Cyrus Mehta

MAKING COMPREHENSIVE IMMIGRATION REFORM POSSIBLE

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By Gary Endelman and Cyrus D. Mehta

In shock at the overtly racist profiling now sanctioned by the State of Arizona, https://blog.cyrusmehta.com/news.aspx?SubIdx=ocyrus201042724527, the Democratic Party has turned to comprehensive immigration reform to pay off its political debt to the vast and growing body of Hispanic voters whose allegiance may determine our national electoral map for decades to come. That is why Senators Reid, Durbin, Schumer, Leahy, Feinstein & Menendez this week introduced the aptly named REPAIR proposal otherwise known more completely as the Real Enforcement with Practical Answers for Immigration Reform Act, http://tiny.cc/gnm21. While the prospects for ultimate enactment remain highly uncertain, the commitment by the Democratic Party to moving on CIR is an event of singular importance and one that deserves serious consideration.

This proposal might also be called the “Indian and Chinese PhD Relief Act” because relief for these folks is precisely what it would provide. The per country cap would be lifted for those foreign-born scholars who earned advanced degrees from US universities in science, technology, engineering and mathematics, the now sacrosanct STEM cordon sanitaire. There is the slight matter of having a job offer from a US employer in a related field but that is mere detail. We do not know if these lucky few would be able to apply directly for adjustment of status to lawful permanent resident given the immediate availability of a green card number or whether they would still have to qualify under one of the existing employment categories such as national interest waiver, outstanding researcher, extraordinary ability or on the basis of labor certification. What is clear, however, and perhaps most importantly, is that the tyranny of priority dates under which the prospect of gaining green card status had become a cruel dream has now been overthrown. No longer does the priority date regime have legal relevance. Praise the Lord!

REPAIR also ends the unconscionable injustice of separating lawful permanent residents from their families for years on end by treating such dependents as immediate relatives free of quota restrictions which is precisely what they should and now will be. Bravo Congress! Before we get too excited, we would do well to remember that significant new burdens would cripple the H-1B and L-1 categories. L-1B specialized knowledge workers are limited to one year, though the statute is silent on the possibility of extensions. Numerical caps will be placed on both H and L sponsorship for large employers and all H employers must face both more investigations and more restrictive wage methodology so Wage Levels I and II are likely no longer to be available. The prospect of further government intrusion in the form of more and more frequent H and L investigations also clouds the happy horizon. It is ironic that Congress would select the REPAIR bill as the vehicle to deliver such punishment at the same time as they are making the H1B less relevant. Indeed, if STEM Master’s and PhD graduates from our top schools can apply right away for the green card, and since STEM F-1 visas will now enjoy dual intent, why would anyone in his or her right mind seek H-1B sponsorship at all? Most ominous is the Orwellian sounding “Commission on Employment-Based Immigration” which is invested with the awesome power to declare an immigration emergency and issue Olympian edicts to which a hapless Congress must say “yea” or “neigh”. A concept born in the brain of the AFL-CIO and former Carter Secretary of Labor Ray Marshall, this Commission places all of employment-based immigration on the chopping block, even the priority date relief noted above.

What of those who live in the shadows? For them, REPAIR offers “Lawful Prospective Immigrant” (LPI) status in two phases. First comes the right to live, work and travel for eight years. Then, once all current green card visa backlogs have been cleared out, one can apply for adjustment of status after learning English, mastering civics, paying back taxes with penalties, registering for Selective Service and passing security checks. Glad the rest of us don’t have to do all that! . How will the magic of backlog elimination weave its spell? Well, a massive infusion of new numbers on the family side of the ledger should help some. What about employment-based waiting lines? Ah, here, REPAIR is strangely silent. What are we to assume from this? Will LPI adjustments take precedence over EB-3 cases where the employer has demonstrated the absence of qualified, willing and available US workers? Will they come ahead of EB-2 applicants from China or India whose work has been found to be in the national interest? Congress should step up to the plate and provide the same green card relief on the employment side of the ledger. The fact that REPAIR does not do that once again illustrates the pervasive yet unspoken belief that family migration is worthy of our compassionate concern while employment migration has no claim on our conscience or our sense of national priorities.

