Cora-Ann Pestaina

WHY WAS MY PERM SELECTED FOR AUDIT AND/OR SUPERVISED RECRUITMENT? #thatawfulmoment

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The filing of a labor certification is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. 

Foreign nationals (and their employers) often want to know why their PERM was selected for audit while PERMs filed on behalf of their colleagues were approved without audit. Many PERM practitioners are familiar with that awful moment when the PERM application for the foreign national who desperately needed a quick approval was issued a Notification of Supervised Recruitment signaling another year, or maybe even two!, on the scary PERM roller coaster. The mystery behind the PERM audit and supervised recruitment process has been no coincidence. The Department of Labor (DOL) has purposefully left employers in the dark about their selection process and frequently shifts their mechanisms all to protect against fraud. Solicitor of Labor Gregory F. Jacob once stated, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.”  

Nevertheless, through trial and error, certain triggers have been identifiable. We know that PERM applications can be selected for audit for reasons such as random selection; a foreign language requirement; a family relationship between the employer and the alien; an alien with ownership interest in the employer; layoffs in the same or related occupation; a combination of occupations; and more recently because the alien will telecommute; or the employer utilized an employee referral program. Some audits may also be chosen based upon the industry, the employer or the occupation. In recent times, the DOL has increased Supervised Recruitment for IT employers who will employ the foreign national in a roving or telecommuting position.

The DOL has now shed some much appreciated light on its audit and supervised recruitment selection mechanisms. On January 31, 2014, the DOL’s Office of Foreign Labor Certification (OFLC) published the following statement on its website (http://www.foreignlaborcert.doleta.gov/):

Section 212(a)(5)(A) of the Immigration and Nationality Act requires the Secretary to certify the admissibility of a foreign national for employment only when the Secretary can certify that the employment of that foreign worker will not adversely impact the wages and working conditions of US workers similarly employed, and that there is a job opportunity for which a US worker is unavailable. As the regulated community knows, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is responsible for maintaining the integrity and compliance of the primarily attestation-based PERM Program through the use of certain measures, including audit and supervised recruitment, under a broad integrity review authority. At the time of PERM’s implementation, the Department stated that OFLC would select certain applications for audit, employing “auditing techniques that can be adjusted as necessary to maintain program integrity”, as well as for quality control. 69 Fed. Reg. 77326, 77328 (Dec. 27, 2004). The Department noted at the time the need for changing audit criteria to focus integrity efforts on program abuse and adjust the audit mechanism as necessary as we gained program experience. 69 Fed. Reg. 77359. Finally, the Department reserved the process of supervised recruitment for a broad application “in any case in which the C[ertifying] O[fficer] deems it appropriate” as a reasonable quality control mechanism. 69 Fed. Reg. 77360, 77362. 

In response to a recent Freedom of Information Act (FOIA) request, we are releasing and making available to all of the regulated community the following documentation regarding the areas in the PERM Program that  have in the past warranted this closer examination. Click here to view the OFLC Audit Plan. These areas were deliberately chosen to ensure we are carrying out our statutory responsibilities while also recognizing the evolving nature of program integrity and quality control.

We hope the publication of this information assists filers, especially first-time filers, comply with the PERM Program’s various requirements.

The OFLC Audit Plan presents Audit and Supervised Recruitment Tiers which specify the types of cases that will be targeted for Audit Review and tagged for Supervised Recruitment. As the DOL has indicated, this plan is being released in response to a FOIA request. Past practice informs us that the DOL would certainly have preferred to continue keeping us in the dark. The plan is dated March 19, 2013 and there is no way to know whether these audit and Supervised Recruitment tiers remain active or whether new tiers have since been added. However, this information does reveal the DOL’s thinking with respect to audits and Supervised Recruitment and helps shed some light on the reasons why certain PERM applications are selected. According to the plan, there are eight (8) active tiers and (4) suspended tiers.  

The active audit tiers are as follows:

TIER ONE: PERMs will be audited if the primary requirement in Section H, Field 4 of the ETA Form 9089 is less than a Bachelor’s degree, e.g. “none”, “Associates” or “High School” AND the position is not classified under SOC Code 45-2093.00 – Farmworkers, Farm, Ranch, and Aquacultural Animals in Section F on the ETA Form 9089. 

TIER TWO: PERMs will be audited where the SOC Code in Section F, Field 2 on the ETA Form 9089 matches one or more of the trade related occupations contained in an attachment. 

The attachment was not published. However, this list would presumably include positions like Plumber, Electrician, Helpers-Carpenters or Helpers-Painters.  It is conceivable that these cases would be audited so that the employer can present its proof that an available US worker could not be found since it is typically easier to find U.S. workers in the trade occupations.

TIER FOUR:  PERMs will be audited where the employer is a public school listed on an attachment entitled PUBLIC SCHOOLS TO AUDIT. 

The attachment was not published.

TIER FIVE:  The DOL will audit 50% of PERMs where the offered position requires a degree but does not require any experience. This will be determined by the information presented in Section H, Field 4 and Section H, Field 6 of the ETA Form 9089. 

The logic behind this tier is confusing. It is possible for the employer to indicate a degree requirement in Section H.4; indicate “No” in Section H.6 and yet require experience for the offered position. Section H.6 asks “Is experience in the job offered required for the job?” Section H.10 asks “Is experience in an alternate occupation acceptable?” It is therefore possible for an employer to require no experience in the offered position but instead to require experience in an alternate occupation.  Employers commonly offer positions where experience in the job offered is not required but experience in a related position is required. For example, ABC, Inc. may require two years of experience as a Marketing Analyst for the offered position of Marketing Manager. Accordingly, the ABC, Inc. will indicate “NO” to the question in Section H.6 regarding whether experience in the job offered is required and then answer “YES” to the question in Section H.10 indicating that experience in an alternate occupation is acceptable. Also, in Section H.10-A, ABC, Inc. will indicate the number of months of experience required in the alternate occupation. This means that the experience listed in Section H.10-A is the primary experience requirement rather than an alternate requirement. In FAQs Round 10, the DOL, in the context of a question concerning the need to include the Kellogg language (language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc)) on the ETA Form 9089, confirmed that it is perfectly acceptable for an employer to require experience in an alternate occupation and not in the job offered.  But based on the information provided on the OFLC Audit Plan, there is a 50% chance that ABC, Inc.’s PERM application will trigger an audit for supposedly requiring a degree and no experience. 

Considering the additional processing time brought on by an audit (currently, in its audit queue, the DOL is only processing PERMs filed in October 2012!), the DOL ought to amend its review under this tier so as not to cause unfair processing delays for employers who actually do require a degree and experience for their offered positions. 

TIER TWELVE:  The DOL will audit 50% of cases where the employer has indicated on the ETA Form 9089 that they have had a layoff.  Specifically, if the employer has answered “YES” in Section I, Field 26 which asks “Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?”

The ETA Form 9089 goes on to ask, “If yes, were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?”

Layoffs have long been considered an audit trigger. With the economy continuing to flounder and many employers still reducing their workforce in order to remain competitive, the DOL will continue to more closely examine the employer’s good faith recruitment of U.S. workers. The PERM regulations at 20 C.F.R. § 656.17(k)(1) state: If there has been a layoff by the employer in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

The issue of layoffs is one that PERM practitioners ought to discuss with employers at the outset of the PERM process. If it has been determined that layoffs have indeed occurred (even just one) then the practitioner must go through the PERM regulatory analysis with the employer. 

The active Audit and Supervised Recruitment tiers are as follows:

TIER SEVEN:  A PERM may be tagged for audit and supervised recruitment if it was submitted after a denial within the same calendar year. Specifically, if the employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Denied _Cases table” AND  the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Denied _ Cases table.” 

This trigger is interesting because if a PERM is erroneously denied, the employer will usually have to decide whether to re-file the application or file a Request for Reconsideration with the Certifying Officer based on which process appears faster. Clearly, refiling may not always prove to be a faster route.  

TIER EIGHT: A PERM may be tagged for audit and supervised recruitment if it was re-submitted after it was withdrawn after audit. Specifically, if the Employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Withdrawn_Cases table” AND the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Withdrawn_ Cases table” AND the “Audit Notification Date” in the “Withdrawn_ Cases table” is not null.

Employers may not be saving themselves any time by withdrawing and re-submitting an audited PERM but in fact, may be delaying the processing of the application by a year or more if it gets selected for Supervised Recruitment.

TIER ELEVEN: A PERM may be tagged for audit and supervised recruitment if it was not filed electronically and had to be manually entered by staff at the Atlanta National Processing Center. 

No employer should knowingly venture down this road.
The OFLC Audit Plan also lists some inactive tiers which are currently suspended and therefore are not triggers for audits or supervised recruitment. These include:

TIER THREE: H-1B Dependent Employers.  

Hopefully this remains where it belongs as a non-trigger.

TIER SIX: Requiring a degree and indicating that the alien’s Class of Admission as H-2A, H-2B or EWI (Entered Without Inspection).

TIER NINE: Employers who recently issued layoffs. 

The DOL has apparently moved away from auditing every PERM indicating a layoff to now auditing only 50% of PERMs which indicate a layoff. 

TIER TEN: Employer with a history of roving. 

Practitioners who routinely file PERMs involving roving employees have definitely noticed that the DOL has calmed down its onslaught of audits and Supervised Recruitment Notifications on these types of PERMs. And it didn’t come a moment too soon.

This OFLC Audit Plan can be extremely helpful. Rather than waiting until the employer or foreign national demands an explanation as to why a PERM was selected for audit or Supervised Recruitment, the above list of active and inactive tiers allows practitioners to better advise employers thereby making the PERM process a tad less fraught with danger. Just a tad though.
David Isaacson

USCIS LIBERALIZES CRITERIA FOR DETERMINING HABITUAL RESIDENCE IN SOME HAGUE CONVENTION ADOPTION CASES: A SMALL STEP, BUT AN IMPORTANT ONE

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By David A. Isaacson 

Under the Immigration and Nationality Act (“INA”), there are three ways that adopted children can qualify as the children of a U.S. citizen parent for purposes of acquiring lawful permanent resident status, and generally derivative U.S. citizen status, through that adoptive parent.  Section 101(b)(1)(E) of the INA, perhaps the most familiar, defines an adopted child as a child for immigration purposes where the child was adopted under the age of 16 (or under the age of 18 and is the sibling of a child adopted by the same parents while under the age of 16), and “has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.”  Sections 101(b)(1)(F) and 101(b)(1)(G) of the INA provide different procedures for children sometimes referred to as orphans, depending upon whether the child is from “a foreign state that is a party to the Convention on Protection of Children in Respect of Intercountry Adoptions, done at The Hague on May 29, 1993,” commonly referred to as the Hague Adoption Convention.  By regulation, according to 8 C.F.R. §204.2(d)(2)(vii)(D), the regular 101(b)(1)(E) procedures based on two years of legal custody and joint residence may not be used to file an I-130 petition for certain children from countries that have subscribed to the Hague Adoption Convention.  In an interim memorandum posted by USCIS on January 3, 2014 (although dated December 23, 2013) and designated PM 602-0095, however, USCIS has indicated that it will somewhat narrow the class of children ineligible for regular 101(b)(1)(E) procedures.

