Tag Archive for: Kisor v. Wilkie

Cyrus Mehta

Board of Immigration Appeals in Matter of Aguilar Hernandez Provides Glimpse of How Statutes and Regulations Will Be Interpreted Without Deference to Government

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By Cyrus D. Mehta and Kaitlyn Box*

On January 31, 2024, the Board of Immigration Appeals (BIA) issued a decision in Matter of Aguilar Hernandez.

Mr. Aguilar Hernandez, a noncitizen from Mexico, had been served a Notice to Appear (NTA) in 2019 that did not list the date and time of his individual hearing. He objected that this NTA was defective at both his individual hearing and moved to terminate the removal proceedings against him, but the Immigration Judge denied his motion. In October 2022, Mr. Aguilar Hernandez again moved to terminate the removal proceedings due to the defective NTA. The Department of Homeland Security objected, arguing that the IJ had the discretion to allow it to cure the defective NTA rather than terminating removal proceedings. DHS filed a Form I-261 containing the date and time of the next hearing, and also listing the date and time of the original hearing, and served this form on Mr. Aguilar Hernandez. Over Mr. Aguilar Hernandez’s objections, the IJ denied his motion to terminate once again, without issuing a decision concerning DHS’ submission of the Form I-261. Mr. Aguilar Hernandez then appealed to the BIA.

The BIA held that “DHS cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistent with the Supreme Court’s decision in Niz-Chavez.” In Niz-Chavez v. Garland, 593 U.S. 155, 160-62 (2021), the Supreme Court held that DHS cannot cure a defective NTA by issuing a hearing notice that contains the date and time of the initial hearing in removal proceedings. The BIA also cited to Pereira v. Sessions, 138 S. Ct. 2015 (2018), in which the Supreme Court held that the “stop-time rule” at INA 240A(d)(1) is not triggered by an NTA that does not contain the time and place of a hearing in removal proceedings. The BIA reasoned that “The plain text of 8 C.F.R. § 1003.30 does not support DHS’ argument, because it does not allow amendment of the date and time on the notice to appear by using a Form I-261. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (requiring agencies to follow the plain language of a regulation).” The BIA noted that the Supreme Court had held that INA 239(a)(1) requires one “single document” in Niz-Chavez, and rejected the idea that DHS could provide adequate notice by issuing multiple successive documents containing the relevant information. See Niz-Chavez, 593 U.S. at 160-61.

Matter of Aguilar Hernandez is a victory for noncitizens seeking to terminate removal proceedings on the basis of a defective NTA, but it is interesting for another reason, as well – it represents one of the rare instances in which the BIA has cited Kisor v. Wilkie. As prior blogs have noted (here, here, and here) Kisor v. Wilkie laid out a three-step test for how it would view an agency’s interpretation of its own  genuinely ambiguous regulation.. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.” In Kisor, the Supreme Court narrowed the previous standard set forth in Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation.  In Aguilar Hernandez it does not appear that the BIA thought that 8 C.F.R. § 1003.30 was ambiguous, and so it did not even need to defer to the government’s interpretation of this regulation even under the narrower standard as set forth in Kisor v. Wilkie. The plain language of 8 C.F.R. § 1003.30 did not support an expansive reading that would allow the government to cure a defective NTA by amending it through the submission of an I-261. An I-261 under 8 C.F.R. § 1003.30 only allows the government to add or substitute charges in an NTA or to add or substitute factual allegations.

The requirement that the government interprets the plain meaning of the regulation is part of a trend. The “Auer deference” standard as modified by Kisor v. Wilkie is quite similar to “Chevron deference”, which holds that courts will give deference to a federal agency’s interpretation of an ambiguous federal statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). However, when a statute is not ambiguous, the court does not need to even rely on Chevron deference and can side step the analysis all together.  While requiring an agency to adhere to the plain meaning of a statute or regulation helped the respondent in Aguilar Hernandez, it may not always come to the aid of plaintiffs. For instance,  the DC Circuit Court of Appeals in Wang v. Blinken  held that it was clear that INA 203(d) required the counting of both the principal and derivative beneficiaries in the employment-based fifth preference. Indeed, the Court in Wang v. Blinken also rejected the government’s argument that it was entitled to Chevron deference in interpreting INA 203(d) by counting derivatives as INA 203(d) was not ambiguous in the first place.

Two upcoming Supreme Court cases –  Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo –  may narrow Chevron or even eviscerate it altogether. If the Supreme Court’s holdings in Relentless and Loper Bright deprive agencies of the ability to interpret ambiguous statutes without explicit Congressional authorization, it may result in both good and bad outcomes in the immigration context. According to the Think Immigration Blog: “For example, in removal cases, Chevron deference hurts those seeking review of immigration judge or Board of Immigration Appeals decisions. It can also hurt employers seeking to obtain a favorable interpretation of a statute granting H-1B or L visa classification to a noncitizen worker.   However, Chevron deference can help when the immigration agency seeks to give employment authorization benefits, such as with the Deferred Action for Childhood Arrivals program or with F-1 optional practical training.”

At present, courts also rely on the “major questions” doctrine in West Virginia v. EPA, 142 S. Ct. 2587 (2022) to side step Chevron deference even if a statute is ambiguous. Here the Supreme Court held that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”.  Such extraordinary cases where the “major questions” doctrine is invoked have vast economic and political significance. The dissent in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), for example, argued that the issue of whether DHS’ 2016 OPT Rule exceeds its statutory authority was a “major question”. Similarly, in a footnote, the court in Texas v. USA cited West Virginia v. EPA in holding that DHS had no Congressional authority to implement the DACA program. The standard articulated in West Virginia v. EPA requires agencies to assert clear Congressional authorization when implementing a new policy of major significance, while Chevron imposes an almost opposite standard by saying that if the court cannot identify clear congressional authority disapproving what the agency proposes to do, the court should uphold the agency action if it is reasonable.  The Supreme Court’s decisions in Relentless and Loper Bright could help to resolve this discrepancy. If Chevron deference is eliminated, courts need not even need to go into the “major questions” doctrine.

Matter of Aguilar Hernandez gives us a taste of how courts will interpret INA provisions and regulations in a post Chevron world although it remains to be seen whether the end result will always be beneficial.

 

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

 

 

Cyrus Mehta

The First Step for Reforming the Immigration Courts is to Allow Immigration Judges to Administratively Close Cases

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By Cyrus D. Mehta

On May 5, 2021, the majority opinion in the Third Circuit Court of Appeals decision in Sanchez v. Attorney General followed two other circuit courts in holding that an Immigration Judge (IJ) has the authority to administratively close cases. If there is a case that is deserving for an IJ to administratively close a case, this is it. Former Attorney General Sessions, under President Trump, issued Matter of Castro Tum holding that an IJ and the Board of Immigration Appeals (BIA) did not have this authority. It is about time that the Biden administration stop defending Matter of Castro Tum. There is a great and urgent need to reform the immigration courts, including making them more independent, but a simple first step is for Attorney General Merrick Garland to withdraw Matter of Castro Tum. This would have a great impact in reducing the immigration court backlog, bring a modicum of fairness and allow an IJ to focus on serious cases.

The Petitioner in Sanchez v. AG, Arcos Sanchez, a native and citizen of Mexico, entered the US at the age of seven without inspection. In 2012, he  applied for Consideration of Deferred Action for  Childhood Arrivals (DACA) status, which was approved. The DHS periodically granted his requests for renewals. In April 2019, Sanchez was arrested and charged in New Jersey with sexual assault and endangering the welfare of a child. As a result of these charges, the USCIS revoked Sanchez’s DACA status and placed him in removal proceedings. Sanchez applied for asylum and related relief. The IJ denied his claims and issued an order of removal. Two weeks from the IJ’s decision, the state criminal charges were dismissed. As a result of the dismissal of the charges, Sanchez was eligible again for DACA status.

