Tag Archive for: I-140 Petition

Cyrus Mehta

Granting Deferred Action to Aging Out Children in Lawful Status Is Preferable to Having Them Start All Over Again

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By Cyrus D. Mehta

Children of beneficiaries of approved I-140 petitions that are caught in the employment-based backlogs are in danger of aging out if they turn 21 and are unable to obtain permanent resident status with their parents. Although the Child Status Protection Act (CSPA) is able to protect the age of some children from aging out, not all children can benefit from the CSPA especially when neither the Date for Filing or the Final Action Date in the State Department Visa Bulletin is nowhere close to becoming current with respect to the I-140 petition filed on behalf of the parent. Indian born beneficiaries in the employment based first, second and third preferences are particularly impacted as the wait time before their priority dates become current can be an absurd  195 years. Over one million Indian born beneficiaries and their dependents will be waiting for the rest of their lives in the backlogs.

Although Congress can easily fix this problem by infusing more visa numbers in the employment-based categories along with reducing the per country limits, due to the intense polarization between the two parties and the obsessive focus on the border, those in Congress who desire to fix the problem are unable to get support to pass meaningful legislation.  On June 13, 2024, a bipartisan group of 43 members of Congress sent a letter  to Homeland Security Secretary Alejandro Mayorkas and U.S. Citizenship and Immigration Services Director Ur Jaddou requesting an administrative fix for children who will age out.

The letter requests three policy changes as follows:

First, “Clarify the applicability of potential grants of deferred action on a case-by-case basis, where discretion is warranted, for children of long-term visa holders who age out of status.”

Second, “Expand eligibility for Employment Authorization to child dependents of visa holders, and to individuals with approved I-140 petitions.” The letter also urges USCIS to expand eligibility for employment authorization (an EAD) under “compelling circumstances” to include “children who are aging out.”

Third, “We urge USCIS to create a process to allow children of long-term visa holders who have aged out to seek parole on a case-by-case basis, if warranted for urgent humanitarian reasons or to advance a significant public benefit.”

My views on this bipartisan letter have been extensively reflected in an article in Forbes written by Stuart Anderson of the National Foundation for American Policy, which are extracted below:

“The administrative proposals are both interesting and intriguing as they may only give a temporary benefit to the child who has aged out with no pathway to permanent residence,” said immigration attorney Cyrus Mehta. “Still, until Congress provides a legislative solution, these proposals, especially the first and second, would be an interim solution.”

A child granted deferred action can remain in the United States and obtain employment authorization. “The big disadvantage under this proposal is that once the parent had been granted permanent residence, what happens to the child?” said Mehta. “The child will have to remain a recipient of deferred action for a very long time until they can obtain their own basis to immigrate to the U.S.” A new presidential administration could rescind the deferred action, leaving an aged-out child in a situation similar to DACA recipients.

On the letter’s second proposal, Mehta explains while it would be good for dependent children to obtain EADs under compelling circumstances, “Children who age out and cannot protect their age under the Child Status Protection Act will not be able to obtain immigrant visas along with their parents.” A rule on the regulatory agenda that has not been issued would clarify and likely expand compelling circumstances for children at risk of aging out.

The letter also recommends granting employment authorization documents to the principal green card applicants waiting for permanent residence. “While granting EADs to beneficiaries of approved I-140s is a good thing, advocates should realize it will not lead to permanent residence if an individual changes jobs unless the new employer files the labor certification and I-140 again and the beneficiary is able to recapture the old priority date,” said Mehta. The child may not be protected from aging out depending on the circumstances.

The third proposal—being paroled into the United States—also does not offer a clear pathway to permanent residence. A future administration can choose not to extend parole. Depending on when a parent obtains permanent residence, sponsoring a son or daughter may be possible, although likely via consular processing.

While these proposals are less than ideal as they do not put aged out children on the path to permanent residence, an executive action that authorizes children to lawfully remain in the US long after they have aged out, and obtain work authorization and travel permission,  is preferable to the status quo.

Presently, a child who is turning 21 would most likely be in H-4 status while the parent who is caught in the backlog is in H-1B status. The child must seek to change status before turning 21 to another nonimmigrant status. Most children of skilled workers are studying in college, and so they can change to F-1 status. Requesting a change to F-1 status is fraught with peril. Changing to F-1 status is fraught with risk as  F-1  nonimmigrant classification requires one to have a temporary intent to remain in the US and ultimately return to a residence abroad, which has not been abandoned. It is difficult for a child in this situation who has been in the US for most of their life to demonstrate such a nonimmigrant intent. Furthermore, even if the child is successful in changing to F-1 status, travelling abroad is fraught with even greater risk as a US consul can deny the F-1 visa under INA 214(b), because the visa applicant has not overcome  the presumption of immigrant intent by sufficiently demonstrating that they  have strong ties to their home country that will compel them to leave the United States at the end of their temporary stay. H-1B and L visa applicants, along with their spouse and any minor children, are excluded from this requirement, but when the child has switched to F-1 status, they have to meet this requirement.

If this child was not born to an Indian born backlogged beneficiary, they would have obtained permanent residence along with the parent. Unfortunately, this child who has aged out  needs to start all over again in the labyrinthine immigration system like their parent has miserably experienced by first obtaining F-1 nonimmigrant status, then take their chance in the H-1B lottery. It is likely that most of them will not get selected in this lottery. If they are fortuitously selected, they can  seek an employer to sponsor them for permanent residency while not getting any credit for their parent’s priority date. They will need to establish a new priority date upon their employer sponsoring them for labor certification, and  filing an I-140 petition, and then they too will have to wait for more than a lifetime to obtain permanent residence unless they happen to marry a US citizen,  and get rescued from quotas  and file for adjustment of status.

Instead of stating all over again in F-1 status, if a child is granted deferred action, they are authorized to remain in the US and even work by applying for employment authorization. If the child wishes to travel, they can request advance parole. This is probably better than remaining in nonimmigrant F-1 status, and then trying to switch to H-1B status under the H-1B lottery. They will need to be a recipient of deferred action for a very long time until they get sponsored for permanent residence through an employer or as an immediate relative of a US citizen spouse or through a family member under one of the family preferences.

Although a new president can yank the deferred action, they will be more stable so long as they have deferred action rather than being thrown into vagaries of the US immigration system. They can also hope that at some point Congress will bless this executive action and provide a pathway for these children to apply for permanent residence and citizenship just as DACA recipients have been hoping and advocating for a long time.

