Cyrus Mehta

2022 in Perspective from The Insightful Immigration Blog  

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By Cyrus D. Mehta & Jessica Paszko*

Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs that were published in 2022.  While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.

Our blogs covered several major themes. Federal courts continued to block President Biden’s immigration policies especially on prosecutorial discretion.

DACA continues to remain in the balance. Our blogs covered all the developments on DACA and even contrasted the Fifth Circuit decision in Texas v. US with the DC Circuit decision upholding the STEM rule.

Delays remain endemic especially for Indian born beneficiaries in the EB-2 and EB-3 backlogs. Our blogs not only commented on the backlogs but also provided strategies for backlogged beneficiaries including left behind derivative beneficiaries.

Our blogs also addressed the current termination of H-1B workers and strategies for them to remain in status as well as suggestions on how Biden could ameliorate the hardships caused due to falling out of status.

Our blogs also covered immigration relief as a result of Russia’s aggression of Ukraine,  focused on unique ethical issues arising from Patel v. Garland and the dismissal of removal cases as well as covered evolving standards in the EB-1 and STEM areas for O-1 petitions.

We also addressed important developments concerning labor certification procedure and EB-5.

Cyrus Mehta along with Kaitlyn Box and Jessica Paszko were the key contributors to most of the blogs, always endeavoring through their passion for writing  to ensure that each blog remains an important reference and resource to practitioners, policy wonks  and laypersons. We also thank guest writer Professor Stacy Caplow for contributing two excellent blogs, here and here as well as David Isaacson for always being willing to vet our ideas when writing new blogs. We will ensure that our blogs continue to remain insightful in the immigration law field as we enter 2023. Thank you for your support.

Our top-ten most read blogs in 2022 were:

  1. Frequently Asked Questions on Transferring the Underlying Basis of an I-485 application from an I-140 petition under India EB-3 to an I-140 under India EB-2
  2. H-1B Extension Beyond Six Years Will Not Be Granted If Priority Date is Current and Green Card is Not Applied for Within One Year
  3. Solutions for the Family Member Who Did Not Get the Employment Based Green Card with the Principal Family Member on September 30, 2022
  4. Huh? Why Should Requesting a Transfer of Underlying Basis with an I-485 Supplement J Restart the 180-Day Portability Clock?
  5. Will USCIS Waste Precious Employment Based Green Cards as it Announces Push to Use as Many as Possible by September 30?
  6. Maintenance of H-1B/L-1 Status after Travelling Back On Advance Parole: Executive Legerdemain under the Cronin Memo
  7. I-485 Supplement J Should Not Be the Only Vehicle to Express Portability
  8. Ethical Dimensions of Patel v. Garland
  9. Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options
  10. USCIS Guidance Enabling STEM Gradates to Obtain EB-1 Should Apply Equally to EB-1 Extraordinary Petitions for Green Cards

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

 

 

 

Cyrus Mehta

United States v. Hansen: Supreme Court Once Again Agrees to Hear Constitutionality of a Smuggling Statute That Could Impact Immigration Lawyers

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By Cyrus D. Mehta and Kaitlyn Box*

On December 9, 2022, the Supreme Court granted certiorari in United States v. Helaman Hansen, a case that poses the question whether the federal criminal prohibition on encouraging or inducing unlawful immigration for commercial advantage or private financial gain in violation of  INA §274(a)(1)(A)(iv) is unconstitutionally overbroad. Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to  help undocumented immigrants become U.S. citizens through adult adoption. Hansen falsely advised these individuals that many undocumented immigrants had successfully become U.S. citizens through his program. In reality, it is not possible to obtain U.S. citizenship through adult adoption. Hansen was convicted of several counts of fraud in California, and was found to have violated INA §274(a)(1)(A)(iv) because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions. He first moved to dismiss the two fraud counts that were based on a violation of INA INA §274(a)(1)(A)(iv) on the ground that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion.

Hansen then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The government argued that  that subsection (iv) was limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. The Ninth Circuit disagreed, holding that the provision prohibits a broad range of protected speech. One could violate 8 U.S.C. § 1324(a)(1)(A)(iv) merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The court held INA §274(a)(1)(A)(iv) is unconstitutionally overbroad, and reversed Hansen’s convictions under this provision.  The government is seeking review of the Ninth Circuit’s decision at the Supreme Court, arguing in part that it has historically construed the “encourage” or “induce” language of INA §274(a)(1)(A)(iv) very narrowly to prosecute those who engaged in serious criminal conduct.

The same First Amendment overbreadth argument at issue in Hansen was addressed two years ago in United States v. Evelyn Sineneng-Smith. We discussed this case at length in a previous blog, excerpts of which are reproduced here. United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sineneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She was also convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits criminal conduct and a narrow band of unprotected free speech. The court provided several examples of seemingly innocuous conduct that could constitute a criminal violation of the provision, including one that is especially troubling for immigration lawyers – an attorney telling her client that she should remain in the country while contesting removal, because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed. The Supreme Court ultimately dismissed the case on other grounds, particularly for having departed from the party presentation principle.

It remains to be seen how the Supreme Court rules in Hansen, but its decision could carry important implications for immigration lawyers. Given the striking breadth of INA §274(a)(1)(A)(iv), a lawyer telling an undocumented client simply “I encourage you to remain in the United States” – perhaps because the client would later become eligible to seek adjustment of status – could render her vulnerable to prosecution. The Ninth Circuit in Hansen provided numerous other examples of protected speech that could potentially be prosecutable according to the plain text of the statute, including encouraging an undocumented immigrant to take shelter during a natural disaster, advising an undocumented immigrant about available social services, telling a tourist that she is unlikely to face serious consequences if she overstays her tourist visa, or providing certain legal advice to undocumented immigrants.

The Ninth Circuit considered a case that illustrates how easily an immigration lawyer could violate INA §274(a)(1)(A)(iv) by discussing even general immigration policies and consequences with undocumented clients. In United States v. Henderson, 857 F. Supp. 2d 191 (D. Mass. 2012), the government prosecuted a U.S. Customs and Border Patrol supervisor under this provision for “advis[ing her undocumented] cleaning lady generally about immigration law practices and consequences.” 857 F. Supp. 2d at 193. As Judge Bumatay points out in his dissent of the Ninth Circuit’s decision denying an en banc hearing,  the conduct at issue in Henderson may be more egregious than it first appears – the CBP supervisor knowingly engaged an undocumented employee and “coach[ed] the employee on how to evade immigration authorities while residing in the country”. Still, the majority  in Hansen cited the example of  Henderson being prosecuted for advising her cleaning lady about  immigration law practices and consequences, and thus “makes plain the ability of subsection (iv) to chill speech.” While the government has maintained that it will use INA §274(a)(1)(A)(iv) to prosecute persons who engage in the sort of criminal conduct that Hansen engaged in, this broad provision could also allow an overzealous prosecutor to go after a well meaning worker in a nonprofit who encourages an undocumented immigrant to take shelter during a natural disaster.