On appeal to the BIA, Sanchez challenged the IJ’s decision and requested that the BIA remand the case to the IJ for consideration of administrative closure so that his DACA application could be approved, which in turn would favorably impact the disposition of the removal proceeding. The BIA denied remand, citing the binding decision of Castro Tum. The Third Circuit overruled the BIA and held that 8 CFR 1003.10(b) and 1003.1(d)(1(ii) unambiguously grants IJs and the BIA general authority to administratively close cases by authorizing them to take “any action” that is “appropriate and necessary” for the disposition of cases.

The majority in Sanchez relied on the Supreme Court’s 2018 decision in Kisor v. Wilkie, which has come to the aid of petitioners challenging DHS’s interpretation of supposedly ambiguous immigration regulations. Our prior blogs addressing the beneficial impact of Kisor v. Wilkie on federal court decisions involving immigration law are here and here.  In Auer v. Robins, the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations.  After Kisor, no longer can the DHS invoke Auer deference with respect to its ability to interpret its own regulations. The majority opinion in Kisor  essentially “cabined the scope” of Auer deference, and set forth a three-step approach. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

A great example of a federal court applying Kisor in an immigration case is the 2019 Fourth Circuit decision Romero v Barr. The court in Romero overturned Matter of Castro-Tum by holding that the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted. Even if these regulations are ambiguous, the court citing Kisor noted that Auer deference cannot be granted when the new interpretation results in “unfair surprise” to regulated parties especially when the agency’s current interpretation conflicts with a prior one. The Fourth Circuit in Romero v. Barr focused on  the specific language “may take any action…..appropriate and necessary for the disposition” of the case” in 8 CFR 1003.1(d)(1)(ii) & 1003.10(b). According to the Fourth Circuit, this language would necessarily encompass actions of whatever kind appropriate, including administrative closure, and hence there was no ambiguity thus necessitating Auer deference.

The majority in  in Sanchez agreed with this analysis. In a dissent,  Judge Paul Matey said that the rule which states that cases may only be administratively closed when “appropriate and necessary,” shouldn’t be interpreted to grant “unfettered discretion.” According to Judge Matey, “[t]o the contrary, ‘appropriate and necessary’ is itself an important restriction on the scope of the attorney general’s delegation, and one that comes with some bite.”

In a subsequent opinion in June 2020 following Romero v. Barr by now Justice Amy Coney Barrett,  the Seventh Circuit in Meza Morales v. Barr also concluded that “the immigration regulations that grant immigration judges their general powers [are] broad enough to implicitly encompass that [administrative closure] authority.” Although the Sixth Circuit in Hernandez-Serrano v. Barr a few months later in November 2020 upheld Castro-Tum, the Third Circuit majority in Sanchez sided with the reasoning in the Fourth and Seventh Circuit.  The majority in Hernandez-Serrano was concerned that when immigration cases leave an IJ’s active calendar they never come back and “[t]hus  the  reality  is  that,  in hundreds  of  thousands  of  cases,  administrative  closure  has  amounted  to  a  decision  not  to  apply the Nation’s immigration laws at all.” But even if that is a legitimate concern, the Sanchez court reasoned that the Attorney General can amend the regulation and it is not the role for the court to interpret the regulation in a way that would alleviate the government’s concern.

Given that there are three circuits that have overruled Castro-Tum on the ground that there is no ambiguity in the regulation authorizing administrative closure, with the Supreme Court’s decision in Kisor v. Wilkie aiding this interpretation, it is about time that AG Garland restore the BIA’s decision in Matter of Avetisyan and withdraw Castro Tum. As argued in our prior blogs, here and here, Matter of Avetisyan makes more sense than Castro Tum.  In Matter of Avetisyan, an IJ repeatedly continued a removal hearing pending the filing and adjudication of a family-based immigrant visa petition. During the final hearing, despite DHS’s opposition, the IJ granted the respondent’s motion to administrative closure, and the DHS filed an interlocutory appeal. The issue here was whether an IJ or the BIA has the authority to administratively close a case when one of the parties to the proceeding opposes. The BIA determined that there was fault in the general rule stated in Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) that “a case may not be administratively closed if opposed by either party.” The BIA, in overruling Matter of Gutierrez, held that affording absolute deference to a party’s objection is improper and that the IJ or the BIA, in the exercise of independent judgement and discretion, has the authority to administratively close a case, regardless of party opposition, if it is otherwise appropriate under the circumstances. The BIA further held that when evaluating a request for administrative closure, the IJ should weigh all relevant factors presented in the case, including, but not limited to: (1) the reason administrative closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the respondent will succeed on any petition, application, or other action he or she is pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or entry of a removal order) when the case is recalendared before the IJ or the appeal is reinstated before the BIA. In Avetisyan, the visa petition had been pending for a long time through no apparent fault of the respondent or her husband, and there was no obvious impediment to the approval of the visa petition or ability of the respondent to successfully apply for adjustment of status. The BIA determined that the circumstances supported the exercise of the IJ’s authority to administratively close the case.

There are hundreds of thousands of cases in immigration court that do not need to be active as the respondents will be eligible for permanent residence or related relief. Reviving  Avetisyan  and withdrawing Castro Tum will go a long way in clearing the backlog in Immigration Court. In addition to reducing clutter in the immigration court’s docket, certain removal cases require resolution of questions that depend on outcomes from other immigration agencies that neither the IJ nor the BIA have any control over. Thus, the approval of an I-130 petition filed by a US citizen spouse on behalf of the foreign national spouse in removal proceedings, or the resolution of an appeal of an I-130 denial, will greatly determine the outcome of the removal case, although neither the IJ or the BIA have any control over the adjudication of the I-130 petition in a removal proceeding.  It would make sense, and also be fair, for the IJ or BIA to receive the outcome of the I-130 petition before deciding to order removal of the respondent.

The Biden administration should thus refrain from appealing Sanchez to the Supreme Court notwithstanding the circuit split. As a practical matter, the administration may likely lose since all the nine justices were either part of the majority or concurring opinions in Kisor v. Wilkie, which aids in finding that there is no need to give Auer deference to the government’s interpretation of 8 CFR 1003.1(d)(1)(ii) & 1003.10(b). Justice Ginsburg is sadly no more and has been replaced by Justice Barrett, who wrote the opinion in Meza-Morales v. Barr when she was a judge on the Seventh Circuit, which overruled Castro Tum. Hence, despite the change in composition of the Supreme Court,  there is still a very strong likelihood that the Biden administration will lose big in the Supreme Court if it asks the court to uphold Castro Tum.  It would be much easier, and more in line with the Biden administration’s thinking on bringing fairness to immigration proceedings that Trump undermined, for AG Garland to withdraw Castro Tum and reinstate Avetisyan.

 

Cyrus Mehta

Innova Solutions v. Baran: Computer Programmer is a Specialty Occupation Under the H-1B Visa

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By Cyrus D. Mehta & Kaitlyn Box*

On December 16, 2020, the Ninth Circuit issued its opinion in Innova Solutions, Inc. v. Baran,  which involved a technology company, Innova, that wanted to hire an Indian employee in the specialty occupation of Computer Programmer, and filed an H-1B petition on his behalf. Innova Solutions, Inc. v. Baran, No. 19-16849, *4.  USCIS denied the petition stating that Innova failed to show that the position of Computer Programmer is a specialty occupation. Id. at 5-6. USCIS relied heavily on the Department of Labor’s Occupational Outlook Handbook (OOH), which states that “[m]ost computer programmers have a bachelor’s degree”, thereby implying that some individuals employed as computer programmers do not have bachelor’s degrees. Id.

In a prior blog, we have discussed the outcome of the Innova Solutions, Inc. v. Baran case at the District Court level. The U.S. District Court for the Northern District of California heard the case in 2018, and held that the position of Programming Analyst, categorized under the OOH’s Computer Programmer classification, did not qualify as a specialty occupation because the OOH’s description for Computer Programmer stated only that “most” Computer Programmers have a bachelor’s degree but “some employers hire workers with an associate’s degree”. Innova Sols., Inc. v. Baran, 2019 U.S. Dist. LEXIS 134790, *17.