Finally, I also favor advancing the “Dates of Filing” in the State Department Visa Bulletin as much as possible to allow those waiting in employment-based green card categories to file I-485 applications for adjustment of status. This action would enable individuals to obtain employment authorization documents, advance parole for travel purposes and protect the age of the child for an immigration filing.

 

 

 

 

 

Cyrus Mehta

USCIS Broadens Compelling Circumstances Parameters for Skilled Immigrants in the Green Card Backlogs So That They Can Continue to Work in the US Even After Job Loss

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By Cyrus D. Mehta and Kaitlyn Box*

In our previous blog, we suggested several ways that the Biden administration could follow to allow nonimmigrant workers who have been laid off to remain in the U.S. As major tech companies continue to lay off workers, nonimmigrant employees are often left with few pathways to continue working in the U.S. if they cannot quickly secure alternate employment. H-1B visa holders are allowed only a 60-day grace period to change or extend their nonimmigrant status in the U.S. following a termination, after which they must depart the country. Layoffs have a particularly harsh impact on Indian born H-1B workers who are caught in the employment based green card backlogs. Skilled workers born in India must wait decades to become permanent residents, remaining dependent on their employers to file continued nonimmigrant visa petitions on their behalf in the meantime. In recent months, the State Department Visa Bulletin has reflected that all countries of the world are now subjected to retrogression in most of the employment based preferences although Indians still bear the brunt due to additional per country limits within each  employment based preference.

Among the suggestions posed in our previous blog was the recommendation that the Biden administration employment authorization documents (EADs) to laid off nonimmigrant workers based on compelling circumstances under 8 CFR § 204.5(p). As discussed in the prior post, this provision allows EADs to 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. Although DHS has never precisely defined what constitutes “compelling circumstances”, the examples provided in the preamble to the high skilled worker rule that took effect on January 17,  2017 included serious illness and disabilities, employer dispute or retaliation, other substantial harm to the worker, and significant disruptions to the employer. DHS has also 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 might constitute significant disruption to the employer. USCIS has historically issued EADs based on compelling circumstances very seldomly as mere unemployment would not rise up to the level of compelling circumstances, and  more needed to have been shown such as that the unemployment was as a result of a serious illness,  employer retaliation or the skills used by the worker in the US could not be utilized in the home country.

USCIS recently implemented a version of this suggestion, broadening the criteria for implementing EADs based on compelling circumstances specifically linked to job termination. It is no coincidence that the parameters for compelling circumstances have broadened now that beneficiaries of approved I-140 petitions from all countries are facing visa retrogression as opposed to only India.  In a June 14, 2023 Policy Alert, USCIS states that it “may provide employment authorization to beneficiaries of approved employment-based immigrant visa petitions who face delays due to backlogs in immigrant visa availability. Beneficiaries who face adverse circumstances resulting from termination from employment and loss of nonimmigrant status, may qualify for an Employment Authorization Document (EAD) if they face compelling circumstances beyond the usual hardship associated with job loss.” According to the USCIS Policy Manual, principal applicants must demonstrate that they are the beneficiaries of an approved I-140 petition, in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period at the time Form I-765 is filed, have not filed a Form I-485 Application to Register Permanent Residence or Adjust Status, and that an immigrant visa is not available based on the applicant’s priority date according to the relevant Final Action Date in the U.S. Department of State (DOS)’s Visa Bulletin in effect at the time the applicant files Form I-765 in order to be eligible for an EAD based on compelling circumstances. USCIS does not provide an exhaustive list of the scenarios that could constitute compelling circumstances, but outlines several examples in the Policy Manual, which include “a serious illness or disability that substantially changes employment circumstances” or financial hardship “when coupled with circumstances beyond those typically associated with job loss”, such as when termination would cause an applicant with a serious medical problem to lose their health insurance. Applicants who can demonstrate that their inability to change or extend their status would result in a serious disruption to their employers, such as where “due to the principal applicant’s knowledge or experience, their loss would negatively impact projects and result in significant monetary loss or other disruption to the employer”, may also be eligible for EADs based on compelling circumstances. The Policy Manual further states that “reaching the maximum statutory or regulatory period of allowed nonimmigrant status does not, without compounding factors, constitute compelling circumstances. An officer may consider this factor in determining whether the applicant merits a favorable exercise of discretion”. EADs based on compelling circumstances will be valid for up to one year, and spouses and children of a principal applicant who receives a compelling-circumstances EAD are also eligible. The EAD is renewable for an additional year based on 1) either a continuing showing of compelling circumstances or 2) if the difference between the applicant’s priority date and the Final Action Date for the applicant’s preference category and country of chargeability is 1 year or less according to the Visa Bulletin in effect on the date the applicant filed the renewal application.

While some nonimmigrant workers who have been laid off will no doubt be able to benefit from the broadened criteria to obtain EADs and remain in the U.S., the measure is still quite narrow in scope. The expanded criteria will apply primarily to nonimmigrant workers who have been laid off or terminated from their jobs, not those who remain employed, and applicants must still demonstrate compelling circumstances, such as being “forced to sell their home for a loss, pull the children out of school, and relocate to their home country” due to the job loss. Furthermore, an EAD based on compelling circumstances confers no nonimmigrant status, and is intended only as a stopgap measure to assist nonimmigrants whose lives who be severely upended if their were forced to return to their home countries on short notice. USCIS considers recipients of a compelling circumstances EAD to be in a period of “authorized stay”. Thus, recipients will not accrue unlawful presence or trigger the 3- or 10-year bars to reentry, but are not provided with any path to permanent residence. USCIS has not indicated that any automatic extension will apply to EADs based on compelling circumstances, so recipients who need to apply for a renewal may temporarily lose work authorization while the application is pending. Even the initial request for the EAD will take several months as the USICS has not indicated that applicants will be able to use premium processing and there is also a biometrics requirement that can further hobble the process. One of the conditions for eligibility is that the applicant and dependents have not been convicted of a felony or two or more misdemeanors.

Recipients of an EAD based on compelling circumstances will likely need to look for other solutions if they wish to remain and work in the U.S. on a long-term basis until they obtain permanent resident status. An individual who finds new employment under a compelling circumstances EAD would need to have their new employer file a new labor certification and I-140 petition on their behalf, which could recapture the old priority date from the previous I-140 petition under 8 CFR  § 204.5(e). The foreign worker and derivative family members such as the spouse and minor children could then go abroad for consular processing when the priority date becomes current under the Final Action Date. Due to lengthy backlogs for oversubscribed countries, there is a risk that older children may “age out”, or reach the age of 21, before the principal applicant’s priority date becomes current.

