Cyrus Mehta

Second Circuit Upholds Trump Era Interpretation on Administrative Closure Even Though Biden Has Changed It. Does This Leave Open Possibility that Biden Era Interpretation May Also Be Upheld If Future Administration Changes It?

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By Cyrus D. Mehta and Kaitlyn Box*

The Second Circuit in Garcia v. Garland upheld the BIA’s decision not to grant administrative closure under Matter of Castro-Tum, despite the fact that that the case has since been overruled.

Matter of Castro -Tum, a Trump era decision, held that Immigration Judges (IJs) and the Board of Immigration Appeals (BIA) do not have the authority to administratively close cases, unless expressly authorized by a previous regulation or a previous judicially approved settlement. We have previously advocated that Matter of Castro-Tum be withdrawn and its predecessor, Matter of Avetisyan, be reinstated. Avetisyan held that IJs and the BIA may administratively close removal proceedings, even if a party opposes, if it is otherwise appropriate under the circumstances, and that IJs or the BIA should weigh all relevant factors in deciding whether administrative closure is appropriate. In prior blogs, see here and here, we have argued that Avetisyan sets a more common sense standard for administrative closure that and would go a long way towards clearing the Immigration Court’s backlogged dockets.

In another previous blog, extracts of which are reproduced here, we discussed the numerous Circuit Court decisions that have overturned Castro-Tum. In 2019, the Fourth Circuit in Romero v. Barr held that the language “may take any action…..appropriate and necessary for the disposition” of the case” at 8 CFR §§ 1003.1(d)(1)(ii) & 1003.10(b) unambiguously confers upon IJs and the BIA the general authority to administratively close cases. Meza-Morales v. Barr, decided by the Seventh Circuit in 2020, also concluded that the “immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Most recently, the Third Circuit in Sanchez v. Attorney General, held that 8 CFR §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously grant IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases. The Court in Sanchez relied on the Supreme Court’s 2018 decision in Kisor v. Wilkie, which held that an agency’s interpretation of its own regulations will only be entitled to deference if the following criteria are met: i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

On July 15, 2021,  Attorney General Garland issued a decision in Matter of Cruz-Valdez that overrules Castro-Tum in its entirety and held that “[i]mmigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan…” The decision noted that three courts of appeals have rejected Castro – Tum, “holding that administrative closure is ‘plainly within an immigration judge’s authority’ under Department of Justice regulations”, while only the 6th Circuit upheld it in Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020). Even the 6th Circuit eventually ruled that IJs and the BIA do have the authority to administratively close cases for the purpose of allowing noncitizens to apply for provisional unlawful presence waivers, however. See Garcia-DeLeon v. Garland, No. 20-3957 (6th Cir. 2021). The decision also pointed to the 2020 DOJ final rule codifying Castro-Tum, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81588, 81598 (Dec. 16, 2020), which was the subject of a nationwide preliminary injunction and undergoing reconsideration by the DOJ, as further justification for overruling Castro-Tum. Because Castro-Tum departed from longstanding practice regarding administrative closure, AG Garland held that IJs and the BIA should revert to the standards for administrative closure laid out in cases like Avetisyan.

Despite Castro-Tum being overruled, it is disappointing that the Second Circuit held that a decision not to close under a prior precedent is still binding even though the Biden administration has overruled it.  It is also surprising that Biden’s Justice Department defended the BIA’s decision. Garcia v. Garland involved a Petitioner, Antonio Luna Garcia, who was issued a Notice to Appear (“NTA”) in 2004 under 8 U.S.C. § 1182(a)(6)(A)(i) because he had entered the U.S. in 1999 and remained ever since without having been inspected or paroled. Garcia’s wife then filed an I-130 petition on his behalf, which was approved. Because he had never been admitted or paroled into the U.S., however, Garcia was ineligible to adjust status in the U.S. If he were to return to Mexico to consular process, he would be subject to the 10-year bar under 8 U.S.C. § 1182(a)(9)(B)(i)(II) as he had been accrued far more than a year of unlawful presence in the U.S. Garcia requested that the Immigration Judge (“IJ”) adjourn his merits hearing to a later date to allow him to apply for an I-601A waiver. The IJ declined to grant a continuance, finding that Garcia failed to show good cause. The IJ also declined to grant administrative closure, stating that it was “no longer an option in this case” after Matter of Castro -Tum. On appeal, the BIA upheld the IJ’s denial of administrative closure, citing Matter of Castro -Tum and holding that “[t]he Attorney General has explicitly held that the Board and the Immigration Judges lack the general authority to administratively close cases.”

Garcia appealed to the Second Circuit, arguing first that the agency’s overturning of Matter of Castro -Tum in Matter of Cruz-Valdez renders its previous reliance on Castro-Tum an abuse of discretion. Garcia also asserted that, even if the agency’s earlier application of Castro-Tum was not an abuse of the discretion, Castro-Tum conflicted with the regulations which expressly empower IJs and the BIA to grant administrative closure. Finally, Garcia argued that 8 C.F.R. § 212.7(e)(4)(iii) expressly contemplates administrative closure in cases like his, so the IJ or the BIA could have granted administrative closure in his case, despite the general rule of Castro-Tum.

The Second Circuit rejected all of Garcia’s arguments. First, the court held that the BIA’s previous reliance on Matter of Castro -Tum was not an abuse of discretion because the holding of the case was “valid and applicable” at the time of the agency’s decision. The court reasoned that agencies need not overturn precedential decisions in the same way that courts do, stating that “when an agency reinterprets an ambiguous statutory provision, it is making policy within the bounds of discretion that Congress has conferred on the agency by statute”. The court further stated that “[b]ecause an agency interpretation of its regulations may reflect policy judgment, the interpretation may vary at different times—especially between different administrations—without casting doubt on the validity of the interpretation at either time”. Additionally, the court held that the “regulations considered in Matter of Castro-Tum are at least ambiguous and that the Attorney General’s interpretation was reasonable”, so the BIA did not abuse its discretion by following that interpretation. The court disagreed with circuits that have found the “necessary and appropriate” language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) to unambiguously authorize administrative closure, reasoning that these provisions authorize actions necessary “for the disposition of” a case and administrative closure is arguably not a disposition because it does not resolve a case on its merits. The Sixth Circuit, as the court pointed out, adopted a similar interpretation of the regulations in Hernandez-Serrano v. Barr, 981 F.3d 459 (6th Cir. 2020). Because the regulations can be read in this way, the court found both the AG’s interpretation to reasonable, and held that the IJ and BIA permissibly relied on this reading. Further, the court rejected Garcia’s contention that administrative closure remained an option in his case, reasoning that IJs and the BIA are delegates of the AG, not the Secretary of Homeland Security, so a DHS regulation cannot provide independent authorization for administrative closure.

On the whole, Garcia v. Garland upheld as valid the application of Castro-Tum before the case was overruled. It also unfortunate that the government did not decline to defend the BIA’s decision on that ground that it relied on Matter of Castro-Tum, which the Biden administration has since overturned.  Nonetheless, the case leaves open some interesting possibilities. In Garcia v. Garland the Second Circuit held that that agency’s interpretation on administrative closure was valid because Matter of Castro-Tum was valid and applicable at the time of the agency’s decision. Thus, if an IJ or the BIA grant administrative closure in reliance on Matter of Cruz-Valdez, that decision should be upheld even if a less immigrant-friendly administration overrules the decision in future. The same logic could apply to other Biden administration policies should they be challenged in future. Further, the decision in Garcia v. Garland asserts that principle that different administrations may reinterpret ambiguous statutory provisions. We have previously suggested, here and here, that the Biden administration could interpret INA § 203(d) to count derivatives with the principal family member. The language of INA § 203(d) provides authority for family members to be counted under the preference quotas, and states that family members are “entitled to the same status, and the same order of consideration” as the principal. The plain language of the statue does not require that family members be allocated separate visa numbers. Unfortunately, in Wang v. Blinken, the DC Court of Appeals held that there was no ambiguity under INA § 203(d) thus making it clear that derivatives need to be separately counted. If the Biden administration or another administration changes its mind and decides to adopt a nationwide policy to not count derivatives on the ground that INA § 203(d) is ambiguous, it would be precluded from implementing this policy for people living within the jurisdiction of the D.C Circuit, but the policy could be applicable to people outside the DC Circuit under the Brand X doctrine (thus overruling the case everywhere except in the DC Circuit). This situation exists today even with administrative closure. Matter of Cruz-Valdez has overturned Castro-Tum nationwide except in the Sixth Circuit.

Although Garcia v. Garland is a disappointing decision, it provides an opening for the administration to reinterpret ambiguous statutes as well as protects prior interpretations should a future administration decide to change the interpretation.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Dealing With Section H.10-B Labor Certification Denials

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, reports of PERM labor certification denials concerning the manner in which question H.10-B was completed on Form ETA 9089 have abounded from many immigration lawyers and their clients. This question asks employers to “identity the job title of the acceptable alternate occupation” if an alternate exists. The DOL has promulgated little guidance on this question, so immigration lawyers have been accustomed to completed it in a variety of ways. While some employers may prefer to list related job titles in H.10-B, a candidate’s qualifying experience may have been gained in positions with various nondescriptive job titles. Thus, employers may choose to respond by instead describing the experience such as “2 years of experience in engineering management” and then referring to section H.14., which lists the requirements of the offered position, rather than attempting to list specific job titles. The DOL has historically accepted PERM applications that respond to question H.10-B in this way, and this approach is consistent with guidance that it has previously issued by the DOL’s Office of Foreign Labor Certification (OFLC), so the wave of recent denials is puzzling.

The uptick in PERM denials concerning question H.10-B seems to have begun between October and December 2022, when the percentage of PERM applications denied by the DOL nearly doubled when compared to data from the first quarter of FY 2022. The denials seem to focus on the idea that question H.10-B is not properly completed unless specific job titles are listed. Because DOL takes the position that this field in the form was not properly completed if an employer uses alternate language, it asserts that the entire PERM application is rendered incomplete. The DOL cites to 20 CFR § 656.17(a), which states that incomplete applications will be denied, as the authority for the denials.

