Tag Archive for: INA 203(d)

Cyrus Mehta

Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps

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By Cyrus D. Mehta and Kaitlyn Box*

On July 9, 2021, the U.S. Court of Appeals for the D.C. Circuit issued its opinion in Wang v. Blinken, No. 20-5076 (D.C. Cir. 2021), interpreting INA § 203(d) to include the counting of derivatives toward the EB-5 investor cap. The Plaintiffs in the case are a group of EB-5 investors who would have been able to adjust status long ago if not for the lengthy backlogs in the EB-5 China, and subsequently Vietnam, categories caused by counting derivative family members against the EB-5 cap.

In a previous blog, we discussed the case at the District Court Level, where Plaintiffs’ primary argument was that nothing in the language of INA § 203(d), which states that “[v]isas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers, requires derivative family members to be counted against the cap. Instead, spouses and children, under INA 203(d) are “entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Plaintiffs also argued that Congress intended to exempt derivative family members from the numerical caps when it changed the relevant regulatory language in the Immigration Act of 1990. Prior to 1990, the “same status, and the same order of consideration” language as it pertains to derivative family members appeared in a section describing which immigrants “are subject to the numerical limitations”, but in 1990 this provision was shifted to a new section entitled “Treatment of Family Members”. Plaintiffs argued that this change indicated an intent on the part of Congress to subject only EB-5 investors, and not their spouses and children, to the numerical cap.

The Court, however, disagreed with this reasoning. Judge Walker, who authored the opinion, interpreted the key phrase “same status” to mean that because an EB-5 investor’s family members get the same type of visa as the principal, they must also be counted against the cap, and reasoned that “same order of consideration provided in the respective subsection,” which refers to the worldwide cap on employment-based visas, further indicates that spouses and children of EB-5 investors are subject to the cap.

The Court’s decision in Wang v. Blinken comes as a deep disappointment to the many immigration attorneys who had hoped that the Biden administration could reinterpret INA § 203(d) to support either not count derivatives at all or counting family units as one. We have long taken the position that not counting derivatives under the preference quotas would be consistent with INA § 203(d). See, for example, our blogs on The Tyranny of Priority Dates in 2010, How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012, and The Way We Count in 2013. The Biden administration solicited recommendations on how to remove barriers and obstacles to legal immigration, and unitary counting of derivatives, an idea which our firm proposed,  would have done much to serve this goal by relieving the decade-long backlogs. If the Biden administration wanted to reform the immigration system through executive actions, reinterpreting the law to not count derivatives in the green card categories would have been a good first step, along with not opposing the plaintiffs in Wang v. Blinken. Sadly, though, the administration did not choose to go in this direction, and the Court’s decision in Wang v. Blinken is likely a death knell for other, future lawsuits that would make similar arguments under other employment or family-based visa categories.

While the Court’s decision in Wang v. Blinken can still be appealed to the Supreme Court, a positive outcome is not likely given the conservative majority on the Supreme Court, which has adopted a pseudo textualist approach to interpreting immigration statutes. For instance, the Supreme Court in Sanchez v. Mayorkas also recently strictly interpreted INA § 244(f)(4) to hold that the grant of Temporary Protected Status did not constitute an admission thus allowing recipients to adjust status in the US.   Even if different plaintiffs could get a favorable decision in another circuit, the Supreme Court would likely rule on the circuit split anyway. Particularly as it has Chevron deference on its side, the government is likely to prevail in any litigation scenario. And even if the Biden administration later changes its mind and decides to adopt a nationwide policy to not count derivatives, it would be precluded from implementing this policy for people living within the jurisdiction of the D.C Circuit.  Perhaps a better way forward would be convincing Congress to explicitly state that derivative family members will not be counted against the cap under INA § 203(d). Passing such an amendment would be extremely difficult in a divided Senate, but one idea is to pass a measure through the reconciliation procedure that requires only a simple majority, rather than a filibuster-proof majority in the Senate.

(This blog is for information purposes, and should not be relied upon as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a Law Clerk at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

EB-5 Visa Cap Busting Lawsuit Opens Up Tantalizing Possibilities to Eliminate Backlogs in Employment and Family Preference Immigrant Visas

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Ever since I co-wrote The Tyranny of Priority Dates in 2010, followed by How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen in 2012,  I have steadfastly maintained that the current Trump and the prior administrations of Obama, Bush, Clinton and Bush (Senior), have got it wrong when counting visa numbers under the family and employment preferences.

