Tag Archive for: AC21

Cyrus Mehta

Still Disadvantaged Even When Your Priority Date Becomes Current

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By Cyrus D. Mehta and Kaitlyn Box*

Individuals who are caught in the employment-based immigrant visa backlogs must navigate myriad issues that are associated with waiting for their priority dates to become current and applying for adjustment of status. Generally, it is cause for celebration when these individuals’ priority dates  become current, as then are eligible to apply for adjustment of status. When the Final Action Date becomes current, the individual should receive permanent residence.  But a Final Action Date becoming current can also bring about a number of additional issues that must be considered carefully. In our previous blog, we discussed the problems that can arise when workers do not apply for adjustment of status within one year of their priority date becoming current. For individuals who are the beneficiaries of more than one I-140 petition, another set of questions can come about when one I-140 is current but the other is not.

Pursuant to § 104(c) of the American Competitiveness in the 21st Century Act (AC21), an individual who is the beneficiary of an I-140 petition and would be eligible for adjustment of status “but for application of the per country limitations applicable to immigrants”, is eligible for extensions of his nonimmigrant status in three-year increments until the adjustment of status application has been processed. Similarly, 8 CFR § 214.2(h)(13)(iii)(E) provides that “an alien who currently maintains or previously held H-1B status, who is the beneficiary of an approved immigrant visa petition…and who is eligible to be granted that immigrant status but for application of the per country limitation, is eligible for H-1B status beyond the 6-year limitation…”. 8 CFR §214.2(h)(13)(iii)(E) plainly requires that an individual must be the beneficiary of an approved I-140 petition under the first, second, or third preference category in order to obtain H-1B extensions beyond the sixth year, but provide little further guidance, especially concerning individuals who may the beneficiaries of more than one I-140 petition.

One conundrum arises when an individual is the beneficiary of two approved I-140s, one under EB-2 and the other under EB-3, but she has filed her adjustment of status application in connection with only one of I-140s and the other remains unutilized. In recent months, EB-2 dates have raced ahead while EB-3 dates have retrogressed, so many individuals’ priority dates may have become current under the second preference category, but are not current under the third. If an adjustment applicant has already filed her I-485 in connection with her approved EB-2 I-140, may she still seek a three-year extension of her H-1B status based on her EB-3 I-140, which is not current? The language of AC21 § 104(c), and 8 CFR §214.2(h)(13)(iii)(E) do not seem to prohibit an application for an extension in this scenario. The regulations do not specify that the individual seeking an H-1B extension must not have another I-140 petition that is current, or must be seeking adjustment of status pursuant to the same I-140 petition being utilized for the H-1B extension.

Another difficult situation arises when an individual is similarly the beneficiary of two approved I-140s, one under EB-2 and one under EB-3, but filed his adjustment of status application in conjunction with the EB-3 I-140 when his priority date was current, but it has now retrogressed. If this individual’s priority date has become current under EB-2, he would likely want to consider filing a transfer of underlying basis request to connect his adjustment of status application to the EB-2 I-140 instead, hopefully ensuring more expeditious approval. Complications arise, however, when an applicant in this situation has not yet filed a transfer of underlying basis request but also wants to seek an H-1B extension beyond the sixth year based on the EB-3 I-140, which is no longer current. Given the ambiguity regarding USCIS stating that the 180 day portability clock starts again upon an interfiling request, some have chosen not to interfile and remain in EB-3 especially when they have changed to new employers.  As in the above-described scenario, the regulations may not preclude an individual in this situation from seeking a three-year H-1B petition.

Individuals who find themselves in this situation may find some refuge in AC21 § 106, which states that an H-1B nonimmigrant may receive extensions of status in one-year increments if more than one year has passed since either the labor certification or the I-140 has been filed. Even if the labor certification and/or I-140 petition have been approved, the individual can continue obtaining one-year extensions until an adjustment of status application can be filed. An individual whose priority date is current cannot ensure continued H-1B extensions by delaying filing an adjustment of status application, though. Proof must also be provided that the worker applied for adjustment of status within one year of his priority date becoming current, and if not, demonstrate that the failure to apply was due to circumstances beyond her control. To err on the side of caution, individuals who are the beneficiaries of one I-140 petition that is current and another that is not may consider requesting a three-year extension of H-1B status, but disclosing the existence of the second I-140 and asking in the alternative that USCIS grant a one-year extension, provided that either the labor certification or the I-140 petition was filed more than one year before the individual’s sixth or final year in H-1B status. Adopting this approach could prevent an outright denial of the petition if USCIS declines to approve a three-year extension.

