Author Archive for Anthony M. Roby

Despite its Historic Announcement of Broad Immigration Reform Measures Promoting Family Unity, DHS Continues to Defend Antiquated and Draconian Agency Interpretations Governing Adjustment of Status for TPS Grantees.

On June 13, 2013, the Roby Law Associates Immigration and Nationality Law News Bulletin featured a Post evaluating the legal ramifications of Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), a watershed judicial decision holding that Temporary Protected Status (“TPS”) grantees are eligible for adjustment of status notwithstanding an initial entry without inspection (“EWI”). In so holding, the Flores Court abrogated more than a decade’s worth of what it termed “incorrect agency interpretations”, id. at 553, and created a circuit split on the issue. Compare Serrano v. U.S. Attorney Gen., 655 F.3d 1260 (11th Cir. 2011) (holding that § 244(f)(4) does not create an exception to § 245’s baseline “inspection and admission” requirements) with Flores, 718 F.3d 548 (holding that § 244(f)(4) does create an exception to § 245’s baseline “inspection and admission” requirements). That circuit split has continued to evolve, with important litigation taking place in the Federal District Courts, including notable decisions in Ramirez v. Dougherty, C13-1236Z (W.D. Wash. May 30, 2014) and Medina v. Beers, No. 14-1010 (E.D. Pa. November 5, 2014), as discussed in detail below.  

In Medina v. Beers, District Judge Ronald L. Buckwalter adopted the “thorough analysis” articulated by the Sixth Circuit in Flores. The Medina decision includes lengthy analyses responding to a veritable multitude of arguments raised by the Department of Homeland Security (“DHS”) in defense of its longstanding, draconian policy proscribing adjustment of status for TPS grantees that entered without inspection. Interestingly, the decision illustrates the sheer vigor with which U.S. Citizenship and Immigration Services (“USCIS”) opposes a national application of the rule from Flores. Indeed, in Medina, USCIS appeared determined to thwart a broader application of the Flores ruling, lodging every conceivable argument opposing adjustment for TPS beneficiaries who entered without inspection. Yet, the actual policy reasons underlying USCIS’s fierce objection to such EWI/TPS adjustment cases are not entirely clear. Indeed, as the Medina Court adeptly noted, public policy considerations actually militate strongly against USCIS’s current ardent and litigious opposition to the Flores rule:

“To interpret the statutes in the manner suggested by Defendants, the Court would have to find that, despite allowing TPS beneficiaries to remain and work in this country in excess of fifteen years, Congress intended that such beneficiaries could never become lawful permanent residents without physically leaving this country, abandoning families that they have created during their extended stay, quitting their employment that they have been allowed to maintain, and returning to a country that the Attorney General has expressly deemed unsafe, simply in order to undergo the immigration process all over again. In addition, these individuals would have to surrender any entitlement to TPS because, by leaving the country, they would fail to maintain “continuous physical presence” as required by the TPS extension. This is particularly true in the case of Plaintiff, as he has been in this country for over twenty years, has a wife and three children who are all United States citizens, and has been lawfully and gainfully employed as a truck driver. To force him to return to a country that the United States Attorney General has deemed dangerous simply to have Plaintiff physically re-enter the United States is a result that appears to serve no practical purpose.” Medina, Slip Op. at 27-28 (internal citations omitted).

Beyond the numerous public policy and prudential considerations supporting a liberal, nationwide application of the Flores rule, USCIS’s staunch opposition in these cases is peculiar because it runs afoul of elementary principles of statutory construction. First and foremost, USCIS’s arguments are in tension with the plain language of Immigration and Nationality Act (“INA”) §§ 244 and 245. Of course, it is axiomatic that, when congressional intent is made manifest by the plain language of the statute at issue, the inquiry ends and contrary agency constructions must be rejected as ultra vires, without resorting to so-called “Chevron deference.” See Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (restricting judicial review where a federal agency, with expertise in the subject matter, advocates even a permissible interpretation of a vague statute).

Perhaps even more persuasively, the textual arguments advanced by DHS become increasingly tenuous when viewed in the context of the “canon against superfluity,” yet another conventional category of statutory interpretation. Indeed, it is a “cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). In Medina, however, DHS urged the District Court to adopt a reading of § 244(f)(4) that would effectively render the subsection a legal nullity.

Specifically, DHS asserted that, in the case of an EWI alien, subsection (4)’s mandate that a TPS grantee be treated as having maintained “lawful status as a nonimmigrant” does not satisfy INA § 245’s threshold requirement that an adjustment applicant be “inspected and admitted or paroled into the United States.” Therefore, USCIS contented, subsection (4) does not enable an otherwise qualified EWI applicant with TPS to adjust status to lawful permanent resident. Of course, if DHS’s contention is accepted, it is difficult to conceive of any rational basis underlying the enactment of subsection (4) at all. The Medina Court recognized as much, concluding that DHS’s assertions would lead to absurd and arbitrary results, rendering subsection (4) largely insignificant, if not wholly superfluous: “In sum, pursuant to Defendants’ interpretation, § [244(f)(4)] would essentially be a meaningless provision, thereby violating a fundamental rule of statutory construction.” Medina, Slip Op. at 21 (citing In re Fesq, 153 F.3d 113, 115 (3d Cir. 1997) (“As a general rule of statutory construction we strive to avoid a result that would render statutory language superfluous, meaningless, or irrelevant”)).   

