Big-Picture, Clean-Slate Immigration Reforms 

for the Biden-Harris Administration

By Angelo A. Paparelli and Stephen Yale-Loehr

As a new administration takes office on January 20, and the tantalizing prospect of enlightened immigration reforms looms on the horizon, an intriguing question has surfaced on Twitter:

“Is there a progressive version of Stephen Miller? Someone who has (1) put in the time to understand how the immigration system works in great detail, (2) relentlessly committed to changing the system, and (3) is actually politically effective?” Austin Kocher, PhD

As grizzled and tireless proponents of a just immigration system, we humbly nominate ourselves for (1) and (2), and for (3) propose the American Immigration Lawyers Association (AILA). To be sure, our audacity notwithstanding, others are more worthy. Many experts have suggested ways to restore America’s historic stature as a welcoming nation of immigrants. For example, consider recent proposals by Doris Meissner and Michelle Mittelstadt of the Migration Policy Institute, Alexander Aleinikoff, Donald Kerwin and other marquee immigration experts who collaborated with the Zolberg Institute on Migration and Mobility, David J. Bier at the Cato Institute, and the collective efforts of the National Immigration Forum, Immigration Hub and America’s Voice, and AILA.

Here then, with unbridled chutzpah, we offer four fresh ideas or tweaks of others’ already-suggested proposals. Some can be announced quickly by executive order or presidential proclamation. Others might require rulemaking. None would require congressional action:

  • Restore the customer-service ethos and recognition of our heritage as a nation of immigrants in the USCIS mission statement. The mission statement of U.S. Citizenship and Immigration Services (USCIS) should reflect our nation’s heritage and values. It should also inspire USCIS employees to recognize and foster the benefits of legal immigration in their work (family unity, refugee and labor protection, and promotion of economic prosperity). By changing the mission statement, the agency would send a message of inspiration to its personnel, immigration stakeholders, the nation and the world. In tandem, the new administration should instruct USCIS to: (1) restore its former deference policy on affirming previously approved grants of immigration benefits when extensions of status involve no material change in the facts; (2) stop rejecting properly filed forms that fail to put “not applicable” or “none” where such notations are unnecessary (e.g., requiring the “current location” of “deceased relatives”); (3) stop using instructions on immigration forms – which have the force and effect of a regulation under 8 C.F.R. § 103(a)(1) – as an end run around formal notice-and-comment rulemaking under the Administrative Procedure Act (APA); and (4) cease issuing boilerplate, kitchen-sink requests for evidence or notices of intent to deny or revoke immigration benefits unless the request or notice expressly articulates an examination of the relevant evidence presented, cites relevant legal authority (no more making stuff up), limits the “ask” to unresolved issues, acknowledges eligibility criteria that have been satisfactorily established, and offers a clear explanation for the agency’s action, including a rational connection between the facts found and the agency choice made. Moreover, USCIS adjudicators, just like immigration judges and members of the Board of Immigration Appeals, must be required to sign their name to their decisions (or a pen name, if necessary for security purposes). This way rogue adjudicators who do not comply with these new requirements could be re-educated or rooted out.
  • Take USCIS out of investigations and limit its role to adjudicating requests for immigration benefits. The Homeland Security Act of 2002 (HSA) states that USCIS should engage in only limited activities. As a recent amicus brief filed by the Alliance of Business Immigration Lawyers explained, the HSA allows USCIS to decide requests for immigration benefits (e.g., asylum, visa petitions, work permits, permanent residency and naturalization), but not to conduct investigations and intelligence-gathering activities. USCIS should therefore be ordered to shutter its Fraud Detection and National Security (FDNS) directorate, or limit that unit’s role to data collection and analysis. To the degree that immigration officials suspect crimes or fraud, Immigration and Customs Enforcement should conduct any investigation that may be warranted, as the HSA provides – subject to the new Administration’s enforcement priorities and under even-handed procedural due process protections, such as issuing advance notice of inspection in writing (except where imminent harm or solid evidence of crimes require dispensing with prior notice). USCIS should end unannounced FDNS site visits.
  • Authorize virtual or in-person attorney representation at U.S consular posts abroad and ports of entry, and allow legal representation of other parties with legitimate interests in USCIS benefits adjudications. In a 2017 petition for rulemaking under the APA, AILA urged the Departments of State and Homeland Security to allow in-person or electronic participation of legal counsel during consular visa interviews and in applications for admission to the United States. That effort proved fruitless, but the need for legal representation persists. Experience has shown that visa applicants at consular interviews and persons seeking entry to the United States have only a few minutes to persuade a federal immigration official of their eligibility. Routinely, these decisions are made without the safeguards that attorney representation would ensure. Also barred from attorney representation under USCIS procedures are stakeholders with a legitimate interest in a particular immigration proceeding. For example, employment-and family-based petitioners may be represented by counsel, but individual beneficiaries may not. Similarly, an EB-5 regional center or project developer may not be represented in an immigrant investor’s initial petition or a conditional permanent resident’s petition to remove conditions on residency. Lawyers safeguard fairness and due process in immigration proceedings. They should be expressly allowed to actively and directly protect their clients’ legal interests. (We also believe in the need to review consular visa denials, but that is a bridge too far for this post.)
  • Establish a single administrative tribunal that decides all immigration-related legal issues across all federal agencies. Many have espoused moving immigration judges and the Board of Immigration Appeals from the Justice Department to a freestanding Article I immigration court. That would require congressional action. In the meantime, the new administration already has authority to create an impartial administrative tribunal within the Department of Justice, but protected from political interference by executive order or regulation. Immigration and Nationality Act (INA) § 103(a) states that a “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.” At present, an alphabet soup of agencies, departments, and subordinate components within the federal government make decisions interpreting the INA and agency regulations and practices. These decisions often conflict, leaving immigration stakeholders to infer, interpret, and sometimes just guess at what the law requires or permits. Of course, interagency cooperation and funding (perhaps with existing user-fee authority) will be necessary. These potential hurdles can be overcome. The existing legal disharmony is unsustainable. Immigration law must be reconciled and proclaimed consistently across federal immigration agencies so that the public will know how to plan their affairs and comply with the laws, and thus better protect reliance interests.

