law. In order to avoid their removal from the CNMI, the grant of parole will place individual members of CNMI groups in lawful status under the United States immigration law and permit employment authorization. Parole status will also allow for the issuance of advance parole when the individual seeks to depart the CNMI for a foreign destination.

In another display of Executive legerdemain, in March of 2000, a former INS official Mr. Cronin, in a Memo, http://www.boulettegolden.com/H_and_L_Travel_and_Advance_Parole.pdf, allowed nonimmigrants holding H-1B or L status to travel overseas while their adjustment of status applications were pending and be admitted on advance parole and still be able to work as if they were in H-1B or L status without first obtaining an EAD. The following Q&A extract in Mr. Cronin’s memo is worth noting:

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien’s employment authorization?

A Service memorandum dated August 5, 1997, stated that an ‘adjustment applicant’s otherwise valid and unexpired nonimmigrant employment authorization…is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii).’ The Service intends to clarify this issue in the final rule. Until then, if the alien’s H-1B or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant’s failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.

A close examination of this astonishingly creative policy reveals that the Executive presumably allowed such an individual to continue working without any formal work document. Admitting an H-1B on advance parole (and thus presumably as a parolee rather than as an H-1B nonimmigrant), and allowing him or her to extend H-1B status subsequently, while permitting this individual to continue working for the employer without an EAD, required creative thinking on the part of the government. These are a few examples of how the Executive has creatively found ameliorative solutions within the four corners of the INA.

No Violation of Separation of Powers

While some may argue that there is no express Congressional authorization for the Executive to enact such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the Executive under our proposal is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meritorious, separation of powers itself was not without limit: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a “twilight zone” in which he may have concurrent authority with Congress, or in which its distribution is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President’s power is at its lowest and is vulnerable to being unconstitutional.

Under our proposal, the President is likely acting under either prong one or two of Justice Jackson’s tripartite test. We have shown that INA § 212(d)(5), which Congress enacted, authorizes the Executive to grant interim benefits for “urgent humanitarian reasons” or “significant public benefits.” Moreover, INA § 274A(h)(3)(B) provides authority to the Executive to grant employment authorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. Operating in Justice Jackson’s “twilight zone,” such constructive ambiguity creates the opportunity for reform through Executive initiative. From this, we must conclude that, had Congress not enacted INA § 212(d)(5), the President could not act by fiat to broaden or diversify its application beyond the adjustment context. In terms of EAD issuance, Congress has rarely spoken on this except via INA § 274A(h)(3)(B), so that many instances of EAD issuance are purely an act of executive discretion justified by that one statutory provision. Furthermore, INA § 103(3) confers powers on the Secretary of Homeland Security to “establish such regulations, prescribe such forms or bonds, 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 this Act.”

The President is not divorced from lawmaking; that is the very reason why the Framers provided an executive veto power. If the President was totally divorced from the making of laws, why give such a weapon to limit congressional prerogative? Once we accept the fact that the Executive is a junior partner in lawmaking, then the use of executive initiative to promulgate implementing and interpretative regulations, as we propose be done in the grant of parole and EAD benefits, becomes a valid extension of this well settled constitutional precept.

Chevron and Brand X Doctrine

We proffer yet another legal theory to support our proposal. When the Service extended Occupational Practical Training from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand X involved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that 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. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

Brand X tells us that federal agencies and Congress have a commingled role to play in making new law: “Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.” Is there a more effective constitutional answer to the charge that our argument violates separation of powers? If the FCC can use its policy expertise to exempt broadband Internet carriers from mandatory regulation under the Communications Act, why can’t the USCIS use its policy expertise to extend Parole and broaden EAD issuance, especially since the latter is entirely a creature of regulation? The raison d’être for the Chevron defense that federal agencies are owed deference when they seek to execute the law through regulatory interpretation suggests, if not compels, the conclusion that, while only Congress can enact laws, the executive agencies charged with their enforcement can say what these laws mean, this in turn, determines how they are applied or enforced. Those who argue that we seek to violate the separation of powers doctrine take an artificially cramped view of what lawmaking involves and ignore the fact that, like the idea of judicial review itself, no law can live apart from interpretation that, by its very nature, inevitably changes the law itself.

Chevron and Brand X are more than just constitutional justifications of agency action but an invitation to action where the Congress has stayed its hand. Until now, Brand X has been feared by the immigration bar and immigration advocates for its negative potential as a legitimization of government repression. Yet, it has a positive potential by enabling the Executive to expand individual rights and grant benefits sua sponte. We do not need to live in fear of Brand X. We can make it our own.