The Ninth Circuit reversed the District Court’s grant of summary judgment to USCIS, and remanded the case, holding the USCIS’ denial of the visa was arbitrary and capricious. The court first examined the OOH language, holding that USCIS’s denial of the petition on this basis was arbitrary and capricious. Innova Solutions, Inc. v. Baran, No. 19-16849, *8. The court compared the OOH statements that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject” and a bachelor’s degree is the “[t]ypical level of education that most workers need to enter” with the computer programmer occupation to the regulatory language at 8 C.F.R. 214.2(h)(4)(iii)(A), which requires that a bachelor’s degree “normally” the minimum education required for the occupation. Id. The court found there to be no appreciable difference between these two descriptions, stating that: “[t]here is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria”. Id. Given the agreement between the two requirements, the court found that USCIS’s denial of the visa based on the OOH criteria was arbitrary and capricious, lambasting USCIS’s reasoning as “beyond saving” and stating that “there is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required”. Id. at *9.

The court was similarly unpersuaded by USCIS’s argument that OOH language stating that “some employers hire workers with an associate’s degree” indicates that a bachelor’s degree is not normally required for the position. Id. at 10. In fact, the court reasoned, this language is entirely consistent with the regulatory criteria, which requires only that a bachelor’s degree “normally”, and not “always”, be required for entry into an occupation. Id. The court stated that “[w]hile agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted, relying on Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019), which limited Auer deference to “genuinely ambiguous” regulations. Id. at 10-11.

The court also held that USCIS’s denial was arbitrary and capricious because it mischaracterized the language in the OOH. Id. at *12-13. The USCIS decision claimed that the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify”, when in fact it states merely that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” Id. at 13. While it acknowledged that “a factual error is not necessarily fatal to an agency decision”, the court found USCIS’s misconstruction of the OOH language to be arbitrary and capricious in this instance because whether or not computer programmers normally possess a bachelor’s degree was central to USCIS’s decision. Id.

Finally, the court found USCIS’s decision arbitrary and capricious because it failed to consider key evidence. Id. at *14. The court reasoned that OOH language stating that a bachelor’s degree is the “[t]ypical level of education that most workers need” to become a computer programmer was prominently featured on the OOH landing page and of central importance to the USCIS’s determination, but the USCIS failed event to mention this language in its decision. Id.

While the Ninth Circuit’s decision in Innova Solutions is doubtless a victory for U.S. technology companies who employ foreign workers as computer programmers, the decision has broader implications, as well. For one, the decision is a refreshing rebuttal to USCIS’s longstanding practice of challenging computer programming on specialty occupation grounds. On March 31, 2017, the USCIS issued a policy memorandum that rescinded earlier 2000 guidance that acknowledged the position of computer programmer as a specialty occupation. The 2017 policy memorandum relied on the current language in the OOH as basis for rescission of the earlier guidance. Importantly, the Ninth Circuit in Innova Solutions held that this same language from the OOH does not contradict the regulatory criteria at 8 C.F.R. 214.2(h)(4)(iii)(A), effectively undercutting the USCIS’ rationale for issuing the 2017 memorandum.

Additionally, Innova Solutions represents the first recent reported circuit court decision in which the court has ruled in favor of the H-1B petitioner. Other landmark circuit court cases have historically favored the USCIS. In Defensor v. Meissner, for example, the Fifth Circuit ruled against a medical staffing agency that had filed H-1B petitions on behalf of the nurses it employed on the grounds that the end hospital where the nurses were placed was really the supervising entity, and reasoning that no evidence suggested these hospitals required the nurses to possess bachelor’s degrees.  Defensor v. Meissner, 201 F.3d (5th Cir. 2000). In Defensor, the court held that the held that the criteria in 8 CFR § 214.2(h)(4)(iii)(A) are merely necessary conditions, rather than necessary and sufficient conditions, to establish that a position is a specialty occupation, a decision the USCIS often cites in H-1B RFEs. Id. Similarly, in Royal Siam Corp. v. Chertoff, the First Circuit ruled in favor of USCIS’s position that a position which requires a degree in a specific specialty related to the duties and responsibilities of the job should be accorded more weight than a generic degree requirement. Royal Siam Corp v. Chertoff, 484 F.3d 139 (First Cir. 2007). Innova Solutions is thus a unique and welcome victory for H-1B petitioners in the circuit courts.

The Ninth Circuit’s decision is in line with a number of recent decisions in lower courts in which, in contrast to most circuit court cases, H-1B petitioners have successfully challenged USCIS’s denial of H-1B petitions on the grounds that the position in question did not qualify as a specialty occupation. See, e.g., Taylor Made Software, Inc. v. Cissna, Civil Action No. 2019-0202 (D.D.C. 2020); Relx, Inc. v. Baran, 397 F. Supp. 3d 41 (D.D.C. 2019); Next Generation Technology v. Johnson, 15 cv 5663 (S.D.N.Y. 2017). In Innova Solutions, the Ninth Circuit reminds the USCIS, as the numerous lower court decisions have done, that the OOH may not be used as a Holy Grail to deny H-1B petitions that are based on well-reasoned arguments by the petitioner and corroborated by substantial evidence, including expert opinions.

Finally, one cannot overstate the growing importance of Kisor v. Wilkie in limiting the USCIS’s ability to exercise broad discretion in interpreting its own regulations under Auer precedent. Auer v. Robbins, 519 U.S. 452 (1997). In its decision in Innova Solutions, the court acknowledges that Auer deference applies only to genuinely ambiguous regulations, which 8 C.F.R. 214.2(h)(4)(iii)(A) is not. The court’s decision reminds the USCIS that Auer deference is not a broad license to deny meritorious H-1B petitions.

*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

The Beneficial Impact of the Supreme Court’s Decision in Kisor v. Wilkie on H-1B Denials

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By Cyrus D. Mehta and Sonal Sharma*

In June 2019, when the Supreme Court handed down a decision in Kisor v Wilkie, it was yet to be seen what impact this decision would have on federal court challenges to H-1B denials. Prior to Kisor, federal courts adopted a deferential standard of the government’s interpretation of its own regulations. This deferential standard was governed by an earlier Supreme Court decision, Auer v. Robbins, which held that courts would give deference to an agency’s interpretation of its own ambiguous regulation. The Auer standard was similar to the standard set forth in Chevron USA v. Natural Resources Defense Council regarding how a federal court would give deference to an agency’s interpretation of a statute. Under Chevron deference, if a statute is ambiguous, a court will give deference to the agency’s interpretation, even if it does not agree with the outcome, so long as it is based on a permissible construction of the statute.

The Supreme Court in Kisor provided no new radical test of how it would view an agency’s interpretation of its own regulation. It essentially “cabined the scope” of Auer deference, and set forth a three-step approach under Kisor. Under this test,  the court must determine (i) that the regulation is “genuinely ambiguous” — the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, whether it meets the “minimum threshold” to grant Auer deference, requiring the court to conduct an “independent inquiry” into whether (a) it is an authoritative or official position of the agency; (b) it reflects the agency’s substantive expertise; and (c) the agency’s interpretation of the rule reflects “its fair and considered judgment.”

In our prior blog in December 2019, there were few decided cases involving challenges over H-1B visa denials that had applied the Kisor standard. We analyzed how the courts ought to apply the new Auer deference standard set forth in Kisor. Most H-1B visa adjudications are guided by regulations and policies rather than by the statute, and prior to Kisor courts have mostly been paying deference to the USCIS’s interpretation of its regulations.   Since December 2019,  courts have applied the  Kisor standard in challenges to denials of H-1B petitions, and have overturned denials as well as burdensome  H-1B policy. This is indeed a welcome change!

H-1B denials resulted from the implementation of recent policy memos shifting the USCIS’s position that was not aligned with its prior statements, memos, and opinions. One example of such a shift is the memo issued in February 2018 relating to contracts and itineraries with third-party clients.  This new policy has enabled USCIS to play havoc to H-1B petitions filed by employers who place H-1B workers at third party client sites. If the third party client is unable to or refuses to provide documentation explaining the length of the assignment, and even if the employer provides evidence of its ability to employ the H-1B worker for the duration of the validity period, the USCIS has either denied the petition or shortened the validity period.  The USCIS issued this memo to be read as supplementary guidance to the employer-employee memo of 2010. Even this 2010 memo has been used to trouble employers of H-1B workers. While 8 CFR 214.2(h)(4)(ii) defines an employer-employee relationship as including “hire, pay, fire, supervise, or otherwise control the work of any such employee”, the USCIS has  focused only on the employer’s ability to control the H-1B worker and disregarded the other indicia of the employer-employee relationship.