On November 17, 2022, OFLC communicated the following guidance to the American Immigration Lawyers Association (AILA) in response to reports of numerous denials on this issue: “OFLC understands that there may be a variety of relevant specific job titles in which required experience may be gained. Employers may list a specific job title, a number of related job titles, or even language such as ‘any occupation in which the required experience was gained.’ The answer does not have to be an exact job title, but employers still have to answer the question. If employers reference H.14 to answer the question in H.10-B, employers must be sure to answer the H.10-B question. Just providing a list of requirements is not acceptable.” See AILA Doc. 22092601. Interestingly, AILA received reports of continued denials on the question H.10-B issue well into March 2023, even when the PERM application contained language similar or identical to that prescribed by OFLC in November 2022. Id.

Historically, BALCA’s decision in Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998), has been the prevailing guidance concerning alternative requirements. In Kellogg, BALCA held that employers should indicate that it will accept “any suitable combination of education, training or experience” if the primary and alternate requirements for the position are not “substantially equivalent”. 20 CFR §656.17(h)(4)(ii) broadened the holding of Kellogg to apply whenever there are alternate requirements, providing as follows:

“If the alien beneficiary already is employed by the employer and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.”

However, in Matter of Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009), BALCA held that failure to include the Kellogg language on an ETA 9089 should not be a basis for denial, noting that there is no suitable place on the form to include the language. Nothing in the holdings of Kellogg or its progeny, however, seems to be instructive regarding whether specific job titles must be listed for alternate occupations.

The DOL is aware of inconsistencies in the adjudication of PERM applications, and has communicated to AILA that it will review applications where an employer has filed a Request for Reconsideration (“RFR”) for a denial based on the manner in which question H.10-B was completed. According the AILA, “where the reason for denial is Question H.10-B only, OFLC will pull the case out of the usual order to review and certify the application where appropriate. OFLC has indicated that there are several hundreds of these cases. While OFLC will start reviewing these cases immediately, it may take several weeks to process them all.” See AILA Doc. 22092601. It thus seems that immigration lawyers and their clients who are dealing with an H.10-B denial may be able to get resolution simply by filing an RFR.

The recent denials still pose a number of complications, though. If the PERM was filed in the sixth year in H-1B status, because the DOL is likely to take at least several weeks to process RFRs, some employees may reach the end of their sixth year in H-1B status and be forced to leave the U.S. during this extended waiting period, even if the DOL ultimately certifies the PERM. On the other hand, if the PERM was filed one year or more prior to the end of the sixth year, the PERM that is the subject of an RFR is still considered pending and can provide the basis for a one-year H-1B extension under § 106(a) of the American Competitiveness in the 21st Century Act.   Moreover, immigration lawyers and their clients who process many PERM applications have been left wondering whether other pending PERM applications that use the same language for question H.10-B will be denied. If that is so, then employers should continue to file RFRs each time there is a denial.  If a Prevailing Wage Request or recruitment such as job orders and newspaper ads are already in progress and use general language like “5 years of experience in the biotechnology industry”, it is hoped that DOL will no longer deny such a PERM in light of its announcement that employers may file RFRs. It would be in violation of the Administrative Procedure Act for the DOL to deny pending and future applications without notice and the opportunity to comment on the change.

In general, it is a best practice to ensure that the Prevailing Wage Determination on Form 9141, all recruitment, and the ETA 9089 itself use identical language. While it would easier said than done for the employer to start all over again by requesting a new Prevailing Wage Determination if the language is not consistent with DOL’s latest guidance, obtaining a new 9141 Prevailing Wage Determination could take 12-14 months. If the prevailing wage request is pending and indicates experience rather than titles that have resulted in denials, or if the advertisements are already running with that language, it would be defensible to not change course and list the experience in the same way in H.10-B. Alternatively, the employer may include the “magic” language as suggested by OFLC to AILA in its November 17, 2022 guidance by stating in ETA 9089 H.10-B “any occupation in which the required experience or skills were gained as specified in H.14” . H.14 can list the skills or experience required for the position that was stated in the advertisements or the prevailing wage request. This modification would likely not be inconsistent with the way the job requirements were set forth in the 9141 or the recruitment.

Although it is salutary that the DOL has allowed employers with denied PERMs based on how H10-B was completed to submit RFRs, until this issue is resolved, employers must also find ways to prevent further denials by drafting the language in H.10-B to hew as closely as possible to the DOL guidance provided to AILA while also not veering too far off from the way the requirements have been listed in the prevailing wage determination and ongoing recruitment.

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

Pathways for Terminated H-1B Workers Who Want to Become Entrepreneurs

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By Cyrus D. Mehta & Jessica Paszko*

The list of options for an H-1B beneficiary who has been laid off is often narrow. At the top of the list sits the most obvious option: find another employer who will sponsor you for an H-1B. Although, in the current job market, which is growing more competitive due to the influx of laid off employees, there simply may not be enough open positions to fill. But laid off H-1B beneficiaries who can’t find another employer to sponsor them and who have been dreaming of setting up their own startups may not need to pack their bags and book their flights home just yet as there might be another, more creative option to consider: starting your own company and extending H-1B status through that company.  Whichever option laid off beneficiaries pursue; they have 60 days to get their affairs in order under 8 C.F.R. § 214.1(l)(2) which allows H-1B beneficiaries to remain in the U.S. for up to 60 days after their H-1B employment ceases.

The last time we explored the topic of H-1B entrepreneurs, the control test in the Memo “Determining Employer-Employee Relationship for Adjudications of H-1B Petitions, Including Third-Party Site Placements” by Donald Neufeld posed an obstacle. The Neufeld Memo attempted to clarify what constitutes a valid employer-employee relationship under 8 C.F.R. § 214.2(h)(4)(ii) and established a policy wherein H-1B petitioners had to establish that they had the right to control over when, where and how the beneficiary performed the job. Neufeld urged USCIS officers to consider eleven factors in determining whether a petitioner had sufficiently established its “right to control”. Despite the Neufeld Memo, we still entertained, in our blog, the idea of whether a startup owner can be able to get  sponsored on an H-1B through a startup, while simultaneously addressing the potential obstacles that one might experience in attempting such a feat.

Now, ten years after that blog was published, changes have occurred in immigration policy that contemplate scenarios in which entrepreneurs can remain in the U.S. on an H-1B through their startup or be paroled into the U.S. to set up their start-ups. For starters, on June 17, 2020, the Neufeld Memo was rescinded, effectively ending the “right to control” era. Instead, in assessing whether an employee and a beneficiary have an employer-employee relationship, USCIS officers were instructed to consider whether the petitioner has established that it meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors with respect to the beneficiary. See 8 C.F.R. § 214.2(h)(4)(ii). Most recently, on March 10, 2023, USCIS issued comprehensive guidance on parole for international entrepreneurs.

USCIS has also provided FAQs where it addresses parole pathways for entrepreneurs under the International Entrepreneur Rule, a topic that is not the focus of this blog, but which also touches on the key requirements that one must fulfill to qualify for classification as an H-1B specialty occupation worker. The first requirement is establishing an employer-employee relationship with the petitioning U.S. employer. Here, the sole or majority owner of the petitioning company may be able to establish a valid employer-employee relationship if the facts show that the petitioning entity meets at least one of the “hire, pay, fire, supervise, or otherwise control the work of” factors.  Old decisions recognize the separate existence of the corporate entity as separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. This point needs to be brought out when advancing an H-1B for an entrepreneur when Neufeld has been rescinded. Still, we acknowledge that the H-1B petition may have more success when there is another investor or shareholder, and the beneficiary is not the sole owner of the entity. That person may be able to exercise control over the H-1B beneficiary, even if they have a minority interest. It may not be necessary to show that the other individual or entity has the power to discipline the beneficiary, but only that this person can exercise negative control over the beneficiary’s decisions. There is nothing preventing the other individual from being a family member, and the shareholder or director also need not be residing in the U.S.

The second requirement is establishing that the job qualifies as a specialty occupation under one of the four criteria under 8 C.F.R. § 214.2(h)(4)(iii)(A). The third requirement is establishing that the job is in a specialty occupation related to the beneficiary’s field of study which may done by submitting a detailed description of the specific duties of the position, written opinions from experts in the field, resources describing the degree fields normally associated with the occupation, or evidence that similar companies in the industry require similar degrees for similar positions. USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Lastly, the fourth requirement is that an H-1B visa number be available at the time of filing the petition, unless the petition is exempt from numerical limits, though the topic of this blog assumes that one has already been counted against the cap. Notably, this new guidance does not seem to elevate control over all the other components in the employer-employee relationship under 8 C.F.R. § 214.2(h).

There are other challenges for an H-1B entrepreneur that may be beyond the USCIS’s control. Every H-1B petition must be accompanied by a certified Labor Condition Application (LCA) from the DOL. Under an LCA, the employer attests that it must pay the beneficiary the higher of the prevailing or actual wage, and must also do so on a regular prorated basis. In a startup, there may be no revenue stream to pay the entrepreneur initially. Thus, unless the startup is sufficiently capitalized through venture capital or other forms of financing that can ensure a steady stream of income to the H-1B beneficiary at the required wage, the petitioning entity may be in violation of the DOL rules if it cannot guarantee a regular prevailing wage.

Still, these challenges are not insurmountable. H-1B beneficiaries who wish to obtain H-1B status through their startups face a less hostile environment as they do not have to deal with the control test under the Neufeld memo. Before, our answer to the question of “can the startup owner be able to sponsor themselves on an H-1B through the startup?” was a shaky “maybe”. Now, however, while still not implying a definitive “yes”, there is at least more reason to believe that an entrepreneur should be able to successfully sponsor him or herself through their own startup, especially in light of the June 17, 2020 guidance and the latest FAQs. If the beneficiary has an approved I-140, then he or she can also get three year H-1B extensions if eligible. Recall though that those who qualify for three year extensions only do so because they are nationals of countries with per-country limitations. Thus, when their priority dates become current, they will no longer be eligible for three year H-1B extensions. At that point, they could file an EB-2 National Interest Waiver (NIW), for instance, in order to be to apply for a green card through a viable I-140 petition and in doing so, will be able to recapture their old priority date. As a result of starting their own companies, these entrepreneurs can now capitalize on their startups and use them as a basis for establishing their eligibility for the NIW. The NIW may also be a viable option for those in the STEM field as the USCIS Policy Manual was updated last year to clarify how the NIW can be used by STEM entrepreneurs.

