Tag Archive for: not counting family members

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

SQUARING THE IMMIGRATION CIRCLE: NEW HOPE FOR AN OLD SYSTEM

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By Gary Endelman and Cyrus D. Mehta

The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by  Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed in the area of high-skilled immigration. Soon employers will be scrambling again on April 1, 2015 to file their H-1B petitions in the hope that they will be selected in the cap lottery. H-1B numbers will get exhausted six months before the start of the new fiscal year on October 1, 2015. The I-Squared Act will raise H-1B numbers so as to avoid these unnecessary scrambles for the H-1B visa. What is unique is that the H-1B numbers will not be the subject of an arbitrary cap just picked from a hat, but will fluctuate based on actual market demand. The cap will not go above 195, 000, but not below 115,000.

Among the bill’s provisions are the following, although we refer readers to Greg Siskind’s detailed summary:

  • Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.
  • Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.
  • Authorizes employment for dependent spouses of H-1B visa holders.
  • Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.
  • Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.
  • Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.
  • Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.
  • Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will likely not be able to do it anywhere else. The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will surrender the high ground that America now occupies.

Until now, the ever-increasing fees and hyper-regulation imposed by Congress and the USCIS on H-1B employers have been justified by the simple but stubbornly held, if unstated, conviction that the hiring of foreign workers is contrary to the national interest and should be punished. Beyond that, the USCIS and DOL, not to mention the legacy INS, have always and continue to believe that the infliction of such punishment was the best, perhaps the only way, to shield US workers from such “illicit” activity. No government should have to apologize for trying to protect its own citizens. The true objection to what the USCIS and DOL have done is that their efforts, however well intentioned, have done precious little to help, but much to hurt, the very objects of their stated concern.

What is also remarkable about the I-Squared Act is that it raises the H-1B cap without undermining the H-1B visa program the way we know it. Unlike what S. 744 tried to do to muddy the H-1B visa, there are no provisions that would force employers to pay higher than market wages, or subject dependent employers to artificial and onerous recruitment requirements. The bill also incorporates ideas that have been floated in the context of bringing about administrative reform. Most notable is that I Squared exempts dependents from being counted in the employment-based preferences, which is something that we have advocated for several years. It is always preferable if Congress is able to bring about this change than to have the Administration find a justification for not counting family members under the current INA, and possibly even being sued for doing so. The bill also seeks to recapture unused visa numbers, and these have been estimated to be at least 200,000.

The bill would also allow for early adjustment filing by deeming an immigrant visa to be immediately available if the visa has not been used up during the fiscal year. This is precisely what we have also been advocating for facilitating early adjustment filings administratively. So long as there is even one visa that has gone unused, there should be a deeming of visa availability, thus allowing a foreign national to  be able to file an early adjustment of status application before the State Department’s Visa Bulletin announces them current. Of course, if Congress can bring about the innovation through the I Squared Act, so much the better. This redefinition of visa availability would also inject new and badly needed relevancy into the age-freezing formula of the Child Status Protection Act which, despite petition approval, does not operate where there are visa backlogs. Under the Child Status Protection Act, one needs an approved petition and a visa number to freeze the age of the child. If there is retrogression after such visa availability, the age remains frozen. However, if the visa availability is redefined, then the danger of aging out is removed. It will do little good to allow the parent(s) to apply for adjustment of status if their kids age out and have to leave. Interestingly enough, the I-Squared Bill will be the one and only definition of visa availability that Congress has ever authored.

The bill will also bring some respite to H-1B workers whose jobs get suddenly terminated. At present, there is no respite and an H-1B worker is in violation of his or her status upon termination. The bill will grant a 60 day grace period if the H-1B is terminated before the I-94 expires during which time a new employer can file a petition to extend or change status. This is the first step. We also urge that Congress passed a startup visa for entrepreneurs who wish to set up innovative businesses in the US. The H-1B visa is ill-suited for startups due to the need for the employer to establish control over the H-1B worker’s employment, which is difficult to demonstrate if the foreign national is the founder and owner of the entity.