In this blog, we analyze recent court decisions that have applied the Kisor standard or been influenced by it, and not paid deference to the USCIS’s interpretation of its regulations or of policy memos stemming from these regulations.

ITServe Aliance v. Cissna

In ITServe Alliance v. Cissna, the U.S. District Court of the District of Columbia on March 10, 2020 invalidated the USCIS policy defining an employer-employee relationship for employers of H-1B workers  as well as the 2018 policy and 1991 regulation requiring that IT firms provide a detailed itinerary and contracts for potential H-1B workers for the entire three years of their visa stay. Judge Collyer held that the current USCIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced. Moreover, the USCIS requirements that employers (i) provide proof of non-speculative work assignments (ii) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced. Finally, the court held USCIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.

Although the court did not cite Kisor, it did not pay deference to USCIS’s interpretation of its regulations even under the traditional Auer standard. Judge Collyer conducted an independent inquiry to determine if the USCIS 2018 memo is a legislative rule or a mere interpretive rule. We provide a detailed analysis of the ITServe Alliance decision.

While noting USCIS’s effort to mask the memo as mere guidance to its adjudicators, Judge Collyer concluded that the 2018 memo is indeed a legislative rule with an attempt to impose legally binding obligations on regulated parties. The court also noted that the 2018 memo in essence (i) adopted a new definition of an employer; (ii) added substantive requirements to prove the employer-employee relationship; (iii) added additional requirements to describe the work with evidence that it will be available for the duration of the visa; and (iv) burdens petitioners to provide detailed itineraries on the risk of denial on failure to comply with the new requirements.

The 2010 employer-employee memo is based on the definition of an employer pursuant to  8 C.F.R. §214.2(h)(4)(ii), but the memo still indicates that the regulation does not provide enough guidance on the definition of the employer-employee relationship. The employer-employee memo invoked the common-law as touch stone of employer’s control. Judge Collyer hollered at the USCIS from deviating from 8 C.F.R. §214.2(h)(4)(ii) specifically noting that it adopted the definition of employer under this rule which was identical to the one crafted by the Department of Labor in 1991, and to this date no amendments have been made to that definition by the USCIS. The court noted that USCIS’s sole focus on “control” over everything else, if evaluated under Auer deference, is in clear conflict with the regulations itself and hence warrants no deference. The court pointed out that the USCIS has been claiming that the term “employer-employee relationship” is not defined in the regulations, but noted that 8 C.F.R. 214.2(h)(4)(ii) clearly defines the term as:

(2) Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee

Given this, Judge Collyer noted that the USCIS’s reliance on the common-law doctrine of “control” is contradictory to the clear definition provided under the regulations. It also noted that “[t]he common law may be a useful touchstone but cannot contradict or limit a clear regulation that has been applied with no objection or correction for almost three decades” and hence is not worthy of any deference.

The court steered a remarkable analysis of the plain text of the regulations specifically the wordings may hire, pay, fire, supervise, or otherwise control the work of [the] employee. In its analysis, the court noted that “[t]he use of “or” distinctly informs regulated employers that a single listed factor can establish the requisite “control” to demonstrate an employer-employee relationship. This formulation makes evident that there are multiple ways to demonstrate employer control, that is, by hiring or paying or firing or supervising or “otherwise” showing control. In context, “otherwise” anticipates additional, not fewer, examples of employer control.”

Judge Collyer further observed that through the 2018 memo, the USCIS attempted to substitute the unambiguous text of the regulations.

The court also analyzed if through the 2018 memo, that USCIS fundamentally conflated the requirement of employment in a specialty occupation with requiring evidence of non-speculative work assignments for the duration of the visa. To assess the legitimacy of requiring such evidence as a requirement of establishing a specialty occupation under the regulations, the court made a noteworthy distinction between “occupation” and “jobs”. It affirmed that Congress enacted a definition of occupation and an occupation consists of various levels requiring varied job duties. Hence, as long as the employment is in the specialty occupation, there is no requirement in the definition to prove that the daily assignments will be part of the specialty occupation.

The USCIS argued that the requirement is based on its interpretation of its own regulation, i.e the fourth prong of the specialty occupation definition  at 8 CFR  214.2(h)(4)(ii)(4) which justifies their new requirement to satisfy that the day to day assignments qualify as specialty occupation rather than satisfying that the occupation qualifies as a specialty occupation:

(4) The nature of the specific duties [is] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Judge Collyer noted that first, all the four prongs are in alternative to each other, and secondly, the wording “nature of specific duties” in the fourth prong does not in any way change the requirement of a bachelor’s degree in other three prongs. Hence, the court noted that the fourth prong provides a situation where despite the foreign worker not having a bachelor’s degree, the position can qualify as a specialty occupation. It also noted that the USCIS cannot extend it as a policy to all H-1B visa holders requiring the description of the assignments for the whole duration and such interpretation of the fourth prong of the specialty occupation of its own regulation is “plainly erroneous”.

As to itineraries in case of placement at more than one location, 8 C.F.R. §214.2(h)(2)(i)(B) reads as follows:

Service or training in more than one location. A petition which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with the Service office which has jurisdiction over I-129H petitions in the area where the petitioner is located. The address which the petitioner specifies as its location on the I-129H petition shall be where the petitioner is located for purposes of this paragraph.

While interpreting the above-mentioned regulation, the itinerary memo of 1995 was issued which clearly stated that “the regulation does not require that the employer provide the Service with the exact dates and places of employment” and that the “[t]he itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States”.

The former Immigration and Naturalization Service  followed this interpretation of the regulation for more than two decades. Precipitously, in February 2018, the USCIS issued the above-mentioned new policy memorandum superseding the 1995 memo. Interestingly, the new February 2018 memo also interprets the same regulations quoted above and notes that “[t]here is no exemption from this regulatory requirement. An itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services”. (Emphasis added)

Plaintiffs in IT Serve Alliance v. Cissna raised the itinerary question and the court agreed with plaintiffs’ contention that the concern regarding non-availability of the work for the duration of the visa has already been addressed by the Congress through ACWIA 1998 which authorizes employers to place H-1B holders in the paid non-productive state. While referring to §212(n)(2)(C)(vii)(III), the Court concluded, “therefore, the itinerary requirement in the INS 1991 Regulation, as adopted by INS and now enforced by CIS pursuant to its 2018 Policy Memorandum, has been superseded by statute and may not be applied to H-1B visa applicants.”

As to the USCIS’s authority to issue approvals for less than three years, the court in ITServe Alliance v. Cissna  interpreted the plain text of the regulation to mean that the regulations (i) do not require USCIS to deny or grant the petition in its entirety; (ii) “up to three years” allows USCIS to approve petitions for a lesser duration. However, the court noted that USCIS has been following a practice to issue approvals for full three years and now if it will grant the approval for less period, it has to be supported with a “legitimate reason”.

More recently, a settlement was reached between the USCIS and plaintiffs of ITServe Alliance which invalidates the 2018 policy. Under this settlement, firstly, USCIS is required to rescind “in its entirety within 90 days” the 2018 Contract and Itinerary Memorandum. Secondly, USCIS agreed to “re-open and adjudicate” individual agency decisions on H-1B adjudications that were the subject of the ITServe Alliance lawsuit against USCIS (i.e., primarily the cases of its members). Thirdly, in deciding the cases again, “USCIS agrees that it will not apply the interpretation of the current regulatory language . . . defining ‘United States employer’ to require an analysis of employer-employee relationship under common law, and USCIS agrees to comply with Judge Collyer’s March 10, 2020, decision in ITServe Alliance, Inc. v. Cissna.” Fourthly, in adjudicating the cases again, “USCIS will not issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner, unless such decisions include or are accompanied by a brief explanation as to why the validity period has been limited and in compliance with Judge Collyer’s March 10, 2020, decision in ITServe Alliance, Inc. v. Cissna.”

