Tag Archive for: USCIS Policy Manual

Cyrus Mehta

USCIS Policy Manual Recognizes Dual Intent for Foreign Students as Expressed in Matter of Hosseinpour

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By Cyrus D. Mehta and Kaitlyn Box*

On December 20, 2023, U.S. Citizenship and Immigration Services (USCIS) issued updated policy guidance in the USCIS Policy Manual pertaining to nonimmigrant students in F and M status. An F-1 visa allows a nonimmigrant student to enter the U.S. to student at a college or university, while nonimmigrants in M status pursue training at a vocational school or other nonacademic institution. Pursuant to INA 101(a)(15)(F) and INA 101(a)(15)(M), foreign students in F and M status must “intend to depart from the United States after their temporary period of stay … and have a foreign residence that they have no intention of abandoning”.

The USCIS Policy Manual acknowledges that “The foreign residence requirement should be adjudicated differently for students than for other nonimmigrants. Typically, students lack the strong economic and social ties of more established applicants, and they plan longer stays in the United States. […] Considerations should include the student’s present intent, not what they might do after a lengthy stay in the United States”. Newly added language in the Policy Manual also makes clear that a foreign student who is the beneficiary of a labor certification or I-140 petition filed by a prospective employer can still demonstrate the requisite intent to depart the United States, stating: “A student may be the beneficiary of an approved or pending permanent labor certification application or immigrant petition and still be able to demonstrate their intention to depart after a temporary period of stay. USCIS officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or an immigrant visa petition as not necessarily impacting their eligibility for the classification, so long as the student intends to depart at the end of their temporary period of stay.” A further addition to the Policy Manual broadens the requirement that foreign students must maintain a residence abroad:

“If a student had a foreign residence immediately prior to traveling to the United States, even if such residence was with parents or guardians, they may be considered to be maintaining a residence abroad if they have the present intent to depart the United States at the conclusion of their studies. The fact that this intention may change is not a sufficient reason to deny them F classification. In addition, the present intent to depart does not imply the need to return to the country from which they hold a passport. It means only that they must intend to leave the United States upon completion of their studies. Given that most students are young, they are not expected to have a long-range plan and may not be able to fully explain their plans at the conclusion of their studies.”

This update to the Policy Manual is not only a welcome clarification for foreign students, but it also brings USCIS policy in line with consular guidance and established case law. Section 402.5-5(E)(1)(U) of the Foreign Affairs Manual, for example, instructs consular officers as follows:

If a student visa applicant is residing with parents or guardians, you may consider them to be maintaining a residence abroad if you are satisfied that the applicant has the present intent to depart the United States at the conclusion of their studies.  The fact that this intention may change is not sufficient reason to deny a visa.  In addition, the present intent to depart, does not imply the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of their studies.  Given that most student visa applicants are young, they are not expected to have a long-range plan and may not be able to fully explain their plans at the conclusion of their studies.  You must be satisfied at the time of the application for the visa that the applicant possesses the present intent to depart at the conclusion of their approved activities.

9 FAM 402.5-5(E)(1)(U)(c)

The new guidance is also in line with the Board of Immigration Appeals’ (BIA) decision in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975), which recognized  inherent dual intent in nonimmigrant visas. Matter of Hosseinpour involved an Iranian citizen who entered the U.S. as a nonimmigrant student and later applied for adjustment of status. After his adjustment of status application was denied, he was placed in deportation proceedings and found deportable by an immigration judge on the ground that he violated his nonimmigrant status by filing an adjustment of status application. The BIA disagreed with this interpretation of the nonimmigrant intent requirement for foreign students, noting the amendments to the Immigration and Nationality Act had expressly removed a provision stating that an individual’s nonimmigrant status would automatically terminate if he filed an adjustment of status application. Thus, the BIA held that “filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status”. The BIA also referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)).

USCIS’ new guidance appears to reaffirm the BIA’s holding in Matter of Hosseinpour and we refer readers to our prior blog, “Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas”. These changes also reflect the reality of many nonimmigrant students’ situations. A foreign student could intend to depart the United States at the end of their degree program, but simultaneously hope to stay in the country if an opportunity to do so arose. At the time of his entry into the U.S.,  the foreign student could hardly predict that he could later apply for adjustment of status based on marriage to a U.S. citizen spouse or a prospective employer would file an  I-140 petition. The fact that a foreign student desires to pursue one of these paths to permanent residence if the opportunity arises should  not mean that she cannot also possess the requisite nonimmigrant intent.

The flexibility afforded by Matter of Hosseinpour and USCIS’ new policy guidance can be extended to other categories of nonimmigrants, as well. A few categories of nonimmigrant visas, such as H-1Bs and L-1s,  expressly allow “dual intent” in INA 214(b), meaning that a visa holder may pursue permanent residence while simultaneously maintaining his nonimmigrant status.  Other nonimmigrant categories allow for quasi dual intent such as the O, E-1, E-2, and P categories. Nonimmigrants in these categories are not required to maintain a foreign residence but are still required to leave at the end of their authorized stay.   Other categories of nonimmigrant visas, however, are explicitly not dual intent, including E-3 visas, which allow Australian nationals to come to the U.S. perform services in a specialty occupation. Although an E-3 is also a “specialty occupation” visa, E-3 workers are more restricted from seeking permanent residence in the U.S. than those in H-1B status. Expanding the flexibilities reflected in USCIS’ additions to the policy manuals would greatly benefit nonimmigrants and better reflect the nuances inherent in today’s immigration landscape.

The clarification in the USCIS Policy Manual will have the greatest impact on those filing for a change of status to F-1 or M-1 from another nonimmigrant visa status such as H-1B, and who may be beneficiaries of I-130 or I-140 petitions. It would also assist dependents in H-4 status who are changing to F-1 status because their parent’s I-140 petition is stuck in the India EB-1, EB-2 or EB-3 backlogs and their age has not been protected under the Child Status Protection Act. They will not be held to the impossibly rigid standard of maintaining a foreign residence abroad they have not abandoned,  especially if they left their home country at a young age many years ago.  Under the new clarification they would be considered to be maintaining a foreign residence abroad so long as they had one prior to coming to the US even if it was with their parents or guardians and they have a present intent to depart at the end of their studies.

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

 

Cyrus Mehta

Scripps v. Jaddou Offers Nuanced Interpretation of “Final Merits Determination” in Reversal of  EB-1B Denial for Outstanding Researcher

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By Cyrus D. Mehta and Jessica Paszko*

Noncitizen professors or researchers can more easily seek to obtain permanent residence as “outstanding professors and researchers” in light of the District Court of Nebraska’s recent decision in Scripps v. Jaddou.