The bill will also prohibit USCIS and DOS from denying subsequent petitions, visa or applications involving the same petitioner and beneficiary unless there was a material error relating to the approval of the prior petition, a material change in circumstances has occurred or new material has been discovered which adversely affects the eligibility of the employer or the worker. Although this bill has bipartisan support, it remains to be seen whether it will pass Congress. Republicans will want to introduce an amendment to abolish the Deferred Action for Parents Accountability (DAPA) program and Democrats may want to include provisions to make it more comprehensive such as legalizing undocumented persons. If both parties want to be able to demonstrate and can get something done, it would behoove them to pass this bill so as to avoid another H-1B cap quagmire looming ahead of us. Additionally, this bill will also help to further strengthen the American economy.

Section 102 of the I-Squared Bill would allow both H-4 and L-2 spouses to work, providing them with an “employment authorized endorsement of other appropriate work permit.” Does this mean a need to get an Employment Authorization Document? Who knows?  We welcome this development even though there is nothing in the INA right now that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. While the USCIS has proposed to allow H-4 employment in select instances, the I-Squared version of H-4 employment authorization is a distinct improvement. I-Squared improves the USCIS proposed rule as it would allow H-4s to obtain EADs without preconditions. The proposed USCIS rule imposes preconditions where the principal must either have to have an approved I-140 or be filing for an H-1B extension beyond the 6th year under the American Competitiveness in the 21st Century Act. Both versions unnecessarily limit H-4 employment to spouses rather than extending it to teen age children.

Much as with the notion of a flexible H-1B cap, this reframing of visa availability is not so much an attempt to create a new immigration law as to bring new depth and definition to the existing INA, thus indicating yet again that the value of incremental change is to function as an improvement upon existing legislation. While I-Squared does not overly challenge the tyranny of priority dates, it does so indirectly by updating our understanding of visa availability and exempting  EB-1 extraordinary ability and  outstanding researchers from being subject to the crushing weight of the numerical employment based  caps, as well as advanced degree holders with STEM degrees .  The concept of family unit is advanced by not counting family members against the employment-based immigrant visa caps but it would be even better if family members were similarly exempt as a factor in the family-based quota limits.

While I-Squared does not explicitly link H-1B allotments to domestic economic conditions, it does so on a de facto basis by allowing the H-1B cap to rise or fall in connection with increases or decreases in H-1B sponsorship which themselves are a direct function of business profitability. While I-Squared does not make the H-1B truly portable, it does grant a temporary 60 day basis for the H-1B worker to find a new job without falling out of status. While I-Squared does not explicitly sanction consular reviewability, it makes it unnecessary for E, H, L, O or P visa holders to go to a consulate in the first place in order to renew their existing visas by restoring the pre-9/11 practice of visa revalidation. While I-Squared retains the INA 214(b) presumption of intending residence or immigrant intent, it exempts F-1 students from the obligation to maintain an unabandoned foreign residence abroad. Dual intent is not eliminated but students now come within the protection of its sheltering arms. The concept of the per country cap is partially retained but only on the family based side of the ledger. Let’s take the next step and extend this reductive methodology to FB quotas. The priority date system remains in place but the INA now will define visa availability so long as any visa number allocated to employment-based preference immigrants has not yet been issued for that fiscal year.  Beyond that, US advanced degree STEM holders are no longer counted against the overall EB limits. In sum, I-Squared is a classic example of legislative remediation that retains the frame of what was not working while infusing it with new meaning and greater adaptability to meet and answer the challenges of the 21st century.

This is pre-eminently a time for innovation. Try something, if that does not work, well then, try something else. True and lasting change is what America needs. In a global economy, all forms of capital, including intellectual capital, flow to their optimum destinations according to the laws of supply and demand. The American economy does not operate in a vacuum and assumptions to the contrary, the very assumptions that have dominated the nativist response to date, only enrich our foreign competitors while we all lose. The USCIS and DOL care about American workers but do not effectively express such concern through policies that make US companies less competitive and the US itself less desirable as a place for the world’s creative elite to live and work. There is a better way where everyone benefits. We can, if we think and act anew, transform immigration policy from an endless source of controversy to a flexible weapon in our economic arsenal so that everyone profits. For those who think a new way is too complex, do we not have complexity now and towards what end? For those who shrink from the demands of change, or doubt what they can do to chart a new course, let them listen to the wise words of Robert Frost in his immortal poem The Road Not Taken that can, if we have the will and wisdom to hear it, still speak to us today: ” Two roads diverged in a wood, and I – I took the one less traveled by, And that has made all the difference.”