On the other hand, H-1B beneficiaries who are terminated and have pending I-485 applications can attempt to port to self-employment. INA § 204(j) allows foreign workers who are being petitioned for permanent residence by their employer to change jobs once their I-485 applications have been pending for 180 days or more. 8 C.F.R.§ 245.25(a)(2)(ii)(B) even allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing. Therefore, H-1B beneficiaries who have a pending or approved I-140 and who have adjustment applications that have been pending for 180 days can, after being terminated by their H-1B/I-140 sponsor, start their company and port to that company, or even a sole proprietorship,  so long as their job duties are same or similar to the occupation that was the basis of the I-140 petition. They may ne able to rely on their pending I-485 application, and employment authorization document, rather than remain in H-1B status.

While there is no specific startup visa in the INA, USCIS should think of immigration in a strategic sense as a mechanism to create wealth and expand the economy. By encouraging H-1B entrepreneurs the USCIS should also think like an entrepreneur, use all its authority under the INA to allow entrepreneurs to remain and thrive in the U.S., and adjudicate H-1B petitions consistent with this objective. Notwithstanding a downturn in certain sectors of the economy, the talents and creative energies of H-1B workers who have been laid off can be unleashed so that they be part of the effort in turning around the economy in addition to landing on their feet.

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

 

 

 

Cyrus Mehta

Providing Competent Representation to Undocumented Noncitizens Despite the Criminal Encouragement Provision 

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By Cyrus D. Mehta and Kaitlyn Box*

Our previous blog discussed United States v. Helaman Hansen, a case in which the Supreme Court granted certiorari on December 9, 2022. Oral argument in the case is set for March 27, 2023. Hansen questions whether INA §274(a)(1)(A)(iv), or the “encouragement provision”, which prohibits individuals from “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is unconstitutionally overbroad. Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to help undocumented immigrants become U.S. citizens through adult adoption. In reality, this is not possible, and Hansen was convicted for having violated INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions.

Hansen first moved to dismiss his convictions based on a violation of INA §274(a)(1)(A)(iv), arguing that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion. He then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The Ninth Circuit agreed, holding that the encouragement provision prohibits a broad range of protected speech. One could violate 8 U.S.C. § 1324(a)(1)(A)(iv) merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The government is seeking review of the Ninth Circuit’s decision at the Supreme Court. The government’s brief focuses on the argument that INA §274(a)(1)(A)(iv) is not facially overbroad because the terms “encourage” and “induce” in the encouragement provision are terms of art borrowed from criminal law that refer to specific and egregious conduct, namely facilitation and solicitation. The government further argues that the statutory history and context of the encouragement provision indicate that it is aimed at punishing facilitation and solicitation, rather than a broader range of conduct. The government also asserts that fear of prosecution under the encouragement provision are unlikely to chill legitimate advice to undocumented immigrations because the fraud counts Hansen was charged with require that the offense be “done for the purpose of commercial advantage or private financial gain”, a criterion that would not be met in many scenarios.

AILA and numerous other immigration organizations filed an amicus brief that points out the troubling implications that the encouragement provision could have for immigration lawyers:

Elliptical counseling is particularly ill-suited to the immigration context, which is high-stakes and complex. Clients in this area need straightforward advice about what to do. And it would be especially strange to fault attorneys for advising noncitizen clients about remaining in the United States in violation of civil immigration laws, when those laws themselves condition numerous benefits on physical presence in the United States.

The brief cites our previous blog on Hansen as evidence that “The immigration bar has taken note of the government’s arguments about the Encouragement Provision, and is actively discussing when and how immigration practitioners should self-censor to avoid criminal liability”. Amici also point out that while the “financial gain” requirement contained in the provisions that Hansen was charged under might exempt well-intended advice given to a noncitizen by a priest or social worker, it “leaves large quantities of immigration advice within the statute’s reach” as private lawyers, and sometimes even those who work for a nonprofit organization, often charge at least a nominal fee for their services. Given the complexity of immigration law, the idea that lawyers could be deterred from providing advice to clients for fear of being punished under the encouragement provision is particularly troubling. Many immigration benefits are only available to noncitizens who are physically present in the United States, so an immigration lawyer could competently and ethically advise an undocumented client to remain in the U.S. for a variety of reasons. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court recognized the importance of encouraging “full and frank communication between attorneys and their clients and thereby promot[ing] broader public interests in the observance of law and administration of justice”. The most severe consequence for a violation of immigration law is deportation, which is a severe and potentially life-altering punishment. For this reason, it is of the utmost importance that immigration lawyers be able to freely advice their clients.

In our previous blog, we suggested that a best practice for immigration lawyers in light of Hansen is to refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action. Moreover,  ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” ABA Model Rule 1.2(d) may thus provide some refuge for lawyers who competently counsel undocumented clients. Given the strikingly broad sweep of INA §274(a)(1)(A)(iv), it is unclear how much protection it would provide to a lawyer who was prosecuted under the encouragement provision.

First, encouraging an undocumented client to stay in the US may be a violation of a civil statute, rather than constitute criminal or fraudulent conduct. The analog of Rule 1.2(d) in the New York Rules of Professional Conduct states: “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.” Although the New York version of Rule 1.2(d) prohibits a lawyer from counseling or assisting a client in conduct that is “illegal,” we question whether advising an undocumented person to remain in the US in order to seek a benefit under INA constitutes conduct that is illegal. We also recognize that a noncitizen who has been ordered removed and who fails to depart within 90 days can incur criminal liability under INA § 243(a). However, INA § 243(a)(2) provides an exception from criminal liability if willfully remaining in the US is for the “purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” A noncitizen who received a final removal order may move to reopen, even many years later, if the government consents to reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

Further, a lawyer who hedges his advice in conditional probabilities may be at risk of failing to provide competent representation. Even the government’s brief assures that lawyers  will not be prosecuted if  they advise their clients that they are unlikely to be removed. This is in contrast to a lawyer strongly recommending that the undocumented client remain in the US in the hope of seeking a benefit in the future, and the government’s brief does not provide any assurance that such advice would insulate the lawyer from prosecution under INA §274(a)(1)(A)(iv). The government offers the example of a lawyer advising a client in removal proceedings who has been released on bond to stay in the US but that is different from advising an undocumented client whose US citizen child will turn 21 in two years to remain in the US, which is when the parent would qualify for adjustment of status.

Some clients may be unable to interpret opaque advice from their lawyers, and a lawyer may not provide adequate representation in this scenario unless she gives the client a clearer recommendation.  ABA Model Rule 1.1 and some state analogs caution that “a lawyer shall provide competent representation”, the “shall” language leaving little room for error. Additionally, as noted above,  it may be necessary for an immigration lawyer to frankly advise an undocumented client to stay in the US in order to apply for a benefit like adjustment of status, a T visa, or DACA, which would be unavailable to the client if she left the country. It is difficult to imagine how a lawyer could provide competent representation to her client without outlining the immigration benefits that the client may be eligible for and advising him how to obtain them by remaining in the US.  INA §274(a)(1)(A)(iv) would chill the ability of the lawyer to provide such advice and thus inhibit competent representation. Operating within the contours of Rule 1.2(d) might impede rather than facilitate competent representation in the immigration context, although until the Supreme Court provides more clarity, immigration lawyers will need to operate within the framework of Rule 1.2(d).

Regardless of the outcome in US v. Hansen, a lawyer ought not to be sanctioned under either INA §274(a)(1)(A)(iv) or Rule 1.2(d) who advises an undocumented client to remain in the US if the lawyer is doing so as part of competent representation.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Khedkar v. USCIS Affirms that Employee Also Has Interest in an I-140 Petition Filed By Employer

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By Cyrus D. Mehta and Kaitlyn Box

Because an employment-based immigrant visa petition, or Form I-140, is filed by an employer on behalf of a foreign national employee who is being sponsored for permanent residency, there is sometimes a perception that both the I-140 petition and the underlying labor certification belong to the employer. They are initiated by the employer on behalf of the noncitizen employee or prospective employee who is referred to as the beneficiary. The I-140 petition is signed by the employer. Although one part of the labor certification is signed by the beneficiary, the employer still drives the labor certification process and files the application. It is the employer who also has the unilateral power to withdraw the labor certification or I-140 petition.

However, a recent U.S. District Court case, Khedkar v. USCIS, 552 F. Supp. 3d 1 (DDC 2021), reiterated the idea that a beneficiary also has an interest in the I-140 petition. Mr. Khedkar’s employer, Deloitte, had filed an I-140 petition on his behalf classifying him as a multinational manager under INA § 203(b)(C), while Khedkar concurrently filed an adjustment of status application. Khedkar then joined another employer, Alpha Net Consulting LLC, in a similar position and filed an I-485 Supplement J to notify USICS that he was porting to a similar job. The USCIS issued a Request for Evidence but Khedkar’s former employer, Deloitte, was not interested in responding after he had left the company. Khedkar then joined IBM and filed another I-485J. Khedkar did not realize that the USCIS had sent an RFE to Deloitte, which was not responded to. The USCIS denied the I-140 petition for failure to respond to the I-140 petition. Khedkar filed a motion to reopen with USCIS and then an appeal to the Administrative Appeals Office, but both agencies did not recognize Khedkar as an affected party. Khedkar sought review under the Administrative Procedures Act in federal district court. The court agreed with Khedkar that USCIS should have issued the RFE to Khedkar rather than Deloitte after he provided notification to the USCIS about his porting through I-485 Supplement J. “The result is not only at odds with the portability provision’s aim of encouraging job flexibility — it is unfair too,” Judge Contreras said.

The court’s decision in Khedkar v. USCIS is in keeping with a growing understanding that beneficiaries also have a legal interest in I-140 petitions as we also observed in a prior blog. Current regulations generally preclude beneficiaries from participating in employment-based immigrant visa proceedings, including post-adjudication motions and appeals. But this changes when a beneficiary exercises her right to job portability pursuant to INA §204(j) and 8 CFR § 245.25(a)(2)(ii)(B). If a Request for Evidence (RFE) is subsequently issued on the underlying I-140, the beneficiary may be entitled to this RFE as they may be able to respond to it even if the employer chooses not to.

INA §204(j) allows foreign workers who are being petitioned for permanent residence by their employer to change jobs once their I-485 adjustment of status application has been pending for 180 days or more. Furthermore, 8 CFR § 245.25(a)(2)(ii)(B) allows a beneficiary to port to a new employer based on an unadjudicated I-140, filed concurrently with an I-485 application, so long as it is approvable at the time of filing.