A new employer could also file a new H-1B visa petition for the foreign worker alongside the new labor certification and I-140 petition. Recipients of a compelling circumstances EAD will be in a period of authorized stay in the U.S. and will not be maintaining their nonimmigrant status. Thus, recipients cannot extend their H-1B status in the U.S. If the new employer files an H-1B petition for consular processing, however, this would allow the foreign worker and their family to return to the U.S. in H-1B/H-4 status after obtaining visa stamps at an overseas consulate and file for adjustment of status in the U.S. when the recaptured priority date becomes current.

In the end, the compelling circumstances EAD is just a band aid and not a solution. There is no need for decade long backlogs in the legal immigration system, and Congress must pass legislation to infuse more visas in each category as well as eliminate per country limits. While previously only India and to a lesser extent China were impacted by the backlogs, now all countries have been impacted,  and so everyone must unite to demand more visas to ensure that skilled workers with approved petitions be granted permanent residence within a reasonable period  of time.

(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

Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence

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By Cyrus Mehta and Kaitlyn Box*

In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. On March 16, 2022, the Department of Homeland Security also announced the designation of Afghanistan for TPS for a period of 18 months.

Generally, TPS provides a temporary immigration status to nationals of countries fraught with armed conflict or other disasters. In order to be eligible for TPS, an individual must be a national of a country designated for TPS, have been continuously present in the U.S. since the date of the designation, have continuously resided in the U.S. since a date specified by the Secretary of Homeland Security, and not be inadmissible to the United States. In the case of Ukraine, the requirement that applicants must have continuously resided in the United States since April 11, 2022 will render many  Ukrainian nationals ineligible for TPS, as many individuals fleeing the war would not have arrived in the United States by that date. Individuals who are granted TPS receive a stay of deportation and temporary authorization to work in the United States.

The Uniting for Ukraine program that would allow Ukrainians to enter the US under humanitarian parole was announced on April 21, 2022. Thus, those who will get paroled into the US under Uniting for Ukraine will not be eligible for TPS.  However, several thousand Ukrainians who came to Mexico  after the Russian invasion in February 20, 2022 and got paroled into the US from the Southern border prior to April 11, 2022 will be eligible for TPS.

On the other hand, Afghans have been applying for  humanitarian parole prior to and  after the US withdrew from Afghanistan on August 30, 2021. A recent New York Times report states that of the 43,000 humanitarian parole applications received by USCIS since July 2021, the agency has processed less than 2,000. Of those processed applications, 1,500 were denied and 170 were approved as of February 11, 2022. While the humanitarian parole program for Afghans has been a disappointment, those who have been paroled into the US already prior to March 16, 2022 can apply for TPS.

Though it provides an important temporary form of relief for some nationals of countries experiencing a crisis, TPS is, by its very nature, temporary and does not provide foreign nationals with a pathway to permanent residence or citizenship in the United States. Thus, one must look for other alternatives for individuals who wish to seek permanent residence in the United States. Foreign nationals who have a U.S. citizen or lawful permanent resident relative may be able to file a family-based adjustment of status application, but some family preference categories are extremely backlogged. Skilled TPS recipients who can find a U.S. employer to sponsor them may instead be eligible to file an employment-based adjustment of status application. There are no backlogs for most TPS-designated countries, and spouses and minor children of the primary applicant may also file adjustment of status applications. In addition, foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa, which does not require employer sponsorship or a Labor Certification.

However, complications arise when a TPS recipient who entered the U.S. without inspection wishes to apply for permanent residence. Pursuant to INA § 245(a), an individual must have been inspected and admitted  or paroled into the United States in order to be eligible to apply for adjustment of status. A foreign national who was inspected and paroled into the United States would be eligible for adjustment of status, but an individual who entered without inspection would not. In a previous blog, we analyzed the Supreme Court’s decision in Sanchez v. Mayorkas, which holds that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. However, the decision seems to leave open whether a grant of TPS could “cure” a short lapse in the status of an individual who was inspected and admitted to the U.S., but later fell out of status. In her opinion, Justice Kagan gives the example of an individual who was out of status for a few months before receiving TPS, potentially implying that receiving TPS ends an individual’s time out of status, if this duration would otherwise have exceeded 180 days and rendered the individual unable to adjust under INA § 245(k). Additionally, the decision could imply that a grant of TPS could qualify as a “lawful nonimmigrant status”, which could assist individuals who would otherwise have been ineligible to file and adjustment of status application under INA § 245(c)(7).

While TPS is no doubt an important tool for aiding individuals who have fled Ukraine or Afghanistan, not all nationals of these countries will be eligible and a grant of TPS does not provide a path to permanent residence in the U.S. Thus, some TPS recipients, or individuals from TPS-designated countries who are ineligible, may be able to utilize employment-based immigrant visa petitions as a path to permanent residence.  Thus, one who was initially paroled into the US and then was granted TPS would be able to apply for adjustment of status if he or she became the beneficiary of an employment based I-140 petition after an employer obtained labor certification. The parole would fulfill the requirement  under INA 245(a) that the applicant have been inspected and admitted or paroled into the US. The subsequent grant of TPS would then confer “lawful nonimmigrant status” to that applicant and thus render him or her eligible for adjustment of status under INA §245(c)(7).  However, TPS recipients who entered without inspection will be ineligible to apply for adjustment of status. For individuals who were inspected and admitted to the U.S., though, but later had a lapse in status, a grant of TPS could render them again eligible for permanent residence.

There will be large numbers who will enter the US on humanitarian parole under Uniting for Ukraine but will not be eligible to receive TPS as they would have entered the US well after the cut off date of April 11, 2022. If a parolee is sponsored by an employer through labor certification, he or she will not be eligible for adjustment of status as parole is not considered a lawful nonimmigrant status under INA  § 245(c)(7).  This person will have to process at a US Consulate overseas after the I-140 petition is approved. Fortunately, Ukrainian nationals can have their cases processed at the US Consulate in Frankfurt rather than in Kiev. On the other hand, a parolee would still be able to adjust status under 245(a) as an immediate relative. Similarly, a parolee who becomes the beneficiary of an I-130 petition under a family preference category will also be able to adjust status as the requirement to be in “lawful nonimmigrant status” under 245(c)(7) only applies to beneficiaries of employment-based petitions and not family-based petitions. Indeed, one in parole status would be considered  to be in a lawful status under 8 CFR 245.1 (d)(1)(v) for purposes of adjusting status under a family-based petition but not an employment-based petition.