In addition to requiring frequent renewal, one-year H-1B extensions are subject to other pitfalls as well. If H-1B visa holders are confined to one-year extensions of their statuses, H-4 spouses seeking initial EADs are disadvantaged. Many are in this situation as the USCIS has been so slow in approving adjustment applications even when the Final Action Dates have been current for several months.   Based on current USCIS processing times, an initial application for an H-4 EAD can take up to 8.5 months to be issued. Because the expiration date of the EAD will be tied to the validity of the H-1B petition itself, an EAD based on a one-year H-1B extension might only be valid for a couple of months by the time it is issued. Similarly, it can take several months for EADs and advance parole based on a pending adjustment application to be issued, potentially leaving H-4 spouses without work authorization if the H-4 EAD is issued with a very limited validity.

(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.

Cyrus Mehta

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

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By Cyrus D. Mehta and Jessica Paszko*

The Immigration and Nationality Act (INA) § 214(g)(4) limits the amount of time that H-1B nonimmigrant workers may extend their H-1B status to six years. Under certain situations, however, H-1B status may be extended beyond the statutory six-year maximum, namely by way of a “Lengthy Adjudication Delay Exemption” or a “Per-Country Limitation Exemption”.

On January 17, 2017, regulations for high-skilled workers incorporating provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) were implemented. Under AC21 §106(a), H-1B status may be extended beyond the statutory six-year maximum for H-1B nonimmigrant workers if, inter alia, a labor certification or immigrant petition was filed 365 days prior to the end of the sixth year. Under AC21 §104(c), H-1B status may be extended for three years at a time if the individual is the beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for backlogs, caused by per-country limitations, in the employment-based first (EB-1), second (EB-2), or third preference (EB-3) categories. Therefore, a petitioner seeking an H-1B extension on behalf of an H-1B beneficiary pursuant to §104(c) must establish that at the time of filing for such extension, the beneficiary is not eligible to be granted lawful permanent resident (LPR) status on account of the per country immigrant visa limitations. In other words, if at the time of filing Form I-129 to extend H-1B status, the beneficiary’s priority date is not current under the Department of State’s Immigrant Visa Bulletin, the USCIS is authorized to grant the H-1B extension request for three additional years. Beneficiaries born in India and China can generally avail of the exemption under §104(c).

Based on §106(a) of AC21, 8 CFR § 214.2(h)(13)(iii)(D) provides a Lengthy Adjudication Delay Exemption by allowing extensions of H-1B status beyond the statutory six-year maximum if at least 365 days have elapsed since the filing of a labor certification with the DOL or an immigrant visa petition with USCIS. § 214.2(h)(13)(iii)(D)(2) further adds that H-1B approvals may be granted in up to one-year increments until either the approved permanent labor certification expires or a final decision has been made to, inter alia, approve or deny the application for permanent labor certification, immigrant visa petition, or adjustment of status application. Based on §104(c) of AC21, 8 CFR § 214.2(h)(13)(iii)(D)(10) precludes a noncitizen from taking advantage of the aforementioned Lengthy Adjudication Delay Exemption if the noncitizen is the beneficiary of an approved I-140 and fails to file an adjustment of status application or apply for an immigrant visa within one year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability. Notably, this section also provides that USCIS may excuse a failure to file in its discretion if the noncitizen establishes that the failure to apply was due to circumstances beyond his or her control. 8 CFR § 214.2(h)(13)(iii)(E) provides a Per-Country Limitation Exemption by allowing H-1B extensions beyond the statutory six-year maximum if the noncitizen is the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for application of the per country limitations. The petitioner must demonstrate such visa unavailability as of the date the H-1B petition is filed with USCIS. 8 CFR § 214.2(h)(13)(iii)(E)(1) authorizes USCIS to grant H-1B extensions of up to three years for as long as the noncitizen remains eligible for this exemption.

Even though the preamble to the rule is not binding, it at least suggests that for purposes of determining when an individual becomes eligible for the Lengthy Adjudication Delay Exemption, DHS will look to see if he or she failed to apply for adjustment of status or an immigrant visa within one year of the date an immigrant visa is authorized for issuance based on the applicable Final Action Date in the Visa Bulletin. In practice, it is advantageous for clients that visa availability be measured by the Final Action Date, instead of the Dates for Filing, as they are eligible to obtain three-year extensions, until their priority date becomes current under the Final Action Date. This is also consistent with the position that the USCIS has taken with respect to relying on the Final Action Date to freeze the age of the child under the Child Status Protection Act (see our blog criticizing use of the Final Action Date for CSPA purposes).

