USCIS GRAPPLING WITH THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA

by
Cora-Ann V. Pestaina*

I previously wrote an article, FURTHER AAO SUPPORT FOR THE RIGHT OF A CORPORATION TO PETITION FOR ITS OWNER FOR AN H-1B VISA, expressing optimism for then new persuasive authority in the form a non-precedent decision from the Administrative Appeals Office (“AAO”) that highlighted the legal separation between a petitioning entity, a graphic design firm, and the beneficiary/owner, which sought to employ the beneficiary/owner in H-1B status as a graphic designer. It seemed that such clear and logical guidance would provide a smoother path toward future H-1B approvals where the beneficiary owns the petitioning entity. Despite this AAO decision and a few sporadic approvals, we have been hearing from others that the USCIS has begun to routinely deny these types of cases with a great deal of vigor citing the lack of an employer-employee relationship.

It is well established that a corporation is a separate and distinct legal entity from its owners and stockholders. See Matter of M, 8 I&N Dec. 24, 50 (BIA 1958, AG 1958); Matter of Aphrodite Investments Limited, 17 I&N Dec. 530 (Comm.1980); and Matter of Tessel, 17 I&N Dec. 631 (Act. Assoc. Comm. 1980).  As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship. The beneficiary will not be self-employed, but rather,  will be employed by the corporation, a separate legal entity from the beneficiary. Additional support for the premise that a Petitioner’s sole owner can be the same person as the Beneficiary can be found in Matter of X, File No. SRC 98 101 50785, (AAO, August 1999), reported in 5:2 immigration Bulletin, 89-90 (Matthew Bender Jan. 15, 2000) citing Matter of Aphrodite.
           
The regulations define a U.S. employer at 8 C.F.R. §214.2(h)(4)(ii) as a person, firm, corporation, contractor, or other association or organization in the United States which:

  1. Engages a person to work within the United States;
  2. Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.

In its denials of cases involving a beneficiary/owner, the USCIS conveniently disregards AAO decisions by stating that it is not bound by such unpublished decisions. While the USCIS acknowledges the regulation at 8 C.F.R. §214.2(h)(4)(ii), it states that the term “employee” is not specifically defined by statute or regulations for purposes of the H-1B classification. The typical H-1B denial will go on to state that the U.S. Supreme Court has determined that where a federal statute fails to clearly define the term “employee, ” courts should conclude “that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” See Nationwide Mutual Ins. Co. v Darden, 503 U.S. 318, 322 – 323 (1992).

Following Darden, the USCIS will consider Petitioner’s right to control the manner and means by which the product is accomplished; the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has a right to assign additional work to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and firing assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

In Darden, the Supreme Court considered the distinction between an employee and an independent contractor within the context of a dispute concerning eligibility for retirement benefits under ERISA. Darden dealt specifically with the ERISA statute’s circular definition of the term “employee” defining it as “any individual employed by an employer.” Because this definition was unhelpful, the Supreme Court construed the term “employee” in the ERISA context to incorporate common law agency criteria. The H-1B statute at INA § 101(a)(15)(H)(i)(b) does not include the term “employee.” The term “employee” appears in the H-1B regulations. The regulations, at 8 C.F.R. § 214.2(h)(4)(ii) clearly define the necessary employer-employee relationship for the admission of a temporary employee in H-1B status. Hence, the holding of Darden is not applicable to H-1B adjudications.

Moreover, despite our disagreement with the USCIS’ reliance on Darden, the U.S. Supreme Court explicitly directs lower courts to use common law principles in defining statutory terms where federal statutes have failed to clearly do so. A corporate entity established under state law, such as New York, would look to New York law, which has long recognized the basic proposition that corporations are legal entities that exist separate and apart from the members who actually participate in them. See Retopolis, Inc. v. 14th St. Dev. LLC., 17 AD3d 209, 797 N.Y.S.2d 1 [1st Dept 2005]; Island Seafood Co. v. Golub Corp., 303 A.D.2d 892, 759 N.Y.S.2d 768 [3d Dept 2003]; and Stern v. Stern, 799 N.Y.S.2d 164 [2004].

In response to the routine USCIS Requests for Evidence (“RFE”) questioning the existence of an employer-employee relationship, our colleagues in the immigration bar have also argued, pursuant to Matter of Tong, 16 I&N Dec. 593 (BIA 1978), that since self-employment is a violation of INA §245’s prohibition of unauthorized employment, then, logically, one who is self-employed is an “employee.” In Matter of Tong, a noncitizen’s unauthorized self-employment was held to preclude his adjustment of status because INA §245 provides in pertinent part that “the provisions of this section shall not be applicable to an alien…who hereinafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status…”  Further logical guidance exists under Matter of Smith, 12 I&N Dec. 772 (BIA 1968) which held, “In view of the fact that the petitioner has guaranteed the beneficiary full-time permanent employment for 52 weeks a year with a two week paid vacation and other fringe benefits and that the beneficiary will be paid directly by the petitioner who is responsible for all payroll deductions and contributions, it is concluded that the petitioner qualifies as the actual employer of the beneficiary within the meaning and requirements of the Immigration and Nationality Act, as amended.” So far, USCIS has refused to give weight to these arguments.  

If there are approvals, they are rare and a result of the petitioner’s ability to establish that the beneficiary will, despite petitioner’s size, perform specialized duties consistent with the H-1B and to demonstrate that the beneficiary’s employment will be controlled by the petitioner. Also, the chance of an approval is greater if others are also involved in the management of the entity. Petitioners must endeavor to establish the power to make final decisions and to terminate the beneficiary’s employment. For example, the employer-employee relationship might be satisfactorily illustrated where petitioner’s bylaws clearly dictate how the corporation will be managed. Petitioner may be able to show, through its bylaws, that its business and property will be managed by a Board of Directors and that a majority vote of this Board will govern the employment, compensation and discharge of all employees of the corporation. A Board of no fewer than three Directors, including the beneficiary, would mean that the majority vote belonged to Directors other than the beneficiary and essentially, that petitioner held the power to make decisions for the company and to terminate the beneficiary’s employment. As a result, the employer-employee relationship is less likely to be questioned.

Because few beneficiaries also own the petitioner, it is difficult to identify a corporate structure that would satisfy a USCIS adjudicator. Despite the occasional success story, the trend continues to be toward routine denials of these cases. These denials are regularly issued outside of the H-1B context as well (e.g. L-1) on any petition where the beneficiary owns the petitioner. While the USCIS’s fear of foreign nationals setting up U.S. corporations solely as a vehicle for self-sponsorship is certainly legitimate, the government cannot let this concern override all reason. In order to make an accurate assessment of these types of petitions, adjudicators ought to examine the entire petitioner-beneficiary relationship on a case by case basis, and to determine whether the beneficiary will indeed be working in the H-1B specialty occupation.


* Cora-Ann V. Pestaina is an Associate at Cyrus D. Mehta and Associates, PLLC where she practices immigration and nationality law. Cora-Ann received her J.D. in 2005 from Benjamin N. Cardozo School of Law/Yeshiva University where she was selected to participate in the Cardozo Immigration Law Clinic and assist attorneys with asylum and VAWA petitions. She served as Annotations Editor for the Cardozo Women’s Law Journal and was an executive member of the Black Law Students Association. Cora-Ann is a graduate of the Borough of Manhattan Community College (BMCC) where she earned an A.A. in Liberal Arts and was honored as the class valedictorian. She earned her B.A. in Political Science, graduating Magna cum Laude from Marymount Manhattan College. She is admitted to practice in New York and is a member of the American Immigration Lawyers Association. 

What Remedial Measures Can a Lawyer Take to Correct False Statements Under New York’s Ethical Rules?

This advisory analyzes an immigration lawyer’s ethical duty in New York upon realizing that a previously filed application for immigration benefits contained false or fraudulent information or a material omission.While a lawyer must competently advocate on behalf of a client, he or she must also represent the client within the bounds of the law. Therefore, knowingly assisting a client in the filing of a fraudulent application, or an application that contains false statements or evidence, violates the ethical obligation of candor toward a tribunal. Such an act may also criminally implicate the lawyer and client. 1

Since it is obviously unethical to assist a client in preparing an application that contains false or fraudulent information, this advisory instead examines what steps the lawyer must take after belatedly realizing that he or she in good faith prepared and filed such an application on behalf of the client.

On April 1, 2009, New York replaced its existing professional responsibility rules with the American Bar Association’s Model Rules of Professional Conduct (ABA Model Rules), with some modifications. These rules were promulgated as Joint Rules of the Appellate Division of the U.S. Supreme Court, effective April 1, 2009, (New York Rules or Rule). They supersede the former Disciplinary Rules of the Code of Professional Responsibility. 2 While this article refers to New York’s Rule 3.3, it should also be relevant to lawyers in other jurisdictions, as the New York Rules, especially Rule 3.3, are similar to the ABA Model Rules.

NEW YORK RULE 3.3

New York Rule 3.3, entitled “Conduct Before a Tribunal” provides:

(a) A lawyer shall not knowingly:

  1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
  2. fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
  3. offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. 3

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.

(f) In appearing as a lawyer before a tribunal, a lawyer shall not:

  1. fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
  2. engage in undignified or discourteous conduct;
  3. intentionally or habitually violate any established rule of procedure or of evidence; or
  4. engage in conduct intended to disrupt the tribunal.

New York Rule 3.3 makes several references to the need of a lawyer to take remedial measures. New York Rule 3.3(a)(1) states that “[a] lawyer shall not knowingly … fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” New York Rule 3.3(a)(3) requires the lawyer to take “reasonable remedial measures, including, if necessary, disclosure to the tribunal” when the lawyer comes to know of the falsity of material evidence that he or she may have offered on behalf of a client or a witness. New York Rule 3.3 (b) further states, “[a] lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduction related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”

While the terms “false” and “fraudulent” are both used in New York Rule 3.3, according to the definition of “fraud” or “fraudulent,” in New York Rule 1.0(i), these terms denote:

conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction or has a purpose to deceive, provided that it does not include conduct that, although characterized as fraudulent by statute or administrative rule, lacks an element of scienter, deceit, intent to mislead, or knowing failure to correct misrepresentations that can be reasonably expected to induce detrimental reliance by another.

Thus, unlike the term “fraudulent,” which requires an intent to deceive and detrimental reliance by another, the term “false,” according to Black’s Law Dictionary, denotes something that is simply untrue. Something can be false through knowing and intentional conduct as well as through negligence or an innocent mistake. New York Rule 3.3 imposes remedial obligation on an attorney not just when something that the attorney offers is fraudulent, but also when it is false.

Moreover, the terms “knowing,” “knowingly” and “knows” denote actual knowledge of the fact in question. 4 Thus, according to the New York State Bar’s Comment 7 to Rule 3.3, “[a] lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact.” 5 Yet, according to the definition, “[a] person’s knowledge may be inferred from circumstances.” 6 Under the doctrine of “conscious avoidance,” or using a more apt description, the “ostrich” doctrine, knowledge may be inferred from a combination of suspicion and indifference to truth or if one made a deliberate effort to avoid guilty knowledge by burying one’s head in the sand. 7 At times, a lawyer may know that the testimony is false even when the client or witness says it is true, especially when the lawyer has a firm factual basis to believe facts contrary to the proposed testimony. 8 Immigration lawyers have also been prosecuted successfully under the “conscious avoidance” doctrine. 9 It should be noted that a material omission can also fall under this rubric. 10 While it is true that the lawyer must resolve any doubts regarding the veracity of testimony or evidence in favor of the client, the lawyer cannot ignore an obvious falsehood, according to Comment 7 to New York Rule 3.3.

How does an immigration lawyer take remedial measures after belatedly learning that the client committed fraud under his or her watch? Take the example of a lawyer who prepared and submitted an application for political asylum with either the Department of Homeland Security (DHS) or the immigration court on behalf of a client in good faith. After submitting the application, the client reveals to the lawyer that certain information that indicated on the application was fabricated. Since the lawyer may now have actual knowledge of the fraud, New York Rule 3.3 requires the lawyer to remonstrate with the client to correct the false statement. If the client refuses to correct the false statement, New York Rule 3.3, includes as a remedial measure, “disclosure to the tribunal.” Indeed, New York Rule 3.3(c) puts a higher emphasis on the lawyer’s duty of candor toward the tribunal over the lawyer’s duty to maintain a client’s confidences under New York Rule 1.6. In the event that a lawyer knows of the client’s fraud, New York Rule 3.3(c) states that the lawyer “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal” notwithstanding that the information is protected by Rule 1.6. It should be further noted that Rule 1.6(b)(1) and (2) also contain various exceptions, and the most notable allow the lawyer to use or reveal confidential information that the lawyer believes is reasonably necessary to prevent reasonably certain death or substantial bodily injury or to prevent the client from committing a crime. Moreover, Rule 1.6(b)(3) also allows the lawyer to withdraw a written or oral opinion or representation if relied upon by third parties, where the lawyer has discovered that it is based on materially inaccurate information or is being used to further a crime or a fraud.

Finally, it should be noted that “tribunal” is broadly defined to encompass not just a court but even an “administrative agency or other body acting in an adjudicative capacity.” 11 The definition of “tribunal,” and its reference in Rule 3.3 with respect to an administrative agency still connotes a court-like adversarial proceeding involving two parties. At issue is whether offices within DHS, such as USCIS, along with the Department of Labor and Department of State, would be considered “tribunals” under this definition. The definition of tribunal goes on to state, “[a] legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting the party’s interests in a particular matter.” There is no question that a proceeding before an immigration judge or the Board of Immigration Appeals would be before a “tribunal,” but there is ambiguity as to whether it would extend to the above agencies too as it is unclear whether there is a neutral official who will render a legal judgment when one files an application with USCIS or with a U.S. consulate. As a practical matter, though, if an attorney knowingly assists a client in filing a false application, such conduct will likely trigger criminal liability regardless of whether the application was made to a tribunal or not. An attorney is also required to be truthful to third persons, governmental or otherwise, under Rule 4.1. Moreover, as noted, Rule 1.6(b)(3), while not mandating it, allows a lawyer to withdraw a written or oral opinion or representation relied upon by a third person (even if not with a tribunal), where the lawyer belatedly learns of its falsity. For purposes of the discussion in this article, the author assumes that the above noted agencies are tribunals as a similar duty of candor applies to immigration agencies under parallel ethical rules in 8 CFR §1003.102(c) and 8 CFR §292.3(b), infra, although the requirement is to “take appropriate remedial measures” without specific requirement to disclose to the tribunal.

Change From Prior Rule

Rule 3.3 changes the prior New York Disciplinary Rule (DR) 7-102(B)(1), which stated:
A lawyer who receives information clearly establishing that:

The client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret (emphasis added).

While DR 7-102(B)(1) also required the lawyer to take remedial measures upon learning of the client’s fraud, it contained a big exception, which effectively swallowed the rule. A lawyer was not required to reveal the fraud to the tribunal when the information was protected as a confidence or secret. According to Professor Roy Simon, “Only rarely will a lawyer have information about a client’s fraud that will not be protected as a confidence or secret.” 12 Yet, despite DR 7-102(B), several efforts were made by bar associations and courts to water down the exception. For instance, in N.Y. State Bar Opinion 781 (2004), a lawyer was permitted to reveal a client’s fraud to the tribunal if it fell under one of the exceptions of the lawyer’s duty to maintain the confidences of a client. One exception was DR 4-1-101(5), which allowed a lawyer to reveal confidences “in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.” 13 This exception to confidentiality is now encapsulated in new Rule 1.6(b)(3), supra, and provides further legal basis for a lawyer to reveal a client’s fraud to the tribunal.