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)

Cyrus Mehta

TWO ACES UP PRESIDENT OBAMA’S SLEEVE TO ACHIEVE IMMIGRATION REFORM WITHOUT CONGRESS – NOT COUNTING FAMILY MEMBERS AND PAROLE IN PLACE

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Nothing more poignantly describes the current humanitarian crisis at the Southwest border than a recent New York Times article describing the journey of Alejandro, 8, who came to the United States on his own with only his birth certificate looking for his parents who are somewhere in San Antonio or an aunt in Maryland. The story of an adorable, courageous and resourceful 8 year old braving a dangerous journey in search of his parents will pull at the heartstrings of any parent. 

There may be many reasons for this crisis and what may draw unaccompanied young children to the United States, but one reason for this is our broken immigration system. This system does not allow people accessible pathways to come to the United States legally or gain legal status.  Even those who are here as permanent residents or naturalized citizens have to wait years before their loved ones can join them due to the backlogs in our family and employment-based immigration preferences.  Until recently there was some hope that the House would pass its own version of immigration reform after the Senate passed S. 744 last year. Those hopes have now been dashed. 

The impetus to preserve family unity is pervasive and exists across all cultures, and so is the deep love that parents have for their children and that children have for their parents. Many of the children fleeing violence in Central American countries are trying to unite with parents living in the United States. However, the broken immigration system does not allow families to unite through legal means Instead of beefing up the border with more enforcement; President Obama can bring some balance to the immigration system through bold administrative measures that will promote family unification in a legal and orderly manner. While there are several proposals on the table, one that resonates is to not count derivative family members in the employment and family preferences. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression, resulting in family members waiting endlessly, will quickly become a thing of the past. 

Not Counting Family Members 

Section 203(d) of the Immigration and Nationality Act (INA) is the provision that deals with family members. Let us examine what section 203(d) says: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) 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.” There is nothing in section 203(d) that explicitly 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 given numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees, it makes no sense if half or more are used up by family members.  

There is no regulation in 8 Code of Federal Regulations (C.F.R.) instructing what section 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. 42.32 only parrots section 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. 42.32 does not provide further amplification on the scope and purpose of section 203(d). We acknowledge that section 203(d) derivatives are wholly within the preference system and bound by its limitations. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. 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 a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits.  

If the Executive Branch wanted to reinterpret section 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. For instance, in  Sciallaba v. Osorio: Does the Dark Cloud Have A Silver Lining, Cyrus  Mehta and David Isaacson propose that notwithstanding the Supreme Court’s recent decision concerning  section 203(h)(3) of the INA, where the Court agreed with the  Board of Immigration Appeal’s (BIA) more restrictive interpretation of this Child Status Protection Act provision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009),  the BIA has the power to reverse Matter of Wang under Brand X. Matter of Wang held that not all children who are unable to protect their age under the Child Status Protection Act can claim the earlier priority date under which their parent immigration to the United States.  

As the plurality opinion in Sciallaba v. Osorio explained in its conclusion:

This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.

Kagan slip op. at 33. 

Thus, when a provision is ambiguous such as section 203(d), the government agency may reasonably interpret the provision in a reasonable manner. In our prior article relating to not counting relatives, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm, we discussed  that  there are admittedly some statutory provisions which might be read as pointing against an interpretation to not count family members. Most notably, it has also been pointed to us that  INA section 202(b) permits a spouse or child to “cross charge” to the foreign state of either of the parents or the spouse to avoid family separation, and this may suggest that derivatives must be individually counted for purposes of the per country cap. Still, this too can be interpreted differently under Chevronand Brand X, namely, that the entire family be counted as single unit to the other spouse or parent’s country. Of course, the statutory provision which militates in favor of such an interpretation is most notably the text of INA §203(d) itself. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center!