If Congress does not do the right thing, what then? That is where executive fiat can help make CIR possible in two key ways. First, as we have discussed at length previously ( Tyranny of Priority Dates, http://scr.bi/i0Lqkz) the USCIS can largely eliminate EB backlogs by eliminating family members from the cap, an approach that can be supported by textual reinterpretation and legislative history. Second, the very notion of visa availability can be redefined to allow for provisional submissions that can be advanced in the absence of current priority dates following I-140 approval. If we allow those who have been here without color of law to apply for green cards as lawful prospective immigrants, which we strongly support, there is no reason in law or logic to prevent those who are in legal status from also prospectively seeking to get LPR status. Allowing adjustment of status applications for EB beneficiaries after I 140 approval but conditioning final approval of same upon a current priority date is the perfect book-end to the LPI program, . It is something that can be done entirely through Executive Fiat and the effect of which would be to wipe away the EB backlog which very presence could indefinitely delay the implementation of the LPI initiative. What’s not to like? Now that Congress has taken the first tentative steps on the road to real immigration reform, why not use all the weapons at our disposal to make it happen?

Cyrus Mehta

COMPREHENSIVE IMMIGRATION REFORM THROUGH EXECUTIVE FIAT

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By Gary Endelman and Cyrus D. Mehta

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

Work Authorization and Parole

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

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

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

Historic Role Of Executive In Granting Immigration Benefits

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

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

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

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

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

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

A Service memorandum dated August 5, 1997, stated that an ‘adjustment applicant’s otherwise valid and unexpired nonimmigrant employment authorization…is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii).’ The Service intends to clarify this issue in the final rule. Until then, if the alien’s H-1B or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant’s failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
A close examination of this astonishingly creative policy reveals that the Executive presumably allowed such an individual to continue working without any formal work document. Admitting an H-1B on advance parole (and thus presumably as a parolee rather than as an H-1B nonimmigrant), and allowing him or her to extend H-1B status subsequently, while permitting this individual to continue working for the employer without an EAD, required creative thinking on the part of the government. These are a few examples of how the Executive has creatively found ameliorative solutions within the four corners of the INA.

No Violation of Separation of Powers

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

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

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

Chevron and Brand X Doctrine

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

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

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

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

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

Cyrus Mehta

Save The Children

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By Gary Endelman and Cyrus D. Mehta

When Congress enacted the Child Status Protection Act, it wanted above all else to soften the harsh blows of long delays by the USCIS in the adjudication of “green card” cases. How? Congress did so by extending this generous benefit to protect vulnerable children who would otherwise be cavalierly abandoned to the tender mercies of an indifferent jurisprudence when their parents immigrated. The dread of watching their children “age out” and thereby lose their derivative status haunted the imagination of parents everywhere who felt helpless against Father Time. At last, Congress would save them, or so they thought. The Board of Immigration Appeals, in In re Avila-Perez, 24 I&N Dec. 78 at 83-84 (BIA 2007), faithfully captured this humane spirit:

The CSPA was created to remedy the problem of minor children of United States citizens losing their immediate relative status and being demoted to the family first-preference category as a result of the INS’s backlog in adjudicating visa petitions and applications for adjustment of status…To prevent these individuals from “aging out” because of INS processing delays, Congress decided that a child’s age should be determined by the date his visa petition was filed, not as of the date the INS reviewed his applications, as it would have been under the old law.

There was no way that Congress could have possibly anticipated the implosion of the EB-3 or EB-2 in the China and India categories. While the architects of the CSPA strove mightily to promote family unity, the restrictive formula they came up with reflects their wholly understandable failure to account for the entirely unanticipated possibility of visa retrogression greatly exceeding government processing delays. It is no exaggeration to conclude or contend that this adverse effect on “aging out” children ran directly contrary to what Congress thought it was doing. Given an EB-3 backlog of almost 7-8 years worldwide and over 30 years for India, you would have to start a labor certification now for someone who has a child turning 12 because that child’s age will only be frozen when the immigrant visa is available, many years later. For India, even if the labor certification is started around the time of the child’s birth, such strategic foresight may not suffice! If you get a quick labor certification followed by prompt USCIS approval of the I-140 petition, the child you think you are helping might not be so lucky down the road. When you have visa retrogression like we have right now, the CSPA formula is useless to protect children no matter how you interpret the CSPA formula. To the EB-3 preference child, especially if the parents are born in India, the promise of the CSPA has become a cruel joke.

Under INA § 203(h)(1)(A) & § 203(h)(1)(B), the age of a child is frozen at the point that a visa becomes available, based on the first day of the month of the relevant visa bulletin and the approval of the visa petition, provided the child sought to acquire permanent residency within one year of visa availability. The child can also subtract from his or her age (if over 21 years at the time of visa availability) the time the visa petition of the parent took to get approved from the time of filing. Based on this formula, the visa is likely to become available after many years, and in the case of an India EB-3, probably long after the child has turned 21.