Serenity Info Tech, Inc. v. USCIS

Serenity Info Tech, Inc. v USCIS is the most recent case, where the court specifically deployed Kisor analysis. The plaintiffs in this case are information technology consulting services companies. The USCIS denied the H-1B petition filed by Serenity Info Tech on two grounds:  (i) that the plaintiff failed to meet the definition of the “employer” under the regulations, and (ii) that the plaintiff failed to show specific and non-speculative qualifying assignments in a specialty occupation for the entire time requested on the petition. The issues in this case, similar to ITServe Alliance, hinged upon the USCIS’s interpretation of the term “employer-employee relationship” and the term “itinerary” as provided in the regulations and as applied by the USCIS.

The court analyzed the litany of policy memo issued by the USCIS since 1995 including the 2010 employer-employee memo up until the 2018 contracts and itinerary memorandum. The court noted that the 2010 memo listed numerous documents that could be used to demonstrate the employer-employee relationship. However, the memo also specifically clarified that while requesting additional evidence, the adjudicator should not request a specific type of evidence unless required by the regulations. As discussed earlier, the 2018 memo did not rescind the Employer-Employee memo but was intended to be read together with it.

The plaintiffs argued that the 2018 memo essentially departed from the 2010 employer-employee memo as it insists on a demonstration of not just “right to control” but “actual and exclusive control” over the day to day activities which is ultra vires the regulations. The suit also challenged the detailed itineraries requirement established under the 2018 memo.

While deciding if the 2018 memo is a legislative rule or mere interpretative rule, the court distinguished from Judge Collyer’s reasoning in ITServe v Cissna. Judge Collyer in ITServe ruled that the 2018 memo indeed is a legislative rule as “it attempted to impose legally binding obligations on regulated entities”. The Serenity court held that the 2018 memo is only an interpretive rule as it rescinded the 1995 memo which was an interpretive rule.

The court condensed the issue to a narrower ground of agency’s interpretation of “employer” and “itinerary” provided under the regulation and as applied by the USCIS in the cases before the court and if it warrants any deference under Auer.

The court applied Kisor to decide if the agency’s interpretation of the regulations deserves any deference and delved into an independent inquiry starting with if the regulations are ambiguous. Since the court in Serenity InfoTech held that the 2018 policy was an interpretive rather than a legislative rule, Kisor analysis was needed to determine whether the 2018 policy deserved deference or not.  The court discarded  USCIS’s argument that even though the term “employer” is defined in the regulations, the terms “employee”, “employed”, “employment” or “employer-employee relationship” are not defined. Rather, the court clarified that the absence of definition does not amount to ambiguity. The regulations provide “ample guidance” to determine if the employer-employee relationship exists.

The court pointed out that the fundamental flaw with the USCIS’s interpretation is that it obliterates all the other criteria mentioned in the regulations to establish an employer-employee relationship and focuses only on the “control” criteria. The court stated that USCIS’s focus on “control” elevates that one factor above other factors. Doing so goes against the rule of construction “ejusdem generis” which requires that the following words in a statutory formation should be defined by reference to the preceding words. Thus, the court noted that the interpretation that emphasizes one criterion to the derogation of others is in contradiction of plain language of the regulations and therefore is “not worthy of deference”.

The court further noted that even though the 2010 employer- employee memo incorporates common law, it specified that “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive”. In fact, the 2010 employer- employee memo provides guidance to evaluate the factors enumerated using a totality-of-the-circumstances test while determining if the employer established the “right to control” over beneficiary’s employment. Therefore, the agency’s fixation with the “ability to control manner and means in which the work product of the beneficiary is accomplished” is just one factor even under the 2010 employer-employee memo.

The USCIS in Serenity Info Tech argued that the detailed itinerary requirement under the 2018 memo is more in alliance with the plain language of the regulation than the guidance under the 1995 memo which interpreted that the plain language of the regulation allows accepting a general statement regarding proposed employment. The court ruled that as the regulations unambiguously list what the itinerary must include, the agency’s itinerary interpretation also fails at the first step of Kisor analysis because there is nothing to interpret.

Further, the USCIS contended that the agency gets the regulatory basis to request a detailed itinerary from the fact that this information is imperative to demonstrate (i) non-speculative employment; and (ii) that the employees will be serving in a “specialty occupation”.

The court noted that by requesting day to day activities, the agency is conflating “non-speculative employment with non-speculative work assignments” and there is no such requirement in the statute or the regulations to request day to day assignments. And as to the USCIS’s reliance on the fourth prong as the regulatory basis to require detailed itinerary as evidence of specialty occupation, the court agreed in essence with Judge Collyer’s decision in ITServe Alliance specifically noting the distinction drawn between “occupation” and “job”.

It further noted that even though it is the “agency’s prerogative to ascertain generally whether the beneficiary will actually be serving in the purported specialty occupation but does not extend to micro-managing every aspect of the occupation’s duties.” The court also acknowledged the impracticability of expecting US employers to be able to “identify and prove daily assignments for the future three years for professionals in specialty occupation.”

In conclusion, the court decided that the regulations are clear and there is no basis in the statute or the regulations to submit day to day specific work requirements for the duration of the visa requested. Hence, the agency’s interpretation of the unambiguous regulations owed no deference.

We now analyze court cases that have relied on Kisor  to overturn “specialty occupation” denials.

Inspectionexpert Corporation v. USCIS

Inspectionxpert Corporation v. USCIS is a fine example of how Kisor has limited the scope of Auer deference. At issue was the interpretation of the provision 8 C.F.R §214.2(h)(4)(iii)(A) (referred to as “the Provision” in the decision). This provision states the four criteria under which an employer can establish that the occupation qualifies as a specialty occupation for H-1B purposes. The key question was whether the USCIS’s requirements of a degree in one singular subspecialty warranted deference. In this case, the petitioner challenged the denial of the H-1B petition based on the education requirements of the petition for the proffered position of a Quality Engineer. The requirements for the position were “a bachelor’s degree in Mechanical Engineering, Computer Science or a related technical or engineering field”. The USCIS denied the petition noting that:

the field of engineering is a broad category that covers numerous and various specialties, some of which are only related through the basic principles of science and mathematics, e.g nuclear engineering and aerospace engineering. Thus, a general degree in engineering or one of its other subspecialties, such as civil engineering or industrial engineering, is not closely related to mechanical engineering.

The issue at hand was USCIS’s reliance on the interpretation of the Provision to conclude that “a general degree in engineering or one of its subspecialties” as required by the position does not qualify as a specialty occupation under the Provision. The court relied on the Kisor test to decide if the USCIS interpretation requires deference. The petitioner argued that the plain language of the Provision suggests that reference to the bachelor’s degree implies a generic degree requirement. The court delved into the legislative history of the immigration statutes spanning over thirteen (13) pages before making an analysis on the issue and concluding why the USCIS’s interpretation does not warrant deference. The court disagreed with petitioner’s argument noting that it is in contravention of the “history and structure of the H-1B regulations” and affirmed that the “statutory and regulatory framework compels USCIS’s reading under which ‘the position at issue must require the attainment of a bachelor’s or higher degree in a specific specialty”.

However, the court still ruled in favor of the petitioner, and  specifically pointed to the 1990 Rule where the former INS specifically mentioned that:

The Service’s interpretation over the years has been that the common denominator for determining that an occupation is a profession is the requirement of at least a baccalaureate degree awarded for academic study in a specific discipline or narrow range of disciplines.

Citing to the above, the court noted that the historical administrative practice of the agency clearly shows that the interpretation followed by the USCIS in this decision does not reflect its “authoritative” or “official position”. The USCIS tried to backtrack its position on which the denial was based by emphasizing that the USCIS does not impose the one-degree rule. It only maintains that it cannot be a general degree. The court noted that concluding an engineering degree requirement as a generalized degree confirms the unreasonableness of the interpretation relied upon by the USCIS in the decision. The court noted that the INA defines professions (later substituted for specialty occupation) at a categorical level such as lawyers. It does not specify the specialty occupation as a “tax lawyer”. More importantly, it specifically includes “engineers”. The court also emphasized on the USCIS’s reasoning of not including “liberal arts degree” as its broadness whereas engineering was specifically noted and included as a profession/specialty occupation.