Pursuant to INA § 203(b)(1), noncitizens may be eligible for permanent residency under the employment-based first preference (EB-1B) category if:

  1. they are recognized internationally as outstanding in a specific academic area,
  2. they have at least 3 years of experience in teaching or research in the academic area, and
  3. they seek to enter the United States-
    1. for a tenured position (or tenure-track position) within a university or institution of higher education to teach in the academic area,
    2. for a comparable position with a university or institution of higher education to conduct research in the area, or
    3. for a comparable position to conduct research in the area with a department, division, or institute of a private employer, if the department, division, or institute employs at least 3 persons full-time in research activities and has achieved documented accomplishments in an academic field.

While the statute nor the regulations define what it means to be “recognized internationally as outstanding in a specific academic area,” the applicable regulation at 8 C.F.R. § 204.5(i)(3)(i)–(ii) states:

  1. Evidence that the professor or researcher is recognized internationally as outstanding in the academic field specified in the petition. Such evidence shall consist of at least two of the following:
    1. Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
    2. Documentation of the alien’s membership in associations in the academic field which require outstanding achievements of their members;
    3. Published material in professional publications written by others about the alien’s work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
    4. Evidence of the alien’s participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
    5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field; or
    6. Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
  2. If the standards in paragraph (i)(3)(i) of this section do not readily apply, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

However, the petitioner will not be victorious just by way of establishing that the prospective beneficiary satisfies at least two of the above regulatory criteria by a preponderance of the evidence. Once United States Citizenship and Immigration Services (USCIS) determines that two regulatory criteria have been met, it conducts a second layer of review – the “final merits determination” pursuant to Kazarian v. USCIS (see our blog) – to determine whether the beneficiary may be classified as an outstanding professor or researcher.

On December 12, 2023, the District Court of Nebraska rendered its decision in the case of Scripps v. Jaddou. At issue was whether the USCIS properly denied the Scripps’ petition by finding the prospective beneficiary, Julia Lum, did not qualify for an EB-1B visa even though she satisfied the regulatory criteria. Scripps College challenged the USCIS’s denial under the Administrative Procedure Act (APA) in the District Court of Nebraska. A decision by the USCIS will be upheld if challenged in federal district court under the APA unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” (5 U.S.C. § 706(2)(A)). An agency decision is arbitrary and capricious if, for instance, “the agency acted outside the bounds of reasoned decision making” or provided an explanation “that runs counter to the evidence.”

The USCIS found that Dr. Lum satisfied three of the regulatory criteria, namely (1) she participated as the judge of the work of others in the same or allied academic field of art history; (2) she made original contributions or scholarly research contributions to art history; and (3) she authored scholarly books or articles in scholarly journals with international circulation in art history. However, it denied EB-1B classification because the evidence under the “final merits determination” did not show that her work impacted the field of art history to an extent which shows “that she is internationally recognized as an outstanding researcher.” According to the USCIS, the record showed that Dr. Lum met the plain language of three regulatory criteria, but it did not show that “she is strong in any of them.” The Court pointed out that throughout the final merits analysis, “USCIS repeatedly stated that the evidence presented by Scripps was insufficient to establish Dr. Lum is recognized internationally as outstanding; however, it never stated what was required to establish international recognition as an outstanding professor or researcher.” For instance, in its final merits determination analysis, the USCIS focused on the number of times Dr. Lum’s work had been cited and found that the evidence failed to demonstrate that scholars referenced Dr. Lum’s work ‘to an extent that would establish international recognition as outstanding in the field.’

Perhaps, the USCIS did not find compelling the six citations that Dr. Lum’s publication had garnered. However, the expert letters submitted by Scripps demonstrated that Dr. Lum’s work was published in prestigious journals in art history and that six citations in a ‘low citation field’ was a high number of citations in the field. This evidence clearly contradicts the USCIS Policy Manual’s own example of a situation where such evidence should sway the adjudicating officer’s totality analysis as “evidence demonstrating that the total rate of citations to the beneficiary’s body of published work is high relative to others in the field . . . may indicate a beneficiary’s high overall standing for the purpose of demonstrating that the beneficiary enjoys international recognition as outstanding.” This excerpt from the Policy Manual was cited by the Court at the outset of its decision in Scripps.

Ultimately, the Court found that the “unexplained internal inconsistencies” reflect that the USCIS failed to ‘articulate a satisfactory explanation for its action including a rational connection between the facts and the choice made.’ In addition to the internal inconsistent findings, the Court concluded, as did the Kazarian court, that USCIS imposed “novel evidentiary requirements.” The USCIS imposed such novel evidentiary requirements when it found that Scripps failed to show that Dr. Lum’s ‘work is being taught at more institutions than any other scholar’s works’ and on that basis concluded that this did not demonstrate Dr. Lum’s ‘impact on the academic field exceeds that of any other researcher.’ The USCIS further imposed novel evidentiary requirements when it acknowledged that Dr. Lum received funding in support of her research but found that the record did not support that Dr. Lum received funding in excess of other researchers or that she received her funding in recognition of her outstanding achievements. The Court determined that these findings were not supported by the record, and that the regulations and USCIS policy manual do not require the petitioner to show the beneficiary’s contributions must exceed that of other researchers or professors in the field. The imposition of such novel evidentiary requirements rendered the USCIS’s denial of Scripp’s petition arbitrary and capricious.

Upon applying the evidence in the record to the regulatory criteria and the guidelines in the policy manual, the Court concluded that Scripps established by a preponderance of the evidence that Dr. Lum qualified for international recognition as an outstanding professor or researcher in the field of art history, and reversed the USCIS’s denial. The Court was compelled by the nine letters that were submitted from prominent experts in the field of art history, who spanned three continents, and uniformly agreed that Dr. Lum is internationally recognized as an outstanding researcher in her field. The experts provided evidence of Dr. Lum’s original contributions, citations relative to the field of art history, high level of grant funds relative to others in the field, the importance of Dr. Lum’s original contributions and publications in prestigious journals, invitations (solicited and unsolicited) to present and attend conferences, and reliance on Dr. Lum’s work to teach students at the world’s highest ranked institutions.