What to do? There is an answer. Sua sponte, the USCIS could save the children by redefining the concept of visa availability in a provisional sense to include the derivative beneficiaries of approved I-130 or I-140 petitions even without the absence of a current priority date as we have proposed in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz. This would restore the relevance of the CSPA and honor the original intent of Congress by allowing a revised formula to freeze the child’s age despite visa backlogs! The child could not have his or her adjustment of status approved absent a current priority date but allowing them to remain children while waiting for this to happen also permitted them to remain in the queue. While we acknowledge that such an approach is, to say the least, openly unorthodox, we are warmed by the well-settled truth that a generous interpretation of any statute should be adopted where its “remedial purposes are most evident.” Sedima v. Imrex Co., 473 U.S. 479, 491, n. 10 (1985).

Moreover, USCIS has, in the past, expanded the meaning of visa availability. During the July 2007 Visa Bulletin period, when the dates for the EB-2 and EB-3 were made current, eligible applicants filed concurrent I-140 petitions and I-485 applications. The I-140 petitions were not approved at the time of visa availability, and after August 17, 2007, there was again retrogression. To the credit of the USCIS, the child’s age was still frozen at the time of filing the unadjudicated I-140 petitions and I-485 applications, even if the I-140 petitions were approved after August 17, 2007 and when there was no longer any visa availability. In this case, the government informally expanded the interpretation of visa availability to a point of time when the visa was available by virtue of the July 2007 Visa Bulletin, but the I-140 petition had not been approved even though the USCIS had insisted in insisted that there had to be an approved I-140 petition at the time of visa availability to freeze the age of the child, even if the priority date subsequent to this event regresses. See Johnny Williams, Office of Field Operations of Legacy INS, The Child Status Protection Act, Memo # 2, Feb. 14, 2003, AILA InfoNet Doc. No. 03031040.

There is, of course, a second part to the CSPA age formula, namely that the child must have “sought to acquire” the status of a lawful permanent resident within one year of visa availability. Now, as our colleague Quynh Nguyen so incisively reminds us, “sought to acquire” is a singularly novel term. The authors do not think it is used anywhere else in the INA. We do not seek to re-write the CSPA age formula; just the opposite. We seek to interpret it in a broadly humane way to achieve what Congress thought it was prescribing, a formula for the protection of children and the advancement of family unit. Our suggestion is advanced in furtherance of this intent by allowing a provisional submission to count as “sought to acquire.” Remember, dear friends, the CSPA language speaks of “sought to acquire” a “green card” within the one year period after the Visa Bulletin indicates availability. Ms. Nguyen correctly points out that nothing precludes the USCIS from interpreting this to mean that the child could not seek to acquire before this one year period commences; she just has to conclude the step of “sought to acquire” within the one year period after an immigrant visa is available. Our provisional filing approach would still require yet allow the child to seek to acquire green card status with final ratification firmly conditioned upon availability of an immigrant visa. This has been done before. That is precisely how the Department of State interpreted “sought to acquire” when it allowed the I-824 consular notification form to be used in exactly this same way. As the BIA reminded us in Avila-Perez, the precise moment when an adjustment of status is filed should command neither our rapt attention nor unquestioning obedience. It can be filed at any time; since the CSPA neither demands nor instructs the child to have “sought to acquire” in any particular way or time, why not allow a provisional submission to suffice?

If freezing the age of the child based on a re-interpretation of visa availability is too shocking for the faint of heart, we offer another, perhaps more soothing reason, why our provisional adjustment filing honors the spirit to the CSPA in a way that the traditional understanding of the age formula simply does not. We turn now to the automatic conversion mechanism under INA § 203(h)(3) that allows for seamless transfer of a child to the appropriate preference if that child cannot claim CSPA protection. While we acknowledge that the BIA, in In re Wang, 25 I&N Dec. 28 (BIA 2009) overturned its more generous interpretation in the unpublished decision of In re Maria T. Garcia, 2006 WL 2183654 (BIA June 16, 2006), In re Wang does not faithfully interpret INA § 203(h)(3), which rings loud and clear for the automatic conversion of the child to an appropriate preference category, and provides the government with ample running room to re-interpret the provision consistent with Garcia. See, David A. Isaacson, BIA Rejects Matter of Maria T. Garcia in Precedent Decision Interpreting the Child Status Protection Act, June 22, 2009.