While Arizona has restored the relevance of CIR and provided its advocates within the Democratic Party with a new political imperative, the prospects for ultimate passage remain as uncertain as ever. Spurred by their triumph in Arizona, advocates of state immigration laws are moving ahead on a broad front all across the land. We need action now. Set against such a turbulent backdrop, there is a clear and present need for moving forward through executive action to combat the Arizona law and the many copycat versions that are and will continue to appear in other states. Only through such agency initiative can the nativist surge be checked until CIR becomes a reality.

By Gary Endelman and Cyrus D. Mehta

Given the crushing backlogs in the EB-2 preference for India and China, and the EB-3 for India, where the wait can exceed 30 years, one would hope that the United States Citizenship and Immigration Service’s Appeals Administrative Office (AAO) would read INA § 204(j) more generously, which allows a foreign national to “port” to a new job in a same or similar occupation so long as the I-485 adjustment of status application has been pending for more than 180 days. This should happen even if the employer substituted another person on the labor certification after the original beneficiary left the employer.

Unfortunately, the AAO does not think so in an unpublished decision dated March 26, 2010, http://drop.io/aao_26mar10_substitution. Even though the Department of Labor got rid off labor substitutions on July 16, 2007, pursuant to 20 CFR § 656.30(c)(2), substitutions were permissible prior to that date, and many thousands of foreign nationals who are beneficiaries of labor certifications may have been substituted by their employers with other foreign nationals unbeknownst to them after they left the employer. If they have I-485 applications they can “port” to new jobs in a same or similar occupation without fear of the labor certification or the I-140 petition being invalidated, but after the recent AAO’s decision, they are now in a very difficult predicament. This decision would have a disproportionate impact on people born in India and China who are caught in the EB quota backlogs.

The crux of the AAO’s reasoning is that notwithstanding INA § 204(j), which was introduced by the American Competitiveness in the 21st Century Act of 2000 (AC 21) – legislation clearly intended by to ameliorate the hardships brought about by delays in processing and visa backlogs – the underlying labor certification must still remain valid for the foreign national beneficiary. INA § 212(a)(5)(A)(i) requires an alien who seeks to enter the US to perform skilled or unskilled labor to have a labor certification. Hence, if the labor certification has been now substituted for another beneficiary, as was permissible prior to July 16, 2007, under the AAO’s strained interpretation, there is no longer a valid labor certification and the requirements of INA § 212(a)(5)(A)(i) are no longer being fulfilled. According to the AAO, “USCIS cannot interpret sections 204(j) and 212(a)(5)(A)(iv) of the Act as allowing the adjustment of two aliens based on the same labor certification when section 212(a)(5)(A)(i) of the Act explicitly requires a labor certification as evidence of an individual alien’s admissibility.”

We disagree. INA § 204(j) is broad and sweeping. It says:

A petition under subsection (a)(1)(D) [since redesignated section 204(a)(1)(F)] for an individual whose application for adjustment of status remains unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or occupational classification as the job for which the petition was filed.

Without the assistance of INA § 204(j), a labor certification can get invalidated in many ways. If the beneficiary moves to a new employer and does not intend to take up the job with the employer who filed the labor certification, it is no longer valid. Similarly, if the beneficiary does not intend to work in the area of employment, where the labor market was tested and the prevailing wage was based, the labor certification will get invalidated even if the beneficiary works for the same employer. This may be true even where the beneficiary is compelled to move to another area other than where the market was tested when an employer relocates, say from New York, where the labor market was unsuccessfully tested for qualified US workers, to California. Under all of these disqualifying circumstances, INA § 204(j) comes to the beneficiary’s rescue notwithstanding the invalidation of the labor certification, so long as she or he is working in the same or similar occupation and an I-485 has been pending for more than 180 days. It thus strains logic when the AAO distinguishes these circumstances of labor certification invalidity from when the labor certification has been substituted by the employer with another foreign national beneficiary.

In our view, the AAO argument may be countered by explaining that once the adjustment has been on file for 180 days, the sponsoring employer lost any remaining right to the labor certification ownership of which passed to original beneficiary. This AAO decision is a significant restriction on adjustment of status portability and, by making the foreign national prove a negative, that no one else has been substituted in, is fundamentally unfair. The foreign national after the 180 days should be said to have a property interest in the labor certification. Moreover, the AAO agreed that even if the employer revoked the subsequently filed and approved I-140 petition, it would not undermine the ability of the beneficiary to “port” under INA § 204(j). This is illogical to the extreme. If the I-140 is revoked, portability is still permitted, but if the labor certification is withdrawn or substituted for another beneficiary, it undermines portability. It would be consistent with INA 204(j) to argue that regardless of whether the labor certification or the I-140 have been withdrawn, both invalidating events should still allow the beneficiary to allow him or her to “port” to a same or similar occupation.