This decision teaches how we should attack the final merits determination by demonstrating that the USCIS’s finding under the second step is inconsistent with its finding under the first step, and that the USCIS cannot impose novel evidentiary requirements under the second step. However, if cases like this are litigated in the 9th Circuit or the 5th Circuit, the district court will be bound by the second step analysis under Kazarian v. USCIS and Amin v. Mayorkas (see our blog), respectively. As mentioned above, Kazarian which was decided in the 9th Circuit, has been interpreted to require a second step analysis in EB-1 petitions. The 5th Circuit grounded the final merits determination even deeper into the EB-1 framework in Amin. While the USCIS Policy Manual has adopted Kazarian’s final merits determination and requires officers adjudicating EB-1 petitions to conduct this second step analysis, district courts outside the jurisdiction of the 9th or 5th Circuits that review USCIS decisions are not bound by Kazarian or Amin or the USCIS Policy Manual. Such courts are only bound by precedent issued in its jurisdiction, statutes, or regulations, and therefore, need only consider the governing statutes, which in case of EB-1As (8 C.F.R. §204.5(h)) and EB-1Bs (8 C.F.R. §204.5(i)) are silent as to a second-step, final merits determination. Of course, a district court can conduct its review through the lens of the USCIS Policy Manual if it is persuaded by it, as was the case in Amin. A court can also be swayed by the second step analysis if it was persuaded by the holding in Kazarian as was the case in Rijal v. USCIS, Noroozi and Assadi v. Napolitano, Eguchi v. Kelly, Visinscaia v. Beers, and a number of other unpublished decisions which we discussed here. As was evidenced in all of these decisions, federal courts seem to be following the second step analysis even outside the 5th and 9th Circuits.

Most recently, in Amin,  the self-petitioner challenged the Policy Manual on the ground that it was not in accordance with the law because it conflicts with the regulation. Amin argued that once an EB-1A “applicant meets three of the ten regulatory criteria, the regulation shifts the burden to the government to explain why the applicant has not demonstrated extraordinary ability.” Indeed, this burden shifting approach was the standard pre-Kazarian pursuant to Buletini v. INS. The 5th Circuit disagreed with Amin and found that the USCIS’s application of the second step was consistent with the statute and regulation, clinging onto the regulation’s label “Initial evidence”, and the regulation’s requirement that applicants must submit evidence of “at least three criteria”, to conclude that this “word choice contemplates another step beyond submitting the enumerated evidence: if satisfying three criteria were enough, why would the agency invite proof of more?”

In comparison, it does not seem that the petitioner in Scripps challenged the USICS Policy Manual like Amin had, and thus, the Court did not have to render a decision as to the second step’s consistency with the statute and regulation. Still, the Court noted at the outset, by citing to Kazarian, that a “two-step review of the evidence submitted with an I-140 petition is required in determining whether a foreign national may be classified as an outstanding professor or researcher.” The Court also provided examples from the Policy Manual with respect to what officers may consider in the final merits determination. Indeed, the examples that it chose to extract from the Policy Manual were directly applicable to the evidence that was provided by Scripps, and it appears that these excerpts from the Policy Manual convinced the Court that the USCIS made internally inconsistent findings because the kind of evidence that these excerpted examples contemplated had been provided by Scripps. We noted one such inconsistency, with respect to the low number of citations, above.

The Scripps Court’s close adherence to the USCIS Policy Manual also contributed to its rejection of the inherent subjectivity of the final merits determination. One such example of the second step’s vicious subjectivity was evident in Noroozi and Assadi v. Napolitano where the self-petitioner did not meet at least three regulatory criteria, which could have ended the analysis, but the Southern District of New York also discussed how the self-petitioner would not have merited a favorable judgment under the second step because he ranked 248th in the world in table tennis and finished in 65th place in table tennis in the 2008 Olympics. According to the Southern District, these rankings would have obliged the USCIS to hypothetically grant EB-1 visas to the 283 higher ranked table tennis players and to the 283 higher ranked players in other sports, assuming they were noncitizens, as well as to the 64 table tennis players who outperformed the self-petitioner in the 2008 Olympics. The Southern District’s findings clearly invoked subjectivity as the EB-1 was never intended only for the number one player in a sporting field. This decision was issued prior to the publication of the USCIS Policy Manual.  At the time Noroozi and Assadi v. Napolitano was decided in 2012, a USCIS Policy Memo titled “Evaluation of Evidence Submitted with Certain Form I-140 Petitions; Revisions to the Adjudicator’s Field Manual (AFM) Chapter 22, AFM Update AD11-14” was in effect as of December 22, 2010 and stated:

If the USCIS officer determines that the petitioner has failed to demonstrate these requirements, the USCIS officer should not merely make general assertions regarding this failure.  Rather, the USCIS officer must articulate the specific reasons as to why the USCIS officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the alien is an alien of extraordinary ability under section 203(b)(1)(A) of the INA.

The current USCIS Policy Manual  similarly attempts to restrain the second step’s subjectivity by stating:

When requesting additional evidence or denying a petition, if the officer determines that the petitioner has failed to demonstrate eligibility, the officer should not merely make general assertions regarding this failure. Rather, the officer must articulate the specific reasons as to why the officer concludes that the petitioner, by a preponderance of the evidence, has not demonstrated that the beneficiary is an outstanding professor or researcher.

This excerpt was also cited by the Scripps Court at the outset of its decision. Later, in its discussion of the USCIS’s final merits analysis with respect to the evidence Scripps had submitted, the Court highlighted that “[t]hroughout the final merits analysis, the USCIS repeatedly stated the evidence presented by Scripps was insufficient to establish Dr. Lum is recognized internationally as outstanding, however, it never stated what was required to establish international recognition as an outstanding professor or researcher.” It is clear to us that in doing so, the USCIS clearly failed to “articulate specific reasons” as instructed by the Policy Manual and instead made “general assertions” which the Policy Manual admonished. Despite the similarities in the December 22, 2010 USCIS Policy Memo and the USCIS Policy Manual, the Scripps Court still rejected the second step’s subjectivity, unlike the Noroozi and Assadi court. The discrepancy can perhaps be explained by the Scripps Court’s close reading of the USCIS Policy Manual which ultimately contributed  to its rejection of the imposition of evidentiary requirements that were outside the parameters of the Policy Manual. Neither the USCIS Policy Manual nor the 2010 USCIS Policy Memo state that one has to be an individual of certain standing in order to qualify for the EB-1. For the Noroozi and Assadi court to rule against the self-petitioner in a hypothetical final merits determination because he was not a top player, despite making it to the Olympics, was clearly a result of the court’s unbridled subjectivity. The Noroozi and Assadi court likely also would have agreed with the USCIS’s denial of Dr. Lum’s EB-1B classification because Scripps failed to show that her work was ‘being taught at more institutions than any other scholar’s works’ or that she did not receive funding in excess of other researchers. However, as the Scripps court made clear, the regulations and USCIS Policy Manual do not require the petitioner to show that the beneficiary’s contributions must exceed that of other researchers or professors in the field, and by doing so, curtailed the rampant subjectivity that has plagued EB-1 cases post-Kazarian.