In other words, an H-1B nonimmigrant worker may hold H-1B status for more than six years if either 365 days have elapsed since an employer filed a labor certification or immigrant visa petition on his or her behalf.  Whether the H-1B worker may extend his or her status in one or three year increments depends on a different set of factors. H-1B status may be extended in one-year increments if a labor certification was filed 365 days prior to the end of the worker’s sixth year in H-1B status, and if the worker is the beneficiary of an approved I-140, he or she files an adjustment application or applies for an immigrant visa within one year of his or her priority date becoming current unless the failure to file timely was due to circumstances beyond the worker’s control. Meanwhile, H-1B status may be extended in three-year increments if the H-1B worker if the beneficiary of an approved I-140 and is eligible to be granted that immigrant status but for his or her priority date not being current. Thus, the key differentiating factor between the one and three year extensions is whether the H-1B worker’s I-140 priority date is current. If the H-1B worker’s priority date is current and he or she has filed an adjustment application within one year of the priority date becoming current, then he or she may only extend H-1B status in one-year increments. If the H-1B worker’s priority date is not yet current, then he or she may extend H-1B status in three-year increments provided the I-140 petition is approved.

Keep in mind that to qualify for a one-year extension, a labor certification must have been filed on the beneficiary’s behalf 365 days prior to the end of the H-1B worker’s sixth year, and to qualify for the three-year extension, the I-140, which could have been filed at any time, needs to be approved and the immigrant visa must be unavailable. But what happens when an H-1B worker’s priority date has become current and he or she has not filed an adjustment application or immigrant visa within one year? If an immigrant visa is available, then only the one year extension must be requested and proof must also be provided that the worker has applied for adjustment of status or immigrant visa within one year of the Final Action Date. If an employer mistakenly requests three years instead of one year in the H-1B extension request, USCIS will likely issue a Request for Evidence (RFE) questioning why a three year extension was requested and also whether an adjustment of status application has been filed if more than one year has elapsed since the visa became available.

Fortunately, under 8 CFR § 214.2(h)(13)(iii)(D)(10), USCIS may excuse failures to file timely upon a successful showing that the failure to apply was due to circumstances beyond the noncitizen’s control. Indeed, there are certain instances in which a noncitizen may not file an adjustment application or immigrant visa within one year of his or her priority date becoming current, for example, where the noncitizen switches employers. Under AC21 §§ 106(a) and 104(c), the worker is eligible for H-1B extensions even if a prior employer filed the labor certification or immigrant visa petition. Given that an adjustment of status application cannot be filed with the prior employer when there is no job offer, the current employer must start the PERM labor certification process anew and then file a new I-140 petition with the prior priority date recaptured. We believe that such facts present circumstances beyond the noncitizen’s control that warrant a waiver of the of the requirement that adjustment applications be filed within one year of the immigrant visa becoming available.

Skilled workers born in India who are caught in the EB-2 and EB-3 backlogs already face several obstacles while waiting for the green card. We have pointed out one more minefield that the worker needs to successfully overcome in remaining in the US in H-1B status while waiting for permanent residency.

 

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

Cyrus Mehta

NO-WIN IMMIGRATION POLICY: DENYING H-1B EXTENSIONS TO SKILLED WORKERS FROM INDIA SO THAT THEY SELF-DEPORT

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There are many people born in India, and to a lesser extent China, who have been patiently waiting for over a decade for their green cards. They have complied with all immigration formalities and the only thing holding them back is an available visa. The law allows them to continue working on extended H-1B visas while they wait legally in the United States. President Trump, in the name of protecting US workers, wants to send these skilled workers home to wait for their green cards. This is consistent with the Trump administration’s goal to destabilize the immigration system – from the travel ban aimed at Muslims to depriving skilled workers on H-1B visas to remain in their jobs and contribute to the United States.

A McClatchy press report  has sent shock waves within the backlogged H-1B community, as well as alarmed employers who sponsor skilled foreign workers for visas and green cards, attorneys and all people concerned about fairness. The report cites credible sources within the Department of Homeland Security who say that they are drafting a proposal to restrict H-1B visa extensions beyond the six-year limitation, which would result in the “self-deportation” of tech workers, thus opening up jobs for Americans in furtherance of President Trump’s Buy American Hire American Executive Order. Such a move is completely counter intuitive as these H-1B workers have all been beneficiaries of approved labor certification applications that resulted in unsuccessful attempts at locating qualified US workers to perform these specialized duties.