There is no explicit authorization for derivative family members to be counted separately under either the employment-based or family based preference visas in the Immigration and Nationality Act. The treatment of family members is covered by INA 203(d), enacted in 1990, which states:

“A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

Nothing in INA 203(d) provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be allocated visa numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees or to investors, it makes no sense if half or more are used up by family members. I have also written blogs over the years, here, here and here, to further advance this argument.

The primary objective of my advocacy was to try to persuade a more immigrant friendly Obama administration, in line with other executive actions, to either not count derivatives or count the entire family unit as one consistent with INA 203(d). If the administration was afraid of being sued by reinterpreting INA 203(d), I advocated that there was sufficient ambiguity in the statute to do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.

Despite announcing DACA and DAPA, the Obama administration was too timid to undertake such an audacious reinterpretation of INA 203(d). Much water has flown under the bridge since 2016. The Trump administration will never entertain this idea. While risky, a lawsuit would be an option of last resort. The Trump administration will likely argue that INA 203(d) is ambiguous and thus invoke Chevron deference to the way it and all prior administrations have counted immigrant visas.

I am pleased to learn that a group of investors under the employment-based fifth preference (EB-5) have filed a lawsuit, Feng Wang v. Pompeo, and even won class certification. They are being represented by the venerable Ira Kurzban and John Pratt of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A. Their main argument, supported by an expert opinion from David Bier of Cato Institute, is that in every year, except for 2017, the number of derivatives receiving permanent residence was greater than the number of principal applicants, thus resulting in backlogs for China and subsequently Vietnam in the EB-5. If the derivative family members were not counted in the EB-5, the principal applicants would have received conditional permanent residence or green cards by now.

The EB-5 plaintiffs have focused their argument specifically on the language in INA 203(b)(5), which provides that “[v]isas shall be made available, in a number not to exceed 7.1 percent of [the 140,000 employment-based] worldwide level, to qualified immigrants seeking to enter the United States for the purpose of engaging in a new enterprise…..in which such alien has invested” a qualifying amount of capital, and which will create at least 10 jobs for U.S. workers. Thus, plaintiffs argue that INA 203(b)(5) unambiguously provides that 7.1% of the 140,000 employment-based visas shall be allocated to investors who satisfy the EB-5 requirements. Nothing in the language of INA 203(b)(5) provide for the reduction of the allocation of EB-5 visas to spouses and children. Rather, spouses and children, under INA 203(d) will “be entitled to the same status and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”

The plaintiffs in Feng Wang v. Pompeo also point to the provision in INA 217(f) regarding the removal of conditions for conditional residents to further demonstrate that Congress did not intend to classify the spouses and children of investors as investors under INA 203(b)(5). INA 217(f) separately defines an “alien entrepreneur” who was admitted for permanent residence from the “alien spouse” or “alien child”, who were admitted for permanent residence by virtue of being the spouse and child of the “alien entrepreneur.”

Finally, the plaintiffs also argue that INA 203(b)(5)(B) sets aside 3,000 visas for those who invest in targeted employment areas (TEA), and in exchange, the investor invests a reduced amount. However, since historically approximately two derivative spouses/children accompany each EB-5 investor, investors would be able to use up only the 3,000 visas allocated to TEA investors, even though Congress intended that investors be given a choice to invest in a TEA or in an area outside a TEA.

If the plaintiffs prevail in Feng Wang v. Pompeo, the beneficial impact of the ruling will be limited to EB-5 investors. They have moved for a preliminary injunction based on imminent harm  such as children aging and other economic harms.  Still, a victory, assuming that the plaintiffs also prevail on appeal, will provide a springboard for EB plaintiffs in other backlogged preferences to file a broader class action. Although the plaintiffs in Feng Wang v. Pompeo relied on the unique language in INA 203(b)(5) and INA 217(f), plaintiffs in other EB preferences can rely on similar language in other statutory provisions. For instance, a plaintiff in a backlogged country such as India under the employment-based first preference can point to INA 203(b)(1)(A)(i) to show that Congress intended that all the visas in the EB-1 be allocated to an alien with extraordinary ability while the spouses and children immigrated with the principal alien of extraordinary ability under INA 203(d). Similarly, a plaintiff from a backlogged country in the EB-2 can point to INA 203(b)(2)(A) to show that Congress intended that all the visas in the EB-2 would be allocated to qualified immigrants who are members of the professions holding advanced degrees or those with exceptional ability while their spouses and children immigrated under INA 203(d). A plaintiff in the EB-3 can point to INA 203(b)(3)(A) to show that Congress clearly intended all the visas in this category to be allocated to skilled workers, professionals and other workers while their spouses and children immigrated through INA 203(d). These future plaintiffs can also move for a preliminary injunction showing similar imminent harm as the EB-5 plaintiffs have shown.