We also credit Quynh Nguyen’s powerful observation that the AAO decision concludes by stating that the beneficiary who was taken out of the labor certification has not been able to show that the substituted beneficiary who ultimately adjusted status, based on the same underlying labor certification, did so illegitimately. This is after the AAO reasons that it is not possible for the original beneficiary to adjust once substitution occurs. A substituted beneficiary may legitimately substitute, but then may adjust status when actually inadmissible, but conceals the ground of inadmissibility. Even if the original beneficiary can now successfully point to the inadmissibility that was concealed, such as disqualifying criminal conduct or a false claim to citizenship, this in itself does not take away from the substitution, and Quynh correctly states that the AAO’s conclusion is circular. Moreover, it would create an unsavory situation where the original beneficiary would be gunning for anything to show that the substituted beneficiary obtained the green card illegitimately.

Beyond this, as Quynh Nguyen cogently reminds us, the AAO reasoning suffers from the same fundamental fallacy as the labor certification process itself, namely imposing the impossible burden of proving that a negative exists. Even though labor certification is employer-specific while INA § 204(j) is alien-centric, the flexibility that must infuse both processes to make them work is stifled by an agency predilection for requiring proof of the unseen as a precondition for approval. In each case, the proper functioning of INA 212(a)(5)(A) is primordial. DOL requires a sponsoring employer to show the absence of qualified, willing, and available US workers despite the fact that only the Secretary of Labor bears this burden of proof under INA Section 212(a)(5)(A). The AAO compels the foreign national who has ported under § 204(j) to become Sherlock Holmes and show that no one has used the labor certification to get the green card. In both instances, not only is such shifting of the burden of proof logically dubious, it is legally unjustified. The adjustment of status applicant who seeks the personal freedom and occupational mobility afforded by AC 21 has no way to find out what has happened to the labor certification he or she left behind; indeed, the notice of intent to revoke the I-140 petition only goes to the former employer who has no motive save honor to respond.

While the authors do not want the original beneficiary to get jeopardized when there is a substitution, it would likewise be fundamentally unfair for the legitimately substituted beneficiary to be robbed out of permanent residency and be similarly placed in jeopardy. There need not be a winner or a loser. Both can win. Thankfully, our good friend Angelo Paparelli and a colleague proposed the “cell mitosis” theory of labor certification. See Angelo A. Paparelli and Janet J. Lee, A Moveable Feast”: An Analysis of New and Old Portability Under AC21 § 105, 6 Bender’s Immigr. Bull. 111, 126 (Feb. 1, 2001) and available at http://www.ilw.com/articles/2001,1119-Paparelli.shtm.

In their refreshingly original article, this is how they articulate the “cell mitosis” theory of labor certification:

In fairness to all three parties, the labor certification should be treated as “divisible” under what can be called the “cell mitosis” theory.[citation omitted] Under this theory, the labor certification would remain valid with respect to the employee’s new job, [citation omitted] and the sponsoring employer would also be permitted to substitute another alien worker on the labor certification. From the sponsoring employer’s perspective, the conditions under which the labor certification was granted remain the same (other than the fact that the initial worker has resigned); there is still a demonstrated shortage of U.S. workers for the position. To require the employer to test the market again would be unfair and unduly burdensome. Thus, just as in the process of cell mitosis, each party (the sponsoring employer and initial beneficiary employee) should be able to retain the benefits flowing from the single approved labor certification.

Ironically, the AAO decision does precisely what the DOL did not like about the prior practice of alien substitution: “We acknowledge that after enactment of AC 21, DOL’s practice of substitution effectively created a race between the employer seeking to use the labor certification to fill the proffered position on a permanent basis and the alien beneficiary named on the labor certification…” Id. at 9. That is precisely the effect of the AAO decision. Ironic. We do not see why INA § 204(j) cannot be generously interpreted consistent with the “cell mitosis” theory to allow for one labor certification to provide the basis for two beneficiaries to adjust and obtain permanent residency and still be in harmony with both § 204(j) and § 212(a)(5)(a)(ii).