To understand PM 602-0095, it is important to understand the background of the problem that it addresses.  Pursuant to 8 C.F.R. §204.2(d)(2)(vii)(D), which governs I-130 petitions filed for an adopted child based on INA §101(b)(1)(E),

On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective date. In the case of any adoption occurring on or after the Convention effective date, a Form I-130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.

That is, for an adoption completed after the April 2008 effective date of the Hague Adoption Convention, USCIS will not approve an I-130 petition for “a child who was habitually resident in a Convention country” unless “the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.” A list of Convention countries is available on the State Department website.

The reader may wonder at this point why the unavailability of an I-130 petition under INA §101(b)(1)(E)would be a problem for a child from a Hague Adoption Convention country, if Hague Adoption Convention procedures under INA §101(b)(1)(G) can be used instead.  The answer is that the procedures under INA §101(b)(1)(G) are designed for cases in which the petitioner seeks out a child in a foreign country for the specific purposes of adoption and immigration, and are ill-fitted for many cases in which an adoptive relationship already exists before any thought of immigration benefits has entered anyone’s mind, or in which the child already resides in the United States.  For example, one factor ordinarily requiring the denial of a Form I-800 petition under the Hague procedures, according to 8 C.F.R. §204.301(b)(1), is that “the petitioner completed the adoption of the child, or acquired legal custody of the child for purposes of emigration and adoption, before the provisional approval of the Form I-800,” unless “a competent authority in the country of the child’s habitual residence voids, vacates, annuls, or terminates the adoption or grant of custody and then, after the provisional approval of the Form I-800 . . . permits a new grant of adoption or custody.”  Many adoptive parents are understandably horrified at the thought of giving up custody of an adopted child with whom they have had a parental relationship for some time, in order to allow the Hague Adoption Convention procedures to play out.  Also, unless the child was already related to the adoptive parent in one of several ways listed in the regulations at 8 C.F.R. §204.301(b)(2)(iii), any contact with the child’s biological parents before the Hague process begins can be grounds for denial of the I-800 petition under 8 C.F.R. §204.301(b).  Even if these pitfalls are avoided, Form I-800 cannot be approved for a child who is in the United States “unless the petitioner, after compliance with the [regulatory] requirements . . . either adopt(s) the child in the Convention country, or else, after having obtained custody of the child under the law of the Convention country for purposes of emigration and adoption, adopt(s) the child in the United States.”  8 C.F.R. 204.309(b)(4).  Thus, where there is a pre-existing adoptive relationship or other obstacles to the Hague Adoption Convention process would apply, U.S. citizen adoptive parents may be anxious to escape the bar of 8 C.F.R. §204.2(d)(2)(vii)(D) and obtain approval of an ordinary I-130 petition based on two years of legal custody and residence with the child under INA §101(b)(1)(E). 

The regulations make clear one way in which a U.S. citizen petitioner can escape from the bar of 8 C.F.R. §204.2(d)(2)(vii)(D), by demonstrating that the U.S. citizen petitioner is not habitually resident in the United States. According to 8 C.F.R. §204.2(d)(2)(vii)(E), “[f]or purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen . . . to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States.”  That is, so long as the two-year joint residence and physical custody requirements are fulfilled by the petitioner residing with the adopted child outside the United States, an ordinary I-130 petition may be approved under INA §101(b)(1)(E).  USCIS has also clarified, in a Memorandum dated October 31, 2008, and incorporated in relevant part into Chapter 21.4(d)(5)(F) of the USCIS Adjudicator’s Field Manual, that the 8 C.F.R. §204.2(d)(2)(vii)(E) exception is “not the only situation in which the adoptive parent may claim not to have been habitually resident in the United States at the time of the adoption.” Rather, “[t]here may be other situations in which the adoptive parent can establish th[at] he or she was not domiciled in the United States, and did not intend to bring the child to the United States as an immediate consequence of the adoption.”  In such other cases of a non-habitually-resident petitioner, as well, USCIS has recognized that “the Hague Adoption Convention process would not apply.”

Where the U.S. citizen petitioner is admittedly a habitual resident of the United States, but it appears that the adopted child may be a habitual resident of the United States as well (in which case the Hague Adoption Convention procedures again should not apply), things get more complicated.  At least part of the regulations err on the side of presuming that a child who has come to the United States from a Hague Adoption Convention country is still a habitual resident of that country, so that an I-130 petition for that child by a U.S. citizen parent habitually resident in the United States will not be allowed.  Title 8, section 204.2(d)(2)(vii)(F) of the Code of Federal Regulations provides:

For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a Form I-130 under section 101(b)(1)(E) of the Act on behalf of an alien child who is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the child’s arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child’s adoption may file a Form I-800A and Form I-800 under 8 CFR part 204 , subpart C.

Read in isolation, this might suggest that a child who resided in a Hague Adoption Convention country before coming to the United States could never be the beneficiary of an I-130 petition by a U.S. citizen adoptive parent habitually resident in the United States.  Another portion of the regulations, however, provides for a determination regarding the child’s habitual residence:

If the child’s actual residence is outside the country of the child’s citizenship, the child will be deemed habitually resident in that other country, rather than in the country of citizenship, if the Central Authority (or another competent authority of the country in which the child has his or her actual residence) has determined that the child’s status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child’s adoption or custody. This determination must be made by the Central Authority itself, or by another competent authority of the country of the child’s habitual residence, but may not be made by a nongovernmental individual or entity authorized by delegation to perform Central Authority functions. The child will not be considered to be habitually resident in any country to which the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.

8 C.F.R. §204.303(b).  The “Central Authority”, as the term is used here, refers to an entity designated under the Hague Adoption Convention by a Convention country to perform functions under the Convention, as explained in the definitional provisions at 8 C.F.R. §204.301.
             
In its October 31, 2008 Memorandum, USCIS recognized that under certain circumstances, a child resident in the United States should be exempt from the seeming bar of 8 C.F.R. §204.2(d)(2)(vii)(F) to approval of an I-130 petition under INA §101(b)(1)(E), where the Central Authority of the child’s country had determined that the child was no longer a habitual resident of that country.  As the October 31, 2008 Memorandum explained:

There may be situations, however, in which the parent is not able to complete a Hague Adoption Convention adoption, because the Central Authority of the child’s country has determined that, from its perspective, the Hague Adoption Convention no longer applies to the child. The purpose of 8 CFR 204.2(d)(2)(vii)(F) is to prevent the circumvention of the Hague Adoption Convention process. Thus, USCIS has determined that 8 CFR 204.2(d)(2)(vii)(F) must be read in light of the Hague Adoption Convention regulations in subpart C of 8 CFR part 204. If, under subpart C, there is a sufficient basis for saying that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country, then USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) no longer applies.

The governing regulation, 8 CFR 204.303(b), explains when the child is habitually resident in a country other than the country of citizenship. This regulation does not explicitly apply to children in the United States, but USCIS has determined that it can be interpreted to permit a finding that a child who, under 8 CFR 204.2(d)(2)(vii)(F), is presumed to be habitually resident in another Hague Adoption Convention country can be found to be no longer habitually resident [in] that country, but to be habitually resident, now, in the United States. USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) no longer precludes approval of a Form I-130 if the adoption order that is submitted with the Form I-130 expressly states that, the Central Authority of the other Hague Adoption Convention country has filed with the adoption court in the United States a written statement indicating that the Central Authority is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country. A copy of the written statement from the Central Authority must also be submitted with the Form I-130 and the adoption order.

If the adoption order shows that the Central Authority of the other Hague Adoption Convention country had determined that the child was no longer habitually resident in that other Hague Adoption Convention country, USCIS will accept that determination and, if all the other requirements of section 101(b)(1)(E) are met, the Form I-130 could be approved.

October 31, 2008 Memorandum at 5.  As USCIS explained later in PM 602-0095, summarizing prior guidance, a modified version of this process could also be used even if the adoption had already occurred: “In cases where the written statement from the Central Authority in the child’s [country of origin] is not obtained until after the adoption was finalized, petitioners would have to submit an amended order that contains the required language, as well as the written statement.” PM 602-0095 at 2.

This process for the recognition by USCIS of a determination by the Central Authority of the child’s country of citizenship that the child was no longer habitually resident there was based on the assumption that the Central Authority in the country where the child has been habitually resident (referred to by USCIS as the “Country of Origin,” or COO for short) would cooperate in issuing a determination.  Practitioners and USCIS subsequently discovered, however, that the Central Authorities of some of the Hague Adoption Convention countries in which children had been habitually resident  were not willing to cooperate with the process.  As USCIS explained:

The guidance did not completely resolve the problem it was intended to resolve. In some instances, the Central Authority in the COO either cannot or will not take a position concerning whether the child is still habitually resident in the COO. Thus, the adoptive parent(s) may be unable to establish either that the Hague Adoption Convention did not apply to the adoption, or that the adoption was completed in accordance with the Hague Adoption Convention process.

PM 602-0095 at 2-3.  It was “[i]n light of this development” that USCIS provided additional guidance in PM 602-0095, which has been incorporated into Chapter 21.4(d)(5)(G) of the Adjudicator’s Field Manual.

Under PM 602-0095, the previous policy regarding instances in which the Central Authority of the COO has given a determination of lack of habitual residence remains intact.

It remains USCIS policy that USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if the adoption order (or amended order) expressly states that the Central Authority in the COO advised the adopting court that the Central Authority was aware of the child’s presence in the United States, and of the proposed adoption and did not consider the child habitually resident in the COO. The written statement from the Central Authority must accompany the Form I-130 and the adoption order (or amended order).

PM 602-0095 at 3.  However, under certain circumstances, USCIS is now willing to proceed along these  same lines without an affirmative statement from the Central Authority of the COO:

In cases where the COO has a policy of not issuing statements of habitual residence, or where the petitioners show that they have attempted to obtain the statement of habitual residence from the COO for at least 6 months with no response, and the child was not paroled into the United States, USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if:

1.      At the time the child entered the United States, the purpose of the entry was for reasons other than adoption (intent criteria);
2.      Prior to the U.S. domestic adoption, the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States, (actual residence criteria); and
3.      Any adoption decree issued after February 3, 2014, confirms that the COO Central Authority was notified of the adoption proceeding in a manner satisfactory to the court and that the COO did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (notice criteria).

PM 602-0095 at 3.    

