Tag Archive for: Fairness for High Skilled Immigrants Act

Cyrus Mehta

The Ethics of Law Reform Activities Affecting Client Interests in Light of the Fairness for High Skilled Immigrants Act

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The Fairness for High Skilled Immigrants Act has divided the immigrant community as well as immigration attorneys. The bill seeks to eliminate per-country caps without expanding the number of visas in the EB categories.  The House version, HR 1044, has already passed with an overwhelming majority on February 7, 2019. The Senate version, S. 386, has not yet passed through unanimous consent.  A Senator has objected each time it has come up for unanimous consent. Senator Durbin is the latest Senator to object.

If the country caps are eliminated, the queue for Indian EB-2 and EB-3 beneficiaries will lessen substantially, which currently is several decades long. One Cato Institute study anticipates that the wait time could be 150 years.  The elimination of the per-country limits will allow visas to be taken up on a first come first served basis.  Those backlogged in the EB-2 and EB-3, mainly Indian nationals, are fervently hoping for S. 386 to pass. By eliminating the per-country limits, Indian nationals may ultimately face a wait time of just a few years as compared to several decades.  On the other hand, those from the Rest of the World (ROW) may face waiting times under the first come first served basis. Many are opposed to the passage of S. 386 as even waiting a few years will make them worse off than now. At present, they do not have any wait time in the EB-2 and EB-3 while Indians may wait for several decades.

Most immigration attorneys have clients from India and the rest of the world. Some attorneys are torn and are taking a neutral position. Other attorneys are opposing S. 386 while some are in support. Given the division among its members, AILA has taken a neutral position on the bill.

At issue is whether an attorney can ethically support or oppose S. 386, or take a neutral position, even though under any of these positions, some clients may benefit while others may not.

The starting point is ABA Model Rule 6.4 entitled Law Reform Activities Affecting Client Interests, which provides:

A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

Note that ABA Model Rule 6.4 is non-binding, and an attorney needs to also consult the analog of 6.4 within their state rule of professional conduct. Model Rule 6.4, which provides the analytical framework for this blog, explains that a lawyer can be a member of an organization, such as a bar association or a trade association, that is advocating for law reform even though it may affect the interests of the lawyer’s client, positively or adversely. While Model Rule 6.4 allows the lawyer to take a position even though it may affect the interests of the client, the lawyer is nevertheless required to disclose to the organization whether any decision materially benefited the client, but there is no need to identify the client. The requirement to disclose any material benefit to a client ought to be interpreted in a reasonable manner. AILA, for example, takes many positions that benefit the lawyer’s client, but if each lawyer were to make disclosure, it would become too impractical. Therefore, the reference to benefits in Model Rule 6.4 is, implicitly, to benefits unlikely to be obvious to the rest of the organization or leadership. Most of the time, the client benefits we deal with in AILA are obvious and widespread, such that repeated disclosure would be both pointless and unwieldy.

Let’s suppose a lawyer is a member of a trade association that advocates for an increase in visa numbers for the EB-5 category. This organization, which we will call “EB-5 Trade Association” is actively lobbying for an increase in the annual 10,000 limitation in the EB-5 by suggesting that some of the numbers can come from the 50,000 visas reserved under the Green Card Diversity Lottery Program. This lawyer, who has mainly EB-5 clients, also has clients who may benefit if they win a lottery under the Diversity Program. By advocating that the visa numbers in the Diversity Lottery Program be reduced and given to EB-5, if Congress amends the law, it will reduce the chances of this lawyer’s clients to win the lottery.  Still, under Model Rule 6.4, this lawyer can ethically advocate for the reduction in visa numbers in the Diversity Program in favor of the EB-5 category.

What if EB-5 Trade Association also advocates for a reduction in visa numbers in the family fourth preference category (F4) and the lawyer has clients who have I-130 petitions for some clients under the F4? Under Rule 6.4, a lawyer can even advocate for a reduction in the F4 too in favor of an increase in visas under EB-5 as a member of EB-5 Trade Association. As a practical matter, any advocacy of this sort will most likely include a proviso that existing F4 beneficiaries be protected and that the abolition of F4s would only occur for new applicants. Still, there is no way to predict the end result of such advocacy. In most instances, advocacy efforts do not result in a change of law. Or if there is a change in law, the end result may be very different from what was essentially advocated by the organization.

The next question is whether the lawyer’s advocacy efforts could create a conflict of interest? Let’s examine the Comment to Model Rule 6.4:

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.