There are pathways for people who have been paroled to become permanent residents, and even more  pathways for those who have subsequently received TPS. Given the low unemployment rate and shortage of workers in the US, employers should look to not just be hiring Ukrainians and Afghans as parolees or in TPS status, but must also endeavor to sponsor people with parole and TPS for permanent residence through a labor certification, an I-140 petition and the filing of an I-485 adjustment of status application. Those who may not be eligible for adjustment of status because they are parolees can still proceed to a US Consulate for an immigrant visa following the approval of the I-140 petition.

The sponsoring of  workers based on their true worth skills would allow them to pursue better jobs and careers. Presently, people on TPS or parole may have employment authorization, but many are in jobs that may not match their skills. How many times has one been driven by a taxi driver who was a doctor or engineer in their own country or received groceries from a delivery person who may have previously been an accountant?   An employer who commits to hiring and then sponsoring a foreign national worker on parole or TPS based on their real skills creates a win-win situation for both.

(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

Recent Trends in Requests for Evidence on I-140 Petitions

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By Cyrus D. Mehta,  Sung-Min Baik* and Kaitlyn Box**

Employers who have filed concurrent “downgrade” I-140 petitions are facing an increasing number of requests for evidence (RFE).  These I-140 petitions were concurrently filed with I-485 applications when the India employment-based third preference (EB-3) date in the October 2020 Visa Bulletin advanced ahead of the India employment-based Second preference (EB-2) date.  Below are some examples of RFEs we have been seeing.  Although the USCIS is required to adjudicate over 100,000 pending I-485 adjustment cases by September 30, it is very likely that the USCIS will not be able to do so, and so we will continue to see these issues in the new 2022  fiscal year with respect to pending I-140 and I-485 cases.

Retention of the Priority Date, Ability to Pay

Under 8 C.F.R. § 204.5(g)(2), an employer filing an I-140 petition must demonstrate its ability to pay the proffered wage “at the time the priority date is established and continuing until the beneficiary obtains lawful permanent residence.”  According to a policy memo dated May 4, 2004, by William R. Yates, the petitioning employer may receive a positive determination of this ability to pay with initial evidence establishing that its net income or net current assets are equal to or greater than the proffered wage or that it has paid or is paying the proffered wage to the beneficiary.

This seemingly unambiguous burden is often applied erroneously when an employer files an I-140 petition on behalf of a foreign national who is already the beneficiary of a previously approved I-140 petition and seeks to recapture the priority date associated with the earlier I-140.The new employer is required to obtain a new labor certification, but the new I-140 petition would ultimately receive the earlier priority date established by the former employer.

When this retention of the priority date is requested by a new employer under 8 C.F.R. § 204.5(e), the UCSIS interprets 8 C.F.R. § 204.5(g)(2) to insist that the new employer must show its ability to pay from a priority date that it seeks to retain, even though the labor certification establishing the earlier priority date was obtained with a job offer made by a former employer and is not claimed by the new employer as the legal basis for filing a new I-140 petition.

The relevant regulation does not support the USCIS’ interpretation. On ETA Form 9089, an employer attests in the context of a specific job offer that an offered wage “will equal or exceed the prevailing wage” and that it has “enough funds available to pay the wage.”  20 C.F.R. §§ 656.10(c)(1).  Accordingly, determining the employer’s ability to pay should not exceed the scope of the employer’s attestation made with respect to the specific job offer for which certification is sought and obtained.  Subjecting the employer to the conditions of a different job offer made by a former employer would violate 20 C.F.R. § 656.30(c)(2), which provides that “[a] permanent labor certification involving a specific job offer is valid only for the particular job opportunity.”  It would also be impossible for the current employer to obtain the financial documents from a prior employer. Furthermore, the current employer is also not required to provide financial records from the year when the prior employer filed the labor certification. Indeed, the current employer may not have existed when the prior employer filed the labor certification.

It should be argued that the USCIS should not confuse the current employer’s ability to retain a prior pririty date under 8 C.F.R. § 8 C.F.R. § 204.5(e) with its ability to pay pursuant to 8 C.F.R. § 204.5(g)(2). The current employer must be required to establish its ability to pay at the time when it filed the current labor certification based upon which the I-140 petition was filed, and not based on an earlier recaptured priority date.

Beneficiary’s Current Position v. Offered Position

With respect to an I-485 application, the USCIS sometimes questions the validity of a job offer if the beneficiary is currently employed by a petitioning employer but not in the offered position, even when the current position falls within the same SOC code as the offered position in the labor certification, with only minor distinctions such as a differe job title.  In such casse, the USCIS argues that the employer failed to establish that it would permanently employ the beneficiary in the offered position set forth in the labor certification.  But, there is no requirement that the employer must offer the  PERM position to the beneficiary prior to obtaining permanent residence.  8 C.F.R. § 204.5(c) provides only that “[a]ny United States employer desiring and intending to employ an alien may file a petition.”   The Board of Immigration Appeals has noted that “[a]n alien is not required to have been employed by the certified employer prior to adjustment of status.”  Matter of Rajah, 25 I&N Dec. 127, 132–33 (BIA 2009).  As long as the employer provides evidence demonstrating that the beneficiary would be employed as set forth on the labor certification, the employment of the beneficiary in a different capacity or position during the pendency of an I-485 application would not, despite the USCIS’ contention, necessarily be relevant to the validity of a job offer made to the beneficiary.

Determining Ability to Pay When There is a Financial Loss

Because 8 C.F.R. § 204.5(g)(2) requires the employer to be able to demonstrate its ability to pay from the date when the labor certification is filed to the date when the beneficiary obtains permanent residence, the employer must put forth evidence, at the time of filing and/or in response to a request for evidence, establishing its ability to pay for the entire period. However, due to unforeseen intervening factors, the employer may report a loss for some part of this period.  For example, many petitioners may have suffered financially in 2020 due to distruptions caused by the COVID-19 pandemic.  In these instances, the USCIS may argue that the employer has failed to maintain its ability to pay as required by the regulation, but the then Immigration and Naturalization Service took a broad approach and indicated that the important question is whether the loss would preclude the employer from establishing that she [petitioning employer] will be able to meet the conditions of the certification in the ‘Job Offer.’”  Matter of Sonegawa, 12 I&N Dec. 612, 615 (Reg. Comm. 1967).  To answer this question, the Board analyzed the factors that led the employer to report a substantially lower income in one year and accepted evidence indicating that the employer’s business was likely to grow and report profits.  Id. 614-15.  Accordingly, reporting a loss for one year would not automatically prevent an employer from establishing its ability to pay, but attention needs to be devoted to presenting a well-documented and plausible argument that the employer would be able to pay the proffered wage as set forth on the labor certification.