Even if a petitioner decides not to employ a beneficiary after the filing of an I-140 and I-485, this  does not preclude a petitioner from responding to an RFE issued on the underlying I-140 for a beneficiary who has already ported or who may port in the near future. This is because this intention – which is to no longer employ the beneficiary – was formed after the filing of the I-140 and I-485. Therefore, a petitioning employer may still seek to establish that the I-140 was approvable when filed pursuant to 8 CFR § 245.25(a)(2)(ii)(B), and indicate that it has no intention to permanently employ the beneficiary, so that a beneficiary may exercise job portability based on her pending I-485. Our firm had success in such a situation wherein a beneficiary of a previously filed I-140 and I-485 was able to work with a petitioner to respond to an RFE even though the beneficiary would not be employed permanently and had expressed an intention to port to a new job in the same occupational classification.  After the I-140 had been erroneously denied on grounds not related to the lack of permanent employment, our firm assisted the beneficiary in successfully reopening the I-140 with the cooperation of the petitioner, and ultimately winning approval of the I-140 and approval of the I-485 for the beneficiary.

The question remains, however, what recourse does a beneficiary have if the petitioner refuses to respond to an RFE, or otherwise cooperate with the beneficiary? May a beneficiary, for example, file an I-290B notice of appeal or motion to reopen a subsequent denial of the I-140?

The answer may be found under existing USCIS policy. Under the Policy Memo promulgated on November 11, 2017, a Beneficiary becomes an “affected party” upon USCIS’ favorable determination that the beneficiary is eligible to port. See USCIS, Guidance on Notice to, and Standing for, AC21 Beneficiaries about I-140 Approvals Being Revoked After Matter of V-S-G- Inc., PM-602-0152, Nov. 11, 2017 at page 5.  Thus, under the policy adopted by USCIS in Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017),  beneficiaries, who are affected parties as defined in the Matter of V-S-G- Inc. decision, are entitled to a copy of any decision made by USCIS and may file an appeal or motion on Form I-290B with respect to a revoked Form I-140, even though existing form instructions generally preclude beneficiary filings.

In Matter of V-S-G- Inc., which we have discussed at length in a prior blog, the beneficiary had changed employers and taken a new position after the adjustment of status application had been pending for more than 180 days.  Meanwhile, the president of their original petitioning organization was convicted of mail fraud in connection with another USCIS petition.  USCIS sent a notice of intent to revoke (“NOIR”).  When the petitioner failed to respond to the NOIR, USCIS revoked the petitioner’s approval due to the petitioner’s failure to respond. Although Matter of V-S-G-, Inc. dealt with the issue of an NOIR of an approved I-140 petition, one could argue that the AAO should extend the holding in Matter of V-S-G- to a Beneficiary who successfully ports to a new employer while the underlying I-140 remains unadjudicated.  This is because upon the filing of an I-485, Supplement J – required when the beneficiary ports or intends to port to a job in a same or similar occupational classification – the beneficiary becomes an “affected party,” and should be given a copy of any RFE, as well as a copy of any subsequent denial of her I-140. The argument for extending Matter of V-S-G is further supported by the promulgation of 8 CFR § 245.25(a)(2)(ii)(B), which enables the I-140 to be approved even if a job offer no longer exists so long as the I-140 was eligible for approval at the time of filing. See 8 CFR § 245.25(a)(2)(ii)(B)(2). 

A review of the preamble to 8 CFR § 245.25 published in the Federal Register, while not dispositive, also supports this position. The preamble notes that several commentators had expressed concern that individual beneficiaries of Form I-140s are not provided notice when USCIS seeks to revoke the approval of those petitions. In response, DHS noted that it was considering administrative action to address these concerns. See Federal Register /Vol. 81, No. 223 /Friday, November 18, 2016 /Rules and Regulations at page 82418 (hereinafter the “preamble”). Similar concerns were also raised in the preamble in the section entitled “Portability Under INA 204(j)” wherein the DHS states:

As a practical matter, petitioners have diminished incentives to address inquiries regarding qualifying Form I-140 petitions once beneficiaries have a new job offer that may qualify for INA 104(j) portability […] Accordingly, denying a qualifying Form I-140 petition for either ability to pay issues that occur after the time of filing, or for other petition eligibility issues that transpire after the associated application for adjustment of status has been pending for 180 days or more, would be contrary to the primary goal of AC21. Such a policy would in significant part defeat the aim to allow individuals the ability to change jobs and benefit from INA 204(j) so long as their associated application for adjustment of status has been pending for 180 days or more.

In a perfect world, a beneficiary ought to be able to work with a petitioner for the purpose of responding to any RFE or NOIR issued on a previously filed I-140 and I-485 despite the petitioner’s lack of intention to continue to employ the beneficiary. However, as a practical matter, a petitioning employer is likely to refuse to cooperate with a beneficiary who has already been terminated. Nonetheless, there exists a compelling argument that the beneficiary be allowed to respond due to the growing legal recognition of a beneficiary’s interest in an I-140 approval where there is also a pending I-485.  Although Matter of V-S-G-, Inc. dealt with the issue of a NOIR of an approved I-140 petition, it would be consistent with the holding to argue that if a beneficiary is able to successfully port to a new employer prior to the issuance of an RFE, that beneficiary is also an “affected party” due to her interest in demonstrating that the I-140 was approvable as filed.  USCIS ought to extend the holding in Matter of V-S-G- to any beneficiary who successfully ports while the underlying I-140 remains unadjudicated and was filed concurrently with an I-485 application. This has been affirmed in Khedkar which remains an unpublished decision.  Such an extension would go a long way towards fulfilling one of the primary goals of AC21 by allowing individuals the ability to change jobs and benefit from INA § 204(j). Even if the employer does not participate, a beneficiary should be allowed to respond to the RFE in order to establish that the I-140 was approvable when it was filed concurrently with an I-485 application.  Such an extension of the holding of Matter of V-S-G- would also be in line with the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue under the Administrative Procedure Act when his or her claim is within the zone of interests a statute or regulation protects. Other courts have agreed that the original employer should not be the exclusive party receiving notice relating to an I-140 petition when the foreign national employee has ported to a new employer. Beneficiaries who have ported to new employers fall within INA § 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson, 809 F.2d 721 (2015)  and Kurupati v. USCIS, 775 F.3d 1255 (2014). As stated in Khedkar v. USCIS, this logic should now extend to the ability of a foreign national beneficiary of an I-140 petition to be able to respond to an RFE even before it gets denied, especially since 8 CFR § 245.25(a)(2)(ii)(B)(2) permits the beneficiary to port based on a concurrently filed unadjudicated I-140 petition and I-485 application. This regulation, which was promulgated consistent with Lexmark, will carry little force if the beneficiary is not considered an affected party in order to challenge both an RFE and a denial.

Finally, employers and their attorneys who are reluctant to share a decision involving an I-140 petition with the beneficiary especially after they have ported should recognize that the beneficiary has an interest in the I-140 petition and would be deprived in responding to a request for evidence or a denial when courts have explicitly held that they can do so. The beneficiary may also  need to know the job description in the labor certification to port to a same or similar job under INA § 204(j). They may also need the approval notice of the I-140 petition for purposes of obtaining a three-year H-1B extension under § 104(c) of the American Competitiveness in the 21st Century Act. Moreover, they may also need to know the priority date of this I-140 petition in case a new employer will file a new I-140 petition on their behalf.  Khedkar v. USCIS and other cases have affirmed the strong interest that the beneficiary who has ported under INA 204(j) has in an I-140 petition even if it was initiated and filed by the employer.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced To Allow Many More Backlogged Immigrants To File Adjustment of Status Applications

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By Cyrus D. Mehta

On February 14, 2023, the USCIS issued updated guidance to indicate when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA). The guidance became on effective 2/14/23 and comments are due by 3/14/23.

Since October 2015, the State Department Visa Bulletin two different charts to determine visa availability – the Final Action Dates (FAD) chart and the Dates for Filing (DFF) chart. The DFF in the Visa Bulletin potentially allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The FAD is the date when permanent residency (the green card) can be granted.  The Filing Date, if the USCIS so determines, allows for the early submission of an I-485 application prior to the date when the green card actually become available.

Prior to February 14, 2023, the USCIS maintained that the FAD protected the age of the child and not the DFF.  Using the DFF to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintained since September 2018 that only the FAD could protect the age of the child. Thus, if an I-485 application was filed pursuant to a DFF and the child aged out before the FAD became available, the child was no longer protected despite being permitted to file an I-485 application. The I-485 application got denied, and if the child no longer had an underlying nonimmigrant status, was placed in great jeopardy through the commencement of removal proceedings, and even if removal proceedings were not commenced, the child could start accruing unlawful presence, which  triggered the 3- and 10-year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent could get approved for permanent residence when the FAD becomes available while the child’s application got denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DFF should protect the age of the child under the CSPA rather than the FAD. On August 24, 2018 the USCIS under the Trump administration  explicitly stated in the USCIS Policy Manual that only the FAD could be used to calculate the age of the child.  Subsequent blogs of mine protesting against this change are here and here. Brent Renison filed a lawsuit in Nakka v. USCIS again arguing that the DFF should be considered the point of time to protect the child’s age and even AILA strongly advocated for this change, which can be found here and here. Several others also advocated on this issue.

The USCIS on February 14, 2023 at long last agreed to use the DFF to protect the age of the child. Those whose I-485 applications were denied under the old policy may file motions to reopen. I had argued that the term “an immigrant visa is immediately available” in  INA 245(a)(3), which allows for the filing of an I-485 application,  has not been defined.  Allowing the filing of an I-485 under the DFF and ahead of the FAD  suggests that the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Indeed, the Visa Bulletin describes the DFF as  “dates for filing visa applications within a timeframe justifying immediate action in the application process.” Under this permissible interpretation, I-485 applications can be filed pursuant to  INA 245(a)(3) under the  DFF. Applicants who file I-485s under both the Filing Date and the Final Action Date must satisfy INA 245(a)(3), which only permits the filing of an I-485 application when “an immigrant visa is immediately available.”