Of course, winning on these arguments will not be easy. The government will seek to show, among other arguments,  that there is ambiguity in INA 203(d) and invoke Chevron deference to the way it currently and has historically counted principals and derivatives separately.  However, if the EB-5 plaintiffs win in Feng Wang v. Pompeo, then it opens up tantalizing opportunities for plaintiffs in other backlogged EB preferences, and potentially family-based preferences, to make similar arguments in lawsuits and win. If plaintiffs in these lawsuits are victorious, the number of available green cards will double or triple without Congress needing to lift a finger and despite the Trump administration’s resistance to expanding legal immigration. The waiting lines will vanish or be drastically reduced.  As Rabbi Hillel asked in Ethics of the Fathers, if not now, when?

 

Cyrus Mehta

THE FAMILY THAT IS COUNTED TOGETHER STAYS TOGETHER: HOW TO ELIMINATE IMMIGRANT VISA BACKLOGS

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By Gary Endelman and Cyrus D. Mehta

There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps.  That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped.  That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past.

We proposed this idea in our 2010 article The Tyranny of Priority Dates  long before it achieved the intellectual acceptance in many quarters that it now enjoys. We are pleased to now find that President Obama is considering this proposal as part of the package of administrative reform measures he will unveil before the end of this year. That this is so suggests the broad possibilities for change when the vigorous and disciplined exercise of executive initiative allows genuine progress to overcome the paralysis of political stalemate.

We know of no explicit authorization for derivative family members to be counted under either the Employment Based or Family Based preference in the Immigration and Nationality Act. The treatment of family members is covered by an explicit section of the Immigration and Nationality Act (INA), Section 203(d). Let us examine what INA §203(d) says:

A spouse of child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

The EB and FB numbers ought not to be held hostage to the number of family members each principal beneficiary brings with him or her. Nor should family members be held hostage to the quotas. We have often seen the principal beneficiary being granted permanent residency, but the derivative family members being left out, when there were not sufficient visa numbers under the preference category during that given year. If all family members are counted as one unit, such needless separation of family members will never happen again.  Should only the principal become a permanent resident while everyone else waits till next year? What if visa retrogression sets in and the family has to wait, maybe for years? This does not make sense. Is there not sufficient ambiguity in INA §203(d) to argue that family members should not be counted against the cap? We do not contend that they should be completely exempted from being counted. As stated in INA §203(d), family members should be given the “same status and the same order of consideration” as the principal. Hence, if there is no visa number for the principal, the rest of the family does not get in. If, on the other hand, there is a single remaining visa number for the principal, the family members, however many there are, ought to be “entitled to the same status, and the same order of consideration as the principal.” Viewed in this way, INA §203(d) operates in harmony with all other limits on permanent migration found in INA both on an overall and a per country basis.

There is no regulation in 8 Code of Federal Regulation (CFR) that truly interprets INA § 203(d). Even the Department of State’s regulation at 22 CFR §42.32 fails to illuminate the scope or purpose of INA 203(d). It does nothing more than parrot INA § 203(d). The authors recall the Supreme Court’s decision in Gonzales v Oregon, 546 US 243, 257 (2006) reminding us that a parroting regulation does not deserve deference:

Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute. An agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.


It is certainly true that family members are not exempted from being counted under INA § 201(b) as are immediate relatives of US citizens, special immigrants, or those fortunate enough to merit cancellation of their removal. Yet, we note that the title in INA §201(b) refers to “Aliens Not Subject to Direct Numerical Limitations.” What does this curious phrase mean? Each of the listed exemptions in INA §201(b) are outside the normal preference categories. That is why they are not subject to direct counting. By contrast, the INA § 203(d) derivatives are wholly within the preference system, bound fast by its stubborn limitations. They are not independent of all numerical constraints, only from direct ones. It is the principal alien through whom they derive their claim who is and has been counted. When viewed from this perspective, there is nothing inconsistent between saying in INA §203(d) that derivatives should not be independently assessed against the EB or FB cap despite their omission from INA §201(b) that lists only non-preference category exemptions.

We do not claim that derivative beneficiaries are exempt from numerical limits. As noted above, they are indeed subject in the sense that the principal alien is subject by virtue of being subsumed within the numerical limit that applies to this principal alien. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is, then, a profound difference between not being counted at all, for which we do not contend, and being counted as an integral family unit rather than as individuals. For this reason, INA §201(b) simply does not apply. We seek through the simple mechanism of an Executive Order not an exemption from numerical limits but a different way of counting them.