Work Experience

With respect to establishing that the beneficiary has qualifying experience, 8 C.F.R. § 204.5(g)(1) instructs that evidence be provided “in the form of letter(s) from current or former employer(s) … and shall include … a specific description of the duties performed.”  In general, an experience letter is prepared by a supervisor who has direct knowledge of duties performed by the beneficiary, but sometimes a former employer may have a policy of provides letters that include only the start and end date of the employment, the job title, and a very brief description of the duties. When the beneficiary cannot obtain a more detailed letter from the employer itself, a separate affidavit from a supervisor may provide a more complete description of the actual duties performed by the beneficiary that comports more closely with the description of the beneficiary’s experience in Section K of the ETA 9080 labor certifcation.  However, the USCIS sometimes asserts that the petitioning employer must first establish “the non-existence or other unavailability” of an expereince letter from the former employer before submitting an affidavit from a supervisor for consideration.

Because 8 C.F.R. § 204.5(l)(3)(ii)(A) states only that “[a]ny requirements of training or experience for skilled workers, professionals, or other workers must be supported by letters from trainers or employers giving the name, address, and title of the trainer or employer, and a description of the training received or the experience of the alien”, one can argue that letters from supervisors are primary, rather than secondary evidence. Letters from trainers or employers must be authored by a person, such as a supervisor or a human resources professional, and are rarely signed by a corporation itself. 8 C.F.R. § 204.5(l)(3)(ii)(A) does not specify who must author an experience letter.  Indeed, the fact that Form ETA-9089 requests the contact information for an employee’s supervisor during the period of experience suggests that a supervisor and not human resources or some other officer within a company may actually be the preferred source of a letter from an employer.

Even if USCIS does not accept that letters from supervisors are primary evidence, a petitioning employer can argue that primary evidence is unavailable because the former employer has a policy of not providing detailed experience letters. When responding to an RFE that question’s the beneficiary’s work experience, the petitioning employer should instruct the beneficiary to reach out the the former empoyer(s) and request a new, detailed experience letter that includes all the necessary components. Ideally, the beneficiary will be able to obtain an updated experience letter that can be included with the RFE response. Even if the employee is unsuccessful, however, and the former employer’s policy prevents it from issuing a more detailed letter, copies of the emails or letter from the former employer can serve as proof that an experience letter is unavailable.

Other RFEs question the content, rather than the format, of the experience letters. For example, if the requirements in the labor certification state that candidates must have experience in a certain industry, such as IT or finance, USCIS may reject experience letters that do not specifically mention the field of experience. Petitioners should follow a similar process to respond to these RFEs, and ask the employee to attempt to obtain new experience letters. If more detailed letters are not available, publicly available information about the former employer, such as website printouts, can be submitted with the RFE response to demonstrate that the company operates within a certain industry and so the beneficiary gained the necessary experience.

Many of these RFEs emanate when an EB-3 I-140 petition is upgraded to premium processing, and are issued even when the prior EB-2 was approved based on the same supporting evidence. Therefore, care must be taken to properly address the RFEs, particularly because a denial of an EB-3 I-140 can potentially even jeopardize the underlying EB-2 I-140. Because many employment-based second and third preference green card backlogs, employers should also evaluate whether the job has drastically changed since the filing of the original labor certification before beneficiaries file a downgrade and concurrent adjustment. As outlined in our previous blog, however, employers may still rely on the old labor certification if the job duties remain largely the same and the beneficiary is merely using updated tools or technologies. Cases involving a slight change in the job are thankfully not being questioned by USCIS at this time.

(The information procided in this blog is for information purposes, and should not be viewed as a substitute for legal advice)

*Sung-Min Baik graduated with a JD from George Mason University School of Law in 2014, is an Associate at Cyrus D. Mehta & Partners PLLC.

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

Cyrus Mehta

The Fascinating Confluence of Temporary Protected Status, Removal and Employment-Based Adjustment of Status

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Immigration Judge Ila C. Deiss’ summary order shows how one who is granted Temporary Protected Status can adjust to permanent resident status through an I-140 petition filed by an employer.

Here are the facts based upon which IJ Deiss issued the order:

The Respondent is a native and citizen of Nepal who arrived in the United States in 2006 in F-1 student status. In 2007 he stopped going to school and began working without authorization. He affirmatively filed for asylum in 2008, but his asylum claim was not granted and he was placed in removal proceedings in the same year. An Immigration Judge denied his asylum claim in 2010 and he was granted voluntary departure. Respondent appealed to the Board of Immigration Appeals, which dismissed his appeal in 2011. Respondent then filed a Petition for Review in the 9th Circuit Court of Appeals, which was denied in 2014. His case was then remanded to the Immigration Judge and was subsequently Administratively Closed based on a grant of Temporary Protected Status. In 2015, as a result of a massive earth quake, the Attorney General designated Nepal for Temporary Protected Status. Respondent, as a citizen of Nepal, applied for and was granted TPS in the same year and continued to be a recipient of TPS registration at the time of the decision.

Respondent’s employer filed an I-140 petition to the USCIS on his behalf in 2019, and in the same year, Respondent concurrently filed an I-485 adjustment of status application with the court.  The legal question before IJ Deiss was whether the Respondent was eligible for adjustment of status.

Earlier, in Ramirez v. Brown, 852 F.3d 954 (9th Cir. 2017), the Ninth Circuit held that TPS constitutes an admission for purpose of establishing eligibility for adjustment of status under INA 245(a). A foreign national who enters the United States without inspection, which was the case in Ramirez v. Brown, does not qualify for adjustment of status even if married to a US citizen since s/he does not meet the key requirement of INA § 245(a), which is to “have been inspected and admitted or paroled into the United States.” However, both Ramirez, and another case in the 6th Circuit with the same facts,   Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), held that as a matter of statutory interpretation, Congress intended TPS recipients to be considered “admitted” for purposes of INA 245(a). Thus, even if the foreign national entered without inspection, the grant of TPS constituted an admission thus rendering the TPS recipient eligible for adjustment of status. Of course, the other conditions of INA 245(a) must also be met, which is not be inadmissible as well as have a visa that is immediately available. The disqualifications to adjustment of status in INA 245(c)(2) such as working without authorization, being in unlawful status or failing to maintain lawful status since entry are not applicable to immediate relatives of US citizens, who are spouses, minor children and parents.