Scripps v. Jaddou adds a positive rung to the growing ladder of final-merits-EB-1-cases which currently stands in opposition to prospective beneficiaries who, despite satisfying the regulatory criteria, end up falling short of their desired classification due to the curse of Kazarian. Although Scripps did not eviscerate the final merits determination analysis, it still paves the way for petitioners to argue that USCIS cannot and should not, under the cover of the second step final merits determination, be allowed to introduce new requirements outside the parameters of the regulatory criteria or reverse its prior acceptance of evidence under the regulatory criteria.

 

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced To Allow Many More Backlogged Immigrants To File Adjustment of Status Applications

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By Cyrus D. Mehta

On February 14, 2023, the USCIS issued updated guidance to indicate when an immigrant visa number “becomes available” for the purpose of calculating a noncitizen’s age in certain situations under the Child Status Protection Act (CSPA). The guidance became on effective 2/14/23 and comments are due by 3/14/23.

Since October 2015, the State Department Visa Bulletin two different charts to determine visa availability – the Final Action Dates (FAD) chart and the Dates for Filing (DFF) chart. The DFF in the Visa Bulletin potentially allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The FAD is the date when permanent residency (the green card) can be granted.  The Filing Date, if the USCIS so determines, allows for the early submission of an I-485 application prior to the date when the green card actually become available.

Prior to February 14, 2023, the USCIS maintained that the FAD protected the age of the child and not the DFF.  Using the DFF to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintained since September 2018 that only the FAD could protect the age of the child. Thus, if an I-485 application was filed pursuant to a DFF and the child aged out before the FAD became available, the child was no longer protected despite being permitted to file an I-485 application. The I-485 application got denied, and if the child no longer had an underlying nonimmigrant status, was placed in great jeopardy through the commencement of removal proceedings, and even if removal proceedings were not commenced, the child could start accruing unlawful presence, which  triggered the 3- and 10-year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent could get approved for permanent residence when the FAD becomes available while the child’s application got denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DFF should protect the age of the child under the CSPA rather than the FAD. On August 24, 2018 the USCIS under the Trump administration  explicitly stated in the USCIS Policy Manual that only the FAD could be used to calculate the age of the child.  Subsequent blogs of mine protesting against this change are here and here. Brent Renison filed a lawsuit in Nakka v. USCIS again arguing that the DFF should be considered the point of time to protect the child’s age and even AILA strongly advocated for this change, which can be found here and here. Several others also advocated on this issue.

The USCIS on February 14, 2023 at long last agreed to use the DFF to protect the age of the child. Those whose I-485 applications were denied under the old policy may file motions to reopen. I had argued that the term “an immigrant visa is immediately available” in  INA 245(a)(3), which allows for the filing of an I-485 application,  has not been defined.  Allowing the filing of an I-485 under the DFF and ahead of the FAD  suggests that the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Indeed, the Visa Bulletin describes the DFF as  “dates for filing visa applications within a timeframe justifying immediate action in the application process.” Under this permissible interpretation, I-485 applications can be filed pursuant to  INA 245(a)(3) under the  DFF. Applicants who file I-485s under both the Filing Date and the Final Action Date must satisfy INA 245(a)(3), which only permits the filing of an I-485 application when “an immigrant visa is immediately available.”

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a DFF pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the USCIS in it updated policy guidance has stated that the DFF  ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

The new USCIS policy that recognized the DFF for freezing the age of the child acknowledged this:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

USCIS also instructs that those whose I-485 applications got denied because they were not permitted to use the DFF to determine their age may file motions to reopen. While the deadline to file a motion to reopen is 30 days, under 8 CFR 103.5(a)(1)(i) failing to file within 30 days after the denial may be excused if the noncitizen demonstrates that the delay was reasonable and was beyond their control. Hence, those whose applications were denied prior to the change in the policy can request the USCIS to excuse a late filing as the delay was certainly beyond the control of the applicant. What about those who decided not to file an I-485 for their child because of the risks involved if the child aged out before the FAD became current? One can now look back at when the applicable DFF became current which can be used to freeze the age of the child, although under INA 203(h)(1)(A) the applicant should have also sought to acquire permanent resident status to fulfill the condition of freezing the age. If one year has already passed since the DFF became current, it might be possible to demonstrate extraordinary circumstances under Matter of O. Vazquez for failing to seek to acquire permanent resident status. Although the update to the  USCIS Policy Manual has not specifically indicated whether this circumstance qualifies as an extraordinary circumstance, those who did not file I-485 applications within one year of visa availability because they could not predict that the policy would change and also  feared that a denial of the I-485 if the FAD was unable to freeze the child’s age should attempt to invoke the extraordinary circumstance exception.

State Department Must Also Update the FAM to be Consistent with the Updated USCIS Policy Guidance

 Thus far, the State Department has not amended the Foreign Affairs Manual (FAM) to align with the new USCIS Policy. The FAM still states that the age of the child is determined when the FAD becomes current. A child  who is processing for a visa at an overseas post should also be able to rely on the DFF rather than the FAD even if not filing an I-485 adjustment of status application in the US. If the visa became available under the DFF chart, then it should not matter whether the child is filing an I-485 application in the US or is processing for a visa overseas as the age of the child under the CSPA ought to be calculated based on when the visa became immediately available under INA 203(h)(1)(A).

Advancing the DFF Will Provide Relief to More Children and Backlogged Parents

As a result of the existence of the per country limits, those born in India and China have been drastically affected by backlogs in the employment-based green card categories. Each country is only entitled to 7 percent of the total allocation of visas under each preference. Thus, a country like Iceland with only about 330,000 people has the same allocation as India or China with populations of more than a billion people. For instance, in the employment-based second preference (EB-2), those born in India have to wait for decades, and one study estimates the wait time to be 150 years!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can apply for adjustment of status and get  ameliorative relief.

There is a legal basis to advance the DFF even further, perhaps to as close as current. This would allow many backlogged immigrants to file I-485 adjustment of status applications and get the benefits of adjustment of status such as the ability to port to a new job under INA 204(j), obtain travel permission and interim work authorization. Many more of the children of these backlogged immigrants would also be able to protect their age under the USCIS’s updated guidance.

As noted, INA 245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa  is immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 CFR 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 may still potentially be waiting and have yet to receive their green cards even as of today! Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards. More recently, the September 2022  Visa Bulletin has a cutoff date of December 1, 2014 for EB-2 India. In the next October 2022 Visa Bulletin the EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014 or earlier should have been issued permanent residence.