Finally, USCIS’s opposition to the Flores ruling is also plainly incongruous with the Obama Administration’s current attitude toward immigration reform. Indeed, on November 20, the President and his cabinet-level officials announced a series of broad immigration reform measures emphasizing the fundamental importance of family unity. Curiously, however, as evidenced in Medina, these same notions of family unity have not served to ameliorate the government’s harsh posture in adjustment cases where the applicant is a TPS beneficiary who initially entered without inspection.  

Exploring the Propriety of USCIS’s Current Form I-612 J-1 Waiver Adjudication Practices

Immigration and Nationality Act Section 212(e) Waiver Proceedings: Diligent and Stringent Enforcement or a More Liberal Attitude?

In the context of the Immigration and Nationality Act (“INA”) § 212(e) J-1 foreign residence requirement, U.S. Citizenship and Immigration Services (“USCIS”) currently enforces an exacting waiver adjudication policy, irrespective of whether the particular applicant came to the United States to learn or, on the other end of the spectrum, to educate. Indeed, in adjudicating Form I-612 waiver applications, USCIS categorically “stresses the fundamental significance of a most diligent and stringent enforcement of the foreign residence requirement,” applying the same onerous standard to J-1 Professors and J-1 Students alike. This Note explains why USCIS’s current blanket “stringent enforcement” policy in the context of INA § 212(e) waiver proceedings is inappropriate where the J-1 nonimmigrant came to the United States to impart or share with Americans or teach Americans what he, himself, has acquired abroad in a way of scientific knowledge or skill.

At first blush, the above described J-1 waiver policy may seem narrow or even inconsequential; however, in many cases, it actually results in substantial inequity, motivating Immigration Service Officers (“ISOs”) to assume an unnecessarily adversarial posture in the adjudication of meritorious, approvable waiver applications. Moreover, USCIS’s proffered legal rationale supporting its blanket application of this burdensome waiver policy is tenuous, resting on an incomplete understanding of the germane legislative history. But more importantly, this strict waiver adjudication practice is problematic because it reflects a key misunderstanding of the central purpose of the J-1 visa program and the actual goals of the associated two-year foreign residence requirement.

I.          Introduction to J-1 Visa Issues

The goal of the J-1 Exchange Visitor visa program is to foster global understanding through reciprocal educational and cultural exchanges between the United States and foreign nations. The J-1 nonimmigrant visa category is thus authorized for individuals who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. Examples of specific J-1 Exchange Visitor categories include, but are not limited to:

  • Professors or scholars;
  • Research assistants;
  • Students;
  • Trainees;
  • Teachers;
  • Specialists;
  • Nannies/Au pairs; and
  • Camp counselors.

Notably, certain J-1 nonimmigrants[i] are subject to a so-called “foreign residence requirement” under INA § 212(e), which obligates them to return to their home country at the end of the exchange visitor program in order to accrue two years of physical presence. Within the text of INA § 212(e), however, Congress also explicitly provided a legal mechanism for waiving this two year foreign residency period where one of four alternative criteria are met. Specifically, a waiver of the foreign residence requirement is authorized where:

  1. Enforcement would impose “exceptional hardship” upon the alien’s qualifying U.S. citizen (“USC”) or lawful permanent resident (“LPR”) spouse and/or child;
  2. The alien cannot return to his home country because he would face persecution on account of race, religion, and/or political opinion;
  3. The alien’s admission to the United States would be in the public interest; or
  4. The alien’s home country has furnished a formal written statement indicating its acquiescence in the issuance of such a waiver (a so-called “no objection letter”).   

An alien seeking a waiver predicated on the hardship or persecution bases must file an Application for Waiver of the Foreign Residence Requirement (Form I-612) with USCIS.[ii] It is precisely USCIS’s current exacting (and, frequently, unduly burdensome) Form I-612 waiver adjudication policies that form the subject of this Note. Specifically, in deciding I-612 waiver applications, for Professors and Teachers to Students and Trainees alike, USCIS routinely resorts to a blanket application of what it terms “a most diligent and stringent enforcement of the foreign residence requirement.” Crucially, however, the very legal support cited and relied upon by USCIS in justifying this “stringent enforcement” posture actually serves to severely undermine its rationale in many cases – namely those involving applications filed by sources of knowledge, as opposed to recipients thereof.   

Accordingly, in the Section that follows, this Note will first argue that USCIS routinely errs in categorically applying such an exacting level of scrutiny, because the appropriate “degree of stringency” to be employed is properly contingent upon on the applicable Exchange Visitor category of the particular waiver applicant. Similarly, Section II.2 will explore the likelihood that this strict enforcement standard may be leading to confusion in the minds of ISOs, resulting in an unlawful abrogation of the applicable preponderance of the evidence standard of proof. Finally, Section III will conclude with a discussion of the proposed legal test and method for properly determining the appropriate degree of stringency to be utilized in § 212(e) waiver proceedings, depending on the specific type of Exchange Visitor applicant.   