The courts in Ramirez and Flores relied on INA § 244 (f)(4), which provides:

(f) Benefits and Status During Period of Protected Status – During a period in which an alien is granted temporary protected status under this section-

(4) for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant

Both courts read the above phrase, especially “for purposes of adjustment of status under section 245 and change of status under section 248” to be in harmony with being “admitted” for purposes of adjustment of status. As § 244(f)(4) bestows nonimmigrant status on a TPS recipient, an alien who has obtained nonimmigrant status is deemed to be “admitted.” Thus, at least in places that fall under the jurisdiction of the Sixth and Ninth Circuits, TPS recipients who have been granted nonimmigrant status under INA 244(f)(4) could potentially adjust status to permanent residence as immediate relatives of US citizens. Those who have entered without inspection in these two circuits need not travel outside the US under advance parole in order to become eligible to adjust status under § 245(a). On the other hand, those not in the jurisdiction of the Sixth and Ninth Circuit who were not previously admitted will need to travel under advance parole to become eligible for adjustment of status as immediate relatives by availing of Matter of Arrabelly and Yerrabelly, 25 I&N Dec. 771 (BIA 2012). Under this decision, a departure under advance parole does not trigger the 3 and 10-year unlawful presence bars pursuant to INA 212(a)(9)(B).

In a prior blog titled Potential Adjustment of Status Options After the Termination of TPS, I raised the question whether the holdings in Ramirez and Flores could apply to TPS recipients who are beneficiaries of an approved I-140 petition under the employment-based first, second, third and fourth preferences. I postulated that the “answer arguably is ‘yes” under § 245(k) provided they fall under the jurisdiction of the Sixth and Ninth Circuits.

IJ Deiss’ order in the San Francisco Immigration Court, which falls under the Ninth Circuit’s jurisdiction, now confirms that §245(k) can rescue such persons even if they are in removal proceedings. § 245(k) exempts applicants for adjustment of status who are otherwise subject to the § 245(c)(2) bar based on unauthorized employment or for not maintaining lawful status provided they are present in the United States pursuant to a lawful admission and subsequent to such admission have not failed to maintain lawful status or engaged in unauthorized unemployment for more than 180 days. § 245(k) also waives the bars under §§ 245(c)(7) and (c)(8) that otherwise apply to employment-based adjustment applicants.  Thus, even if the TPS recipient may have not been in lawful status prior to the grant of TPS, the grant of TPS resulted in the individual being admitted into the US. If this person files within the TPS validity period, 245(k) should allow this person to adjust to permanent residence, as IJ Deiss also held.

The attorney for the respondent, Emily Wilson,  in arguing for 245(k) eligibility relied on a USCIS memo by Acting Associate Director, Donald Neufeld, titled Applicability of Section 245(k) to Certain Employment Based Adjustment of Status Applications filed under Section 245(a) of the Immigration and Nationality Act. This memo correctly interprets 245(k) by stating that “adjudicators must only examine the 180 day period from the date of the alien’s last lawful admission to the United States and must not count violations that occurred before the alien’s last lawful admission.” In the instant case, the Respondent’s last lawful admission to the United States was his grant of TPS in 2015. Ms. Wilson went on to argue, “Under a plain reading of the regulation and USCIS’ guidance on the applicability of 245(k) it is clear that only violations of 245(c)(2), (c)(7), and (c)(6) that occurred after the TPS grant are relevant in this case. Since the Respondent has no violations of 245(c)(2), (c)(7), and (c)(8) since his TPS grant on [redacted] 2015 he is eligible to adjust status to lawful permanent resident under §§ 245(a) and 245(k) of the INA.”

Another interesting aspect of this case is that the grant of TPS constituted another admission, thus resenting the clock, although the Respondent was previously admitted in F-1 status. In Ramirez and Flores, the adjustment applicants had entered without inspection, and conceptually, it is easier to admit someone who was previously not admitted. However, there is nothing in the reading of  §244(f)(4) that should preclude someone from being admitted again, as in the instant case,  even if previously admitted in a nonimmigrant status prior to the TPS grant.

There are other interesting things to ponder about. Although the Trump administration has sought to terminated TPS for Nepal, under the court ordered stipulation in Bhattarai v. Neilsen the TPS designation for Nepal remains in effect. I would argue that even assuming TPS for Nepal was terminated at the time IJ Deiss rendered her decision, 245(k) ought to allow a respondent in removal proceedings to adjust status. Although INA 244(f)(4) bestows lawful nonimmigrant status to a current TPS recipient, that grant of nonimmigrant status also previously admitted the TPS recipient into the United States. The fact that she was once admitted through the TPS grant cannot vanish just because she is no longer a TPS recipient, and she ought to be eligible to adjust status under 245(k) so long as she has not stayed in the US greater than 180 days from the termination of TPS designation. Once a person has been admitted, the person is still considered to have been admitted for 245(a) purposes even if the period of stay under TPS expires. I would further argue that this should apply to a § 244(f)(4) implied admission as much as it does to any other kind of admission. If you are necessarily admitted because you have gone from having entered without inspection to being in nonimmigrant status, that does not cease to have been the case because your nonimmigrant status later goes away. Finally, Ms. Wilson correctly pointed out in footnote 1 in her decision that a derivative may also benefit under § 245(k), according to the USCIS 245(k) memo, and so the Respondent’s spouse who presumably is also a TPS recipient along with her spouse is also eligible to apply for adjustment of status.

Note that § 245(k) is only applicable to I-485 applications filed under the employment-based first, second, third and fourth preferences. With respect to family-based preference petitions, USCIS has taken the position that anyone who has ever failed to maintain continuously a lawful status will not be eligible for adjustment of status (although there is one outlier federal district court decision, See Figueroa v. Rodriguez, No. CV-16-8218 -PA, 2017 U.S. Dist. LEXIS 128120 (C.D. Cal. Aug. 10, 2017)). Hence, the beneficiary of an I-130 filed by a permanent resident on behalf of his spouse will likely not be able to adjust status if he was not in status prior to the grant of TPS. Also, one who needs to travel outside the United States in order to become eligible for adjustment of status under § 245(a) as an immediate relative, especially those outside the jurisdiction of the Sixth and Ninth Circuits, will not be able to avail of § 245(k) to adjust pursuant to an employment-based I-140 petition as § 245(k) only applies to one who has been admitted rather than paroled into the United States..

Unfortunately, the beneficial impact of a TPS grant for employment-based adjustment applicants is only applicable to those within the jurisdiction of the Sixth and Ninth Circuit. It is also important to note that the Eleventh Circuit in Serrano v. Unites States Attorney General, 655 F.3d 1260 (11th Cir. 2011) held that TPS was not an admission for purposes of adjustment under INA 245(a). A class action, filed by the American Immigration Council, is designed to replicate the Ramirez and Flores decisions in all Circuits that have not yet ruled and has been awaiting a decision from the district court judge for over a year in the Eastern District of New York. In the interim, the issue is now pending in the Third, Fifth, and Eight Circuits and the AIC has filed amicus briefs in all of them. There is a strong statutory argument that the grant of TPS constitutes an admission under § 244(f)(4), and thus allows one to adjust status both as an immediate relative and also through an employment-based I-140 petition under § 245(k). This logical and unambiguous interpretation should ultimately be adhered to by all courts.