Allowing the child to provisionally file her adjustment of status with the parent(s) means that the child still remains an adjustment applicant even after “aging out.” Then, when the parent gets the “green card,” the child shifts over to the Family 2-B category which, mirable dictu, might then be current. The parents need not file a new I-130 petition. Since the child’s adjustment of status was already filed under the provisional priority date, the “aged out” child will either get the “green card” simultaneously with the parent if F-2B is ready and waiting or, if not, the child can wait it out a bit longer, but still as an adjustment applicant under a provisional date under F-2B. The key is to allow the child to file their adjustment of status with the parents while minors under a provisional date so that, once they become adults, they will continue to be adjustable when they automatically convert to Family 2B after Mom and Dad are done.

Unless we look at the CSPA in a new light, it will be impossible for the law to do what Congress wanted it to do, namely preserve family unity in the face of external factors for which the affected children were not responsible. The nature of the delay has changed from administrative processing to systemic visa retrogression. Such a change, however, has not removed the need for remediation but, on the contrary, made it more pressing than ever. While Congress could calm the waters by revising the age fixing formula to save the children from the tyranny of priority dates, there is no reason why the USCIS has to wait for that to happen. It could save the children now as we suggest entirely through notice and comment rulemaking. Congress can, and doubtless will, bless it later.

Cora-Ann Pestaina

DOL UPDATE ON PERM AND PREVAILING WAGE ISSUES

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by Cora-Ann V. Pestaina

On April 5, 2010 AILA published the minutes of the DOL stakeholders teleconference held on March 25, 2010. See AILA InfoNet Doc. No. 10040533. These minutes presented some important/interesting information worth noting:

Employee Referral Programs:

The DOL now requires more from employers who utilize the Employee Referral Program in fulfillment of one of the three additional forms of recruitment required for professional positions under PERM. Specifically, the DOL now has new requirements as to what is considered “acceptable” evidence to demonstrate the “existence and use” of the Employee Referral Program. Thus far, employers have been able to utilize their existing Employee Referral Programs and to document its use by submitting a description of the program. In response to audits, the DOL has previously accepted photocopies of pages from the employer’s employee handbook describing the ongoing program.

Now, the DOL requires documentation that employees were made aware that they could refer applicants to the specific position sponsored for PERM. The DOL wants to see dated copies of correspondence to employees linking the Employee Referral Program to job openings within the company and to the PERM position in particular! The minutes suggest that employers execute a memo confirming the existence of an ongoing Employee Referral Program and addressing how the company’s employees were made aware that they could refer applicants to the PERM position.

While the PERM regulations do not require documentation that employees were made aware of the specific PERM position, to be on the safe side and prevent a possible PERM denial and then motion/appeal down the road, employers may want to consider adding an “available positions” section at the end of the Employee Referral Program description, including a copy of the specific PERM ad(s) and posting the program in a conspicuous location on the business premises for a specific number of days (and publishing via employer’s intranet, if any) as they do with the Posting Notice.

Processing Issues:

PERMs have recently been moving more quickly because the DOL assigned some PERMS to adjudicators in DC and Chicago. (Let’s hope they keep it that way!)

Sunday ads are still required despite changes in the newspaper industry resulting in some newspapers being eliminated or in a reduction in the number of publication days for certain newspapers.

DOL is looking into implementing PERM fees. (It was too good to last much longer.)

Expect an increase in the number of applications subjected to supervised recruitment.

DOL is frustrated, and rightly so in my opinion, with employers and attorneys who still insist on filing PERMs via mail which consumes substantial DOL resources.

HealthAmerica Issues:

Denials where the PWD issued by SWA was too short or too long: DOL agreed that it is possible that these will be HealthAmerica type issues.

It is not clear what this means since HealthAmerica refers to typos on the PERM. If the SWA issued the employer a PWD valid for less than 90 days then this validity period must be listed on the PERM. The DOL previously advised (AILA InfoNet Doc. No. 07060461) that certifying officers are trained to know that the PWD is never valid for less than 90 days.

Prevailing Wage Determinations:

DOL verified that the Form 9141 certifying officers can see the extra words typed into various fields on the Form 9141 even if these words do not show when we print the form for our records. But, the DOL pointed out that for PERM audit purposes, this will not help us and we have to find a way to prove what was on the form.

Form 9141 certifying officers are now trained to understand abbreviations like EE for Electrical Engineering and CS for Computer Science so we can save space here if needed.

