Cyrus Mehta

Suffocating The Foreign Entrepreneur Under The New STEM Optional Practical Training Rule

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Facebook is a good example of an epically successful entrepreneurial venture that was hatched by students in the dorms of Harvard. It is important to allow students who have great dreams and ideas to flourish through startups, and this applies to foreign students who graduate from American universities. Why not encourage foreign students to launch their startups in the United States rather than boot them out?  In our imperfect immigration system that has no true startup visa for the entrepreneur, it makes sense to allow a talented and driven foreign student to use the current nonimmigrant visa categories to establish startups, which in turn can potentially lead to economic growth, bring about paradigm shifts and create millions of new jobs.

This was recognized in the USCIS Entrepreneur Pathways portal, especially with respect to the ability of foreign students to use the optional practical training (OPT) to launch their own ventures. On March 11, 2016, the Department of Homeland Security (DHS) published a final rule amending regulations to expand OPT for students with U.S. degrees in science, technology, engineering, or mathematics (STEM), but also dramatically create new obligations for F-1 students and F-1 employers starting May 10, 2016. While the rule expands STEM OPT from 17 months to 24 months, it creates many more restrictions, and makes it difficult for a student to become an entrepreneur. The new rule requires the establishment of an employer-employee relationship, requiring an employer to complete a formal training plan and make certain attestations, which would render it difficult for the sole founder and owner of a startup to comply and to take advantage of STEM OPT.

OPT is a form of temporary employment available to F-1 students (except those in English language training programs) that directly relates to a student’s major area of study in the United States. A student can apply to engage in OPT during or after completing his or her academic program. A student can apply for 12 months of OPT at each education level (e.g., one 12-month OPT period at the bachelor’s level and another 12-month period at the master’s level). While school is in session, the student may work up to 20 hours per week pursuant to OPT.

DHS first introduced an extension of OPT for STEM graduates in a 2008 interim final rule. Under the 2008 rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT (17-month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify employment eligibility verification program. The Entrepreneur Pathways, as it applied to entrepreneurs utilizing the 17-month OPT did not interpret the existing rule as requiring a rigid employer-employee relationship. On August 12, 2015, the U.S. District Court for the District of Columbia ordered the vacatur of the 2008 rule on procedural grounds and remanded the issue to DHS. The court stayed the vacatur until February 12, 2016, to give DHS the opportunity to issue a new rule related to STEM OPT extensions through notice-and-comment rulemaking.

On October 19, 2015, DHS published a notice of proposed rulemaking (NPRM) to reinstate the STEM OPT extension, with changes intended to enhance the educational benefit afforded by the extension and to increase program oversight, including safeguards to protect U.S. workers. The rule received more than 50,500 comments—the most in DHS history. On January 23, 2016, the court gave DHS additional time to complete the rulemaking following review of public comments and to allow the Department to publish the rule with a 60-day delayed effective date to provide sufficient time for efficient transition to the new rule’s requirements.

DHS has now completed the final rule. Highlights include:

Extension period to increase from 17 to 24 months. Under the amended regulations, F-1 STEM students will be able to extend OPT for an additional 24 months beyond the initial 12 months, replacing the 2008 regulation that allowed F-1 STEM students to receive a 17-month extension of OPT, providing work authorization for employment related to their field of study. The extension from 17 to 24 months is indeed salutary as it would allow the STEM student to continue to be employed in the US even if he or she missed out on the H-1B lottery, and to re-apply for the lottery in the following year.

New reporting requirements for F-1 students and university officials. New reporting requirements include: (1) a six-month validation requirement, confirming the F-1 student applicant’s application for work authorization through the OPT program; (2) an annual self-evaluation required of F-1 students, for designated school officials to review; and (3) an affirmative requirement for F-1 students to report any change in employment status or material departure from the adopted Training Plan. This is in addition to the requirement for F-1 employers to report similar changes to designated school officials within five business days, which remains in effect.

F-1 employer requirement to complete formal Training Plan with F-1 student. The new regulations will increase DHS oversight over the OPT program. F-1 employers must complete a formal Training Plan, Form I-983, and comply with new wage requirements. The formal Training Plan must include concrete learning objectives with proper oversight. F-1 employers must set out the terms and conditions of employment, including the specific duties, hours, and compensation.

As part of the Training Plan, F-1 employers must attest that the F-1 employee is paid a salary commensurate with similarly situated workers and that: “(1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives.”

It is these attestations that are going to be the bane for aspiring foreign student entrepreneurs. Specifically, the attestation requiring the student to not be replacing a full time or part-time US worker, whether temporary or permanent, that has come from left field. This attestation does not currently exist in the H-1B program too for most employers, unless they are dependent H-1B employers and are not petitioning for exempt employees (those who will be paid $60,000 or have advanced degrees). Moreover, the anti-displacement provisions are currently administered by the Department of Labor for dependent H-1B employers, which has had the experience and expertise to define displacement stemming from employment law jurisprudence through carefully crafted rules at 20 CFR 655 . The non-displacement attestation for STEM OPT students will be overseen by Immigration and Customs Enforcement, which has no expertise in these sorts of matters.

The following passage from the preamble to the final rule is worth noting:

             Volunteering and Bona Fide Employer-Employee Relationships

The final rule clarifies issues relating to various types of practical training scenarios and whether such scenarios qualify an F-1 student for a STEM OPT extension. The rule specifically clarifies that a student may not receive a STEM OPT extension for a volunteer opportunity. The rule also requires that a student must have a bona fide employer-employee relationship with an employer to obtain a STEM OPT extension. In response to comments received, DHS clarifies that students may be employed by start-up businesses, but all regulatory requirements must be met and the student may not provide employer attestations on his or her own behalf.

While this portion of the preamble acknowledges that students may be employed by start-up businesses, it does signal the death knell for the entrepreneur who is the sole founder of the startup as it does not allow the student to provide employer attestations. DHS further clarifies that students in STEM OPT “may be employed by new ‘start-up’ businesses so long as all regulatory requirements are met, including that the employer adheres to the training plan requirements, remains in good standing with E-Verify, will provide compensation to the STEM OPT student commensurate to that provided to similarly situated U.S. workers, and has the resources to comply with the training plan.”  This will be possible in a more elaborate startup potentially involving more than one shareholder so that an employer-employee relationship can be maintained and there are sufficient resources to implement a training plan.

The preamble also notes that alternate forms of compensation may be allowed, such as stock options, so long as the student can remain a bona fide employee, and such compensation is commensurate with what is provided to similarly situated workers. In fact, new 8 CFR 214.2(f)(10)(ii)(C)(8) provides that if an employer does not have other similarly situated workers, which would be the case in a startup, the employer is still obligated to attest that the compensation and other terms would be commensurate with other US workers in the area of employment.

While all this appears that students can avail of STEM OPT at startups, it would be difficult to do so, as experience has shown with the H-1B program under the Neufeld Memo, that requires a rigid and inflexible demonstration of the employer-employee relationship. The more flexible employment arrangements, which included self-employment, in prior ICE SEVICS guidance that would have been more conducive for the entrepreneur have all now been thrown out of the window under the new regulation. The saving grace is that the less rigid format still exists under the initial 12-month OPT, and thus an aspiring entrepreneur could start out in a more freewheeling way, and then develop a structured entity with an employer-employee relationship during the 24-month STEM OPT period. This would also pave the way for the startup to secure an H-1B visa, should the petition be selected under the annual lottery, which also would impose the same employer-employee requirement.

DHS to conduct on-site visits. The new regulations state that DHS has discretion to conduct employer site visits to ensure that F-1 employers meet the requirements of the OPT program. Generally, DHS must provide notice 48 hours before an on-site inspection, unless the visit is conducted in response to a complaint or evidence of noncompliance. As noted, the site visits will be conducted by DHS officials who may have no expertise in determining whether the student is being paid the salary commensurate to other similar workers or whether the employer has displaced US workers. Moreover, while the preamble contemplates employment at startups, there is nothing in the actual rule that clarifies this, making it harder to convince the untrained site visitor that a bona fide employer-employee relationship is possible even in a startup.

Cap-gap extension language clarified. DHS has revised the cap-gap extension regulation to clarify that the extension for F-1 students with pending H-1B petitions and requests for change of status temporarily extends the OPT period until October 1, the beginning of the new fiscal year.

Transition Procedures.   A student may still file for STEM OPT 17-month extension up to May 9, 2016.  However, as a practical matter, if this extension is still pending as of May 10, 2016, the USCIS will issue a Request for Evidence (“RFE”) so that the student may amend his or her application for the 24-month extension without incurring additional fees or having to refile the Form I-765, Application for Employment  Authorization.  Therefore, given that the USCIS is granting a 90 day processing time for STEM extension applications, an application filed today may likely not get approved by May 9, 2016 under the existing rule.

Students who have valid 17-month STEM OPT prior to May 10, 2016 will not automatically be extended to 24 months.  Those who are under the 17-month STEM OPT rule are not subject to the new requirements imposed under the 24-month rule.   On the other hand, they may apply for an additional 7-month extension if they choose to, but a self-employed entrepreneur who is the sole founder with no employer-employee structure would need to alter the business model.  The qualifying student must meet the following requirements and must file between May 10, 2016 and August 8, 2016 for the additional 7 months:

  1. The student must meet all the requirements for the 24-month STEM OPT extension under the new Final Rule as described in 8 CRR 214.2(f)(1)(ii)(C), and
  2. must submit of the Training Plan (Form I-983), completed by the student and the employer, to the DSO, and
  3. must have 150 calendar days remaining on their current 17-month STEM OPT Extension at the time the Application for Employment Authorization is filed, and
  4. must apply within 60 days of the date the DSO enters the recommendation for 24-month STEM OPT.