These three examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the Dates for Filing Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

Taking this to its logical extreme, visa availability for establishing the DFF may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the noncitizen beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). DFF could potentially advance and become current, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

8 CFR 245.1(g)(1) could be amended (shown in bold) to expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“Final Action Date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (“‘Dates for Filing”) without reference to the Final Action Date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current Final Action Date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

We appreciate that the Biden Administration has provided relief to hundreds of thousands of children by allowing them to use the more advantageous DFF so that they can get protection from aging out  under the CSPA while their parent remains in the backlogs. The Administration can go one step further by advancing the DFF so that hundreds of thousands more who are backlogged can file I-485 applications and their children can get further protection from aging out. Until Congress acts and adds much needed visa numbers to the employment and family based preferences, implementing this additional step will provide relief to many more in the backlogs.

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

 

Cyrus Mehta

Amin v. Mayorkas: Fifth Circuit Denies EB-1 Extraordinary Ability Petition Even Though Petitioner Met Three Out of Ten Regulatory Criteria

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By Cyrus D. Mehta and Jessica Paszko*

Establishing extraordinary ability under the employment-based first preference (EB-1) visa category is neither an easy nor straightforward feat. In 2010, Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), which we wrote a blog about, muddied the waters when it tacked onto the EB-1 determination, a vague, second step analysis known as the “final merits determination” as part of the USCIS Policy Manual.  While the Fifth Circuit’s recent Amin v. DHS, No. 21-20212 (5th Cir. 2022), decision has provided further guidance, it has also grounded the final merits determination even deeper into the EB-1 framework.

As background, an individual can obtain permanent residence in the U.S. under EB-1 by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Olympic Gold Medal). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 C.F.R. § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

Initially, applicants must submit the required “initial evidence” demonstrating that they meet at least three out of the ten criteria. However, successfully demonstrating that three criteria have been met is not commensurate with an EB-1 approval. It is only the first hurdle in establishing extraordinary ability. The USCIS subsequently conducts the final merits determination “to determine whether, as a whole, the evidence is sufficient to demonstrate that the applicant meets the required high level of expertise.” The Fifth Circuit provides a helpful analogy, even if depressing, to illustrate this two-step process­­­­­­––the first step is akin to the hopeful college applicant submitting all requisite application materials to a dream university, and the second step is where the applicant receives a rejection letter despite complying with all of the university’s admission criteria.

Before the Fifth Circuit, was the case of Bhaveshkumar Amin, a project manager in the field of chemical engineering who has worked for oil companies, and contributed to novel inventions, including a portable sulfur-forming unit, modularized well pads, and a high-efficiency drill rig. It was undisputed that Amin satisfied three criteria: judging the work of others, holding a leading role in industry organizations, and earning a high salary relative to peers. But that was not so initially. The USCIS, when first denying the petition, only agreed that he met the fourth criterion relating to judging the work of others. Amin bypassed the Appeals Administrative Office (AAO) and directly sought review of the denial in federal district court under the Administrative Procedures Act that allows challenges of final agency decisions that are arbitrary and capricious. After filing the lawsuit, USCIS agreed to reconsider the denial and determined that Amin had met three out of the ten criteria but still issued a denial because Amin did not meet the final merits determination. Amin continued with his lawsuit but the district court found that the USCIS’s reasoning behind the denial was insufficient to render it arbitrary and capricious.

Amin appealed to the Fifth Circuit. As a preliminary matter, the Fifth Circuit agreed that Amin could bypass the AAO and directly seek review in federal court under Darby v. Cisneros, 509 U.S. 137, 146-47 (1993). In Darby v. Cisneros, the Supreme Court held that when the statute or regulation does not require administrative appeal then the agency’s decision constitutes a final agency action. 8 C.F.R. § 204.5(n)(2) does not require administrative appeal, and thus Amin’s failure to appeal to the AAO did not deprive the court of jurisdiction under the APA. As an aside, it is good news that the Fifth Circuit did not invoke the jurisdiction stripping provision for discretionary determinations, INA 242(a)(2)(B), to deprive Amin of jurisdiction because of the discretionary nature of the final merits determination as the Ninth Circuit did in Poursina v. USCIS with a challenge to a denial of a national interest waiver denial under INA § 203(b)(2)(1)(A). Unlike INA § 203(b)(2)(1)(A) where discretion is clearly embedded, INA § 203(b)(1)(A) does not so explicitly state that the granting of EB-1 is discretionary.

The Fifth Circuit also disposed of Amin’s challenge to the USCIS Policy Manual that it was not consistent with the regulation and that it was issued without notice and comment. The Fifth Circuit held that the Policy Manual’s guidance regarding conducting a final merits determination was consistent with the regulation as the regulation did not presumptively state that meeting the three criteria guaranteed an extraordinary ability finding. 8 C.F.R. § 204.5(h)(3) referred to “initial evidence” and also stated that applicants must submit evidence of “at least three” criteria. Furthermore, the USCIS Policy Manual was an interpretive rather than a legislative rule, according to the Fifth Circuit, and so it could be issued without notice and comment. It is unfortunate that the Fifth Circuit gave short shrift to Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich. 1994). In Buletini, the court held that once an applicant met three out of the ten criteria, the regulation shifts the burden to the government to explain why the applicant has not demonstrated extraordinary ability. The USCIS Policy Manual, seizing on the Ninth Circuit’s “final merits determination” in Kazarian, shifted this burden onto the applicant in elaborating a highly subjective second step analysis. Kazarian’s curse has gone beyond the Ninth Circuit and has now afflicted the Fifth Circuit.  

The Fifth Circuit then reviewed Amin’s objection to the USCIS’s determination that he did not prove a fourth criterion: original scientific or business-related contributions of major significance in the field. It is interesting that Amin pushed for a finding recognizing that he had met this fourth criterion since 8 C.F.R. § 204.5(h)(3)(i)-(x) only requires a satisfaction of three criteria. Amin’s petition has been denied because he did not meet the final merits determination, and it appears that getting recognition that he met the fourth criterion would potentially be used to argue that he met the final merits determination if he met one more criterion. Indeed, the Fifth Circuit’s decision, namely footnote 7 states: “we review the agency’s step one analysis because if Amin satisfies a fourth regulatory criteria, he has a stronger overall case for extraordinary ability at the second step.” Amin pointed to his contributions in designing the world’s first portable sulfur-forming units, the first modularized well pads in the Alberta Oil Sands, and a high-efficiency “walking” drill rig capable of being moved from one well pad to another without being disassembled.