* * *

From our pens to the new Administration’s ears.

_________

Copyright © 2020 Angelo A. Paparelli (@angelopaparelli; APaparelli@seyfarth.com) and Stephen Yale-Loehr (@syaleloehr; SWY1@cornell.edu). All rights reserved. An earlier version of this blog was published by the American Immigration Lawyers Association here.

 

The U.S. Department of Labor (DOL) and Department of Homeland Security (DHS) last week affirmed the truth of the Upton Sinclair maxim on just how hard it is get someone “to understand something, when his [or her] salary depends on . . . not understanding it.”

In this case, federal immigration bureaucrats have had three decades to comprehend the delicate legislative balance of business needs and labor protections that produced the H-1B visa category for workers in specialty occupations.  For most of the ensuing years they seemed to appreciate that balance.  Yet, now, with the fate of their Executive Branch leader and paymaster up for a plebiscite in three weeks, their comprehension has (unsurprisingly) failed.  As this blog post will explain, because the needs and best interests of employers and workers (citizen and noncitizen alike) are intertwined, changing the rules of play late in the game without fair notice in order to favor one team over others will only hurt everyone.

Four days ago, the two departments — with the gushing enthusiasm of its two leaders — together delivered a one-two punch, each posting a distinct interim final rule (IFR) dramatically restricting and making more costly and burdensome the H-1B nonimmigrant visa category for foreign workers in the H-1B and other specialty occupations.  The DOL rule, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” takes effect immediately on publication (October 8, 2020).  The DHS rule, “Strengthening the H–1B Nonimmigrant Visa Classification Program,” will be binding for new H-1B requests filed on or after December 7, 2020. Each rule consumes more than 40 pages of dense three-column, single-line text in the Federal Register.

The DOL rule instantaneously jacked up the prevailing wages that must be paid to H-1B workers if employers rely on the DOL as the source of prevailing wage data (this graphic, courtesy of  David Bier at the Cato Institute, shows how high the new DOL rates have jumped). These elevated rates, DOL has now ordered, must also be considered the going rate for cases involving the sponsorship of noncitizens for employment-based green cards under the PERM labor certification rules.

The DHS rule is a comprehensive overhaul, with a multitude of added burdens and restrictions, as explained here:

Specifically, DHS is: Revising the regulatory definition of and standards for a ‘‘specialty occupation’’ to better align with the statutory definition of the term; adding definitions for ‘‘worksite’’ and ‘‘third[-]party worksite’’; revising the definition of ‘‘United States employer’’; clarifying how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an ‘‘employer[-]employee relationship’’ between the petitioner and the beneficiary; requiring corroborating evidence of work in a specialty occupation; limiting the validity period for third-party placement petitions to a maximum of 1 year; providing a written explanation when the petition is approved with an earlier validity period end date than requested; amending the general itinerary provision to clarify it does not apply to H–1B petitions; and codifying USCIS’ H–1B site visit authority, including the potential consequences of refusing a site visit. (DHS rule, 85 Federal Register at 63918.)

The societal costs of the two IFRs are substantial.  Just the initial cost to employers, with help from their outside counsel, to understand what the new rules require (the initial “familiarization costs”) amount to $1,954,336 for the DOL rule, and $11,941,471 for its DHS companion; but these sums pale in comparison to the whopping long-term cost projections:

For the 10-year implementation period of the rule (FY 2021 through FY 2030), DHS estimates the annual net societal costs to be $51,406,937 (undiscounted) in FY 2021, $416,212,496 (undiscounted) in FY 2022, $541,795,976 (undiscounted) from FY 2023 through FY 2027 each year, $388,592,536 (undiscounted) from FY 2028 through FY 2030 each year. DHS estimates the annualized net societal costs of the rule to be $430,797,915, annualized at 3-percent and $425,277,621, annualized at 7-percent discount rates.  (DHS rule, 85 Federal Register at 63921.)