Pages 4 through 6 of PM 602-0095 list in detail the required evidence that should be provided in order to establish these criteria to the satisfaction of USCIS, and the other factors that USCIS may consider in regard to these criteria.  In regard to the first criterion, intent at time of entry, one particularly significant requirement is that of an “[a]ffidavit from the petitioning adoptive parent(s),” or “APs,” which USCIS indicates should include:
  • ·         Description of child’s circumstances prior to child’s entry to the United States (i.e., Where did the child live and/or go to school? Who cared for the child? What events led to the child’s travel to the United States? Reason for the child’s travel to the United States?).
  •  ·         List of individuals who have cared for the child since his or her entry into the United States and the relationship to the child.
  •  ·         Description of any contact the adoptive parents had with the child, or any contact with the child’s birth parents, or any adoption or child welfare agency or NGO (in the United States or abroad) related to the child that took place:
(a) before the child came to the United States; or,
(b) after the child’s arrival but before a court placed the child with the AP(s).
  • ·         Sworn statement from AP(s) stating under penalty of perjury that on the date of the child’s entry into the United States the AP(s) did not intend to adopt the child nor intend to circumvent the Hague Adoption Convention procedures.
PM 602-0095 at 4. 

Other “[e]vidence establishing the timeline and course of events that led to the child’s availability for adoption by the adoptive parents” is also important.  USCIS will consider a “court order containing findings related to the child’s purpose for entering the United States, if available”, as well as the results of checks of U.S. government systems regarding entry on a visa or by the Visa Waiver Program.  PM 602-0095 at 4.  “Evidence that the child was a ward of a U.S. State or State court prior to the adoption” will be considered, and “should establish that the child was a ward of a U.S. State or State court prior to the adoption.”  Id. at 4-5.  USCIS will also consider as favorable certain factors which would normally be of relevance in a Hague Adoption Convention process, specifically:
  •          Evidence of birth parent’s inability to provide proper care for the child.
  •          Evidence to establish one or both birth parents are deceased.
  • ·         Evidence to establish any living birth parents freely consented to the proposed adoption OR the birth parents’ parental rights were fully and properly terminated.
Id. at 5.  On the other hand, “[a]ny evidence that suggests that the entry was for the purpose of adoption” will be considered as an adverse favor, and “[a] prior adoption in the COO by AP(s) in United States is a heavily weighted adverse factor, but not a bar.”  Id.

With respect to the Actual Residence criterion, PM 602-0095 presumes that this criterion has been satisfied “if the child was physically present in the United States for two years or more prior to the adoption.” Id. at 5.  Otherwise, a variety of evidence will be considered:

Absent such presumption, adjudicators must consider the length of time that the child has spent in the United States prior to the adoption and supporting evidence establishing the child’s actual residence and compelling ties in the United States prior to the adoption.
O Depending on the child’s age, documentation from the time period prior to adoption
may include:

·         Evidence of continuous medical care in the United States;
·         Statement from petitioners explaining the child’s social interactions, including family and peer relationships;
·         School records;
·         Registration for extra-curricular activities;
·         Affidavits from knowledgeable individuals (such as the child’s doctor or teacher, day care provider, landlord, or neighbors) attesting to the child’s actual residence in the United States;
and/or
·         Evidence that the child’s birth parent, guardian, or caretaker resided in the United States.

Id. at 5.  “A Court order finding that the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States prior to the adoption” will be considered as well, as will “[e]vidence that the child was a ward of the state or court prior to the adoption.”  Id.  “Evidence that the child lived outside of the United States shortly before the adoption” will be counted as adverse evidence in the Actual Residence determination.

For the third, Notice criterion, what is required is, as one might expect, evidence that the COO Central Authority has been notified of the objection and has declined to object or has not responded for the required period.  The “Required Evidence” according to PM 602-0095 for this purpose is:

o Evidence of notice to the COO Central Authority of the pending adoption providing the Central Authority 120 days to object. Notification should include the following language:
·         If you do not intend to object, please notify the court.
·         If you require additional time beyond 120 days, please notify the court.
o Evidence of the COO’s non-objection must be incorporated into the language of the adoption order.

·         If AP(s) filed the Form I-130 with a court order that lacks the COO non-objection language, USCIS may RFE for an amended order. The petitioner(s) do not need to submit the actual statement from the COO, however USCIS may issue an RFE requesting it if necessary.


The new process set out in PM 602-0095 is a significant improvement on the former situation of adoptive parents potentially facing a bar to petition approval if the COO’s Central Authority chose not to get involved in the case, and for that USCIS should be commended.  However, it is not a complete solution, for several reasons.  The current version of PM 602-0095 excludes children whom it ought to have helped, and is unavailable to certain adoptive parents who have done nothing wrong and ought to be able to avail themselves of its protections.

One notable anomaly in PM 602-0095 is that it applies only where “the child was not paroled into the United States.”  The parole exception is presumably designed to avoid the scenario where prospective adoptive parents apply for humanitarian parole for a child with the concealed purpose of adopting that child.  If this is the thinking behind the exception, however, then it appears to be seriously overbroad.  Consider a scenario where a child may have entered on advance parole in connection with a parent’s application for adjustment of status, for example, years before being orphaned by the death of the primary-applicant parent or abandoned by that parent.  If that child, years after entry on advance parole, is adopted by a U.S. citizen, and if the Central Authority in that child’s country of origin will not cooperate with the determination of habitual residence, refusing to allow approval of an I-130 petition for that child serves no apparent policy purpose and appears pointlessly cruel. 

The requirement that “[a]t the time the child entered the United States, the purpose of the entry was for reasons other than adoption,” PM 602-0095at 3, also seems overbroad given the lack of an expressed time limitation.  Logically, intent to adopt a child at the time of the child’s entry into the United States should not be considered problematic if the child’s country of origin, or the United States, were not signatories to the Hague Convention at the time of the entry.  If a child entered the United States before April 1, 2008, for the purpose of adoption, but the adoption was finalized after that time (thus potentially subjecting the child and adoptive parents to the strictures of the Hague Adoption Convention), what purpose is served by denying an I-130 petition filed for such a child who has established compelling ties in the United States, and to whose adoption the COO Central Authority has not objected after being given notice?

The requirement of a sworn statement from the adoptive parent or parents “stating under penalty of perjury that on the date of the child’s entry into the United States [they] did not intend to adopt the child,” PM 602-0095 at 4, is also overbroad in another way beyond the underlying substantive criterion: it is in tension with the notion of dual intent which exists elsewhere in immigration law.  Earlier in PM 602-0095, as discussed above, the substantive criterion is said to be that “the purpose of the entry was for reasons other than adoption.” Id. at 3.  But just as the law recognizes that an H-1B temporary worker may have both a bona fide intent to enter temporarily as a nonimmigrant, and a latent intent to adjust status if possible later on, USCIS should recognize that adults may have the dual intent to provide shelter and temporary guardianship to, for example, an underage F-1 student, while simultaneously having the latent intent to adopt the child later if circumstances develop in such a way that this seems advisable.  (The author thanks Cyrus D. Mehta for inspiration regarding the relevance of the dual-intent notion to this context.)  To require adoptive parents to forswear previous adoptive intent, rather than stating under penalty of perjury that some other legitimate intent besides adoption existed on the date of the child’s entry into the United States, ignores the possibility of dual intent and is in that sense overbroad.

USCIS has offered PM 602-0095 as an interim memo for comment, with the comment period ending on January 17, 2014, and so there may be time to fix these problems.  The author of this blog post will likely submit a comment regarding PM 602-0095 in line with the above observations.  Readers who agree with these observations may wish to consider doing so as well.
David Isaacson

Matter of Douglas: The BIA Confirms That Brand X Can Sometimes be a Force For Good

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On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas, 26 I&N Dec. 197 (BIA 2013).  At first glance, Matter of Douglas is about an interesting but obscure aspect of a section of the Immigration and Nationality Act (INA) that was repealed more than a decade ago.  But perhaps more importantly, Matter of Douglas is also an example of the BIA using its authority to go against Court of Appeals precedent decisions under National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”), to the benefit of an immigrant and potential U.S. citizen rather than to the detriment of the immigrant.At issue in Matter of Douglas was former section 321(a) of the INA, repealed effective February 2001 by the Child Citizenship Act of 2000, which in relevant part replaced INA §321(a) with the simpler rule of current INA §320.  As Matter of Douglas explained, former §321(a)

provided that citizenship was automatically acquired by a child born outside the United States of alien parents under the following conditions:

(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents, is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

Matter of Douglas, 26 I&N Dec. in 198 (emphasis in original).The question in Matter of Douglas was the relevance of the order in which the conditions of former INA §321(a) were satisfied.  As the BIA explained, Mr. Douglas

was born in Jamaica on January 29, 1976, to his married parents, each of whom was a native and citizen of Jamaica. On December 14, 1981, [Mr. Douglas] entered the United States as a lawful permanent resident. [Mr. Douglas]’s mother was naturalized on April 13, 1988. His parents were divorced on July 25, 1990. [He] became 18 years old in 1994.

Matter of Douglas, 26 I&N Dec. at 198.  That is, Mr. Douglas’s mother became “the parent having legal custody of the child when there has been a legal separation of the parents” under former INA §321(a)(3) only after she was naturalized, having been naturalized in 1988 and divorced in 1990.  Both of these events, however, happened while Mr. Douglas was a lawful permanent resident and before he reached the age of 18, in compliance with former INA §321(a)(4)-(5).In its earlier decision in Matter of Baires, 24 I&N Dec. 467 (BIA 2008), the BIA had held that “A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act . . . before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization.”  Matter of Baires, 24 I&N Dec. at 467.  Under this rule, Mr. Douglas would be a U.S. citizen.  Case law of the U.S. Court of Appeals for the Third Circuit, however, as the BIA acknowledged, required that one seeking to show acquisition of citizenship under former INA §321(a)(3) demonstrate “that his [parent] was naturalized after a legal separation from his [other parent],” rather than before such a separation.  Jordon v. Att’y Gen., 424 F.3d 320, 330 (3d Cir. 2005)(alterations in original) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)).  In Matter of Baires, the BIA had noted the Third Circuit case law, but had indicated that “we are not bound by the Third Circuit decisions on which the Immigration Judge relied because this case is within the jurisdiction of the Fifth Circuit.” 24 I&N Dec. at 469.  The proceedings in Matter of Douglas, however, had taken place within the jurisdiction of the Third Circuit, and so the BIA had to decide whether to follow Matter of Baires or the Third Circuit’s decisions in Jordon and Bagot.

The BIA chose to follow Matter of Baires, rather than Jordon and Bagot, and so found Mr. Douglas to be a U.S. citizen and terminated his removal proceedings.  Under Brand X, as the BIA explained, an administrative agency such as the BIA can sometimes be entitled to “Chevrondeference” pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) regarding its interpretation of a statute, even when there has been a prior court interpretation of the statute going the other way, so long as that court did not find that the statute unambiguously supported its interpretation.  Believing that its interpretation in Baires was a reasonable interpretation of the statute, and that Jordon and Bagot had not interpreted the statute to be unambiguous, the BIA concluded that under Brand X it could and would follow Baires, rather that Jordonand Bagot, even in the Third Circuit.