II.        A “Most Diligent and Stringent Enforcement” or a “More Liberal Attitude?”

USCIS routinely justifies denials of Form I-612 waiver applications by citing page 121 of a 1961 House of Representatives Report entitled “Immigration Aspects of the International Educational Exchange Program” for the proposition that “a most diligent and stringent enforcement of the foreign residence requirement” is required in all 212(e) waiver proceedings, without regard to the applicable J-1 subcategory at issue. Likewise, in Form I-292 Denial Decisions and Form I-797E Requests for Evidence (“RFEs”), USCIS also cites this House Report for the proposition that “[it is] detrimental to the purpose of the [J-1 visa] program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers[.]”

The practice described in the preceding paragraph is problematic for two reasons.

First, the various J-1 Exchange Visitor categories are diverse, often presenting very different factual circumstances. In recognition of this fact, and contrary to USCIS’s assertions, the legislative history identifies many J-1 waiver cases where strict scrutiny is wholly unwarranted and, contrariwise, a “liberal attitude” in the enforcement of the foreign residence requirement is actually merited. USCIS’s reliance on INA § 212(e)’s legislative history – particularly House Report 721, Immigration Aspects of the International Educational Exchange Program, Subcommittee of the House Committee on the Judiciary, 87 Cong., 1st Sess. (1961) (hereinafter “House Report 721”) – is therefore misplaced.

Second, USCIS’s routine use of this so-called “stringent enforcement” policy presents a distinct risk that ISOs will improperly conflate and/or abrogate the applicable modest “preponderance of the evidence” standard governing the adequacy and probative value of documentary evidence.

These topics are discussed in turn below.

             1.         The Legislative History

In the Form I-612 waiver adjudication context, current USCIS practice mandates an application of a so-called “diligent and stringent enforcement” standard across all waiver applications, irrespective of the applicable J-1 category at issue. In other words, USCIS does not differentiate between such diverse J-1 categories as Professors and Students, despite the fact that they clearly embody very different types of waiver applicants. As such, in many cases, USCIS’s blanket adjudication practice is fundamentally at odds with the intent of Congress, as expressed in INA § 212(e)’s statutory text and attendant legislative history. This note thus advocates for the implementation of what is, at least in the judgment of the author, a fairly simple, common-sense approach and methodology for determining the appropriate standard of enforcement in the adjudication of 212(e) waiver proceedings.

Simply put, where a particular applicant’s Exchange Program participation was not to receive training but rather to impart skills, USCIS is obliged to employ a “liberal attitude” in determining whether a qualifying factual basis for waiving the foreign residence requirement has been adequately established. Conversely, in such cases, USCIS errs in applying heightened scrutiny to these determinations, relying erroneously on an inapposite statement of Congress calling for “a most diligent and stringent enforcement of the foreign residence requirement” in circumstances where the J-1 alien came to the U.S. to receive knowledge.

USCIS apparently contends that INA § 212(e)’s exceptional hardship inquiry requires “stringent enforcement” in all cases, citing page 121 of House of Representatives Report Number 721. However, this wholesale reliance on page 121 is misplaced, as it plainly ignores the material text appearing on the very next page, page 122, which describes circumstances where a “liberal attitude” – a far cry from the “diligent and stringent enforcement” – is properly taken in determining if the necessary degree of hardship has been established. It is incongruous for USCIS to cite House Report 721 as binding authority for the proposition that stringent enforcement is mandated, while simultaneously disregarding its related text explaining circumstances where liberal treatment is appropriate.

Title 22 of the United States Code, “Foreign Relations and Intercourse,” Chapter 33, “Mutual Educational and Cultural Exchange Program,” Section 2451 sets forth the “Congressional statement of purpose” applicable to the J-1 nonimmigrant visa program, providing in pertinent part: “The purpose of this chapter is to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange[.]” 22 U.S.C. § 2451 (emphasis supplied). The J-1 visa program is thus intended to promote a reciprocal exchange of knowledge between the United States and foreign countries – i.e., not merely a one-sided U.S. conferral of knowledge on arriving J-1 nonimmigrants, but also, equally important, the U.S.’s receipt of the skills and wisdom of talented foreign persons, such as scholars and professors. With this in mind, a stringent application of the INA § 212(e) foreign residence requirement and the attendant waiver regulations may or may not be appropriate or necessary, depending on the specific nature of the J-1 visa holder’s participation in the actual exchange program at issue. That is, the fundamental policy consideration of the foreign residence requirement is to ensure that the participating alien return to his country as a source of knowledge newly acquired through the completion of a training program, internship, or university coursework. And, accordingly, where the J-1 visitor served as the source of knowledge rather than the recipient thereof, § 212(e)’s underlying imperatives simply do not apply with equal force.   