[The DOL’s] IFR will have an annualized cost of $3.06 million and a total 10-year cost of $21.51 million at a discount rate of 7 percent in 2019 dollars. . . . The IFR will [also] result in annualized transfer payments of $23.5 billion and total 10-year transfer payments of $165.1 billion at a discount rate of 7 percent in 2019 dollars. . . . Transfer payments are the result of changes to the computation of prevailing wage rates for employment opportunities that U.S. employers seek to fill with foreign workers on a temporary basis through H–1B, H–1B1, and E–3 nonimmigrant visas. . . . [not including PERM transfer payments which DOL, without explanation, considered de minimus].  (DOL rule, 85 Federal Register at 63903-63903 (footnotes omitted)).

The new IFRs would upend complex rules in effect since 1991, regulations that — in a balanced way — considered the needs of employers to fill labor shortages by employing foreign workers, while also providing labor protections. See, H.R. REP. NO. 101-723, pt. 1, at 6721, 6723 (1990) (recognizing “the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.”), and DOL Administrator v. Volt Management, DOL Administrative Review Board, ARB CASE NO. 2018-0075, p. 15, fn. 62, Aug. 27, 2020.

Exhibiting virtually no sense of irony at almost three decades of bureaucratic inaction, DOL and DHS explained that it would not be right, nor is there time sufficient, to give the public advance notice or an opportunity to comment before the changes are final.  They cite two reasons for acting so hurriedly:  (1) President Trump issued his April 18, 2017 “Buy American and Hire American” (BAHA), Executive Order (E.O.) 13788, which required them to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system,” and (2) the nation is in the throes of an economic emergency as businesses and individuals are buffeted by the immediate harms and aftermath of COVID-19 (as DHS maintains, “[the] pandemic emergency’s economic impact is an ‘obvious and compelling fact’ that justifies good cause to forgo regular notice and comment”).

Given the pro-labor, oblivious-to-business slant of the two IFRs, it is no surprise that the DOL and DHS somehow neglected to discuss the President’s May 19, 2020 Executive Order 13924 on Regulatory Relief To Support Economic Recovery.  EO 13924 addressed several ways to promote an economic recovery in response to the pandemic, including by showing sensitivity to the challenges that U.S. businesses now face:

Agencies should address this economic emergency by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery, consistent with applicable law and with protection of the public health and safety, with national and homeland security, and with budgetary priorities and operational feasibility. They should also give businesses, especially small businesses, the confidence they need to re-open by providing guidance on what the law requires; by recognizing the efforts of businesses to comply with often-complex regulations in complicated and swiftly changing circumstances; and by committing to fairness in administrative enforcement and adjudication. (Emphasis added.)

Similarly ignored in the two IFRs are two other Trump Administration executive orders designed to relieve regulatory compliance burdens on businesses, discussed in my November 10, 2019 blog post. These orders — issued after BAHA — should have signaled to DHS and DOL that now is not the time to rock the boat on H-1B stakeholder reliance interests:

Also given little weight by DOL and DHS is the possibility that sharp increases in prevailing wage rates and added burdens and limits on the employment of H-1B workers might actually harm U.S. workers and endanger the economy, as this excerpt from the DOL IFR suggests (but nonetheless disregards in its rush to publication):

With the increases in prevailing wage levels under this IFR, some employers may decide not to hire a U.S. worker or a foreign worker on a temporary or permanent basis. The prevailing wage increase may mitigate labor arbitrage and induce some employers to train and provide more working hours to incumbent workers, resulting in no increase in employment. The Department is unable to quantify the extent to which these two factors will occur and therefore discusses them qualitatively.

The labor economics literature has a significant volume of research on the impact of wages on demand for labor. Of interest in the context of the H–1B program is the long-run own-wage elasticity of labor demand that describes how firms demand labor in response to marginal changes in wages. . . . It is likely that U.S. employers will pay higher wages to H–1B workers or replace them with U.S. workers to the extent that is possible. However, we can approximate that, if U.S. employers were limited in the ability to pay higher wages and did reduce demand, it would reduce the transfer payment [to workers in the form of higher wages] by approximately 7.74 percent. (DOL rule, 85 Federal Register at 63908; emphasis added.)

The DHS’s IFR does not address whether or not an increase in compliance costs and burdens, and restriction on H-1B eligibility and the maximum period of authorized stay, would result in quantitatively fewer H-1B workers hired.  Surprisingly, this omission comes notwithstanding that two federal courts in Northwest Immigrant Rights Center v. USCIS, and Immigrant Legal Resource Center v. Wolf, et al., have just wrapped USCIS’s knuckles and issued preliminary injunctions against filing-fee increases because the agency did not consider demand elasticity, i.e., that higher fees might result in lower total funding.  In other words, DHS has not learned the lesson (similarly discounted by DOL) that immigration demand goes down when costs go way up.