It appears that this may be the first time that the BIA has explicitly relied on Brand X to rule in favor of the immigrant respondent.  The BIA has, to be sure, previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit’s decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant’s literal “last arrival” even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock).  The proceedings underlying Matter of F-P-R-, however, appear to have taken place in the Ninth Circuit, not the Second, see 24 I&N Dec. at 682 (referring to “the absence of any controlling decisions on the issue from either the United States Court of Appeals for the Ninth Circuit or the Board”), and so the BIA did not have to determine whether it would follow Joaquin-Porras within the Second Circuit.  Here, in contrast, the BIA held that it would not follow Jordon and Bagot even within the Circuit that had decided them.  And while there was a footnote in the BIA’s acclaimed decision inMatter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit’s previous decision in Cheruku v. Att’y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6.  It appears that Matter of Douglas may be the first BIA decision to go flatly against a contrary Circuit precedent under Brand X and do so to the benefit of the immigrant respondent.

The possibility of using Brand X as a force for good has been raised before, notably by Gary Endelman and Cyrus D. Mehta in their articles on “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, as well as their post on this blog which explained how the BIA’s decision in Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), implementing the Supreme Court’s striking down of Section 3 of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013), effectively overruled the Ninth Circuit’s earlier decision in Adams v. Howerton, 637 F.3d 1036 (9th Cir. 1982) in regard to recognition of same-sex marriages for immigration purposes.  Like Matter of F-P-R-, however, Matter of Zeleniak had not explicitly relied on Brand X.  In this regard, Matter of Douglas is a significant step forward.Of course, Brand X is not always a force for good.  Less than a year ago, for example, the BIA decided in Matter of M-H-, 26 I&N Dec. 46 (BIA 2012), that it would disregard the Third Circuit’s decision in Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006), and follow its own prior decision in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), so as to consider even some crimes that are not aggravated felonies as “particularly serious crimes” which can bar withholding of removal.  The merits of Matter of M-H- (which this author considers dubious) are beyond the scope of this blog post, but it is only one example of the fact that the BIA can seek to rely on Brand X to strip applicants for relief of protection that a Court of Appeals has given them.  Also within the last year, the BIA invoked Brand X in Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), to find that violation of California Penal Code 314(1), regarding indecent exposure, was categorically a crime involving moral turpitude, despite the contrary decision of the Court of Appeals for the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010).  Nor are these the only examples; an exhaustive list of all instances in which Brand X has been invoked by the BIA to the advantage of the Department of Homeland Security and the disadvantage of an immigrant would unnecessarily lengthen this blog post.Now that the BIA has acknowledged in Matter of Douglas that Brand X is not a one-way ratchet and can also work in favor of immigrants, however, it is important for practitioners to keep Brand X in mind when they are faced with unfavorable Court of Appeals case law interpreting an ambiguous immigration statute.  Especially where existing BIA case law in other circuits is more favorable, an unfavorable Court of Appeals decision in a particular circuit need not be the last word.

David Isaacson

THE SECOND CIRCUIT AMENDS SHABAJ v. HOLDER: WHAT HAPPENED TO FOOTNOTE 4? HAS THE POTENTIAL AVAILABILITY OF JUDICIAL REVIEW OF USCIS DECISIONS BEEN ALTERED?

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By David A. Isaacson

On April 25, 2013, the U.S. Court of Appeals for the Second Circuit released an amended opinion in Shabaj v. Holder, docket number 12-703.  The prior opinion in Shabaj was the subject of a previous post on this blog.  To summarize, Shabaj held that a claimed error by the USCIS Administrative Appeals Office (AAO) in analyzing whether an applicant for a waiver of inadmissibility under INA §212(i) had shown extreme hardship could not be reviewed by a district court, because the jurisdiction provided by 8 U.S.C. §1252(a)(2)(D) to review constitutional claims and questions of law is only available on a petition for review to a court of appeals.  (This is a very brief summary of a more complex issue; for additional details, readers are referred to the above-linked previous blog post.)
The only changes in the amended Shabaj opinion are in the footnotes, but one of those changes has particularly interesting implications.  Although the amended opinion adds a new footnote 3 addressing why a statutory reference to the Attorney General applies to the Secretary of Homeland Security (and makes a slight formatting change at footnote 2), the particularly interesting part is the change in what was formerly footnote 4 and is now footnote 5.
In the old footnote 4, the Court of Appeals sought to explain why Shabaj could not have simply filed a petition for review invoking its §1252(a)(2)(D) jurisdiction under his particular circumstances, but suggested that others under similar circumstances could do so:

Indeed, this Court denied Shabaj’s petition for review of his removal order over two years ago. See Shabaj, 602 F.3d at 106. Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.

As explained in my previous post on the original Shabaj opinion, the procedure for judicial review that this footnote seemed to point to would be interesting but not unprecedented:

The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order, to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

In its amended opinion, however, the Court of Appeals has removed the language that was previously in footnote 4.  In its place, the Court of Appeals wrote in the new footnote 5:

The government contends that a petitioner could never file a “petition for review” of a CIS hardship determination because petitions for review are only available for challenges to orders of removal, and CIS determinations are not made as part of removal proceedings. However, we need not decide whether a petitioner could file a “petition for review” of a CIS hardship determination directly with this court because, in this case, Shabaj filed his legal challenge in the district court, which indisputably lacked jurisdiction under § 1252.

The question that arises is whether this amendment of the Shabaj decision has any effect on the jurisdictional possibilities that may exist in the Second Circuit for judicial review of USCIS waiver determinations.

Certainly, the new Shabaj footnote 5 does not purport to preclude the sort of petition for review that the original Shabaj footnote 4 endorsed.  Rather, the Court of Appeals has explicitly chosen not to address the issue of whether such a petition for review is possible, while noting that the government, as one might expect, contends that it is not. Thus, it still remains possible for others, under appropriate circumstances as described in my previous blog post, to argue for judicial review of a USCIS determination that is in some sense either incorporated into an order of removal, as in Orquera, or constitutes a refusal to reopen an order of removal, such that the USCIS denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006). The Court of Appeals would then need to face the issue that it avoided as unnecessary in its amended Shabaj opinion.

Also interestingly, the new footnote 5 does not preclude the possibility that Mr. Shabaj or someone else in a similar position could have reopened his removal proceedings, in the way that the old footnote 4 seemed to assert such reopening was necessarily impossible.  Assume, for example, that Mr. Shabaj or someone else who had entered under the Visa Waiver Program had not actually waived his right to review in the way that the statute and regulations suggest he should have been required to.  Like the petitioner in Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011), whom the Second Circuit held could not simply be assumed to have waived his rights to removal proceedings, such a petitioner would properly be able to attack his removal order despite his Visa Waiver Program entry.  

Perhaps for this reason, the Second Circuit declined, in its amended opinion, to necessarily rule out the possibility of such judicial review; it said in the new footnote 5 merely that, regardless of whether or not Mr. Shabaj could have filed a petition for review directly with the Court of Appeals, he had not in fact done so.  While that might raise the question of whether Mr. Shabaj’s lawsuit in the district court should have been considered as a petition for review filed in the incorrect venue and transferable to the Court of Appeals in the interest of justice under 28 U.S.C. §1631, it is possible that such relief was not requested or considered, perhaps because the lawsuit evidently was not filed within 30 days of the final administrative order as a petition for review would need to have been (the original and amended opinions both indicate that Shabaj’s appeal to the USCIS AAO was dismissed on May 2, 2011, and his lawsuit filed on July 14, 2011).

Thus, while the amended Shabaj decision has deleted language which seemed to give the blessing of the Court of Appeals to a creative strategy for seeking judicial review of certain USCIS decisions, it has not precluded such a strategy.  In addition, it may implicitly have acknowledged that some Visa Waiver Program entrants, in circumstances similar to Mr. Shabaj’s, could in fact reopen their removal proceedings and seek relief in that way.


David Isaacson

SHABAJ V. HOLDER: HAS THE COURT OF APPEALS FOR THE SECOND CIRCUIT SPLIT WITH THE THIRD CIRCUIT ON JUDICIAL REVIEW OF CERTAIN USCIS APPLICATION DENIALS? WHAT SORT OF JUDICIAL REVIEW OF USCIS LEGAL ERRORS REMAINS AVAILABLE?

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On January 15, 2013, the Court of Appeals for the Second Circuit issued a precedential decision in the case of Shabaj v. Holder, No. 12-703.  Paulin Shabaj, the plaintiff in the case, had come to the United States in November 2000 with a false Italian passport and sought asylum.  His asylum application was ultimately denied, but while in asylum-only proceedings before an immigration court, he had married a U.S. citizen in July 2005.  Although USCIS determined Mr. Shabaj’s marriage to be bona fide and approved his wife’s I-130 petition, it denied his application for a waiver under INA § 212(i) of his inadmissibility due to his previous fraud, and denied his related application for adjustment of status.  Mr. Shabaj filed a lawsuit in the U.S. District Court for the Southern District of New York, challenging the determination of the USCIS Administrative Appeals Office (AAO) that he had failed to demonstrate that his wife would suffer extreme hardship if he were removed from the United States.  The Second Circuit, in its recent decision, affirmed the District Court’s decision that it lacked jurisdiction to review this denial, even though Mr. Shabaj asserted “that CIS’s decision to deny his section 212(i) waiver application was erroneous as a matter of law.”  Shabaj, slip op. at 4.

As the Second Circuit indicated in Shabaj, there is a specific provision in the second subparagraph of section 212(i) stating that “[n]o court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver [of inadmissibility] under paragraph (1).”  8 U.S.C. § 1182(i)(2).  There is also a more general provision regarding judicial review of discretionary relief, 8 U.S.C. § 1252(a)(2)(B), which provides that “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under” various sections of the INA providing for discretionary relief, including INA § 212(i).  Shabaj sought to rely on the exception provided by 8 U.S.C. § 1252(a)(2)(D) that preserves jurisdiction over “constitutional claims or questions of law,” but the Second Circuit rejected this argument because § 1252(a)(2)(D) applies to “constitutional claims or questions of law raised upon a petition for review filed in an appropriate court of appeals”; Shabaj had raised his arguments about the denial of his § 212(i) waiver not in a petition for review (his earlier petition for review from the Visa Waiver Program removal order against him having been denied previously, see Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010)), but in a suit before the district court.  Thus, because Shabaj, having participated in the Visa Waiver Program with his false Italian passport, was unable to seek to reopen his removal order and file a new petition for review, he could not obtain judicial review of the asserted legal errors in the USCIS denial of his § 212(i) waiver and adjustment application.

At first glance, there might appear to be a conflict between Shabaj and the decision of the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 422 F.3d 193 (3d Cir. 2005).  Gummersindho Pinho, the plaintiff in that case, had been arrested and charged with three counts relating to possession of cocaine and intent to distribute it.  His application for New Jersey’s “Pre-Trial Intervention” (PTI) program was rejected because of a subsequently invalidated policy “against accepting into PTI any defendant against whom there was a viable case for possession with intent to distribute drugs at or near a school”,id. at 196, and in 1992 he pled guilty topossession of cocaine. He then sought post-conviction relief in 1997 based on the ineffective assistance of his criminal defense counsel.  At the hearing on Pinho’s ineffective-assistance claim, pursuant to prior discussions between Pinho’s then-counsel and the state prosecutor, it was explained that Pinho had been accepted into PTI, and his conviction was vacated and the charges dismissed.  Nonetheless, Pinho’s 2000 application for adjustment of status was denied by the then-INSon the theory that his 1992 guilty plea met the INA definition of a “conviction” despite having been vacated, rendering him inadmissible and ineligible for adjustment of status.