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

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

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a DFF pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the USCIS in it updated policy guidance has stated that the DFF  ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

The new USCIS policy that recognized the DFF for freezing the age of the child acknowledged this:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

USCIS also instructs that those whose I-485 applications got denied because they were not permitted to use the DFF to determine their age may file motions to reopen. While the deadline to file a motion to reopen is 30 days, under 8 CFR 103.5(a)(1)(i) failing to file within 30 days after the denial may be excused if the noncitizen demonstrates that the delay was reasonable and was beyond their control. Hence, those whose applications were denied prior to the change in the policy can request the USCIS to excuse a late filing as the delay was certainly beyond the control of the applicant. What about those who decided not to file an I-485 for their child because of the risks involved if the child aged out before the FAD became current? One can now look back at when the applicable DFF became current which can be used to freeze the age of the child, although under INA 203(h)(1)(A) the applicant should have also sought to acquire permanent resident status to fulfill the condition of freezing the age. If one year has already passed since the DFF became current, it might be possible to demonstrate extraordinary circumstances under Matter of O. Vazquez for failing to seek to acquire permanent resident status. Although the update to the  USCIS Policy Manual has not specifically indicated whether this circumstance qualifies as an extraordinary circumstance, those who did not file I-485 applications within one year of visa availability because they could not predict that the policy would change and also  feared that a denial of the I-485 if the FAD was unable to freeze the child’s age should attempt to invoke the extraordinary circumstance exception.

State Department Must Also Update the FAM to be Consistent with the Updated USCIS Policy Guidance

 Thus far, the State Department has not amended the Foreign Affairs Manual (FAM) to align with the new USCIS Policy. The FAM still states that the age of the child is determined when the FAD becomes current. A child  who is processing for a visa at an overseas post should also be able to rely on the DFF rather than the FAD even if not filing an I-485 adjustment of status application in the US. If the visa became available under the DFF chart, then it should not matter whether the child is filing an I-485 application in the US or is processing for a visa overseas as the age of the child under the CSPA ought to be calculated based on when the visa became immediately available under INA 203(h)(1)(A).

Advancing the DFF Will Provide Relief to More Children and Backlogged Parents

As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs in the employment-based green card categories. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the employment-based second preference (EB-2), those born in India have to wait for decades, and one study estimates the wait time to be 150 years!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can apply for adjustment of status and get  ameliorative relief.

There is a legal basis to advance the DFF even further, perhaps to as close as current. This would allow many backlogged immigrants to file I-485 adjustment of status applications and get the benefits of adjustment of status such as the ability to port to a new job under INA 204(j), obtain travel permission and interim work authorization. Many more of the children of these backlogged immigrants would also be able to protect their age under the USCIS’s updated guidance.

As noted, INA 245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa  is immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 CFR 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 may still potentially be waiting and have yet to receive their green cards even as of today! Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards. More recently, the September 2022  Visa Bulletin has a cutoff date of December 1, 2014 for EB-2 India. In the next October 2022 Visa Bulletin the EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014 or earlier should have been issued permanent residence.

These three examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the Dates for Filing Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

Taking this to its logical extreme, visa availability for establishing the DFF may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the noncitizen beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). DFF could potentially advance and become current, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

8 CFR 245.1(g)(1) could be amended (shown in bold) to expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“Final Action Date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (“‘Dates for Filing”) without reference to the Final Action Date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current Final Action Date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

We appreciate that the Biden Administration has provided relief to hundreds of thousands of children by allowing them to use the more advantageous DFF so that they can get protection from aging out  under the CSPA while their parent remains in the backlogs. The Administration can go one step further by advancing the DFF so that hundreds of thousands more who are backlogged can file I-485 applications and their children can get further protection from aging out. Until Congress acts and adds much needed visa numbers to the employment and family based preferences, implementing this additional step will provide relief to many more in the backlogs.

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

 

Cyrus Mehta

National Interest Waiver Changes for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization

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By Cyrus D. Mehta and Jessica Paszko*

Earlier this year, U.S. Citizenship and Immigration Services (USCIS) announced that as of January 30, 2023, it would accept premium processing requests for all previously filed and newly filed petitions for National Interest Waivers (NIW) under the Employment-Based Second Preference (EB-2) category. For an additional filing fee of $2,500, USCIS will adjudicate these petitions within 45 days. This premium processing development coupled with last year’s update to the USCIS Policy Manual, which clarified how the National Interest Waiver can be used by science, technology, engineering, and mathematics (STEM) graduates and entrepreneurs, makes the National Interest Waiver more appealing than ever. We last covered the National Interest Waiver five years ago after the Administrative Appeals Office of the USCIS issued its precedent decision, Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016) which articulated a new National Interest Waiver standard.

As background, the National Interest Waiver is an immigrant petition for lawful permanent residence under the EB-2 category. In the ordinary course, a valid, permanent offer of employment in the U.S. and a labor certification application certified by the Department of Labor (DOL) are mandatory prerequisites to the filing of such an employment-based immigrant petition. However, the Immigration Act of 1990 (IMMACT90) provided that the labor certification requirement in the employment-based second category may be waived and foreign nationals may qualify for the NIW in the sciences, arts, professions or business if they are: (1) members of the professions holding advanced degrees; or (2) foreign nationals of “exceptional ability” who will “substantially benefit prospectively the national economy, cultural or educational interest, or welfare” of the United States, i.e. where the foreign national’s employment is deemed to be in the “national interest.”

In the updated Policy Manual, under the Specific Evidentiary Considerations for Persons with Advanced Degrees in STEM Fields heading, USCIS states, at the outset, that it was particularly interested in persons with advanced STEM degrees fostering progress in three areas, namely (1) “focused critical and emerging technologies”, (2) “other STEM areas important to U.S. competitiveness”, and (3) “national security.”

Critical and emerging technologies “are those are critical to U.S. national security, including military defense and the economy”. To identify a critical and emerging technology field, USCIS prompts officers to consider governmental, academic, and other authoritative and instructive sources, and all other evidence submitted by the petitioner. Officers may find that a STEM area is important to competitiveness or security in endeavors that will help the U.S. remain ahead of strategic competitors or adversaries or relates to a field that may contribute to the U.S. achieving or maintain technology leadership or peer statues among allies and partners. Moreover, the lists of critical and emerging technology subfields published by the Executive Office of the President, by either the National Science and Technology Council or the National Security Council, are listed as examples of authoritative lists which officers may consider. The Critical and Emerging Technologies List Update, issued in February 2022, defines critical and emerging technologies as “a subset of advanced technologies that are significant to U.S. national security.” It then goes on to list the critical and emerging technology areas that “are of particular importance to the national security of the United States” as well as a set of key subfields for each identified critical and emerging technology. We encourage readers to view the full list, but note the following subfields: supercomputing, edge computing, cloud computing, data storage, computing architectures, data processing and analysis techniques, distributed ledger technologies, digital assets, digital payment technologies, and digital identity infrastructure.

An indicator of STEM areas important to U.S. competitiveness is inclusion as a priority in the annual research and development priorities memo about the President’s budget issued jointly by the White House Director of the Office of Science Technology Policy and the Director of the Office of Management and Budget. For example, the Memorandum on Research and Development Priorities (PDF) (August 2021) for President Biden’s FY2022 budget, where reference is again made to “critical and emerging technologies” including artificial intelligence, quantum information science, advanced communications technologies, microelectronics, high-performance computing, biotechnology, robotics, and space technologies.

U.S. national security objectives, which includes “protect the security of the American people; expand economic prosperity and opportunity; and realize and defend democratic values”, are outlined in the Interim National Security Strategic Guidance (PDF). The Policy Manual instructs that for purposes of National Interest Waiver policy and adjudications, “national security” refers to these three objectives.

Matter of Dhanasar provides that after eligibility for EB-2 classification has been established, USCIS may grant a NIW if the petitioner demonstrates, by a preponderance of the evidence, that:

  • The foreign national’s proposed endeavor has both substantial merit and national importance.
  • The foreign national is well positioned to advance the proposed endeavor.
  • On balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.

The Policy Manual reiterates that with respect to the first prong as set forth in Matter of Dhanasar, supra, as in all cases, the evidence must demonstrate that a STEM endeavor has both substantial merit and national importance. It notes that many proposed endeavors that aim to advance STEM technologies and research, whether in academic or industry settings, not only have substantial merit in relation to U.S. science and technology interests, but also have sufficiently broad potential implications to demonstrate national importance. At the same time though, the Policy Manual makes clear that “classroom teaching activities in STEM” are not, on their own, indicative of an impact in the field of STEM education more broadly, and therefore generally would not establish their national importance.

For the second prong, the person’s education and skillset are relevant to whether the person is well positioned to advance the endeavor. Here, the USCIS officer’s analysis involves assessing whether the person has an advanced degree, such as a Ph.D. which USCIS considers an especially positive factor. But the advanced degree must also be in a STEM field tied to the proposed endeavor and related to work furthering a critical and emerging technology or other STEM area important to U.S competitiveness or national security. Additionally, taking into account that doctoral dissertations and some master’s theses concentrate on a particularized subject matter, the person’s “scientific knowledge in a narrow STEM area” must also be considered in order to determine whether that specific STEM area relates to the proposed endeavor. Finally, the Policy Manual cautions that a degree in and of itself, is not a basis to determine that a person is well positioned to advance the proposed endeavor, and urges petitioners to submit supplemental evidence, including letters from interested government agencies. Evidence that may demonstrate that the person is well-positioned to advance a proposed endeavor includes, but is not limited to:

  • Degrees, certificates, or licenses in the field;
  • Patents, trademarks, or copyrights developed by the person;
  • Letters from experts in the person’s field, describing the person’s past achievements and providing specific examples of how the person is well positioned to advance the person’s endeavor;
  • Published articles or media reports about the person’s achievements or current work;
  • Documentation demonstrating a strong citation history of the person’s work or excerpts of published articles showing positive discourse around, or adoption of, the person’s work;
  • Evidence that the person’s work has influenced the field of endeavor;
  • A plan describing how the person intends to continue the proposed work in the United States;
  • A detailed business plan or other description, along with any relevant supporting evidence, when appropriate;
  • Correspondence from prospective or potential employers, clients, or customers;
  • Documentation reflecting feasible plans for financial support (see below for a more detailed discussion of evidence related to financing for entrepreneurs);
  • Evidence that the person has received investment from U.S. investors, such as venture capital firms, angel investors, or start-up accelerators, and that the amounts are appropriate to the relevant endeavor;
  • Copies of contracts, agreements, or licenses showing the potential impact of the proposed endeavor;
  • Letters from government agencies or quasi-governmental entities in the United States demonstrating that the person is well positioned to advance the proposed endeavor (see below for a more detailed discussion of supporting evidence from interested government agencies and quasi-governmental entities);
  • Evidence that the person has received awards or grants or other indications of relevant non-monetary support (for example, using facilities free of charge) from federal, state, or local government entities with expertise in economic development, research and development, or job creation; and
  • Evidence demonstrating how the person’s work is being used by others, such as, but not limited to:
    • Contracts with companies using products that the person developed or assisted in developing;
    • Documents showing technology that the person invented, or contributed to inventing, and how others use that technology; and
    • Patents or licenses for innovations the person developed with documentation showing why the patent or license is significant to the field.