The court concluded that a denial on the basis that an engineering degree is a generalized requirement is tenacious and “contrary to the statute and the Agency’s past practices”.

Besides, there have been multiple other recent decisions that reflect a trend of successfully challenging USCIS’s denials of specialty occupation in broad violation of the statutory and regulatory text and also in contradiction of its own practice even if Kisor has not been specifically invoked. Below are two examples.

India House Inc. v. USCIS

In  India House v. USCIS, the court held that a General Operations Manager position requiring a bachelor’s degree in Hospitality Management or a directly related field qualifies as a specialty occupation. The court distinguished this case from Royal Siam Corp. v. Chertoff, 484 F.3d 139 (1st Cir. 2007) which established that a general-purpose degree such as a business administration degree is not a specific degree. The court noted that the requirement of a degree in Hospitality Management is a specific degree as the curriculum is dedicated specifically to food services and hospitality management which unlike a generic business administration degree cannot be used for any other institutional management The court also emphasized that even though the USCIS is not bound by its prior approvals, it is worth noting that it approved the petition twice in the past for the same position for the same petitioner and the beneficiary. Hence, as there is no change in the law or regulations and the USCIS has not accepted that the issuance of the prior H-1B visas was erroneous, there is no explanation as to how a position that was a specialty occupation in the past suddenly does not qualify to be so now and would constitute abuse of discretion.

Taylor Made Software Inc. v. USCIS

Taylor Made Software Inc v. USCIS  involved a position of Computer Systems Analyst where the USCIS denied the petition relying on OOH that many Computer Systems Analysts have a liberal arts degree and hence the occupation does not require a bachelor’s level training in a specific specialty. The court disagreed and noted that the regulatory criterion is not that a bachelor’s degree or its equivalent in a specific field is “always” required rather it states that bachelor’s degree or its equivalent is “normally” the minimum requirement for entry into the occupation. Therefore, the OOH language that “most” computer systems analysts have a bachelor’s degree in a specific field is the typical baseline.

In conclusion, the Supreme Court’s decision in Kisor has proved to be more potent than originally envisaged, where the courts are no longer paying traditional Auer deference and are instead reversing H-1B denials based on the USCIS’s erroneous interpretation of its own regulations. In addition to Kisor, the authors also acknowledge the brilliance and perseverance of ace litigators Jonathan Wasden and Bradley Banias who tenaciously fought many of these cases that brought down the house of cards that the government has stealthily built on shaky foundations with the sole purpose of obstructing meritorious and legitimate H-1B cases.

 *Guest author Sonal Sharma is a Senior Attorney at Jethmalani & Nallaseth PLLC in New York. Her practice involves both temporary nonimmigrant visa and permanent employment cases. She represents and advises clients – medium to large multinational corporate entities – from a wide variety of industries on intricate and comprehensive immigration matters.

 

 

Cyrus Mehta

What Kisor v. Wilkie Means For Auer Deference and USCIS’s Interpretation of its Regulations Relating to H-1B Visa Petitions

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By Cyrus D. Mehta and Sonal Sharma*

In Wilkie v. Kisor, the Supreme Court issued a significant decision regarding whether courts should still be paying deference to the government’s interpretation of its own regulations. Here’s some background on how we got to this deference standard.

Over 35 years ago, the Supreme Court established a two-step analysis in Chevron USA Inc. v. Natural Resources Defense Council for evaluating whether an agency’s interpretation of a statute it is entrusted to administer is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further.  Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute.  A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.

In Auer v. Robins, the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations.

It was thought that Kisor would strike the death knell for the Auer deference, but instead, the plurality provided more guidance on how to apply Auer and under what circumstances may a court not pay deference to the agency’s interpretation of its regulations notwithstanding Auer.  The Kisor court opinion holds that the Auer doctrine “is potent in its place, but cabined in its scope”. Specifically, Justice Kagan noted that “this Court has cabined Auer’s scope in varied and critical ways-in exactly that measure, has maintained a strong judicial role in interpreting rule.” During oral arguments, Justice Gorsuch identified concerns of particular regulated classes such as “immigration lawyers” because it allows agencies to adopt binding interpretations without prior notice to the regulated entities. Justice Gorsuch touched the point at the heart of the opposition of Auer deference by noting that it comes in the way of courts performing their duty entrusted upon them under the Administrative Procedure Act (APA) “to ‘decide all relevant questions of law’ and ‘set aside agency action’”. Despite the doubts, the Court decided that Auer deference is not “unworkable” and hence not required to be abolished entirely. However, it is required to be confined in its application.

The question before the Supreme Court was how much weight courts should give to an agency’s interpretation of its regulations. Auer deference rests on the presumption that even though not explicitly assigned, Congress intended that government agencies interpret  regulations that have been crafted to implement the statute.

What happens when such a regulation itself is ambiguous? Who gets to decide what it means. For long, it has been established under Auer that administrative agencies are better suited to interpret such ambiguous gaps in their own regulations based on their “substantive expertise in the subject matter”.

In Kisor, Justice Kagan noted that the Supreme Court in Seminole Rock (which later became Auer deference) declared that “ [w]hen the meaning of [a regulation] is in doubt,” the agency’s interpretation “becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.”. Justice Gorsuch concurring in the opinion noted that  under the APA, the courts are directed to “determine the meaning of the any relevant agency action including any rule issued by the agency”. He further noted that under Auer deference, a court “adopts something other than the best reading of a regulation”. Critics of  Auer deference have said that it takes away the fundamental authority of the court to decide what the actual interpretation of the law is. Under Kisor, the Supreme Court announced that Auer deference is now a “general rule” which will need analysis and scrutiny before it applies in a case.

The Supreme Court essentially “cabined the scope” of Auer deference, and set forth a  three-step approach under Kisor. The court must determine that (i) the regulation is “genuinely ambiguous”- the court should reach this conclusion after exhausting all the “traditional tools” of construction; (ii) if the regulation is in fact genuinely ambiguous, whether the agency’s interpretation is reasonable; and (iii) even if it is a reasonable interpretation, does it meet the “minimum threshold” to grant the Auer deference requiring the court to conduct an “an independent inquiry” into if (a) it is an authoritative or official position of the agency; (b) it reflects its substantive expertise; (c) if the agency’s interpretation of the rule reflects “its fair and considered judgment”.

What kind of impact will Kisor have on challenges to recent USCIS denials?

There has been a surge in denials of H-1B petitions mostly on the basis that either the position doesn’t qualify as a specialty occupation or there is no employer-employee relationship because the beneficiary is placed at the third-party client location. AILA had filed an amicus curie brief in Kisor highlighting how Auer deference allows the agency to “circumvent the critical requirements of APA” especially by just changing the standards of review or interpretation of the regulations without public notice and comments. It also brought to the attention of the Court that Auer deference has been followed by courts, challenging the agency’s arbitrary decisions, so liberally that the courts deferred to the agency interpretation “based on nothing more than a brief filed in court, a letter posted on a website, or an internal memorandum sent to agency staff.”  USCIS has been adopting a new interpretation of the regulations by just issuing internal memos and under the earlier deference standard, the courts have been allowing and accepting such interpretations.

Under the new Auer deference standard set forth in Kisor, a federal court will need to assess if that is the authoritative/official position of the agency. Because of these recent developments, it will be interesting to see how the agency will respond to the question regarding what has been their official position in approving these H-1B petitions for decades and how it has now changed without any change in the statute or regulations. All the recent policy memos shifting the USCIS’s position are not aligned with its prior statements, memos, and opinions. One example of such a shift is the memo issued in February 2018 relating to third-party worksites placements. The policy has been analyzed in detail in an earlier blog post here. With the issuance of this memo, USCIS rescinded three earlier memos, which provided guidance relating to supporting documents for H-1B petitions and also the itinerary requirements for the petitions involving more than one location. The USCIS issued this memo to be read as a supplementary guidance to the Employer-Employee Memo of 2010.