In the absence of clarity on how INA §274(a)(1)(A)(iv) could be applied to immigration lawyers advising their clients, practitioners can refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action to clients. Immigration lawyers should also keep in mind that ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” While it may be unlikely that an immigration lawyer advising an undocumented client to remain in the United States in order to become eligible for an immigration benefit down the road would be prosecuted under INA §274(a)(1)(A)(iv), but presenting the general consequences and benefits of remaining in the U.S. in violation of the law, as well as staying within the confines of ABA Model Rule 1.2(d), can offer practitioners some guidelines for avoiding potential liability.

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

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

 

Cyrus Mehta

Immigration Enforcement and Prosecutorial Discretion Go Hand in Hand: Will the Supreme Court Upset this Balance?  

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By Cyrus D. Mehta and Kaitlyn Box*

On Tuesday, November 29th, the Supreme Court heard oral arguments in US v. Texas, which involves a challenge to the Biden administration’s Immigration and Customs Enforcement (ICE) enforcement priorities. Originally laid out in the 2021 Mayorkas Memo, this list of enforcement priorities would have allowed ICE to focus its efforts on the apprehension and removal of noncitizens who pose a threat to “national security, public safety, and border security”. The attorneys general of Texas and Louisiana swiftly challenged these enforcement priorities, arguing that ICE would be allowed to overlook noncitizens for whom detention was required, which would subject the citizens of these states to crime committed by noncitizens who should be in detention, and force the state to spend resources providing education and medical care to noncitizens who should be detained. In previous blogs, we have discussed the procedural history of the case.

The Court first addressed the issue of whether the states have standing to challenge the enforcement priorities. General Elizabeth Prelogar, Solicitor General of the United States asserted that states should not have standing to challenge any federal policy that “imposes even one dollar of indirect harms on their own taxing or spending”.  The conservate majority was unmoved by this argument, with Justice Alito even suggesting that the government’s reasoning demonstrates a “special hostility” to the states’ standing.

The arguments then turned to the crux of the case – whether the Biden administration’s enforcement priorities contradict two statutory provisions – 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). 8 U.S.C. § 1231(a) pertains to the detention and removal of those who have been ordered removed. § 1226(c) lays out a list of noncitizens who “shall” be taken into custody by the Attorney General, including those who have committed certain criminal offenses.

The “shall” language of § 1226(c) was a point of particular contention for the Court. Justice Kavanaugh, in particular, argued that this language is mandatory, requiring the Court to take into custody noncitizens who fall within one of the categories enumerated in the statutory provision. Chief Justice Roberts, too, seemed to agree that “shall means shall”, leaving little room for the executive to exercise discretion in immigration enforcement. This interpretation, however, is entirely out of step with the usual interpretation of the statute and could have disastrous consequences if implemented.

A first problem with Justice Kavanaugh’s interpretation of the language of § 1226(c) is that it fails to read the statutory language in the context of the earlier provision at § 1226(a). § 1226(a) states that the noncitizens “may” be arrested and detained pending a decision on whether to put them in removal proceedings. This language is plainly permissive and affords the agency the discretion to decline to detain a noncitizen who is in removal proceedings. Indeed, the agency can elect not to place a noncitizen in removal proceedings at all, or to terminate removal proceedings that have already commenced. If the government must arrest and detain all noncitizens, and especially those who fall within § 1226(c)’s scope, the earlier provision affording it discretion to detain those same noncitizens pending the commencement of removal proceedings makes little sense. Statutes should be construed so that, on the whole, no clause, sentence, or word is rendered “superfluous, void, or insignificant” (TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)), and no provision “entirely redundant.” (Kungys v. United States, 485 U.S. 759, 778 (1988)). The same should be true for regulatory provisions. See Baude v. United States, 955 F.3d 1290, 1305 (Fed. Cir. 2020) (applying this canon of interpretation to a regulation); U.S. v. CITGO Petroleum Corp., 801 F.3d 477, 485 (5th Cir. 2015) (same).

Moreover, Justice Kavanaugh’s interpretation of 8 U.S.C. § 1226(c) contradicts established case law, namely Reno v. ADC, which held that discretion applies at every stage of removal proceedings. Justice Sotomayor pointed out this conflict, noting that the Court’s holding in Reno affords the executive the discretion to choose when and if to initiate removal proceedings, and when to terminate them. If discretion applies throughout the process, it follows that the executive can choose which noncitizens to target for enforcement in the first place.

If the government cannot choose which noncitizens to target for removal, perverse practical consequences will result, as well. General Prelogar argued that the government simply lacks the resources to target every removable noncitizen. Justice Kavanaugh appeared to give credence to this argument, stating: “So the government says we don’t have the money to comply. Then — then what do you do?”  If the Supreme Court rules in favor of Texas, the government will never be able to detain all noncitizens subject to 8 U.S.C. § 1226(c) and 8 U.S.C. § 1231(a). The Supreme Court will lose credibility if it issues a ruling that it and the government knows will never be followed. Prosecutorial discretion and enforcement go hand in hand. In order for  enforcement to be rendered effective, the government focuses its efforts and resources on those who it believes should be prosecuted. Even on a highway with a speed limit of 55 miles per hour, state troopers enforce the speed limit on those who blatantly and dangerously violate the limit as opposed to every car on the highway that may be going slightly over the 55 miles per hour speed limit. Moreover, in criminal law enforcement, the police cannot apprehend every violator of the law and no court has forced them to. Why should immigration enforcement be viewed any differently? Indeed, since a violation of immigration law is a civil rather than a criminal violation, more prosecutorial discretion ought to be accorded and other factors considered, such as the noncitizen’s family members who may become destitute if the noncitizen who provides for them is detained.

As immigration law is civil, its violators have not committed crimes. Those who have already been convicted of crimes have served their sentence under the penal system and can be further  detained under 8 U.S.C. § 1226(c) only because they are noncitizens.  The purpose of this detention is to deport them rather than to further punish them.  They are deserving of prosecutorial discretion, which permeates immigration policy in every aspect. The administration can parole noncitizens into the US for humanitarian grounds or defer the deportation of noncitizens on similar humanitarian grounds. It has recently allowed Ukrainians fleeing the Russian invasion of their country to come to the US on humanitarian parole. It has terminated removal cases on behalf of those who may be eligible for immigration benefits in the future.  The Deferred Action for Childhood Arrivals (DACA) program that has allowed young people who came to the US before the age of 16 with no status or fell out of status to remain in the US is also grounded in prosecutorial discretion. The newly promulgated provision at 8 CFR §236.21(c)(1)  aptly describes the basis for DACA:

Deferred action is an exercise of the Secretary’s broad authority to establish national immigration and enforcement priorities under 6 U.S.C. 205(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on high priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.