Additionally, the final rule states:

  • Only students who earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency and certified by the Student and Exchange Visitor Program (SEVP) may apply for a STEM OPT extension.
  • Participating students who receive an additional qualifying degree from an accredited college or university can apply for a second STEM OPT extension.
  • Participating students can use a previously earned qualifying degree to apply for a STEM OPT extension. The prior degree must not have already formed the basis of a STEM OPT extension and must be from a school that is both accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP at the time of the student’s STEM OPT application. The student’s most recent degree must also be from an accredited and SEVP-certified institution.
  • Students must work at least 20 hours per week per employer to qualify.
  • Students are permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension.
  • All STEM OPT employers must participate in DHS’s E-Verify program.

Also on March 11, 2016, SEVP launched a STEM OPT Hub at https://studyinthestates.dhs.gov/stem-opt-hub. The Hub includes resources for students, designated school officials, and employers.

While the 24 months provides a good opportunity for a foreign student to remain in the United States after graduating especially in light of the uncertainties under the H-1B lottery, this student will also be subject to several new and novel restrictions, and it remains to be seen how they will be enforced through DHS site visits. Although the F-1 STEM OPT program had nothing to do with the opprobrium caused by the layoff of US workers at Disney and other large US employers by H-1B workers, that effect has unfortunately spilt into these new STEM OPT rules. These rules now require novel compensation and non-displacement attestation, which in turn would dissuade the foreign student from founding a startup unless it can accommodate other overseers and busybodies who would serve as trainers and employers. When protectionism, whether in the spheres of trade or jobs, has become the flavor of the season, the tantalizing possibility of a foreign entrepreneur exponentially enhancing trade and jobs has sadly taken a back seat.

Cyrus Mehta

Winter Blues: Freezing the Age of a Child Under the December 2015 Visa Bulletin

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Although the State Department Visa Bulletin announced dual dates on September 9, 2015 – a filing date and a final action date – effective October 1 2015, the government has yet to clarify how these dates protect a derivative child from aging out (turning 21) under the Child Status Protection Act. If a derivative child turns 21, the child cannot automatically obtain permanent residency status with the parent, and thus the CSPA freezes the age of a child below 21.

The new filing date in the Visa Bulletin allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The final action date will be the date when green cards can actually be issued.  The filing date thus allows for the early submission of adjustment applications prior to the date when green cards actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the filing date should allow applicants to submit the DS 260 immigrant visa application.

Prior to the October 2015 Visa Bulletin, the cut-off date was based on the government’s ability to issue a green card during that month.  While there has been no official guidance, and many of the practice advisories issued make scant reference, it is important that we advocate that the age of the child also be protected under the CSPA at the time that the filing date becomes current for the applicant. A child ceases to be considered a child upon turning 21, and can no longer immigrate as a derivative with the parent, especially when the parent is likely to be caught in the backlogs. It is thus important that the CSPA is made applicable to protect the child’s age at the time of the earlier filing date. This will also promote legal consistency and harmony with respect to the broader definition of visa availability in the new visa bulletin. [Readers are cautioned not to expect that this will happen, and the whole purpose of this blog is to advocate that children get CSPA protection under the new visa bulletin.]

Notwithstanding the abrupt retrogression of the filing dates on September 25, 2015 that were first announced on September 9, 2015, thus impeding the ability of thousands who were ready to file adjustment applications on October 1, 2015,  the dual date system still exists, albeit not as advantageously as before. The Visa Bulletin has been further undermined after the USCIS was given authority to determine filing dates for purposes of filing adjustment applications. One has to now also refer to http://www.uscis.gov/visabulletininfo to determine whether adjustment applicants can use the filing dates each month established by the State Department in the Visa Bulletin. For the first two months in 2015, October and November,  the USCIS indicated that the filing dates could be used, but for December 2015, the USCIS abruptly announced without explanation that only the final action date could be used for filing I-485 applications. This has caused further confusion regarding the applicability of the CSPA.

As background, INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Visa availability will no longer be defined by when visas are actually available. The Visa Bulletin in its new reincarnation now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” The USCIS similarly views visa availability opaquely as “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.”  These new interpretations provide more flexibility for the State Department to move the filing date even further, and make it closer to current. Thus, the government’s argument that it made a mistake when announcing the more advantageous filing dates on September 9, 2015 in the lawsuit, Mehta v. DOL, makes no sense.  Indeed, visa availability ought to be based on just one visa being saved in the backlogged preference category, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than consumed by the foreign national beneficiary.  The new way of interpreting visa availability makes it possible to file an adjustment of status application earlier than before, along with all the accompanying benefits that arise, such as job portability under INA 204(j), work authorization for the principal and derivative family members and travel permission. Similarly, CSPA protection should also be made available to children who may age out at the time of the earlier filing date so as to maximize the chance for children to obtain their green cards with the parent.

I strongly advocate that if there is now a broader interpretation of visa availability for purpose of filing an I-485 adjustment application at the filing date, this same filing date should lock in the CSPA age too. Otherwise the whole scheme collapses like a house of cards if there is no consistency. If there must be visa availability to file an I-485 under INA 245(a)(3) in order to enjoy 204(j) portability, it makes sense to use the same new interpretation of visa availability to lock in the child’s age at the filing date.  Imagine filing an I-485 for a minor at the time of the filing date who is not protected under the CSPA, and once s/he ages out, is no longer eligible to even be an adjustment applicant, and has to leave the US while the parents can continue as adjustment applicants.

There’s also no point in providing the earlier filing date in the new visa bulletin for immigrant visa applicants overseas, otherwise they get no tangible benefit, except to be able to lock in the child’s age earlier at the time of the filing date under the CSPA.

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed under the new interpretation of visa availability pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent.

Even though the filing date may not be available for submitting an adjustment application under December 1, 2015, according to the USCIS, this should not preclude an applicant from claiming the earlier filing date for purposes of freezing the age of the child below 21 years. In order to meet all the conditions of freezing the age under the CSPA, the child should have also sought to acquire lawful permanent residency within one year of visa availability, which is arguably the filing date. However, what if the USCIS does not allow usage of the filing date for I-485 applications for more than a year? Does this mean that the child’s age cannot be protected under the CSPA? One possibility is to seek permanent residency through consular processing, and file Form I-824, which enables consular processing of an approved I-130 or I-140 petition. The filing of Form I-824 would constitute evidence of seeking to acquire permanent residency within one year of visa availability, which is when the filing date became current. Even if the parent and child are unable to file an adjustment application, or even be able to obtain a green card imminently, filing the I-824 at least clearly fulfills the condition of seeking to acquire permanent residency within one year of visa availability.  Once the USCIS allows usage of the filing date, an adjustment application can subsequently be filed, and the filing of the I-824 application to initiate consular processing would constitute solid evidence of the applicant seeking permanent residency within one year of visa availability.

Until there is more clarity, it makes sense to take advantage of the earlier filing date to protect the age of the child, and then seek to acquire permanent residency within one year of the filing date becoming current. Of course, given that there is no harmony between the DOS and the USCIS with respect to availability of filing dates, it may be possible to also claim the final action date for purposes of protecting the age of the child, and then seeking to acquire permanent residency within one year of the final action date becoming current. I had suggested in my earlier blog that permanent residency should only be sought within one year of the filing date becoming current so that the concept of visa availability be applied consistently. However, given that the USCIS has not permitted the filing of I-485 applications in the month of December 2015, although the State Department has released a filing date, a child applicant should take advantage of either the filing date or the final action date for purposes of CSPA protection.

There has undoubtedly been much confusion caused by the new Visa Bulletin that took effect on October 1, 2015. While there is an ongoing legal fight to challenge the government’s abrupt reversal of the filing dates on September 25, 2015, we must also force the government to agree with the interpretation that the CSPA should lock in a child’s age based on the new filing date. In the months when the USCIS does not permit adjustment submissions based on the filing date, applicants should still be able to lock in the CSPA age based on the filing date in the Visa Bulletin, as well as based on the final action date, whichever is more advantageous. It is really surprising that the government has said nothing thus far, and hopefully, this blog should prompt a discussion.

David Isaacson

Non-Retroactivity of BIA Precedent Decisions: De Niz Robles v. Lynch and other Recent Court of Appeals Rulings

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Earlier this year, in Zombie Precedents, the Sequel, I discussed how the Second Circuit’s April 2015 decision in Lugo v. Holder exemplified a better way of dealing with precedent decisions that had been overturned by a court.  As I noted in that blog post, the Second Circuit remanded Lugoto the BIA not only to deal with the issue raised by the overturned precedent, but also to deal with a related question regarding the retroactivity of the BIA’s decision in Matter of Robles-Urrea.  In that regard, the Second Circuit’s decision in Lugoforms part of an interesting trend regarding limits on the retroactivity of BIA decisions, most recently exemplified by the Tenth Circuit’s decision last week in De Niz Robles v. Lynch.

The issue in De Niz Robles concerned the interaction of INA §245(i), 8 U.S.C. §1255(i), with INA §212(a)(9)(C)(i)(I), 8 U.S.C. §1182(a)(9)(C)(i)(I).  The former provision, as has been discussed previously on this blog in a September 2010 post by Cyrus D. Mehta, allows adjustment of status by certain applicants who have entered without inspection, or are otherwise disqualified from adjustment under INA §245(a) and (c), if they are “grandfathered” as the principal or derivative beneficiaries of appropriate visa petitions or labor certification applications filed prior to April 30, 2001.  The latter provision declares inadmissible those who have been unlawfully present in the United States for a year or more and have subsequently re-entered without inspection, subject to a potential waiver which must be sought 10 years after one’s last departure from the United States.  These provisions, as the 10th Circuit noted in De Niz Robles, are in some tension with one another.

Approximately ten years ago, the Tenth Circuit held in Padilla-Caldera v. Gonzales (Padilla-Caldera I), 426 F.3d 1294 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237 (10th Cir. 2006), that §245(i) prevailed over §212(a)(9)(C)(i)(I), such that Mr. Padilla-Caldera could adjust status under §245(i) despite having been unlawfully present for over a year, left the United States in order to seek an immigrant visa, and ultimately re-entered without inspection.  The BIA then held differently in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), finding that inadmissibility under §212(a)(9)(C)(i)(I) prevented §245(i) adjustment.  The Tenth Circuit, in Padilla-Caldera v. Holder (Padilla-Caldera II), 637 F.3d 1140 (10th Cir. 2011), deferred to this BIA decision pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and National Cable & Telecommunications Ass’n v. Brand X Internet Services (“Brand X”), 545 U.S. 967 (2005), finding it to be a reasonable interpretation of ambiguous statutory language.