In enacting the operative J-1 visa legislation, the U.S. Congress explicitly recognized this common sense distinction. Indeed, it is in this context that the Congress, in prescribing the rules governing the scrutiny applicable to foreign residency waivers, differentiated between “two clearly discernible categories of exchange visitors,” to wit:

“(1) the person whose primary purpose in coming to the United States is to acquire education, skill, experience, and training; and – on the other side of the ledger – (2) the person who comes to the United States to impart or share with Americans or teach Americans what he, himself, has acquired abroad in way of scientific knowledge or skill.” House Report 721 at 122. 

House Report 721 then proceeds to note that the INA § 212(e) “waiver policy could be applied with a different degree of stringency to exchange visitors in each of the two categories.” Id. (emphasis in original). Indeed, House Report 721 continues,

“[w]hile it is axiomatic with this subcommittee that a person who has come to the United States to learn in order to give his countrymen the benefit of such education should not be permitted to evade the ‘return home’ rule, the person who – in exchange – has come here to education Americans, may have an equitable claim for remaining[.]” Id. (emphasis in original). 

Moreover, the well settled administrative precedent, relying explicitly on the germane legislative history referenced above, has consistently held that a “liberal attitude may be taken in determining if the necessary degree of hardship has been established” in the case of a J-1 waiver applicant who “impart[ed] her skill to persons [in the U.S.]” Matter of Duchneskie, 11 I&N Dec. 583 (DD 1966) (citing House Report 721 at 122); see also Matter of Coffman, 13 I&N Dec. 206 (DAC 1969). The operative test under the above cited precedent decisions is strictly whether the J-1 alien actually imparted his existing skills to U.S. persons. See id. In fact, this “liberal attitude” standard has been held applicable even to J-1 aliens who received additional training in the U.S., so long as they also imparted a benefit of their existing skills. See Matter of Duchneskie, 11 I&N Dec. 583 (applying “liberal attitude” standard to J-1 alien who imparted her existing skills but also received further training). This legal principle was first announced by Congress in 1961, and subsequently analyzed, validated, and applied in legacy INS published precedent decisions such as Matter of Duchneskie and Matter of Coffman, decided in 1966 and 1969, respectively. This venerable commonsense rule has thus persisted for well over half a century in this nation’s J-1 visa jurisprudence.

            2.         Preponderance of the Evidence Issues

USCIS’s routine use of so-called “stringent enforcement” policy described above also presents a distinct risk that ISOs will improperly conflate and/or abrogate the applicable modest “preponderance of the evidence” standard governing the adequacy and probative value of the documentary evidence. Indeed, USCIS adjudicators must take care to differentiate between the statutory “exceptional hardship” determination (the legal question that must be resolved) and the applicable “preponderance of the evidence” burden (a standard of proof governing the sufficiency of the evidence).  

As in most administrative immigration proceedings, the standard of proof in INA § 212(e) waiver applications is the “preponderance of the evidence” standard. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). This standard is deemed satisfied where the proffered evidence establishes that a claim is “more likely than not” or “probably true.” See Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989); see also U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987). As such, it is well settled that the preponderance of the evidence standard is not an onerous one. See, e.g., Matter of E-M, 20 I. & N. Dec. 77, at 83 (BIA 1989) (citing Charlton v. FTC, 543 F.2d 903, 907 (D.C. Cir. 1976) (explaining that “in American law a preponderance of the evidence is rock bottom at the fact-finding level of civil litigation”) (emphasis supplied)).

Where USCIS applies its stringent enforcement approach, it is not uncommon for the operative “preponderance of the evidence” standard to appear to have been abrogated in violation of the law. USCIS’s reliance on this legislative history and associated degree of stringency analysis is problematic, in that it can give rise to an unnecessarily harsh treatment of what would otherwise be deemed credible and probative evidence. Indeed, where USCIS’s evidentiary demands appear to exceed the preponderance of the evidence standard, this may fairly be attributable to an erroneous belief that a different standard of proof applies in 212(e) waiver proceedings.

III.       The Proposed Solution

In determining the appropriate degree of stringency applicable to a given waiver application, the key threshold inquiry that must be resolved is relatively straightforward and simple to grasp: whether the primary purpose of the J-1 alien in coming to the U.S. was to “impart, share, and/or teach,” or, alternatively, to “acquire education, skill, and/or training.” For the former, the ISO’s adjudication is properly informed by the “liberal attitude” approach described in the legislative history and INS decisional framework highlighted above.  

The application of this proposed bifurcated waiver adjudication methodology does not appear to present undue procedural challenges, particularly as Congress has expressly articulated a serviceable test for accomplishing such determinations. Indeed, while recognizing that the determination of which category a given J-1 Exchange Visitor fits into will ordinarily be self-evident, the Congress nevertheless furnished additional guidance on this point, directing adjudicators to identify whether the alien entered as (1) a Student, Trainee, or Specialist, which fall into the first category; or, alternatively, (2) a Teacher, Guest Instructor, or Professor, falling into the second category. See House Report 721 at 122. This information can be gleaned by referring to the relevant background data appearing on the underlying Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status – including such fields as block 1 “Position,” block 2 “Participating Program Official Description,” and, perhaps most tellingly, block 4 “Exchange Visitor Category” – in conjunction with 22 C.F.R. § 62.4(a)-(h), defining the various “[c]ategories of participant eligibility.”