Pinho was not placed in removal proceedings, and so sought review of the denial of his adjustment application through a lawsuit in District Court “seeking a declaratory judgment that the denial of his adjustment of status was arbitrary, capricious and unlawful because his vacated state conviction should no longer be a bar to his eligibility for adjustment.”  422 F.3d at 198.  Despite the statutory bar on review of discretionary decisions, including the denial of an application for adjustment of status under INA § 245 (which is specifically mentioned among the types of discretionary relief covered by § 1252(a)(2)(B)), the Third Circuit found that the District Court had jurisdiction over this suit.  As the Third Circuit explained:

It is important to distinguish carefully between a denial of an application to adjust status, and a determination that an immigrant is legally ineligible for adjustment of status. This distinction is central to the question of subject-matter jurisdiction, and is easy to elide. Indeed, such distinctions are crucial to administrative law generally; the framework of judicial review of agency action that has evolved over the past half-century is grounded in a sharp distinction between decisions committed to agency discretion, and decisions, whether ‘ministerial’ or ‘purely legal,’ governed directly by the applicable statute or regulation. . . . Whatever the label, our case law distinguishes between actions which an agency official may freely decide to take or not to take, and those which he is obligated by law to take or not to take. In the case of adjustment of status, an eligible immigrant may have his application denied within the discretion of the agency. But the immigrant’s eligibility itself is determined by statute. To treat all denials of adjustment as discretionary, even when based on eligibility determinations that are plainly matters of law, is to fundamentally misunderstand the relationship between the executive and the judiciary.
. . . .

Determination of eligibility for adjustment of status — unlike the granting of adjustment itself —is a purely legal question and does not implicate agency discretion. . . . . The determination at issue here is precisely such a determination: whether under the applicable statutory language as interpreted by the BIA, Pinho was “convicted” so as to render him ineligible for adjustment of status. This is a legal question, not one committed to agency discretion.

Pinho, 422 F.3d at 203-204.  That is, the Third Circuit found that a District Court had jurisdiction over the claim that Pinho had been found ineligible for adjustment of status based on a legal error, even outside the context of removal proceedings.  At first glance, this would seem to reach the opposite result as Shabaj, under analogous circumstances.

The jurisdiction of the Second Circuitincludes New York, Connecticut, and Vermont, while the jurisdiction of the Third Circuit includes New Jersey, Pennsylvania, and Delaware, as well as the U.S. Virgin Islands.  If there is a split between the Second and Third Circuits on this issue, therefore, it would mean that adjustment applicants in New York would have less access to judicial review than adjustment applicants in New Jersey.  There may, however, be a way to read Shabajand Pinho in harmony with one another.

Although it is not entirely clear from the decision in Shabaj what sort of legal error was alleged, there does not seem to have been any dispute that Mr. Shabaj required a waiver of inadmissibility due to his past fraud, or that his U.S. citizen wife was actually his wife and was actually a U.S. citizen.  Rather, the dispute was over whether he had sufficiently established that his wife would suffer extreme hardship if he were removed—a decision that the Second Circuit had held to be discretionary, see Camara v. Dep’t of Homeland Sec., 497 F. 3d. 121 (2d Cir. 2007).  In Pinho, on the other hand, the dispute was over whether Mr. Pinho was inadmissible at all.  The disputed determination of eligibility for adjustment in Pinho was, one might say, logically prior to the discretionary decision on the ultimate adjustment application, while the disputed determination of hardship in Shabaj was itself one that is deemed discretionary.

In the context of § 1252(a)(2)(D) jurisdiction over constitutional claims and questions of law raised on a petition for review, it is possible for a reviewable legal error to exist even within a discretionary determination, if the adjudicating authority has used an incorrect legal standard or has committed some other legal error in making the discretionary determination.  In Pareja v. Att’y Gen., 615 F.3d 180 (3d Cir. 2010) (in which this author was counsel for the petitioner), for example, the Third Circuit found jurisdiction to hold that the agency could not consider the petitioner’s number of qualifying relatives as a factor necessarily weighing against her ability to establish exceptional and extremely unusual hardship to a qualifying relative for purposes of cancellation of removal under INA § 240A(b)(1)(D).  Similarly, the Second Circuit in Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009), found that the agency had made an error of law in its determination of exceptional and extremely unusual hardship “where . . . some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized,” id. at 323.  Shabajmay stand for the proposition that the sort of legal error at issue in Pareja or Mendez, which is a part of the hardship analysis or other discretionary analysis, cannot be the basis of a lawsuit in district court; this is not necessarily inconsistent with the idea that a legal error like that at issue in Pinho, which is part of an eligibility determination logically prior to the discretionary analysis, can be the basis of such a lawsuit.  One could certainly argue with some force that the Pareja/Mendeztype of error should also be cognizable in district court, on the ground that the agency has no discretion to commit a legal error of any sort, but there is a potential distinction between the two sorts of legal error that could allow one to read Shabaj and Pinho as consistent with one another.

In any event, whether or not one reads Shabajto conflict with Pinho, it is at least clear that Shabaj should not prevent judicial review of USCIS denials of petitions or applications that are not made discretionary by statute.The decision to deny an immigrant petition for a relative or prospective employee (an I-130 petition, I-140 petition, or I-360 petition for a religious worker), for example, is not discretionary, because INA 204(b) states that the Attorney General “shall” approve the petition if he determines that the facts in the petition are true, and the alien for whom the petition is filed is an immediate relative as defined by statute or is eligible for the requested preference.  (This decision is normally now made by the Secretary of Homeland Security and her delegates within USCIS, although a BIA decision on an administrative appeal regarding an I-130 petition is still under the authority of the Attorney General.)  Thus, district courts have jurisdiction to review the denial of such petitions, as has been held in such cases as Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009);Ruiz v. Mukasey, 552 F.3d 269 (2d Cir. 2009); Ayanbadejo v. Chertoff, 517 F.3d 273 (5th Cir. 2008); and Soltane v. U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004).  Similarly, district courts should have jurisdiction to review denials of H-1B and other nonimmigrant visa petitions, as described in an earliest post on this blog by Cyrus D. Mehta, because the decision on those petitions as well is not specified by the statute to be in the discretion of the Attorney General: INA § 214(c)(1) states that “the question of importing any alien as a nonimmigrant under [various subparagraphs] shall be determined by the Attorney General, after consultation with appropriate agencies of the government, upon petition of the importing employer.” In Kucana v. Holder, 558 U.S. 233 (2010), the Supreme Court made clear that only decisions actually declared discretionary by statute can be immunized from judicial review, superseding some earlier Court of Appeals decisions which had suggested that decisions made discretionary by regulation could also be immune from review.  (At least one such pre-Kucana decision, CDI Information Services Inc., v. Reno, 278 F.3d 616 (6th Cir 2002), had refused on that basis to review the denial of an H-1B application for extension of stay.)

In addition to not precluding judicial review of denials of petitions or applications that are not explicitly made discretionary, Shabaj may not preclude judicial review of a USCIS denial of a discretionary waiver or adjustment application when the denial relates to an applicant who at that time or subsequently is the subject of an otherwise reviewable order of removal, even if the discretionary waiver or adjustment denial comes from USCIS rather than the immigration courts and the BIA—as could happen with many “arriving aliens” whose adjustment applications fall outside immigration court jurisdiction.  As the Shabaj opinion explained in footnote 4:

Although Shabaj is ineligible to reopen his removal proceedings and file a petition for review because of his participation in the Visa Waiver Program, see 8 U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopen proceedings from attempting to reopen those proceedings in order to raise legal challenges to hardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), we would have jurisdiction over any “constitutional claims or questions of law” raised by petitions for review to this court.

Shabaj v. Holder, slip op. at 6 n.4.  The process that this footnote seems to contemplate, in which a Court of Appeals could review an AAO decision in a petition for review from a removal order even though the authorities that issued the removal order did not themselves have any ability to address the AAO decision, would not be unprecedented.  Judicial review of an AAO decision denying an application for legalization under the Immigration Reform and Control Act of 1986 or the related LIFE Act Legalization provisions proceeds in this way, as explained in Orquera v. Ashcroft, 357 F.3d 413 (4th Cir. 2003): the legalization applicant must become subject to an order of removal or deportation, and then petition for review of that order,to seek judicial review of the legalization denial, even though the immigration judge and the BIA cannot review the legalization denial during the removal proceedings.  If an arriving alien whose adjustment application or related waiver application is denied by USCIS later becomes subject to an order of removal, footnote 4 of Shabaj suggests that they could seek review of the USCIS determination on petition for review of the removal order, analogously to the process discussed in Orquera.

Even if an arriving alien is already the subject of an order of removal when their adjustment application or related waiver application is denied by USCIS, it should be possible to seek judicial review of that denial despite Shabaj, so long as there is no order under the Visa Waiver Program (or at least no valid order, since such orders are sometimes issued in error and can then be set aside on a petition for review).  As previously explained in an article by this author on our firm’s website, denial of an adjustment application made by an arriving alien against whom an order of removal is already outstanding could be analogized to the denial of an asylum application by an applicant who has been ordered removed under the Visa Waiver Program.  In both cases, the denial of the outstanding application enables the removal of the applicant, even though the denial is in some technical sense not a removal order.  Thus, just as the Second Circuit has found jurisdiction over a petition for review of the denial of an asylum application in asylum-only proceedings because such a denial is “the functional equivalent of a removal order,” Kanacevic v. INS, 448 F.3d 129, 134-135 (2d Cir. 2006), it should find jurisdiction over a petition for review of the denial of an adjustment application by an arriving alien against whom there is a final order of removal.  Alternatively, under Shabaj footnote 4, it may be possible for such an arriving alien to seek reopening of the removal proceedings to pursue such an arriving-alien adjustment application, which would presumably be denied under Matter of Yauri, 25 I&N Dec. 103 (BIA 2009) (in which the BIA held that it would not reopen proceedings for an arriving alien to apply for adjustment before USCIS because such reopening was not necessary to allow adjustment), and then petition for review of the denial of reopening and seek review of any adjustment or waiver denial in the context of that petition.

David Isaacson

USCIS Issues Provisional Waiver Final Rule: Beginning in March, Some Waivers of the 3- or 10-Year Bars May Be Sought Before Departing the United States

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One year ago, a previous post on this blog by Cyrus Mehta and this author discussed the issuance by USCIS of a proposed rule allowing certain applicants for a waiver of the 3- or 10-year bars to obtain such a waiver on a provisional basis before departing from the United States.  It has been a long wait for the final rule, as USCIS needed to allow time to receive public comments (one of which was submitted by our firm) and then took a substantial amount of time to analyze the comments and determine what changes to make to the proposal, but the wait is finally over.USCIS first announced the final ruleand made an advance copy available on January 2, 2013, and the final rule was officially published in the Federal Registeron January 3.  The rule will take effect on March 4, 2013, and sometime before then USCIS will publish the Form I-601A that is to be used to apply for a provisional waiver.