In the meantime, however, between the time of Padilla-Caldera I and Matter of Briones, Mr. De Niz Robles had applied for adjustment of status under §245(i) based on Padilla-Caldera I.  His application took so long to process that it was adjudicated after Padilla-Caldera II, and the BIA, applying that decision and Matter of Briones, denied Mr. De Niz Robles’s application.  He argued that this was an inappropriately retroactive application of Matter of Briones to an application filed before that decision was issued.  The Tenth Circuit agreed.

As the Tenth Circuit pointed out, when Mr. De Niz Robles filed his application in 2007, he had the option of instead leaving the United States, and serving out the ten-year period before he could apply for a waiver of his inadmissibility under INA §212(a)(9)(C)(i)(I).  In reliance on the case law as it existed at that time, specifically Padilla-Caldera I, he chose to apply for adjustment of status instead.  The BIA, by applying Matter of Briones to Mr. De Niz Robles six years later in 2013, and defending that position on appeal in 2015, had put Mr. De Niz Robles in the position of having lost years of time that he could have spent towards the ten-year waiver qualification period—by now, he would have served out eight of the required ten years and been only two years away from being able to apply for a waiver, had he left.  This, the Tenth Circuit said, was retroactive application of the Briones decision, and was not permissible.

When the BIA or a similar agency tribunal acts to overturn an existing decision via Brand X, the Tenth Circuit decided, it should be treated for retroactivity purposes similarly to an agency that declares its new policy through rulemaking.  Although retroactive rulemaking is sometimes permitted, it is disfavored.  Applying the factors that govern such a retroactive agency rulemaking, the Tenth Circuit determined that the reasonableness of Mr. De Niz Robles’s reliance on Padilla-Caldera I, and the dire consequences to him if the BIA’s ruling was allowed to stand, weighed particularly strongly in favor of finding that Briones should not be applied to him.

In this way, De Niz Robleswent beyond what Lugohad done, flatly finding that it would be inappropriate to give retroactive effect to the BIA’s ruling rather than merely remanding for further explanation of the point.  This is partly because the context made clearer in De Niz Roblesthat there had in fact been a retroactive ruling.  The Second Circuit in Lugo had asked the BIA to address, among other factors, “whether its holding in Matter of Robles-Urreawas a departure from prior law.”  Lugo, slip op. at 5.  In De Niz Robles, the Tenth Circuit did not need to defer to the BIA on the analogous question, but was able to resolve it on its own: it was quite clear that Briones was a departure from prior law, at least within the jurisdiction of the Tenth Circuit, where it was contrary to Padilla-Caldera I.

The Court of Appeals for the Ninth Circuit followed a similar path to the Tenth in Acosta-Olivarria v. Lynch, decided less than two months before De Niz Robles, on August 26, 2015.  Like the Tenth Circuit, the Ninth had, prior to Matter of Briones, issued a decision allowing §245(i) adjustment despite inadmissibility under INA §212(a)(9)(C)(i)(I): Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006).  Like the Tenth Circuit, after Briones, the Ninth Circuit had overruled its decision, in Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th Cir. 2012) (en banc), deferring to the BIA under Brand X.  And like Mr. De Niz Robles, Mr. Acosta-Olivarria had applied for adjustment of status after his Circuit case law indicated he could do so, and before the BIA and Circuit told him he could not.  The bottom line was the same in Acosta-Olivarria as in De Niz Robles: the Ninth Circuit held, over one judge’s dissent, that the BIA’s ruling in Briones could not be applied retroactively to Mr. Acosta-Olivarria, and so an immigration judge’s order granting him adjustment of status, which had been set aside by the BIA, was reinstated.

De Niz Robles, Acosta-Olivarriaand Lugoare not the only relatively recent decisions to reject or cast doubt on retroactive application of a BIA ruling.  The Court of Appeals for the Seventh Circuit also did this in its July 2014 decision in Velasquez-Garcia v. Holder, 760 F.3d 571 (7th Cir. 2014).  There, the Seventh Circuit rejected retroactive application of the BIA’s decision in Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), interpreting the “sought to acquire” language of the Child Status Protection Act (CSPA).
As discussed in more detail by a numberof postson this blogand articleson our firm’s website, INA §203(h)(1)(A), added by section 3 of the CSPA, requires that a child have “sought to acquire” lawful permanent residence within one year of visa availability in order to take advantage of protections under the CSPA that fix the child’s age for purposes of derivative visa eligibility  at a point younger than that child’s actual biological age.  The BIA held in Matter of O. Vasquez that absent “extraordinary circumstances”, this provision could only be satisfied by the actual filing of an application for adjustment of status or of analogous forms and fees used to apply for an immigrant visa from the Department of State.  (USCIS subsequently issued an interim Policy Memorandum elaborating on what it would consider to be extraordinary circumstances.)  Prior to O. Vasquez, however, the BIA had in several non-precedential decisions been more lenient, allowing a broader set of “substantial steps” towards the obtainment of permanent residence to qualify as seeking to acquire for CSPA purposes.  As discussed in a previous post on this blog, for example, the BIA’s October 2010 unpublished decision in Matter of Murillo and other pre-2010 cases allowed such steps as hiring an attorney to meet the seeking-to-acquire requirement.

The Seventh Circuit in Velasquez-Garciaheld that it would not be appropriate to apply the stricter O. Vasquez standard to those who may have complied with the prior, laxer standard of seeking to acquire before O. Vasquez was issued.  As the Court of Appeals explained: “In light of the state of the law at the critical time, a reasonable person reasonably could have assumed that the [CSPA] did not require him to file an application within one year.”  Given the immense burden that applying the new rule retroactively would have imposed on Velasquez, and the tension between the effect of retroactive application and the remedial purpose of the CSPA to ameliorate the effect of administrative delays – among which the Seventh Circuit included the eight-year delay by the BIA before promulgating precedential guidance regarding “sought to acquire” in O. Vasquez – the Seventh Circuit held that Mr. Velasquez-Garcia should be permitted to proceed under the standard in effect prior to O. Vasquez.

These sorts of retroactivity issues can be expected to continue to arise in the future as the BIA aggressively uses its policymaking interpretative authority under Chevron and Brand X, at least when that authority is used to reinterpret a standard unfavorably to immigrants.  (Changes in a rule which are more favorable to those affected by that rule are not the sort which raise retroactivity concerns under the case law, since allowing someone to apply for a benefit from which he or she previously was precluded does not raise the same unfairness concerns as a change in the other direction.)  Under such circumstances, attorneys and clients should be alert for the possibility that the less-favorable BIA precedent may not apply retroactively, particularly to those who could potentially have relied on the prior state of the law.  The issue of retroactivity is often a complicated one, but it is worth exploring in appropriate cases.

Cora-Ann Pestaina

What One Hand Giveth the Other Taketh Away: Are We Truly Welcoming Foreign Entrepreneurs to America?

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“Our nation has always attracted individuals with great drive and entrepreneurial spirit. As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.”

The above is an extract from the USCIS’ Entrepreneur Pathways Portal which provides guidance on how entrepreneurs can obtain nonimmigrant visa status through a startup entity. The United States Citizenship and Immigration Services (USCIS) launched its Entrepreneurs in Residence initiative in 2012 and later the portal. Prior to that, in an August 2, 2011 press release, the Department of Homeland Security (DHS) stated that “The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs.” Through the Entrepreneurs in Residence program, USCIS officers are supposed to be trained to recognize the unique nature of a startup and to understand that a nonimmigrant petition based on a startup will not present the characteristics typical of a petition filed through a more established business entity. Startups often lack a formal office space; they may operate in stealth mode in an effort to hide information from competitors; and the foreign national seeking nonimmigrant status in the US often has a majority interest in the startup. Unfortunately, too often a benefit conferred on one hand is taken away by the other hand. USCIS has created these seemingly great avenues for entrepreneurs but other USCIS initiatives and other agencies such as the Department of Labor (DOL) make it harder for those same entrepreneurs to continue to obtain benefits.

One example is the DHS’ proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” which was published in the Federal Register on October 19, 2015 for comment. In sum, the rule proposes to amend the F-1 student visa regulations regarding optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Under the current rule, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM fields. The new rule proposes to allow F-1 STEM students who have elected to pursue 12 months of OPT to extend the OPT period by 24 months. This new 24-month extension would effectively replace the 17-month STEM OPT extension currently available to these students. This is indeed a positive development, and it encourages talented foreign students to remain in the United States and contribute to the US economy.

A STEM graduate may also utilize the OPT period to work for their own startup. But one aspect of the proposed rule might mean that this STEM graduate may not be able to obtain the 24-month extension to continue working for the startup. One of the things that will be required under the proposed rule is the implementation of formal mentoring and training plans by employers for the STEM OPT employee. The employer must also implement a process for evaluating the OPT employee. The STEM OPT extension could be difficult to establish for the OPT employee who is the majority shareholder in their startup. It appears that here the government will want to see proof of the typical employer-employee relationship which totally goes against everything it tries to do through the USCIS Entrepreneurs Pathway portal and erodes the whole idea of the startup.

Even if the foreign national were to obtain nonimmigrant visa status, that status is temporary. If the foreign national is desirous of obtaining lawful permanent residence in the US through their own company, there s/he may face another roadblock.