The key take away from the Comment to Model Rule 6.4 is that a lawyer does not have a lawyer-client relationship with EB-5 Trade Association by virtue of being a member. Even if the lawyer is the head of a task force within EB-5 Trade Association actively putting forward position papers, it does not result in a lawyer-client relationship with the organization. However, the Comment to Model Rule 6.4 still cautions that “a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.”

Rule 1.7(a) states;

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In the context of the lawyer’s membership in the EB-5 Trade Association, there is no question of the representation of one client being directly adverse to another under Rule 1.7(a) (1). EB-5 Trade Association is not the lawyer’s client. However, under Rule 1.7(a)(2), there is a possibility that the lawyer’s representation may be materially limited to the F4 client by a personal interest of the lawyer. Let’s assume that the lawyer is so passionately involved in the EB-5 reform effort to take numbers from the F4 and give them to the EB-5 that the lawyer begins to abhor the F4 client and loses interest in representing the F4 client. The lawyer’s representation of the F4 client is now materially limited by the lawyer’s passionate zeal in bringing about EB-5 reform.

On the other hand, even if the lawyer is consumed by zeal in the EB-5 reform effort, under Rule 1.7(b)(1),  the lawyer can still represent the F4 client if the lawyer reasonably believes that she will be able to provide competent and diligent representation to the affected client. In most cases, that will be so, but if the lawyer develops an abhorrence toward the F4 client and fails to represent the client competently and diligently, the lawyer clearly has a personal interest conflict and must withdraw from that representation.

Model Rule 6.4 only speaks to reform efforts of the lawyer within the context of an organization. What about personal capacity lobbying or advocacy efforts by a lawyer? AILA is not taking a stand with respect to S. 386 and most lawyers are advocating one way or the other in their personal capacities. There is no comparable ethical rule like Rule 6.4 governing a lawyer’s personal capacity lobbying or advocacy efforts. However, one can use the same framework of Rule 6.4 in arguing that just as a lawyer can engage in law reform efforts as a member of an organization even if it materially affects the interest of a client, a lawyer can do so even in a personal capacity. The lawyer by virtue of doing so in a personal capacity would not have a disclosure requirement, as under Rule 6.4, if the reform effort materially benefitted a client.  Regardless, the lawyer must still be mindful of personal interest conflicts under Rule 1.7(a) (2) as illustrated above.

With respect to S. 386, whatever position one adopts, it is likely to adversely affect the interest of a client in the event that the lawyer has both Indian and rest of the world clients. By lobbying against S. 386 in favor of ROW clients, the lawyer’s advocacy adversely affect the interests of Indian clients who will not benefit if S. 386 does pass. Conversely, when the lawyer advocates for S. 386, the lawyer’s ROW clients could get adversely affected. Of course, the evaluation of harm to the client is not black and white. A lawyer who opposes S.386 is doing so in the hope that the bill will improve and include more visa numbers for all, although the likelihood of S.386 passing will lessen in today’s polarized environment and Indians will continue to remain backlogged in the per country caps with their children also likely to age out. A lawyer who favors S.386 realizes that while the bill is not perfect, this is an incremental first step where discriminatory per-country quotas get eliminated with the possibility of creating a fair system for all in the long run. Given other failed reform efforts over the past 10 years, this bill has the best chance of passage with the hope that it will serve as down payment for further reform such as adding more visas through not counting derivatives in the future (in the interest of full disclosure, this has been my reason for supporting an otherwise imperfect bill).

In the end, all of these positions that the lawyer may take with respect to the Fairness in Immigrant Worker Act are ethical – for, against or remaining neutral. In addition to any potential personal conflict of interest, the lawyer would also need to take business and reputational considerations into account, which are quite separate from the ethical consideration. Restrictionist organizations are also not supporting S. 386 for different reasons, and if the lawyer relies on the positions of these organizations in also advocating against S. 386, such as retweeting Breitbart twitter posts against the ill effects of Indian immigration,  the lawyer should be mindful of any reputational damage that may result through such tactics, including motivating USCIS to view H-1Bs from Indian IT firms more harshly.  If S. 386 passes, then all lawyers must come together to further improve the law (and there will surely be such an incentive when people other than Indians are in a waiting line), and if it does not pass, then all lawyers should still come together to improve the law for Indians. Note that even if the EB-2 and EB-3 ROW are current, the EB-1 for India, China or ROW are not current. The EB-5 too for China, Indian and Vietnam are not current.  The present system is broken and is badly in need for reform.