The provisional waiver rule does not change the substantive standard that one must satisfy in order to obtain a waiver of the 3- or 10-year bar that one incurs upon accruing more than 180 days or a year of unlawful presence respectively.  In order to obtain a waiver of the 3- or 10-year bars under section 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA), it is always necessary to show that the waiver applicant’s spouse or parent, who is a U.S. citizen or Lawful Permanent Resident (LPR) of the United States, will suffer extreme hardship if the applicant is not permitted to remain in the United States.  However, under the new rule, certain applicants will be able to make this showing before they depart the United States to apply for a visa, which should dramatically shorten the amount of time that they need to spend abroad.  If an applicant is seeking a waiver of the 3- or 10-year bars based extreme hardship to a U.S. citizen qualifying relative (rather than an LPR), and has an approved petition as an “immediate relative” of a U.S. citizen – that is, as the U.S. citizen’s spouse, parent, or unmarried child (under the age of 21 while taking into account the Child Status Protection Act, although only applicants age 17 or older may seek provisional waivers and younger applicants would not need them because unlawful presence for these purposes does not accrue until age 18)– then the applicant may seek a provisional waiver before departing from the United States, and only go abroad to apply for an immigrant visa after the provisional waiver has already been issued.  This process is subject to various restrictions, some of which are discussed further below, but that is the basic idea.

By allowing some waiver applications to be adjudicated while the applicant remains within the United States, the provisional waiver process should significantly reduce the period of time when the U.S. citizen relative of a successful waiver applicant is subject to the cruel irony that inheres in the current process.  Under the current system, where the waiver application is filed while the applicant is abroad after an immigrant visa interview, and the applicant then remains abroad during the months it takes to adjudicate the waiver application, the qualifying relative must undergo months of the very same extreme hardship that the waiver is intended to avoid!  At least with regard to U.S. citizen qualifying relatives of applicants who are immediate relatives of U.S. citizens, and who face no other ground of inadmissibility besides unlawful presence, this new provisional waiver process should remove much of that cruel irony.  It should also encourage applications by some waiver applicants who were unwilling to travel outside the United States to apply for a waiver because of the risk of long-term separation if the waiver were denied.

One detail to keep in mind is that the U.S. citizen relative to whom extreme hardship is shown in a provisional waiver application need not necessarily be the same U.S. citizen relative who has petitioned for an applicant.  Indeed, the U.S. citizen petitioner need not even be a possible qualifying relative for the 212(a)(9)(B)(v) waiver.  A child is not a qualifying relative for purposes of obtaining a waiver of the 3- or 10-year bars, but an applicant who is sponsored by a U.S. citizen son or daughter over twenty-one years of age, and thus qualifies as an immediate relative, would be able to qualify for a provisional waiver if he or she could show extreme hardship to a U.S. citizen parent in the event that the applicant were not allowed to return to the United States– even though a U.S. citizen parent cannot sponsor an adult son or daughter as an immediate relative.  Or, an applicant with a U.S. citizen spouse, who cannot show that his or her spouse will suffer extreme hardship if the applicant is not allowed to return to the United States, could instead obtain a provisional waiver by showing that a U.S. citizen parent will suffer extreme hardship in the applicant’s absence.

Another important detail, which has been changed from the proposed rule, is that applicants in removal proceedings will be able to seek a provisional waiver iftheir proceedings are administratively closed and have not been recalendered.  Administrative closure, most recently addressed by the Board of Immigration Appeals (BIA) in Matter of Avetisyan, is a process in which a case is taken off the active calendar of an Immigration Court or the BIA without actually being terminated; one might compare it to an indefinite continuance of the case.  Traditionally, it has occurred with the consent of the Department of Homeland Security (DHS), although Avetisyan allows for it to be sought without DHS consent, a possibility which might prove useful in the provisional-waiver context.  Administrative closure has often occurred recently in the contextof the DHS exercise of prosecutorial discretion in favor of those who are lower priorities for removal so that DHS can focus its efforts on removing those who are its higher priorities for removal, such as those with serious criminal convictions—the process discussed in a June 17, 2011 memorandum from U.S. Immigration and Customs Enforcement (ICE) Director John Morton.It is admirable that USCIS realized, upon reviewing comments on the proposed rule, that no purpose would be served by denying the opportunity to apply for a provisional waiver to those whom ICE is not actively seeking to remove in any event.

One interesting consequence of this new eligibility for those with administratively closed removal cases relates to the process created by the Court of Appeals for the Second Circuit in its October 16, 2012 opinion entitled In the Matter of Immigration Petitions for Review Pending in the United States Court of Appeals for the Second Circuit.  The Court of Appeals for the Second Circuit, in order to avoid having to spend court time unnecessarily reviewing a removal order in cases where ICE would anyway not seek to execute the order, has created an automatic 90-day waiting period during the processing of petitions for review (although one which can be ended early by either side) to allow for discussion of whether the exercise of prosecutorial discretion is appropriate.  In cases where the Office of Immigration Litigation that is representing the government on the petition for review determines in consultation with ICE that a case is low-priority and suitable for the exercise of prosecutorial discretion, the case will be remanded to the BIA for administrative closure.  Thus, at least in the Second Circuit, and perhaps in other Circuits which may come to follow the lead of the Second Circuit, some who have already received final orders of removal, but who would be eligible for a provisional waiver absent such final order and have petitioned for review of the order, should be able to return their case to an administratively closed state under the new process and then apply for a provisional waiver.

In another positive development, the final rule has retreated somewhat from the initial USCIS position that the provisional waiver process would only allow for what one might call a single bite at the apple, permitting neither appeal nor re-filing, so that an applicant who was denied a provisional waiver could only proceed with the process by departing from the United States and re-applying for a conventional waiver from abroad.  Although an administrative appeal is still not available, an applicant whose application for a provisional waiver is denied will be permitted under the final rule to file a new application (with the appropriate filing fee).

Not all the news from the final rule is good news, however.  Unfortunately, despite the urging of many commenters, the provisional waiver process will not be available to those who are currently in removal proceedings, unless their proceedings have been administratively closed and not recalendared.  It will also not be available to those who are currently subject to a final removal or deportation or exclusion order—even though those subject to such orders have long been able to file a stand-alone I-212 application for advance permission to reapply for admission prior to departure from the United States, under 8 C.F.R. § 212.2(j).  Unless those subject to a final order can get the case reopened and administratively closed (as for example could be possible on remand from a Court of Appeals), it appears they will need to follow the conventional waiver process from abroad, despite the resulting hardship to qualifying relatives.

The provisional waiver process also will not apply to those who are inadmissible for reasons other than the 3- or 10-year bar resulting from previous unlawful presence.  Although the above-mentioned previous post on this blog, and our official comment submitted to USCISalong the same lines, advocated that provisional waivers should be available in contexts such as alleged fraud for which a waiver is needed under INA section 212(i), USCIS chose not to accept that suggestion.  However, USCIS has held out the possibility of perhaps extending the provisional waiver process to other contexts once it has had a chance to observe how the initial, narrower version of the provisional waiver process works in practice.

Another restriction worth noting is that the provisional waiver will not be available to those who have already been scheduled for an immigrant visa interview as of January 3, 2013.  The key question is not when the interview was scheduled to take place, or whether the applicant attended the interview, but whether the Department of State’s National Visa Center (NVC) had already acted to schedule a consular interview by January 3.  If the NVC had scheduled a visa interview by January 3, the provisional waiver process will not be available.  If the NVC had not acted to schedule an interview by January 3, then the subsequent scheduling of an interview will not remove one’s eligibility for the provisional waiver, although in the interest of efficiency prospective waiver applicants with a case before the NVC are advised to notify the NVC of their intent to seek a provisional waiver before an interview is scheduled.  The NVC has already begun sending emails to some prospective visa applicants advising them that they must inform the NVC of their intent to seek a provisional waiver, by sending an email to NVCI601A@state.gov, and that failure to do so would delay the visa application.

For additional background on the final provisional waiver rule, interested readers may wish to review posts about it on the “AILA Leadership Blog” of the  American Immigration Lawyers’ Associationand the “Lifted Lamp” blog of Benach Ragland LLP.  The New York Times has also reported on the new provisional waiver rules.  Despite all of its imperfections, the final provisional waiver rule is a very positive development, an important step along the road of reducing unnecessary hardship to the qualifying relatives of waiver applicants.

Cora-Ann Pestaina

RESUME REVIEW IN THE PERM PROCESS

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Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  INA § 212(a)(5)(A)(i).The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith.

Attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii). However, the DOL does not prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process.  The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

The DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. Yet, real world recruiting is at times impossible when the DOL sets forth “unreal” recruitment standards for employers! As an attorney who regularly counsels employers filing PERM labor certifications, I have found that one of the most difficult concepts for some employers to grasp is the resume review process and how it ought to be conducted in the PERM process.It’s hard for an employer to comprehend why they have to continue to assess an applicant who upon receipt of an e-mail from the employer, responded that he was “away” and would get back to the employer at some point in the following week; or an applicant who, when contacted, had no recollection that he had even applied for the job and needed to be informed of the job opportunity and the employer’s business; or an applicant who only listed “Software Engineer” as his experience leaving the employer unclear as to what skills he may possess. As reasons for rejection of applicants, employers sometimes state,“applicant is far too overqualified and I would never hire him for this position” or “these applicants went to foreign universities and I know they require sponsorship.” While these reasons may be acceptable in the employer’s normal consideration process, neither is a valid reason for rejection in the PERM process.Some employers become frustrated and push back. I find that I very often have to preface my comments with “We are not operating in the real world here…”

Currently, and for some time now, every PERM audit letter requests verification of the unavailability of US workers. A request for resumes and applications for all US workers who applied for the job opportunity seems to have become the standard. The DOL specifically wants to review documentation of the employer’s contact with applicants and its assessment of the qualification of applicants.Yet, other than the expectation that the employer conduct “good faith” PERM recruitment, the DOL has not issued significant guidance with regard to resume review. But it is possible to glean some information from recent decisions by the Board of Alien Labor Certification Appeals (BALCA). In particular, two specific cases, involving Supervised Recruitment, shed some light on how the DOL expects employers to conduct resume reviews.

In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc). During Supervised Recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements.

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials.

The takeaway from Goldman Sachs, and the concept that can be difficult to explain to employer clients, is that regardless of how convinced the employer may be that the U.S. worker applicant is unqualified for the position based only on his resume, if there is even a hint that the applicant may appear qualified to the untrained eye of a CO, it is worth the employer’s time to interview the applicant. During an interview, the employer can zero in on the specific requirements of the offered position and better assess the applicant’s qualifications.

In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16. 2012), the employer’s requirements included “Proficiency in Excel or Access,…understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines…” The CO denied the case after concluding that U.S. worker applicants had a combination of education, training and experience equivalent to the employer’s job requirements and could acquire Access and SharePoint skills while on the job.