We are properly reminded that INA §§201(a)(1) and 201(a)(2) mandate that “family sponsored” and “employment based immigrants” are subject to worldwide limits. Does this not cover spouses and children? True enough but all is not lost. While the term “immigrant” under INA §101(a)(15) includes spouse and children, they were included because, in concert with their principal alien family member, they intended to stay permanently in this their adopted home. No one ever contended they were or are non-immigrants. However, this does not mean that such family derivatives are either “employment based” or “family sponsored” immigrants. No petitioner has filed either an I-140 or I-130 on their behalf. Their claim to immigrant status is wholly a creature of statute, deriving entirely from INA §203(d) which does not make them independently subject to any quota.

INA §203(d) must be understood to operate in harmony with other provisions of the INA. Surely, if Congress had meant to deduct derivative beneficiaries, it would have plainly said so somewhere in the INA. The Immigration Act of 1990 when modifying INA §§201(a)(1) and 201(a)(2) specifically only referred to family sponsored and employment-based immigrants in §203(a) and §203(b) respectively in the worldwide cap. This was a marked change from prior law when all immigrants save for immediate relatives and special immigrants, but including derivative family members, had been counted. In this sense, the interpretation of INA §203(d) for which we contend should be informed by the same broad, remedial spirit that characterizes IMMACT 90’s basic approach to numerical limitation of immigration to the United States As already noted, these immigrants ought to only be the principal beneficiaries of I-130 and I-140 petitions. Derivative family, of course, are not the beneficiaries of such sponsorship. At no point did Congress do so. Under the theory of expressio unius est exclusio alterius, it is entirely reasonable to conclude that Congress had not authorized such deduction. Surely, if this was not the case, Congress would have made its intent part of the INA.  If the Executive Branch wanted to reinterpret §203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X can be used as a force for good.  Thus, when a provision is ambiguous such as INA Section 203(d), the government agencies charged with its enforcement may reasonably interpret it in the manner that we suggest.

Skeptics who contend that the INA as written mandates individual counting of all family members point to two provisions of the INA, §§202(a)(2) and 202(b). Neither is the problem that supporters of the status quo imagine.  Let’s consider §202(a)(2) first. In relevant part, it teaches that not more than 7% of the total number of family and employment-based immigrant visas arising under INA §203(b) may be allocated to the natives of any single foreign state. Eagle eyed readers will readily notice that this does not apply to derivative family members whose entitlement comes from INA §203(d) with no mention of §203(b). Also, but no less importantly, INA §202(a)(2) is concerned solely with overall per country limits. There is no reason why the number of immigrant visas cannot stay within the 7% cap while all members of a family are counted as one unit. There is no reason why monitoring of the per country family or employment  cap should require individual counting of family members. The per country cap is, by its own terms, limited to the named beneficiaries of I-130 and  I-140 petitions and there is no express or implied authority for any executive interpretation that imposes a restriction that Congress has not seen fit to impose.

What about cross-chargeability under INA §202(b)? Even if §202(b) has language regarding preventing the separation of the family, it does not mean that the derivatives have to be counted separately. If an Indian-born beneficiary of an EB-2 I-140 is married to a Canadian born spouse, the Indian born beneficiary can cross charge to the EB-2 worldwide rather than EB-2 India. When the Indian cross charges, the entire family is counted as one unit under the EB-2 worldwide by virtue of being cross charged to Canada. Such an interpretation can be supported under Chevron and Brand X, especially the gloss given to Chevron by the Supreme Court in the recent Supreme Court decision in Scialabba v. de Osorio involving an interpretation of the provision of the Child Status Protection Act.  Justice Kagan’s plurality opinion, though seeking to clarify the Child Status Protection Act, applies with no less force to our subject: “This is the kind of case that Chevron was built for. Whatever Congress might have meant… it failed to speak clearly.” Kagan slip op. at 33. Once again, as with the per country EB cap, the concept of cross-chargeability is a remedial mechanism that seeks to promote and preserve family unity, precisely the same policy goal for which we contend.

Our proposal falls squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. Since the Congress will not expand the immigrant quotas themselves, unless we are willing to watch the slow death of the priority date system in silence, the President must act on his own. Doing so will double or triple the number of available green cards without the creation of a single new visa. The waiting lines will vanish or be drastically reduced.  As Rabbi Hillel asked in Ethics of the Fathers, if not now, when?

(Guest writer Gary Endelman is the Senior Counsel at Fosterquan)