* * *

Ironically, the haste of DOL and DHS to make their ill-considered IFRs effective immediately have confirmed Upton Sinclair’s wisdom — but with a twist.  It is indeed hard to get someone “to understand something, when his [or her] salary depends on . . . not understanding it.”  It is harder still when the salary paymaster, who faces a vote of the populace in a few weeks, issues conflicting executive orders in the midst of a plague, and the wage recipients are partial to one group of stakeholders over others in a competition which Congress ordained should be fair and balanced.

We’ve seen this movie before.

Scene 1: The President issues a proclamation in reliance on his authority to restrict the entry of certain noncitizens under Immigration and Nationality Act (INA) § 212(f) so long as he asserts that allowing them in would be “detrimental to the interests of the United States.”

Scene 2: The proclamation creates exceptions to the entry bans based on  the national interests of the United States (among other grounds).

Scene 3:  Affected parties apply for exceptions; their requests are ignored or denied under opaque or nonexistent administrative procedures; and they sue in federal court.

This was the plot of the three travel-ban proclamations issued in 2017, the last of which the Supreme Court upheld in its 2018 decision, Trump v. Hawaii. After the Supreme Court’s  ruling, litigation ensued because plaintiffs in several suits alleged that the government’s actions (refusing visas under 22 CFR §§ 41.121 and 42.81) conflicted with the proclamation and the statutory authority of the Secretary of State in INA § 104. The litigation continues, having survived a government motion to dismiss, which a federal judge denied on June 5 in Emami v. Nielsen [and] Pars Equality Center v Pompeo (Pars Equality).

Sequels to Travel Ban–The Movie have since spewed forth, as the Congressional Research Service reports:

Issued between January and March 2020, these [Presidential] proclamations collectively suspend the entry of aliens who, within the prior 14 days, have been in mainland China, Iran, the European Schengen Area, Ireland, or the United Kingdom. . . . Also related to COVID-19, a proclamation that took effect on April 23, 2020 suspends the entry of many aliens on immigrant visas for 60 days, for the stated purposes of protecting Americans from job competition during the economic recovery and reducing strain on the domestic health care system.

The latest release, bearing the tongue-tiring title, “Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak,” aired on June 22, and a bloodier Director’s Cut (thought to be the work of Stephen Miller) premiered on June 29.  Together, they extend the immigrant visa ban and bar the entry of foreign citizens requiring work visas in the H-1B, H-2B, L-1, and many J-1 categories along with their dependents (the June Bans) until the end of 2020.

The bans for the listed countries and regions (the Area Bans) created various carve outs, including a subjective one, i.e., if the entry of a noncitizen “would be in the national interest.”   The June Bans likewise included national-interest exceptions, but if based upon any job- or business-related claims of national interest, they set a very high bar. An economic-imperative exception to the work-visa bans would apparently not be allowed unless the entry of the applicant is shown to be “necessary to facilitate the immediate and continued economic recovery of the United States.”

As a practical matter, however, unless a national-interest (or other) exception is granted, neither the Area Bans nor the June Bans make much difference for the immediate future because most consular posts are closed and visa interview appointments are unavailable  — except on a showing of emergency (which one can assert if an appointment long into the future is snagged and then the chance to explain appears in the online DS-160 visa application, or the consular post’s email can be found or its fax number identified).

So does it make any sense to pursue a national-interest exception to any of the entry bans based on economic exigency?  I say, “yes,” and here’s why.

  • There Will Be Blood. As this is written, numerous organizations and individuals are identifying plaintiffs, and polishing off final drafts of soon-to-be-filed complaints and motions for emergency relief that seek to set aside the bans. Fiercely contested litigation often creates unforeseen beneficiaries.  The government may try to “moot out” plaintiffs and dismiss a case challenging its exercise of discretion by granting their requests for a national-interest exception. Also, a remedial order granting relief may apply to anyone who asked for a national-interest exception but was refused.  Litigation challenging the Area Bans and the June Bans may well succeed given the arbitrary and miserly grounds on which national-interest exemptions have been approved. Based on information reportedly from the U.S. Embassy in Paris, and independently confirmed by this blogger, the “bar is extremely high as to what constitutes national interest”:

So far, the only cases considered for a national interest exception are those of intended parents of children to be born through surrogacy in the United States and whose presence will relieve the hospital of the childcare burden during the current national health emergency; and researchers/healthcare workers or employees whose work is directly related to COVID-19 mitigation, treatment, or prevention.

Surely, competent litigators will make much of the exalted national interest in surrogate parenting (albeit important to the affected couples) that is seen by consular officials as trumping far more profound and broadly painful economic impacts.