Rather than focusing, as it did in Goldman Sachs, on whether or not the employer had a duty to interview the U.S. workers to better assess their qualifications, the key issue for BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. BALCA stated that the employer had submitted a business necessity explanation in its Recruitment Report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the CO did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, BALCA held that the CO cannot dismiss the employer’s stated requirements and substitute his judgment for the employer’s.

Confused much? The JP Morgan case emphasizes the importance of submitting a compelling business necessity argument in response to PERM audits. That way, if and when the employer rejects U.S. workers, the reason will be clear to the CO. But does the employer have to interview when the applicant’s resume does not list all the requirements or not? I think the clear answer is that the employer should always err on the side of interviewing the applicants. If there is even a hint of a question as to whether the applicant may appear qualified, the employer should interview. If the applicant failed to list the one technology required for the position but listed 5 similar technologies, the employer should interview. If the employer has stated that it will accept any combination of education, training and experience and the applicant has broadly listed his experience as simply “Software Engineer,” the employer should interview. While the DOL claims that the employer’s consideration of these applicants should resemble its normal consideration process, it just cannot. In normal consideration processes, the employer may utilize its judgment to reject any applicant deemed unqualified.  When it comes to the PERM process, the employer must go out of its way to demonstrate to the DOL that it has, in good faith, tried it’s best to find a U.S. worker to fill the offered position. In addition, the employer should take pains to explain in great detail, if audited, specifically why each applicant was not qualified for the offered position, providing evidence of any interviews and other communication with the applicants.

Cora-Ann Pestaina

PERM Audits Request Sworn Declarations Regarding Improper Payments

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Recently, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) published its factsheet with statistics on the PERM program for FY2012 covering the period from October 2011 to September 16, 2012. Of the 67,400 PERM applications received during that period, 45% were audited for review. While audit notifications discussing the employer’s use of an employee referral program, roving employees, or bearing requests for the resumes of all applicants are so frequently issued that they have almost become par for the course, the newest audit request came as quite the surprise. The latest audits now request declarations from the employer and the foreign worker, each signed under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification. Specifically, the audit request states:

Please provide declarations from the employer and the foreign worker, each signed by the respective individual under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification, including payment of the employer’s attorney’s fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application. Such payments include but are not limited to legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process.  Note that any payment of fees by the foreign worker or third party for the benefit of the employer constitutes a “receipt of payment” by the employer, despite the fact that such payments may have been made directly to a party other than the employer – e.g., the employer’s attorney, Department of State, etc.

If any such payments were made, please provide a list outlining the payment amount, who made the payment, to whom payment was made, dates, and the purpose of the payment.

If payments were received from a third party to whose benefit work to be performed in connection with the job opportunity would accrue, please provide documentation explaining both the business relationship between the employer and the third party and the benefit of the work performed, or to be performed, in accordance with the Department’s regulations at 20 CFR § 656.12(c).

If payments were made to the employer by the foreign worker as a result of an agreement/contract entered into prior to July 16, 2007, please provide documentation evidencing both that an agreement existed and that it was entered into prior to July 16, 2007. Examples include the contract, the agreement or a declaration signed by both the employer and the foreign worker under penalty of perjury, in the case of oral agreements.

The issue of payments for activity related to obtaining permanent labor certification first came up when the DOL published its final rule to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States” which took effect on July 16, 2007. See 72 Fed. Reg. 27,903-27,947 (May 17, 2007). The rule revised the regulations found at 20 CFR §656 and implemented substantial changes to the labor certification process, including prohibition on the sale, barter, or purchase of labor certification applications and a requirement that employers pay all attorney’s fees and costs associated with labor certification. The rule also made unenforceable any employer agreements requiring employees who leave within a certain time period to pay reimbursement costs associated with the labor certification. In passing this rule, the DOL rationalized that a prohibition against the transfer of labor certification costs from sponsoring employers to foreign national beneficiaries keeps legitimate business costs with the employer, minimizes improper financial involvement by aliens in the labor certification process, and strengthens the enforceability of the bona fide job opportunity requirement. All reasoned opposition to the rule prior to its promulgation fell on deaf ears.

On July 16, 2007, the DOL also issued a FAQ to clarify certain aspects of the rule. The FAQ explained that pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity (including recruitment activity and the use of legal services) related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign national beneficiary will benefit that party. The preamble to the rule provided the example of physicians who frequently have split appointments between a Veterans Affairs Medical Center (VAMC) and an affiliated institution of higher education. In these cases, although there is one “employer of record” who files the labor certification application, the university, as a legitimate third party, could reimburse the VAMC for costs associated with the labor certification.“Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor.  This includes the prohibition against the alien paying the employer’s attorneys’ fees in connection with the labor certification application.

The FAQ clarified that an employer, or attorney representing an employer, who entered into a contract where payments from the foreign national are either owned after July 16, 2007 or owed prior to July 16, 2007 but not paid until after that date, have the right to seek the payment provided the payment obligation accrued prior to July 16, 2007. The employer must answer YES to Question I.e.23 on the ETA Form 9089 which asks, “Has the employer received payment of any kind for the submission of this application?” Then, the employer must explain and provide supporting details in I.e.23-A which states, “If Yes, describe details of the payment including the amount, date and purpose of the payment.”

The FAQ also explained another exception to the rule which provides that “attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity.” The rule also did not prohibit the alien from paying fees associated with the subsequent visa petition (Form I-140) and the adjustment of status application (Form I-485).

Pursuant to §656.20(a), an audit letter may be issued by the DOL if a labor certification is randomly selected for quality control purposes, or if, after reviewing the application, the certifying officer finds more information is needed before a determination can be made. Neither of these reasons justifies this new request for declarations. Questions I.e.23 and I.e.23-A on the ETA Form 9089 already address the issue. In response to an audit, the employer must submit a copy of the submitted ETA Form 9089 with original signatures in Section L (Alien Declaration),  Section M (Declaration of Preparer (if applicable)), and Section N (Employer Declaration) to affirm that the information listed is true and accurate. As clearly stated on the ETA Form 9089, each declaration must be signed under penalty of perjury.  In light of this, it is not clear why additional sworn declarations are now being requested. In any event, it is important to respond truthfully.

If the employer did not receive payments from the foreign national or a third party, the employer may submit a signed and notarized statement as follows:

[Employer name] did not receive payment of any kind from the [foreign national] or from a third party for any activity related to obtaining permanent labor certification. 

[Employer name] did not receive payment for the legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the labor certification application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

The foreign national may submit a signed and notarized statement as follows:

I did not pay [Employer name] any fees in relation to the filing of a labor certification application on my behalf.  

[Employer name] did not receive payment from me for the legal fees, administrative fees, advertising costs and/or any other costs or fees related to the filing of the application. Also, [Employer name] did not ask me for any wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

Only time will tell whether this new request will become another audit standard. It is essential that practitioners inform new clients and remind existing clients of the rule regarding payment of fees in connection with a labor certification. It is understandable why an employer would want to seek some type of protection, e.g. through employer agreements for reimbursements, against spending thousands of dollars to sponsor a foreign national only to have him leave the moment he obtains permanent residence. But employers must also be informed that the DOL, under §656.31(a), may deny any labor certification if the certifying officer finds the application contains false statements, is fraudulent or otherwise submitted in violation of the DOL’s regulations. Under §656.31(b) the DOL may, if it learns that an employer, attorney or agent is involved in possible fraud or willful misrepresentation, refer the matter to the Department of Homeland Security or other appropriate governmental authority and suspend processing of any labor certification involving the employer, attorney or agent until completion of any investigation. Under §656.31(f) the DOL may debar an employer for up to three years upon a determination that the employer has participated in or facilitated “the sale, barter or purchase of permanent labor applications or certifications, or any other action prohibited under §656.12” or “the willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification” or “a pattern or practice of failure to comply with the terms of the Form ETA 9089.” Finally, the DOL could, under §656.32, take steps to revoke an approved labor certification if it is later found that the certification was not justified.  It is obvious that the issue of improper payments is one that must always be taken very seriously.

David Isaacson

OPPOSITION TO CORRUPTION AS A POLITICAL OPINION SUPPORTING A GRANT OF ASYLUM: RUQIANG YU V. HOLDER AND ITS PREDECESSORS

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By David A. Isaacson

On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder, No. 11-2546-ag, reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S. immigration law.  According to Ruqiang Yu, this may be the case even if an asylum applicant has failed to prove that similar corruption exists elsewhere in his or her native country beyond the specific context in which he or she opposed it.

Ruqiang Yu was initially denied asylum by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) despite their acceptance of his testimony that he had been mistreated after opposing corruption at the state-owned factory where he worked in China.  As the Court described the facts: 

The IJ found that Yu credibly testified that, while an employee and a team leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the wages of workers on his team and that, when Yu’s efforts to aid the workers and to bring the corruption to the attention of government officials was discovered, he was jailed and later fired.
Ruqiang Yu, slip op. at 2.  Despite these findings, the BIA “concluded that Yu failed to establish that his actions ‘constitute[d] a political challenge directed against a governing institution’ since he was objecting to ‘aberrational’ corruption by individuals.”  Id.at 5.  “Yu’s actions, the BIA reasoned, were “a personal dispute against his individual employers for misusing funds he believed should have gone toward the unpaid wages of the laborers on whose behalf he sought to intervene.”  Id.
The BIA and the IJ in Ruqiang Yu appear to have acknowledged that under Second Circuit case law, “opposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecution.”  Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).  As the Second Circuit had said in case law to which it appears that the BIA was referring in its decision when it set out the criteria that Mr. Yu purportedly had not met:
In considering whether opposition to corruption constitutes a political opinion, “[t]he important questions … are whether the applicant’s actions were ‘directed toward a governing institution, or only against individuals whose corruptionwas aberrational,’ ” and “whether the persecutor was attempting to suppress a challenge to the governing institution, as opposed to isolated, aberrational acts of greed or malfeasance.”
Before the Second Circuit’s decision in Ruqiang Yu, but after the Second Circuit’s decisions in Castroand Yueqing Zhang, the BIA had also recognized in a published opinion that “in some circumstances, opposition to state corruption may provide evidence of an alien’s political opinion or give a persecutor reason to impute such beliefs to an alien.”  Matter of N-M-, 25 I&N Dec. 526Matter of N-M-, 25 I&N Dec. 526, 528 (BIA 2011).  In Matter of N-M-, the BIA cited the Second Circuit’s Zhang decision, but found that at least with regard to asylum applications subject to the REAL ID Act because they were filed after May 11, 2005, more than retaliation for opposing acts of corruption linked in some way to a political system was required:
Since the passage of the REAL ID Act, a showing of retaliatory harm for exposing acts of corruption, coupled with evidence that the corruption is in some way linked to a political system, would appear insufficient to demonstrate that a victim’s anticorruption beliefs are “one central reason” for retaliation against him. Instead, an alien must persuade the trier of fact not just that the alleged persecutor was motivated in some measure by the alien’s actual or imputed political belief, but that the protected trait was “one central reason” for the persecution.
Matter of N-M-, 25 I&N Dec. at 532.  