 

Lastly, with respect to the third prong, the Policy Manual reminds us that it is the petitioner’s burden to establish that factors in favor of granting the waiver outweigh those that support the requirement of a job offer and thus a labor certification. In its evaluation of the third prong and whether the U.S. may benefit from the person’s entry, USCIS considers the following combinations of facts contained in the record to be a strong positive factor:

  • The person possesses an advanced STEM degree, particularly a Ph.D.;
  • The person will be engaged in work furthering a critical and emerging technology or other STEM area important to U.S. competitiveness; and
  • The person is well positioned to advance the proposed STEM endeavor of national importance.

USCIS considers the benefit to be “especially weighty” where the endeavor has the potential to support U.S. national security or enhance U.S. economic competitiveness, or when the petition is supported by letters from interested U.S. government agencies.

The expanded guidance will also benefit noncitizen entrepreneurs under the Matter of Dhanasar standard. They may submit evidence of ownership and a role in the U.S. entity; degrees, certifications, licenses and letters of experience; investments from outside investors; participation in an incubator or accelerator; awards or grants; intellectual property such as patents; published material on the petitioner and U.S. based entity; prospects of revenue generation and job creation; and letters and statements from credible third parties.

In comparison, eligibility under the Employment-Based First-Preference category (EB-1A) can be established through evidence of a one-time, major international award or fulfillment of at least three out of ten criteria. But even after the applicant has demonstrated evidence of at least three criteria, USCIS conducts a final merits determination where it considers the submitted evidence holistically and determines whether the applicant has sustained national or international acclaim and is among the small percentage of individuals who have risen to the top of their field of endeavor. Clearly, to qualify for a National Interest Waiver, one need not satisfy any set regulatory criteria or rise to the EB-1A level of acclaim or level of expertise, which can be quite difficult to establish.  Like the EB-1A, individuals may self-petition for the National Interest Waiver under EB-2 and need not be beholden to an employer.

The NIW on its face will have little utility for India or China born beneficiaries of I-140 petitions in the EB-2. The EB-2 for both these countries is retrogressed, and more so with India which according to the February 2023 State Department Visa Bulletin, the Final Action Date is October 8, 2011. Still, even if an Indian born EB-2 beneficiary obtains the NIW they will not be bound to any employer to file a new labor certification,  and can remain in H-1B status from employer to employer until their Final Action Date becomes current.  Another advantage of the NIW under EB-2 is that dependent spouses in H-4 status can receive work authorization once the I-140 on behalf of a principal beneficiary is approved and the dates for the country remain retrogressed. Currently the EB-2 is retrogressed worldwide at November 1, 2022. Therefore, in addition to H-4 spouses of India born beneficiaries of I-140 petitions, all H-4 spouses would be entitled to work authorization once the I-140 under the NIW is approved. See 8 C.F.R. § 214.2(h)(9)(iv).   Given that there is now premium processing, the speed with which an H-4 spouse can obtain an EAD through the NIW than through the traditional employer sponsored labor certification process is significant.

Although the USCIS has broadened the evidentiary criteria for NIW petitions, it is still important to demonstrate that the national interest of the US will be advanced under the standards set forth in Matter of Dhanasar.  As the EB-1 has become muddied with the need to satisfy the final merits determination, the NIW may be easier to win under the expanded guidance for individuals in STEM and entrepreneurs and may be worth considering if one is born in a country other than India. However, even for those born in India, the NIW may have a significant benefit as it would allow the H-4 spouse to get employment authorization more rapidly.

(This blog is for informational purposes, and should not be relied up as a substitute for legal advice)

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

 

 

 

 

 

Cyrus Mehta

Texas’s Legal Challenge to Biden’s Humanitarian Parole Program is Both Flawed and Inhuman

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By Cyrus D. Mehta and Kaitlyn Box*

President Biden’s humanitarian parole program is a wonderful example of how executive action can reshape immigration policy in the face of Congressional inaction.  It allows people fleeing troubled spots to come to the US in an orderly manner. The program initially implemented for Ukranian and Venezuelan nationals will allow 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela to be admitted to the United States every month for up to two years. These individuals will be eligible for work authorization, and must have a U.S. sponsor who agrees to provide them with financial support for the duration of the parole period.

But alas, on January 24, 2023, Texas and nineteen other states filed a suit challenging the Biden administration’s implementation of the program. The plaintiff states argue that the “Department’s parole power is exceptionally limited, having been curtailed by Congress multiple times, and can be used ‘only on a case-by-case basis for urgent humanitarian reasons or significant public benefit’”. The complaint further alleges that the program “amounts to the creation of a new visa program that allows hundreds of thousands of aliens to enter the United States who otherwise have no basis for doing so”, and asserts that the Biden Administration failed to engage in notice-and-comment rulemaking under the Administrative Procedure Act (APA).

Notably, the complaint refers to individuals entering the United States under humanitarian parole as “illegal aliens”. Page 3 of the complaint, for example, asserts that “[t]he Department does not have the authority to invite more than a third of a million more illegal aliens into the United States annually as it has announced with this program.” However, the plaintiff states’ characterization of parolees as “illegal aliens” is entirely erroneous. INA § 212(d)(5) provides the legal authority for humanitarian parole, Biden’s expansion of the program notwithstanding. This provision authorizes humanitarian parole on a case-by-case basis for “urgent humanitarian reasons” or “significant public benefit” for individuals who present neither a security risk nor a risk of absconding. Because humanitarian parole is a longstanding program authorized by the INA, individuals who enter the U.S. pursuant to this program cannot thus be accurately characterized as “illegal aliens”.

The complaint also refers to the Migration Policy Institute (MPI) Noncitizen Respondents in U.S. Census Bureau Survey Data, which provides demographic information about unauthorized immigrants living in each state. The complaint relies on this data to support the idea that the humanitarian parole program would impose a financial burden on the plaintiff states due to the costs involved in supporting undocumented immigrants. However, the MPI survey includes TPS recipients, DACA recipients, and individuals who entered the United States without authorization but have since applied for asylum. The MPI figures regarding unauthorized populations each state include noncitizens who may also be authorized to remain in the U.S., and may have work authorization, even if they were previously undocumented. The complaint’s reliance on this data to illustrate the burden that the humanitarian parole program would impose on states thus appears to be misplaced.

Further, the complaint asserts that the humanitarian parole program violates the requirements laid out in INA § 212(d)(5) that the benefit be granted only “on a case-by-case basis for urgent humanitarian reasons or for a significant public benefit”. However, even a narrow reading of this provision does not indicate that there is a numerical limit on the benefit. Even if a large group of noncitizens, in this case 360,000 individuals, are granted humanitarian parole, this does not mean that the benefit will not be granted on a case-by-case basis, or that the justifications of “urgent humanitarian reasons” or “a significant public benefit” will not be present. Each applicant can still be reviewed on an individual basis, and their applications can denied if they do not meet the requirements for humanitarian parole.

The humanitarian parole program is based on the Uniting for Ukraine program, which has not been challenged by this lawsuit. The programs bear many similarities, as well. The Uniting for Ukraine program also requires that individuals who are granted parole can be supported by a U.S. sponsor who files an I-134. We thus question whether Texas and the other plaintiff states’ true objection is not a perceived violation of INA § 212(d)(5), but rather the fact that the expanded program will benefit Cuban, Nicaraguan, Haitian, and Venezuelan noncitizens rather than Ukrainians. Other humanitarian programs intended to benefit large groups of noncitizens have also not been challenged, including the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the U.S. pursuant to INA § 212(d)(5), and the Filipino World War II Veterans Program, which also benefits direct and derivative beneficiaries of I-130 petitions.

In addition to being consistent with the “case by case basis” requirement, there is clearly an urgent humanitarian reason for this program given the large number of people from these countries who have been coming to the U.S. to seek asylum. The humanitarian parole program provides an orderly path for people from these countries to come to the U.S. legally without being aided by smugglers and without needing to take perilous paths to the U.S. that can result in death. Though not without flaws, namely the fact that it stands to be implemented alongside the draconian Title 42 policy, the program provides a model for paroling large groups of noncitizens into the U.S. in an organized manner and providing them with work authorization. Even if the Biden administration’s humanitarian parole program is ultimately struck down, the Biden administration has the authority to continue to grant the benefit to individuals pursuant to INA § 212(d)(5). It is hoped that the Supreme Court will ultimately uphold the federal district court’s  lifting of Title 42 restrictions in this scenario, and allow noncitizens to apply for asylum under Title 8, pursuant to the Immigration and Nationality Act, and be able to utilize the CBP One app to schedule an appointment to make a claim for asylum at the border in an orderly manner.

Texas has been serially challenging Biden’s executive actions that have been designed to provide relief to hundreds of thousands of people. These lawsuits are designed to hurt human beings from DACA recipients to those fleeing persecution under the new humanitarian program. While plaintiffs claim that the administration has no authority to implement these programs on a mass scale, they have never claimed that exercising discretion on an individualized basis is unlawful. If it is lawful for the government to exercise discretion in paroling one person into the U.S. or deferring the removal of that person, then it seems illogical to deny the administration the ability to exercising its discretion in relation to a large group. How big should the size of the group be before the government’s valid exercise of discretion is no longer deemed valid? Is the Uniting for Ukraine program that has remained unscathed thus far too big or the right size?  According to a Migration Policy Report, “[m]idway through its term,  the Biden administration, midway through its term,  has notched some significant advances. The quiet transformation of immigration enforcement in the U.S. interior, use of parole and other mechanisms to grant humanitarian protection, and restoration of legal immigration to pre-pandemic levels will have a lasting legacy.”  It is hoped that at some point five justices in the Supreme Court will see through the absurdities of these lawsuits and preclude states like Texas from running and ruining federal immigration policy!