Recently, in Step By Step Day Care LLC, 2012-PER-00737 (Sept. 25, 2015), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a PERM labor certification finding that the offered position was not open to U.S. workers because the beneficiary was in a position to control or influence hiring decisions regarding the job. The employer filed a PERM labor certification for the position of “Daycare Center Director” indicating on the application form that the company is a closely-held corporation in which the foreign national has an ownership interest.  The DOL issued an audit request for documentation that included information on the business structure; a statement describing any familial relationships between parties with ownership interests in the company and the foreign national; the name of the employee with the primary responsibility for interviewing and hiring applicants; and the names of the employer’s officials who have control or influence over hiring decisions involving the job opportunity listed on the PERM application. The employer’s audit response showed that the foreign national beneficiary of the PERM application and her husband each held 50% ownership of the company, and they were here on E-2 visas. (The E-2 visa is one such visa that is encouraged for startups in the Entrepreneurs Pathway Portal). The foreign national was the Director and her husband was the Operations Manager. The recruitment was conducted by the company’s Assistant Director.

The Certifying Officer (CO) denied the application on the grounds that the employer had not overcome the presumption that exists that a job opportunity is not bona fide when the employer is a closely-held company where the beneficiary has an ownership interest or a familial relationship with the stockholders, officers, incorporators, or partners, and is one of a small number of employees. The CO took issue with the fact that the hiring official, the Assistant Director, was a subordinate of the beneficiary and is not the usual official having authority over hiring decisions.

In its motion for reconsideration, the employer explained that while the beneficiary and her husband typically made the hiring decisions in consultation with the Assistant Director, the hiring process was modified in for purposes under the labor certification recruitment because the beneficiary was also the co-owner. The employer held that neither the beneficiary nor her husband were involved in recruitment. The employer argued that the beneficiary and her husband each held E-2 investor visas as a result of purchasing the company and therefore the beneficiary’s stay in the US was not dependent on her position as Director and provided documentation to show that the position was a requirement for daycare businesses under Florida law and did not exist for the benefit of the foreign national beneficiary. The CO nevertheless upheld the denial.

As background, mere existence of a family relationship, or the fact that the beneficiary is the owner of the sponsoring entity, should not lead to a conclusion that a job opportunity was not bona fide.  When determining whether a bona fide job opportunity exists, the CO must consider the totality of the circumstances, considering, among other factors, whether the alien:

  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
  2. Is related to the corporate directors, officers, or employees;
  3. Was an incorporator or founder of the company;
  4. Has an ownership interest in the company;
  5. Is involved in the management of the company;
  6. Is on the board of directors;
  7. Is one of a small number of employees;
  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Good Deal, Inc., 2009-PER-00309 (Mar. 3, 2010) (citing Modular Container Systems, Inc., 1989-INA-228, (July 16, 1991) (en banc).  The Board should also consider the Employer’s compliance and good faith in the application process. Id.  No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77356 (Dec. 27, 2004).

Upon review, BALCA held that having recruitment conducted by a subordinate of the foreign national beneficiary is not in the best interests of U.S. worker applicants. BALCA found it difficult to believe that the beneficiary exercised no influence on the hiring process. BALCA cited 20 CFR 656.10(b)(ii) which states:

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

BALCA held that since the Assistant Director did not normally conduct interviews or consider applications, this regulation was not met. With regard to the employer’s statement that the beneficiary did not need the position since she held E-2 status, BALCA held that the filing of the labor certification indicated the beneficiary’s preference to remain in the position.

The foreign national entrepreneur who successfully obtains nonimmigrant visa status to run a business in the US could later be kicked out when that temporary nonimmigrant visa status expires. In the above discussed BALCA case, the beneficiary held E-2 status which could be extended indefinitely. However, a beneficiary with H-1B status would need to leave the US upon reaching the maximum 6-year limit.  While there may be other options for entrepreneurs on a temporary visa to get permanent residency, such as through the national interest waiver or as a person of extraordinary ability, very few can qualify under these pathways. The majority of skilled foreign nationals get sponsored via an employer through the labor certification process, and the odds of winning labor certification substantially lessen when one is the owner or founder of the sponsoring entity. It is not clear how such conflicting policies could work to “[attract] individuals with great drive and entrepreneurial spirit” and “welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.” What one hand giveth the other taketh away.

Michelle S. Velasco

Work Authorization for H-4 Spouses: The Experience Thus Far

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The U.S. Department of Homeland Security (“DHS)”) announced in February 2015 that beginning May 26, 2015, eligible H-4 spouses of H-1B visa holders could begin applying for employment authorization documents (EADs) from the U.S. Citizenship and Immigration Services (“USCIS”).  This change in the regulations was in keeping with President Obama’s efforts to encourage highly skilled workers to stay and set roots in the U.S.  Whereas before many H-1B visa workers were often the only ones toiling for their entire families, the new H-4 EADs for their spouses provide the primary H-1B visa holders more financial stability because their spouses can also work and add to the family income, the spouses joining the U.S. workforce create new connections within the community, and economic doors are opened for prosperity, such as purchasing homes and growing families.  In the past, the lack of H-4 work authorization has frustrated many spouses who otherwise were qualified and wanted to enter the workforce, but were unable to do so because their H-1B spouses could not apply for green cards due to the crushing backlogs in the EB-2 and EB-3 categories.  Even now, the H-4 EADs are not open to every H-4 spouse; it is only a limited group whose H-1Bs spouses were fortunate enough to have an employer sponsor them for a green card.

As a practical matter, the eligibility criteria for the EADs are fairly straightforward: the H-1B visa holder

  1. Must be the beneficiary of an approved I-140 or
  2. Was granted an H-1B extension pursuant to sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”).

In both these cases, a Permanent Labor Certification (“PERM”) was filed on behalf of the H-1B worker.

When applying for the H-4 EAD, applicants must complete the I-765 and indicate the correct category under which the EAD should be issued; here, the correct category is (c)(26).  In addition, the applicant must provide evidence of his or her eligibility.  This is where things can be confusing.  The USCIS has provided a handy FAQ page for guidance.  The FAQ provides a list of evidence that must be provided along with the I-765 form, filing fee, and two passport-style photos.  First, the applicant must provide evidence of his or her H-4 nonimmigrant status.  This can be a copy of the I-797 Approval Notice for the change of status or extension of status for the H-4 visa or a copy of the applicant’s H-4 visa affixed to the passport.  Second, the applicant must provide proof of the spousal relationship with the H-1B principal immigrant.  This can simply be a marriage certificate.  Applicants whose marriage certificates are not in English must provide a certified translation.  Third, the applicant must submit evidence of the spouse’s H-1B status, such as copies of the H-1B approval notice, form I-94, receipt number of the approved H-1B filing, or passport plus visas and admission stamps.  We also recommend that the applicant show proof that the H-1B has maintained valid H-1B status by providing recent pay stubs.

A fourth set of evidence is required to prove how the H-1B spouse either is the beneficiary of an approved I-140 or has received an H-1B extension pursuant to AC21. To simplify matters, we will first discuss how to demonstrate that an approved I-140 petition exists.  The applicant should submit a copy of the I-797 approval notice for the I-140.  If the approval notice is not available, one could provide a copy of that petition’s receipt notice and a note explaining why the approval notice cannot be provided.

In cases where the applicant must provide evidence that the H-1B spouse was granted an H-1B extension pursuant to AC21 sections 106(a) and (b), the evidentiary requirements can get more confusing.  When the spouse is the beneficiary of a PERM filed 365 days before the end of the spouse’s 6 year maximum stay in H-1B status, the applicant must provide proof of the PERM’s filing, the date of filing, and the date when the spouse’s H-1B status is or was set to expire.  Copies of the PERM from the DOL website, along with the travel dates of the spouse while in H-1B status and an explanation of how the PERM was filed more than 365 days before the end of the 6 year maximum, should be sufficient.  Where the PERM has been certified and the I-140 timely filed within 6 months of the PERM’s certification date, the applicant should submit copies of the I-140 receipt notice with the certified PERM.  If the PERM has been denied, it would still be considered “in process” or pending for AC21 purposes if the employer has filed a Request for Reconsideration with the Certifying Officer or an appeal to the Board of Alien Labor Certification Appeals (“BALCA”).  If the applicant does not have access to copies of the PERM form, but the I-140 is pending, he or she can submit the receipt notice for the I-140 (or other evidence of its filing) along with an explanation of how it was filed more than 365 days before the 6-year H-1B limit.

In the event primary evidence is unavailable, USCIS seems to be willing to accept secondary evidence, such as attestations that list information about the I-129 or I-140 petition filings. However, the applicant must first demonstrate why the primary evidence could not be submitted.  If the applicant cannot submit proof of eligibility, the EAD application will be in danger of denial.

Other issues that may arise out of the H-4 EAD surround the I-140 approval.  The USCIS has expressly written in the FAQ that where H-1B spouse has a revoked I-140 approval, the H-4 EAD will be denied.  However, the FAQ mentions revocations by USCIS, which is presumably when USCIS takes action under 8 CFR §205.2 to revoke an I-140 due to fraud or misrepresentation.  Practically, however, it matters not whether the revocation was automatic pursuant to 8 CFR §205.1(a)(3)(iii)(C) because a former employer withdrew the I-140, or if the revocation was due to fraud because USCIS will deny the H-4 EAD in these cases, no matter what the root cause of the I-140 revocation.  Therefore, the applicant should check the I-140 receipt number on the USCIS case status search function to ensure that the I-140 is still approved.  Sometimes the USCIS online case status function is not updated to reflect a revocation; thus, wherever possible, applicants should be more diligent and ask their spouses to find out the status of the I-140 from the prior employers.

Another potential landmine is in cases where the filing is based on a pending I-140 which is then denied before the H-4 EAD application is adjudicated.  If this occurs and the spouse’s employer is pursuing a Motion to Reconsider or Reopen the denial, or appeal to the Administrative Appeals Office (AAO), the applicant should submit through a response to a Request for Evidence (which the USCIS should be issuing) that a motion or appeal has been filed, and also submit proof that the PERM was filed 365 days before the H-1B’s six year expiration.

Timing for the H-4 EAD filing is crucial as the expiration of the EAD is based on the spouse’s H-1B expiration, and it behooves the applicant to obtain the longest validity period for the EAD.  For example, if the applicant’s spouse’s current H-1B will expire in May 2016 but the spouse is eligible for a 3-year H-1B extension by virtue of an approved I-140 and pursuant to AC21 section 104(c).  In this case, it makes more sense to wait until November 2015 to file the EAD application concurrently with the H-1B and H-4 extensions of status so that the EAD would be valid through May 2019, instead of filing the EAD application now, getting an EAD valid through May 2016, and then having to file again in early 2016.