If the Supreme Court allows Texas and Louisiana to prevail,  DACA, which is already in legal jeopardy, will be the next major immigration policy involving prosecutorial discretion to fall. If a state hostile to immigrants does not like noncitizens who have been paroled into the US because they have been victims of war, then this state too can sue in federal court to dismantle a worthwhile humanitarian policy that may have foreign policy implications that are broader than a state’s narrow agenda. The Supreme Court should  not allow one state to derail a national immigration policy. The trend that we are seeing goes well beyond preemption of state law that may conflict with federal law. This is a case of a state blatantly challenging a federal immigration policy rather than the federal government seeking to preempt a conflicting state law. Even so, it is hoped that the Supreme Court will be guided by its own affirmation of prosecutorial discretion in the leading preemption case of  Arizona v. USA:

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the  community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

 

As esteemed colleague Shoba Sivaprasad Wadhia noted in her article for the American Constitution Society, “prosecutorial discretion is inevitable, so it does not stop functioning with litigation”. Earlier in the case’s history, Judge Drew Tipton of the Southern District of Texas had issued a decision precluding the enforcement priorities in the Mayorkas Memo from going into effect. The Supreme Court refused to stay Tipton’s injunction, but the ICE OPLA nonetheless provided guidance on prosecutorial discretion indicating that the doctrine will remain in place even though Mayorkas’ priorities will not explicitly be applied. This guidance states that “OPLA attorneys… may – consistent with longstanding practice – exercise their inherent prosecutorial discretion on a case-by-case basis during the course of their review and handling of cases.” Nonetheless, the majority’s reading of § 1226(c) carries worrying implications for how discretion in removal proceedings will be interpreted, and applied, going forward.

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

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

 

Cyrus Mehta

Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born,  but the Biden Administration Can Provide Relief

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, news of layoffs at the likes of Twitter, Meta, and Amazon have contributed to broader fears that the United States is entering a recession. In last week’s blog, we provided suggestions for how terminated workers can maintain their nonimmigrant status and potentially even pursue permanent residency. The layoffs at Twitter have also shown that it was mainly workers whose H-1B visas were tied to Twitter that have stayed on and abided by the unreasonable ultimatums of Elon Musk. This has given credence to the notion that H-1B workers are akin to indentured laborers especially those who are caught in the never ending green card backlogs. We follow up on the previous blog by providing some suggestions that the Biden administration can follow to allow nonimmigrant workers who have been laid off to remain in the U.S, and even if they are not terminated,  they should not be required to cling on to their job at all costs.

First, the Biden administration could extend the 60-day grace period to allow nonimmigrant workers additional time to find alternate employment after being impacted by a layoff. As discussed in prior blogs, 8 CFR § 214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN nonimmigrant workers a grace period of 60 days after a cessation of their employment. Workers who are able to find new employment within 60 days will be able to remain in the U.S. and maintain their nonimmigrant status, but this period may not allow sufficient time for job hunting, especially if layoffs and hiring freezes become more widespread. By extending the 60-day grace period, the Biden administration would allow terminated workers more time to find new employment in the U.S. The 60-day grace period is a relatively new concept, having been introduced in a final rule that went into effect on January 17, 2017. Before this rule was enacted, nonimmigrant workers did not benefit from any grace period, and had to immediately leave the U.S. if their employment was terminated to avoid being considered in violation of their nonimmigrant status. Because the 60-day grace period was itself created by a rule, the Biden administration could easily promulgate a new rule extending the grace period to 180 days, for example, or even longer. To avoid Administrative Procedure Act (APA) challenges, though, the administration would likely have to follow the strictures of the notice and comment rulemaking process rather than bypassing them under the good cause exception. Notice and comment rulemaking takes time, however, and the relief of an extended grace period might not arrive quickly enough for workers who have already lost their jobs or are laid off in the near future.

The next suggestion is to make clear when the 60 day grace period starts. Many workers are placed on severance or garden leave. The 60 day grace period should start at the end of the severance period. However, a June 2020 USCIS Policy Memo has muddied the waters somewhat. In this memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would seem that the grace period starts when the H-1B worker is no longer in productive status even though they may be paid their full salary during the severance or nonproductive period. The USCIS should clarify that an H-1B worker continues to maintain status so long as the employer-employee relationship has not terminated.

The USCIS also gives officers discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

Instead of all this muddled guidance and mixed messaging, the USCIS should provide straightforward clarification regarding when H-1B status ends, and clearly indicate that H-1B workers who are still maintaining an employer-employee relationship after being given notice ought to be considered in status until the relationship ends.

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

The Biden administration can also utilize a provision at 8 CFR § 214.1(c)(4), which affords USCIS the discretion to accept an untimely filing if “the delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; [t]he alien has not otherwise violated his or her nonimmigrant status; [t]he alien remains a bona fide nonimmigrant; and [t]he alien is not the subject of deportation proceedings”. A nonimmigrant worker whose employer was unable to timely file a petition on his behalf due to a layoff could credibly assert that his uncertain employment situation constituted extraordinary circumstances. If the layoff was the result of a recession or general economic difficulties, it should be demonstrable that the resultant delay of filing the H-1B petition beyond the grace period was not the fault of either the petitioner or the beneficiary. By generously applying this discretionary authority, the USCIS can assist nonimmigrants whose ability to seek a timely extension of status is impacted by a termination.

Ideally, a legislative solution would relieve the immense immigrant visa backlog, which would prevent beneficiaries of I-140 petitions from remaining in a nonimmigrant visa status for years until they can file adjustment of status applications. Proposals for legislative solutions include the recapture of wasted visa numbers from previous years and the allocation of additional visas to backlogged categories. Although Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), a case we have discussed in a previous blog, previously struck the idea down, Congress could assert that INA § 203(d) requires the unitary counting of family members. Even the Administration could contradict Wang v. Blinken if it had chutzpah through a rule or policy memo under the Brand X doctrine (thus overruling the case everywhere except in the DC Circuit), but this is hard to imagine as it recently successfully contested the plaintiff’s contention of unitary counting in that case. Another legislative proposal is to eliminate the per country limits, but even if that passes, there will still be backlogs although not as terrible right now which could be over a 100 years for Indian born beneficiaries.  Of course, finding a legislative solution is easier said than done in a polarized Congress, which will get even more polarized in 2023 when the Republicans take control of the House and the Democrats take control of the Senate. The GOP is too obsessed about border security before making any deal on immigration reform. There is also an urgency to prioritize on a legislative solution for DACA recipients as it is expected that the Supreme Court will uphold the lower courts that have found that DACA is not authorized by the INA. Unless by some stroke of luck the lame duck Congress can cobble together a deal to bring relief to backlogged beneficiaries based on the many proposals on the table, the Biden administration should focus on administrative solutions to bring relief to terminated nonimmigrant workers, who stand to suffer the most in the face of layoffs and economic woes.

Existing Indian born H-1B workers in the employment based green card backlogs who get terminated are  far worse off than others. But for the backlogs they may have already had their green cards or become US citizens. Indian born beneficiaries whose labor certifications were filed after April 1, 2012 are still caught in the backlogs and have remained in H-1B status while their contemporaries born in other countries have become US citizens.  Making tweaks in existing policies such as extending the 60-day grace period, issuing EADs based on a more generous interpretation of compelling circumstances, and giving more  discretionary authority to accept untimely filings under 8 CFR § 214.1(c)(4)  can provide some small amelioration to terminated nonimmigrant workers, especially those who are caught in the never ending green card backlogs.

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

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

 

Cyrus Mehta

Why the AILA Law Journal is Important

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The AILA Law Journal has come a long way since its April 2019 launch. At the time of the publication of the November 2022 issue, the AILA Law Journal will be 8 issues old.