IMPORTANT: On the Form 9141 put only the PRIMARY requirements that will be the PRIMARY requirements listed on the PERM. (So, it’s not which requirements we think are higher (e.g. a BS+5 might be considered higher than the alternative MS+2 requirement) but it’s what will be the PRIMARY requirements on the Form 9089!)

If there will be multiple unanticipated worksites (as with many IT professionals), still answer NO to the Form 9141 question about multiple worksites and in another field such as D.a.6 include the language about unanticipated work locations.

DOL is working on fixing the problem with the missing SOC codes on Form 9141. It will take a while.

If we neglect to include information on the Form 9141 it will be rejected but where the certifying officer just needs clarification on an issue, they will not reject but will e-mail the attorney or employer and allow 7 days for response. Once the response is received, the PWR will be promptly adjudicated.

DOL is getting ready to increase the number of officers which will help reduce the processing time on PWDs.

Cyrus Mehta

AAO SAYS “NO” TO JOB PORTABILITY WHEN LABOR CERTIFICATION HAS BEEN SUBSTITUTED

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By Gary Endelman and Cyrus D. Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

REDEFINING “IMMEDIATELY AVAILABILE” TO ALLOW EARLY FILING OF AN ADJUSTMENT OF STATUS APPLICATION

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By Gary Endelman and Cyrus D. Mehta

We continue to blog on the salient ideas in our article, Tyranny of Priority Dates, published in BIB Daily, http://scr.bi/i0Lqkz, on March 25, 2010.

Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability? It would only be more fair to allow someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140. Upon filing of an I-485 application, one can enjoy the benefits of occupational mobility or “portability” under INA § 204(j) and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization, which they otherwise would not be able to get on an H-4 dependent visa.

Unfortunately, INA § 245(a)(3) only allows the filing of an I-485 application when the visa is immediately available to the applicant, and this would need a Congressional fix. We know that Congress either NEVER makes any sensible fix or takes a very long time to do so. So, why not find a way for the immigration agency, USCIS, to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3)?

The only regulation that defines visa availability is 8 C.F.R. § 245(g)(1), which provides:

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). 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.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted Legal Permanent Resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA 245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

The authors propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in bold, that would 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) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority 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.

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), the authors propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. Since parole is not considered a legal admission, they will not be eligible for adjustment of status but will have to depart the United States and use the now-valid visa as a travel document to return when visa availability subsequently presents itself. The authors suggest the insertion of the following sentence, shown here in bold and deletion of an other sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Nevertheless, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.

If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Nothing could be simpler. The reason to seek Congressional modification of INA § 245(a) is not because it is the only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal.

(The authors thank Marcelo Zambonino, a law student at New York Law School for his assistance with this post.)
Cyrus Mehta

TWO H-1B SPOUSES AND ONE LABOR CERTIFICATION: BOTH SPOUSES SHOULD BE ABLE TO SEEK SEVENTH-YEAR H-1B EXTENSIONS UNDER AC21

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By Gary Endelman and Cyrus D. Mehta

We post some of the ideas that we have proposed in the forthcoming article, The Tyranny of Priority Dates, https://blog.cyrusmehta.com/news.aspx?SubIdx=ocyrus20103925436, on this blog. This post advocates that an H-1B seeking an extension beyond the six years may do so even though the other spouse is the beneficiary of a labor certification.

There is a clear basis in § 106(a) of the American Competitiveness in the 21st Century Act (“AC21”) to allow an H-1B spouse to seek an extension of H-1B status beyond six years when the other spouse is the beneficiary of an appropriately filed labor certification. There is no need for two spouses to have their own labor certifications, when only one will be required for both spouses to obtain permanent residence. USCIS must interpret existing ameliorative provisions that Congress has specifically passed to relieve the hardships caused by crushing quota backlogs in a way that reflects the intention behind the law.

On November 2, 2002, the 21st Century Department of Justice Appropriations Authorization Act (“21st Century DOJ Appropriations Act”) took effect and liberalized the provisions of AC21 that enabled nonimmigrants present in the United States in H-1B status to obtain one-year extensions beyond the normal sixth-year limitation. See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The new amendments enacted by the 21st Century DOJ Appropriations Act liberalized AC21 § 106(a) and now permits an H-1B visa holder to extend her status beyond the sixth year if:

1. 365 days or more have passed since the filing of any application for labor certification that is required or used by the alien to obtain status under the Immigration and Nationality Act (“INA”) § 203(b), or

2. 365 days or more have passed since the filing of an Employment-based immigrant petition under INA § 203(b). Id. (Emphasis added).