There are reportedly more than 1 million H-1B visa holders in the country, mainly from India, that have been waiting for green cards for more than a decade. Although the H-1B visa’s maximum duration is 6 years, those who are caught in the green card backlogs can apply for either a 3-year extension or a 1-year extension under the American Competitiveness in the 21st Century Act (AC21).

The DHS is specifically looking to reinterpret Section 104(c) of AC21, which provides for a 3-year extension of H-1B visas beyond the 6-year limitation. In order to be eligible for a 3-year extension under 104(c), the H-1B visa holder must be the beneficiary of an approved employment-based I-140 petition and must also demonstrate eligibility for adjustment of status but for the visa not being available as a result of the per country limitation. Section 104(c), however, states that the beneficiary of an I-140 petition “may apply” and the Attorney General (and by extension the DHS) “may grant” such an H-1B extension.

Since the enactment into law in 2000, prior administrations under Presidents Clinton, Bush and Obama have routinely granted 3-year H-1B extensions under 104(c). Even if the statute indicates that the government “may grant” the extension, such discretion cannot be used to arbitrarily deny H-1B visa extensions and thus eviscerate Congressional intent. The purpose of Section 104(c) was to provide relief to those in H-1B visa status who are caught in the employment-based backlogs as a result of the per-country limitation. India and China are the two countries where the per country limit within the employment-based second and third preferences have been oversubscribed. The extended H-1B visa has provided a lifeline to skilled workers who are otherwise eligible for green cards but for their priority dates not being current.

When a statutory provision bestows discretion through words such as “may grant,” such discretion cannot be exercised in an arbitrary and capricious manner. The Supreme Court’s opinion in Judulang v. Holder, 565 U. S. ____ (2011) has provided parameters under which a government agency may exercise discretion in the immigration context relating to a waiver under Section 212(c). The following interesting discussion is worth noting:

This case requires us to decide whether the BIA’s policy for applying §212(c) in deportation cases is “arbitrary [or] capricious” under the Administrative Procedure Act (APA), 5 U. S. C. §706(2)(A).  The scope of our review under this standard is “narrow”; as we have often recog­nized, “a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983); see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971). Agencies, the BIA among them, have expertise and experience in administering their statutes that no court can properly ignore. But courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making. When reviewing an agency action, we must assess, among other matters, “‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U. S. 281, 285 (1974)). That task involves examining the reasons for agency deci­sions—or, as the case may be, the absence of such reasons. See FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009) (noting “the requirement that an agency pro­vide reasoned explanation for its action”).  The BIA has flunked that test here. By hinging a de­portable alien’s eligibility for discretionary relief on the chance correspondence between statutory categories—a matter irrelevant to the alien’s fitness to reside in this country—the BIA has failed to exercise its discretion in a reasoned manner.

. . . .

The BIA may well have legitimate reasons for limiting §212(c)’s scope in deportation cases. But still, it must do so in some rational way. If the BIA proposed to narrow the class of deportable aliens eligible to seek §212(c) relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “‘relevant factors,’” State Farm, 463 U. S., at 43 (quoting Bowman Transp., 419 U. S., at 285), which here means that the BIA’s approach must be tied, even if loosely, to the purposes of the immi­gration laws or the appropriate operation of the immigra­tion system. A method for disfavoring deportable aliens that bears no relation to these matters—that neither focuses on nor relates to an alien’s fitness to remain in the country—is arbitrary and capricious. And that is true regardless whether the BIA might have acted to limit the class of deportable aliens eligible for §212(c) relief on other, more rational bases.

The key in determining whether denying a 3-year H-1B extension is arbitrary is “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Is the DHS proposal to restrict 3-year H-1B extensions based on “relevant factors” or is it planning to disfavor a class of noncitizens through the mere flipping of a coin? The DHS’s proposal will likely fail under this test as 104(c)’s plain language requires the government to grant the extension so long as the prerequisites have been met. This means that so long as one who is in H-1B status is the beneficiary of an approved I-140, and the priority dates is not yet current, this person should be granted a 3-year extension.  Even justifying the “self-deportation” of hundreds of thousands to protect US workers under the BAHA Executive Order is no excuse. BAHA was not around when AC21 was enacted in 2000.  If the DHS seems to reinterpret 104(c) in light of BAHA, this decision can be challenged as it is contrary to the plain meaning of 104(c) as well as Congressional intent. The concern under INA § 212(a)(5) that US workers be protected was already met through the labor certification or by seeking an exemption of it through the national interest waiver. The imposition of BAHA should not upend the carefully crafted statutory structure enacted by Congress over the years.