  • The American President. The entry bans are not the only times President Trump has proclaimed on the economy. In a Presidential executive order (“EO”), entitled “Regulatory Relief To Support Economic Recovery,” EO 13924 (May 19, 2020), he called on all federal departments and agencies to combat the economic consequences of COVID-19 with “vigor and resourcefulness,” provide “exemptions from regulations and other requirements that may inhibit economic recovery [and] . . . use, to the fullest extent possible . . . any emergency authorities that I have previously invoked in response to the COVID-19 outbreak or that are otherwise available to them to support the economic response to the COVID-19 outbreak (emphasis added).” This is the third admonition of the President to urge the Administrative State to go easier on businesses and individuals (I blogged about the earlier two here). He has also trumpeted recent improvements in the unemployment numbers in May and June, noting that the economy is “roaring back.” Thus, by wrapping a national-interest/economic-imperative request in presidential garments, and citing government authorities such as, “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response,” it may become easier to assert, with justification, that the grant of a national-interest exception to the bans will “facilitate the immediate and continued economic recovery of the United States.”
  • Local Hero. Perhaps the most promising visa category under which to consider requesting a national-interest exception based on economic urgency is the L-1 visa category for intracompany transferees.  These noncitizens must have at least one year of full time prior employment abroad in a multinational enterprise as a manager, executive or employee with specialized knowledge.  This is because U.S. workers’ employment prospects are likely not reality-based if they think they could possibly replace an L-1 intracompany transferee.  U.S. workers simply lack the requisite “insider” experience. I elaborated on the point in a June 23 interview with Immigration Law 360 Reporter, Suzanne Monyak:

‘It boggles the mind to think that the expertise and sophistication of executives and managers, who have been employed by [a multinational] organization, and the specialized knowledge of essential workers with that level of expertise, can be replaced by a U.S. worker,’ said Angelo Paparelli . . . . ‘No amount of education can substitute for that level of internal experience.’

To enhance the L-1 quest for a national-interest exception, applicants should note that the June Bans did not prohibit the entry of E-1 or E-2 visa holders even though they enter the U.S. in positions comparable to L-1s as executives, supervisors or essential-skills personnel, do not require one year of prior experience, and the entities that would employ them cannot even be owned by American citizens (who lack treaty-country nationality) or U.S. lawful permanent residents (with the same treaty-protected nationality [see 9 FAM 402.9-4(B)e]). Stated differently, E-1 and E-2 entrants presumably do not undermine the U.S. economy and they apparently “facilitate [America’s] immediate and continued economic recovery” (or they would have been included in the ban), but — counter-factually — L-1 visa holders somehow threaten our economic well-being, even though they are often owned and operated by Americans and employ U.S. workers.

  • Capitalism: A Love Story. H-1B nonimmigrants may also establish a factual basis for a national-interest exemption on economic grounds.  Their justifications of enhanced job creation and entrepreneurship would be based on abundant evidence (“Don’t Ban H-1B Workers: They Are Worth Their Weight in Innovation”).  J-1 nonimmigrants who come here as interns, trainees,  teachers, camp counselors, au pairs, or summer work travelers (and heretofore had not been banned) often liked what they saw, and – as immigration lawyers can attest – then returned as H-1B workers or budding entrepreneurs. Both the H-1B and J-1 categories can assert an economic claim of comparable merit to EB-5 immigrant investors who must directly or indirectly create jobs based on economic modeling (but are not subject to the June bans) or international entrepreneurial parolees who likewise are not banned, and whose legal eligibility remains on the books based on a federal court ruling against the Trump Administration in National Venture Capital Association v. Duke).  Similarly, U.S. employers of H-2B workers who fill temporary or seasonal needs should be able present a justifiable claim of entitlement to a national interest exception on economic grounds. A labor market test would have been required to qualify in this category (and no qualified U.S. worker would have been found, or else the H-2B visa petition would be denied).

In short, to the degree that economic imperatives must be established to gain a national-interest exception (the economy, after all, is the ostensible raison d’être for the bans), then the underlying economic justifications that caused Congress to create these work visa categories are surely relevant.

Moreover, the immigrant visa ban and the June bans squarely raise the issue of whether these proclamations conflict with the INA (an issue undecided in Trump v. Hawaii).  That conflict is litigation fodder, as is the asserted conflict acknowledged in Pars Equality between agency actions in administering the requests for exceptions to the bans and the requirements of the INA and immigration regulations.  These ripe and tasty “litigable” issues are reason enough to request national interest exceptions on economic grounds (over and above the chance that the exceptions will be approved).

* * *

In my interview with Suzanne Monyak, I predicted that the entry bans will be as ineffectual as medieval medicine:

[If] international companies decide the restrictions aren’t worth it and take their business outside the U.S., it could result in fewer, not more, jobs for Americans. Paparelli compared the proclamation to attempting to solve the U.S.’ current economic woes with the medieval practice of bloodletting. ‘While other countries are making their destinations more attractive, we’re basically pushing people out,’ he said. ‘And if that won’t affect U.S. workers adversely, I don’t know what will.’