Because the exception in DR 7-102(B) had been diluted even prior to the promulgation of New York Rule 3.3, it is now clear that New York Rule 3.3, effective April 1, 2009, obligates a lawyer to take remedial measures, including revealing to the tribunal, in case the lawyer knows that the client “intends to engage, is engaging or has engaged in criminal or fraudulent conduct.” See New York Rule 3.3(b). Moreover, Rule 3.3 does not limit the disclosure requirement only to fraudulent conduct, which requires conduct that results in detrimental reliance by another; it also requires a lawyer to take reasonable remedial measures with respect to the offering of false evidence. 14

RULES OF EOIR GOVERNING PROFESSIONAL CONDUCT

In addition to the state rules governing the professional conduct of lawyers, 8 Code of Federal Regulations (CFR) §1003.102 provides independent grounds that give the Board of Immigration Appeals (BIA) power to impose disciplinary sanctions against a practitioner who violates them. With respect to fraudulent conduct, 8 CFR §1003.102(c) empowers the BIA to sanction a practitioner who:

Knowingly or with reckless disregard makes a false statement of material fact or law, or willfully misleads, misinforms, threatens, or deceives any person (including a party to a case or an officer or employee of the Department of Justice), concerning any material and relevant matter relating to a case, including knowingly or with reckless disregard offering false evidence. If a practitioner has offered material evidence and comes to know of its falsity, the practitioner shall take appropriate remedial measures….

8 CFR §1003.102(c) differs from New York Rule 3.3 as it includes both a knowing and a “reckless disregard” standard. New York Rule 3.3 only implicates a lawyer if the lawyer “knowingly” offers a false statement on behalf of the client and precludes implicating a lawyer who was merely suspicious that the evidence or statement submitted was false. On the other hand, 8 CFR §1003.102(c)’s “reckless disregard” element may be superfluous for even if the standard was limited to “knowingly,” the lawyer may still be implicated if under the “conscious avoidance” doctrine there were sufficient facts for the BIA to find that the lawyer ought to have known about the false submission. However, 8 CFR §1003.102(c) is in another sense narrower than New York Rule 3.3 as it only requires the practitioner to take appropriate remedial measures who has come to know of the falsity of the evidence that was offered. Unlike Rule 3.3, it does not state that the lawyer may also reveal the falsity of the evidence to the tribunal.

Notwithstanding 8 CFR §1003.102(c)’s silence regarding whether a lawyer ought to disclose to the tribunal, the fact that it requires the lawyer to take “appropriate remedial measures” would permit the lawyer to disclose to the tribunal after all other measures that the lawyer undertook failed, which included remonstrating with the client in confidence. At times, mere withdrawal from the representation may not remedy the client’s illegal conduct. On the other hand, a “noisy withdrawal,” where the lawyer does not directly reveal that the withdrawal is motivated by the client’s fraud, but which results in the tribunal being able to guess the reason, might also be appropriate under certain circumstances.

Practitioners may be guided by the New York State Bar’s Comment 10 to Rule 3.3, 15 as follows:

A lawyer who has offered or used material evidence in the belief that it was true may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client or another witness called by the lawyer offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations, or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. The advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal confidential information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done, such as making a statement about the matter to the trier of fact, ordering a mistrial, taking other appropriate steps or doing nothing.

Comment 11 is even more forceful:

The disclosure of a client’s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps prosecution for perjury. But the alternative is for the lawyer to cooperate in deceiving the court, thereby subverting the truthfinding process, which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent. The client could therefore in effect coerce the lawyer into being a party to a fraud on the court.

Here are a few words of advice on how an immigration practitioner can prevent fraud or take remedial measures. Always give the client the impression that you will never tolerate or permit fraud. Better still is to know the law so well that you can counter any suggestion of illegal or inappropriate conduct with a correct and ethical legal approach. Suppose you are approached by a client who has been placed in removal proceedings after a worksite raid, and this client suggests that she can get married to a U.S. citizen friend who is willing to “help” her out of her immigration troubles. After some more probing, you know that this marriage will be entered into solely for purposes of obtaining an immigration benefit. While some unconventional marriages can still pass muster, 16 this one will not in your expert opinion. Your gut also tells you that the marriage will be a sham and you immediately dissuade the client from going through with it. You advise the client about the devastating consequences, especially the imposition of a bar on the approval of a future petition under INA §204(c), inadmissibility for fraud under INA §212(a)(6)(C)(i), and criminal liability to boot. 17 On the other hand, since you are a lawyer with mastery over your subject area, you advise your client about better options, which may not be so readily obvious. You find that the information obtained regarding your client’s nationality and immigration status during the raid was an egregious Fourth Amendment violation, and thus grounds to suppress and terminate proceedings. 18 You may also find that your client has another basis for relief lurking on the horizon, such as an I-130 petition that was filed by a lawful permanent resident parent prior to the sunset of INA §245(i) under the family 2B preference, and you may be able to seek continuances until the priority date becomes available. 19

Finally, if the client has been in the United States for 10 years prior to the issuance of the notice to appear, and meets other conditions, she could potentially apply for cancellation of removal under INA §240A(b), if she can demonstrate exceptional and extremely unusual hardship to her permanent resident mother.

What if you in good faith filed the marriagebased I-130 petition on behalf of the client, and now know for certain, that the marriage was not bona fide? You remonstrate with the client privately and seek to withdraw the I-130 petition. Since New York Rule 3.3 requires the lawyer to only take reasonable remedial measures, the withdrawal of the I-130 petition without disclosing the reason for the withdrawal may be appropriate under the circumstances. If the client agrees to withdraw the petition, you also need to warn the client that INA §204(c) imposes a bar to the approval of a future petition, notwithstanding the withdrawal, as §204(c) also penalizes one who has sought to apply for a benefit through a sham marriage. The I-130 petition filed by the parent would in any event be automatically voided upon your client’s marriage to the U.S. citizen as the family 2A category is only applicable to single sons and daughters. 20 On the other hand, she would still be eligible for cancellation of removal under INA §240A(b), and although the demonstration of good moral character over the past 10 years might be undermined, the client can demonstrate mitigating circumstances that she quickly withdrew the I-130 petition upon realizing her error and got no further benefit from it. While providing an in depth analysis on strategies for clients in removal proceedings is beyond the scope of this article, this commentary at least provides a demonstration of how a good lawyer can still ethically represent a cooperative client in difficult and sticky situations.

But what if the client decides not to withdraw the I-130 petition after all your efforts? You as a lawyer cannot possibly continue with the representation, but what is your obligation regarding candor to the tribunal? New York Rule 3.3(b) requires you to make disclosure to the tribunal. If you do not want to flat out state that the I-130 is fraudulent, can you make a “noisy” withdrawal, such as letting the court know that as its officer, you are ethically unable to continue representation on the I-130 petition? This is obviously difficult to answer. If you feel that a “noisy” withdrawal will signal to the immigration judge the reason for your withdrawal and will put him or her on notice about the fraud in the I-130 petition, you may have taken necessary measures to rectify the fraud. Also, because 8 CFR §1003.102(c) does not require a lawyer to make disclosure to the tribunal, a “noisy” withdrawal may be an appropriate compromise in light of the conflict between the federal and the New York rule. 21

Finally, it is worth mentioning that while the lawyer’s duty of candor to the tribunal is paramount, he or she is also required to seek the objective of the client. 22 This tension should result in thoughtful ways in which the attorney’s duty of candor can be fulfilled, and in a manner least damaging to the client. This may involve, for example, timing of the “noisy withdrawal” or other notification to the tribunal at an effective time, perhaps before reliance by the tribunal, but when another avenue for relief has ripened for the client. Or in the case of the political asylum applicant described earlier in the article, this may involve contextualizing the rectification of the record in a manner least damaging to the client’s case. For example, if the asylum claim otherwise includes truthful elements, the withdrawal of the damaging evidence should be presented at the same time and as part of a packet of documentation or evidence that is truthful and otherwise supportive of the client’s claim.

Duration Of Obligation

How long is the lawyer’s obligation? What if the former client in the above example meets you after 20 years in a bar, long after she has become a U.S. citizen, and tells you that the marriage that supported the I-130 petition was a sham? According to Comment 12A of New York Rule 3.3, a lawyer’s obligation to take reasonable remedial measures is “limited to the proceeding in which the lawyer has offered or used the evidence in question.” Nor is the obligation to remedy applicable, according to Comment 12A, where another lawyer is retained to represent a person in an investigation or proceeding concerning the person’s conduct in a prior proceeding.

Comment 12A is not so clear. Does this mean that an attorney is relieved of this responsibility once the proceeding is over before that particular tribunal, and not a further proceeding such as an appeal? If this were the case, an attorney could perpetuate the fraud during appeal after it had first been perpetrated in the lower tribunal. Perhaps Comment 12A could be read more to define the scope of an attorney’s obligation under the rule, i.e., (i) the duty is limited to the actual proceeding in which the false information has been provided and (ii) the duty would not extend to a new attorney who is hired to represent someone in connection with his or her conduct in the prior proceeding. Assume for example, that in the above hypothetical the former client who has become a U.S. citizen wishes to sponsor her mother for permanent residency, and instead of in the bar, she discloses to you after you have filed the I-130 petition to sponsor her mother that her marriage supporting the previous I-130 petition was a sham. Based on Comment 12A, it seems that the attorney would not be required to take remedial action either by disclosing the misrepresentation to the tribunal in the new case or by going back to the prior tribunal, since the duty to take remedial action ended once the prior case became final. 23 But this issue is still up in the air. There is nothing in Rule 3.3, adopted by the New York courts, that suggests a temporal limitation, unless the phrase in Comment 12A “limited to the proceeding” means not only the subject matter of that proceeding but also the time period in which the proceeding takes place. It is possible that a court might hold that the obligation extends in perpetuity although the results would be quite ridiculous if the line is not drawn at the time the proceeding ends. Suppose a lawyer represents a client who derived citizenship at birth from a parent who the lawyer had also represented and who, it turns out, had obtained his citizenship inappropriately. Would the lawyer be required to rectify this issue pertaining to the client’s parent at the time the current client, the daughter, retains the lawyer to file an I-130 petition for a relative? As the above example illustrates, there are very good policy reasons to limit the obligation to the end of the proceeding itself. As time passes, the undoing of previously committed fraud implicates the status and rights of other people, in this case the daughter. The imposition of such a limitless obligation on an attorney would also diminish the purpose of the ethics rules themselves in preventing fraudulent representations to the tribunal. In this example, the lawyer acted in good faith before the tribunal even though the client may have bamboozled him. Also, there are other processes in place that can rectify the situation, such as the government’s ability to commence denaturalization proceedings. And last, there are reasons to end the obligation at the conclusion of the proceeding similar to why statutes of limitation exist. Over time, witnesses and documents may not be available and memories fade. Indeed, Comment 13 to ABA Model Rule 3.3 is clear:

A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

CONCLUSION

Some may be alarmed and dismayed with the elimination of DR 7-102(B), which prevented the lawyer from disclosing a client’s fraud to the tribunal if it was protected as a confidence or secret. But DR 7-102(B) was problematic, and as noted earlier, the exception had been substantially diluted. New York Rule 3.3, on the other hand, replicates ABA Model Rule 3.3, and is thus in harmony with the ethical rules of the majority of states. Indeed, New York Rule 3.3 encourages a lawyer to be ever more vigilant and develop a keen nose to sniff out and smite a client’s proclivity for fraudulent conduct at the very outset of the representation. From a public policy perspective, lawyers are officers of the court, and should not, under the cover of an ethical rule safeguarding a client’s confidence or secret, be a party to a client’s fraudulent or criminal conduct before the tribunal. While a lawyer can continue to zealously advocate the facts and law in a manner from the client’s point of view, according to Comment 2 of New York Rule 3.3, “the lawyer must not allow the tribunal to be misled by false statements of law or fact or by evidence that the lawyer knows to be false.”

Following ethical guidelines regarding a lawyer’s duty of candor to the tribunal does not merely keep a lawyer out of trouble, it also compels and incentivizes him or her to attain excellence, which in turn will enhance the lawyer’s reputation and esteem among clients, within the legal community and before the community and society at large.

 

Notes:

  1. For example, 18 USC §1001, the federal penal provision which covers a broad range of offenses, provides:

    a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the government of the United States, knowingly and willfully—

    1. falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
    2. makes any materially false, fictitious, or fraudulent statement or representation; or
    3. makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

    shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

  2.  The new rules can be found on the websites of the New York Unified Court System at www.courts.state.ny.us/ rules/jointappellate/NYRulesofProfConduct_09.pdf and of the New York State Bar Association at www.nysba.org/Content/NavigationMenu/ForAttorneys/Prof essionalStandardsforAttorneys/NYRulesofProfessionalCondu ct4109.pdf. Although the New York State Bar has issued comments to the new rules, they have not been officially incorporated by the Appellate Divisions of the Supreme Court in New York. The document with both the rules and comments is available at www.nysba.org/Content/Navigatio nMenu/ForAttorneys/ProfessionalStandardsforAttorneys/Fin alNYRPCsWithComments(April12009).pdf. You can also visit www.nysba.org and click on the relevant links to find these documents.
  3. New York Rule 1.6 prohibits a lawyer from knowingly revealing confidential information. “Confidential information” includes information protected under the attorneyclient privilege, the attorney work product doctrine as well as secrets protected under the fiduciary duty of an attorney towards the client under ethical rules. Rule 1.6 accounts for both these sources and defines such information gained during or relating to the representation of a client as (a) protected by the attorney-client privilege; (b) likely to be embarrassing or detrimental to the client if disclosed; or (c) information that the client has requested be kept confidential. As will be noted, infra, there are several exceptions to this rule.
  4.  New York Rule 1.0(k).
  5.  Yet, a lawyer is permitted to refuse to offer testimony or other proof that the lawyer reasonably believes to be false, according to Comment 9 to New York Rule 3.3.
  6. Id.
  7.  See U.S. v. Draves, 103 F.3d 1328 (7th Cir. 1997); Cf. U.S. v. Catano-Alcate, 62 F.3d 41 (2d Cir. 1995) (doctrine of “conscious avoidance” permits an inference of actual knowledge of a particular fact if the person is aware of a high probability of the fact’s existence, unless the defendant actually believes that it does not exist).
  8.  See Restatement (Third) of the Law Governing Lawyers §120 Cmt. (2000).
  9.  U.S. v. Abrams, 427 F.2d 86 (2d Cir. 1970) (although the attorney may not have been specifically aware of his client’s plan for departure, the jury could have found that the attorney acted with reckless disregard of whether statements in an affidavit supporting an extension were true and that he acted with a conscious purpose to avoid learning the truth); U.S. v. Sarantos, F.2d 877 (2d Cir. 1972) (rejecting Sarantos’ contention that an attorney must investigate “the truth of his client’s assertions” or risk going to jail, the court stated that an attorney should not counsel others to make statements in the face of obvious indications of which he is aware that those assertions are not true); U.S. v. Sheldon Walker, 191 F.3d 326 (2nd Cir. 1999) (rejecting attorney’s contention that responsibility for a false application rested on his employees as he deliberately remained ignorant of their conduct). See also H. Joe, “Ethics in Immigration Law: Immigration Benefit Fraud and the Peril of Conscious Avoidance,” Immigration Briefings, No. 02-6, June 2002.
  10. Cincinnati Bar Association v. Nienaber, 887 N.E.2d 678 (Ohio 1997) (lawyer violated Code analogue of Rule 3.3 prohibiting false statements of fact when he did not reveal information about his record when asked by the court at sentencing). This case and many others relevant to what constitutes a material omission are cited in the Annotated Model Rules of Professional Conduct, Fifth Edition, Center for Professional Responsibility, American Bar Association, p. 333.
  11.  Rule 1.0(w) defines the term as follows:
    “Tribunal” denotes a court, an arbitrator in an arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter.
  12.  Simon’s New York Code of Professional Responsibility Annotated, 2008 Edition, Thomson/West, p. 1238 (hereinafter “Simon’s New York Code”).
  13.  Id. Professor Simon also discusses People v. DePallo, 96 N.Y.2d 437 (2001), which held that a criminal defense lawyer’s revelation to the court that his client committed perjury on the stand was consistent with DR 7-102(B).
  14. N.Y. State Bar Op. 781 (2004) (“Fraud” as defined in the Code “does not include conduct, although characterized as fraudulent by statute or administrative rule, which lacks an element of scienter, deceit, intent to mislead, or knowing failure to correct misrepresentations which can be reasonably expected to induce detrimental reliance by another”). The New York rule similarly defines “fraud” at 1.0(h).
  15. This comment is identical to Comment 10 to ABA Model Rule 3.3.
  16.  See Matter of McKee, 17 I&N Dec. 332 (BIA 1980) (marriage was not a sham solely because the parties to the marriage were no longer living together).
  17.  While a lawyer cannot counsel a client to engage in conduct that the lawyer knows is illegal or fraudulent, New York Rule 1.2(d) permits the lawyer to discuss the legal consequences of any such proposed course of conduct with a client.
  18.  The writer refers readers to an interesting recent decision of immigration judge M. Strauss in New Haven, CT, where removal proceedings were terminated due to egregious constitutional violations, http://drop.io/xrkcjn8.
  19. A noncitizen who was the subject of an immigrant visa petition or a labor certification, filed prior to April 30, 2001, remains “grandfathered” to adjust status under §245(i), even if he or she is being sponsored through another petition or labor certification filed subsequent to April 30, 2001. If the petition or application was filed after January 14, 1998, the individual, to claim eligibility under §245(i) must also show that he or she was physically present on December 21, 2000. See also 8 CFR §245.10. For guidance on requesting a continuance based on pending relief, see Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). On the specific topic of continuances until a priority date becomes current, see Ahmed v. Gonzales, 465 F.3d 806 (7th Cir. 2006).
  20. 8 CFR §205.1(a)(3)(i)(I).
  21. Even Comment 15 of the New York State Bar to New York Rule 3.3 states, “In connection with a request for permission to withdraw that is premised on a client’s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.”
  22.  New York Rule 1.1(c)(1).
  23.  Suppose the client was still a permanent resident and retained you to represent her in filing an N-400, Application for Naturalization, and revealed the prior fraud with respect to the I-130. The author believes there would still be an obligation to disclose the fraud on the N-400 notwithstanding the New York rule, because the N-400 specifically asks the following questions:
    1. Have you ever given false or misleading information to any U.S. government official while applying for any immigration benefit or to prevent deportation, exclusion or removal?
    2. Have you ever lied to any U.S. government official to gain entry or admission into the United States?

December 2009 Immigration Update

Headlines:

Details…

1. ICE Workplace Audits Stepped Up

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19, 2009, the issuance of Notices of Inspection (NOIs) to approximately 1,000 employers across the U.S. associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

The businesses served with audit notices were selected for inspection, ICE said, "as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security — for example, privately owned critical infrastructure and key resources." The names and locations of the businesses were not released "due to the ongoing, law enforcement sensitive nature of these audits."

Audits involve a comprehensive review of Forms I-9 (Employment Eligibility Verification). Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law. ICE identified I-9 audits as "the most important administrative tool in building criminal cases and bringing employers into compliance with the law."

Statistics resulting from 654 audits announced in July included:

  • ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents, which was approximately 16 percent of the total number reviewed.
  • As of November 19, 2009, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are being considered for NIFs.
  • ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

The Alliance of Business Immigration Lawyers (ABIL) notes that some clients are reporting receipt of subpoenas for wage and related records. Relying on inexperienced counsel and self-audits is no longer sufficient. Contact your ABIL member for guidance in particular cases, including conducting proactive pre-audits.

The ICE announcement is at http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm.

2. USCIS Reminds Applicants for Travel Documents To Apply Early

U.S. Citizenship and Immigration Services has reminded applicants for advance parole (permission to reenter the U.S. after traveling abroad) to apply early. USCIS said that travelers must obtain advance parole if they have been granted temporary protected status or have a pending application for (1) adjustment of status to lawful permanent residence; (2) relief under § 203 of the Nicaraguan Adjustment and Central American Relief Act; (3) asylum; or (4) legalization.

The agency issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.

The fact sheet is available at http://www.uscis.gov/USCIS/2009Final.pdf.

3. USCIS Updates H-1B FY 2010 Cap Count

As of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed, U.S. Citizenship and Immigration Services (USCIS) announced. USCIS has approved sufficient H-1B petitions for those with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of a worker with an advanced degree will now count toward the general H-1B cap of 65,000.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions has been received to reach the statutory limit, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The recent pace of filings suggests that H-1B numbers may be exhausted for the fiscal year by the end of December. After that, employers will be left with limited alternatives for hiring skilled foreign nationals when U.S. workers are unavailable until filings for the next fiscal year can be made.

For details, see http://www.uscis.gov/h-1b_count.

4. State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials

The Department of State has taken the position that those who have applied for a visa that cannot be granted due to a need for further security clearances, or additional documents or information, have been effectively "denied" a visa and must disclose this when completing their ESTA (Electronic System for Travel Authorization) application should they later wish to use the Visa Waiver Program as a visitor while their visa application remains pending. The Alliance of Business Immigration Lawyers warns that this situation can be confusing because the applicants may have been told simply that their applications require further processing rather than that they have been denied, but then they may be refused admission later for misrepresentation if they do not disclose the denial. Such travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations. Those who have completed an ESTA registration without revealing the denial are advised to re-register and indicate the specifics. This is a fluid situation, and the Department’s position is controversial. Consult your immigration attorney for more specific guidance in particular cases.

Information on the ESTA system is available at https://esta.cbp.dhs.gov/B4CB86. The new Department of State position was made in consultation with U.S. Customs and Border Protection (CBP), which announced it to the American Immigration Lawyers Association’s (AILA) CBP liaison committee. A public announcement by CBP is awaited.

5. USCIS Issues Guidance on I-140 Issues and Labor Certifications

U.S. Citizenship and Immigration Services recently provided guidance on (1) determinations of whether a particular employer falls within the definition of INA § 203(b)(1)(B), thus allowing USCIS to grant, if otherwise approvable, a first preference (EB-1) green card petition filed by that employer on behalf of an outstanding professor or researcher in connection with an offer of employment; (2) procedures for determining whether a labor certification has been filed with a Form I-140 (Immigrant Petition for Alien Worker) during its validity period; and (3) various issues relating to labor certification applications approved by the Department of Labor and filed in support of I-140 petitions.

Among other things, the guidance clarifies that government agencies do not qualify as "private" employers for outstanding professors and researchers, and generally do not fit within the definition of § 203(b)(1)(B) unless the government agency is shown to be a U.S. university or institution of higher learning. The guidance notes that government agencies that do not fit the definition under § 203(b)(1)(B) may have other available immigration avenues to offer permanent employment to professors or researchers. For example, the guidance notes, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may request an "alien of extraordinary ability" green card classification under INA § 203(b)(1)(A).

The guidance also discusses the 180-day validity period for approved labor certifications that have an ending validity date that falls on a Saturday, Sunday, or federal holiday. USCIS said that it will accept the filing of I-140 petitions on the next business day where the supporting labor certification validity period ends on a Saturday, Sunday, or federal holiday.

The guidance is available at http://www.uscis.gov/20Signed.pdf.

6. USCIS Temporarily Accepts Incorrectly Denied LCAs for Certain H-1B Cases

In August and September 2009, the U.S. Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS’s current H-1B petition initial filing requirements, "are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.

The ombudsman said that USCIS has the authority to mitigate these effects. The ombudsman recommended that USCIS: (1) reinstate its previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with the DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and (2) establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

On November 5, 2009, USCIS announced that it would temporarily accept H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010. USCIS noted, however, that it will only accept such H-1B petitions if they are filed at least seven calendar days after the LCAs were filed with the DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of the DOL’s e-mail giving notice of receipt of the LCA.

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition, USCIS said. The agency will give petitioners 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs. See http://www.uscis.gov/Petitions.pdf.

The ombudsman’s report, "Temporary Acceptance of Labor Condition Applications (LCAs) for Certain H-1B Filings," was released on October 23, 2009, and is available at http://www.dhs.gov/xlibrary/assets/cisomb_recommendation_43_LCAs_October_2009.pdf.

7. Labor Dept. Announces Expiration of H-1C Nursing Program

The Department of Labor (DOL) has announced that the H-1C program, established under the Nursing Relief for Disadvantaged Areas Reauthorization Act, will sunset on December 21, 2009. Congress has not reinstated the program and, absent further legislative action, will no longer accept H-1C attestations from hospitals. The DOL said that questions about the H-1C program should be addressed to tlc.chicago@dol.gov. For more, see http://www.foreignlaborcert.doleta.gov/news.cfm.

8. DOL Extends H-2A Transition Period

The Department of Labor has published an interim final rule extending the transition period application filing procedures implemented under the December 2008 H-2A final rule. The application filing procedures under the extended transition period apply to all employers with dates of need before June 1, 2010. The interim rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-27496.pdf.

9. USCIS Releases Fact Sheet on ‘Public Charge’ Determinations

U.S. Citizenship and Immigration Services has released a fact sheet on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the U.S. and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge. The fact sheet outlines benefits that could make a noncitizen inadmissible as a public charge if other criteria are met, and also lists benefits that are for special purposes rather than income maintenance and therefore not subject to public charge consideration, such as Medicaid, Food Stamps, the Children’s Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief.

The fact sheet is available at http://www.uscis.gov/USCIS/sheet_11_06_09.pdf.

10. December Visa Bulletin Notes Reinstatement of Certain Religious Workers and Investor Pilot Program Categories

The Department of State’s Visa Bulletin for December 2009 notes that legislation in October extended the employment fourth preference "Certain Religious Workers" and employment fifth preference "Investor Pilot Program" green card categories for three years, through September 30, 2012.

Other employment-based categories generally have not budged since November’s Bulletin, with the exception of the India third preference and "Other Workers" categories, which both advanced one month, to May 1, 2001.

The December 2009 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.

11. SEVP Announces New Mailing Address, Phone Number

The Student and Exchange Visitor Program office has a new mailing address. All correspondence should be mailed to: Student and Exchange Visitor Program, Attn: (Branch Name or Job Title), SEVP MS 5600, DHS/ICE, 500 12th Street, SW; Washington, DC  20598-5600. The new main telephone number is (703) 603-3400. E-mail addresses have not changed, so inquiries may be sent to SEVP via its previous e-mail address or via SEVIS.Source@dhs.gov. Also, the ICE Web site (http://www.ice.gov) layout has been updated, including the SEVP pages.

For a "faster resolution and response," SEVP recommends the following:

The announcement is available at http://www.ice.gov/sevis/.

12. NEXUS Frequent Border Crossing Enrollment Center Moves

U.S. Customs and Border Protection announced that the enrollment center for U.S. Customs and Border Protection’s frequent border crossing program (NEXUS) moved on November 30, 2009, from International Falls, Minnesota, to Fort Frances, Ontario, Canada.

The NEXUS Enrollment Center is now located at 301 Scott Street, Fort Frances, Ontario, Canada P9A 1H1. The hours of operation are Monday and Wednesday, 9 a.m. to 4 p.m., and Thursday, 11 a.m. to 7 p.m.

The NEXUS program allows pre-screened, low-risk travelers to be processed with less delay by U.S. and Canadian officials at designated highway lanes at high-volume border crossing locations. Approved applicants are issued a photo identification/proximity card. Participants present their NEXUS card and make a declaration. They are then released, unless chosen for a more stringent inspection.

Both the U.S. and Canada must approve an individual’s application. Denial of an application by either country will prevent an individual from participating in the NEXUS program. NEXUS is a binational program and applicants need to complete only a single application form, which can be filled out online, mailed, or faxed.

Qualified applicants are required to come to a NEXUS Enrollment Center for an interview. Interviews can be scheduled online using the Global Online Enrollment system located on the NEXUS Web site (http://www.cbp.gov/xp/cgov/travel/trusted_traveler/nexus_prog/).

The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/11242009_9.xml.

13. Northern Mariana Islands Transition to U.S. Immigration Law, Guam Also Affected

On November 28, 2009, the Commonwealth of the Northern Mariana Islands (CNMI) transitioned to U.S. immigration law under the Consolidated Natural Resources Act of 2008 (CNRA). Although U.S. immigration law now applies to the CNMI, it will undergo a transition period with temporary measures ending December 31, 2014, to allow for an orderly transition and give individuals time to identify an appropriate visa classification, U.S. Immigration and Customs Enforcement (ICE) announced.

Recognizing that some unique situations would result as the CNMI transitions to U.S. immigration law, ICE said that the Department of Homeland Security may grant parole to applicants for admission on a case-by-case basis for urgent humanitarian reasons or significant public benefit.

Parole authority will be used in two specific situations in the CNMI: eligible Chinese and Russian nationals visiting for business or pleasure will be eligible for U.S. Customs and Border Protection (CBP)-administered parole into the CNMI on a case-by-case basis, and certain affected people, including CNMI permanent residents and various categories of immediate relatives, will be eligible for parole on a case-by-case basis.

The CNRA also contains two provisions that affect the U.S. Territory of Guam: elimination of the current Guam Visa Waiver Program and creation of a new Guam-CNMI Visa Waiver Program, under which eligible nationals of program countries and geographic areas may be authorized to visit Guam and/or the CNMI for up to 45 days; and elimination of the statutory cap on the number of H nonimmigrant worker petitions that can be filed by employers in Guam and the CNMI.

CBP has begun inspecting all passengers arriving at CNMI airports on flights from outside the U.S. CNMI authorities will continue to conduct customs inspections.

Additional information is available at http://www.ice.gov/pi/nr/0911/091127washingtondc.htm and http://www.ice.gov/doclib/pi/news/factsheets/cnmi_fact_sheet.pdf.