Further, the applicant should be aware that if the EAD application is filed concurrently with an extension of status or change of status application, the underlying extension or change in status application must first be approved before USCIS will adjudicate the EAD application.  While at the time of writing this blog the USCIS processing times for change of status and extension of status applications hover around four months, there is no guarantee that processing times will not lengthen.  If timing is of the essence, the applicant might consider traveling abroad to undergo consular process for the H-4 visa.  Often this is a more speedy method of obtaining an H-4 visa.  Applicants should note that they cannot apply for the H-4 EAD until they return to the U.S. in valid H-4 status.

While on the matter of travel, it should be noted that the EAD card cannot be used to travel and it cannot be used to prove valid visa status in the U.S.  It simply allows the H-4 visa holder to accept employment.    In fact, if the applicant travels while an application to change status to H-4 is pending along with the EAD application, the change of status will be denied and this will likely vitiate the pending application for EAD too.  Thus, if the applicant cannot avoid travel during the pendency of the change of status and EAD applications, he or she must instead undergo consular process for the H-4 visa, be admitted on the H-4 visa, and again file the I-765 for the EAD once he or she is back in the U.S.  Another note we make is that recipients of H-4 EADs are not limited in the type of employment they can accept.  Aside from state licensing requirements for specific occupations (for attorneys, for example), the H-4 visa holders should be able to accept a wide array of employment.  It bears repeating that the EAD does not grant separate visa status; only the H-4 visa provides the requisite visa status and the means by which the nonimmigrant is able to remain in the U.S.

H-4 EAD applicants must be diligent in obtaining evidence of their eligibility and be aware of timing concerns.  For eligible applicants, this opportunity to obtain authorization for employment is welcome news, as it allows for more than just one family member to work lawfully in the U.S.  Still, the H-4 EAD regulation is on shaky ground.  It is being challenged in a lawsuit against the Department of Homeland Security (“DHS”) where plaintiffs argue that DHS overstepped its legal power as granted by the Immigration and Nationality Act when it issued the regulations allowing for the H-4 EADs.  (Save Jobs USA v. U.S. Dep’t of Homeland Security, case number 1:15-cv-00615, U.S. District Court for the District of Columbia, April 23, 2015).  The litigation is ongoing, and it adds to the uncertainty in which many H-1B and H-4 visa holders live in the U.S. Unfortunately, it will have to suffice for the moment because many H-1B visa holders with approved I-140 petitions cannot yet apply for their adjustments of status and the ancillary benefits of an EAD and advance parole.  The disappointing actions of the Department of State (“DOS”) and USCIS in issuing a revised October 2015 visa bulletin disallowed potentially tens of thousands of beneficiaries from applying for their adjustments of status (which would have granted the benefit of applying for EADs for their spouses and other derivative beneficiaries). Those who have already waited many years for an opportunity to truly set roots in the U.S. through a green card and work authorization for their families continue to wait.  In the meantime they must maintain valid H-1B statuses even though their employers have offered them permanent employment, and in the event they lose H-1B statuses, their H-4 family members will lose their status and they too will have to give up on the dream of becoming permanent members of the American way of life.

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

Cora-Ann Pestaina

BALCA, What Have You Been Up to so Far in 2015?

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I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are a couple of recent BALCA tidbits.

BALCA applies Matter of Symantec

In Computer Sciences Corporation, 2012-PER-00642 (Jul 9, 2015) the Certifying Officer (CO) denied the PERM on the grounds that the Employer’s inclusion of the language, “Willingness to travel; may require work from home office” in its recruitment advertisements posted on its website and on a job search website, constituted terms and conditions of employment that exceeded those listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6).

As background, employers recruiting under PERM for a professional position must complete the mandatory recruitment steps required by 656.17(e)(1)(i) as well as three additional recruitment steps provided in 656.17(e)(1)(ii).

The Employer’s advertisements posted on its website and on the job search website were in satisfaction of two of the three required additional recruitment steps. In reversing the CO’s decision, BALCA simply cited its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously blogged about in greater detail here, and held that 656.17(f) does not apply to additional forms of recruitment. The Employer dodged a bullet here.

BALCA finds that Employer’s letter was within the record and can be considered on appeal

Once a PERM is denied, if the Employer files a motion for reconsideration, under 656.24(g)(2), this motion can only include (i) documentation that the Department actually received from the employer in response to a request from the CO to the employer; or (ii) documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the PERM was filed and was maintained by the employer to support the PERM application in compliance with 656.10(f).

In New York City Department of Education, 2012-PER-02753 (June 19, 2015), the CO first denied the PERM application on the grounds that the Employer failed to provide a recruitment report that accurately accounted for the number of applicants for the job opportunity. The Employer filed a motion for reconsideration arguing that it properly accounted for all applicants. The CO, ignoring this request for reconsideration, issued a second denial letter, finding that the Employer did not provide job-related reasons for its rejection of US workers. Based on the documentation the Employer had submitted with the audit response, it appeared that US workers were rejected because they expressed disinterest in the position but the CO also reviewed the Employer’s interview notes that stated the candidates were available “immediately” or “soon.” The Employer filed a second motion for reconsideration explaining, not only that the CO cannot ignore the first motion and issue a second denial, but, moreover, that it had indeed lawfully rejected the US workers. Along with its motion the Employer provided a letter from its Executive Director explaining the company’s interview process and the fact that the Employer made the determination to reject the applicants after they expressed their disinterest at a second interview.

Since the Employer failed to properly explain its interview process and reasons for rejection in its audit response, BALCA found that the CO was justified in his denial of the case. However, in forwarding the case to BALCA, the CO acknowledged the letter that the Employer submitted along with its second motion explaining its hiring process. The CO did not refuse to accept it on the grounds that it was barred under 20 CFR 656.24(g)(2). Under that regulation, since the Employer’s had previously had a chance to submit this letter with its audit response but did not and since this letter was not documentation that existed at the time the PERM was filed, the CO would have been justified in refusing to accept it. But since the CO did not, the letter became part of the record that BALCA had to consider upon appeal. With the letter fully explaining the Employer’s interview process, BALCA had no choice but to find that the US workers had been lawfully rejected.

The take away from this case is how important it is to fully respond to an audit request. Had the CO rejected the Employer’s letter, the denial would have been upheld.  As BALCA pointed out, the CO’s audit letter very clearly requested a report that lists the date(s) the employer contacted the US worker; the dates the employer interviewed the US worker; the specific reasons the US worker was rejected; and information that documents the employer contacted the applicant(s). In its audit response, the Employer failed to provide this detailed information.

BALCA held that an original signature is not required on the recruitment report but the report must be signed

In another case involving New York City Department of Education, BALCA upheld the denial of three PERMs finding that the typed name of the Executive Deputy Director at the bottom of the recruitment report did not constitute a valid signature. The CO had denied the Employer’s PERM after audit for failure to submit a signed report as required under 656.17(g)(1). The Employer, in its request for reconsideration, explained that it had a physically signed recruitment report in its audit file and this report, due to administrative error, simply was not included in the audit response. The Employer alternatively argued that the regulations do not require a handwritten signature and the typed name of the Employer’s Deputy Executive Director was satisfactory.  The CO transferred the file to BALCA where each of the Employer’s arguments were shut down.

BALCA held that the fact that the Employer had a physically signed copy of the recruitment report speaks to the fact that the typed name on the bottom of the report submitted with the audit response was not intended to be a signature. The Employer argued that “original signatures” are not required. BALCA agreed that 656.17(g)(1) does not require an original signature but again stated that the typed name on the bottom of the report was not intended to be a signature – original or otherwise. The Employer argued that fundamental fairness ought to prevail as it had only failed to submit the physically signed report due to administrative error. BALCA held that the Employer had been given an opportunity to submit the signed report with the audit response and failed to do so. Finally, the Employer argued that each statement in the recruitment report was verified by other documentation submitted with the audit response and therefore the omission of the physically signed report was immaterial. BALCA, using one of its favorite quotes, held that “PERM is…an exacting process.” Essentially, because a signature is a regulatory requirement under 656.17(g)(1), then there must be a signature, no matter how unfair it may seem in light of all the facts of the case.

It’s really a shame whenever something so simple and unintended leads to a PERM denial or in this case, three PERM denials. But it highlights the importance of checking and rechecking an audit response before it is submitted and the importance of having, if possible, more than one pair of eyes review the response prior to submitting it. PERM can be a very unforgiving process.

BALCA says US workers can be lawfully rejected for “lack of experience”

In Presto Absorbent Products, Inc., 2012-PER-00775 (May 26, 2015), the CO denied the PERM finding that the Employer failed to provide lawful reasons for rejection. The Employer’s recruitment report stated that the Employer received eight resumes and that the applicants lacked experience. The Employer also stated that “All applicants were reviewed to determine if they would be able and qualified to perform the duties of the position within a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA held that the regulation does not indicate a level of specificity beyond what the Employer provided and that “lack of experience” is a lawful reason for rejecting applicants.

While it is indeed heartening anytime BALCA errs on the side of reason, I don’t think PERM practitioners ought to rely too heavily on this decision and it’s always best to be as specific as possible in providing the reasons for rejection of US workers. For instance, instead of “lacks the technological experience” it would be clearer to state, “lacks experience in the required technologies such as C++, Java & PL/SQL” and instead of “lacks experience” it might be better to say “applicant possesses only 2 years of experience but the position requires 5 years of experience.” Even if it may appear silly to have to spell out the obvious, it might be valuable time and money saved by preventing an erroneous denial.

BALCA comments on newspaper circulation and distance to the area of intended employment

In Pentair Technical Products, 2011-PER-01754 (Aug. 5, 2015), the Employer used the San Antonio Express newspaper (the “Express-News”) for its first Sunday newspaper advertisement to recruit for a professional position in Pharr, Texas. The CO denied the PERM on the grounds that the Express-News is circulated in San Antonio, Texas and not in the area of intended employment – Pharr, Texas.