As I reflect on it, however, the bans ultimately call to mind the Black Knight’s sword-fighting scene with King Arthur in Monty Python and the Holy Grail.  And, if national-interest exception requests based on economic grounds ultimately prevail, perhaps we can then say, with no sense of irony (but maybe just a smile), “’tis but a scratch.”

In the wake of recent losses in the federal courts, U.S. Citizenship and Immigration Services (USCIS) — on June 17, 2020 — issued a memorandum that rescinds two agency policies which, for more than ten years, had forced employers of H-1B (Specialty Occupation) workers stationed at customer worksites to submit voluminous and burdensome evidence.  Thankfully, under the new interpretation such evidence will no longer be required.

The June 17 memorandum also provides partial guidance on possible petition denials and revocations, as well as potential status violations, when employees are placed in nonproductive status, whether in response to COVID-19, or otherwise.  Yet it leaves many questions unanswered.

Easier Proof of Employer-Employee Relationship

For more than a decade, USCIS had required employers intending to place H-1B employees at third-party worksites to submit proof of client contracts, purchase orders, statements of work, letters from customers, and similar evidence to establish that the H-1B petitioner (and not the customer) was and would remain the actual employer of the sponsored worker. See, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements,” HQ 70/6.2.8 (AD 10-24), issued January 8, 2010. These documents often contained confidential business information; thus, procuring them for each employee often entailed needless delay and inconvenience, requiring outreach to, and delicate negotiation with, the corporate customer.

Employers petitioning for H-1B noncitizens for offsite work no longer need to file evidence obtained from customers. The January 8, 2010 policy is now rescinded and can no longer be applied to “any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.”

USCIS’s latest memorandum makes clear that its adjudicators should not request evidence derived from the petitioner’s customers, but may consider such proof if the employer submits it.  An H-1B employer, however, must still prove the existence of a bona fide job offer when the petition is filed by satisfying only “ONE” (capitalization courtesy of USCIS) of the following criteria, namely, the authority to (1) hire, (2) pay, (3) fire, (4) supervise, or (5) otherwise control the work of the sponsored H-1B employee.

Contracts and Itineraries No Longer Required

Also rescinded by the recent USCIS policy memorandum is a February 22, 2018 interpretation, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” PM-602-0157, which the agency describes as having been “intended to be read together with the 2010 memorandum and as a complement to that policy.”  The professed purpose of the 2018 memorandum was to allow USCIS adjudicators the opportunity to confirm that the H-1B employee would be employed, on a “non-speculative” bases, in a job classifiable as a specialty occupation.  In practice, USCIS had required proof of day-to-day assignments to establish the availability of specialty occupation work, and too often approved H-1B petitions only for the duration of the customer contract rather than for the otherwise-applicable statutory maximum period of H-1B petition validity. With USCIS’s issuance of its June 17 memorandum, contracts, itineraries and proof of day-to-day assignments are no longer required, but “the petitioner may choose to provide such evidence.”

Given that USCIS adjudicators are no longer allowed to ask for evidence that is burdensome and time-consuming to produce, and may not deny the petition or shorten the period of H-1B petition validity and status solely because such evidence is not filed, there seems no advantage in providing it. Or, as one wag has suggested, “[stress] is unnecessary and unnecessary stress is very unnecessary.”

New USCIS Guidance on Benching

The June 17, 2020 policy memorandum also clarified USCIS guidance on the possible immigration consequences arising in situations when an H-1B worker is not performing services as described in the employer’s petition.  The memorandum is especially relevant given the varying responses of H-1B employers and employees to the COVID-19 pandemic that has triggered a wave of repercussions ranging from reductions in hours, leaves of absence, furloughs, and terminations of employment, some of which have been couched as extended severance periods that purport to prolong employment status.

The new memorandum states:

The failure to work according to the terms and conditions of the petition approval may support, among other enforcement actions, revocation of the petition approval, a finding that the beneficiary failed to maintain status, or both. . . .

Lack of work may be a material change in the terms and conditions of employment that could affect eligibility for H-1B nonimmigrant classification and could require the filing of an amended petition. . . .

In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must assess the circumstances and time spent in non-productive status.

As the memorandum notes, the Immigration and Nationality Act (INA) and regulations of the U.S. Department of Labor (DOL) require that the employer continue to pay H-1B nonimmigrants the “required wage” reported to DOL if the employee “is not performing work and is in a nonproductive status due to a decision by the employer.” (This obligation, sometimes described as the duty to pay during periods of “benching,” applies as well to H-1B1 employees from Chile and Singapore and to E-3 workers from Australia.) The required wage need not be paid, however, if an employee “experiences a period of nonproductive status due to conditions” which “render the nonimmigrant unable to work.” See INA § 212(n)(2)(C)(vii)(listing exceptions to the prohibition on unpaid benching) and 20 CFR § 655.731(c)(7)(i) and (ii)(listing, respectively, circumstances where required wages “must” or “need not” be paid).