SUPERVISED RECRUITMENTS IN TOUGH ECONOMIC TIMES – PRACTICAL TIPS FOR COMPLIANCE

by
Maggie Murphy, Cyrus D. Mehta, and David Ware*

When the Program Electronic Review Management (PERM) system regulations1 were introduced, it was proposed that PERM adjudications could take place very quickly. Indeed, within the first few years of the effective date of the regulations, users, including the authors, reported same-day and next-day approvals of PERM applications filed, and a high percentage approved within 30-60 days. It appeared the DOL had fixed its broken labor certification adjudication system. Yet, as time marched on, more audits were initiated, and problems with DOL staffing2 has resulted in a 10-month backlog for cases under regular review, 2 years for audited cases, and even longer for cases under appeal.3 To make matters worse, in June of 2009, DOL announced plans to roll out a large-scale Supervised Recruitment Initiative from the Atlanta National Processing Center by October 1, 2009.4 As national unemployment rates continue to rise and companies reduce their workforces at alarming rates, it is time to review in detail the DOL regulations outlining Supervised Recruitment requirements and prepare for additional delays in PERM processing.

Requirements Under Supervised Recruitment

“Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers,” said Solicitor of Labor Gregory F. Jacob.5 “The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.”6

The Supervised Recruitment process is authorized under federal regulations at 20 C.F.R. § 656.21, which outline the requirements and time deadlines for this process. The process is very similar to the recruitment ordered during the adjudication of a “Traditional” Labor Certification Application filed prior to the implementation of the PERM regulations. In addition to the regulations, the DOL has published “Frequently Asked Questions” about Supervised Recruitment to clarify procedural and timing issues.7

Following is the general timeline and requirements outlined in the regulations:

  1. Supervised Recruitment Notice is Issued to Employer – Employer has 30 Days to Provide Draft Recruitment for Review by the Certifying Officer (CO)When a PERM application is placed under Supervised Recruitment, the CO will notify the employer with the required recruitment to be conducted. Generally, the recruitment ordered is an advertisement to run in a newspaper of general circulation or in a professional, trade or ethnic journal; however, the CO may order additional recruitment either in the initial Notice, or in a subsequent Notice.8 The notice will stipulate recruitment activity required, and it should provide guidelines. The employer must submit a draft of the proposed recruitment to the CO for review within 30 days.

Practice Tip: The 30-day time deadline is actually 30 calendar days, which does not leave much time to prepare the draft recruitment. The attorney of record in the case should receive the Notice ordering Supervised Recruitment, so it will be critical to engage the employer as quickly as possible, to obtain appropriate approval for the draft before sending it to the DOL. Note that the advertisement will have to incorporate additional features that may not have been part of the pre-filing advertising. 20 C.F.R. 656.21(b)(2) lists criteria for what must be included in a supervised recruitment advertisement, which differ from the contents in a pre-filing advertisement under 20 C.F.R. 656.17(f). The latter requires the advertisement to “[provide] a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought.”9 On the other hand, an advertisement under Supervised Recruitment must describe the job opportunity, summarize the minimum requirements, and most importantly, offer training if the job opportunity is the type for which employers need to provide training.10 Finally, it is important to accurately include the DOL address and P.O. Box number specified in the recruiting instructions. Unlike a pre-filing recruitment, which must identify the employer, a supervised recruitment advertisement does not require employer identification, and instead, requires the advertisement to direct resumes to a specific DOL address. Finally, the CO will set a new prevailing wage for the job. While the wage need not be indicated in the recruitment, care should be taken to ensure that the employer would still have the ability to pay at the time of filing the I-140 petition.

  1. CO Reviews the Draft Recruitment and Responds with Either a “Assessment Correction Letter or Recruitment Instructions.If the CO wishes to make any changes to the draft recruitment, it will notify the employer accordingly. If the recruitment is approved, the CO will issue a Recruitment Instructions letter specifying where the recruitment should be placed, when, and for how long. The regulations state that if ad is to run in a newspaper of general circulation, it must run for three consecutive days, one of which must be Sunday. If the ad is to run in a professional, trade or ethnic journal, it must run in the next available published edition.11

Practice Tip: During the traditional labor certification era, the SWA often questioned certain job requirements and required a showing of business necessity prior to approving the draft. It is unclear whether the CO in the supervised recruitment era will do likewise, and may not, if the justifications for these requirements were already sent in if the case was audited prior to the supervised recruitment. But be prepared to justify excessive job requirements before the CO approves the draft. Finally, note that the employer would still not be able to make any changes on the PERM form during supervised recruitment.

  1. Employer Places Recruitment According to Instructions – Timing for Recruitment Specified by DOLWhen instructed to recruitment by the CO, the Employer should place the specified recruitment. The employer will have to start the advertising within 15 days, although they can run beyond 15 days. As noted, Draft ads must12:
    1. Direct applicants to send resumes or applications for the job opportunity to the CO for referral to the employer;
    2. Include an identification number and an address designated by the CO;
    3. Describe the job opportunity;
    4. Not contain a wage rate lower than the prevailing wage rate13;
    5. Summarize the employer’s minimum job requirements, which cannot exceed any of the requirements entered on the application form;
    6. Offer training if the job opportunity is the type for which employers normally provide training; and
    7. Offer wages, terms and conditions of employment no less favorable than those offered to the alien.

Practice Tip: Again, time is of the essence. The CO should specifically list where and when the recruitment should be placed. It is likely that the CO may specifically require that the advertisement be placed in a newspaper of general circulation, which must run for 3 days including a Sunday, or in a professional, ethnic or trade publication.14 Care must be taken to run the three consecutive advertisements, within the stipulated period, so that they can also run on a Sunday. Current ad costs and schedules for newspapers and trade/professional journals should be obtained at the time the draft recruitment is sent to the CO for review, so that the employer will be ready to place recruitment as soon as the Recruitment Instructions are received.

  1. CO Forwards All Resumes and Applications Received in Response to the Recruitment to the Attorney/Agent of Record, or to the Employer – Normally Within 30 Days of RecruitmentNormally within the 30 day period following recruitment, the CO will forward all resumes and applications received in response to the Employer’s recruitment efforts. The Employer must consider all U.S. applicants for the job and carefully document all contact with applicants. It is recommended that employers complete detailed analysis of resumes and then keep records of all contact with applicants, including phone calls to arrange for phone or office interviews, any additional documentation provided by the applicant. If the applicant is rejected, the employer must carefully document the lawful reasons for the rejection.

Practice Tip: In addition to following PERM regulations regarding the preparation of the recruitment report,15 it is prudent to clearly document all contact with the applicants, including phone logs, return-receipt notices for written correspondence and emails, as well as detailed notes for the disqualification of applicants.16 It is further noted that the attorney will be the first to receive the resumes, and he or she must be mindful of DOL’s announcement on August 29, 2008 specifically prohibiting the attorney from making any assessments of the resume before the employer does.17 While, according to the August 29, 2008 guidance, there is nothing prohibiting attorneys from receiving resumes, attorneys may not conduct any preliminary screening of resumes before an employer does, other than the routine and ministerial organization of resumes.18 Also, attorneys cannot withhold any resumes that they may receive from U.S. applicants.

  1. CO Issues a Recruitment Report Letter to the Employer – Employer Has 30 Days to Respond with a Detailed Recruitment ReportGenerally, 30-60 days after the Recruitment has been placed, the CO will send the Recruitment Report Letter, requesting a detailed recruitment report within 30 days. The Employer must provide the following information and evidence as part of the Recruitment Report:
      1. Evidence of Recruitment – tear sheets from the publications in which the recruitment ran, proof of publication, or dated copies of web pages, if applicable;
      2. Number of U.S. workers who responded to the recruitment;
      3. Names, addresses, and resumes of those who applied for the job;
      4. Number of workers interviewed;
      5. Job title of the person who conducted interviews; and
      6. Detail regarding lawful reasons as to why each applicant was rejected for the position.

Practice Tip: In addition to the employer’s recruitment report, the attorney of record should prepare not only the required steps taken to ensure compliance with DOL regulations and the CO’s instructions, but also a brief or letter outlining the legal reasons for each applicant’s disqualification. If the labor certification contains alternative requirements requiring the Kellogg standard in evaluating job applications – i.e. agreeing to consider applicants possessing any suitable combination of education, training or experience,19 the recruitment report must also establish that the applicants did not possess any suitable combination of education, training or experience. Also important is to contact applicants soon after the resumes have been received; otherwise the DOL may conclude that the employer did not recruit in good faith.20

Upon submission of the Recruitment Report to the DOL, the CO will either make a decision in the case or, possibly, order additional recruitment. If the Employer requires an extension of time to respond to either the initial Notice, the Recruitment Instructions, or the Recruitment Report Letter, it may request an extension “for good cause,” and it is within the CO’s discretion to grant the extension.21 Therefore, if an extension is needed, it is recommended that the reason for the extension be clearly and concisely explained and documented and that a specific time frame be requested.

Can Supervised Recruitment be Avoided

PERM is an audit-based system. Applications are submitted electronically and recruitment activities, although reported, are not documented. The only opportunities the DOL has to review the evidence of required recruitment are through the audit process, or via Supervised Recruitment. Sometimes, DOL will audit the case first, before requiring additional recruitment. However, as was stated above, the DOL has stated its goal to place many more cases under Supervised Recruitment until the unemployment levels drop significantly, so it is unlikely such Notices can be avoided. Based on DOL’s public comments, it appears that Supervised Recruitment decisions will be based more on statistical analysis of a given job market and the stated job opportunity, rather than any “audit triggers” which may sometimes be avoided via skillful preparation of the ETA 9089.

Rising unemployment rates and publicized layoffs in certain industries and geographic locations contribute to the DOL’s planned initiative to protect the integrity of the PERM program and certify cases only after the employer can prove that there are no qualified U.S. workers for this position. Expect DOL to target companies with publicized layoffs or reductions in force for Supervised Recruitment, as well as employers in certain industries, such as high-tech/computer industries, automotive-related industries, and financial/banking industries. The DOL has specifically admitted to targeting cases filed for Financial Analyst positions in the New York City area after lay-offs in the financial industry were widely publicized.22

The best course of action for employers is to follow the PERM regulations very carefully when recruiting initially, and to be vigilant in keeping interview logs and notes regarding applicants for the position and the legal reasons for disqualification. Although Supervised Recruitment may not be avoidable, having all required recruitment evidence and organized documentation for responses to requests will prepare the employer for additional recruitment activities. Furthermore, a discussion between the attorney and the employer regarding the possibility of additional recruitment and what to expect will prepare the employer to mobilize for responding to each Notice and Letter from DOL within 30 days.

Conclusion

In June of 2009, after announcing its plan to roll-out a Supervised Recruitment initiative, DOL stated that approximately 200 pending PERM applications had been marked for Supervised Recruitment. Of those cases the following statistics were noted:

25% were withdrawn by the employer after Supervised Recruitment was ordered23;

45% were denied;

11% had been certified; and

20% remained pending.24

It is necessary to consider the possibility for Supervised Recruitment before filing the PERM application. Although the employer may withdraw the application if additional recruitment is ordered, withdrawal, and particularly a pattern of withdrawals, upon the receipt of Supervised Recruitment, can have serious repercussions on the employer.25 And if the employer files a new application, the future application will also likely be subject to supervised recruitment.26 Although Supervised Recruitment may be issued randomly, as many Audit Notices are, market conditions will likely trigger Supervised Recruitment for certain cases, so it is prudent to check with the local State Workforce Agency (SWA) in the geographic location for the position to get statistics on labor market conditions prior to filing.

PERM Regulations outlining requirements for Supervised Recruitment are very similar to the recruitment requirements in place prior to the implementation of the PERM system. The most significant difference to a good-faith employer who has filed a PERM application is that the employer should have already spent thousands of dollars in advertising costs and resources recruiting for the position and determined before filing that no qualified U.S. applicants were available for the position. Under Supervised Recruitment, that employer will have the additional financial burden of placing new recruitment and reviewing all applicants the Certifying Officer stipulates. While supervised recruitment was also occasionally required if an employer filed a Reduction in Recruitment application,27 the purpose then was to cure a defect that precluded RIR approval. Under PERM, the pre-filing recruitment may have been perfect, but what was fine previously, may no longer be the case and the CO orders supervised recruitment as a way to adjust the facts of the case to a changed reality.28

So, even though the employer has attested to the fact that no qualified applicants applied for the job, it will now have to recruit for the position again and consider all applicants the CO forwards for review. The DOL stated that its decision to increase the amount of cases tagged for Supervised Recruitment has to do with the significant change in labor market conditions pre-and post-filing.29 One could argue that market conditions would not likely be so different if it wasn’t taking 10 months to 2 years for cases to be adjudicated. When this was raised by AILA at the DOL Stakeholders Meeting in February of 2009, the DOL declined to comment.30

The DOL estimates that Supervised Recruitment will add at least 180 days to processing, in the “cleanest” of cases.31 Based on current processing times and statistics for PERM Audits, it is probable that Supervised Recruitment will add at least one year to case processing times. Preparation is critical at every stage, and documentation of Supervised Recruitment activities and applicant review must comply with the regulations and CO instructions within the very tight regulated timeframes. Attorney assistance is strongly recommended to guide employers and ensure compliance.


* Maggie Murphy is a Senior Attorney at Foster Quan, LLP in Austin, Texas. She is Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization and specializes in employment-based immigration law and immigration compliance counseling. Ms. Murphy graduated summa cum laude from St. Edward’s University, where she majored in English Writing and Rhetoric. She received her law degree from the University of Texas, where she also participated in the International Comparative Law Course of Study at the University College of London School of Law. She has been admitted to the State Bar of Texas and the U.S. District Court, Northern District of Texas. Ms. Murphy is currently serving as the Secretary for the State Bar of Texas Immigration & Nationality Law Section and is a Charter Member. Ms. Murphy is a frequent speaker on immigration topics to university faculty and students, professional employment lawyer groups, and human resources professional groups.

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Attorney of Cyrus D. Mehta & Associates, PLLC in New York City. He is also an Adjunct Professor of Law at Brooklyn Law School where he teaches a course on Immigration and Work. Mr. Mehta is the Chair of AILA’s National Pro Bono Committee and Co-Chair of the AILA-NY Chapter Pro Bono Committee. He currently serves on the board of Volunteers of Legal Services, Inc and is also Special Counsel on immigration matters to the Departmental Disciplinary Committee of the Supreme Court Appellate Division, First Department, New York. He is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006), and Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar Association and Secretary of the same Association (2003-2007). He is a frequent speaker and writer on various contemporary immigration related topics.


David A. M. Ware,
graduated from Yale University in 1977, receiving his B.A. in Latin American Studies, summa cum laude. He completed his Juris Doctor at the University of Texas in 1981. He has practiced exclusively in the area of immigration and nationality law since 1982. Mr. Ware is active in AILA and the National Association of Foreign Student Affairs: Association of International Educators. He has held an AV rating in Martindale Hubbell for many years, and was recently elected to Who’s Who International’s Top Corporate Immigration Attorneys, who number fewer than 300 in the US. He has repeatedly been selected by New Orleans magazine as among the best immigration attorneys, and City Business magazine named him as one of the 50 top attorneys in Louisiana. Mr. Ware is a frequent speaker and author on immigration topics throughout the U.S. and abroad, including several AILA publications and BusinessWeek online. He formerly taught immigration law at Southern University and Loyola University Schools of Law.