Expansion of Parole in Place

The very idea of “parole” in section 212(d)(5) of the INA is linked to  allowing deserving aliens to come to the United States for “urgent humanitarian reasons or significant public benefit.” In most cases, we think this only applies to people who are not yet here. Not so. Digging a bit deeper into the INA, we find in section 235(a)(1) this golden nugget: an applicant for admission is “an alien present in the United states who has not been admitted…” Putting all of this together, there is nothing in law or logic that prevents the full embrace and unfettered application of parole to those already in the United States outside the color of law. The invocation of ‘parole in place” is another example of using new interpretive techniques to mine the existing law for greater benefits. It is the antidote to the inability of Congress to enact comprehensive immigration reform. There should be no concern over a possible infringement of separation of powers for the authority of Congress over the legislative process is being fully respected.  Part of the responsibility of the President to enforce the laws is to adopt an understanding of them that best promotes what Congress had in mind when it passed the law in the first place. Parole in place does precisely that. This is not amnesty. The requirements for obtaining legal status on a permanent basis apply in full. It is merely an attempt to think of the law we have not purely or primarily as an instrument of enforcement but as a platform for remediation of the human condition. Indeed, is this not how law in the American tradition is meant to function?

The creation of new solutions by federal agencies has become the norm rather than the exception in our system of governance if for no other reason that the sheer multiplicity of issues, as well as their dense complexity, defies traditional compromise or achievable consensus which are the hallmarks of Congressional deliberation. They require timely and directed executive action as a formula for keeping present problems from getting worse. This is exactly why Congress authorized the Attorney General to grant employment authorization without terms or limitations pursuant to INA 274A (h) (3)(B), a provision that should be linked with the robust exercise of the Executive’s parole power. The INA leaves the granting of parole completely up to the discretion of the Attorney General, now shifted to the DHS. It is hard to imagine a more open invitation to Executive rule- making to provide when parole can be extended, as there is absolutely nothing in the INA that would contradict a DHS regulation allowing parole in place. Not only is it appropriate for the DHS to formulate immigration policy on highly minute technical issues of surpassing moment such as parole in place, but the Constitution expects that to happen. Indeed, without this, who would do it? Far from crossing the line and infringing the authority of Congress, what we ask the DHS to do augments Congressional prerogative by providing a practical way for them to function.

In addition to not counting derivatives, the Obama Administration can extend parole in place (PIP) that has been granted to military families to all immediate relatives of US citizens, which would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility under sections 212(a)(9)(B)(i)(I) and (II) of the INA. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.

The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the current memogranting PIP to military families states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. For purposes of section  245(c) of the INA, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.

There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.

Our proposal to grant PIP retroactively so that it erases unlawful presence can also assist people who face the permanent bar under section 212(a)(9)(C) of the INA. If PIP can retroactively erase unlawful presence, then those who entered the country without inspection after accruing unlawful presence of more than 1 year will not trigger the bar under this provision if the unlawful presence has been erased.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 year, 10 year and permanent bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the bars.  Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation. 

Achieving Something Close to Comprehensive Immigration Reform Without Congress

Not counting family members and expanding parole in place can be a potent combination for nearing comprehensive immigration reform administratively in the face of Congressional inaction. The waits in the EB and FB preferences will disappear, and family members waiting abroad can unite with their loved ones more quickly and need not be forced to take the perilous path across the Southwest border in desperation. The expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would allow them to obtain lawful permanent residence, rather than being stuck in permanent limbo due to the 3 and 10 year bars. After removing the obstacle of the bars, the grant of lawful permanent residence would be more rapid as there would be no backlogs in the FB and EB preferences, and loved ones from abroad can unite with newly minted immigrants in the United States through an orderly and legal process. 

Our proposals fall squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. We acknowledge that immigration reform passed by Congress would solve more problems in a fundamental way. We seek less dramatic but no less meaningful advances through the disciplined invocation of executive initiative only because these are the ones that can be achieved sooner and with greater predictability. Our justifiable zeal for immigration reform must not blind us to the benefit of more moderate proposals. We are confident that future progress will follow in a way that minimizes disruption and maximizes acceptance. We hold fast to the distinction between prudence and absolutism, between incremental reform and revolutionary upheaval. In the long run, the American experience has been characterized more by the former than the latter and it has led to a fruitful stability that has been the envy of the world.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)