I am proud to be the Editor in Chief of the AILA Law Journal at the time of the release of this November 2022 issue. The AILA Law Journal plays an invaluable role by curating high quality articles that guide attorneys to advance novel and innovative arguments on behalf of their clients.  For the AILA Law Journal’s success and contributions, I pay tribute to my predecessor, Shoba Sivaprasad Wadhia, who so successfully launched the publication and led it until recently. I hope to inspire attorneys, law students, and others, as Shoba did, to contribute articles in the immigration field that will not just benefit attorneys, but will also help to shape immigration laws.

I really look forward to working with a fabulous team of editors to take the AILA Law Journal to the next phase. Being Editor in Chief gets me thinking about some of the important issues of the day. I have been  consistently writing on contemporary immigration topics, and taking on this new role completely aligns with my passion to express a point of view or highlight an important development for AILA colleagues and clients.  For example, to what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. The U.S. Court of Appeals for the D.C. Circuit in Washington Alliance of Technology Workers (“Washtech) v. the U.S. Department of Homeland Security addressed the question of F-1 students and whether they could remain in the U.S. after graduation for practical training. Citing DHS’ authority under INA § 214(a)(1) and the long history of post-graduation practical training, the court upheld Optional Practical Training that has been granted to students after they graduate in the US. The Fifth Circuit in Texas v. US confronted a different issue – that of young people who came to the U.S. and whether they could remain in the country through deferred action. Finding that DACA exceeds DHS’ inherent authority to exercise prosecutorial discretion, the court struck down the program, though deferred action is a well-established practice like OPT. Although the Washtech case dealt with students, the D.C. Circuit’s decision can serve as a template for the Supreme Court to uphold the authority for other categories of noncitizens to remain in the U.S., including DACA recipients.

I hope the AILA Law Journal can attract articles that explore themes like this in depth. I also look forward to articles in the AILA Law Journal being cited by federal courts. Some day, I hope that the AILA Law Journal can organize a symposium attracting both scholars and practical lawyers to present papers that will then get published in a dedicated issue of the AILA Law Journal.

It is very important for lawyers to write and express their views. The AILA Law Journal is here to encourage this. And for those who do not have the time or inclination, it is hoped that the excellent articles in the AILA Law Journal from one issue to the next will provide food for thought to all – lawyers, policy makers and judges – that will result in fair and sensible immigration policies and outcomes.

A version of this blog first appeared on Think Immigration

Cyrus Mehta

Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options

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By Cyrus D. Mehta

The sudden layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies in the US create additional concerns as their visa status is tied to the employer. Those who have been sponsored for permanent residence face additional concerns. We provide a quick guide to employees who have been laid off and how they can still be able to take steps to remain in status, and take advantage of the priority date already established on their behalf if they have been sponsored for permanent residency.  Although this blog provides guidance to terminated nonimmigrant workers, our recent prior blogs,  here and here, guide employers on their obligations when nonimmigrant workers are terminated

60 Day Grace Period

 As discussed in our prior blog, 8 CFR §214.1(l)(2) allows E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1or TN nonimmigrant workers a grace period of 60 days upon a cessation of their employment. The 60-day grace period is indeed a salutary feature and was not around during prior disaster episodes. Up until January 17, 2017, whenever workers in nonimmigrant status got terminated, they were immediately considered to be in violation of status. There was also no grace period to depart the United States. Therefore, if a worker got terminated on a Friday, and did not depart on the same day, but only booked the flight home on Sunday, this individual would need to disclose on a future visa application, for all time, that s/he had violated status. Derivative family members, whose fortunes were attached to the principal’s, would also be rendered out of status upon the principal falling out status. Thus, the 60-day grace period not only gives the worker more time to leave the United States, but it also provides a window of opportunity to transition to another employer who can file an extension or change of status within the 60-day period. Similarly, the worker could also potentially change to some other status on their own, such as to F-1, after enrolling in a school. If the worker may need more time to leave the US beyond the 60 days, they can apply for a change to B-2 visitor status. Prior to January 17, 2017, nonimmigrant workers who fell out of status upon cessation of their employment, and sought a late extension or change of status had to invoke the USCIS’s favorable discretion pursuant to 8 CFR §214 .1(c)(4) and 8 CFR §248(b)(1)-(2) by demonstrating, among other things, extraordinary circumstances.

Thus, an H-1B worker who has been terminated may be able to seek another employer to file an extension of status on their behalf within the 60 day grace period. As this worker has already been counted under the H-1B cap, the employer will not need to register under the next H-1B lottery and can immediately transfer H-B status through the new employer.

The maximum time that a noncitizen can spend in H-1B status is six years. If the worker has spent less than six years in the US, they can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. Any time not spent in the US during the prior H-1B status period can be recaptured based on trips made abroad. See 8 CFR 214.2(h)(13)(iii)(C).  If the individual is the beneficiary of an approved I-140 petition, and the final action date is not yet current under the State Department Visa Bulletin in the employment second (EB-2) or employment third preference (EB-3), the worker can obtain a three year H-1B extension even beyond the six years until the date has become current pursuant to § 104(c) of the American Competitiveness in the 21st Century Act. If the final action date is current under EB-2 or EB-3, the worker is entitled to a one year H-1B extension beyond six years under §106(a) of AC21. However, if an I-485 adjustment of status application has not been filed within one year, a worker may be precluded from talking advantage of the one year extension unless it can be shown that failure to file an immigrant visa or adjustment of status application was beyond the worker’s control, and this has been further explained in our prior blog.

Although a laid off L-1 worker will also be able to avail of the 60-day grace period, and is entitled to a maximum of seven years if in L-1A status or five years if in L-1B status (including recaptured time), filing an L extension through another employer would be challenging as the worker has to demonstrate that they have had one year of qualifying experience in an executive, managerial or specialized knowledge capacity for a parent, branch or subsidiary of the US entity in the past three years. If the employer can only file a change of status to H-1B, then unless the worker has previously been counted under a prior H-1B cap, they will have to wait to be registered in the next H-1B lotter in March 2023. Other options could include changing status to  O-1A if the terminated L-1  worker can qualify as a person of extraordinary ability.

 

Garden Leave and Nonproductive Status

What is less clear is when termination occurs with respect to an H-1B worker. An employer can terminate on November 1, 2022 and still pay the employee the full wage but keep this person in a nonproductive status for several weeks or months. Let’s assume in this example that the worker is terminated on November 1, 2022, but continues to be paid from November 1, 2022 till December 1, 2022 while in nonproductive status. This nonproductive period is known as “garden leave” where the terminated worker is still considered an employee but not required to engage in productive work for the employer. The employer utilizes “garden leave” to disincentivize the employee from immediately working for a competitor or as part of a severance agreement. Does the termination in this scenario occur on November 1, 2022 or on December 1, 2022, which is when the garden leave period ends and the worker ceases to receive a salary in accordance with the terms of the H-1B petition?

According to a June 2020 USCIS Policy Memo, the USCIS has indicated that “[t]he failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both.” Based on this policy, it would be safer to consider the termination as occurring on November 1, 2022 rather than December 1, 2022. Yet, the USCIS acknowledges that there may be situations when H-1B status is not violated if the worker is on leave under statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act, even if the worker is not paid.