In conclusion, a lawyer can adopt different positions regarding the Fairness for High Skilled Immigrants Act  even if it may not immediately benefit all their clients.  If a lawyer is constrained in undertaking law reform efforts either through an organization or in a personal capacity, it would surely chill the lawyer’s ability to take positions on proposed legislation as well as undermine the lawyer’s exercise of free speech under the First Amendment.

 

Cyrus Mehta

HR 3012: A Good Bill Saddled With a Bad Amendment

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By Myriam Jaidi

As Cyrus Mehta noted in his December 7, 2011 blogpost regarding H.R. 3012, “How Fair is the Fairness for High-Skilled Immigrants Act?”, although not a perfect bill, H.R. 3012 passed the House in November 2011 by a landslide. The bill, as passed by the House, would eliminate the employment-based per country cap entirely by 2015 and raise the family-sponsored per-country cap from 7% to 15%. The passage of this bill by a margin of 389-15 signaled the strong bipartisan concern with the significant inequities in the immigrant visa system with regard to individuals from certain countries, especially individuals from India and China sponsored for employment-based immigrant visas. Although the country limits addressed by H.R. 3012 were originally enacted for all countries, these limits have resulted in mind-boggling wait times for people from India and China. For example, for Indians in the employment-based third preference (EB-3) category, some have estimated the wait times could be up to 70 years!

The landslide, bi-partisan passage of H.R. 3012 in the House was also proof positive that Congress, despite the gridlock and often seething partisanship, is in fact deeply concerned with repairing our country’s dysfunctional and unfair immigration system, especially in at a time when economic and global realities require the United States to reform the system to facilitate our ability to compete more effectively in the global economy. Both our “home-grown” and imported talent will mutually benefit from more reasonable access to visas for highly-skilled immigrant (and nonimmigrant) workers, as many U.S. business leaders such as Bill Gates have attested (see pages 12 to 14 of his testimony). Further proof of that fact is the strong support of entrepreneurs, both foreign and domestic, by the Obama Administration, as demonstrated by the Start-Up America and Entrepreneurs in Residence initiatives.

Then along came Senator Grassley’s hold on the bill in December 2011. After extensive negotiations, on July 11, 2012, Senator Grassley lifted his hold. To remove the hold, senators in favor of the original bill reached what may well be a sort of “Faustian bargain” with Senator Grassley. In order to agree to lift the hold on the bill, Senator Grassley demanded provisions that could severely hamper the already difficult H-1B nonimmigrant visa process and, in tandem with that, hamper U.S. businesses and their ability to compete in the global economy.

So, what’s the big deal? This is what Senator Grassley had to say about the amendment he proposed:

[T]here is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H–1B visa program.

I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers.

Sounds fine, right? Protect American workers, combat fraud, what’s wrong with that? There is of course nothing wrong with protecting American workers and preventing fraud. Supporters of the amendment seem to frame their support in the same way that people who criticize the Constitutional protections against unreasonable searches and seizures and self-incrimination frame those criticisms: if companies are not doing anything wrong, they have nothing to fear, right, from a search, seizure or questioning?

Senator Grassley’s description of his proposed amendment is something of a gross oversimplification. First of all, the amendment covers issues already addressed by existing law so query whether the amendment will serve any constructive purpose. The Immigration and Nationality Act (“INA”) and implementing regulations, as well as the related rules promulgated by the Department of Labor (“DOL”) addressing the process of obtaining approval of a labor condition application (“LCA”), the necessary first step of the H-1B sponsorship process, already include extensive protections for American workers and provisions to search out and punish fraud, if it does occur. Just to name a few examples, the existing rules require notice to “U.S. workers” (which, pursuant to the DOL regulations at 20 C.F.R. § 655.715, include citizens or nationals of the United States as well as green card holders, refugees, asylees, or “an immigrant otherwise authorized (by the INA or by DHS) to be employed in the United States” – it is unclear who Senator Grassley’s term “American workers” includes), provide minimums for offered salaries to ensure that such salaries do not undercut the salaries of U.S. workers, and where employers are “H-1B dependent”, the rules require, if such employers offer a salary of less than $60,000 per year, that they attest, and when called upon to do so, demonstrate, that they have made good faith efforts to recruit U.S. workers for the offered position (see 20 C.F.R. § 655.738-655.739)). Penalties for violations of the rules are already included in the statute and governing regulations (see INA § 212(n)(2)(C)).