The BIA in Matter of N-M- described three factors that an IJ could use to determine whether actual or imputed political opinion was a central reason for retaliation against one who had expressed an anticorruption belief.  The first is “whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs”   such as whether the “alien denounced corruption in public or at work, published articles criticizing governmental corruption, or organized fellow victims of government extortion against this behavior.”  Matter of N-M-, 25 I&N Dec. at 532.  The second factor is “any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs,” such as “statements indicating that the persecutor viewed the alien as a political threat or subversive and was motivated as such.”  Id.  The third factor described by BIA in Matter of N-M-, citing the Second Circuit’s decision in Castro, looks to whether corruption was pervasive in an asylum applicant’s country:

An Immigration Judge should also consider evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials. Where the alien threatens to expose the corrupt acts of rogue officials acting without the support of the governing regime, it seems less likely that the act would be perceived as politically motivated or politically threatening. However, if corruption is entrenched in the ruling party, a challenge to the corrupt practices of this party may be more likely to represent a challenge to the political position of the ruling party, and not just the financial standing or reputation of a small group of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) . . . .  Whether the governing regime, and not just the corrupt individuals, retaliates against an alien for expressing anticorruption beliefs is relevant to this inquiry.
Matter of N-M-, 25 I&N Dec. at 533.
The Second Circuit in Ruqiang Yu concluded that the BIA had applied an erroneous legal standard in determining whether the corruption opposed by an asylum applicant was “aberrational” for purposes of the test that the Second Circuit itself had set out in Yuequing Zhang and Castro.  As the Second Circuit reminded the BIA: “Because the form and nature of political opposition can vary widely, the assessment of when opposition to corruption becomes an expression of a political opinion involves a context-specific, case-by-case determination.”  Ruqiang Yu, slip op. at 7.  For several reasons, the Second Circuit did not find the BIA to have performed such a determination properly in Yu’s case:
First, we note that the BIA’s factual conclusion that Yu opposed “aberrational” corruption is not supported by the record. Conduct is “aberrational” if it is “a deviation or departure from what is normal, usual, or expected” or something that is “abnormal, diverging from the norm.” Oxford English Dictionary (June 2012, online ed.) (defining “aberration”). Yu’s application indicated that “quite a few . . . workers in other groups did not get paid for a few months,” and that he personally escorted ten of them to confront factory officials. These facts indicate that the non-payment of wages was apparently recurring, not aberrational.
Second, the appropriate inquiry does not focus simply on the number of corrupt acts, but on an assessment of the overall climate and context in which the opposition takes place. Where opposition to corruption transcends self-protection and represents a challenge to state-sanctioned modes of official behavior, a petitioner may be eligible for asylum. . . .
The fact that the protests organized by Yu challenged corruption at a single workplace does not render the corruption categorically aberrational without regard to the nature of Yu’s conduct.  In several ways, Yu’s conduct is typical of political protest (and may have been perceived as such by the authorities). Thus, the record indicates that Yu had no personal, financial motive to oppose the corruption, undertook to vindicate the rights of numerous other persons as against an institution of the state (a state-owned factory), and suffered retaliation by an organ of the state – the police.
Id. at 7-8. 
The single-workplace issue, the Second Circuit noted, was “sharply presented” because Yu had “failed to present . . . evidence of more broad-based corruption at state-owned factories in his native land.”  Id. at 8 n.2.  Nonetheless, the IJ and BIA erred by not “assess[ing] Yu’s claim in its full factual context” to determine whether Yu’s activities were “a challenge to the legitimacy of the government’s entrenched modes of conduct”, or whether the authorities had imputed a political opinion to him (which could be a basis for an asylum claim even if he did not hold such an opinion).  Id. at 8-10. 
One should not lose sight even after Ruqiang Yu of the importance of submitting evidence of systemic, country-wide corruption in an asylum applicant’s home country, if possible.  This author recently represented a client whose application for asylum was granted by the New York Asylum Office based on past persecution and a fear of future persecution relating to his opposition to corruption at a Russian state-owned enterprise (and who has agreed that this limited information about his case can be made public).  In that case, we submitted voluminous evidence of widespread corruption in Russia.  We would do the same today: even within the Second Circuit and even after Ruqiang Yu, it is still highly advisable if at all possible to submit such background evidence regarding the prevalence of corruption in the country of feared persecution, because it will assist greatly in showing that the applicant’s claim relates to “a challenge to the governing institution” under Yueqing Zhang and Castro.  Outside the Second Circuit, evidence of pervasive corruption throughout the country of feared persecution is even more important, under the BIA’s reasoning in Matter of N-M-.  

However, Ruqiang Yu teaches that at least within the Second Circuit (and perhaps elsewhere if the BIA or other Courts of Appeals accept the Second Circuit’s reasoning), some claims of asylum based on opposition to corruption may be viable even if evidence regarding country-wide corruption is for some reason unavailable.  In cases where reliable background evidence regarding the corruption in a particular country or region simply cannot be obtained despite vigorous efforts, applicants and attorneys need not despair.

Cora-Ann Pestaina

The H-1B Process Gets Even Harder: DOL Proposes Dramatic Changes to the LCA Form

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I still think longingly of the days when certification of a Labor Condition Application (“LCA”) could be obtained within seconds. Three years ago, the Department of Labor (DOL) mandated that all LCA filings must be filed through its iCERT portal (http://icert.doleta.gov/) and that each application form, also changed to request additional, new information, would be manually reviewed prior to certification. This change increased the official LCA processing time from a few seconds to 7 business days. Human error and other systemic problems at the onset of the change resulted in filings taking three weeks or longer to process which led to late filings on H-1B petitions, a public outcry and US Citizenship and Immigration Services (USCIS) temporarily allowing employers to file H-1B petitions without certified LCAs! The new iCERT system forced H-1B employers to change their approach to filing H-1B petitions. The LCA process is about to change again.

As a background, an employer seeking to employ a temporary foreign worker in H-1B, H-1B1 or E-3 nonimmigrant status must, as the first step in the petition process, file an LCA with the DOL and receive certification. The LCA is completed on electronic Form 9035 through the DOL’s iCERT system. The LCA collects information about the occupation and there are special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. An employer is permitted to file the LCA no more than six months before the initial date of intended employment.

The DOL now seeks to once again revise the scope of the information collected on the LCA citing, in its LCA supporting statement, a desire to improve its integrity review and ensure the accuracy and completeness of the information. On July 9, 2012, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. In a process that is likely to take several months, the changes must be approved by the federal Office of Management and Budget before they can be implemented.

Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the nonimmigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit US workers; and requiring the employer to list the address where the employee’s public access file is kept.

Some of the changes are even more significant.

Identification of Intended Beneficiaries

The current LCA does not require any information identifying the intended beneficiaries. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed.

In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws which collectively cover virtually all private, State and local government employment, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.

The DOL makes some valid points.  The majority of employers do not need to complete an LCA for more than 10 workers at a time. iCERT indeed saves most of the information and it may not be overly burdensome to complete multiple LCAs.  However, since employers are required to make LCAs available for public inspection, privacy and identity theft concerns are easily justifiable. The DOL ought to address this.

In addition, what the DOL has not addressed is the flexibility that will be lost because employers will no longer be able to use an existing, certified LCA to file a nonimmigrant petition for a new hire. The new identification requirement may be hard on large employers who file numerous H-1B petitions. The current annual cap on the H-1B category is 65,000. Each year, on April 1, USCIS begins accepting cap-subject H-1B petitions for employment to commence in the new fiscal year, on October 1. Employers typically scramble to prepare and file cap-subject H-1B petitions before the cap closes. For large employers, especially those with branches abroad, it is may be difficult to come up with a list, in March or April, as to who will be transferred to the US to work in October. These hiring decisions are ongoing and employers rely on the flexibility of the LCA which allows them to quickly file an H-1B petition using an existing, certified LCA provided it lists the correct information such as visa category, job classification, etc. This way, employers are not always forced to spend 7 business days waiting for the LCA to be certified and watching existing H-1B visa numbers dwindle.

What about that H-1B worker who just received notice from his current employer and has luckily found a new employer willing to file an H-1B on their behalf? How significant would it be if the new employer is able to use an existing, certified LCA and file an H-1B transfer petition before that worker falls out of status? What the DOL describes as a “relatively quick turnaround on LCA approval” can seem interminable in the case of an emergency. The DOL must bear in mind that no matter the emergency, it provides no expedite procedures for the LCA. Flexibility is therefore very important.

Interestingly, the new LCA would require listing the beneficiaries’ PERM application numbers. At this time, the possible acceptable responses to this question are not clear. But, since the PERM application is filed by the employer, a new employer of an H-1B transfer might not have this information. But this requirement suggests that the DOL may begin to cross reference the job opportunities in the nonimmigrant and immigrant cases as well as match the wages in both the cases.

Limiting the LCA to only 10 workers

Currently, a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions.

The DOL now seeks to limit the number of workers to 10 per LCA explaining that it has found enforcement of LCA obligations difficult when an LCA is for 50 or 100 job opportunities and it would be a significant expenditure to build an electronic form to accept more than 10 names.

The issue, as discussed above, may not be with the limit of 10 names, but with naming requirement itself and the limitations that come from that.

Worksite Identification

The current LCA form requires the employer to identify the place(s) of intended employment. This entails listing the complete address and county where the beneficiary will work. The proposed new LCA will require significant additional detail.

The employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.

In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems.

Again, the employer’s flexibility may be taken away. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA. See 20 C.F.R. §655.731(a)(2) which states that the wage on an LCA is valid for the area of intended employment. If each LCA has to list the end client information, will the employer be required to complete a new LCA each time it moves an employee even if it is within the intended area of employment?

Also, in cases where the employer is filing a change of status petition on behalf of the beneficiary or the beneficiary is abroad and will obtain an H-1B visa to enter the US, until the beneficiary is lawfully present in the United States in valid H-1B status and is thereby authorized to accept employment in the United States, the employer cannot hold him out as an employee.  See 8 C.F.R § 274a.1(c) and (f). Therefore, the employer may not be able to obtain that end client agreement prior to preparing the LCA.

Business immigration practitioners may already know that cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. In light of that, the proposed changes to the LCA form are not surprising and seem to stem from some concern on the part of the DOL, with regard to LCA compliance and the bona fides of the offer of employment. Following the request for end client information on the proposed form is the irrelevant and possibly offending question, “Is this a bona fide job opportunity?” The DOL’s makes no effort to hide its blatant mistrust of the employer who places its employee at an end client site.

In recent times, the US government has taken small steps to attract foreign workers and to show that they are an asset rather than a liability. The changes to the LCA will again add more burdens on the employer by eliminating flexibility. On March 12, 2012, the USCIS issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition. The DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for US companies to attract global talent.  In addition to the proposed changes to the LCA, there is proposed legislation in the form of HR 3012 (following the compromise between Senators Grassley and Schumer) that will grant the DOL draconian powers in denying LCAs based on undefined indicators of suspected fraud and thus hold up the processing of H-1B petitions.    Are the proposed changes to the LCA form taking two steps back?