Moreover, a presidential executive order cannot supersede a law previously passed by Congress. A case in point is Chamber of Commerce v. Reich,  74 F.3d 1322 (1996) which held that a 1995 executive order of President Clinton violated a provision of the National Labor Relations Act. President Clinton’s EO No. 12, 954 declared that federal agencies shall not contract with employers that permanently replace lawfully striking employees. The lower district court held that the president’s interpretation of a statute was entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).  The DC Court of Appeals, however, overruled the district court, without explicitly stating whether the president’s interpretation was entitled to Chevron deference or not. Based on the holding in Chamber of Commerce v. Reich, if H-1B visa extensions are denied under President Trump’s interpretation of AC21 provisions pursuant to the BAHA Executive Order, they too ought to be challenged as being violative of the INA and it ought to be further argued that the president’s interpretation of a statutory provision, unlike a government agency, is not entitled to Chevron deference.

The title to 104(c) “One-Time Protection Under Per Country Ceiling” does not mean that it empowers the Trump administration to restrict its application to a one-time 3-year extension. The title can clarify an ambiguous statute but shouldn’t be used to contradict the text of the statute. In this case, the text of 104(c) clearly states that three year extensions can be granted indefinitely until the “alien’s application for adjustment of status has been processed and a decision made thereon.” See  Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 19 n.14 (1981) (the title of an Act cannot enlarge or confer powers); INS v. National Center for Immigrants’ Rights, 502 U.S. 183, 189-90 (1991) (the title of a statute or section can aid in resolving an ambiguity in the legislation’s text).

The Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers  that took effect on January 17, 2017 further restrains the government’s ability to restrict H-1B extensions under 104(c).  Current 8 CFR § 214.2(h)(13)(iii)(E)(i), which implements 104(c),  does not appear to give broad discretion and pertains more to granting discretion with respect to the validity period, as follows:

Validity periods. USCIS may grant validity periods for petitions approved under this paragraph in increments of up to 3 years for as long as the alien remains eligible for this exemption.

 This suggests that if the priority date is likely to become current imminently, the USCIS may shorten the time period of the H-1B extension to less than 3 years. The USCIS may also shorten the validity period if it is planning to revoke an approved I-140 petition if it believes it was previously erroneously granted. These sorts of discretion would pass muster and could have been contemplated under 104(c) when Congress said that the DHS “may grant” the extension. On the other hand, a new rule that would wholesale preclude the granting of a 3-year H-1B extension would be a completely erroneous reading of 104(c) and should certainly invite a lawsuit to challenge the Trump administration’s capricious interpretation. Even an H-1B worker, rather than an employer, should be able to sue as plaintiff  following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, 134 S.Ct. 1377 (2014), which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects. See also Mantena v. Johnson, 809 F.3d 721 (2015) and Kurupati v. USCIS, 775 F.3d 1255 (2014). The proposal appears to be based on pure xenophobia by the Trump administration to curb legal immigration of legitimate skilled workers from India and China who have been waiting for years in the green card backlogs. It does not protect American workers as the labor market has already been tested. Trump’s animus towards immigrants can also be cited in a future court challenge, as was successfully done in court challenges against the travel ban where Trump’s utterances and tweets against Muslims were invoked. Trump’s animus was further evident in a recent New York Times article that described President Trump angrily disparaging bona fide Haitian visitors by assuming they all had AIDS and Nigerian visitors who would “never go back to their huts.”   President Trump’s sentiments reflect the true underpinnings behind his administration’s new immigration policy –  white nationalism, which can be used to show bad faith if the USCIS starts denying 3-year H-1B extensions.

The Trump administration will have less scope to play mischief with the ability to seek a 1-year H-1B extension under Section 106(a) and (b) of AC21.  Section 106(b) states that the Attorney General “shall” extend H-1B status in increments of 1 year provided a labor certification or I-140 was filed one year prior to the final year in H-1B status, and until the labor certification, I-140 or adjustment of status is denied.  It is not the case that 104(c) is surplusage, as contended by an activist  organization that supports backlogged H-1B visa holders, and so one who qualifies under 104(c) will also be eligible for the grant of a 1-year extension under section 106.  104(c) allows for longer extensions and removes the need to file for extensions every year, and so it is clearly providing an additional benefit. 8 CFR §§ 214.2(h)(13)(iii)(D)(2) and (10), the rules that implement 106(a) and (b), give further support to this position as they both contemplate an approved I-140 petition while an H-1B beneficiary seeks a 1-year extension beyond the sixth year.  The widely held view is that either section can be applicable when its own conditions are met.  There are some cases where only 104(c) is available (where the labor certification was filed in the sixth year or final year of H-1B status and the I-140 is approved in that year), some cases where only 106(a)-(b) is available (where the labor cert or I-140  filed one year before the 6th year is still pending or where the priority date is current), and some cases where both are available but 104(c) gives greater benefits. Even when both are available, at times, for strategic reasons, one may wish to still seek an H-1B extension for 1 year under 106(b) if the priority date will become current at the time of adjudication of the extension request.   Nothing in the text or logic of the statute indicates that 106(a)-(b) ceases to become available, when it otherwise would be, simply because 104(c) is also available.