Previously, AC21 § 106(a) only permitted one-year extensions beyond the sixth-year limitation if the H-1B nonimmigrant was the beneficiary of an EB petition or an application for adjustment of status and 365 days or more had passed since the filing of a labor certification application or the Employment-based (EB) immigrant petition. See Pub. L. No. 106-313, 114 Stat. 1251 (2000). Even under this more restrictive version of AC21 § 106(a), the Service applied a more liberal interpretation, permitting H-1B aliens to obtain one-year extensions beyond the normal sixth-year limitation where there was no nexus between the previously filed and pending labor certification application or EB immigrant petition and the H-1B nonimmigrant’s current employment. This broad reading was recently affirmed in the Memorandum of William R. Yates, Associate Director for Operations. See William Yates, Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313), Memo # USCIS HQPRD 70/6.2.8-P, May 12, 2005 (“Yates Memo”).

If a labor certification was filed on behalf of one spouse, the other should be permitted to benefit from the labor certification application that was filed, and remains pending, on behalf of her husband, because under the liberalized provision of AC21, as amended by the 21st Century DOJ Appropriations Act, “365 days or more have passed since the filing of any application for labor certification.” See Pub. L. No. 107–273, 116 Stat. 1758 (2002). The derivative spouse will use this application upon its approval to obtain status pursuant to INA § 203(b).

The Yates Memo unfortunately suggests that an H-1B spouse must meet all the requirements independently of the H-1B spouse’s eligibility for a seventh-year extension. See Yates Memo at 10. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC21 § 106(a), which is unnecessary and absurd. The statute itself has more flexibility and speaks of “any application for labor certification…in a case in which certification is required or used by the alien to obtain status under such § 203(b).” See Pub. L. No. 106-313, 114 Stat. 1251, § 106(a) (2000). This interpretation is very much in keeping with spirit of AC21, which is to soften the hardship caused by lengthy adjudications and we certainly have that now with respect to China and India, as well as worldwide EB-3. The current interpretation placed upon AC21 § 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China in the EB-2, as well as worldwide EB- 3, it is simply unrealistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain here to preserve their eligibility for adjustment of status.

Finally, the USCIS has also argued that the absence of INA § 203(d) in AC21 § 106(a) – “any application for labor certification that is a required or used by the alien to obtain status under § 203(b).” – suggests that only the principal spouse can immigrate under INA § 203(b) and the derivative needs INA § 203(d). See id. But INA § 203(d) states that the spouse is “entitled to the same status, and the same order of consideration provided in the respective subsection (INA § 203(a), § 203(b), or § 203(c)), if accompanying or following to join, the spouse or parent.” See INA § 203(d) [8 U.S.C. § 1153(d) (2006)]. Thus, the derivative spouse still immigrates under INA § 203(b). INA § 203(d), which was introduced by the Immigration Act of 1990 (“IMMACT90”), is essentially superfluous and only confirms that a derivative immigrates with the principal. See Pub. L. No. 101-649, 104 Stat. 4978 (1990). Prior to IMMACT90, there was no predecessor to INA § 203(d), and yet spouses immigrated with the principal. Thus, it is clear that a spouse does not immigrate via INA § 203(d), and the purpose of this provision is merely to confirm that a spouse is given the same order of consideration as the principal under INA § 203(b).

(The authors thank Marcelo Martinez Zambonino, a law student at New York Law School, for his assistance in editing the post.)

Cyrus Mehta

GEARING UP FOR FY2011 H-1B FILINGS: USCIS STOPS ALLOWING FILINGS WITH UNCERTIFIED LCAs AND AILA PROTESTS NEUFELD MEMO

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In continuation of our previous article, H-1b Update: Filing Date Approaches; Scrutiny At POEs Increases; USCIS Issues H-1B Guidance Under Economic Stimulus, dated February 19, 2010, http://tinylink.com/?7h4K85wN87, USCIS has announced on March 10, 2010, that it will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified labor condition applications (LCAs). Earlier, USCIS explained that due to processing delays associated with the Department of Labor’s (DOL) “iCERT” online filing system, USCIS had responded to requests from the public by temporarily allowing H-1B petitions to be filed with uncertified LCAs. This temporary measure went into effect on November 5, 2009, and expired on March 9, 2010.

USCIS said that as of March 10, 2010, it is rejecting any H-1B petition filed without an LCA certified by the DOL. The announcement is available at http://tinylink.com/?C0bv7HtE1C.