The USCIS determined, and the Fifth Circuit agreed, that Amin did not meet his burden of proving that his designs were of major significance to his field. According to the Fifth Circuit, a letter of support provided by Amin’s employer, calling his design a response to an industry need, did not demonstrate how Amin’s first design had any impact on the field, beyond merely benefiting his employer. The China National Offshore Oil Corporation also provided a letter of support describing how it utilized Amin’s second design and how it adopted similar strategies to build modules in China but had proved unsuccessful at achieving the same efficiency. The Fifth Circuit called this Amin’s “best evidence” because it addressed the impact of his work beyond his own employer, but it still proved insufficient because it failed to show “widespread replication of the design.” While the USCIS’s denial did not specifically address Amin’s contributions to the third design, the drill rig, it did acknowledge the letter of support provided on Amin’s behalf, and according to the Fifth Circuit, any error on this point was harmless because Amin’s evidence did not show that anyone beyond his company used, or even attempted to use, the rig design. Ultimately, although Amin provided great value to his employers, the record did not demonstrate that either the quality or quantity of his work is indicative of sustained national or international acclaim or that his achievements have been recognized in the field of expertise.

It is unfortunate that the Fifth Circuit likened the EB-1 to a “genius” or “Einstein” visa. Although the INA requires the petitioner to demonstrate sustained national or international acclaim, it does not mean that one needs to be an “Einstein” to win an EB-1 approval, which incidentally was granted to Melania Trump when she was a well-known model, although not in the same league as a super model. Indeed, even Einstein may not have been able to meet three out of the ten criteria when he published his papers on Special Relativity and General Relativity in 1905 and 1915. Still, both Einstein in 1915 and Trump were deserving of EB-1 classification.  It is thus disheartening that the Fifth Circuit wrote: “If the three criteria Amin proved—leadership in an industry organization, a high salary, and peer review experience—are enough to automatically show that acclaim, then the ‘extraordinary ability’ visa will look less like an Einstein visa and more like a Lake Wobegon one.” The Fifth Circuit assuming that the EB-1 is an Einstein visa is as fictional as Lake Wobegon.  In fact, DHS also updated and broadened its guidance related to O-1A nonimmigrant status for noncitizens of extraordinary ability who have recently graduated in STEM fields. The legal standard under the O-1A visa for establishing extraordinary ability is identical to the EB-1. For the first time, this update provides examples of evidence that might satisfy the criteria by those who have recently graduated or formed startups.

Despite the grim fate this decision casts on EB-1 petitions, there may be a possible glimmer of hope in the Fifth Circuit’s decision because it suggests in footnote 7 that successfully satisfying more than three criteria can bolster one’s case for extraordinary ability at the final merits determination stage. Many petitioners who file under EB-1 may satisfy more than three out of the ten criteria, and they must make every effort to have USCIS recognize more than three so that they may get a better shot at passing the final merits determination.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Jessica Paszko is a Law Clerk at Cyrus D. Mehta & Partners PLLC. She graduated with a J.D. degree from Brooklyn Law School in 2021, passed the New York Bar Examination and is awaiting admission to the New York Bar.

 

 

 

Cyrus Mehta

The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?

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By Cyrus D. Mehta

Several children who filed I-485 applications as derivatives of their Indian born parents under the October 2020 Visa Bulletin are being denied because they turned 21 years before the Final Action Dates became current. The backlogs for India in the employment-based second and third preferences have already caused untold suffering to beneficiaries of approved I-140 petitions who have to wait for over a decade in the never ending backlogs. When the Dates for Filing in the India EB-3 overtook the India EB-2 under the October 2020 Visa Bulletin thousands of applicants filed I-485 applications for themselves, spouses and minor children.   Hence, the denial of the I-485 applications of their children who turn 21 and are not allowed to claim the protection of the Child Status Protection Act through the Dates for Filing exacerbates the problem for these beneficiaries.

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the Final Action Dates (FAD) protects the age of the child under the Child Status Protection Act (CSPA). The State Department too has the same policy of using the FAD for purposes of freezing the age of the child at 9 FAM 502.1-1(D)(4) .

Using the Dates for Filing (DFF) to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintains that only the FAD can protect the age of the child. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the FAD becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the FAD becomes available while the child’s application gets denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DOF should protect the age of the child under the CSPA rather than the FAD.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation in the policy manual that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, the applicant still will meet the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

Neither the USCIS nor the DOS have considered reversing this policy by allowing CSPA protection based on the DFF. Brent Renison  challenged this policy in  Nakka v. USCIS, details of which can be found on his blog at http://www.entrylaw.com/backlogcspalawsuit.  The plaintiffs in this case not only challenged the CSPA policy but also argued that they were denied equal protection under the Fifth Amendment  on the ground that  children of parents who were born in countries such as India and China that have been impacted by the per country limits have a worse outcome than children of parents born in countries that have not been impacted by the per country limits.  Magistrate Judge Youlee Yim You   found on November 30, 2021 that plaintiffs’ claims that the USCIS Policy Manual and Foreign Affairs Manual dictating the use of the FAD to calculate the CSPA age instead of DOF was not “final agency action” and thus could not be reviewed under the Administrative Procedure Act.   Magistrate Judge You also found that plaintiffs could not claim a violation of equal protection under the U.S. constitution for unequal treatment. The Magistrate Judge’s decision is only a recommendation to the district court judge presiding over the case, who is Judge Simon. The Magistrate Judge’s recommendation also does not pass any judgment on the policy itself and whether it is appropriate to rely on the FAD rather than the DOF. It should also be noted that a Magistrate Judge is not an Article III judge and her findings and recommendations will not be binding leave alone persuasive on another court.

Prior to Nakka v. USCIS, there was another challenge in Lin Liu v. Smith, 515 F. Supp. 3d 193, 199 (S.D.N.Y. 2021) to the policy in the FAM requiring the use of the FAD rather than the DOF to protect the CSPA age. In this case too, Judge Koeltl opined that the policy in the FAM is an interpretive rule rather than a legislative rule. The plaintiffs also claimed that the government unlawfully applied the updated Visa Bulletin to the plaintiff retroactively. Here too the court dismissed the claim because the court held that DOS did not implement a new policy, and therefore there was nothing that could have been applied retroactively to the plaintiff. Judge Koeltl made the following observation:

The Visa Bulletin formerly contained one chart that listed the priority dates that were current for visa number availability. DOS updated the Visa Bulletin to include a second chart showing when applicants could file their applications with the NVC. However, the Final Action Date chart, not the Dates for Filing chart, reflects the information previously listed in the one-chart Visa Bulletin. In other words, the Dates for Filing chart is the new feature in the Visa Bulletin, not the Final Action Date chart. Both before and after the modernization of the Visa Bulletin, DOS used the same information to determine when a visa number became available, namely, when a visa number could be issued legally given the limits set by Congress. While DOS did change the format in which it conveyed this information—posting two charts to the Visa Bulletin rather than one chart—the substantive policy did not change. The newly added Dates for Filing chart reflects useful information for when applicants can begin submitting materials to the NVC, but it does not reflect when visa numbers  are legally available. Therefore, the plaintiff has not pleaded adequately that the defendants changed their policy with respect to tethering visa number availability to when the visa number could be issued lawfully given country and category limits to visa allocation.