The USCIS also gives the officer discretion to determine whether nonproductive status constitutes a violation of the beneficiary’s nonimmigrant classification. The following extract from the USCIS Policy Memo is worth noting:

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status. While neither statutes nor regulations state the maximum allowable time of non-productive status, the officer may exercise his or her discretion to issue a NOID or a NOIR to give the petitioner an opportunity to respond, if the time period of nonproductive status is more than that required for a reasonable transition between assignments. As always, if the officer encounters a novel issue, the officer should elevate that issue to local service center management or Service Center Operations, as appropriate.

A terminated H-1B worker may need more time to find another job and thus extend the commencement of the grace period to a later date, especially when the worker continues to be paid and treated as an employee during the nonproductive status. There might be a basis for the termination date to be December 1, 2022 rather than November 1, 2022 given that the USCIS allows the officer to assess the circumstances and time spent in nonproductive status, although it would be far safer and more prudent to consider November 1, 2022 as the termination date.

One should also note a 1999 advisory opinion concerning reductions in force.  USCIS indicated that a severance package that offered terminated H-1B and L-1 employees their normal compensation and benefits for a 60-day period did not preserve the beneficiaries’ nonimmigrant status. Specifically, Branch Chief Simmons wrote, “An H-1B nonimmigrant alien is admitted to the United States for the sole purpose of providing services to his or her United States employer. Once H-1B nonimmigrant alien’s services for the petitioning United States employer are terminated, the alien is no longer in a valid nonimmigrant status. However, an H-1B worker who has not been terminated, but is on leave, can distinguish his or her situation from one who has indeed been terminated.”

 

Termination after Employment Sponsorship for Permanent Residence Already Commenced

 If the worker is already the beneficiary of an approved I-140 petition and is terminated, a new employer in addition to transferring the H-1B status may also file a new labor certification, and upon approval, file another I-140 petition. The priority date of the prior I-140 petition can still be retained.

Under 8 CFR 204.5(p), an employment authorization document (EAD) may be issued to beneficiaries of I-140 petitions in the United States on E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status if they can demonstrate compelling circumstances and if their priority dates are not current. While compelling circumstances have not been defined in the rule, DHS has suggested illustrative circumstances in the preamble to the high skilled worker rule, which includes serious illness and disabilities, employer dispute or retaliation, other substantial harm and significant disruptions to the employer.   Regarding what may constitute significant disruption, DHS has suggested loss of funding for grants that may invalidate a cap-exempt H-1B status or a corporate restructure that may no longer render an L-1 visa status valid.

Anecdotal evidence suggests that USCIS has been very niggardly in issuing employment authorization under compelling circumstances.

If the Form I-485 application has been pending for 180 days or more, the worker can exercise job portability under INA 204(j) by taking up a job or being offered a job in a same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising portability under INA 204(j). The applicant will need to submit Form I-485, Supplement J.

Under 8 CFR 245.25(b), “[t]he term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based immigrant visa petition was approved.”

It is also possible for an adjustment applicant to “port” to self-employment if employment prospects are bleak.

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

 

 

 

 

 

 

Cyrus Mehta

USCIS Guidance Enabling STEM Graduates to Obtain O-1 Extraordinary Visas Should Apply Equally to EB-1 Extraordinary Petitions for Green Cards

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By Cyrus D. Mehta & Jessica Paszko*

Earlier this year, the USCIS issued policy guidance in the USCIS Policy Manual to clarify how the USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, with a focus on persons in science, technology, engineering, or mathematics (STEM) fields. The O-1A nonimmigrant visa is available to persons of extraordinary ability in the sciences, business, education, and athletics. The O-1B is available to  persons with a record of extraordinary achievement in the motion picture of television industry or to persons who have gained distinction in the arts. The new guidance has not added additional criteria or requirements for O-1A applicants in STEM, but has, among other things, added a chart in an appendix describing examples of evidence that may satisfy the O-1A evidentiary criteria, as well as considerations that are relevant to evaluating such evidence (with a focus on evidence and considerations that are relevant to STEM fields) and provides examples of qualifying comparable evidence that petitioners could provide in support of a petition for a beneficiary in a STEM field.

The O-1A visa is the nonimmigrant “cousin” of the employment based first preference immigrant visa (EB-1A) for individuals with extraordinary ability, often dubbed the Einstein visa. The two visa categories mirror one another and require petitioners to effectively establish the same evidentiary criteria. But note that the regulatory standards for an O-1A require that the beneficiary meet only eight rather than 10 criteria as the criteria for beneficiaries in the arts have been moved under a different section in the regulations at 8 C.F.R. § 214.2(o)(3)(iv). See the INA provisions for EB-1A under INA § 203(b)(1)(A) and the O-1A under INA § 101(a)(15)(O). See also the regulatory criteria for the EB-1A under 8 C.F.R. § 204.5(h)(3) and for the O-1A under 8 C.F.R. § 214.2(o)(3)(iii). However, and most notably, a victory under EB-1A comes with a green card, while a victory under O-1 comes with a temporary period of authorized employment. While there is no limit on the number of times that an O-1 can be extended, there are virtually no paths to citizenship for O-1 beneficiaries unless they can qualify under any of the other employment-based (EB) preference categories, such as EB-1, EB-2, or EB-3. However, the very reason that one many apply for the O-1 is because the other EB categories are not the right fit for that particular beneficiary. For instance, because they don’t have a qualifying degree or an employer who wishes to pursue the lengthy and costly PERM labor certification process on their behalf. Many who seek an O-1A are founders of their own companies which would make labor certification virtually impossible. Those who are unable to file labor certifications because they own their companies may sidestep the labor certification process by applying for a National Interest Waiver. Still, to apply for a National Interest Waiver, the USCIS considers whether the person’s proposed endeavor has both substantial merit and national importance, the person is well positioned to advance the proposed endeavor, and that it would beneficial to the U.S. to waive the job offer and thus the permanent labor certification requirements. See Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). At the same time though, for some EB-2 beneficiaries, even those who can benefit from a National Interest Waiver, this path may not befit them with a green card for many years, even decades, if they are nationals of backlogged countries such as India or China. If Indian born beneficiaries can qualify for the O-1A under the new guidance, they should similarly be able to qualify for the EB-1A as this category is current for India and all other countries under the State Department Visa Bulletin.

8 CFR § 214.2(o)(3)(iii) provides that:

An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

(A) Receipt of a major, internationally recognized award, such as the Nobel Prize; or

(B) At least three of the following forms of documentation:

(1) Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

(2) Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

(3) Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

(4) Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

(5) Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;

(6) Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;

(7) Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

(8) Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

(C) If the criteria in paragraph (o)(3)(iii) of this section do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence in order to establish the beneficiary’s eligibility.

To satisfy the second criterion, USCIS has typically required that the petitioner show that membership in the association requires outstanding achievements in the field for which classification is sought, as judged by recognized national or international experts. In cases where associations may have multiple levels of membership, the petitioner must show that in order to obtain the level of membership afforded to the beneficiary, the beneficiary was judged by recognized national or international experts as having attained outstanding achievements in the field for which classification is sought. In light of the new policy guidance, USCIS has provided a possible example that may be helpful to STEM beneficiaries. It states:

[M]embership in the Institute of Electrical and Electronics Engineers (IEEE) at the IEEE fellow level requires, in part, that a nominee have “accomplishments that have contributed importantly to the advancement or application of engineering, science and technology, bringing the realization of significant value to society,” and nominations are judged by an IEEE council of experts and a committee of current IEEE fellows. As another possible example, membership as a fellow in the Association for the Advancement of Artificial Intelligence (AAAI) is based on recognition of a nominee’s “significant, sustained contributions” to the field of artificial intelligence, and is judged by a panel of current AAAI fellows.