1 See Final PERM Regulation, 69 Fed. Reg. 77325 (Dec. 27, 2004).

2 See “Liaison Questions Submitted by AILA and Notes from February 3, 2009 Stakeholders Meeting,” AILA InfoNet Doc. No. 09021165 (Posted 02/11/2009), noting that the DOL commented that there were very few federal employees and that because of contract disputes, staffing was low, which contributed to slower processing. The new contract workers were trained for much of the latter part of 2008, and at the time of the meeting in February of 2009, the DOL commented that there were still too few federal workers to review the work done by the contract staff. So, delays are expected to continue until staffing increases.

3 Current DOL Published Processing times as of September 30, 2009, available at http://icert.doleta.gov/index.cfm.

4 See “Highlights from the DOL Open Forum at [AILA] Annual Conference 2009,” AILA InfoNet Doc. No. 09061965 (posted June 19, 2009).

5 See ETA News Release from the Department of Labor, “U.S. Department of Labor initiated supervised recruitment of permanent labor certification applications filed by immigration law firm,” issued July 8, 2008 (Release No. 08-955-NAT).

6 Id.

7 See PERM Frequently Asked Questions About Supervised Recruitment, at http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm.

8 See 20 C.F.R. § 656.21(d).

9 See 20 C.F.R. § 656.17(f)(3).

10 See 20 C.F.R. § 656.21(2)(i)-(vii).

11 See 20 C.F.R. § 656.21(b).

12 For specific requirements pertaining to ads running under Supervised Recruitment, see generally 20 C.F.R. § 656.21(b)(2)(i) – (vii).

13 It is important to note here that listing a wage in the recruitment is not required under regulations.

14 See 20 C.F.R. § 656.21(b).

15 See 20 C.F.R. § 656.17 for requirements for documenting PERM recruitment activities.

16 One author received numerous audit notices in September 2009 requesting phone logs and detailed logs regarding contact with applicants. It is likely the DOL will start requiring evidence of such contact in all audited and supervised cases. If the employer sent a letter, the audit notice is requesting green return receipts of certified mail.

17 See Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 C.F.R. § 656.10(b)(2) (Aug. 29, 2008), available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Guidance_Final_082908.pdf, and available at AILA InfoNet at Doc. No. 08082940 (posted Aug. 29, 2008).

18 For a comprehensive overview on the role of the lawyer, see Endelman & Mehta, Walking The High Wire Without A Net – The Lawyer’s Role In The Labor Certification Process, 14 Bender’s Immigration Bulletin 168, February 1, 2009.

19 See Francis Kellogg, 94-INA-465 (BALCA 1998), which has been codified at 20 C.F.R. § 656.17(h)(4).

20 Readers would profit from reading recent BALCA decisions on good faith recruitment. See, e.g. Matter of Big Apple Compactor Co., Inc. d/b/a Big Apple Fire Sprinkler Co., 2008 INA 00009 (Mar. 3, 2009)(rejection of an applicant solely on the resume not listing recent experience, when it was not clear if applicant qualified, was not lawful rejection); Matter of Technivate Inc., 2008 INA 00065 (Aug. 27, 2008) (employer’s efforts to contact applicant was not in good faith when employer sent e mail to inoperable address which was returned).

21 See 20 C.F.R. § 656.21(g).

22 See supra note 3.

23 In the AILA notes from the February 2009 DOL Stakeholders Meeting, it was noted that DOL provided statistics on withdrawals after Supervised Recruitment had been ordered. The statistics were that over 50% of these cases were withdrawn, which the department noted was suspect and was a likely factor in its decision to increase such orders, in addition to market conditions and economic downturns.

24 See supra note 5. The authors point out that the percentages are approximate and current add up to more than 100%.

25 See supra note 8.

26 For a good overview of supervised recruitment, see Romy Kapoor et al, Post-Filing PERM Processing And Strategies, Immigration & Nationality Law Handbook, 2009-10 (AILA).

27 See DOL’s General Administrative Letter No. I-97, Measures for Increasing Efficiency in the Permanent Labor Certification Process,

2009 UPDATE FROM THE BOARD OF ALIEN LABOR CERTIFICATION APPEALS (BALCA)

by
Cyrus D. Mehta*

BALCA has been busy in 2009, and has issued many decisions that have had an impact on how labor certifications under PERM are prepared and filed. Here is a round up of what I believe are some of the more relevant decisions, which I prepared for my presentation at the AILA Fall 2009 Texas/ New Mexico/Oklahoma Chapter Conference in Puerto Vallarta, Mexico, November 6&7, 2009 . A useful digest of these decisions can be found on the DOL web site at http://tiny.cc/saJ0k.

Alternative Requirements

AGMA Systems LLC, 2009-PER-00132 – A job requirement of MS plus 3 years of experience or the alternative requirement of BS plus 5 years of experience were substantially equivalent, and thus the language set forth in Francis Kellogg, 1994-INA-465 as not required. Kellogg, along with 20 C.F.R. §656.17(h), requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity. If the alien does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). In AGMA Systems, BALCA held that since an MS plus 3 years of experience or an MS plus 5 years had the same lapsed time for preparation for the occupation (7 years), they were substantially equivalent and thus the absence of the Kellogg magic language on the application was not fatal.

Federal Insurance Co., 2008-PER-00037 – The fact that the Kellogg language did not appear on the form was not fatal as there is no space on the form for such language; and the Kellogg language also does not need to appear in recruitment materials. A denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-1 (a typographical error of the advertisement date on the application is not fatal if the employer possessed evidence of the correct advertisement that is required as part of the PERM compliance and thus was constructively submitted by the employer).

Moreta & Assocates, Int, 2009-PER-0008 – Job for an accountant required QB, but whether the alien gained QB skills was not listed in Column K. Employer presented affidavit, but that was not accepted under HealthAmerica. BALCA extended Federal Insurance Co. holding that Column K did not have any space for skills, and it offends fundamental due process to deny an application for absence of such information without first giving the employer an opportunity to address the alien’s qualifications for the special skill requirement.

Errors on PERM Form

Pa’Lante, 2008-PER-00209 – Failure to list prior experience in Section K, and not consider evidence of such experience in audit response, was not fatal to the application, as the employer is constructively considered to have kept and submitted such evidence under PERM’s recordkeeping provisions pursuant to HealthAmerica. While this was not a typographical error as in HealthAmerica, it was similar to that case since the documentation needed to prove that the application actually complied with the regulations was documentation constructively considered to have been submitted by the Employer under PERM’s recordkeeping provisions.

Cf. Geoffrey Allen Corporation, 2008 PER-00234 – Employer’s failure to list prior experience was fatal. Unlike the facts in Pa’Lante, Employer appeared to submit extrinsic evidence, which was not part of the PERM record keeping requirements, such as an H-1B petition, LCA and an old ETA 750.

Southern Occasions Catering LLC, 2009-PER-00011 – Where CO alleged that employer did not advertise on Sunday, and instead of rebutting, employer re-advertises in a Sunday edition, HealthAmerica is inapplicable as the new recruitment did not previously exist in the PERM record keeping file.

Hawai’i Pacific University, 2009-PER-00127 – Even though the Notice of Filing listed the CO’s address in San Francisco rather than the National Processing Center’s address, given the lack of assistance provided to practitioners and the system being far from friendly, the erroneous address was not fatal. See also Brooklyn Amity School, 2007-PER-64 (listing of NY DOL address was not fatal since this office was still open even after PERM, and only 120 days passed since the establishment of the National Processing Centers).

Recruitment

Skin Cancer & Cosmetic Dermatology Center P.C 2009-PER-00072 – Even though the employer did not require a bachelor’s degree for a Dietician and Nutritionist, if the occupation is found on Appendix A, it must recruit under the additional steps criteria for professional positions.

Dunkin Donuts, 2008- PER- 00135 – Employer’s name must appear on the advertisements; fax number does not suffice.

Stone Tech Fabrication, 2008-PER-00187 – If Notice of Filing lacks employer’s name, employer must demonstrate that the Notice applied to the sponsoring employer, which it did not do here. BALCA recognized that notions of fundamental fairness are applicable to PERM processing. Cf. HealthAmerica.

Matter of Big Apple Compactor Co., Inc. d/b/a Big Apple Fire Sprinkler Co., 2008 INA 00009 -Rejection of an applicant solely on the resume not listing recent experience, when it was not clear if applicant qualified, was not lawful rejection.

Prevailing Wage and Wage Range

Thomas L. Brown Associates, P.C., 2009-PER-00347 – The Notice of Filing, pursuant to 656.17(f)(5) states that an advertisement must “not contain a wage rate lower than the prevailing wage rate.” But this section does not mean that if the actual wage offer is higher, the Notice of Filing may only list the lower prevailing wage. Here the prevailing wage for the position was $78,478 but the actual salary offer was $90,000. The employer’s internal posting notice (Notice of Filing) only listed $79,000, which was lower than the offered wage of $90,000. Query whether BALCA would have the same objection to a wage range, where the lower end equals the prevailing wage and the higher end reflects the wage offered or a wage even higher than the offered wage. This practice appears to be risky after Thomas L. Brown Associates even though it was approved by BALCA in Sterling Mgt Systems, 89-INA-216 (BALCA 1991). Even under the holding in Thomas L. Brown Associates, the employer can argue that it need only state the wage when the alien was initially hired and not what s/he is currently paid. See University of North Carolina, 90-INA-422 (BALCA 1992). Of course, an employer should not rely on University of North Carolina if it is relying on “on the job” experience under the theory that the duties of the sponsored position are 50% different from the duties of the earlier position with the same employer under 20 C.F.R. §656.17(i)(5)(ii).

Reed Elsevier Inc., 2008-PER-00201 – SWA erroneously combined the educational and experiential components of the position together to determine whether they were within the SVP range for the position, in contravention of the May 9, 2005 Guidance, to determine the wage level.

Business Necessity

Roberto’s Mexican Food, Inc., 2009-PER-00187 – Cannot argue business necessity based on prior labor certification approval.


*Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. The firm represents corporations and individuals from around the world in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, federal court litigation and asylum. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International WhoХs Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is the Chair of AILAХs National Pro Bono Committee and is also the Co-Chair of the AILA-NY Chapter Pro Bono Committee. He is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an Adjunct Associate Professor of Law at Brooklyn Law School where he teaches a course entitled ТImmigration and Work.У All opinions expressed herein are the personal views of Cyrus D. Mehta and do not represent those of the organizations he has been part of in the past and presently.

November 2009 Immigration Update

Headlines:

Details…

1. Congress Extends Four Immigration Programs for Three Years

On October 28, 2009, President Obama signed into law the fiscal year 2010 appropriations bill for the Department of Homeland Security.

The law (Pub. L. No. 111-83) extends four immigration programs: (1) the non-minister religious worker program (section 568 of the law), the "Conrad 30" program for certain foreign doctors (section 568), the EB-5 immigrant investor pilot program (section 548), and the E-Verify program for electronic verification of workers’ eligibility (section 547). All four programs are extended for three years, until September 30, 2012.

The new law also includes statutory authority for U.S. Citizenship and Immigration Services to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).

2. DHS Rescinds ‘No-Match’ Rules

Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the final rules it promulgated in 2007 and 2008 relating to procedures that employers may take to acquire a safe harbor from receipt of "no-match" letters, which the Social Security Administration (SSA) sends to employers when the combination of an employee name and social security number does not match SSA records. DHS proposed to rescind the no-match rules on August 19, 2009, and is issuing this final rule without change.

Implementation of the 2007 final rule was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. After further review, DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS said that IMAGE is "designed to help the business community develop and implement hiring and employment verification best practices."

USCIS said that "[t]hese tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a No-Match letter." The agency said that a no-match letter is "reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA."

DHS also noted that "unscrupulous employers would continue to find ways to take advantage of the system, regardless of whether the No-Match rules were in place." The agency said it focuses criminal and civil enforcement efforts against "the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud"; and "employers in the Nation’s critical infrastructure sites, including airports, seaports and power plants."

The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24200.pdf.

3. USCIS Ombudsman Recommends Temporary Acceptance of Filed LCAs for Certain H-1B Filings

In August and September 2009, the ombudsman for U.S. Citizenship and Immigration Services (USCIS) received complaints concerning H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at DOL, coupled with USCIS’s current H-1B petition initial filing requirements, "are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions." Untimely H-1B petition filings lead to several problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status.

Stakeholders have detailed to the ombudsman errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009. For example, the ombudsman noted, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL’s database. The ombudsman said that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009, through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted).

The ombudsman noted that despite DOL’s jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency’s requirement that petition filings include certified LCAs. "Any costs to USCIS[,] such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals," the ombudsman said. "USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation."

To mitigate the impact of LCA processing difficulties, the ombudsman recommends that USCIS:

(1) reinstate the agency’s previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) establish a temporary policy under which the agency would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

The report is available at http://www.dhs.gov/. USCIS officials have not responded yet to the ombudsman’s recommendations.

4. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says

The State Department’s Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference "certain religious workers" category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued before that date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

Regarding the employment fifth preference pilot categories (I5, R5), the immigrant investor pilot program was extended through October 30, 2009. I5 and R5 visas may be issued until the close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after October 30, 2009.

The cut-off dates for the categories mentioned above have been listed as "Unavailable" for November. If there is legislative action extending one or both of these categories for fiscal year 2010, the Department said, those cut-off dates would become "Current" for November. As noted in article #2 above, Congress is about to extend those two categories for three years.

The Visa Bulletin for November 2009 is available at http://travel.state.gov/.

5. State Dept. Issues DV-2011 Visa Lottery Instructions

On October 6, 2009, the Department of State announced that entries for the DV-2011 Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009.

Applicants may access the electronic Diversity Visa (E-DV) Entry Form at http://www.dvlottery.state.gov/ during the registration period. Paper entries will not be accepted. The Department strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. No entries will be accepted after noon, EST, on November 30, 2009. All entries by an individual will be disqualified if more than one entry for that individual is received, regardless of who submitted the entry.

For DV-2011, no countries have been added or removed from the previous year’s list of eligible countries. For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

The full instructions, including details on eligibility and how to apply, are available at http://edocket.access.gpo.gov/2009/pdf/E9-24077.pdf.

6. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations

To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all persons for whom R-1 nonimmigrant status is sought, the Department of State issued a final rule, effective October 6, 2009, that establishes a requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services (USCIS) Petition for a Nonimmigrant Worker (Form I-129) before a visa can be issued.

The Department explained that USCIS has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the U.S. and to determine that a religious worker will be admitted to the U.S. to work for a specific religious organization at the request of that organization.

The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24089.pdf.

7. NYC Mayor Bloomberg Announces New Immigration Efforts

In a recent speech at CUNY Graduate Center, New York City Mayor Michael Bloomberg said the city "needs more immigrants." As part of his plan for a possible third term should he be reelected on November 3, 2009, Mayor Bloomberg has called immigrants the "lifeblood of New York City" and expressed his support for comprehensive immigration reform with a pathway to citizenship and for the DREAM Act, "which would allow children of undocumented immigrants to become citizens in exchange for attending college or performing military service." Mr. Bloomberg also plans to create an Immigrant Advisory Board "with members of the religious, labor, business, cultural, and community-based networks to meet quarterly."