Under 20 CFR § 656.17(e)(1)(i)(B)(1), one option for an employer’s mandatory print advertisements for a professional position is “[p]lacing 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 US workers.”

In a motion for reconsideration, the Employer argued that the Express-News is circulated in Pharr, Texas. The Employer argued that it chose the Express-News as it is the largest newspaper with general circulation in Pharr in order to reach the largest number of US workers. The Employer’s attorney also argued that he had personally contacted the Express-News and a representative at the newspaper had verified that the paper is circulated in Pharr, Texas. The CO nevertheless found that his denial was valid because San Antonio is four hours away from Pharr, well outside commuting distance and so the Employer had failed to advertise in the area of intended employment.

BALCA found that the issue of whether or not San Antonio is outside normal commuting distance from Pharr is relevant only if the Express-News were only available in San Antonio and not in Pharr. However, the record established that the Express-News is a newspaper of general circulation in Pharr. Accordingly, the fact that it is published in San Antonio is of no legal consequence.

BALCA pointed out that when a single area of intended employment is served by multiple newspapers, the CO ought not to be concerned with which paper reaches the most people but rather with whether the newspaper reached the intended audience and is a “newspaper of general circulation in the area of intended employment.” As an example, BALCA stated that if Trenton, NJ is the area of intended employment, whether The New York Post is more “appropriate” than The Trenton Times because it has more readers is irrelevant and there is nothing in the regulations that requires an employer to utilize the newspaper with the highest circulation in the area of intended employment or the newspaper published closest to the area of intended employment.

At first look, the case appears to be very encouraging. As long as the newspaper reaches its intended audience, all is well. Not so fast. This is another one of those cases where BALCA’s decision is expressly limited to the precise facts of the case. BALCA takes time to point out that in this case the CO did not deny the PERM based on a finding that the Employer had failed to utilize the “most appropriate” newspaper. The only issue raised in the denial was whether the Employer placed a newspaper advertisement in the area of intended employment so that is the only issue that BALCA has addressed. As to whether Express-News was the newspaper “most appropriate” to the occupation for which the Employer was recruiting, we will never know.

It can be very difficult for employers to decide where to advertise. This case answers the question of whether it is permissible to advertise in The New York Times for a position in New Jersey. Yes, it is permissible because The New York Times is a newspaper of general circulation in New Jersey. But this case does not provide any guidelines for an employer struggling to determine which newspaper is “most appropriate.” For instance, in recruiting for a professional position in New York City, how does an employer decide between The New York Post vs. The New York Times? It is significantly more expensive to advertise in The New York Times and so an employer may not want to do that unless that newspaper is the only newspaper that would be permissible under the regulations. What statistics would that employer need to examine? Should that employer just assume that The New York Times is the newspaper most read by professionals and therefore The New York Times will always be “most appropriate” in recruiting for any professional position? In a footnote, BALCA mentioned that the Employer utilized The Monitor as the newspaper for the second Sunday advertisement and that this was not challenged by the CO. BALCA pointed out that the regulations refer to “newspaper” in the singular in requiring advertisements to be placed “in the newspaper of general circulation in the area of intended employment.” BALCA commented that the regulations do not appear to contemplate a situation where more than one newspaper is circulated in the area of intended employment and the newspapers are equally appropriate given the employment at issue and the workers likely to apply for the job. BALCA conveniently declined to comment on that issue. So while it is great that employers can choose any newspaper as long as it is one of general circulation in the area of intended employment, employers need to remain concerned about ensuring that the paper chosen is the “most appropriate” paper and it’s probably just best to use the same paper for both of the Sunday ads.

These recent cases highlight the “little” things that can lead to a big denial of a PERM. Just reading these cases creates heightened awareness of potential issues and naturally leads to better and more focused reviews of documentation prepared during the PERM process and documentation submitted to the Department of Labor.
David Isaacson

RESUMPTION OF DIPLOMATIC RELATIONS WITH CUBA: HOW DOES IT IMPACT U.S. IMMIGRATION LAW?

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By David A. Isaacson

Earlier this month, President Obama announced that the United States would soon be re-establishing diplomatic relations with Cuba.  The White House website indicates that the President will be “working to re-establish an embassy in Havana in the next coming months.”  U.S. immigration law currently treats natives and citizens of Cuba differently from people from other countries in a variety of respects.  This new development raises the question whether resumption of diplomatic relations with Cuba will have any impact on that different treatment of Cuban nationals.
Perhaps the best-known aspect of U.S. immigration law that provides distinctive treatment to natives and citizens of Cuba is Public Law 89-732 of 1966, generally known as the Cuban Adjustment Act (CAA).  (Its official title was “An Act to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes.”)  Under the CAA, natives or citizens of Cuba who have been admitted or paroled into the United States, and have been physically present for a total of one year (until the Refugee Act of 1980 the requirement was two years) are eligible for adjustment of status to that of a lawful permanent resident.  Eligibility for adjustment under the CAA also extends to the spouse and child of a Cuban applicant, even if not themselves Cuban, so long as they reside with the Cuban native or citizen in the United States or qualify as abused spouses and children of a qualkifying Cuban principal under amendments to the Violence Against Women Act.
Applicants for adjustment of status under the CAA must in general be admissible, although they are not subject to the bars to adjustment of status at INA §245(c).  Also, according to the 1967 decision of the former INS in Matter of Mesa, the public-charge ground of inadmissibility which is currently at INA 212(a)(4)does not apply to adjustment under the CAA.  Adjustment under the CAA is a discretionary benefit, but USCIS has said in its Adjudicator’s Field Manual that its officers should, “in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in [Cuba].”
Unlike applicants for asylum under INA §208 or refugee status under INA §207, applicants under the CAA, which predates both of those provisions, do not need to show a well-founded fear of persecution on a protected ground or otherwise establish that they meet the definition of a refugee under INA §101(a)(42).   One recent proposed amendment to the CAA would have required applicants under the CAA to attest to their status as political refugees and face potential loss of their status if they were to return to Cuba, but current law has no such requirement.
The CAA itself does not depend on the presence or absence of U.S. diplomatic relations with Cuba.  Thus, with respect to potential applicants whom DHS chooses to admit or parole into the United States, adjustment under the CAA will remain available.  However, there is a related benefit granted to natives and citizens of Cuba under U.S. immigration law, which may determine whether they can seek adjustment under the CAA at all, and which will be affected by the resumption of diplomatic relations.
Under section 235(b)(1) of the INA, most applicants for admission to the United States are subject to an expedited removal process whereby they can face quick removal from the United States unless they establish either a credible fear of persecution or that they were previously admitted as lawful permanent residents or granted refugee status or asylum.  (This author has previously discussed how judicial review of an expedited removal order may be available for certain returning nonimmigrants.)  However, INA 235(b)(1)(F)states that these provisions “shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.”  This provision appears to have been enacted for the benefit of natives and citizens of Cuba, the only “country in the Western Hemisphere with whose government the United States [did] not have full diplomatic relations” when the modern expedited-removal process was enacted in 1996 by IIRIRA.  Under section 235(b)(1)(F), natives and citizens of Cuba who arrive at a U.S. airport cannot be subjected to expedited removal.
At least if one reads section 235(b)(1)(F) literally, however, resumption of diplomatic relations with Cuba will remove Cuban natives and citizens from its coverage, leaving them subject to expedited removal at airports.  Perhaps one could argue that the provision refers to a fixed set of countries with which the United States had no diplomatic relations as of the enactment of IIRIRA, but a contrary literal reading is at least possible. Since one who is expeditedly removed after failing to establish a credible fear of persecution generally will not then be paroled or admitted into the United States, greater availability of expedited removal for natives and citizens of Cuba following resumption of diplomatic relations with Cuba would indirectly reduce the availability of adjustment under the CAA.
DHS is not required to place Cuban natives or citizens into expedited removal proceedings simply because they are eligible for such treatment, however.  As the BIA clarified in Matter of E-R-M- & L-R-M-, a case involving natives and citizens of Cuba who had applied for admission at a land port of entry rather than an airport and thus were not covered by 235(b)(1)(F), DHS has prosecutorial discretion to place arriving aliens in removal proceedings under INA §240 even if they would otherwise be amenable to expedited removal.  DHS also has discretion to parole such arriving aliens under INA §212(d)(5) rather than placing them into any sort of removal proceedings.
For this reason, the resumption of diplomatic relations will not have an effect on the availability of CAA relief unless DHS wishes it to.  However, natives and citizens of Cuba who are considering arriving at a U.S. airport in order to seek parole and ultimately adjustment of status under the CAA should keep in mind that, following the resumption of diplomatic relations with Cuba, they will be at greater risk of expedited removal.
David Isaacson

ZOMBIE PRECEDENTS, THE SEQUEL: HOW RECENT DECISIONS OF THE SECOND CIRCUIT AND THE BIA POINT TO A BETTER WAY OF DEALING WITH PRECEDENT DECISIONS THAT HAVE BEEN VACATED BY A COURT

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In my October 2014 post The Walking Dead: Why Courts of Appeals Should Not Defer to BIA or Attorney General Precedent Decisions that Have Already Been Vacated by Another Court of Appeals, I discussed why such vacated “zombie precedents” should not be given deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), by Courts of Appeals that address subsequent unpublished BIA decisions purporting to rely on them.  Recent decisions of the Court of Appeals for the Second Circuit and of the Board of Immigration Appeals (“BIA”) provide additional support for that suggestion.

On April 9, 2015, the Court of Appeals for the Second Circuit issued its opinion in Lugo v. Holder.  In that case, Ms. Lugo disputed whether her 2005 conviction for misprision of a felony under 18 U.S.C. §4 constituted a crime involving moral turpitude (“CIMT”).  She had been found barred from cancellation of removal based on the Immigration Judge’s ruling that misprision was indeed a CIMT, as the BIA had held in Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006).  The BIA had affirmed the Immigration Judge’s ruling in an unpublished decision.