With respect to the fifth criterion, the USCIS provides that “evidence that the beneficiary developed a patented technology that has attracted significant attention or commercialization may establish the significance of the beneficiary’s original contribution to the field. If a patent remains pending, USCIS will likely require additional supporting evidence to document the originality of the beneficiary’s contribution.”

While all O-1A petitioners may submit comparable evidence under 8 C.F.R. § 214.2(o)(3)(iii)(C) if the enumerated criteria do not readily apply to a particular beneficiary, in the STEM context, USCIS reiterates that “[a]s with all O-1A petitions, officers may consider comparable evidence in support of petitions for beneficiaries working in STEM fields. Specifically, if a petitioner demonstrates that a particular criterion does not readily apply to the beneficiary’s occupation, the petitioner may submit evidence that is of comparable significance to that criterion to establish sustained acclaim and recognition.” Relatedly, with respect to the evaluating the totality of the evidence, the policy manual provides that when “the evidentiary requirements specified above are satisfied, an officer proceeds to evaluate the totality of all the evidence in the record to determine whether the beneficiary has extraordinary ability with sustained national or international acclaim.” Here, “officers may consider any potentially relevant evidence, even if such evidence does not fit one of the above regulatory criteria or was not presented as comparable evidence.” In the STEM context, this may occur when the “record establishes that the beneficiary is named as an investigator, scientist, or researcher on a peer-reviewed and competitively funded U.S. government grant or stipend for STEM research.” In turn, this “type of evidence can be a positive factor indicating a beneficiary is among the small percentage at the top of the beneficiary’s field.”

The Biden Administration has clearly expressed its desire to expand immigration benefits for those in the STEM field but has not allowed them to take advantage of all immigrant visas, such as the EB-1A. While we applaud the government’s move to expand the O-1A visa category to cover those in the STEM field, we wonder why a similar expansion has not occurred for the EB-1A. After all, as mentioned, the two visa categories share similarities and both intend to welcome extraordinary individuals to the U.S. Both categories also require “a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” See 8 CFR §214.2(o)(3)(ii); 8 CFR §204.5(h)(2).  If the government endeavors to promote STEM fields, then it should also allow extraordinary individuals working in the STEM field to apply for the EB-1A. Allowing an extraordinary individual in the STEM field to easily become a permanent resident after obtaining the O-1A visa will allow this individual unfettered by the limitations of a temporary visa status to thrive and flourish, which in turn will benefit the United States.

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

 

 

 

Cyrus Mehta

DOL Fails to Side with H-1B Worker who Claimed Back Wages Against Employers After Being Terminated

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By Cyrus D. Mehta and Kaitlyn Box*

H-1B workers can file complaints against employers to the Department of Labor if they are not paid the promised wage.  Ankit Jain is one such worker who filed complaints against two of his employers, Metromile, Inc, and Hinge Health, for back wages. When Mr. Jain was not satisfied with the initial decisions, he appealed them to an Administrative Law Judge (ALF). The ensuing decisions of the ALJ limiting back wages to Mr. Jain are instructive as the DOL will not always side with H-1B workers who claim back wages against their employers on grounds that they had not been properly terminated under technical DOL rules.

In Jain v. Metromile, Inc., ALJ Case No. 2021-LCA-00018 (July 19, 2022), Mr. Jain sought back wages after being terminated by his employer, Metromile. He accused his employer of not effectuating a bona fide termination, which required the employer to continue to pay him the wage.  Under the Labor Condition Application that is submitted with the H-1B petition, an employer must pay the required wage that has been promised in the LCA until the employer terminates the H-1B worker.

Earlier, in  Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-0006 (ARB Sept. 29, 2006), the Administrative Review Board (ARB)) held that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR 655.731(c)(7)(ii):  (1) the employer must expressly terminate the employment relationship with the H-1B worker,  (2) the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11), and (3) the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E). The ARB in Amtel held that an employer can still be obligated to pay an H-1B worker back wages if it explicitly terminates his employment but fails to notify USCIS of the termination and/or pay for the employee’s return transportation.

Metromile had not paid for Mr. Jain’s return transportation to India and did not notify USCIS that his employed had been terminated until long after the fact. A few months after Mr. Jain was fired by Metromile, a second employer, ForeThought, filed an H-1B change of employer petition on his behalf, which got approved. The ALJ held that a “bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified an H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a ‘change of employer’.” Because Mr. Jain was aware that he had been terminated by Metromile and had no present need to leave the United States given that he was to begin work for a new employer in H-1B status, the ALJ did not find his previous employer liable for his return transportation costs. Moreover, the court held that Metromile was liable for back wages only for the period from Mr. Jain’s termination until the change of employer petition filed by ForeThought was approved, at which time a bona fide termination had been effectuated.

Jain v. Metromile reinterprets Amtel Group of Fla., Inc. v. Yongmahapakorn. The ARB in Amtel held that an employer can still be obligated to pay an H-1B worker back wages if it explicitly terminates his employment but fails to notify USCIS of the termination and/or pay for the employee’s return transportation. In a previous blog, we discussed Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017), which had previously modified the ARB’s holding in Amtel. In Vinayagam, the ARB held that an employer’s failure to pay return transportation costs for a terminated H-1B employee was not fatal when the worker voluntarily decided not to return to her home country but instead remained in the U.S. and sought H-1B status through a new employer.

In Jain v. Metromile, the ALJ held that the “Amtel definition is not the only means of making a bona fide termination.” Citing Batyrbekov v. Barclays Capital, ARB No. 13-013, ALJ Case No. 2011-LCA-025, slip op. at 10 (ARB) July 16, 2014, the ALJ held that when there are multiple H-1B employers, a strict reading of Amtel would render a former employer liable for back wages even if the H-1B worker changes employers, and this former employer would remain liable until the H-1B worker was provided the return transportation costs. Thus, when USCIS approves a “change of employer” petition, the back wage claim against the former employer stops accruing. Batyrbekov v. Barclays Capital involved an H-1B worker who was terminated by Barclay’s Capital, which failed to notify USCIS of the termination. Though another employer filed an H-1B petition on his behalf, Batyrbekov never began working for this employer. Batyrbekov sought back wages, but the Administrative Review Board (ARB) found that Barclays’ liability ended on the date that an H-1B petition filed by a new employer was approved on Batyrbekov’s behalf. The ARB held that “the Amtel definition of a bona fide termination cannot be strictly applied to cases involving multiple H-1B employers”. The ARB further opined that a bona fide termination can occur when an employer expressly notifies an H-1B worker that his employer is terminated and a new employer then files an H-1B “change of employer” petition for the worker that is approved by USCIS.