Mr. Bloomberg noted that in June 2009, the city’s Department of Small Businesses Services (SBS) unveiled an initiative to help Latino small business owners that included a financing fair, a full-day seminar on business assistance and government resources, information resources in Spanish and English (http://nyc.gov/html), the launch of an online directory on the National Hispanic Business Information Clearinghouse Web site (http://hispanicbic.org/), and the opening of a new NYC Business Solutions satellite office in Washington Heights. "This targeted strategy to assist Hispanic small businesses will be replicated for other immigrant small business communities," Mr. Bloomberg said. "SBS will be charged with developing and executing community-specific strategies for the largest immigrant small business communities in New York City over the third term."

Among other things, Mr. Bloomberg also said that New York City will partner with private law firms to dispatch deferred legal associates to immigrant communities in need of quality legal assistance and representation. The associates will be deployed for a minimum one-year fellowship. The city will commit $2 million to the effort to cover a team of supervising attorneys and ongoing training of associates and technical assistance in the area of immigration law. The city also will work with local law schools to engage alumni into a "Call to Service for the Legal Community" to provide pro bono legal assistance to immigrants.

"Immigrants: The Lifeblood of New York City" is available at http://www.mikebloomberg.com/.

8. State Dept. Receives Petition for New U.S.-Mexico Bridge

The Department of State recently received an application for a Presidential permit to construct, operate, and maintain a new international pedestrian bridge, the "San Diego-Tijuana Airport Cross Border Facility (CBF)," to be located on the U.S.-Mexico border near San Diego, California, and Tijuana, Baja California, Mexico. Otay-Tijuana Venture, L.L.C., consists of companies owned by U.S. and Mexican investors and is undertaking the project as a for-profit, commercial activity. The CBF would enable ticketed airline passengers to travel between Mexico’s Tijuana International Airport and San Diego via an enclosed, elevated pedestrian bridge. The CBF would allow such travelers to bypass San Diego’s ports of entry and to avoid driving through the city of Tijuana.

Written comments are invited by December 31, 2009, and should be sent to the person named in the notice, which is available at http://edocket.access.gpo.

9. USCIS Launches E-Notification

U.S. Citizenship and Immigration Services (USCIS) has launched an "E-Notification" initiative for immigration applications and petitions filed at USCIS Lockbox facilities in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas. If you file your USCIS applications and/or petitions at one of these facilities, you will have the option to receive an e-mail and/or text message informing you that USCIS has accepted your application or petition. If you would like to receive an E-Notification that your application or petition has been accepted, complete Form G-1145, E-Notification of Application/Petition Acceptance, and attach it to the top of your application or petition.

Forms that are currently processed through the USCIS Lockbox facilities relate to:

  • Family-based forms
  • Applications for Temporary Protected Status
  • Card replacement
  • Citizenship and naturalization forms
  • Adoption forms

By the end of 2009, the following additional forms are expected to be filed through Lockbox facilities:

  • All remaining adjustment-of-status forms
  • All employment authorization request forms
  • All requests for travel documents

A fact sheet is available at http://www.uscis.gov/.

10. USCIS Announces New Notice of Entry of Appearance Forms for Attorneys and Accredited Representatives

U.S. Citizenship and Immigration Services (USCIS) has announced that a revised Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) and a new Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) have been issued.

USCIS has extended a "grace period" so that G-28s currently in the mail will be considered valid when received at the USCIS Lockbox facility or USCIS Service Center. The grace period is effective until USCIS further refines the form, which the agency expects to complete soon. The new G-28 is not required for receiving updates or interviews unless a new attorney is representing the applicant.

The new G-28I is for use by attorneys admitted to practice law who seek to appear before the Department of Homeland Security (DHS) in matters outside of the U.S. Acceptance by a DHS entity of a completed G-28I does not itself constitute approval by the DHS entity for the attorney to represent the applicant or petitioner in the matter for which the G-28I was filed. The G-28I may not be filed for matters in DHS offices within the U.S.

The American Immigration Lawyers Association (AILA) has noted concerns with the short implementation timeframe for the new forms, as well as other issues, including the fact that the revised G-28 requires marking the form with specific USCIS form numbers to which the attorney’s appearance is related. AILA also noted that the revised form has separate areas that would be filled out if the matter is before Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). In practice, AILA noted, this could have serious implications where related issues are handled by different components of the Department of Homeland Security, such as when a file is transferred from USCIS to ICE for investigation.

The announcement is available at http://www.uscis.gov/. The new G-28 form is available at http://www.uscis.gov/. The new G-28I form is available at http://www.uscis.gov/.

11. USCIS, EOIR Issue Interim Final Rule Implementing Extension of U.S. Immigration Laws to Northern Marianas

U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review issued an interim final rule effective November 28, 2009, implementing the extension of U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI) under the Consolidated Natural Resources Act of 2008 (CNRA). The rule amends the regulations governing, among other things, references to the geographical "United States" and its territories and possessions; classifications authorized for employment; acceptable documents for employment eligibility verification; employment of undocumented workers; and adjustment of status of immediate relatives admitted under the Guam-CNMI Visa Waiver Program. The stated purpose of the rule is "to ensure that the regulations apply to persons and entities arriving in or physically present in the CNMI to the extent authorized by the CNRA."

USCIS has established a transitional worker program for foreign nationals to live and work in CNMI. For more information, see http://www.uscis.gov/.

Written comments should be submitted by November 27, 2009, according to the instructions in the interim rule, which was published in the Federal Register on October 28, 2009, and is available at http://edocket.access.gpo.

12. ABIL Global: New Indian Immigration Regime

Recently, the Indian Ministry of Commerce and Industry (MCI) announced that business visas cannot be granted to foreign nationals to work on projects or specific contracts in India. The formal announcement also requires all foreign nationals on such visas to leave India and return on employment visas. Initially they were required to leave before the end of September 30, 2009, but the Ministry of Home Affairs (MHA) extended the deadline to October 31, 2009. Individuals who are in India on business visas in connection with investments, joint ventures, or buying and selling industrial products can continue to remain in the country. Both government communications also state that in the future, business visas will only be issued for activities specified in their circulars. However, because the circulars were rather ambiguous, the Ministry of Home Affairs published a set of frequently asked questions on October 29, 2009. These provide some clarity but have not resolved all ambiguities.

These new stipulations will have a significant impact on foreign nationals wanting to visit India on short-term assignments. Per the announcement, these individuals will now require an employment visa as opposed to a short-term business visa. Further, the issuance of a business or employment visa will continue to depend upon the discretion of the consular officer. The change in the visa category would definitely have tax and social security ramifications for the foreign nationals and their employers during their stay in India. Additionally, these changes may also generate corporate tax ramifications in rare cases, depending on the nature of the individual’s activities in India.

Companies seeking to assign foreign nationals to India on a short-term basis should assess their projects to identify and comply with visa requirements. Companies should also review these short-term projects for compliance with the tax (individual and corporate) structure in India. In the interim, companies seeking to assign foreign nationals should conform to the new regime. It is expected that the outcome of a business or employment visa, which will be based on evidence submitted at the time of application, will be subject to severe scrutiny to determine the caliber of the applicant and the nature of the job in India. 

Please visit http://cyrusmehta.blogspot.com/  to view a longer version of this article.

13. New Publications and Items of Interest

Temporary worker visas. Immigration Works USA has issued a policy brief, "Reduced Access: New Regulations Aimed at Temporary Worker Visas." The report notes that this has been a difficult year for businesses that rely on foreign workers. Both Congress and the new administration imposed restrictions on several widely used visa categories. The Department of Homeland Security made employers the target of a new immigration enforcement strategy likely to result in dramatically increased criminal prosecutions. As the downturn drags on, the report notes, the public is increasingly skeptical that employers need immigrant workers, and additional threats loom on the horizon: legislation pending in the Senate could reduce employers’ access to highly skilled workers, and lawmakers in the House of Representatives are working on a bill that could do the same for seasonal workers. The report looks at new developments for H-2A agricultural workers, H-2B seasonal workers, worksite enforcement and I-9 audits, and H-1B and L-1 professionals. An appendix includes a memo on worksite enforcement from U.S. Immigration and Customs Enforcement. The report is available at http://www.immigrationworksusa.org/.

USCIS H-1B compliance site visit instructions. This document is intended to assist U.S. Citizenship and Immigration Service site inspectors when conducting a site audit of a business for H-1B compliance. See http://www.aila.org/.

Immigration in the labor market. The Migration Policy Institute (MPI) recently launched its Labor Markets Initiative, a comprehensive, policy-focused review of the role of immigration in the labor market. The initiative will produce detailed policy recommendations on how the United States should rethink its immigration policy in light of what is known about the economic impact of immigration, bearing in mind growing income inequality, concerns about the effect of globalization on U.S. competitiveness, the competition for highly skilled migrants, and demographic and technological change. The initiative is guided by a group of leading experts in labor economics, welfare policy, and immigration. See http://www.migrationpolicy.org/.

Various reports. New reports from MPI:

"Immigrants and Health Care Reform: What’s Really At Stake?" (http://www.migrationpolicy.org/pubs/he

USCIS ISSUES CONTROVERSIAL CLARIFICATION OF REQUIREMENTS FOR AGENTS FILING AS PETITIONERS FOR O AND P VISAS

U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries "that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers."

USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an "established agent" files the petition.

A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

  • The supporting documentation includes a complete itinerary of the event or events.
  • The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
  • The contract between the employers and the beneficiary is submitted.
  • The agent explains the terms and conditions of the employment and provides any required documentation.

In addition, USCIS pointed out, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be "in business" as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers’ "agent" does not meet this condition, the agency said. "For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers."

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is "in business as an agent," and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

This is how the new USCIS guidance can completely kill the nonprofit arts industry. Suppose a symphony orchestra applies for an O visa for a solo violinist and provides an itinerary for its own performances with this artist, and in the O petition the symphony orchestra states that while the beneficiary will perform for this orchestra, she will also be doing some performances on behalf of another symphony orchestra, which will pay the violinist directly. These O-1 petitions have historically been approved, but they would no longer be approvable under the new guidance.

Our colleague Angelo Paparelli predicts that this news release will shake up the world of arts and entertainment. As the "Nation of Immigrators" blog notes, "Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast. Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders."

The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf. The blog is available at http://www.nationofimmigrators.com/.

H-1B BIGOTRY

by
Cyrus D. Mehta
*

There appears to be a troubling trend these days. Attacking the H-1B visa is code for keeping the Indians out. Leading the drumbeat against the H-1B are Senators Grassley (R-IA) and Durbin (D-IL), http://www.cyrusmehta.com/News.aspx. In his latest missive to the new USCIS Director, Senator Grassley makes H-1B bigotry politically respectable, http://tinylink.com/?I38d5pyKzi. While no one is denying the existence of fraud in the H-1B program, like in other visa programs, Senator Grassley finds fraud whenever he sees fit, especially when it concerns Indian computer consulting companies.

An IT consulting company may have several clients and can demonstrate that it is legitimately in the business of computer consulting. But it may not be able to pinpoint exactly where the H-1B beneficiary may work at the time of filing the petition. This does not mean that the company intends to commit fraud, as Senator Grassley thinks. When a law firm with many clients hires an associate, it is usually unable to ascertain with laser precision accuracy the client matter this associate will work on. Yet, the law firm has made a business judgment to hire an additional associate as it knows that a client will ultimately need the lawyer’s services. If there is lag time in assigning this associate from one client matter to the next, the law firm still continues to hire the associate and pays him or her. No one would accuse the law firm of committing fraud. Such is the business model of many service related industries or professions, and it is difficult to understand why an Indian consulting company must pin point many months in advance, with extensive documentary proof from the client, where it will place its prospective H-1B employee when it has a history of assigning its workers on client projects and paying them regularly. And in the event of a lag between work assignments, the H-1B law prohibits an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period. Why should this now be considered fraud?

More recently, Steve Hamm and Moira Herbst of BusinessWeek wrote a disturbing article, America’s High-Tech Sweat Shops, http://www.businessweek.com/magazine/content/09_41/b4150034732629.htm?campaign_id=technology_related. Their article focuses on bad apples in the H-1B program, who have already been prosecuted, which means that the existing law works against the abusers. Unfortunately, the article fails to highlight a single positive aspect of the H-1B visa, and there are many. Recently, the fact that four out of the six US Nobel prize winners were foreign born is a testament to the fact that this award has something to do with a smart immigration policy, http://immigrationimpact.com/2009/10/09/nobel-prizes-winners-and-immigration-policy/.In the experience of this writer, most H-1B employers want to play by the rules, which are hyper-technical, difficult to follow and complex. They have been designed to trap the unsuspecting H-1B petitioner, especially one that relies on many H-1B workers. Yet, employers comply with obtaining prevailing wage data to support the market-based wage, post notices at various worksites and often respond in great and meticulous detail to requests for evidence or notices of intent to deny! One wonders why an employer would go through all of these hoops and hurdles if it wanted to hire a worker on the cheap. None of these employers were profiled in the article.

It would be one thing if the BusinessWeek article focused on serious H-1B abuses (and there are enough teeth in the current law to punish such employers) in order to advance the rights of aggrieved Indian H-1B workers, but it gives prominence to Programmers Guild, which has links with NumbersUSA and other white supremacist organizations. The Programmers Guild cares two hoots about any immigrant worker; rather it wants to get rid of them. If you visit the Programmers Guild website, http://www.programmersguild.org/, they caricature Indian companies and the lawyers that represent them. It is difficult to understand how Programmer Guild, and its lawyer head John Miano, who are given so much play in the article, can effectively represent the interests of even US programmers when all I see on their website is whining about immigrants. They have no seminars on cutting edge technology, entrepreneurship, job placement information, networking opportunities, nothing, except for anti-immigrant invective. It is not surprising that the BusinessWeek article is spewing the worst kind of racist invective against Indians. It appears to have hurt the sentiments of lots of hardworking Indian H-1B workers across the board as can be seen on one of the discussion boards of Immigration Voice, http://tinylink.com/?LunbQu2SHb. These same Indian H-1B workers from India are also hopelessly stuck in the Employment-based Second and Third Preference backlogs, which also work against India because of the per country limits in each of these categories.

The more one reads between the lines of the BusinessWeek article, it smacks of racist undertones such as the Brazilian disliking the curries of his Indian roommates, and the reporter having cheeseburgers with John Miano at a mid-century diner in “tony” Summit, NJ (which is code for those halcyon days prior to the 1965 Act after which Indians came to open their curry restaurants and H-1B sweat shops). Rather than profiling people who advocate for more restrictions on the H-1B program, especially its use by Indian companies, BusinessWeek could have also quoted people who could have spoken positively about the H-1B program and the value that these so called “body shops” have brought to American businesses, which have betrayed no hesitation in taking advantage of them. Also, the article does not clearly articulate that if a “body shop” plays by the rules, employs the H-1B worker and pays the required wage (higher of the prevailing or actual), posts the LCA, and charges a mark-up to the client, whether this can be characterized as fraud. Is there not a freedom for Indian companies, even Indian-owned companies, to contract and make a profit? Attacking the H-1B visa program is a convenient way to attack Indians and for xenophobes to disguise their fear or hatred of immigrants under the cloak of rational argument.


*Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. The firm represents corporations and individuals from around the world in a variety of areas such as business and employment immigration, family immigration, consular matters, naturalization, federal court litigation and asylum. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International WhoХs Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is the Chair of AILAХs National Pro Bono Committee and is also the Co-Chair of the AILA-NY Chapter Pro Bono Committee. He is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration-related issues, and is also an Adjunct Associate Professor of Law at Brooklyn Law School where he teaches a course entitled ТImmigration and Work.У All opinions expressed herein are the personal views of Cyrus D. Mehta and do not represent those of the organizations he has been part of in the past and presently.
The author thanks Gary Endelman and Vivek Wadhwa for their encouragement and input.

October 2009 Immigration Update

Headlines:

  1. USCIS Says Fees May Rise
    A decline in revenue from a decrease in applications could lead to higher application fees.

  2. Labor Dept. Issues FAQ on LCAs
    The Department issued a FAQ about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E.

  3. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits
    Employers should prepare for unannounced, random immigration-related worksite inspections.

  4. USCIS Issues Guidance on E-Verify Federal Contractor Rule
    Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date.

  5. October Visa Bulletin Shows EB-3s Backlogged 7 Years, Several Programs Expiring on September 30
    EB-3 cut-off dates are in 2001 and 2002.

  6. USCIS Announces New Web Site Design
    USCIS says its redesigned Web site, in English and Spanish, is more customer-centric.

  7. Labor Dept. Issues Proposed Rule on H-2A Temporary Agricultural Workers
    The Department has concluded that the policy underpinnings of a 2008 H-2A streamlining final rule do not provide an adequate level of protection for either U.S. or foreign workers.

  8. Interim EADs Issued to Salvadorans
    Interim work authorization documents will be issued to Salvadoran TPS beneficiaries who have not yet received a final action on re-registration applications that have been pending for more than 90 days.

  9. Global Entry Program Now Available at Detroit Airport
    Global Entry allows pre-screened, approved, registered travelers to use automated kiosks to receive expedited processing upon arrival.

  10. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers
    A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation.

  11. USCIS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas
    This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before November 28, 2009.

  12. Change in CBP Policy on Deferred Inspection of Legal Permanent Residents with Criminal Convictions – October 1, 2009
    CBP has told AILA that, beginning on October 1, 2009, there is a greater likelihood that returning Legal Permanent Residents (LPRs) with criminal convictions will be put in removal proceedings at ports of entry versus a grant of deferred inspection.

  1. Details…

1. USCIS Says Fees May Rise
Alejandro Mayorkas, the new director of U.S. Citizenship and Immigration Services, said recently that the agency has received a significantly lower number of applications lately and that the resulting decline in revenue could lead to higher application fees. At a press conference in Albuquerque, New Mexico, on September 24, 2009, Mr. Mayorkas said there is a $118 million budget shortfall and that he has asked for Congress’s help. “The potential fee increase is not something that is taken lightly. We understand very well its impact upon the community. In my personal view, it would be something of [a] last resort.”
Mary Giovagnoli, director of the Immigration Policy Center, noted that an increase in fees could result in even fewer applicants. “Congress has been really reluctant to revisit this whole idea that we shouldn’t be trying to finance our immigration system basically solely on the backs of applicants. I think the agency and the applicants are both kind of caught between a rock and [a] hard place.”

Fee increases were imposed two years ago, but a budget gap remains. For more on the drop in applications and its effect on USCIS’s budget, see http://www.abqjournal.com/news/state/apimmigrationfees09-14-09.htm.
A news article about Mr. Mayorkas’ press conference is posted at http://www.abqjournal.com/news/state/apimmigfeesmayorkas109-24-09.htm. A USCIS Q&A on paying immigration fees and what types of payment are accepted is available at
http://www.uscis.gov/files/article/Check_Instructions.pdf. For more guidance on how to pay immigration fees, see
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3850a99ba78af110VgnVCM1000004718190aRCRD&vgnextchannel=
7d316c0b4c3bf110VgnVCM1000004718190aRCRD
.

2. Labor Dept. Issues FAQ on LCAs
The Department of Labor recently issued frequently asked questions (FAQ) about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E. Topics discussed include how to correct an invalid federal employer identification number after denial of a labor condition application (LCA) on that ground; filing on behalf of a new company created through a merger, acquisition, or sale; what contact information to enter for employer point of contact; how to enter a prevailing wage survey on the new LCA; and how to withdraw an LCA after receiving certification via the iCERT Portal.
The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQ_iCERT_090909_%20FINAL_Elissa_090909.pdf. A press release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/website_redesign.pdf.

3. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits
As part of the Department of Homeland Security’s stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services. FDNS inspectors often use a script of questions and ask to speak with an employer representative and any foreign workers. FDNS is also using what it learns to add fraud indicators to its database in an effort to identify patterns and potential fraud during adjudications.
The Alliance of Business Immigration Lawyers (ABIL) recommends that employers prepare for immigration-related worksite inspections by developing and implementing robust compliance policies, auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. ABIL recommends designating an immigration compliance officer, who should contact immigration counsel immediately upon an FDNS site visit, and implementing an investigation response plan in advance that includes everyone from upper management to receptionists. Contact your ABIL attorney for help in preparing for potential onsite FDNS inspections.

4. USCIS Issues Guidance on E-Verify Federal Contractor Rule
U.S. Citizenship and Immigration Services (USCIS) reminded federal contractors and subcontractors that effective September 8, 2009, they “may be required” to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. The regulation states that federal contracts will be awarded only to employers who use E-Verify to check employee work authorization.
The E-Verify federal contractor rule extends use of the E-Verify system to cover both federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued on or after September 8 will include a clause committing government contractors to use E-Verify.
Companies awarded a contract with the E-Verify clause now must enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the U.S.

More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility, according to USCIS.
The agency noted that since October 1, 2008, more than 7.8 million employment verification queries have been run through the system and
approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.

The USCIS announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/EVerifyFederalContractorRule8Sep09.pdf.

USCIS also has issued the E-Verify Supplemental Guide for Federal Contractors. The guide discusses regulations affecting federal contractors; instructions for verifying new and existing employees;
E-Verify enrollment and participation as a federal contractor; enrollment instructions for certain organizations that qualify as exceptions; qualifying contracts, exemptions, and exceptions; subcontractors,
independent contractors, and affiliates; and information for designated agents. The guide is available at
http://www.uscis.gov/USCIS/E-Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FINAL.pdf.
Other E-Verify guidance includes the E-Verify User Manual for Employers, available at http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf,
and the E-Verify User Manual for General Users, Program Administrators and Designated Agents, available at http://www.uncp.edu/hr/employment/E-VerifyUserManual.pdf.

5. October Visa Bulletin Shows EB-3s Backlogged 7 Years, Several Programs Expiring on September 30
The Department of State’s October 2009 Visa Bulletin shows a cut-off date for employment-based third preference visa numbers of June 1, 2002, for all chargeability areas except for China-mainland born (February 22, 2002); India (April 15, 2001); and Mexico (May 1, 2002).
All chargeability areas are current for EB-2 numbers, except for China-mainland born (March 22, 2005), and India (January 22, 2005). For the third preference “Other Workers” category, all chargeability areas have a cut-off date of June 1, 2001, except for India (April 15, 2001).
Meanwhile, the employment-based fourth preference non-minister special immigrant program and the employment-based fifth preference category were due to expire on September 30, 2009. However, Congress has passed a continuing resolution to continue those programs for 30 days, to the end of October.
The Visa Bulletin for October 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4575.html.

6. USCIS Announces New Web Site Design
U.S. Citizenship and Immigration Services (USCIS) says its redesigned Web site, in English and Spanish, is more customer-centric, providing users with a “one-stop shop” for immigration services and information.
 Before the redesign, users described the USCIS Web site as “frustrating” and “hard to navigate.” The new “Where to Start” tool, located on the top left of the homepage, allows for direct navigation to information.
By clicking on the first drop-down menu, users have the opportunity to choose who they are from a number of options. After selecting who they are, clicking on the second drop-down menu allows them to select what they want to do.
USCIS says the “Where to Start” tool will take users to the information they want without having to search the entire site. Applicants for citizenship may also follow the progress of their cases online, and receive notifications via e-mail or text messages when their application status changes.
The USCIS Web site is at http://www.uscis.gov/portal/site/uscis. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/Where%20to%20Start%20Fact%20Sheet_ckn%2016Sept09.pdf.

7. Labor Dept. Issues Proposed Rule on H-2A Temporary Agricultural Workers
The Department of Labor’s Wage and Hour Division proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. The proposed rule reexamines the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. The Department also proposes to provide for enforcement under the H-2A program so that workers are protected when employers fail to meet H-2A requirements.

The Department said it has concluded that the policy underpinnings of a 2008 H-2A streamlining rule do not provide an adequate level of protection
for either U.S. or foreign workers. In addition, the Department noted, one of the goals of the 2008 final rule was to increase usage of the H-2A
program and make it easier and more affordable for the average employer. Applications have decreased since implementation of that rule,
however. Employers filed 3,176 applications in the first three and a half months of fiscal year 2009, before implementation of the 2008 final
rule. In the six and a half months from January 17, 2009, to July 31, 2009, employers filed 4,214 applications. When compared to the
previous
year (fiscal year 2008), however, in which employers filed 8,360 applications, it is apparent that employers are not increasing
their usage of the H-2A program. “While factors other than the regulatory changes may play a role in this decrease, without accomplishing the
prior rule’s goal of increasing program usage, the Department can no longer justify the significant decrease in worker protections,” the Department said.


The Department also said it believes that there are insufficient worker protections in the attestation-based model in which employers merely confirm,
but do not demonstrate to the satisfaction of a government observer, that they have performed an adequate test of the U.S. labor
market. Even in the first year of the attestation model, the Department said, employers are attesting to compliance with program obligations
with which they have not complied, “either from a lack of understanding or otherwise.” Specific situations the Department noted include
employers “who have imposed obstacles in the way of U.S. workers seeking employment. Examples of this have included the requirement of
interviewing in-person at remote interview sites that require payment to access; multiple interview processes for job opportunities requiring no
skills or experience; test requirements that are not disclosed to the applicants; contact information that is disconnected, is located outside the
U.S., or proves incorrect; farm labor contractors who attest to a valid license but have none; and contractors who have not obtained surety bonds.”

The Department also noted that the shift from the Adverse Effect Wage Rate (AEWR) as calculated under a 1987 rule to the recalibration of the prevailing wage as the AEWR under the 2008 final rule has resulted in a substantial reduction of farmworker wages in a number of labor categories.
The proposed rule, which includes a number of requirements and a proposed timetable under the proposed H-2A program, is available at http://edocket.access.gpo.gov/2009/pdf/E9-21017.pdf. The Department made a technical correction to the proposed rule, available at http://edocket.access.gpo.gov/2009/pdf/E9-21274.pdf.

8. Interim EADs Issued to Salvadorans
USCIS announced that it will issue interim Employment Authorization Documents (EADs) to Salvadoran temporary protected status (TPS) beneficiaries who have not yet received a final action on their re-registration applications and whose re-registration applications have been pending for more than 90 days.
Initially, the expiration date for Salvadoran EADs was March 9, 2009. USCIS automatically extended the EAD validity period to September 9, 2009. USCIS said that issuance of the interim EADs will allow TPS beneficiaries to continue working while the agency completes processing of their re-registration applications.
USCIS said it has already processed over 99.5 percent of the Salvadoran re-registration applications for the current TPS designation period ending September 9, 2010. This includes a substantial number of re-registration applications filed after the re-registration period closed. A small number of pending re-registration applications are still under review by USCIS and awaiting further information from the applicants.
Any applicant who receives an interim EAD must still respond to any USCIS requests, including for additional evidence, documents, or biometric/fingerprint appointments. To maintain employment authorization through September 9, 2010, an applicant had to respond to any USCIS requests and resolve all issues so that a new EAD could be provided.
For more information, see
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5de2eb7cf98c3210VgnVCM100000b92ca60aRCRD&vgnextchannel=
a2dd6d26d17df110VgnVCM1000004718190aRCRD
.

9. Global Entry Program Now Available at Detroit Airport
Global Entry, U.S. Customs and Border Protection’s (CBP) new clearance system for international air passengers, is now open at Detroit Metropolitan International Airport.
Global Entry allows pre-screened, approved, registered travelers (including U.S. citizens, lawful permanent residents of the U.S. and citizens of certain other countries) to use automated kiosks to receive expedited processing upon arrival at Detroit Metropolitan Airport.
Global Entry participation is voluntary. Participants must possess a machine-readable U.S. passport or permanent resident card, pay a non-refundable $100 application fee, submit an online application, and complete an interview at a CBP enrollment center.
“Detroit is a major international gateway, especially for flights from Asia and Europe, as well as a hub airport for Delta, the world’s largest airline,” said airport authority CEO Lester Robinson. “We treasure our international passengers and this added convenience provided by [CBP] is one more customer service we can highlight when marketing our airport and our region.”
Global Entry is now available at Miami, Atlanta, Los Angeles, Chicago, Sea-Tac, Dallas, Newark, San Francisco, Boston, Orlando, Honolulu, Las Vegas, Orland-Sanford, Philadelphia, San Juan and Fort Lauderdale, as well as Detroit.
The Detroit announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/09182009_4.xml. Additional information on the Global Entry program (including enrollment application) is available at http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/.

10. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers

A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE). George’s Processing, Inc., paid the fine on September 11, 2009, as part of a settlement agreement. 
ICE said it will use the funds to promote future law enforcement programs and activities in worksite enforcement. During a May 2007 enforcement action at the George’s plant in Cassville, Missouri, ICE agents administratively arrested 136 undocumented workers from Mexico and Guatemala. Twenty-eight of those workers were criminally prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company’s hiring personnel subsequently were convicted of harboring undocumented workers and inducing them to remain in the United States.
George’s Processing, Inc., headquartered in Springdale, Arkansas, employs 4,000 workers at its three poultry processing facilities in Arkansas, Missouri, and Virginia.
The USCIS announcement is available at http://www.ice.gov/pi/nr/0909/090915springfield.htm.

11. DHS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas
The Department of Homeland Security (DHS) issued a proposed rule on September 14, 2009, proposing to recognize a Commonwealth of the Northern Mariana Islands (CNMI)-specific nonimmigrant investor visa classification. The “E-2 CNMI Investor” status is one of several CNMI-specific provisions in the Consolidated Natural Resources Act of 2008, which extended most provisions of federal U.S. immigration law to the CNMI. This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before the “transition period,” which begins on November 28, 2009, and ends on December 31, 2014. With E-2 CNMI Investor nonimmigrant status, eligible CNMI investors would be able to remain in the CNMI for an initial period of two years, and the period would be renewable through the duration of the transition period. CNMI investors would be able to exit and enter the CNMI with valid E-2 CNMI Investor visas.
DHS said it is proposing temporary provisions for the transition period “to provide for an orderly transition from the current CNMI permit system to the immigration laws of the U.S., to lessen potential effects on the CNMI economy, and to give foreign long-term investors time to identify and obtain appropriate U.S. immigrant or nonimmigrant status.”
The proposed rule is available at 74 Fed. Reg. 46,938 (Sept. 14, 2009) (http://edocket.access.gpo.gov/2009/pdf/E9-21967.pdf). Related questions-and-answers are available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/CNMI_InvestorQandA.pdf.