As the Second Circuit discussed in Lugo, the BIA had originally held in Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966) that misprision of felony was not a CIMT.  In Matter of Robles-Urrea, however, the BIA agreed with the decision of the Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), to the effect that misprision of felony under 18 U.S.C. §4 was in fact a CIMT, and overruled Matter of Sloan in relevant part.  Subsequently, the Court of Appeals for the Ninth Circuit vacated Matter of Robles-Urrea in Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), and held that misprision of felony was not categorically a CIMT.  (The complicated history of the case law regarding whether misprision of felony is a CIMT was also discussed in Cyrus D. Mehta’s March 2014 post on this blog, Was the Attorney Really Ineffective in Kovacs v. United States?.)

The Second Circuit therefore held in Lugo that it was “left to wonder whether, going forward, the Board wishes to adopt the Ninth Circuit’s rule or the Eleventh Circuit’s.” Lugo, slip op. at 3-4.  It concluded that “it is desirable for the Board to clarify this matter in a published opinion.”  Lugo, slip op. at 4.  The Second Circuit remanded to the BIA to enable to answer both this question and a related question regarding retroactivity: that is, whether Matter of Robles-Urrea could appropriately be applied to Ms. Lugo even if the BIA otherwise wished to follow it, given that Ms. Lugo had pled guilty prior to the issuance of that published opinion.

One way to look at what the Second Circuit did in the first portion of its remand in Lugo is as an admirable refusal to defer to a zombie precedent.  Having been vacated by the Ninth Circuit in Robles-Urrea v. Holder, the BIA decision in Matter of Robles-Urrea fits the description of a zombie precedent as discussed in my post The Walking Dead.  It had been cancelled, rescinded, by a competent court, and thus, since “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013), it was properly seen as “not precedent.”  Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012).  The non-precedent decision in Lugo’s own case, meanwhile, was not entitled to deference because, as the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference.”  The Second Circuit therefore properly vacated the nonprecedential decision in Lugo’s case and remanded to the BIA for the issuance of a precedential decision.  That is, the Second Circuit did in Lugo essentially what I had suggested in The Walking Dead, and earlier in Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, that it should have done in Luna Torres v. Holder, No. 13-2498 (August 20, 2014).  Hopefully, this may be the start of a trend of Courts of Appeals not deferring to zombie precedents, but instead remanding to the BIA for further precedential analysis of whether the BIA wishes to follow in the footsteps of a prior precedent decision vacated by another Court of Appeals, or instead wishes to accede to the Court of Appeals decision which vacated that prior precedent.

The Second Circuit’s decision in Lugo is not the only recent development that I would submit gives support to my previously expressed views regarding zombie precedents.  As discussed in my prior post, the BIA has been known to reverse course and abandon a precedent following its rejection by one or more Courts of Appeals.  Earlier examples included Matter of Silva, 16 I&N Dec. 26 (BIA 1976), where the BIA acquiesced in the Second Circuit’s decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (regarding the availability of relief under former INA §212(c)) rather than insisting on its own contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971), and Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), where the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005) (regarding the exercise of portability under INA §204(j) in immigration court proceedings), after its rejection by several Courts of Appeals, including the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007).  I acknowledged in The Walking Dead that the BIA has in some instances made a precedential choice to reaffirm the reasoning of a prior precedent even after its rejection by multiple circuits, and gave as an example Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012): in that case, the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding regarding the ineligibility of certain Lawful Permanent Residents for waivers of inadmissibility under INA §212(h) had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it.  The BIA has now changed its mind on that point.

In Matter of J-H-J-, 26 I&N Dec. 563 (BIA 2015), decided on May 12, the BIA withdrew E.W. Rodriguez and  Koljenovic in light of the rejection of the theory underlying them by nine Courts of Appeals.  The immigration court proceedings in Matter of J-H-J- had taken place within the jurisdiction of the Court of Appeals for the Eighth Circuit, which had, in Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014), accepted the BIA’s reasoning in E.W. Rodriguez and  Koljenovic as a reasonable interpretation of the statute.  Thus, the BIA was free to reaffirm E.W. Rodriguez and  Koljenovic in the case if it so wished.  However, given “the overwhelming circuit court authority,” Matter of J-H-J-, 26 I&N Dec. at 564, and the importance of “uniformity in the application of the immigration laws”, id. at 565 (citing Matter of Small, 23 I&N Dec. 448, 450 (BIA 2002)), the BIA instead held that “section 212(h) . . . only precludes aliens who entered the United States as lawful permanent residents from establishing eligibility for a waiver on the basis of an aggravated felony conviction.” Matter of J-H-J-, 26 I&N Dec. at 565.

Strictly speaking, E.W. Rodriguez and  Koljenovic were not zombie precedents as I have defined that term, never having been themselves vacated by a court.  However, the BIA’s overruling of those precedents in Matter of J-H-J- is, like Matter of Silva and Matter of Marcal Neto before it, an example of the BIA’s willingness to reconsider its own precedent in light of contrary appellate case law from outside the circuit having appellate jurisdiction over the case at hand.

Against this background, it makes increasingly little sense for courts to implicitly assume that the BIA would necessarily insist on following in the footsteps of a precedent decision which has already been vacated by a Court of Appeals.  Rather than giving deference to a zombie precedent, the Courts of Appeals should remand to the BIA for reconsideration of whether it wishes to follow in the footsteps of that precedent, as the Second Circuit did in in Lugo.

David Isaacson

A PRELIMINARY ANALYSIS OF THE FIFTH CIRCUIT ORAL ARGUMENT ON THE APPLICATION FOR STAY IN TEXAS V. UNITED STATES

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On Friday, April 17, 2015, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments on the motion by the United States for a stay pending appeal of the preliminary injunction issued by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas in Texas v. U.S., which currently prevents implementation of the DAPA and expanded DACA programs set out in a November 20, 2014 Memorandum of Secretary of Homeland Security Jeh Johnson.  The decision on the motion for stay will not be the last word with respect to the preliminary injunction, which is the subject of a pending expedited appeal with briefing scheduled to be completed by mid-May and oral argument possible over the summer.  However, the decision on the motion for stay will determine whether implementation of DAPA and expanded DACA can resume immediately.

In a previous blog post, I provided some initial reaction to the Memorandum and Order in which Judge Hanen issued his injunction.  Having listened to the recording of the oral argument that is available online, it seemed appropriate to provide some initial reactions to the oral argument as well.  Nicholas Espiritu of the National Immigration Law Center, who was actually present at the argument, provided his own recap in a blog post that I would urge readers to review, but I think it is possible that reviewing the recording may make it possible to pick up some things that were less obvious in person—although since a recording still has some disadvantages relative to a transcript, it is also possible that the below may contain errors, for which I apologize in advance.

As background, the three Fifth Circuit judges on the panel hearing the motion for stay were Judge Jerry E. Smith, appointed to the Fifth Circuit by Ronald Reagan in 1987; Judge Jennifer W. Elrod, appointed to the Fifth Circuit by George W. Bush in 2007; and Judge Stephen A. Higginson, appointed to the Fifth Circuit by President Obama in 2011.  Texas was represented by state solicitor general Scott A. Keller, and the United States by Acting Assistant Attorney General Scott A. Mizer.

Near the beginning of the argument, Judge Elrod offered an extensive hypothetical regarding the question of reviewability: would the states be able to sue, she asked, if the administration gave something like DAPA to all of the aliens present without authorization?  What about if the administration gave that same population voting rights?  The goverment’s attorney, AAG Mizer, responded that the states wouldn’t have standing in the hypothetical case of DAPA being greatly expanded, although there might be competitor standing by other workers.  In the voting hypothetical, however, he indicated that the states would probably have standing because the Voting Rights Act has provisions giving special rights and thus standing to states.

On the topic of reviewability, Judge Higginson asked whether expanding deferred action and thereby vastly expanding the class of people eligible for employment authorization might be reviewable, despite the existence of the longstanding regulations regarding employment authorization for deferred action recipients, if employment authorization through deferred action had previously been available to a smaller class of people.

Judge Elrod raised the issue of the district court’s factual finding that there is not an actual exercise of discretion by USCIS, and whether it is necessary to overcome a clear-error standard of review in order for the government to prevail with regard to that finding—a point that she revisited later in the argument.  The argument was based on the agency’s alleged practices in adjudicating applications for the original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, which was not challenged by the plaintiff States and is not affected by the injunction; Judge Hanen effectively found that DHS had not exercised discretion in the 2012 DACA program and so would not exercise discretion with DAPA and expanded DACA.  Judge Higginson, in response, made an interesting point about how the fact the agency is removing more people than ever before may rebut the suggestion that DHS is being pretextual in claiming that they are exercising discretion.

Judge Elrod then raised the issue of whether the government has been disingenuous in the litigation, and whether that influences a credibility determination.  (On the question of whether the attorneys for the government indeed had breached any ethical obligations, I would refer the reader to an AILA Leadership Blog postby Cyrus D. Mehta in his capacity as Chair of the AILA Ethics Committee, and the related more comprehensive paper from the AILA Ethics Committee, “Judge Hanen’s Troubling Accusations of Unethical Conduct in Texas v. United States of America”.)  The district court, AAG Mizner pointed out in response, considered “public safety” denials of the original 2012 DACA as not being discretionary, which is not really fair, since protecting public safety is a major discretionary factor.

Judge Higginson pointed out, with regard to the question of alleged disingenuousness and credibility, that the district court doesn’t actually seem to have made any credibility finding regarding the competing affidavits of USCIS union official Kenneth Palinkas and USCIS Associate Director for Service Center Operations Donald Neufeld, who had offered vastly different accounts of how applications are processed.  That goes to Judge Elrod’s earlier point regarding the finding of fact, since it would seem to be error to make such a finding while simply ignoring a contrary affidavit and without having held an evidentiary hearing to resolve any credibility issues.