USCIS acknowledges in the new memorandum that “neither statutes nor regulations state the maximum allowable time of non-productive status.”  Thus, it authorizes agency officers to exercise discretion in issuing a notice of intent to deny (NOID) a pending petition, or a notice of intent to revoke (NOIR) a previously approved petition, and grant of status.  Issuance of a NOID or NOIR would give the petitioner (but not the worker) a chance to explain why adverse action should not be taken.

The memorandum also includes an exception (citing the DOL regulation, 20 CFR § 655.731(c)(7)(ii), noted above):

However, it would not be a violation of H-1B nonimmigrant status for a beneficiary to be in non-productive status during a period that is not subject to payment under the petitioner’s benefit plan or other statutes such as the Family and Medical Leave Act or the Americans with Disabilities Act. (Emphasis added.)

The quoted statement is unhelpful for two reasons.  First, it is confusing because it contains a triple negative.  Second, it conflates the employer’s duty to pay the required wage with the employee’s distinct obligation to maintain lawful status.

Presumably, a USCIS adjudicator in reliance on the quotation might find, for example, that a medical disability would still allow the individual to be classified as having maintained lawful status if the employee on medical leave is not paid under the benefits plan, the FMLA or the ADA or some other law requiring payment. Regrettably, however, the USCIS Memorandum does not address the opposite situation, i.e., where the employer pays the required wage to an H-1B worker who is on an approved medical leave, even though payment is not required by the benefits plan or by statute. (Readers should note that USCIS in the past has often approved an otherwise approvable H-1B petition, and found no violation of status, as a result of a leave of absence that is medically justified and reasonable in duration – whether or not the employer has paid the required wage in the interim.)

Also disappointing is the omission in the new memorandum of any guidance on recurrent fact patterns involving nonproductive status that have arisen in response to the COVID-19 pandemic.  Numerous questions remain unanswered in the new memorandum, including these:

  • What happens if an employee’s hours were reduced even though s/he was willing and able to work full time and the employer never filed an amended petition to allow reduced hours? Will that be treated as a status violation when the employee invokes H-1B portability and seeks to transfer status to another employer? Note that the INA and the DOL regulations cited above are intended to protect the employee from unlawful benching by the employer, including a reduction of hours. Consider also relevant precedent decisions. See, e.g., Matter of Lee, 11 I&N Dec. 601 (Comm. 1966)(“[b]y ceasing his temporary employment . . . the applicant terminated his lawful nonimmigrant status”) and compare Matter of Siffre, 14 I&N Dec. 444 (Comm. 1973)(“[in the case of a nonimmigrant who] has been admitted for a fixed period, within that period his stay is not unlawful unless by his own conduct he violates one of the conditions of his admission [emphasis added]).
  • What if an employer who intends to terminate the employment of an H-1B worker offers the employee a period of extended paid or unpaid “garden leave” to graciously allow the individual to find another career opportunity but requires no services or labor in return and affords the individual no access to employer IT or facilities? Note that USCIS regulations governing the Form I-9 (Employment Eligibility Verification) process allow employer-authorized paid or unpaid leaves of absence to be treated in certain situations as “continuing employment.” Note also that, although USCIS regulations allow a terminated H-1B employee up to a 60-day grace period to find and be sponsored for another job, the agency can shorten or eliminate the grace period in the exercise of discretion based on all of the facts involved in the “cessation of employment.”
  • What if an H-1B employee files an aggrieved-party complaint with the DOL for having been benched without pay and terminated in retaliation for objecting to the pay cut? Note that INA 212(n)(2)(C)(v) requires the “Secretary of Labor and the Attorney General [now the Secretary of Homeland Security]” to “devise a process under which an H-1B nonimmigrant who files a complaint regarding [retaliation] and is otherwise eligible to remain and work in the United States may be allowed to seek other appropriate employment in the United States for a period not to exceed the maximum period of stay authorized for such nonimmigrant classification.” However, no such “process” has ever been “devise[d].” Is that a status violation by the employee?

Given that the June 17, 2020 memorandum does not fully address these and other foreseeable situations arising in response to the pandemic, H-1B employers and employees have little choice but to consult with their immigration counsel and await case-by-case adjudication outcomes – unless of course USCIS is again required to recant the latest guidance through federal court litigation.

Much like patient vintners, federal immigration agencies often take time to offer up a grand cru.  One such agency, U.S. Citizenship and Immigration Services (USCIS), the Homeland Security component that administers the legal immigration system, just produced a long-awaited, delectable quaff. On May 5, it issued a policy memorandum that anointed as binding precedent an administrative appellate decision which at long last blesses modern practices in business transformations.

USCIS will now allow eligibility for employment-based immigration benefits previously secured by one company to be preserved by a successor entity even if the predecessor goes out of business. The decision,  Matter of F-M- Co., Adopted Decision 2020-01, issued by the USCIS’s Administrative Appeals Office (AAO), recognized the principle of immigration “successorship in interest” in mergers, acquisitions and other forms of corporate restructuring.

USCIS’s actions are significant and historic.