(Hats off to Emily Wilson who was the Respondent’s attorney!)

Cyrus Mehta

A Trap For The Unwary: Equivalent Degrees And Alternate Requirements In Labor Certification Applications

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When a foreign national has a three year degree instead of a four year degree, or has no degree, and is able to establish an equivalent degree through a combination of education and work experience, or only through work experience, it is important that the PERM labor certification application be carefully drafted. While an equivalent degree might pass muster for an H-1B visa, it will not always for a labor certification and the subsequent I-140 immigrant visa petition.

20 CFR §656.17(h) requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity in a labor certification application. If the foreign national does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, the labor certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). 20 CFR §656.17(h)(4)(ii) essentially adopts the holding of BALCA in Francis Kellogg, 1994-INA-00465, although in that case the primary and alternative requirements, namely, experience as a cook or salad maker, were not substantially equivalent, thereby necessitating that the employer accept any suitable combination of education, training or experience. In contrast to Kellogg, 20 CFR §656.17(h) requires consideration of this language even if there is substantial equivalence between the primary and alternative requirement.

Fortunately, if this language does not appear on the form, it is no longer fatal and practitioners can challenge a denial if the sole reason for the denial was the failure to insert this “magic language” on the application. In Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) the fact that the Kellogg language did not appear on the form could not be a ground for denial as there is no space on the ETA-9089 form for such language; and the Kellogg language also does not need to appear in recruitment materials. BALCA in Federal Insurance held that a denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). HealthAmerica is a seminal BALCA decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Notwithstanding the fact that the Kellogg magic language is not required, DOL’s rigid insistence that alternate requirements be substantially similar becomes especially problematic when a position requires the minimum of a bachelor’s degree but the foreign national qualifies based on equivalent work experience. It is important to draft PERM labor certification applications being aware of this pitfall, as well as the advertisements, so as to avoid a denial. Globalnet Management, 2009-PER-00110 (BALCA Aug. 6, 2009) is illustrative of this problem. In Globalnet Management,, BALCA held that a bachelor’s degree plus two years of experience was not substantially equivalent to 14 years of experience. BALCA did not accept the argument that the alternative requirement of 14 years of experience comported with the well-established formula to determine equivalency under the H-1B visa, three years of experience is equal to one year of education under 8 CFR §214.2(h)(4)(iii)(D)(5), and held that the primary and alternative requirements were not substantially equivalent. BALCA relied on Field Memorandum No. 48-94 that set forth the years under the Specific Vocational Preparation (SVP) system for different educational attainments. Therefore, the appropriate alternative for a position requiring a B.S. degree plus two years of experience would have been four years of experience rather than 14 years of experience. While BALCA noted that 8 CFR §214.2(h)(4)(iii)(D)(5) may be persuasive in the absence of other guidance, citing Syscorp International, 1989-INA-00212, it nevertheless relied on Field Memo No. 48-94 in affirming the denial of the labor certification.

One reason why practitioners still include an alternative requirement relating to an equivalent degree is to ensure that the requirement is consistent with the H-1B visa petition. It is not unusual to qualify a foreign national for an H-1B visa who may have the equivalent of a three year degree, and then makes up the fourth year through the equivalent of three years of experience. The following language, which previously passed muster would now put into jeopardy ETA-9089 applications that define an equivalent degree, as follows: “Employer will accept a three year bachelor’s degree and three years of experience as being equivalent to one year of college.” Under the reasoning employed in Globalnet, this assumes that the alternative requirement would involve 12 years of SVP lapsed time while a bachelor’s degree would only require two years of SVP lapsed time. The employer faces a Hobson’s choice. If the employer does not include what it means by an equivalent degree on the ETA-9089, the subsequent I-140 petition will fail. If an employer requires a bachelor’s degree, and if the foreign national does not have the equivalent of a four year degree, and the ETA-9089 does not include a definition with respect to what it means by an equivalent degree, USCIS will assume that the employer required a four year degree and the foreign national would not be able to qualify for the position by virtue of not possessing such a degree.

On the other hand, in light of Globalnet it no longer remains viable to insist on consistency between the H-1B and the labor certification. Hence, if the primary requirement is a bachelor’s degree and two years of experience, and the foreign national does not have a degree whatsoever, the substantially equivalent alternative that would be acceptable to DOL would be four years of experience, as opposed to 14 years of experience. There may be some concern that requiring this formula on the labor certification, which may pass muster for DOL, may still be problematic when the alien has filed an I-140 petition and is also extending the H-1B visa using the “3 for 1” equivalency formula to establish the equivalent degree to qualify for the H-1B occupation. There is some anecdotal evidence of the USCIS questioning the extension of the H-1B visa when the I-140 petition involving the same position did not require a degree.  However, if this issue comes up during an H-1B adjudication, it should be argued that the discrepancy lies in the USCIS regulations and USCIS interpretations relating to H-1B and I-140 petitions, not in the beneficiary’s job or the beneficiary’s qualifications. USCIS ought not to deny an H-1B solely because a beneficiary who has been classified for an H-1B visa through an equivalent degree, either based on a combination of education and experience, or purely through a requirement of 12 plus years of experience, is classified on an I-140 under the EB-3 skilled worker preference requiring something less than a bachelor’s degree.

Finding ways to escape the Globalnet trap (and to achieve consistency with the H-1B) have not been successful. In Microsoft Corporation, 2011-PER-02563 (October 16, 2012), the employer indicated in items H.4 through H.7 in the ETA 9089 that its requirements for the position was a Bachelor’s degree or foreign educational equivalent in Comp. Sci., Eng., Math, Physics, Business or related field and six months of experience in the job offered or in a computer-related occupation or student school project experience. The employer indicated in item H.8 that there was an acceptable alternate combination of education and experience, and specified that it would accept 3 years of work experience for every year missing from a four year college degree. The CO denied on grounds that the alternative requirement was not substantially similar to the primary requirement. When the employer appealed to BALCA, one of its arguments was that 20 CFR §656.17(h)(4)(i) did not apply as it was accepting an alternate combination of education and experience in H.8-C, rather than an alternate experience requirement. This argument, unfortunately, was shot down, since the employer created an alternate requirement by indicating in H.10 that it would require three years of work experience for every year of missing college education. The following extract from the BALCA decision in Microsoft Corporation is worth noting:

The Employer completed item H.8 indicating it would accept an alternate combination of education and experience, but that there was no alternate experience requirement. The Employer, however, completed box H.14 indicating that it will accept three years of work experience for every year of missing education from a four year college degree. Although not listed in item H.8C, box H.14 indicates that the position has, in effect, an alternate experience requirement which varies from zero to twelve depending on the level of education attained by the applicant. Therefore, the CO correctly applied § 656.17(h)(4)(i) in determining whether the alternate experience requirement is substantially equivalent to the primary requirement.