Returning to the question of standing and reviewability, the government noted that “Texas has been here before” in terms of trying to sue the US government about immigration policy, in 1997, and lost.  AAG Mizner further pointed out that 8 U.S.C. 1252(g), and the Supreme Court’s decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), interpreting that section, argue against anybody being able to sue regarding prosecutorial discretion—if even disappointed aliens can’t sue regarding the exercise of such discretion, then why would states, who have no role in immigration, be able to do so?

Continuing with the standing discussion, Judge Smith directed AAG Mizer to the Supreme Court’s decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which he considered to be a key case on the standing issue.  Mizer responded, first, that there isn’t a territorial effect in this case as in Massachusetts, where the state’s territory was being affected (by rising sea levels resulting from global warming).  Also, the specific statute in Massachusetts v. EPA gave a specific right to sue, while the INA, Mizer argued, “is not enacted to protect the states”.

Mizer moved on to an interesting hypothetical about the problem with Texas’s standing argument.  Take the case of thousands of paroled Cubans, for example, who then became eligible to adjust status (under the Cuban Adjustment Act).  On Texas’s theory, if the paroled aliens moved to Texas, then Texas would have a judicially cognizable harm.  But to find standing for Texas under such circumstances, Mizer said, would be inconsistent with the FAIR v. Reno decision of the D.C. Circuit, which rejected a challenge to an agreement between the US and Cuba that would have such an effect.  Indeed, if Texas is right, Mizer argued, then they would be able to challenge an individual decision to grant a single person asylum, because if that person then gets a Texas driver’s license, it’s a harm to Texas.

Judge Elrod asked about why the US didn’t address the constitutional arguments made by the plaintiffs below (and not passed upon by the District Court).  Given the burden is on the government, she suggested that this might mean the government would lose at the stay stage.  Between this, the earlier noted questions from Judge Elrod, and a question soon thereafter in which Judge Elrod relied on President Obama’s comments at a press conference, rather as Judge Hanen had below, it seemed that Judge Elrod might be leaning in favor of denying a stay, although reading the proverbial “tea leaves” from an oral argument is always tricky.

Judge Higginson next returned to a variant of his point about the potential significance of DHS’s high number of removals, noting that the “abdication” theory propounded by Judge Hanen doesn’t make sense given that high number.

Judge Higginson followed up with an interesting hypothetical question about what would happen if the next administration flipped the priorities and went after DAPA recipients. AAG Mizer responded that DHS hasn’t bound itself not to change its mind.  Secretary Johnson may have bound his subordinates, but he has not bound the agency.

Returning to the question of standing, Judge Smith asked about the “special solicitude” that Massachusetts v. EPA says is afforded to the states.  Mizer says the immigration context is different than that case, because the Supreme Court has said in Arizona v. United States that the states can’t enact laws to conflict with federal immigration policy; why should the states be able to file a lawsuit to the same end?

Judge Elrod then asked AAG Mizer about whether “lawful status” is a benefit and about the difference between this and the Watt case, that is, Watt v. Energy Action Education Foundation, 454 U.S. 151 (1981).  Regarding Watt, Mizer’s response was to point out that California actually had a statutory interest in sharing the revenues from the program at issue in that case.  Regarding “legal status”, Mizer stated that deferred action is not a lawful status, just lawful presence. There followed a somewhat confused discussion of what exactly lawful presence is.  AAG Mizer ultimately pointed out that it doesn’t matter a great deal as a practical matter if one has lawful presence under DAPA, because DAPA beneficiaries already had more than a year of unlawful presence to begin with, and would thus already have sufficient unlawful presence to trigger the 10-year bar (that is, INA §212(a)(9)(B)(i)(II)).

The states’ lawyer, Texas Solicitor General Keller (TSG Keller for short), near the beginning of his argument, tried to pick up the thread regarding lawful presence versus lawful status and make the case that granting “lawful presence” is affirmative government action different than prosecutorial discretion. He couldn’t answer a question whether past deferred action grantees had lawful presence, but suggested that they might not have.  He also seemed near the beginning of is argument to concede that the scale of the program is not “pertinent to the legal doctrines”, though he then said that it “colors whether it is a substantive rule”.

Judge Higginson, picking up on the earlier discussion of lawful presence and lawful status, cited to Arizona v. United States and other case law to say that allowed presence from deferred action is different from lawful status.

TSG Keller moved on to talk about the double deference afforded in this stay posture.  He returned again later in the argument to a discussion of the “stay posture” and the record compiled on an expedited basis.  I found this interesting because to the extent the decision on the motion to stay relies on deference factors unique to the stay context, that suggests that any unfavorable decision on the motion to stay should not be given much deference by the panel that subsequently considers the appeal of the preliminary injunction.

One of the more notable aggressive moments of TSG Keller’s argument was when he claimed that 8 U.S.C. §1324a(h)(3)is only a “definitional” provision, and that the existing regulations regarding employment authorization may not be legal.  Judge Hanen, as I had pointed out in my prior post on this blog, had seemed to ignore that statute and the portion of the regulations, 8 C.F.R. §274a.12(c)(14), authorizing the grant of employment authorization to deferred action recipients.  Suggesting that the statutory provision is nearly meaningless and the regulations potentially invalid is, I suppose, an interesting alternative analytical route, but the argument strikes me as unconvincing, and would have far-reaching and problematic consequences if it did succeed.  This argument by TSG Keller would imply that the courts should read the statute to invalidate, for example, all employment authorization given to applicants for adjustment of status pursuant to 8 C.F.R. §274a.12(c)(9), just because the powers given to the Secretary of Homeland Security (formerly the Attorney General) by the statute to confer such employment authorization happen to be bestowed in the form of a definitional provision.

Another somewhat rocky moment in TSG Keller’s argument pertained to the “abdication” theory of Article III standing mentioned by Judge Hanen, regarding which even Judge Elrod appeared to be skeptical.  Judge Elrod was able to get TSG Keller to clarify that the states would still need to show Article III injury in order to proceed on such a theory of standing.  As examples of such injury, TSG Keller pointed to driver’s licenses, health care and education benefits.

On the question of whether discretion was actually exercised in adjudicating applications under the 2012 DACA program, Judge Higginson pointed out that because of “self-selection bias”, you’d expect a high approval rate.  That is, given that it is up to each applicant whether to seek the benefit, people who aren’t going to qualify for the benefit won’t tend to apply for it.  This seemed a compelling point to me, and Judge Higginson returned to it repeatedly.  This discussion of discretion led to a further discussion of the data, or lack thereof, regarding reasons for refusal and so on in DACA 2012, and why the government didn’t, or couldn’t, provide evidence of discretionary refusals—evidently DHS had not kept track of such discretionary denials separately from other denials.

Also with respect to discretion, Judge Higginson had what I thought was a very interesting point about the perverse incentive that would be created by adopting the states’ viewpoint on what evidences a proper exercise of discretion.  If a high approval rate for those applicants meeting the written policy criteria is evidence of a lack of discretion, does that mean that executive agencies need to be careful not to comply with their written policies too well?  He came back to this again later in the argument.  This too struck me as a compelling point, because the implication of the states’ argument is that executive-branch policies not meant to confer enforceable rights on the public may only be defensible if the administration is careful to be arbitrary and unpredictable, allowing lower-level officers to make decisions without any meaningful guidance from their superiors—which would be a very strange way to run the executive branch, and a very strange policy to mandate as a matter of administrative law.

Judge Higginson also pointed out that in one of the cases the states have cited, the remedy for an agency supposedly not exercising the discretion that it claimed to be exercising was remand to the agency.  But he seemed potentially convinced by TSG Keller’s response that this possibility would be more relevant to the merits than to the stay.

In an interesting exchange towards the end of TSG Keller’s argument, both he and Judge Elrod seemed to say that if it were “just deferred action” this would be a very different case.  It seems to me, however, that the difference is not so clear, because once you get “just deferred action” you are eligible for an EAD under the existing regulations, as I have explained previously.

In his rebuttal argument, AAG Mizer argued that deferred action has always conferred lawful presence, and that Congress has acknowledged that.

Judge Elrod pressed AAG Mizner during his rebuttal regarding what scheme Texas could use to decide whom to give driver’s licenses to, that would not necessarily result in the grant of licenses to DAPA recipients, as the U.S.’s argument had seemed to suggest was possible.  AAG Mizer indicated that Texas could come up with a classification scheme not relying on employment authorization, as long as there was a legitimate state reason for that classification scheme.

Judge Higginson followed up with an interesting question about whether Congressional appropriations sufficient to remove all 11 million unauthorized aliens would mandate that this be done.  AAG Mizer responded there would be an impoundment problem with the funds not being utilized for their intended purpose in that hypothetical, but that the government would still have some residual discretion to consider foreign policy and humanitarian concerns and so on.

Regarding the “status quo” standard for a stay, Mizer points them to Justice O’Connor’s stay opinion in INS v. Legalization Assistance Project, 510 U.S. 1301 (1993) (O’Connor, J., in chambers), regarding the injury that the federal government suffers when the judicial branch interferes in its internal processes.

At the end of the argument, Judge Elrod pushed AAG Mizer regarding whether there would be significant benefits granted during a period after any lifting of the stay that would be difficult to unwind if the preliminary injunction were ultimately affirmed.  She did not seem convinced by his response.

Based on this oral argument, the most difficult prediction appears to me to be what view Judge Smith will take on the merits.  Although it seemed from Judge Smith’s questions regarding Massachusetts v. EPA that he was inclined to find in favor of the plaintiff states with regard to standing, his questions did not reveal his view of the merits to the extent that Judge Elrod’s did.  Judge Higginson was also a bit harder to read than Judge Elrod, but on balance it seems from the oral argument that he is more likely to favor the federal government’s position.  Even if Judge Smith and Judge Elrod were both to agree that the plaintiff states had standing, however, a stay could still be granted if Judge Smith were to agree with Judge Higginson’s apparent view of the federal government’s likelihood of prevailing on the merits.  While I am not sure how likely such an outcome is, it is not a possibility that I would entirely rule out based solely on the oral argument.

Cora-Ann Pestaina

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

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by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.