Lin Liu v. Smith should not be considered the final word on challenging the USCIS CSPA policy. The plaintiff in this case was a derivative child who was outside the US processing her immigrant visa at the US Consulate. Her father had received a visa under the EB-5 but she had been denied the visa because she was not able to demonstrate that her age had been protected under the DOF and not the FAD. However, Judge Koeltl did not deal with the paradox that is applicable to adjustment applicants in the US. Unlike applicants pursing an immigrant visa at a US consulate, they are allowed to file an adjustment application under the DOF because the USCIS has interpreted the DOF to signify that a visa number is immediately available under INA 245(a)(3). However, the child is then deprived of the ability to demonstrate that the visa is immediately available under INA 203(h)(1)(A) for purposes of protecting his or her age.

The setbacks in Nakka v. USCIS and Lin Liu v. Smith ought not discourage a plaintiff from continuing to challenge the inconsistent USCIS policy of allowing an adjustment application to be filed under the DOF but not allowing CSPA age protection. One  involves the findings and recommendations of a non-Article III magistrate judge, which can be overruled by the district judge presiding over the case. The other decision involves a plaintiff who was applying for an immigrant visa at a US Consulate overseas where the DOF does not have any significance. A child applicant whose I-485 was denied because the age could not be protected when the DOF became current should certainly consider seeking judicial review of the decision under the Administrative Procedures Act. Alternatively, if the child is placed in removal proceedings, the child’s I-485 can potentially be renewed in removal proceedings and he or she should be able to argue that neither the USCIS nor DOS policy regarding the FAD protecting the CSPA age is binding on an Immigration Judge. If the IJ affirms a denial, the decision can be appealed to the Board of Immigration Appeals, and if the BIA reaffirms the IJ’s decision, a petition for review can be filed in a Court of Appeals. Hence, there are two avenues for judicial review – through the APA in federal district court or through a petition for review in a court of appeals – that may be able to reverse the erroneous USCIS policy.

 

Cyrus Mehta

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

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On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.

The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”

The updated policy guidance does not break new ground.  USCIS has always rendered applicants ineligible for naturalization after it finds that they were not lawfully admitted for permanent residence. One example is if the applicant made a misrepresentation while applying for a tourist visa many years ago and failed to disclose this fact when filing the I-485 application for adjustment of status along with the submission of a waiver to overcome this ground of inadmissibility under INA 212(a)(6)(C)(1).

What is more troubling about this new guidance is that it incentivizes USCIS to find that lawful permanent residents may have abandoned that status previously even though Customs and Border Protection (CBP) may have admitted them into the United States. A naturalization applicant may have  at some point in the past been outside the US for more than 180 days, and then admitted by CBP into the US. Even if the LPR remained outside the US for over a year, as a result of inability to return to the US due to Covid-19, the LPR may still be admitted into the US.  The new guidance now encourages naturalization officers to investigate whether the applicant may have abandoned LPR status regardless of the length of prior trips abroad, even if the trips abroad were for less than 180 days. Indeed, the guidance encourages naturalization examiners to overrule a determination that CBP made at the time of the LPRs admission into the US. At that point in time, the government had a very heavy burden to establish that the LPR had abandoned permanent residence.

Under INA 101(a)(13)(C), LPRs shall not be regarded as seeking admission into the United States unless, inter alia, they have abandoned or relinquished that status or have been absent from the US for a continuous period in excess of 180 days.

It has historically been the case that when an applicant for admission has a colorable claim to lawful permanent resident status, the burden is on the government to show that they are not entitled to that status by clear, unequivocal and convincing evidence. This standard was established by the Supreme Court in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. Subsequent to Woodby, in Landon v. Plasencia, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to a permanent resident in exclusion proceedings.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) introduced the notion of “admission” in INA §101(a)(13)(C).  “Admission” replaced the pre-IIRIRA “entry” doctrine as enunciated in Rosenberg v. Fleuti,  which held that a permanent resident was not considered making an entry into the US if his or her departure was “brief, innocent or casual.” Under §101(a)(13)(C), an LPR shall not be regarded as seeking admission “unless” he or she meets six specific criteria, which include the permanent abandoning or relinquishing of that status or having been absent for a continuous period in excess of 180 days. Fleuti has been partially restored in Vartelas v. Holder with respect to grounds of inadmissibility that got triggered prior to the enactment of IIRIRA.  Moreover, the returning permanent resident who returns from a trip abroad that was more than 180 days would be treated as an applicant for admission under INA 101(a)(13)(C)(ii), and thus vulnerable to being considered inadmissible. INA 240(c)(2), also enacted by IIRIRA, requires an applicant for admission to demonstrate by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.”   INA 240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible.  On the other hand, with respect to non-citizens being placed in removal proceedings, INA 240(c)(3), also enacted by IIRIRA, keeps the burden on the government to establish deportability by “clear and convincing” evidence.

Notwithstanding the introduction of INA 101(a)(13)(C), as well as INA 240(c)(2) and INA 240(c)(3),  the Woodby standard still prevails and nothing in 101(a)(13)(C) overrules it, and the burden of proof is still on the government through clear, convincing and unequivocal evidence that LPR has lost that status. See Matadin v. Mukasey.  This was further established in 2011 by the Board of Immigration Appeals in Matter of Rivens, which held:

Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense identified in section 212(a)(2).

Although in Matter of Rivens, the BIA acknowledged that the language in INA 240(c)(3) indicated “clear and convincing” evidence rather than “clear, convincing and unequivocal” evidence as in Woodby, the BIA has not had occasion to determine that the deletion of one word “unequivocal” has  effected a substantial change to the standard.