While the need of the hour is to oppose any arbitrary changes in interpreting 104(c), the ultimate goal is to reduce the green card backlogs. AC21 is a mere band-aid that provides relief to H-1B workers in a hopelessly broken immigration system that keeps them from getting green cards for years on end. HR 392 is one vehicle through which the backlogs can get reduced through elimination of per country limits. Still, HR 392 is not the magical elixir as backlogs will likely remain, but they will be far less. In fact, all will likely face a few years of backlogs if the per country limits are eliminated. If we can also hope for the unitary counting of derivatives in addition to HR 392, that will completely drain the employment-based system of backlogs. While all this is wishful thinking under a Trump administration, it never hurts to strive for a sensible winning immigration reform for the good of the country. Until backlogs are completely eliminated, the ability of skilled workers to remain in the US and extend H-1B status should never be taken away through policies inspired by white nationalism and xenophobia under the Trump administration. This can be the only explanation for attacking immigration in a full employment economy and BAHA is only thinly veiled nativism. In conclusion, just because a statute says “may” does not mean that the Trump administration can capriciously defeat the will of Congress by denying H-1B extensions to hundreds of thousands of Indians so that they may self-deport – an action that is a no-win for the United States or the foreign national skilled worker. Fortunately, there is enough protection in the AC21 law that will make it very hard for the Trump administration to see the light of the day with such a loser immigration policy.

 

 

 

 

Cyrus Mehta

Breakthrough in Matter of V-S-G- Inc.: AC21 Beneficiaries Given Opportunity to Be Heard When I-140 is Revoked

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The law generally recognizes that petitioners control their visa petitions. See 8 CFR 103.2(a)(3).  A beneficiary cannot force a petitioner to pursue or maintain a visa petition. Therefore, USCIS communicates only with petitioners, not the beneficiaries, with respect to notifications such as Requests for Evidence, approvals, and even a Notice of Intent to Revoke (NOIR) of an approved petition. A beneficiary is not considered an affected party with legal standing with respect to filing appeals and motions. See 8 CFR 103.3(a)(1)(iii)(B).

However, the traditional distinction between a petitioner, beneficiary and affected party breaks down when the law allows the beneficiary to leave the original petitioner and port to a same or similar job under INA 204(j) that was enacted via the American Competitiveness in the Twenty-first Century Act of 2000 (AC21). Although the intent of the original employer who filed the petition to employ the beneficiary may cease to exist, the original petition still remains valid when the beneficiary ports to a same or similar job with a new employer.

The Appeals Administrative Office (AAO) has adopted Matter of V-S-G- Inc., Adopted Decision 2017-06 (AAO Nov. 11, 2017), which now  recognizes that beneficiaries who have ported to a same or similar to the job under INA 204(j) are entitled to receive notices pertaining to the potential revocation of their approved employment-based I-140 visa petition. The USCIS also issued accompanying guidance in the form of a Policy Memorandum on November 11, 2017.  We previously advocated for this outcome here, here and here, and welcome the AAO’s recognition that beneficiaries who have ported are entitled to notification and the opportunity to be heard when their approved I-140 petitions are in jeopardy.

The ability for a foreign national worker to move to a new job is crucial when there is a delay in the adjudication of the I-485 application for adjustment of status. If an I-485 application has been pending for more than 180 days, under INA 204(j), the I-140 petition shall remain valid with respect to a new job if it is in the same or a similar occupational classification as the job for which the petition was filed. Some I-485 applications have been pending for more than a decade, such as those in the class of July 2007, after the employment second (EB-2) and third preferences (EB-3) for India became current and then retrogressed. Even in the Trump era, I-485 applications  filed are likely to remain pending for over 180 days as the beneficiary will be scheduled for personal interviews at the local USCIS office.   This means that so long as the worker “ports” to a same or similar job, the validity of the underlying labor certification and the I-140 petition is kept intact. The new employer is not required to restart the green card process on behalf of this worker who is the beneficiary of the approved I-140 petition filed by the former employer. INA 204(j) job portability is a great blessing, although it can also have pitfalls. If the USCIS chooses to revoke the already approved I-140 petition because it suspects that the employer committed fraud, but the worker has now moved onto a new job, who should get notice of the USCIS’s intent to revoke?