As to itineraries in case of placement at a location more than one, 8 CFR 214.2(h)(2)(i)(B) reads as follows:

Service or training in more than one location. A petition which requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with the Service office which has jurisdiction over I-129H petitions in the area where the petitioner is located. The address which the petitioner specifies as its location on the I-129H petition shall be where the petitioner is located for purposes of this paragraph.

While interpreting the above mentioned regulation, the Itinerary memo of 1995 was issued which clearly stated that “since the regulation does not require that the employer provide the Service with the exact dates and places of employment” and that the “[t]he itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States”.

The Service followed this interpretation of the regulations for more than two decades. Precipitously, in February 2018, the USCIS issued the above mentioned new policy memorandum superseding the 1995 memo. Interestingly, the new February 2018 memo also interprets the same regulations quoted above and notes that “[t]here is no exemption from this regulatory requirement. An itinerary with the dates and locations of the services to be provided must be included in all petitions that require services to be performed in more than one location, such as multiple third-party worksites. The itinerary should detail when and where the beneficiary will be performing services”. (Emphasis added)

There is clearly a stark difference in the approach of the two memos interpreting the same regulations. The 2018 memo has already been challenged in court. See IT Serve Alliance v USCIS. It will be noteworthy if the Service would rely on Auer deference on this issue. Apparently, in their supplemental response brief in this litigation, the USCIS raised an argument of argumentum ad antiquitatem which means “this is right because we’ve always done it this way”. Does it mean that the USCIS essentially invoked the Auer deference (even if not in clear terms) arguing that this is agency practice to interpret its own regulations even if it is in contrast to its previous interpretation? Under the new standard, the court will have to make an independent inquiry as to reasonableness of the interpretation especially in this case when under the garb of it being an interpretive rule, the agency has tried to promulgate a legislative rule, which amends and adopts a new position inconsistent with the existing regulations. Under the new Kisor standard, the court will be equipped to delve into these inquiries and make a determinative finding if the deference is warranted.

With the surge in H-1B denials, there is also a rise in federal litigation challenging USCIS’s arbitrary interpretation of the regulations. One such case is Flexera Global Inc. v. USCIS, in which the plaintiff has sued USCIS after receiving multiple short-term approvals. USCIS has been rigidly enforcing an itinerary requirement relying on the February 2018 memo to issue approvals ranging from only a few months or weeks to even a few days (as short as one (1) day), despite requesting a full three-year validity period as allowed under the regulations. USCIS filed a motion to dismiss in this case asking the court to rule if under the regulations USCIS has the authority to issue short-term H-1B approvals and whether it needs to explain itself when doing so. USCIS has relied on 8 C.F.R. § 214.2(h)(9)(iii)(A)(1), which authorizes the agency to approve a petition for “up to three years”. The regulation reads as follows:

H-1B petition in a specialty occupation. An approved petition classified under section 101(a)(15)(H)(i)(b) of the Act for an alien in a specialty occupation shall be valid for a period of up to three years but may not exceed the validity period of the labor condition application.

USCIS has argued that when reasonably interpreting “up to three years” in the regulations, it has the authority to issue approval less than three years based on the evidence submitted by the petitioner as to period of the specific work assignments.

The plaintiff in response to a motion to dismiss has argued that the plain language of the regulations requires the agency to approve the petition for full three years. It can only be less than three years when granting three years will exceed the validity of the labor condition application. In 1998, USCIS proposed a rule, Petitioning Requirements for H Nonimmigrant Classification, 63 Fed. Reg. 30419, in an attempt to codify the prohibition on speculative/non-productive status through notice and comments rulemaking. It abandoned the proposed rule when Congress essentially denied its regulatory approach by passing the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”), Title IV, Pub. L. 105-277 (October 21, 1998) codified at INA 212(n)(2)(C)(vii)(III).

Plaintiff has also argued that the requirement of demonstrating a specific work assignment for the requested validity is contradictory to INA 212(n)(2)(C)(vii)(III), which fixed the benching problem by expressly requiring employers to pay the prevailing wage to workers whether or not they are in productive status. Congress unequivocally entrusted DOL with the authority enforce the non-productive status provision through enforcement actions against employers.

The response to motion to dismiss also highlights a practical problem these short approvals are creating for the families of the H1-B beneficiaries which definitely was not the intention of the Congress. So, requesting specific work assignment evidence for a specific duration defies the Congressional mandate acknowledging the non-productive periods and DOL’s authority to regulate it.

Hence, USCIS practically has requested the court to defer to its interpretation of the above referenced regulation. However, under Kisor now, the court will delve into three-prong test explained earlier in the post.

There are numerous examples where USCIS has either have issued policy memos contradictory to its earlier position or have attributed a new interpretation to the regulations, which is inconsistent with its long-standing practice. Another example is “employer-employee relationship” issue.

The 2010 Employer-Employee memo referred to 8 CFR 214.2(h)(4)(ii) noting that the regulations do not provide enough guidance on definition of employer-employee relationship. It is worth noting here that the regulations does provide a regulatory definition of an “Employer” at 8 C.F.R. 214.2(h)(4)(ii). The memo also specifically states that USCIS interprets it to be “conventional master-servant relationship as understood by common-law agency doctrine”. Despite the clear definition in the regulations and the agency’s official position that the common law standard applies, the agency has been interpreting the regulations much more restrictively and has been issuing the denials based on the lack of evidence of employer employee relationship even when it meets the standard mentioned in the regulations and common law. If USCIS will raise the Auer deference for the restrictive interpretation of the regulatory definition of “employer”, the court will have to go into a deep analysis of the regulations first to see if the definition of “employer” is ambiguous. Given the fact that the regulations recognize the possibility of employment at more than one location, argument that it is ambiguous as to the third party placement would not fly.

Under the new framework applicable for Auer deference, “Agency consistency” will play an important role. It will be hard for USCIS to explain how it has been changing its long-standing position and interpretation of the regulation without any statutory basis.

The regulated entities such as employers of H-1B workers have been deeply impacted by the earlier approach as it takes away the transparency from the process and deprives them of regulatory stability to plan for their business activities. For example, an H-1B holder has been working with a company for the last 10 years as software developer, which USCIS has long considered a specialty occupation. Suddenly, without any change in the statue or regulations and in blatant contrast to its earlier interpretation of the regulations under which it has approved multiple petitions for this candidate establishing that position of software developer qualifies as a specialty occupation, denies the petition declaring it not a specialty occupation. If that decision is challenged before the court and USCIS raises the Auer deference, the court now will first look at the definition of the “Specialty Occupation” and the criteria laid down in the regulations. At first step itself, the USCIS will have a challenge explaining the denial because the USCIS Adjudicator’s Field Manual (“AFM”) 31.3 (g) provides:

[A]lthough the definition of specialty occupation is included in the statute itself and the regulations are specific regarding the criteria for determining what qualifies as a specialty occupation…

Keeping this in mind coupled with the earlier decisions approving the same position as the specialty occupation, the court will now assess that if the statue and the regulations are not “genuinely ambiguous” then it should be interpreted “as is”. Even if USCIS can pass muster at the first step and second step of reasonableness, it will be troublesome for USCIS to justify the third step of the analysis, where the a court will take into consideration if it is an authoritative or official position of the agency; (b) it reflects it substantive expertise; (c) if the agency’s interpretation of the rule reflects “its fair and considered judgment”. As discussed in a prior blog, 8 C.F.R. § 214.2(h)(4)(iii)(A) combined with INA 214(i)(1) clearly provides a broader definition of specialty occupation. The definition and requirements for qualification as specialty occupation has been analyzed by the courts in multiple cases such as Tapis International v INS, 94 F. Supp. 2d 172 and Residential Finance Corp. v. USCIS, 839 F. Supp.2d. 985(S.D. Ohio 2012). Despite the fact that the four criteria’s are in alternative, USCIS has been interpreting and applying the regulations in an erroneous way. The regulations nowhere mention that a bachelor’s degree in a specific specialty is a “must”. Rather, the regulations specifically mention that it is “normally” required or is a “common” requirement. If the USCIS were to raise Auer deference as to their interpretation of regulatory language “normally” or “common” to mean, “must”, the court will not defer to the agency’s interpretation of their own language. In most likelihood, under the first step of the Kisor analysis, the court will be able to establish the regulations are not ambiguous. It is as clear as it can be. Under the second step, it will be stimulating to see how the Service will justify the reasonableness of inventing a new meaning of simple words that gives away the legislative intent with the plain dictionary meaning.