So what does Senator Grassley’s amendment do? The amendment changes, but does not clarify, the trigger for DOL review of an application from “only for completeness and obvious inaccuracies” to “for completeness, clear indicators of fraud or misrepresentation of material fact.” The amendment does not define what might constitute “clear indicators of fraud or misrepresentation of material fact,” although these may be similar to the ones some authors have observed that USCIS followed (and may still) as indicators of fraud in H-1B cases: companies grossing under $10 million per year, companies with less than 25 employees, companies established less than 10 years ago, etc. Grassley’s amendment to the bill also changes the investigation process by removing the need for “reasonable cause” to conduct an investigation based upon a complaint, which continues to be the basis on which an investigation may be commenced. Thus, any complaint, reasonable or not, received by the DOL about an employer could serve as the basis for an investigation.

What does this mean for the process? It could bring the process of getting an LCA approved to a standstill and therefore limit or even prove fatal to an employer’s ability to hire a highly skilled foreign worker on an H-1B nonimmigrant visa. First, let us consider cap-subject cases. Each fiscal year, only 65,000 H-1B visas are available and time is usually of the essence because the H-1B cap “opens” on April 1, for an October 1 start date for cases subject to the cap, and in many years, the cap was often reached on or soon after that April 1 date, so there is great competition for these visas and having them ready to file on time is crucial. Currently, the process of getting an LCA approved takes about 7 business days. During this period, the DOL checks for obvious inaccuracies, checks the existence of the employer, salary details, and whether the employer has made the appropriate attestations, among other details. This 7-day period is a built-in delay of the process. Under the current laws, an investigation may be conducted for a period of up to 60 days (see INA § 212(n)(2)(G)(viii)). Under the proposed amendment, there appears to be no time limitation on the length of time an investigation may continue.

Without any sense of how long an investigation may take, and given the uncertainty of the trigger, an employer who is certain it wants to hire an individual for an October 1 start date, cannot build in more than 6 months of precautionary time for what could amount to a random investigation, because the current process does not allow an LCA to be prepared and submitted to the DOL for processing more than 6 months prior to the intended start date of the H-1B visa. For cases that are not cap subject, such as a company hiring an individual who already holds H-1B status, the risk is losing a highly-skilled prospective employee who may be desperately needed because of uncertain delay in the very first step of the process. The portability process created by the American Competitiveness in the 21st Century Act (“AC21”), which allows a change to a new employer immediately after that employer files an H-1B petition, cannot do anything for an employer looking to transfer someone’s H-1B to their company if they cannot get the H-1B petition filed because the LCA process is held up by investigation. Viewed in this light, this amendment to a well-meaning bill would obstruct the flexibility promoted by AC21, the intent of which was to promote the United States’ ability to compete in the 21st Century!

Senator Grassley’s amendment also allows the DOL to conduct “surveys of the degree to which employers comply” with Grassley’s new LCA regime. Exactly how such surveys would be conducted, who would be involved, and how long they might take is unstated. Under Senator Grassley’s amendment, the DOL may also conduct annual compliance audits of any H-1B employer. Of course, compliance audits are already a part of the existing rules. However, the new twist is that the DOL must conduct such annual compliance audits of “each employer with more than 100 full-time equivalent employees who are employed in the United States if more than 15 percent of the number of such full-time employees are H-1B nonimmigrants . . . .” Although there is a four-year period between allowed compliance audits for employers who pass muster, the amendment also provides for publication of the DOL’s findings. Given the current anti-immigrant climate and the tendency of many people to blame foreign workers for the lack of available jobs, publishing results even of companies who are completely in compliance could lead to backlash against the companies, or could lead companies to avoid hiring foreign workers in the United States, and perhaps moving operations overseas or to Blueseed to avoid exposure.

Removing per-country limits on employment-based immigrant visas and increasing the limits on family-based immigrant visas are obviously laudable goals, but query what risks Senator Grassley’s amendment poses. The reality appears to be that the amendment will not serve its stated ends but rather will serve to obstruct access to highly-skilled foreign workers and undermine U.S. businesses and their ability to compete in the global economy. Perhaps it would be best if H.R. 3012 were passed – without Senator Grassley’s amendment.

Cyrus Mehta

How Fair is the Fairness For High-Skilled Immigrants Act?

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H.R. 3012, the Fairness for High Skilled Immigrants Act, was passed in the House on November 29, 2011 by a landslide 389-15 vote. Introduced by Rep. Chaffetz (R-UT), it eliminates the employment-based per country cap entirely by 2015 and raises the family-sponsored per-country cap from 7% to 15%. If H.R. 3012 does become law, it will significantly decrease the wait times for certain countries in the employment-based preferences, especially India and China. Even wait times in the family-based preferences will get reduced.