Matter of V-S-G-Inc. recognizes that a beneficiary who has ported is within the statute’s zone of interests following the Supreme Court’s decision in Lexmark Int’l Inc. v. Static Control Components, which held that a plaintiff has the ability to sue when his or her claim is within the zone of interests a statute or regulation protects.    Courts have agreed that the original employer should not be the exclusive party receiving notice when the worker has ported to a new employer. Beneficiaries who have ported to new employers fall within INA 204(j)’s zone of interests and have standing to participate in visa revocation proceedings. See Mantena v. Johnson and Kurupati v. USCIS.  The original employer no longer has any stake in the process and may also be antagonistic toward the beneficiary of the I-140 petition who has already left the employment many years ago. The beneficiary in addition to porting off the I-140 petition provided the adjustment application has been pending for 180 or more days, can also recapture the priority date of the original I-140 and apply it to a new I-140 petition filed by the new employer. Thus, a worker who was sponsored by the original employer in the EB-3 can potentially re-boot into EB-2 through a new employer, and recapture the priority date applicable to the original I-140 petition. While the EB-2 may also be backlogged for India, it is not as dire as the EB-3. If the USCIS chooses to revoke the original I-140 petition, not only will the I-485 adjustment application be in jeopardy, but also the recaptured priority date, thus setting back the foreign worker by many years in the EB-3 green card backlog. It is thus imperative that someone other than the original employer get notification of the I-140 petition who will have no interest in challenging it, and may have also possibly gone out of business.

The AAO in Matter of V-S-G- while endorsing the holdings in Mantena v. Johnson and Kurupati v. USCIS, disagreed with the Seventh Circuit’s holding in in Musunuru v. Lynch. In Musunuru, while recognizing the beneficiary of an approved I-140 petition as an affected party,   adamantly held that the beneficiary’s current employer should get notice of the revocation. This is what the Seventh Circuit in Musunuru stated:

We so hold because Congress intends for a nonimmigrant worker’s new employer to adopt the visa petition filed by his old employer when the worker changes employers under the statutory portability provision. Thus, to give effect to Congress’s intention, the new employer must be treated as the de facto petitioner for the old employer’s visa petition. As the de facto petitioner, the new employer is entitled under the regulations to pre-revocation notice and an opportunity to respond, as well as to administratively challenge a revocation decision.

In a prior blog, I had argued against the holding in Musumuru that there is nothing in INA 204(j) that makes the new employer the de facto petitioner. Once the foreign national worker ports under INA 204(j), the pending green card process ought to belong to him or her. The whole idea of providing job mobility to workers caught in the EB backlog is to allow them to easily find a new employer in a same or similar field, on the strength of an employment authorization document (EAD) ensuing from the pending I-485 application, and not to oblige the new employer to adopt the old petition. This could potentially pose an obstacle to much needed job mobility for the beleaguered EB worker who is trapped in the backlog.

I am glad that the AAO in Matter of V-S-G- agrees with this position. The AAO correctly noted, “The new employer did not pay for the filing, is not responsible for maintaining the petition, is not liable for the original petitioner’s compliance or malfeasance associated with it, and cannot withdraw the petition if it no longer requires the beneficiary’s services. Nor can the new employer prevent the beneficiary from porting to yet another employer (as happened here).” The fact that the new employer has to sign an I-485J Supplement J does not give it more interests in the original employer’s petition. The new employer would in any event need to provide a letter confirming the new job offer. Form I-485J merely captures the same information that the new employer would provide in a letter relating to the job offer.