Additionally, in cases involving the abandonment of permanent residence, it is not the length of the absence that is determinative but whether it was a “temporary visit abroad” pursuant to INA 101(a)(27)(A). The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts that requires a searching inquiry of the purpose of the trip, thus making it harder for the government to find that the LPR abandoned that status even if the trip abroad was for an extended period of time in addition to the high burden of proof that the government is required to meet under Woodby. The Ninth Circuit’s interpretation of “temporary visit abroad”  in Singh v. Reno is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

The Second Circuit in Ahmed v.Ashcroft, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales held that LPR status was not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

Although the USCIS guidance to naturalization examiners cites these and other cases regarding abandonment of LPR status, this determination was already made by the CBP at the time of the applicant’s admission when the burden was on the government to establish through clear and convincing evidence that the LPR had abandoned that status. Since presumably the government did not meet this burden then, the LPR was admitted into the US.  It is inappropriate to empower the USCIS through new policy guidance to once again meet this burden after the fact in a naturalization interview. It is one thing to investigate whether an applicant was ineligible for LPR status at the time of receiving it based on a ground of inadmissibility (e.g. fraud or misrepresentation) that was not overcome, but it is quite another to waste government resources to require USCIS to meet its heavy burden again regarding abandonment of LPR status during naturalization.  If the USCIS wants to retain guidance regarding finding abandonment in a naturalization interview, it can be narrowed, which the Biden administration may wish to consider, in circumstances where naturalization may be denied when it is readily obvious that the applicant is no longer a permanent resident. This may apply to one who was once an LPR as  the unsuccessful plaintiff in Biglar v. Attorney General, departed the US over a period of several years and then was subsequently admitted in B-2 visitor status, after which the applicant applies for naturalization. The Eleventh Circuit held that Biglar had abandoned his LPR status even though he sought to renew his green card after he was admitted into the US in B-2 status. Except for these unusual facts, the USCIS should not be investigating abandonment based on any and every absence especially when the CBP admitted the applicant as an LPR after being aware of the length of that absence from the US.

While the government will argue that the burden is on the applicant for naturalization to establish his or her eligibility, see Berenyi v. INS, the guidance also instructs the USCIS to initiate removal proceedings against LPRs who have been deemed to abandon their status. While in removal proceedings, applicants must insist that the government continue to meet its heavy burden through clear and convincing evidence to demonstrate that they abandoned LPR status, and this burden becomes doubly difficult when USICS is required to second guess a CBP officer’s determination regarding an LPRs admission several years later in a naturalization interview.

The new guidance has been introduced by the Trump administration to create a chilling effect on potential applicants on naturalization based on past travel abroad.  The Biden administration should immediately revise the guidance on January 20 or shortly thereafter.

 

Cyrus Mehta

Recipe for Confusion: USCIS Says Only the Final Action Date in Visa Bulletin Protects a Child’s Age Under the Child Status Protection Act

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The Child Status Protection Act is one of the most complex pieces of immigration legislation. Passed in 2002, the CSPA protects the age of children who would otherwise not qualify as children if they turned 21. The lack of any regulation has made the legislation even more confusing especially in light of more recent developments such as the introduction of the  dual chart State Department Visa Bulletin in October 2015.

On August 24, 2018, however, the USCIS Policy Manual consolidated the guidance on the CSPA that the USCIS has developed over the years, and definitively confirmed that the Final Action Date in the State Department Visa Bulletin  protects the age of the child rather than the Filing Date. There are other significant interpretative changes too, but this blog will focus on the change relating to the  interplay between the dual chart Visa Bulletin and the CSPA.

On October 1, 2015, DOS introduced two charts in the monthly visa bulletin – Chart A – Final Action Dates and Chart B – Filing Dates.  The Filing Date in the Visa Bulletin potentially allows for the early filing of I-485 adjustment of status applications if eligible applicants are in the United States and the filing of visa applications if they are outside the country. The Final Action Date is the date when permanent residency (the green card) can be granted.  The Filing Date, if the USCIS so determines, allows for the early submission of an I-485 application prior to the date when the green card actually become available. Similarly for those who are outside the United States and processing for an immigrant visa overseas, the Filing Date allows applicants to submit the DS-260 immigrant visa application and become documentarily qualified prior to the issuance of the immigrant visa when the Final Date becomes available. The DOS has historically issued a qualifying date prior to the visa becoming available so that applicants could begin processing their visas. This informal qualifying dates system morphed into a more formal Filing Date in the Visa Bulletin from October 1, 2015 onwards. As a result, the USCIS also got involved in the administering of the Visa Bulletin with respect to the filing of I-485 adjustment applications. Even if the Filing Date becomes available, it is the USCIS that determines whether applicants can file an I-485 application or not each month.

The Filing Date has become practically useless for employment-based I-485 applicants since USCIS only allowed I-485 applications to be filed pursuant to the Filing Date in October 2015 and November 2015. Since December 2015, USCIS has never allowed employment-based adjustment applicants to file their I-485s under the Filing Date. On the other hand, the USCIS allows family-based beneficiaries of I-130 petitions to file I-485 applications under the Filing Date, and has continued to so in the September 2018 and the forthcoming October 2018 Visa Bulletins.

Using the Filing Date to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the Filing Date becomes available sooner than the Final Action Date. As of August 24, 2018, the USCIS has made clear through the Policy Manual that only the Final Action Date can be used to determine and freeze the age of a child. Thus, if an I-485 application is filed pursuant to a Filing Date and the child ages out before the Final Action Date becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the Final Action Date becomes available while the child’s application gets denied.

In order to avoid such an absurd and cruel outcome, I have consistently advocated that there is a clear legal basis to use the Filing Date to protect the age of a child under the CSPA. While the USCIS has not agreed, I continue to advocate that affected children can challenge USCIS’ interpretation in federal court. There may also be a basis to challenge this interpretation before an Immigration Judge and the Board of Immigration Appeals, and further before a Court of Appeals, if the applicant is placed in removal proceedings upon the denial of the I-485 application. Immigration Judges are not bound by the USCIS Policy Manual.  The USCIS Policy Manual is not law, although applicants should follow the Final Action Date for making the CSPA age calculation unless they have no choice but to challenge this interpretation.

Here is how one can argue the case for CSPA protection under the Filing Date: INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications, at least family-based under the current Visa Bulletin, can be filed under the Filing Date rather than the Final Action Date. This suggests that the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Indeed, the Visa Bulletin describes the Filing Date as  “dates for filing visa applications within a timeframe justifying immediate action in the application process.” Under this permissible interpretation, I-485 applications can be filed pursuant to  INA 245(a)(3) under the  Filing Date. There is a difference, for example, in the F2A worldwide Final Action Date in the September 2018 Visa Bulletin, which is July 22, 2016, and the F2A worldwide Filing Date, which is December 1, 2017. Thus, under the Filing Date, those with later priority dates, December 1, 2017,  can file I-485 applications even though those with an earlier priority date, July 22, 2016,  are actually eligible to receive the green card. Still, applicants who file I-485s under both the Filing Date and the Final Action Date must satisfy INA 245(a)(3), which only permits the filing of an I-485 application when “an immigrant visa is immediately available.”

Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an  “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, USCIS considers the applicant to have met the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the Filing Date, but only the Final Action Date can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the Filing Date, the age should also similarly freeze on the Filing Date and not the Final Action Date. Now, based  on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the Final Action Date became available. These children must not hesitate to challenge USCIS’s interpretation. Government policy manuals are not the law, and when there is an erroneous interpretation, they ought to be challenged so that USCIS is forced to make the appropriate correction.