The reason why labor certifications of this sort stumble is because there is an alternative requirement, thus triggering 20 CFR §656.17(h)(4)(i). The employer can arguably require the equivalent of a bachelor’s degree as a sole requirement, rather than insist on a bachelor’s degree or the equivalent of such a degree, by checking No to H.6 and Yes to H.10 in ETA 9089, and explaining the equivalency formula in H.14. See Matter of DNP America LLC, 2012-PER-00335 (Oct. 6 2015) (employer properly answered No to H.6 because it did not require experience in the offered position, and was instead requiring experience in a similar position, which it appropriately indicated in H.10).   This strategy too is likely to fail as the DOL may argue that an alternate requirement was created in H.10, as in Microsoft, although BALCA has yet to rule on such a fact pattern where the labor certification expresses one requirement, rather than a primary and alternate requirement.

While achieving consistency between the H-1B and the educational requirements on the ETA 9089 may be impossible based degree equivalencies through work experience, it behooves the employer to at least frame the alternate requirement appropriately as being substantially similar to the primary requirement so as to avoid a denial of the labor certification. For foreign nationals who have no degree and have qualified for their H-1B visa status through 12 years of work experience, including the formulaic “3 for 1” year rule as a way to express the equivalency on the labor certification will most certainly be fatal. Instead, this author has experienced success when the employer required a bachelor’s degree in the specialized field as a primary requirement, and as an alternate, required two years of experience in the specialized field in lieu of a bachelor’s degree. This is consistent with DOL’s interpretation under Kellogg and 20 CFR §656.17(h)(4)(i) that the primary requirement of a bachelor’s degree (requiring 2 years of SVP time) is substantially equivalent to  the alternate requirement (which is two years of experience). If the position requires two years of experience in addition to a bachelor’s degree, then the alternate requirement could be 4 years of experience in lieu of a bachelor’s degree.  Similarly, when a foreign national has a three year degree, the best practice is to require either a 3 or 4 year bachelor’s degree plus the relevant experience.

Navigating immigration law is already challenging, and it becomes increasingly more so when one is dealing with the DOL and the USCIS, who are committed to different standards relating to equivalency. What is worse is that the goal posts are constantly moved, and what may have been acceptable previously is unbeknownst to anyone suddenly not. Until both the agencies settle their differences, or legislation forces them to do so, the immigration practitioner will need to be constantly threading the needle when representing foreign clients with equivalent degrees in order to avoid a labor certification denial and successfully obtain permanent residency.

[This is a shorter version of a forthcoming article in ILW’s PERM Book III (High Tech/IT Edition, Ed. Joel Stewart). The blog is for informational purposes only and should not be viewed as a substitute for legal advice]

Cyrus Mehta

Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!

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The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status application has been pending for 180 days. Once the beneficiary has ported and is no longer in contact with the former employer, the USCIS may discover that it improperly approved the I-140 petition and revoke it. Only the prior employer may get notification, which may no longer care to contest the grounds for revoking the I-140 or this employer may no longer even be in existence. The hapless foreign national who is enjoying job mobility under INA 204(j) does not know any better, but this individual may no longer be able to obtain permanent residency.

Should this foreign national beneficiary at least be notified about the I-140 being revoked and allowed to contest it? In 2009, the Ninth Circuit Court of Appeals in Herrera v. USCIS  answered in the negative by holding that the government’s authority to revoke an I-140 petition under INA 205 survived portability under INA 204(j). Since Herrera,  progress has been made in favor of the foreign national’s interest in the I-140 petition although it may have been filed by the employer. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition 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) 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. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Despite Kurupati and Patel, which gave standing to the beneficiary of an I-140 petition to challenge the revocation or denial, a federal district court in Musunuru v. Lynch, 81 F. Supp.3d 721 (2015) held to the contrary, that the beneficiary of an I-140 petition could not challenge the revocation of a prior I-140 as the applicable regulations only authorize the petitioning employer to be provided with notification and to challenge the revocation. The Musunuru Court also opined that unlike a non-citizen who is in removal proceedings and who would suffer a serious loss, and thus a right to be heard, an I-140 revocation does not cause the same loss. Obviously, the court’s reasoning is wrong as the denial of an I-140 petition results in the denial of the I-485 adjustment application, which in turn can place the beneficiary in removal proceedings. Fortunately, Law360 reported that this case is on appeal in the Seventh Circuit, and at oral argument, “Circuit Judge Rovner seemed baffled by the whole case, however, saying it doesn’t appear that Musunuru did anything wrong but was being punished for someone else’s mistakes.”

The prospect of the DHS promulgating a rule that would allow beneficiaries of an approved I-140 to apply for work authorization although they are not yet able to file I-1-485 applications should not diminish the beneficiary’s standing in case the I-140 is revoked. First, USCIS has authority under INA 274(a)(h)(3) to issue work authorization to any class of non-citizens.  While an I-140 petition anchored by an I-485 would strengthen the standing claim, there are 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 Ramirezwas 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 is obviated if the non-citizen is allowed to detach from the sponsoring employer under a rule granting work authorization  that replicates 204(j) portability, notwithstanding the lack of an I-485 application. 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.

As courts are recognizing the non-citizen’s interest in an I-140, employers may want to think twice before withdrawing an already approved I-140 petition even after the employee has left. Unlike an H-1B petition, there is no sanction for the employer who does not withdraw the I-140 petition. The I-140 petition allows the non-citizen to seek an H-1B extension through another employer beyond the maximum sixth year under the American Competitiveness in the 21st Century Act. It also allows the priority date on that I-140 petition to be transferred to a subsequently filed petition, and provides a measure of protection for one who wishes to port under INA 204(j). Courts have also recognized that the I-140 petition enables the beneficiary to seek benefits independent of the employer who sponsored him or her, and thus providing greater rights to the foreign national beneficiary in the I-140 is a step in the right direction, especially when backlogs in the employment preferences have resulted in longer and longer waits for the coveted green card.