H.R. 3012 only redistributes the allocation of visas, it does not increase the visas that are fixed in number each year. As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only 300,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the Employment-based second preference (EB-2), those born in India and China have to wait for over 5 years to obtain green cards while all other nationalities do not have any wait times. The situation is even more dire in the Employment-based third preference for India (EB-3). Under the per country limit for India in the EB-3, only 2,800 visas can be allocated each year while an estimated 210,000 Indians, along with their dependants, are eligible for green cards. As a result, according to a report of the National Foundation For American Policy, the waiting time for a green card for an Indian under the EB-3 has been estimated to be 70 years, while it may be over 5 years for others.

As a result of such unmanageable waiting times, skilled foreign nationals in the pipeline for a green card, especially from India and China, have no incentive to stay in the US even though they may be invaluable to their employers who have sponsored them by demonstrating that there were no US workers available for the position. Many of these skilled immigrants have graduated with degrees in science, technology, engineering and math (STEM), vital to US growth and innovation. Such skilled workers are generally on H-1B visas, but many are on other nonimmigrant visas such as the L visa too. Even though they are able to extend their H-1B visas beyond the six year limit while waiting for the green card under provisions in the American Competitiveness in the 21st Century Act (AC21) (and many are already past 10 years on the H-1B visa), they are generally bound to the same employer during the green card process and their spouses cannot work. If their children turn over 21, they lose the ability to remain on the H-4 dependent status and most likely will also be unable to derivatively get the green card along with the parent.

The passage of H.R. 3012 has been met with jubilation by Indians and Chinese, but those from the rest of the world may not be so happy. While Indians and Chinese may still need to wait, the waiting times will get more tolerable, but others who did not have to wait in the EB-2 will now need to wait. While it is hard to predict, there may eventually be waiting times of 1-2 years for all countries in the EB-2. While everyone in the EB-3 is subject to unreasonable waiting times, upon the elimination of the per country limits, Indians may still need to wait but it will not be for 70 years. Instead, it may be 10-12 years for all EB-3 nationals, according to the NFAP report. Those who have priority dates prior to November 2005 in the EB-3, according to the NFAP report, will need to wait only 1 to 2 more years instead of an additional torturous 11-18 years. While waiting times for Indian and Chinese may likely lessen, waiting times for all others may go up in both the EB-2 and the EB-3.

H.R. 3012 is thus not a perfect bill. It also has to be passed by the Senate before it becomes law, and there is an identical version introduced in the Senate. At present, Senator Grassley (R-1A), who has been a foe to skilled immigrant from India, including H-1Bs used by Indian IT companies, has placed a hold on legislation in the Senate. Senate procedures allow any member of the Senate to place such a hold on legislation, and it is uncertain whether Grassley will release his hold in the near future, although he is being persuaded to do so by colleagues and advocates. What is so significant about H.R 3012 is that it received bipartisan support and that too by a landslide, especially in a time when such bipartisan support on other measures is rare or non-existent. The easy passage of H.R. 3012 also shows that there is concern about the unfairness and imbalance in the system towards certain countries, especially India and China. Indeed, although the country limits were originally enacted for all countries, it has resulted in invidious discrimination within the immigration system for Indians and Chinese.

Things may work out better than expected if H.R. 3012 became law, though, as we have lived without per country limits in recent times. Prior to Jan 1, 2005, the EB numbers were always current because AC 21, enacted in 2000, recaptured 130,000 numbers from 1998 and 1999, and the per country limits were postponed under a formula until the demand in the EB outstripped the supply. The lack of per country limits helped, but we also had the additional unused numbers. However, at that time, we also had a surge under the 245(i) program, which we do not have today. The notes in the January 1, 2005 Visa Bulletin, when there was retrogression in the EB-3 for the first time after AC21, explains it all.

In conclusion, even if H.R. 3012 imposes waiting times on others who were hitherto not affected in an unfair system while decreasing the wait times for Indians and Chinese, it is consistent with principles of fairness.

The words of Justice Jackson ring true with respect to H.R. 3012 too:

“The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112—113 (1949) (concurring opinion).

Of course, H.R. 3012 ought to be viewed as a first baby step towards more comprehensive immigration reform. Even if it does become law, and skilled immigrants continue to wait, who may not only be Indians or Chinese, Congress will realize that the ultimate solution is to increase the visa numbers, rather than to maintain fossilized quotas that never change and are oblivious to economic and global realities. If there is no consensus for an overall increase in the 140,000 visas that are allocated each year to EB immigrants, Congress can exempt certain people from the numbers such as graduates with STEM degrees, or better still, dependent family members. Such carve outs too could restore further balance and integrity to the US immigration system.