IV.       Conclusion

J-1 nonimmigrants admitted to the U.S. for the purpose of imparting a benefit or knowledge are currently encountering unjustifiably restrictive enforcement standards in the adjudication of Form I-612 waiver applications by USCIS. Unfortunately, the problem is rooted in the agency’s erroneous belief that such a punitive enforcement standard is actually compelled by the underlying legislative intent, as discerned through the associated legislative history – viz., page 121 of House Report 721. USCIS ought to revisit and reconsider the propriety of this approach, particularly in light of the legal authorities outlined in Part II, supra, which critically undermine USCIS’s proffered legal reasoning. Notably, a reconsideration of USCIS’s current approach does not appear to be infeasible from an administrative standpoint, as evidenced by the eminently workable method advocated in Part III, supra, and first advanced by the drafters of INA § 212(e)’s foreign residence requirement and corresponding waiver eligibility provisions.

[i] J visa holders subject to the two-year foreign residence requirement are persons: (1) whose participation was financed in whole or in part, directly or indirectly, by an agency of the government of the U.S. or by the government of his nationality or last residence; (2) who, at the time of admission or acquisition of status, was engaged in a field on the Department of States (“DOS”) Exchange Visitor Skills List; and/or (3) who came to the U.S. or acquired J status after January 10, 1977 to receive graduate medical education or training. See INA § 212(e)(i)-(iii).  

[ii] The filing of Form I-612 with USCIS is actually the third step in a complicated, back-and-forth four-step process that begins with the submission of a Data Sheet to the DOS Waiver Review Division (“WRD”) and ends with the WRD transmitting its final decision back to USCIS.

Immigration Reform 2014: President Obama’s Executive Actions

A Survey of the Policies Supporting U.S. High-Skilled Businesses and Workers

On November 20, 2014, President Obama announced a series of immigration reform measures that will have a significant, ostensibly positive impact on the Michigan and national business communities. At this time, many of the details are still being developed by the government agencies charged with administering the immigration laws. Some of these measures will require the promulgation of formal regulations (including notice and public comment), but others will be accomplished through legal memoranda and/or executive orders. Below is a summary of the President’s employment-based immigration reform elements.

 I.          Modernizing the PERM Process

On November 20, 2014, the Secretary of Labor announced that the Department of Labor (“DOL”) will perform its first comprehensive review of the foreign labor certification process since the Program Electronic Review Management or “PERM” regulations (found at 20 C.F.R § 656) were implemented more than 10 years ago. See Fact Sheet: Department of Labor to Pursue Modernized Recruitment and Application Requirements for the PERM Program (November 20, 2014).

Before an alien worker may be issued an employment-based immigrant visa (or “Green Card”) and admitted as a lawful permanent resident (“LPR”), the Secretary of Labor must, inter alia, certify that “there are not sufficient workers who are able, willing, qualified and available” at the time of application and in the place where the individual is to perform the work. See Immigration and Nationality Act (“INA”) § 212(a)(5)(A)(i)(I). A test of the U.S. labor market, as contemplated by the INA and articulated in the implementing DOL regulations, undoubtedly constitutes a laudable and important component of the employment-based immigrant visa system, necessary to protect the American workforce and promote a vibrant economy. Ironically, however, the current mechanism for executing such a test of the labor market, embodied in the labyrinthine PERM program, actually serves to hamper the job prospects of U.S. workers and thwart critical economic development.

Indeed, PERM is antiquated and draconian, resulting in protracted processing times and making it unduly difficult for U.S. businesses to recruit and/or retain – even in the face of clearly established shortages in the domestic labor market – the high-skilled workers that they need to remain competitive internationally. Most labor certification application (ETA Form 9089) job opportunities are for professional occupations in a science, technology, engineering, or mathematics (“STEM”) related field. See Fact Sheet: Department of Labor to Pursue Modernized Recruitment and Application Requirements for the PERM Program (November 20, 2014). And, of course, it has been empirically demonstrated that such foreign persons are often innovative professionals, including but not limited to scientists, researchers, engineers, entrepreneurs, and/or related technical specialists who are disproportionately involved in actual job creation and appreciable economic development within the United States. See, e.g., Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession, Partnership for a New American Economy (June 2014) (“Cities whose employers faced large numbers of denials in the H-1B visa lotteries experienced considerably less job creation and wage growth for American-born computer workers in the two years that followed. Denying H-1B visas didn’t help the economies of America’s cities or their U.S.-born workers. Instead, it cost their tech sectors hundreds of thousands of jobs and billions in missed wages”). With a 10-year-old system that has wholly failed to keep pace with modern business realities, particularly in America’s burgeoning tech sectors, an overhaul of the PERM regulations is overdue.