Finally, the reliance by the AAO on two decisions to argue that the USCIS has been precluded from approving a visa petition when the labor certification has been used by someone else is completely misplaced. Neither is a substitution of alien case. Matter of Harry Bailen Builders, Inc., 19 I&N Dec. 412, 414 (Comm. 1986) is a case where the foreign national abandoned lawful permanent resident (LPR) status and then wanted to come back using the original labor certification approval. In Matter of Francisco Javier Villarreal-Zuniga, 23 I&N Dec. 886, 889-90 (BIA 2006), the foreign national wanted to re-use the I-130 petition his mother filed after he had already acquired LPR status on this basis before being placed in removal. This was not a labor certification case at all which is very relevant since the AAO focused repeatedly on the idea that the whole logic of its ruling rested on the validity of the labor certification. Also there was no substitution of beneficiaries and no application of portability under § 204(j) in those cases. They were both the same people attempting to use the original approvals after they lost LPR status through removal or abandonment. These people already got their green cards and wanted to use the earlier petitions without starting over again, which is very different from an individual legitimately relying on INA § 204(j) only to find that the USCIS does not grant LPR under certain circumstances involving labor certification invalidity but allows it under other circumstances.

Not even the wisdom of Solomon allows us to separate the validity of the I-140 petition from the validity of the labor certification on which it rests. The AAO relies on INA § 212(a)(5)(A)(i), together with the policy behind the regulation that removed substitutions, 20 CFR § 650.30(c)(2) (that a labor certification can only be used by one alien) to deprive the appellant in the case sub judice of the ability to adjust status once an unknown substituted beneficiary has won the race to the green card . This fundamentally misunderstands the scope and purpose of INA § 204(j), which allows the adjustment applicant to move to another job with another employer regardless of geographical location so long as the new job is in the same or similar occupational classification. Clearly, the DOL has not made any labor shortage determination with respect to this second role nor is this required. Such a foreign national therefore could not possibly rely upon the original labor certification filed by a different employer who might be located in a different city for a different job. That is why AC 21 allows the law itself to substitute for the original labor certification when the criteria for portability set forth in INA 204(j) have been satisfied. There is no conflict between AC 21 and DOL regulations if the AAO properly understood both.

The scope of this AAO ruling is difficult to determine but its implications for the future remain troubling. This is not the first time that the AAO has sought to curtail the flexibility afforded by INA 204(j). See for example, Herrera v. USCIS, which upheld AAO’s position that the revocation of the I-140 trumps portability under INA § 204(j), https://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus200979113434&Month=&From=Menu&Page=12&Year=All. And the AAO conveniently forgets this earlier decision in now holding that the invalidation of the labor certification is more fundamental than the invalidation of the I-140 petition. The result-oriented reasoning that sustains this administrative assault on AC 21 adjustment portability will doubtless make itself felt in other cases with other facts, much as the contorted definition of “employer” that the infamous Neufeld Memorandum applied to the H-1B context is migrating to other visa categories with similarly baleful results, http://drop.io/daq8dgf. Just as the AAO since New York State Department of Transportation, http://www.justice.gov/eoir/vll/intdec/vol22/3363.pdf, has rewritten the national interest waiver, this current decision reminds us to our sorrow that the law changes when the AAO wants it to change; Congress can remain silent.

Much has already been written to deservedly criticize the USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo), http://tiny.cc/z3ZU8, which suddenly undermines the ability of IT consulting firms to file H-1B visas, http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. The latest is an excellent blog post from my friend and colleague, Angelo Paparelli, http://blogs.ilw.com/angelopaparelli/2010/02/my-entry.html, who shows how the Neufeld Memo is a thinly veiled attempt to kill a successful business model that have benefited American businesses. Our firm is beginning to see Requests for Evidence that regurgitate the language of the Neufeld Memo regardless of the substantial evidence submitted that established the nexus between the IT consulting firm and its client. Winning the H-1B visa petition filed by an IT consulting company used to be tough, but it has never been more challenging since the issuance of the Neufeld Memo. We hark back at the days when interpretations from the prior Immigration and Naturalization Service, although not a piece of cake, were far more reasonable and commonsensical.