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Tension Between State Wage Transparency Laws and Labor Certification Recruitment

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By Cyrus D. Mehta and Kaitlyn Box*

In the past year, several states and jurisdictions across the U.S. have begun enacting wage transparency laws, and others are poised to go into effect in the new future. Aimed at increasing wage transparency for job seekers, these laws typically require that job postings disclose the salary that the employer plans to offer applicants. Colorado’s law went into effect on January 1, 2021, and requires employers with at least one employee in Colorado to list the applicable hourly wage or salary for the position. New York City’s law went into effect on November 1, 2022, and requires employers with 4 or more employees, at least 1 of which is located in New York City, to disclose wage information in job advertisements. Washington State and California have enacted wage transparency laws effective January 1, 2023, with both applying only to employers with 15 or more employees. Other jurisdictions are considering implementing similar legislation in future. Interestingly, some wage transparency laws could be interpreted to apply even to remote positions that could be performed from one of the impacted jurisdictions, even if the employer does not currently have a presence in that state. Penalties in New York, for example, can require offending employer to “pay monetary damages to affected employees, amend advertisements and postings, create or update policies, conduct training, provide notices of rights to employees or applicants, and engage in other forms of affirmative relief”, although the city will not assess a penalty on first time offenders who correct the violation within 30 days of receiving notice. Civil penalties of $250,000 per violation can be assessed on repeat offenders. Although Colorado indicated that it would not enforce its wage transparency law against PERM recruitment, it has not formalized this guidance in writing, and other jurisdictions have not offered similar assurances

In the permanent labor certification (PERM) context, these laws present a host of new issues for employers to consider. The PERM regulations 20 CFR §656.17 and 20 CFR §656.18 require only the Notice of Filing (NOF) to list the wage or wage range offered for the position, but employers may now find that they are required to disclose a salary range on newspaper and website advertisements that would typically not have included this information. Although Colorado indicated that it would not enforce its wage transparency law against PERM recruitment, other jurisdictions have not offered similar assurances. See AILA Doc. No. 21040231. Interestingly, some jurisdictions’ wage transparency laws may apply to advertisements for remote positions that could be performed from that location, even if the employer otherwise has no presence or current employees in the jurisdiction.

Further complications arise when an employer wishes to list a salary range in its PERM recruitment in order to comply with a state or local wage transparency law, and the lower end of that falls below the prevailing wage determined by the Department of Labor (DOL) or if the wage range in the advertisement materials does not conform with the wage stated in the Notice of Filing. This scenario may be compliant with the relevant wage transparency law, but it could create issues in the PERM context. As yet, the DOL has not issued any guidance on the interaction between wage transparency laws and PERM regulations, and the Board of Alien Labor Certification Appeals (BALCA) has not directly addressed this issue. In the meantime, analyzing how the DOL has viewed wage ranges that partially fell below the prevailing wage can provide helpful guidance.

As mentioned above, the PERM regulations do not require recruitment to list a salary at all, with the exception of the NOF. 20 CFR § 656.10(d)(4) states: “If an application is filed under § 656.17, the notice must contain the information required for advertisements by § 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section”. Employers who do list a wage or wage range in advertisements in newspapers or professional journals are required to ensure that these advertisements do “[n]ot contain a wage rate lower than the prevailing wage rate” pursuant to 20 CFR § 656.17(f)(5). Furthermore, 20 CFR § 656.17(f)(7) states that that advertisement shall “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

If a wage range is indicated in the advertisements, it is important that the Notice of Filing (NOF) also contains the same wage range. BALCA has held that employers violate 20 CFR § 656.17(f)(7) if the NOF contains a wage lower than the wage offered the foreign worker. In Gallup McKinley County Public Schools, 2016-PER-00646 (BALCA April 16, 2021), the wage range offered to a Middle School Teacher was $50,273 to $57,402. The NOF identified the wage as $52,000 per year. The BALCA upheld the Certifying Officer’s denial since the wage range suggested that the foreign national employee would be paid a wage up to $57,402 and higher than the wage indicated in in the NOF. BALCA reasoned that because the NOF stated a wage lower than the highest wage in the wage range, the “NOF did not disclose that opportunity to the Employer’s other workers or other interested persons who may have viewed the NOF.”

The employer cited a pre-PERM case University of North Carolina, 1990-INA-00422 (June 9, 1992) establishing that 20 CFR § 656.17(f) was satisfied if the wage offered is no less than the wage offered at the time of the foreign worker’s initial hire. In University of North Carolina, the university indicated a salary of $23,100 in all of its advertisements for a research associate position, which exceeded the prevailing wage determination and reflected the noncitizen’s salary at the time. By the time the PERM application itself was filed, though, the noncitizen’s salary had risen to $30,000. BALCA overturned the denial of the PERM application, reasoning that 20 CFR § 656.21(g)(8) requires the employer to advertise a wage that is no less than what the noncitizen was offered at the time of their initial hire, not the offered salary at the time the PERM application is filed. However, in Gallup KcKinley, BALCA held that subsequent panels have rejected the reasoning in University of North Carolina as US workers could potentially pass on the job opportunity because of the difference in the lower wage in the advertisement and the higher wage privately offered to the noncitizen. See, e.g., Sensus Metering Systems, 2010-PER-00849 (July 20, 2011). In Sensus Metering Systems, the employer listed a higher offered wage on the ETA 9089 than the NOF, and the employee had only gained about 7 months of additional experience with the employer since the position was advertised, rather than 3-5 years as in University of North Carolina. BALCA has also upheld denials of PERM applications where the lower end of a wage range as listed in the advertisements fell below the salary offered to the noncitizen on the ETA 9089. See Om Shri Ganesh, LLC, 2016-PER-00024 (July 28, 2016); Red Apple Child Dev. Ctr., 2009-PER-00472 (June 29, 2010); Lakeview Farms, 2011-PER-01679 (Sept. 4, 2014); Charles E. Churchwell, 2012-PER-01662 (Mar. 2, 2016). Sensus Metering Systems and its progeny illustrate the importance of ensuring that a consistent offered wage range is listed across the NOF, advertisements, and the PERM application itself.

In cases where recruitment has inadvertently included a salary range that fell below the prevailing wage, there have been a few decisions where BALCA has been relatively forgiving. In Re IAC Search & Media, Inc., BALCA Case No.: 2011-PER-00845 (May 2, 2012), for example, involved an employer who inadvertently listed a salary lower than the prevailing wage in the ETA Form 9089 and in a website advertisement. BALCA held that employer had actually offered a salary that exceeded the prevailing wage, so the typographical error was not grounds for denial of the PERM. Similarly, in Nancy Adelman, 2011-PER-02464 (BALCA 2011), BALCA overturned a denial of a PERM application on the grounds that the “prevailing wage rate and validity period listed in Section F of the Employer’s ETA Form 9089 did not match the information contained in the PWD submitted by the [e]mployer” as part of an audit response. BALCA held that a labor certification cannot be denied due to a typographical error unless the result is a violation of the PERM regulations, and no violation had occurred here since the offered wage had actually exceeded the prevailing wage. However, in Marcel Cleaners, Inc., 2009-PER-00395 (BALCA February 2010), BALCA affirmed the denial of a labor certification when the job order listed a wage range, the lower end of which was less than the prevailing wage. BALCA reasoned that 20 CFR § 656.17(f)(5) expressly specifies that advertisements placed in newspapers and professional journals must not contain a wage rate lower than the prevailing wage.

Finally, employers must also be careful about State Workforce Agency job orders whose algorithms may require a different formulation of the wage. Thus, a wage range of $0-$70,000 (depending on experience) will not be in compliance with the regulation. This issue also came up in Gallup McKinley County Public Schools, although BALCA focused its denial on the discrepancy between the wage range in the advertisement and in the single wage indicated in the NOF.  Practitioners can take some comfort in  A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012) where BALCA held that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation in the event of a DOL audit of the labor certification application.

Wage ranges in labor certification recruitment always add more complexity and risk to an already hyper technical process.   The DOL will likely continue to deny labor certification if there are discrepancies, such as when the salary range falls below the prevailing wage at the lower end (notwithstanding some BALCA decisions going the other way) or if the wage range stated in the advertisements is different from the wage reflected in the NOF. The DOL has said that employers must comply with PERM rules. If employers need to comply with local wage transparency laws it would be prudent for the employer to comply with those laws too during labor certification recruitment but DOL is not concerned about what employers must do under local laws. Employers need to now tread even more carefully when they are compelled to state a wage range under state transparency laws taking into account all the relevant considerations regarding wage ranges established under DOL rules and BALCA decisions.

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

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

How the Humanitarian Parole Program at the Border Can Serve as a Template for Further Relief Under the Broken Immigration System

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By Cyrus D. Mehta & Manjeeta Chowdhary*

Restive people at the U.S.- Mexico border for entry into the United States is not the new norm for the United States government. The usual procedure is to seek humanitarian relief through asylum under Title 8 of the United States Code citing a credible fear of persecution or other threats in their home country regardless of the wait period. However, in fiscal year 2020 with the outbreak of the coronavirus, the number of encounters at the border declined. As Covid became less acute, encounters at the border rebounded sharply in fiscal year 2021 and increased in fiscal year 2022 according to recently published data from U.S. Customs and Border Protection (CBP), the federal agency that encompasses the Border Patrol.

In March 2020, the Department of Health and Human Services (HHS) implemented Title 42 through the Centers for Disease Control and Prevention (CDC) under the Trump administration after the coronavirus outbreak. Title 42 of the United States Code is the code that addresses public health, social welfare, and civil rights. It grants the government the ability to take emergency action to stop the “introduction of communicable diseases.” But the purpose to invoke Title 42 under the Trump administration was not to control the virus but to use the health ground as a pretext for depriving people of their right to apply for asylum when they came to the United States.

Title 42 has been implemented poorly and widely criticized by immigration and humanitarian groups. It is being continued pursuant to a court order even though President Biden tried to end it.  People expelled are usually driven by bus to the nearest port of entry without their luggage or their belongings. Lateral flights are limited for families with young children. Opportunity to seek asylum has been denied not only to individuals crossing the border between ports of entry, but also applies equally to individuals seeking asylum at ports of entry. Cases of kidnapping, torture, rape or other violent attacks on people have increased. Nevertheless, the Biden administration has continued to expel migrants under Title 42, though to a lesser extent than the Trump administration. Although the Supreme Court has currently stayed the district court’s decision setting aside Title 42, the following extract from Justice Gorsuch’s dissent is worth noting:

But the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.