On a separate note, the USCIS refused AILA’s request on March 5, 2010, to extend the “temporary acceptance” for submitting H-1B petitions without certified LCAs due to reports of ongoing delays in the new iCERT system of the DOL. Moreover, the new national prevailing wage determination process system of the DOL is also experiencing delays.

AILA has reminded its members that under the DOL regulations at 20 CFR § 655.731(a)(2), an employer is not required to obtain a prevailing wage determination for an H-1B and may rely on an independent authoritative wage source or other legitimate sources of wage data when filing an LCA. The independent authoritative source must meet all the criteria set forth in paragraph 20 CFR § 655.731(b)(3). H-1B petitioners may rely on DOL’s own prevailing wage data system at http://www.flcdatacenter.com/.

Please note that if an H-1B petition is filed with an uncertified LCA, the USCIS Service Center will reject it outright or issue a Request for Evidence asking for proof of an LCA that was certified prior to submission of the H-1b petition. Such a request will be impossible to comply with and the H-1B petition will likely be denied.

The general feeling is that there is not a big surge in H-1B cap cases to be filed from April 1, 2010, onwards. Note that there continues to exist a five-day filing window from April 1, 2010 – April 7, 2010 (which does not include April 4 & 5 as they fall on the weekend). If the USCIS receives more than 65,000 H-B petitions or more than 20,000 Master’s H-1Bs during the five-day filing period, they will be subject to a randomized lottery. If the USCIS receives less than 65,000 or 20,000 H-1B petitions during this five-day window, then the USCIS will continue to accept H-1B petitions until the H-1B caps are reached. If petitioners are unable to file H-1B petitions by April 1, 2010, they should not get worried so long as the petition reaches the USCIS by April 7, 2010. If by chance, USCIS receives more that the amount of H-1Bs mandated by the 65,000 and 20,000 Master’s H-1B cap, all H-1Bs received between April 1 and 7 will be all considered under the randomized lottery.

In another significant development, AILA on March 19, 2010 sent a Memo to USCIS Director Alejandro Mayorkas and Chief Counsel Roxana Bacon, expressing serious concerns over the Neufeld Memo of January 8, 2010, which re-defines the employer-employee relationship in H-1B petitions, http://tiny.cc/z3ZU8, pertaining to third party placements by emphasizing on the need of the petitioner to demonstrate a right of control of the H-1B at a third party site. The AILA Memo reminds that there already exists a definition of “employer” in 8 CFR § 214.2(h)(4)(ii), which provides as follows:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

(1) Engages a person to work within the United States;
(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) Has an Internal Revenue Service Tax identification number.

Based on the definition of an employer in the regulation, the AILA Memo points out that the Neufeld Memo adds additional requirements for determining the employer-employee relationship that are not found in the regulatory definition, which encompasses “hire, pay, fire, supervise, or otherwise control the work of any such employee.” Also, both the DOL in the context of H-1B dependent employers, 20 CFR 655.738, and Congress have recognized third-party placement, particularly when Congress restricted third party L-1B placements in 2004, it was the intent of Congress that such placements were more appropriate for the H-1B visa. The AILA Memo also highlights the unintended consequences of the Neufeld Memo, which affects industries other than IT consulting, most notably hospitals and physicians, who by law are not allowed to work for hospitals with non-physician ownership, and are petitioned for H-1B visas by separate subsidiaries of hospitals, whose sole purpose is to employ the physicians who work at the particular medical facility where the day-to-day duties are performed. These arrangements too, according to the AILA Memo, will not pass the test set forth in the Neufeld Memo. The AILA Memo also focuses on the economic harm that the Neufeld Memo would cause by pointedly stating: “The [Neufeld] Memo comes at a moment when government agencies should be implementing policies that encourage investment and innovation in the U.S., and creating conditions in which such businesses can flourish and increase employment here. Yet the Neufeld Memo creates serious roadblocks to such economic growth, in particular by increasing the burdens of small businesses and technology companies.” The AILA Memo correctly observes that IT staffing and consulting companies constitute a legitimate industry in the U.S., and “the way in which the Neufeld Memo addresses this industry betrays a lack of understanding of its business model, and as well as a total disregard for the realities of the employer-employee relationships within the business model.” The AILA Memo adds that U.S. businesses large and small, as well as government agencies, rely on IT firms for system development work as well as for staff augmentation. It is hoped that the USCIS will withdraw the Neufeld Memo. Finally, the AILA Memo cites examples of how the misguided “right of control” standard has adversely impacted adjudications in the L visa and EB-1-3 I-140 context where a President of a multinational corporation received a denial on the ground that the beneficiary owned the majority of the shares of a corporation and that no one supervised the beneficiary’s work. The full AILA Memo can be found here, http://www.aila.org/content/default.aspx?docid=31592