In January 2020, Mr. Jain began working for a third employer employer, Hinge Health. See Jain v. Hinge Health, Inc., ALJ Case No. 2021-LCA-00015 (July 19, 2022). Hinge Health terminated Mr. Jain in October 2020 and he filed a complaint to the DOL, which found that Hinge Health had failed to pay Mr. Jain required back wages in violation of 20 C.F.R. § 655.731 and had failed to either “offer equal benefits or equal eligibility for benefits or both” in violation of 20 C.F.R. § 655.731(c)(3). Jain appealed, arguing that Hing Health owed him additional back pay.  Jain alleged that the company failed to pay for his return transportation to his home country, failed to inform USCIS of his termination, and did not timely notify him of the withdrawal of his LCA. Shortly after his termination, Mr. Jain had signed a “Confidential Severance and General Release Agreement” in which he agreed to absolve Hinge Health of any claims under federal or state law. The ALJ found that this broad waiver precluded Mr. Jain for pursuing any of the claims he had raised, including the alleged LCA violation, and accordingly dismissed the case. The ALJ relied on Gupta v. Headstrong, ARB Case Nos. 15-032, 15-033 (ARB Jan. 26, 2017), which involved a claim for back wages by a terminated H-1B employee who had signed a similarly broad release agreement. In Gupta, the ARB held that the release agreement was valid and barred recovery, noting that it “did not have authority to adjudicate collateral attacks on a facially valid contract and that Gupta had ‘evoked no statute, regulation, or precedent authorizing’ it to do so”.  Additionally, the ALJ found that Hinge Health had fulfilled its duty to inform USCIS that Mr. Jain’s employment had been terminated, even though it did so several months after the fact. Hinge Health was not required to pay for Mr. Jain’s return transportation because he never intended to leave the country. Even if the release agreement is not upheld, the ALJ found that Hinge Health would not be liable for Mr. Jain’s return transportation costs because he did not intend to return to his home country and instead had immediately begun seeking new employment in the United States following his termination. Interestingly, the ALJ is both cases found that Mr. Jain was not a credible witness. In Jain v. Hinge Health, the ALJ determined that Jain’s testimony regarding whether he had hired attorney to assist him and the timeline in which he found another job was unreliable. Similarly, in Jain v. Metromile, the ALJ did not find Jain’s statements regarding when his complaints were filed to be credible.

Both the decisions limited liability for the employer where the H-1B worker claimed that his termination was not effective by not following the steps set forth in Amtel. In Jain v. Metromile, an employer is no longer liable for back wages once the H-1B employee obtains an approval of an H-1B change of employer petition even if the employer did not notify the USCIS or provide return transportation costs prior to the transfer to the new employer. In Jain v. Hinge Health, a properly drafted release agreement can absolve the employer of liability under the LCA.

* Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners, PLLC. She is admitted to practice in New York.

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

 

 

 

Cyrus Mehta

Biden’s Pardons: The First Drops in a Big Bucket of Criminal Reform

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By Stacy Caplow∗

President Biden pardoned thousands of United States citizens and lawful permanent residents who committed or were convicted in federal courts of simple marijuana possession since 1992, and even earlier if those records can be located. This is a record number of mass pardons since Vietnam draft resisters were pardoned by President Carter in 1977.  Predictably, no one is totally satisfied with this announcement.  The right quickly denounced Pres. Biden for being soft on criminals; criminal and immigration advocates consider these pardons to be a good start but only a small step in addressing in the unforgiving wave of over-criminalization over the past 30 years that affected so many.

While these new pardons acknowledge the racism inherent in these arrests and convictions—it’s good to express this– they also are reacting to the wave of marijuana decriminalization initiatives in almost 50% of the states where some form of marijuana use and possession has been essentially legalized. but theses pardons do not affect individuals convicted of marijuana possession in state courts. Recently, Brooklyn District Attorney dismissed over 3,500 pending marijuana cases in light of New York State’s new legislation.

Marijuana possession is a small corner of the universe of people who have been arrested, prosecuted, and incarcerated for crimes that stem from poverty and its attendant social problems. And, largely forgotten in this multitude of people caught in the net of the war on crime are the many noncitizens facing deportation for a single, often long-ago crime.  Marijuana, in particular, justified many police stops and arrests, often the first step in many more intrusions by the criminal legal system, and for some, to eventual removal proceedings.

The consequences of any conviction do not stop in the criminal courts.  Particularly harsh deportation laws enacted in the late 1990s made it almost impossible for either criminal or immigration courts to recognize any form of rehabilitation, family or community factors, physical or mental health, the context in which a crime was committed or even its age. Even convictions that carry no prison sentence or that have been vacated or expunged cannot forestall deportation.  When a citizen’s criminal case and sentence is over, they return to their communities—often burdened by civil disabilities which clearly make getting work, finding housing, securing credit, and often voting exponentially difficult.  Noncitizens are sentenced twice—they are placed in removal proceedings, often moving directly from prison to immigration detention, a difference in location but not in conditions of confinement. Sometimes, they are put into removal proceedings years later but languish in detention their cases drag on.  Their life had been back on track and then they are whisked into the horrible world of immigration detention where, for example, one of our clients, a young mother of three who came to the U.S. as a refugee, was so medically mistreated that she almost died from sickle cell disease.  The destabilizing threat of deportation hangs over their heads for years.

The Immigration and Nationality Act does contain one surprisingly generous provision:  a full, unconditional Executive pardon is a waiver of deportation for most criminal convictions.  Assuming there is no other basis for deportation, removal proceedings would be terminated because of the pardon. For the lawful permanent resident, this means restoration of that status.  For others, it may provide an opportunity to gain some form of status.

The Clemency & Pardon Project of Brooklyn Law School is a clinical program in which students file pardon applications on behalf of individuals facing removal to federal and State pardon authorities.  Our clients, most of whom came to this country as lawful immigrants decades ago, generally have been convicted of a single crime that renders them deportable.  These convictions may have occurred 10, 20 or even 30 years ago. Our clients are parents of U.S. citizens who often have health or mental health problems.  Our clients work hard to support their children, have extended families and solid community ties in the United States.

Our harsh immigration laws bar our clients from immigration relief because of their single conviction.  So, we file applications in the hope that a pardon, operating as a waiver of deportation for some crimes, will allow them to remain in the U.S.  For example, we filed federal pardon applications in early 2022 on behalf of two women both of whom have been longtime lawful permanent residents—one came as a refugee, the other gained status as a result of an abusive marriage.  Both come from countries riven by violence, corruption, and social disorder. They essentially were “drug mules” at a time in their lives when they were desperate for money to support their families.  They were convicted in federal court.  They completed their sentences and their post-release supervision.  Then, they were detained by I.C.E. and placed in removal proceedings.  Ultimately, they were released. While neither has been deported yet, their pardon applications are pending along with thousands of others.  So far, according to the U.S. Office of the Pardon Attorney, only three pardons have been granted during the Biden administration while 3,357 applications are pending.

Our other clients, mostly in New York State, face similar odds and are equally deserving of the kind of justice-correction that pardons accomplish. One of our clients whose case is pending in the New York State Executive Clemency Bureau came to the U.S. as a child of a refugee, and on the verge of starting college, played a minor role in an armed robbery.  He was just over the age limit for Youthful Offender treatment which would have prevented deportation.  He served a hefty sentence but while in prison he earned a boxful of certificates. Then, upon release, went to college, earning a B.A. with distinction.  He married and became a father of a son who is autistic.  He survived the pandemic as a food deliverer and finally just got a full-time job.