A great example of a federal court applying Kisor in an immigration case is the recent Fourth Circuit decision Romero v Barr. The court in Romero overturned Matter of Castro-Tum where the Attorney General had issued an opinion that the IJ’s and BIA do not have the authority under the regulations to close the cases administratively. The court  first held the plain language of 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confers upon IJs and the BIA the general authority to administratively close cases such that an Auer deference assessment is not warranted. Even if these regulations are ambiguous, the court citing Kisor noted that Auer deference cannot be granted when the new interpretation results in “unfair surprise” to regulated parties especially when agency’s current “construction “conflict[ing] with a prior” one.” The Romero court further identified that “an agency may—instead of issuing a new interpretation that conflicts with an older one—set forth an interpretation for the first time that is contrary to an established practice to which the agency has never objected.” Romero v Barr is a great example of how and to what extent Kisor has narrowed the Auer deference restoring the authority of the court to analyze in detail if deference is warranted to agency interpretation. Specifically towards the “Agency Consistency” the court noted, “numerous petitioners have relied on this long-established procedural mechanism to proceed through the immigration process. To suddenly change this interpretation of the regulation undermines the significant reliance interests such petitioners have developed”.

Another case where the court has cited Kisor standard is Sagarwala v L Francis Cissna,. The court seemed to have dived straight into the second step of reasonableness deciding that such interpretation is “typically entitled to judicial deference” citing Auer v Robins. It appears that the court deferred to agency interpretation because it was not “plainly erroneous or inconsistent” with the regulations. Eventually, the court cited Kisor and agreed that the agency decision is “fair and considered judgment” under Kisor standard. The court noted “both the statutory and regulatory definitions of “specialty occupation” state that the position at issue must require the “attainment of a bachelor’s or higher degree in [a] specific specialty.” It is important to note that the complete text in INA is attainment of a bachelor’s or higher degree in a specific specialty or its equivalent. We have previously analyzed here that how USCIS does not consider the interpretation of “or its equivalent” as interpreted by the courts. At core of this case was whether the education requirements of the position were too broad. Perhaps, the plaintiff could not justify the requirements, which led the court to decide that USCIS reading is a reasonable one. Even if the result would have been same, it appears that the court did not conduct a comprehensive inquiry into the issue as required by the Kisor standard.

Further, the court in Sagarwala just assumed that the agency has the “substantive expertise”. It would have been true under Auer deference; however, we believe that Kisor changes that notion. Now, if the court has to delve into specific inquiry about the ambiguity of the regulations and the reasonableness of the interpretation, we believe that it also will be under court’s purview to assess if the agency truly has the substantive expertise, not generally as the regulating agency but on the specific technical requirements of the position to determine if the position is “complex enough” under one of the specialty occupation criteria especially when the agency always resort to discretion on a case to case basis.

We believe that under the Kisor standard, it will be hard for USCIS to argue that it has the substantive expertise over an opinion of an expert – in most cases a professor who has decades of experience in teaching and consulting in the specific field. In most cases, the USCIS wrongly disregards the opinion of a well-established expert with expertise through decades of years of demonstrated relevant experience, research, and study in contravention of the AAO decision in Matter of Skirball Cultural Center, ID 3752, 25 I&N Dec. 799 (AAO 2012), where it held that uncontroverted testimony of an expert is reliable, relevant and probative as to the specific facts of the issue. In fact, it does so without providing a cogent reason to reach the conclusion that the expert’s review of the duties of the position was “limited”. Often times, USCIS while disregarding the Expert Opinion relies on that the fact because the Expert did not visit the location and has only relied on the materials provided by the employer, the opinion is not credible enough. Under the Federal Rules of Evidence, Rule 702, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:

  1. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  2. The testimony is based on sufficient facts or data;
  3. The testimony is the product of reliable principles and methods; and
  4. The expert has reliably applied the principles and methods to the facts of the case.

It is interesting to note that under these federal rules, an expert may base his/her opinions on facts or data that he has been made aware of (like providing detailed job duties to the expert for H-1B petitions) or upon using reliable principles and methods (like an expert’s extensive knowledge and experience in the field). According to the USCIS that is not a good enough standard for an expert professor to opine on whether the duties and job responsibilities of the position would require having the knowledge that is generally imparted through a bachelor’s degree in a specific field. Under the Kisor standard, the court should be able to analyze whether the expert opinion based on the detailed information provided by the employer is credible and sufficient to rule that the Expert has the substantive expertise on the matter than the agency where the adjudicating officer might not have the technical background to assess whether the duties are complex enough to meet the statutory and regulatory requirements.

Further, how will it justify the “fair and considered judgment” prong in Kisor when the agency blatantly disregard all the evidence presented under all the four regulatory prongs at 8 CFR 214.2(h)(4)(iii)(A) that establish a specialty occupation even though only one of the four criteria need to be met?

Under the ‘Buy American Hire American’ Executive Order, USCIS has been issuing new policies, based upon their current interpretation of regulations. The common denominator in challenging all these policy memos is that the regulations have not changed. Another example of a policy shift despite no change in statue or regulations is the new RFE and NOID memo. 8 CFR 103.2(b)(8) provides discretion to the adjudicating officer to issue RFEs and NOIDs in appropriate circumstances, OR to issue a denial without first issuing an RFE or a NOID in some circumstances. It is significant to note that the regulations (8 CFR 103.3(a)(i)) specifically mention that the discretion is not unfettered and the officer shall explain in writing the specific reasons for the denial. The regulations mention that the applicant or petitioner has to demonstrate the eligibility of the requested immigration benefit and demonstrating eligibility means each benefit request must be properly completed and filed with all initial evidence required by applicable regulations and other USCIS instructions. It also clarifies that the Burden of Proof lies with the applicant/petitioner to prove qualification for the requested benefit.

In June 2013, after the OIG published report requesting clarification as to when an RFE has to be issued, USCIS issued a memo clarifying to issue RFE or NOID unless denial is warranted by the statute. Under the 2013 memo, the emphasis was- an RFE is not to be avoided; it is to be used when the facts and the law warrant- to ask for more information and as to standard of discretion, it clarified that if totality of the evidence submitted does not meet the applicable standard– the officer should issue an RFE unless he or she determines there is no possibility that additional evidence available to the individual might cure the deficiency. The effect of the policy memo was only statutory denials could be issued without RFE. In July 2018, USCIS issued a new policy memo governing these issues, which superseded all earlier memos. The major turnaround on the policy under this memo was to restore the full discretion of the adjudicating officer to deny the cases not only when warranted statutorily but also due to a lack of initial evidence. It will be rousing to see if challenged in court how would USCIS defy that they have been reading and applying the regulations in a certain way and then suddenly decide to interpret it in a more restrictive way.

It is clear that the USCIS has been trying to override the legislative power of creating the law through expansive and erroneous interpretations of its own regulations rather than the delegated authority of implementing the law passed by the Congress. Multiple cases have been filed on grounds that USCIS has abused its discretion and the authority under the Auer deference by issuing inconsistent guidance and raising the evidentiary standards. If the agency will rely on the Auer deference in future H-1B litigation, plaintiffs who challenge denials should definitely invoke Kisor, which hopefully will create an uphill battle for the agency to fight and justify the change in its interpretation of a regulation as not just reasonable but also official, consistent, fair and considered. Our blog has provided potential plaintiffs with an overview on how to invoke Kisor in limiting Auer deference when seeking review in federal court over arbitrary H-1B denials.

 

* Guest author Sonal Sharma is a Senior Attorney at Jethmalani & Nallaseth PLLC in New York. Her practice involves both temporary nonimmigrant visa and permanent employment cases. She represents and advises clients – medium to large multinational corporate entities – from a wide variety of industries on intricate and comprehensive immigration matters.