Fortunately, DOL has come to realize that “[a]dvances in technology and information dissemination have dramatically altered common industry recruitment practices, and . . . the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.” Fact Sheet: Department of Labor to Pursue Modernized Recruitment and Application Requirements for the PERM Program (November 20, 2014). Accordingly, in the coming months, DOL will attempt to “modernize” the PERM program, hopefully bringing the process into the 21st century and facilitating labor certification for highly-skilled immigrants. Some specific changes that will be considered include: 

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

Presumably the above modernization strategies will be realized through the formal rulemaking process, including notice and public comment.

 II.        Bringing Greater Consistency to the L-1B Visa Program

In his Policy Memorandum entitled “Policies Supporting U.S. High-Skilled Businesses and Workers,” the Secretary of Homeland Security directed USCIS to expeditiously develop and implement “clear, consolidated guidance on the meaning of ‘specialized knowledge.’” Policy Memorandum, Policies Supporting U.S. High-Skilled Businesses and Workers, Jeh Charles Johnson, Secretary of Homeland Security (November 20, 2014). He proceeded to explain that such USCIS guidance must “bring greater coherence and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.” Id.     

The L-1B Specialized Knowledge Intracompany Transferee visa category was created by Congress in 1970. See INA § 101(a)(15)(l). Once a broad and flexible nonimmigrant visa option for multinational companies operating in the U.S., the L-1B classification has experienced a marked narrowing in recent years. In fact, USCIS is currently applying heightened adjudication standards drawn from largely obsolete case law and guidelines that predate the broadening of the L-1 category accomplished by the IMMACT statutory amendments.

Adding to the confusion, the current regulatory definition of “specialized knowledge” is nebulous and circular, failing to meaningfully expound upon the existing statutory text: “Specialized knowledge means special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.” INA § 214.2(l)(ii)(D) (emphasis supplied). Thus, the definition of specialized knowledge awkwardly uses the term being defined as a part of the definition itself.

In Fogo de Chao v. U.S. Dep’t of Homeland Sec. (D.C. Cir. 2014), DHS actually argued that “specialized knowledge may ultimately be a relative and empty idea which cannot have a plain meaning[.]” (internal quotations and citations omitted). Of course, as the Fogo de Chao Court adeptly replied, this is “not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition[.]” Id. Unfortunately, based on the statistical data released by USCIS in response to a FOIA request made by AILA, it appears that such a trend in arbitrary and capricious government decision-making is precisely what has been plaguing the efficacy of the L-1B visa program in recent years. See generally National Foundation for American Policy, NFAP Policy Brief, L-1 Denial Rates for High Skill Foreign Nationals Continue to Increase (March 2014).    

By way of illustration, in fiscal year 2006, the denial rate for L-1B visa petitions was six percent. Id. Inexplicably, however, the denial rate for such petitions climbed to 30 and then 34 percent in fiscal years 2012 and 2013, respectively. Id. The 2013 denial rate thus reflects a puzzling increase of more than five-fold, despite the absence of defined regulatory changes or adjudication standards. Moreover, time-consuming Requests for Evidence (“RFEs”) from adjudicators of L-1B visa petitions also continued at a high level – 46 percent in FY 2013. Id. That means, in 2013, approximately half of all L-1B visa petitions to transfer key specialist employees were either denied or delayed by USCIS adjudicators. And, of course, the economic impact is profound, because time is money, and modern businesses are fluid organizations that simply cannot afford to operate at the (lumbering) speed of governmental bureaucracies.

In early 2012, USCIS officials actually pledged to develop new proposed guidance for public review and comment. The goal was to update and modernize the understanding of the specialized knowledge definition. Unfortunately, such guidance never materialized and, as confirmed by the above empirical data, the situation continued to deteriorate in the two years that followed.

Accordingly, the utility of the important L-1B classification has, in recent years, been hampered by the restrictive and arbitrary adjudication practices of USCIS Immigration Service Officers. To be sure, this nonimmigrant visa category is in desperate need of the “greater coherence” and “improve[d] consistency in adjudications” discussed by the Secretary of Homeland Security. Precisely how these (seemingly lofty) goals will be realized is not yet known. However, the long-awaited L-1B visa guidance is slated to be released by USCIS sometime in December 2014 or January 2015.

III.       Work Authorization for H-4 Dependent Spouses

In May 2014, USCIS published a proposed rule to extend work authorization to the H-4 Dependent spouses of certain principal H-1B Specialty Occupation Aliens. Specifically, eligible individuals would include H-4 spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

The notice and public comment period has concluded, and USCIS is now finalizing the above regulation, with an expected release date of December 2014 or January 2015.

In addition, one potential ancillary benefit of this action is a possible reduction in demand for annual cap-subject H-1B visa petitions, as the necessity for individual/principal work authorized statuses decreases. In the FY 2015 cap season, of course, USCIS received 172,500 cap-subject H-1B visa petitions for an available 85,000 visa numbers (with 20,000 reserved for beneficiaries with advanced degrees from U.S. universities). 