12.    Change in CBP Policy on Deferred Inspection of Legal Permanent Residents with Criminal Convictions – October 1, 2009
CBP has told AILA that, beginning on October 1, 2009, there is a greater likelihood that returning Legal Permanent Residents (LPRs) with criminal convictions will be put in removal proceedings at ports of entry versus a grant of deferred inspection so that they can further provide clarification on their admissibility. In addition, depending on the nature of the conviction, CBP staffing, and available detention bedspace, among other factors, it also is possible that more returning LPRs with criminal convictions will be detained. CBP confirmed, however, that deferred inspection for such returning LPRs is still an option. CBP explained that it modified its policy based on information reflecting that an appreciable percentage of those granted deferred inspection do not show up for such inspection. More guidance to the field will be forthcoming from CBP, but be aware of the likelihood of an increase in the number of LPRs being detained and/or issued NTAs at ports of entry. CBP confirmed that this policy already had been in place in Georgia and Florida.
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JUDICIAL REVIEW OF DENIED ARRIVING-ALIEN ADJUSTMENTS

by
David A. Isaacson*

Under current regulations, “arriving aliens” who are paroled into the United States without officially being admitted, and who later seek adjustment of status, face an unusual set of procedural circumstances. They can apply for adjustment with USCIS even if there is a final order of removal against them, but in most cases they lack the ability to apply for adjustment of status in removal proceedings even before a final order has been issued, and as a result, it can be difficult to obtain judicial review of any legal errors made by USCIS in adjudicating the adjustment application. However, an analogy to another unusual set of procedural circumstances, those facing asylum applicants who sought admission into the United States under the Visa Waiver Program, suggests an approach under which arriving aliens denied adjustment of status can in some cases seek review in the Court of Appeals.

Most aliens who seek adjustment of status will apply with USCIS unless they are in removal proceedings, in which case they will apply before the Immigration Judge.1 If adjustment of status applications by aliens other than arriving aliens are denied by USCIS, they can renew the applications in removal proceedings before an Immigration Judge.2 If the application is denied by the Immigration Judge, the alien can appeal this denial to the Board of Immigration Appeals, and then seek review of adverse BIA action by petition for review in the Court of Appeals for the circuit in which the Immigration Judge completed proceedings.3 Although discretionary decisions in connection with an application for adjustment of status are barred from judicial review, constitutional issues and questions of law can be addressed by the Court of Appeals.4

Arriving aliens, however, cannot seek adjustment of status before an Immigration Judge unless they were granted advance parole based on an adjustment application before USCIS, departed from and returned to the US based on that grant of parole, and were placed in removal proceedings either upon or after their return because USCIS had denied their adjustment application.5 That is, under most circumstances, an adjustment application can only be renewed by an arriving alien if it is advance parole based on that very application which has made the alien into an arriving alien.6 Otherwise, the adjustment application of an arriving alien can only be pursued with USCIS, independently of any removal proceeding: the Immigration Judge, and for that matter the Executive Office of Immigration Review (Immigration Courts plus the BIA) as a whole, lacks any jurisdiction over it. In the remainder of this article, references to an “arriving alien” refer to an arriving alien who is in this latter situation, rather than one who falls within the limited exception allowing renewal of an adjustment application following re-entry on advance parole that was based upon that same application.

The one advantage of this lack of EOIR jurisdiction over arriving-alien adjustments is that an arriving alien, like an alien in exclusion proceedings as those proceedings under pre-IIRIRA law, can adjust status administratively even if there is a final order of removal against him or her.7 Other aliens with final removal orders, whose adjustment applications fall under EOIR jurisdiction, would need to reopen their removal proceedings in order to pursue adjustment applications, which is generally not possible without DHS consent once the removal order has been final for more than 90 days.8

Lack of EOIR jurisdiction carries two major disadvantages, however. First, it is possible for an arriving alien to be ordered removed in EOIR removal proceedings while his or her adjustment application is still pending before USCIS, although several Courts of Appeals adjudicating petitions for review of removal orders against such aliens have indicated that under such circumstances the BIA should issue a stay of the removal order pending USCIS adjudication of the adjustment application, or at least provide a better explanation that any offered to date of why it is unwilling to do so.9 Second, there is no obvious way to obtain judicial review of the USCIS denial of such an adjustment application, even if an error of law is involved. Because the denial will be by a separate agency from that involved in issuing any removal order, a petition for review of that order will not straightforwardly encompass the denial of adjustment.

There are, however, some potential options available to obtain judicial review of a USCIS denial of an arriving alien’s application for adjustment of status. First, particularly if there are no removal proceedings against an arriving alien whose application for adjustment of status is denied, one potential way to obtain judicial review of a denial of adjustment of status by USCIS is to file a lawsuit in an appropriate U.S. District Court under the Administrative Procedure Act. The Court of Appeals for the Third Circuit, in Pinho v. Gonzales, 492 F.3d 193 (3d Cir. 2005), held that APA jurisdiction exists over a USCIS ruling that an applicant is ineligible as a matter of law for adjustment of status,10 because “Determination of eligibility for adjustment of status – unlike the granting of adjustment itself – is a purely legal question and does not implicate agency discretion.” Pinho, 492 F.3d at 204.

The applicant for adjustment in Pinho does not appear to have been an arriving alien, or at any rate the issue did not arise, because no removal proceedings had been instituted and there was no immediate prospect that any would be. Pinho, 492 F.3d at 200-201. In finding jurisdiction to exist under the APA, the Third Circuit relied in significant part upon the fact that in that “there are no deportation proceedings pending in which the decision might be reopened or challenged.” Pinho, 492 F.3d at 202. Where an arriving alien is in removal proceedings at the time an adjustment application is denied by USCIS, or where a final order of removal against such an alien already exists when USCIS denies an adjustment application, the courts may be less likely to accept APA jurisdiction over the denial, although one could certainly argue that the logic of Pinho still applies, because the removal proceedings are not ones “in which the decision might be reopened or challenged” given the lack of EOIR jurisdiction over an arriving alien’s application for adjustment. Furthermore, even if one does obtain APA jurisdiction over the denial of an adjustment application filed with USCIS by an arriving alien with a final order of removal outstanding against him, the district court hearing the suit may be unwilling to interfere with DHS’s execution of the order of removal.

Where a removal order against an arriving alien already exists, however, there is another possible mechanism for obtaining judicial review of a USCIS denial of adjustment of status which may be preferable to an APA action under Pinho. To see why, it is necessary to look at another procedural context in which adjudication of an alien’s application for relief from removal proceeds separately from the actual entry of an order of removal against the alien. Although unusual in this respect, arriving-alien adjustment applications are not unique.

In order to enter the United States without a visa under the Visa Waiver Program (VWP), applicants with passports from VWP-participating countries must have
waived any right-

    (1) to review or appeal . . . of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or
    (2) to contest, other than on the basis of an application for asylum, any action for removal of the alien.

INA § 217(b), 8 U.S.C. § 1187(b). Recent developments in this area of the law, regarding the ESTA electronic system and the possibility of judicial review where a waiver is ineffective, were explored in a previous article by this author on this website (http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus20093232256). The relevant point here is that aliens subject to a VWP waiver who apply for asylum are referred to Immigration Court not for a hearing regarding their removability – for they have waived the right to such a hearing – but instead for “asylum-only proceedings” in which the only issues up for determination are the alien’s eligibility for asylum, withholding of removal, or relief under the Convention Against Torture.11 Removability itself, in the context of an effective VWP waiver, can be determined by DHS administrative fiat.12
In Kanacevic v. INS, 448 F.3d 129 (2d Cir. 2006), the Court of Appeals for the Second Circuit confronted the question of whether, and on what ground, it had jurisdiction to review the denial of relief in such “asylum-only proceedings”. As the Court of Appeals explained in Kanacevic:

    Under 8 U.S.C. § 1252(a)(1) (2000) we have jurisdiction to review a “final order of removal.” The government contends that because of the truncated rights available to a Visa Waiver Applicant, the denial of the asylum application is in effect a final order of removal because Kanacevic can be removed without further proceedings.

Kanacevic, 448 F.3d at 133. The Court of Appeals concluded that this government contention was correct, and that a VWP applicant for asylum can seek review of that application’s denial through a petition for review:

    Although the denial of asylum in a Visa Waiver Program case does not occur in the context of removal proceedings, denial of the asylum application is the functional equivalent of a removal order under the provisions of the Visa Waiver program. Were we to elevate form over substance by holding that the disposition of asylum-only proceedings does not function as a final order of removal to confer jurisdiction, we would create uncertainty over exactly what procedure a Visa Waiver applicant could pursue in order to obtain review of his or her asylum proceedings in the Courts of Appeals.

Kanacevic, 448 F.3d at 134-135.

Under the logic of Kanacevic, an arriving alien with a final order of removal whose application for adjustment is denied by USCIS should be able to petition for review of this denial. Like a VWP alien in asylum-only proceedings, an arriving alien with a final order of removal can be removed without further proceedings if the application is denied. Thus, the denial of such an arriving alien’s adjustment application, like the denial of a VWP alien’s asylum application, is the functional equivalent of an order of removal. And were the Courts of Appeals “to elevate form over substance by holding that [such a denial] does not function as a final order of removal to confer jurisdiction, [they] would create uncertainty over exactly what procedure a[n] [arriving alien] could pursue in order to obtain review of his or her [adjustment] proceedings.” Kanacevic, 448 F.3d at 134-135. Therefore, just as in Kanacevic, the Courts of Appeals should find jurisdiction to exist over a USCIS denial of adjustment for an arriving alien with a final order of removal.

The fact that an arriving alien may already have an order of removal outstanding against him should not prevent the denial of an adjustment application from being viewed as itself a final order of removal for purposes of judicial review. Dating back many years, “there is a “long line of Supreme Court and appellate court decisions interpreting ‘order of deportation’ to include orders denying motions to reconsider and reopen.” Chow v. INS, 113 F.3d 659 (7th Cir. 1997). This line of authority was extended to orders of removal after IIRIRA, and Courts of Appeals routinely review denials of motions to reopen and reconsider orders of removal. At the very least, the denial of an adjustment application by an arriving alien with a final order of removal is the functional equivalent of the denial of a motion to reopen that final order, and thus reviewable under the combination of the logic of Kanacevic and the logic of the motion-to-reopen cases.

Thus, it should be possible to obtain effective judicial review of denial of an adjustment application by an arriving alien regardless of the situation with respect to removal proceedings against that alien. If there are no removal proceedings and no prospect of proceedings in the immediate future, an APA action along the lines of Pinho is appropriate. If there is a final order, one can petition for review of the USCIS denial under Kanacevic, on the theory that the denial of the application is a functional equivalent of a final order of removal, and may also be able to bring a Pinho action. If removal proceedings are pending, a Pinho action is still arguably possible given the lack of EOIR jurisdiction over the adjustment application; there is also the option of seeking a stay of the removal proceedings pending USCIS action on the adjustment, and then, if the adjustment application is denied by USCIS and the removal order becomes final, filing a Kanacevic petition for review of the denial of the adjustment and related final order of removal. In all three scenarios, errors of law by USCIS in the adjudication of an arriving alien’s adjustment application need not go unchallenged.


* David A. Isaacson is an Associate at Cyrus D. Mehta & Associates, P.L.L.C., where he practices primarily in the area of immigration and nationality law. David’s practice includes asylum cases, other removal proceedings such as those based on criminal convictions or denied applications for adjustment of status, and federal appellate litigation, as well as a variety of family-based and employment-based applications for both nonimmigrant visas and permanent residence. David also assists clients in citizenship matters and late legalization matters. He is a graduate of Yale Law School, where he served as a Senior Editor of the Yale Law Journal. Following law school, David clerked for the Honorable Leonard B. Sand of the United States District Court for the Southern District of New York, and then worked in the Litigation Department at the law firm of Davis Polk & Wardwell, where he devoted a significant amount of time to pro bono immigration matters. David is the author of Correcting Anomalies in the United States Law of Citizenship by Descent, 47 Ariz. L. Rev. 313 (2005), reprinted in 26 Immigr. & Nat’lity L. Rev. 515 (2006). He is admitted to practice in New York, in the Courts of Appeals for the Second and Third Circuits, and in the Southern and Eastern Districts of New York, and is a member of the American Immigration Lawyers Association.

1 8 C.F.R. §§ 245.2(a)(1), 1245.2(a)(1).

2 8 C.F.R. § 245.2(a)(5)(ii).

3 See 8 U.S.C. § 1252.

4 8 U.S.C. § 1252(b)(1)(B), (b)(1)(D).

5 8 C.F.R. § 1245.2(a)(1)(ii).

6 It is theoretically possible that an arriving alien, having been paroled in based on a first application, could file a second application and utilize an advance parole from that second application before being placed in any removal proceedings. Then, it would appear that the second application could be renewed in proceedings even though the alien was already an arriving alien when it was filed with USCIS.

7 See Matter of Castro, 21 I&N Dec. 379, 380 (BIA 1996); Matter of C-H-, 9 I&N Dec. 265 (R.C. 1961); Mary Kenney, American Immigration Law Foundation, USCIS Adjustment of Status of “Arriving Aliens”
with an Unexecuted Final Order of Removal, updated Nov. 5, 2008, Practice Advisory available at
http://www.ailf.org/lac/pa/lac_pa_060308_arraliens.pdf.

8 See INA § 240(c)(6)(C). There are some exceptions, such as for asylum applicants who can demonstrate changed country conditions.

9 See Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008); Kalilu v. Mukasey, 516 F.3d 777 (9th Cir. 2008); Ni v. BIA, 520 F.3d 125 (2d Cir. 2008); but see Scheerer v. U.S. Attorney General, 513 F.3d 1244 (11th Cir.), cert. denied, No. 07-1555 (2008). For an overview of this case law, see Mary Kenney, American Immigration Law Foundation, Adjustment of Status of “Arriving Aliens” Under the Interim Regulations: Challenging the BIA’s Denial of a Motion to Reopen, Remand, or Continue a Case, updated Nov. 5, 2008, Practice Advisory available at http://www.ailf.org/lac/pa/lac_pa_070416_biaarraliens.pdf.

10 The applicant in Pinho had appealed the denial of an I-601 waiver of inadmissibility to the Administrative Appeals Office of USCIS, and had thereby obtained review of the underlying question whether he was inadmissible. The logic of Pinho, however, appears equally applicable to cases in which there is no I-601 denial to appeal to the AAO, which lacks jurisdiction over an I-485 adjustment application on its own, and where the final USCIS decision thus comes from a USCIS Field Office or Service Center.

11 See 8 C.F.R. § 1208.2(c)(1), (3).

12 See 8 C.F.R. § 217.4.