In the meantime, though, petitioners gearing up for filing H-1Bs on April 1, 2010 onwards, especially if their business model is based on third party placements, should continue to pay heed to the Neufeld Memo’s criteria establishing the employer-employee relationship, See From Problem To Springboard: Tips on Using the Neufeld Memorandum in Support of H-1B Petitions, http://tinylink.com/?zCbaXGsvHb

Cyrus Mehta

KAZARIAN V. USCIS: DISCREDITING THE CIRCULARITY ARGUMENT IN EB-1 PETITIONS

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The recent decision in Kazarian v. USCIS, — F.3d —-, 2010 WL 725317 (C.A.9 (Cal.)), http://www.ca9.uscourts.gov/opinions/view_subpage.php?pk_id=0000010327, goes a long way in discrediting the circularity argument that the USCIS often deploys to shoot down petitions filed under the extraordinary ability category (EB-1). Even though the petitioner lost in this case, the new re-issued decision is still a victory for those who wish to seek green cards as persons or extraordinary ability or as outstanding professor or researchers.

Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.

All credit goes to my friend and colleague, Bernie Wolfsdorf, AILA’s current President, who decided to take on this hopeless case pro bono after it was first denied in 2009. Nobody thought that the Ninth Circuit panel would even agree to review the case again. This writer is proud to have been part of an informal group of lawyers who occasionally assisted with thoughts and ideas on the amicus brief, which Nadine Wettstein, so adroitly crafted on behalf of the American Immigration Council. The whole purpose of seeking review of the decision was not to overturn the denial, but to request the Court of Appeals in the Ninth Circuit to remove, or rather discredit, the circular reasoning of the USCIS with respect to accepting evidence to prove extraordinary ability that was not required by the regulation. We believed that by removing this reasoning in Kazarian, it would give the USCIS Service Centers less ammunition to deny EB-1 petitions by rejecting evidence that can otherwise prove that one is a person of extraordinary ability.

As background, an individual can establish extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). No job offer is required. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards.

2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.

3. Published material about the person in professional or major trade publications or other major media.

4. Participation as a judge of the work of others.

5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.

6. Authorship of scholarly articles in the field, in professional or major trade publications or other media.

7. Artistic exhibitions or showcases.

8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.

9. High salary or remuneration in relation to others in the field.

10. Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that the petitioner Kazarian’s new brief, along with the amicus brief of the American Immigration Council attacked, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Fortunately, the new decision in Kazarian acknowledged the AAO’s faulty reasoning, which Kazarian 1 affirmed, and the following extract from the decision is worth noting: “The AAO’s conclusion rests on an improper understanding of 8 CFR § 204.5(h)(3)(vi). Nothing in that provision requires a petitioner to demonstrate the research community’s reaction to his published articles before those articles can be considered as evidence, and neither USCIS nor the AAO may unilaterally impose novel substantive or evidentiary requirements beyond those set forth at 8 CFR § 204.5. ”

It is hoped that the USCIS pays heed to the Kazarian court’s admonition of its flawed circularity analysis and stops insisting on evidence that has no basis in its own regulations. Deserving petitioners claiming extraordinary ability who benefit the United States ought to be able to gain permanent residence without jumping through needless hoops and hurdles.. And if the USCIS does not relent, petitioners should continue to discredit the government’s circularity argument. In addition to Kazarian, other federal district courts have been critical. See Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994)(criticizing the government’s circular argument requiring that “plaintiff must prove he is a doctor of extraordinary ability in order to prove that he is a doctor of extraordinary ability”); Gülen v. Chertoff, Civil Action No. 07-2148, 2008 WL 2779001 (E.D. Pa. July 16, 2008), at *4 (“Because Gülen has met the requirements of three of the subcategories of 8 C.F.R. § 204.5(h)(3), the AAO’s determination that he has not demonstrated extraordinary ability is contrary to applicable law and must be reversed”). Kazarian is a step in the right direction, following on the heels of equally critical lower federal court decisions on circularity, and will also benefit another important community so vital to this country, outstanding professors and researchers, who can also claim permanent residence through another provision of EB-1, INA § 203(b)(1))(B), where the evidentiary criteria with extraordinary ability overlap.

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Cyrus Mehta

HALCYON DAYS IN H-1B VISA PROCESSING

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

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

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

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

 

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

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

 

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

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

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