IV.       Timing of Filing for Adjustment of Status

The President and his cabinet also announced proposals aimed at enhancing worker portability within the employment-based immigrant visa system. Under the current system, foreign workers with approved employment-based immigrant visa petitions (Form I-140) often wait many years for their Green Cards to become available, particularly those aliens chargeable to the India or China per-country limitations. For instance, a foreign worker chargeable to the employment-based third preference category (professionals possessing a bachelor’s degree / skilled workers with at least two years of specialized training or experience) for India will typically encounter severe backlogs and attendant delays that are typically a decade long. On account of the rigidity and uncertainty associated with the current regulations, the career paths of these skilled alien workers can languish for years, as they are effectively beholden to their current sponsoring employers and positions, unable or discouraged from changing jobs or employers, seeking new employment opportunities, or even accepting promotions.      

The President’s reform measures are expected to remove unnecessary restrictions and facilitate natural career progression for individuals who are mired in the quota backlogs. This will be achieved primarily through the policy guidance clarifying certain AC21 provisions governing employee portability, as well as the promulgation of new regulations granting the ability to file for adjustment of status at an earlier stage of the Green Card process, thereby extending the benefits of a pending adjustment – namely, the issuance of portable work authorization and advanced parole documents. This is expected to impact about 410,000 people.

V.        Expanding the Availability of National Interest Waivers

Recognizing that the national interest waiver is currently underutilized, the Secretary of Homeland Security also directed USCIS to “issue guidance or regulations to clarify the standard by which [such a waiver] can be granted, with the aim of promoting its greater use for the benefit of the U.S. economy.” Policy Memorandum, Policies Supporting U.S. High-Skilled Businesses and Workers, Jeh Charles Johnson, Secretary of Homeland Security (November 20, 2014). The national interest waiver permits advanced degree or exceptional ability aliens to seek Green Cards without employer sponsorship if their admission is in the national interest. Thus, one important function of the waiver is a bypassing of the Kafkaesque and dilatory labor certification process (see Part I, supra).

Perhaps the primary explanation behind the apparent underutilization of the national interest waiver is the legacy Immigration and Naturalization Service (“INS”) decision of Matter of New York State Dep’t of Transp. (NYSDOT), 22 I&N Dec. 215 (Acting AC 1998) and the exacting evidentiary burden advanced therein. Indeed, in the wake of Matter of NYSDOT, many meritorious, previously approvable cases have been denied.

VI.       Broadening Work Authorization for F-1 Students in STEM Programs

Yet another glaring flaw in the current U.S. immigration laws is the lack of employment opportunities available to foreign graduates of American universities. Indeed, the U.S. continues to educate foreign students at its universities, only to compel them to depart upon the completion of their degree programs, taking their valuable skills overseas.   

The November 20, 2014 immigration reform package includes components intended to combat this problem and facilitate America’s retention of its most valuable graduates. Specifically, DHS is proposing changes to expand and extend the use of the existing Optional Practical Training (“OPT”) program for F-1 students studying science, technology, engineering, and/or mathematics (“STEM”) at U.S. universities. The length of time in OPT for STEM graduates and the number of degree programs eligible for OPT will also be expanded. Other changes – such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field – are under consideration.

VII.     Enhancing Options for Foreign Entrepreneurs

DHS has also pledged to expand immigration options for foreign entrepreneurs who meet certain criteria relative to creating jobs, attracting investment, and generating revenue in the U.S. While the details are still not settled, the President’s program will ostensibly allow certain inventors, researchers, and founders of start-up enterprises to be “paroled” into the United States (or be granted “parole in place” if already physically present) upon demonstrating that they have a certain amount of investment funding. DHS will also issue a new regulation or guidance clarifying that inventors, researchers, and founders of start-up enterprises are eligible to obtain a national interest waiver and, as a result, Green Cards. 

Flores v. USCIS

Flores v. USCIS, No. 12-3549 (6th Cir. June 4, 2013): CA6 Creates Circuit Split RE TPS Grantees’ Eligibility for Adjustment of Status Under INA § 245. 

In a watershed decision concerning the interplay between INA §§ 244 and 245, 8 U.S.C. §§ 1254a and 1255, the Sixth Circuit abrogated – at least in the States of Michigan, Ohio, Kentucky, and Tennessee – over a decade of what it referred to as “incorrect agency interpretations,” holding that a grantee of Temporary Protected Status (“TPS”) who entered the United States without inspection is not ipso facto ineligible to adjust status to that of a person lawfully admitted for permanent residence. Flores v. USCIS, No. 12-3549, slip op. at 7 (6th Cir. June 4, 2013). In so holding, the Flores court created a de facto circuit split on the issue, despite its best efforts to distinguish conflicting authority. Compare Serrano v. U.S. Attorney Gen., 655 F.3d 1260 (11th Cir. 2011) (holding that § 244(f)(4) does not create an exception to § 245’s baseline “inspection and admission” requirements) with Flores, No. 12-3549, slip op. at 10 (holding that § 244(f)(4) does create an exception to § 245’s baseline “inspection and admission” requirements). The Flores decision represents a refreshing departure from what may be fairly characterized as the federal judiciary’s ordinary deferential and pro-agency immigration and nationality jurisprudence.