The H-1B worker likely to be most severely jeopardized by the sudden shift in policy brought by the Neufeld Memo is the beneficiary of an approved I-140 petition under the EB-2 from India or China, or EB-3 from any country (especially India which is more backlogged than other countries), who must file many extensions of H-1B status while waiting endlessly for immigrant visa availability. Suddenly, this time around while requesting for the H-1B extension well beyond six years under Sections 104 (c) or 106(a) of the American Competitiveness in the 21st Century Act, the petitioner must overcome the disqualifying example, cited in the Neufeld Memo, of a third party placement where “the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will likely fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee (even if the day to day assignments are overseen by the client), an adjudicator can rely on the Neufeld Memo, which will give him or her sufficient leeway to arbitrarily deny the H-1B extension request. In the recent past, it was necessary to show a link between the petitioner and the client company. Now the Neufeld Memo wants more – this esoteric right of control – which may be most difficult to establish in the context of an IT consulting firm if it does not have its own proprietary product or methodology.

We look back with dreamy eyed nostalgia at earlier guidance. A 1995 memo by the then Assistant Commissioner of legacy INS, Michael L. Aytes, Interpretations of Itinerary in H-1B Petitions, HQADN (1995), more sensibly recognized that a contractor who paid the H-1B worker at all times remained an employer. Mr. Aytes advised:

Since the purpose of the regulation is merely to insure [sic] that the alien has an actual job in the United States, the itinerary requirement…can be met in a number of ways…the regulation does not require that the employer provide the Service with the exact dates and places of employment. As long as the officer is convinced of the bona fide[s] of the petitioner’s intentions with respect to the alien’s employment, the itinerary requirement has been met. The itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States. Service officers are encouraged to use discretion in determining whether the petitioner has met the burden of establishing that it has an actual employment opportunity for the alien.

With respect to the employer-employee relationship, Mr. Aytes in the good old days of 1995 reasoned so differently from Mr. Neufeld in 2010:

In the case of an H-1B petition filed by an employment contractor, Service officers are reminded that all prospective H-1B employers have promised the Department of Labor through the labor condition application process that they will pay the alien by appropriate wage even during periods of time when the alien is on travel or between assignments. Since the contractor remains the employer and is paying the alien’s salary, this constitutes employment for purposes of H-1B classification.

Mr. Aytes’ guidance on determining the employer of an H-1B petition, based on who pays the alien’s salary, was so much simpler and consistent with real world economic reality and tax law. Take a look at this Op-Ed in last Sunday’s NY Times, http://www.nytimes.com/2010/02/21/opinion/21shulman.html?scp=5&sq=shulman&st=cse, drawing attention to Section 1706 (especially after the plane crash by a computer programmer pilot into the IRS building in Austin), which specifically requires people in the IT consulting industry to be treated as employees and not as independent contractors, and excludes computer programmers from the safe harbor Form 1099 requirement under Section 560 of the IRC. The Neufeld Memo assumes, in contradiction of Section 1706, that H-1B programmers are not considered employees of the IT staffing firm, when Congress specifically directed them to be treated as such, at least for tax purposes, under 1706. Moreover, in a letter dated October 23, 2003 to Lynn Shotwell, Efren Hernandez III, then Director, Business and Trade Branch of USCIS recognized that if a new LCA was obtained as a result of a change in work location after the H-1B petition was filed, an amendment to the H-1B petition was not required. It is noted that the Neufeld Memo also contradicts DOL regulations that allow an H-1B worker to be placed for 30 or 60 days without the need to obtain a new LCA. 20 C.F.R. § 655.735(c). All this points out to the fact that an employer who assigns employees at third party sites, contrary to the Neufeld Memo, need not determine the location of every job site when filing the H-1B petition.

When a management consulting firm that may either use employees in-house to work on various client projects, or station its employees at client sites for extended periods of time, files H-1B petitions on behalf of prospective employees, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved and every client site at which an H-1B employee may be stationed. Similarly, when a law firm that may use associates in-house to handle various client matters, or station associates at client corporations for extended periods of time, files an H-1B petition, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved, and every client site at which an H-1B employee may be stationed. The rules do not differ for IT consulting firms in this respect simply because its business is software development and consulting rather than management consulting or the practice of law. And in the event of a lag between work assignments, INA 212(n)(2)(C)(vii) and 20 C.F.R. §655.731(c)(7)(i) prohibit an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period.

We demand that USCIS immediately withdraw the Neufeld Memo and to revert back to the halcyon days of Mr. Aytes’ 1995 guidance. The Neufeld Memo not only hurts the competitiveness of U.S. business but also jeopardizes the status of H-1B workers who are waiting endlessly for the green card. If there were no backlogs in the EB quotas, they would be permanent residents by now and would not be needlessly harassed by the Neufeld Memo when applying for the next round of H-1B extensions.