While the outcome in Matter of V-S-G- is positive for beneficiaries who have ported and who are entitled to notification, it did not go far enough. Matter of V-S-G- only recognized the beneficiary as an affected party in cases where he or she has exercised portability under INA 204(j). The AAO disagreed with the Sixth Circuit’s holding in Patel v. USCIS, which held that the beneficiary of an I-140 petition even outside the porting context had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b), according to the Sixth Circuit in Patel, makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. While a pending I-485 may bolster the beneficiary’s interest in an I-140, it is not necessary. There exist old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirez was contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer, the employer’s essentiality may have been obviated if the employer had indicated that the job offer was still available. Still, an even older 1984 case, Gladysz v. Donovan,  provides further basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

The final Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Workers rule (“High Skilled Worker Rule”), which took effect on January 17, 2017, did not address notice and standing for I-140 beneficiaries under INA 204(j). Matter of V-S-G- now fills this gap. 8 CFR 205.1(b) and 205.2(b) and (c), which provide that automatic and notice-based revocations go solely to the petitioner, are no longer applicable when beneficiaries have pending I-485 applications under INA 204(j). The USCIS has instructed that revocation notices be sent to both the petitioner and beneficiary. The USCIS, however, does caution that when sending notification, certain non-public information cannot be shared with both parties such as the petitioner’s non-public financial information, including federal tax returns or information about I-140s being filed on behalf of multiple beneficiaries. Under these circumstances, the beneficiary is supposed to get more generalized information. Whether this will be advantageous to the beneficiary who is provided modified information for purposes of rebutting an intention to revoke an I-140 petition remains to be seen. However, it would be a ground for appeal to the beneficiary whose I-140 was denied because he or she did not get sufficient information in order to provide an effective rebuttal. Still, the examples given in the Policy Memorandum under which the USCIS can revoke an approved I-140 are broad and under the following headings: material error in approving the petition; fraud or willful misrepresentation of material fact; lack of a bona fide job offer; adverse new information (from a site visit or adjustment interview; and invalidation of a labor certification. One can see this as an invitation for USCIS examiners to issue more NOIRs of approved I-140 petitions especially under the Trump administration, which has sought to curb or slow down legal immigration by imposing mandatory adjustment interviews and increasing site visits.

Matter of V-S-G and the accompanying policy guidance only deal with notification to beneficiaries who have approved I-140 petitions, which the USCIS seeks to revoke. It does not deal with beneficiaries who are porting off unadjudicated I-140 petitions and concurrently filed pending I-485 applications. 8 CFR 245.25 of the High Skilled Worker Rule clarifies and codifies long standing policies regarding how a beneficiary may port under INA 204(j). With respect to porting off an unadjudicated I-140 petition, 8 CFR 245.25(a)(2)(ii)(B) clearly provides for this by stating that the I-140 must still ultimately be approved by demonstrating that it was approvable at the time of filing and until the I-485 was pending for 180 days. The rule insists that it must still be demonstrated that the original petitioner had the ability to pay the proffered wage at the time of filing the I-140 petition, but the original petitioner need not continue to show its ability to pay after filing and until the beneficiary obtains permanent residency. This makes sense since once the beneficiary has ported, the original petitioning employer should not be required to demonstrate its continued ability to pay the proffered wage after the filing of the I-140 petition and once the 180 days since the filing of the I-485 have passed.

Unfortunately, Matter of V-S-G- and the accompanying guidance fail to instruct USCIS on how to notify beneficiaries when the I-140 has not yet been approved, but the beneficiary has exercised portability under INA 204(j). Pursuant to Matter of V-S-G, the beneficiary has a legitimate interest in an unadjudicated I-140 too, and must be notified through a Request for Evidence (RFE) that is usually only sent to the employer.  Accordingly, beneficiaries who have ported off an unadjudicated I-140 must insist on being notified regarding any RFE that may be sent to the employer and to be given the opportunity to respond to the RFE. If the relationship has not become antagonistic, the original employer may still respond to the RFE, even if the employer does not intend to employ the beneficiary upon acquiring permanent residency, and notify the USCIS that the beneficiary has or may be porting under 204(j) but is seeing to have the I-140 approved pursuant to 8 CFR 245.25(a)(2)(ii)(B). If the original employer has decided to not respond to the RFE, the USCIS must still give the beneficiary an opportunity to respond to the RFE in the same was as it has been instructed to do under Matter of  V-S-G- with regards to an NOIR of an approved I-140 petition.

Beneficiaries have not been provided the same rights as employers in the I-140 petitioning process. Matter of V-S-G- following court decisions now recognize that an AC 21 beneficiary must be given an opportunity to be heard when the approved I-140 petition is in jeopardy. At the same time, the guidance accompanying Matter of V-S-G- could also incentivize USCIS officers to issue more NOIRs of approved I-140 petitions, although such notices would have to be provided to the original petitioner and to the beneficiary. While this is a significant first step, beneficiaries of employer-filed petitions must continue to advance their legitimate right to be heard even in other contexts, such as when the I-140 is still not yet approved or even when there is no pending I-485 application under INA 204(j).