INA § 245 authorizes the Attorney General to adjust the

status of an alien who was inspected and admitted or paroled into the United States . . . if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed. § 245(a) (emphasis supplied).

INA § 244, on the other hand, states in pertinent part that, “[d]uring a period in which an alien is granted temporary protected status[,] . . . for purposes of adjustment of status under section [245] . . . , the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.” § 244(b)(4).   

In this context, the Flores court held that the plain language of § 244(b)(4) creates an exception to the generally applicable § 245 criteria – viz., inspection, admission, and clear admissibility – and accords EWI TPS beneficiaries status as a lawful nonimmigrants eligible to pursue AOS in the United States. The plain language holding is significant under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), in that the court was not bound to accord deference to the longstanding agency interpretations offered by the Appellees. The court further concluded that its plain language analysis was bolstered by the INA’s broader statutory scheme, as well as the manifest intent of Congress. Flores, No. 12-3549, slip op. at 8-9.  

Interestingly, the decision is consistent with modern notions of immigration reform and fundamental decency, with the court declaring early on that the case illustrated “the archaic and convoluted state of our current immigration system.” Flores, No. 12-3549, slip op. at 2. Further, the court expressed its recognition that the use of the term “alien” to refer to human beings is “offensive and demeaning[,]” urging Congress to eliminate it from the United States Code altogether. Id. at 5 n.1. Perhaps most extraordinary, however, is the court’s sharp rebuke of what it characterized as a “general policy of opposition for the sake of opposition” on the part of the government:

Under the Government’s interpretation, Mr. Suazo would have to leave the United States, be readmitted, and then go through the immigration process all over again. This is simply a waste of energy, time, government resources, and will have negative effects on his family – United States citizens. We are disturbed by the Government’s incessant and injudicious opposition in cases like this, where the only purpose seems to be a general policy of opposition for the sake of opposition. Id. at 11.

It is not yet known whether the government will seek en banc reconsideration of the decision, or otherwise appeal the case to the United States Supreme Court. 

Plea Agreements: The Padilla Warning

April 9, 2010

(U.S. Supreme Court Decision, Padilla v. Kentucky, 539 U.S. ___ (2010), Decided Mar 31, 2010)

Immigration Counsel to Criminal Defense Attorneys and Aliens in Criminal Proceedings

In Padilla v. Kentucky, 539 U.S. ­­___ (2010), the Supreme Court held that noncitizen criminal defendants, pursuant to the Sixth Amendment right to effective assistance of counsel, have a constitutional right to competent legal advice concerning the deportation consequences of a prospective plea agreement. That is, under Padilla, criminal defense attorneys now have an affirmative duty to advise their noncitizen clients as to the possible immigration consequences (i.e. deportation or exclusion from the U.S.) associated with a particular criminal conviction.

In the United States, just under 95% of all criminal convictions are obtained as a result of some sort of plea agreement. Now, before a criminal defense attorney representing a noncitizen defendant negotiates a plea agreement, that attorney should be aware of the associated immigration consequences. Specifically, in certain circumstances that defense attorney has a constitutionally mandated duty to “inform a client whether his plea carries a risk of deportation.” In other words, the Supreme Court has explicitly brought deportation considerations into the plea-bargaining arena. Furnishing legal advice with respect to an alien’s acceptance or rejection of a plea agreement without an adequate understanding of the probable risk of deportation may render counsel’s conduct constitutionally defective, constituting ineffective assistance of counsel under the Sixth Amendment. Moreover, counsel’s failure to possess a rudimentary understanding of the relevant deportation statutes in certain limited situations may constitute almost per se ineffective assistance.

The Padilla decision is not limited to affirmative misadvice. Rather, as stated above, defense counsel has an affirmative obligation to understand the relevant immigration law before advising a noncitizen client. This affirmative duty is particularly important where the deportation statute at issue can be fairly characterized as “succinct, clear, and explicit in defining the removal consequence[s]” of a particular conviction. In such situations, defense counsel’s failure to properly admonish his client could be considered ineffective assistance per se. In addition to a plea agreement that never reaches its intended settlement result, such ineffective assistance may be grounds for a malpractice suit—imposing personal liability on defense counsel. As such, it is imperative that criminal defense attorneys be apprised of the relevant immigration rules and procedure.

Given the fact that judges presiding over contemporary removal proceedings have almost no equitable discretion, once a noncitizen has been convicted of a removable offense, that conviction will almost invariably result in the removal of the noncitizen convict. Thus, the Padilla Court reasoned, “[t]he importance of accurate legal advice for noncitizens accused of crimes has never been more important.” Criminal defense attorneys representing noncitizen defendants must be mindful of the fact that, more often than not, protecting the accused’s right to remain in the United States is more important than avoiding the criminal sentencing process.

Roby Law Associates offers criminal defense attorneys and aliens timely advice concerning the immigration consequences of proposed plea agreements. In order to provide counsel, you will be requested to provide the following: Read More→