My students, their immigration lawyers and I cannot find a single reason aside from their conviction to justify their deportation.  We have more examples of people equally deserving of a pardon. Our students work hard to paint a detailed portrait of our clients to make sure that anyone reading the application truly understands the full person, their life circumstances, and the impact of deportation on their families, employers, communities and themselves.

Recently, the Governor of Oregon, Kate Brown, granted clemency, including pardons, to 73 people.  This most recent spate of clemency follows earlier grants and is a manifestation of Governor Brown’s efforts to respond to mass incarceration by performing “acts of mercy.”  This remarkable record addresses the social costs of our punitive society, but it takes courage and conviction to act this boldly.  Other governors have been a bit active in the clemency/pardon space, including former NY State Governor David Patterson, but none have specifically targeted productive, rehabilitated noncitizen offenders for particular attention.

President Biden acted decisively, if not as radically as he might have.  Now that he has tested the waters of mercy, he can use his powers even more generously and set an even stronger example to governors.  Pardon power is absolute. When its exercised cravenly, as during the Trump years, it seems corrupt.  But it also is a tool for redressing injustice.  There are nails everywhere; use that hammer.

Guest Author Professor Stacy Caplow teaches the Clemency & Pardon Project at Brooklyn Law School as well as Immigration and Criminal Law.

Cyrus Mehta

A Tale of Two Cases – Washtech v. DHS and Texas v. USA: To What Extent can the Executive Branch Allow Noncitizens to Remain and Work in the US

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By Cyrus D. Mehta and Kaitlyn Box*

To what extent can the Executive Branch allow noncitizens to remain and work in the US when there is no explicit provision in the Immigration and Nationality Act (INA) covering these categories of noncitizens? Two courts of appeals have ruled differently in recent decisions. One court found authority while the other court did not. The D.C. Circuit addressed the question of F-1 students and whether they could remain in the U.S. after graduation for practical training. Citing DHS’ authority under INA § 214(a)(1) and the long history of post-graduation practical training, the court upheld OPT. The Fifth Circuit confronted a different issue – that of young people who came to the U.S. and whether they could remain in the country through deferred action. Finding that DACA exceeds DHS’ inherent authority to exercise prosecutorial discretion, the court struck down the program, though deferred action is a well-established practice like OPT.

On October 4, 2022, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”). The case involved a challenge to the STEM Optional Practical Training (OPT) rules by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. DHS allows eligible students in STEM fields an additional 24 month OPT extension beyond the usual 12 month OPT period. Washtech argued that “the statutory definition of the F-1 visa class precludes the Secretary from exercising the time-and conditions authority to allow F-1 students to remain for school recommended practical training after they complete their coursework”. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court affirmed a district court judgment that upheld DHS’ current OPT rules. The court reasoned that the STEM OPT extension is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), 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. Practical training has been authorized even prior to the enactment of the INA in 1952.  In previous blogs, we have discussed Congressional authority for OPT at length, see here, here, here, and here.

In Texas v. U.S., decided on October 5, 2022, the U.S. Court of Appeals for the Fifth Circuit ruled that the Deferred Action for Childhood Arrivals (DACA) program is unlawful, upholding an earlier decision by Judge Andrew Hanen of the United States District Court for the Southern District of Texas. Although the practice of deferred action, of which the DACA program is a form, has also existed for decades, the Fifth Circuit’s decision was much less favorable than that of the D.C. Circuit. The court reasoned that the DACA program exceeds DHS’ inherent authority to exercise prosecutorial discretion, as “declining to prosecute does not transform presence deemed unlawful by Congress into lawful presence and confer eligibility for otherwise unavailable benefits based on that change”. Further, the court found that there is no “clear congressional authorization” for DACA. In light of a recent regulation promulgated by the Biden administration to “preserve and fortify” DACA, the case was remanded to the U.S. District Court for the Southern District of Texas. Although DACA lives for now, it remains on the respirator as both the district court and the Fifth Circuit have consistently held that DACA is not authorized by the INA, and notwithstanding the new regulation, may still be held to be unlawful.

Though the courts in these cases arrived at few different outcomes, the two decisions share at least one commonality – both made reference to the “major question” doctrine recently introduced in West Virginia v. EPA, 142 S. Ct. 2587 (2022). There the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance.  Interestingly, the dissent in Washtech indicated that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority is a “major question”. Finding that the major questions doctrine applied, the dissent in Washtech directed the district court upon remand to examine whether DHS had the authority to issue OPT regulations under this principle.

In footnote 206, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement DACA. The court also held that DACA did not pass the first step of the Chevron test, which asks “whether Congress has ‘directly addressed the precise question at issue.’” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The court in Washtech analyzed the OPT rule under the lens of Chevron also, but gave DHS’ interpretation of INA § 214(a)(1) deference.

If the major questions doctrine is implemented in this way, it could result in fewer agency actions receiving Chevron deference. Chevron gives the Biden administration the ability to interpret the INA by implementing OPT and DACA programs, so it is hoped that the major questions doctrine does not impede the application of this longstanding precedent. Moreover, immigration decisions unlike environmental cases ought not to be cases involving vast economic and political significance.  The majority decision in Washtech involved challenges to the INA provisions that provide the authority for noncitizens to remain in the U.S. The court gave due deference under Chevron to the executive’s interpretation of INA § 214(a)(1) and upheld OPT. The majority did not reference the “major questions” doctrine in Virginia v. EPA.  The Fifth Circuit, on the other hand, held that  DHS cannot rely on INA § 103(a)(3) as a basis for implementing DACA, and cited Virginia v. EPA. This provision states that the DHS Secretary “shall establish such regulations; prescribe such forms of bond, 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 the Act.” This provision is comparable to INA § 214(a)(1), which the First Circuit held provided the basis for F-1 OPT. INA § 214(a)(1) provides that “[t]he admission to the United States of any alien as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe…….”

Although the Washtech case dealt with students, the D.C. Circuit’s decision can serve as a template for the Supreme Court to uphold the authority for other categories of noncitizens to remain in the U.S., including DACA recipients. The same deference that the D.C. Circuit afforded to the executive’s authorization of OPT ought to also be given to the government’s interpretation of INA § 103(a)(3) and 6 USC § 202(5) so that the DACA program is upheld.

Another interesting issue discussed in both cases is whether the Executive Branch can issue work authorization to noncitizens. The court in Washtech upheld the authority of the executive to grant employment authorization documents (EADs) under INA § 274(a)(h)(3), which has long provided authority for the Executive Branch to provide employment authorization to broad categories of noncitizens. The executive’s authority to grant EADs under this provision had been soundly rejected by the Fifth Circuit in the earlier DAPA decision and Judge Hanen’s lower court decision in Texas v. U.S. In footnote 37, Hanen’s decision makes reference to INA §274a(h)(3) as a definitional miscellaneous provision, which cannot provide the basis for DACA and the grant of EADs, while the First Circuit relied on the same provision as a statutory basis for OPT EAD.

Charles Dickens opened his A Tale of Two Cities with the following famous line: “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.” Like London and Paris in Dickens’ novel, Washtech and Texas are comparable in some respects and very different in others. Though Texas may represent the worst of times and the age of foolishness, Washtech ushers in an age of wisdom and the best of times for foreign students hoping to gain practical training in the U.S.

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

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.