Depriving asylum seekers of their right to apply for asylum by blocking them under Title 42 has been roundly criticized by asylum rights advocates, although one positive initiative of  President Joe Biden has been to expand the parole program initially launched for  Ukraine and Venezuela   last year. The expansion of the parole program will allow 30,000 qualifying nationals of Cuba, Haiti, Nicaragua and Venezuela per month to be admitted to the United States for up to two years and will be eligible for work authorization. They must have a U.S. based supporter who agrees to provide them with financial support for the duration of their parole in the United States. Individuals and representatives of organizations seeking to apply as supporters must declare their financial support, and they must pass security background checks to protect against exploitation and abuse. For additional information on the process and eligibility requirements, please see the Processes for Cubans, Haitians, Nicaraguans, and Venezuelans page. Also, the applicants must apply through an online CBP One app. Applicants will be considered on a case-by-case basis at the discretion of immigration officers and must pass rigorous biometric and biographic national security and public safety screening and vetting; and complete vaccination and other public requirements. Individuals who enter the United States, Mexico, or Panama without authorization will generally be ineligible for these processes. It further confirms that nationals from Venezuela, Cuba, Haiti, and Nicaragua who do not avail themselves of this process, attempt to enter the United States without authorization, and cannot establish a legal basis to remain will be removed or returned to Mexico, which will accept returns of 30,000 individuals per month who fail to use these new pathways.

This expansion has not ruled out the existence of Title 42 public health order. It will be used alongside the provisions of the Immigration and Nationality Act (INA) under Title 8 of the United States Code for those migrants who cannot be expelled pursuant to Title 42.  INA § 235 allows for the prompt removal of those who do not claim a fear of persecution or torture or are determined not to have a credible fear after an interview with an Asylum Officer, in accordance with established procedures. Also, the CBP One app can be accessed on or after January 12,  2023 to all asylum seekers claiming Title 42 exemption. Each day at a set time, new appointment slots will be released, and one can schedule appointments fourteen (14) days in advance. Access to making an appointment will be “geofenced” to individuals who are physically located at the U.S.-Mexico border and in some major population centers in Central and Northern Mexico. Although the process is free, that’s too short a period for booking the slots, maybe it will end up in jamming the network. Further, some Title 8 relief such as asylum may not be available for those who have significant criminal history, prior removals under Title 8, or could pose a risk to national security. The objective is to have an improved removal process in existence when the Title 42 public health order is lifted.

Further, this expansion proposes a transit ban to those asylum seekers who had not previously applied for asylum in a third country before reaching the United States, as well as those who sought asylum without going through a new process at a port of entry. Individuals who cannot establish a valid claim to protection under the standards set out in the new rule will be subject to prompt removal under Title 8 authorities, which carries a five-year ban on reentry pursuant to INA § 212(a)(9)(A)(i). This rule will take some time to come in action as DHS and DOJ will invite public comment on the proposed rule.

Though the expansion through humanitarian parole has indubitably created some legal pathways for migrants from four countries, it has failed to address many questions such as:

  • Will the migrants from these four countries be subject to Title 8 or Title 42, if there is no financial supporter for them in the United States or a financial supporter is reluctant in supporting them or if they fail to pass the test of other requirements?
  • The parole program confirms that one should apply for parole through the CBP One app, but it fails to contemplate what should be done in cases where someone does not have technological access to download CBP one app, or where access to the app will be tough for those who does not know English or speak indigenous dialects beyond Spanish as well as for those who cannot obtain legal representation to help them navigate the process.
  • On being asked if the requirement to buy an airline ticket could prejudice or lean it toward wealthier migrants and make it harder for poorer migrants, President Biden replied yes and also said that “but there’s also ways to get to ports of entry along the border as well”. This is unclear. Did Biden mean that travelling by air is not essential and can be waived?
  • Will this really protect asylum seekers? How does this program help those individuals who left their countries in rush, rescuing their lives, and without any resources? How will they apply for parole through the app?
  • The proposed rule has been subject to criticism as this is the new version of the Trump version of the transit-ban on asylum seekers if they failed to seek protection in a third country before reaching the United States and if they “circumvent available, established pathways to lawful migration.” A similar transit ban was introduced by the Trump administration which was blocked by the Ninth Circuit Court of Appeals and was ruled as unlawful, holding that failure to apply for asylum in a transit country “has no bearing on the validity of a person’s claim for asylum in the United States;”
  • No legal pathways for migrants from other countries have been explained, they will either face removal proceedings under Title 8 or be expelled under Title 42.
  • Will this not suggest discrimination as humanitarian parole only applies to a narrow group of countries?

 

Despite all the flaws in the new process and Title 42 still being used, the humanitarian parole program under INA 212(d)(5) provides a template for President Biden to continue to expand his executive authority to provide relief when the immigration system has broken and the current Congress is too polarized to fix it. Within days of the announcement, the first group of migrants have already come into the US. More than 600 additional migrants from these four crisis-stricken countries had been vetted and approved to come to the U.S. One noted commentator Ilya Somin who sponsored refugees from the Ukraine has reported that the results were astonishing. “Nine days after my wife and I submitted the sponsorship forms, the U.S. government authorized admission to three Ukrainian refugees — Ruslan Hasanov, his wife, Maya, and their 2‑year‐​old daughter, Melissa. Less than five weeks after that they were here. This is little short of a miracle to those of us who have long lamented the sclerotic state of the U.S. refugee system.” Although those who have entered the US under humanitarian parole can only remain for two years, they can apply for asylum once they have been paroled in the US. The humanitarian parole program allows private sponsors backed by business organizations to also support nationals from the designated countries to legally work in the US. The program thus creates a pathway for noncitizens from the designated countries to  enter the US and work legally thus alleviating labor shortages in the US economy.

The possibilities of expanding parole to other immigrants also exist. For instance, beneficiaries of approved I-130, I-140 and I-526 petitions who are outside the US can be paroled into the US while waiting for their priority date under State Department Visa Bulletin to become current.  However, due to a quirk in the law, beneficiaries of I-130 petitions should be able to file I-485 applications upon being paroled into the US since parole is considered a lawful status for purpose of filing an I-485 application. See 8 CFR 245.1(d)(1)(v). On the other hand, beneficiaries of I-140 petitions will not be eligible to file an I-485 application, even if paroled, since INA 245(c)(7) requires one who is adjusting based on an employment-based petition to be in a lawful nonimmigrant status. Parole, unfortunately, is not considered a nonimmigrant status.  Such employment-based beneficiaries may still be able to depart the US for consular processing of their immigrant visa once their final action dates become current.

The parole of beneficiaries of approved petitions can be modelled on the Haitian Family Reunification Parole Program that allows certain beneficiaries of I-130 petitions from Haiti to be paroled into the US pursuant to INA 212(d)(5). The Filipino World War II Veterans Program also has a liberal parole policy for direct and derivative beneficiaries of I-130 petitions. Once the beneficiaries of I-130 petitions are paroled into the US, they can also apply for an EAD, and adjust status once their priority date becomes current. The HFRPP concept can be extended to beneficiaries of all I-130, I-140 and I-526 petitions, and parole eligibility can trigger when either the petition is approved or at least when the Date for Filing (DFF) under the State Department Visa Bulletin is current for each petition. As proposed in a previous blog, the administration has the ability to move the DOF to close to current so long as it preserves one visa in each category.  Beneficiaries of I-130 petitions may file adjustment of status applications, as under the HFRPP, once they are paroled into the US. On the other hand, Beneficiaries of I-140 and I-526 petitions, due to the limitation in INA 245(c)(7) would have to proceed overseas for consular processing once the FAD become current.

Similarly, a program similar to humanitarian parole can be devised for those who have not been selected under the H-1B lottery under INA 212(d)(5). An employer could be able to sponsor a beneficiary who was not selected under the H-1B lottery and whose OPT may have expired by submitting I-134. There is no reason why the  programs similar to humanitarian parole cannot be deployed for those who were not able to successfully come to the US under the H-1B visa but who still have the same job offer for a temporary period of time. INA 212(d)(5) provides authority to parole a noncitizen on a “case-by-case basis  for urgent humanitarian reasons or significant public benefit.” Allowing a potential noncitizen who would have otherwise qualified for an H-1B visa parole into the US would potentially qualify as a significant public benefit.

The Biden administration’s authority to provide relief to backlogged beneficiaries of I-140 petitions in the US through parole or other administrative actions can also be explored. The concept of parole in place has been applied to those who have entered without inspection and have been able to adjust status as immediate relatives. Most beneficiaries of I-140 petitions have been admitted in the US and are in valid status. However, deferred action may be considered for certain vulnerable beneficiaries. In May 2022, USCIS considered deferred action and related employment authorization for noncitizens classified as SIJs who are ineligible to apply for adjustment of status to LPR status solely because a visa is not immediately available. Deferred action and employment authorization will provide invaluable assistance to these vulnerable noncitizens who have limited financial and other support systems in the United States while they await an available visa number. The DHS has also recently made available deferred action and  work authorization  to  noncitizen workers who are victims of, or witnesses to, the violation of labor rights, Similarly, there is no reason why backlogged beneficiaries of I-140 petitions cannot avail of deferred action and work authorization on a case by case basis. How about allowing aging our and aged out children of beneficiaries of I-140 petitions who cannot seek the protection of the Child Status Protection Act to seek deferred action? This group of vulnerable noncitizens are deserving of relief through executive action.

Under 8 CFR § 204.5(p), an EAD may be issued to individuals in E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and are the beneficiaries of approved I-140 petitions, but their priority dates are not current. “Compelling circumstances” have never been precisely defined, but DHS suggested some examples of compelling circumstances in the preamble to the high skilled worker rule, which include serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that render an L-1 visa status invalid are examples of scenarios that might constitute significant disruption to the employer. Historically, USCIS has rarely issued EADs under compelling circumstances. Given the precarious situation that nonimmigrant workers who are impacted by layoffs will find themselves in, the Biden administration could instruct USCIS to employ this authority to generously grant EADs to individuals who have lost their jobs. Nonimmigrant workers who are laid off will be forced to uproot their lives on very short notice if they cannot find new employment within 60 days. Many nonimmigrant workers have lived and been employed in the United States for many years. Some have U.S. citizen children and spouses who have also built careers in the United States. Such individuals will face serious hardship if they are forced to abandon their lives in the United States and return to the countries of which they are citizens, a devastating situation that should be interpreted to readily constitute compelling circumstances. Noncitizens who can demonstrate compelling circumstances under 8 CFR § 204.5(p) should also be able obtain deferred action so that they can apply for advance parole to travel overseas.

There is much that the Biden administration can do in the next two years through humanitarian parole, deferred action and other administrative actions to provide relief to noncitizens while Congress remains paralyzed.

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

*Manjeeta Chowdhary is a Junior Associate at Cyrus D. Mehta & Partners PLLC.