The agency has now provided a predictable path to preserving precious employment-based immigration benefits for many foreign managers and executives transferring from abroad who might otherwise have lost eligibility because of a corporate restructuring over which they had no control.  These noncitizens, so-called “intracompany transferees,” qualify for an “L-1A” work visa (for up to seven years) and an “EB-1C” employment-based green card as a “priority worker” if the manager or executive sponsored by an employer to work in the U.S. had been employed abroad for at least one of the last three years by a “qualifying organization” or “multinational” enterprise.  (To meet this entity-relationship test, both the foreign employer and U.S.-based petitioning entity must be a parent, branch office, affiliate or subsidiary within a group of entities under common ownership and control.)

Before the recent USCIS actions, the path to immigration eligibility for these managers or executives has long been beclouded.  The problem has persisted since at least 1989 (as I described in “Life After Mergers and Acquisitions: The Immigration Impact on U.S. Employers and Alien workers,” my first of several co-authored articles on the topic), and later made worse by a gratuitous comment in an August 6, 2009 USCIS policy memorandum.

This memo, Memorandum of Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, ‘Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions; Adjudicators Field Manual (AFM) Update to Chapter 22.2(b)(5), without explanation or analysis, purported to deprive intracompany managers and executives (as well as “outstanding professors and researchers”) of employment-based green-card eligibility following a corporate restructuring, even though longstanding agency practice had been to recognize their entitlement based on immigration successor-in-interest principles.

To be fair, Mr. Neufeld’s memorandum was still quite helpful.  It recognized that immigration successor-in-interest determinations in major corporate restructurings should no longer be guided by Matter of Dial Auto Repair Shop, Inc., 19 I&N Dec. 481 (Comm. 1981), a case involving the transfer of an automotive technician from one car repair shop to another.  Dial Auto Repair created an inflexible test for immigration successorship (requiring the assumption by a corporate successor entity of all assets and all liabilities of the predecessor) in green card cases involving “labor certification,” i.e., where an employer must first prove that U.S. workers are unavailable.

Fortunately, however, the 2009 memorandum acknowledged that the predecessor immigration agency, the Immigration and Naturalization Service (INS), had long applied a “very restrictive reading” of Dial Auto Repair and its test for successorship. The 2009 memorandum therefore noted:

USCIS recognizes that business practices change over time, particularly in the areas of acquisitions, mergers, and transfers of assets and liabilities between entities . . . [Corporate] entities do not always wholly assume the assets and liabilities of entities they acquire or merge with and that businesses may choose not to assume certain assets or liabilities in connection with a perfectly legitimate transaction.

Writing in Business Law Today, I welcomed the newly relaxed standard for successorship in “Bothersome immigration buzz spells trouble for M&A deals: New homeland security memo complicates employee transfers,”  but whined over the agency’s elimination of inherited immigration benefits for intracompany managers and executives, stating:

USCIS has not explained why it views immigration successorship “principally” through the lens of the labor certification procedure. The agency and its predecessor, the Immigration and Naturalization Service, have long accorded successor-in-interest designation to a host of nonimmigrant work visa categories that are exempt from the labor certification requirement. Similarly, both agencies have historically granted the designation to the EB1 Multi-National Executive or Manager immigrant visa classification, a kissing cousin of the L-1 nonimmigrant visa . . . .

USCIS is wrong to proclaim in a memorandum drafted without stakeholder consultation that only certain foreign workers whose employers are involved in new business combinations (those holding labor certifications) are allowed to continue their pursuit of permanent residence in the United States while other noncitizen employees (likewise affected by corporate restructurings, but in different immigrant visa categories) are precluded.

USCIS should not limit eligibility by a wooden view of immigration successorship while proclaiming an intention to adjust to changing business practices. The memorandum speaks a good game, but the agency’s newfound flexibility is difficult to discern.

Happily for this class of aspiring citizens, USCIS’s recent actions on May 5 have at last softened its “wooden view of immigration successorship.” Thus, the AAO in Matter of F-M- Co., has finally ruled:

The Neufeld Memorandum, which recognized changes in business practices in the areas of acquisitions and mergers, was issued “to allow flexibility for the adjudication of I-140 petitions that present novel yet substantiated and legitimate successor in interest scenarios.” . . .

In the event a corporate restructuring affecting the foreign entity occurs prior to the filing of a first preference multinational executive or manager petition, a petitioner may establish that the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity. If these conditions are met, USCIS will consider the successor-in-interest to be the same entity that employed the beneficiary abroad.

Matter of F-M- Co. involved a merger and absorption of one foreign company into another. What remains to be decided is what test for immigration successorship will be applied outside of the merger context.  Far more common is the assumption of assets but not necessarily liabilities.

Legacy INS had informally relaxed the Dial Auto Repair requirement and determined that the assumption of only a portion of the liabilities of a division of a target company would be sufficient for immigration successorship to be recognized. (See, e.g., the Bednarz-Bravin correspondence published in 70 Interpreter Releases 1568 [Nov. 22, 1993].) Over time, in practice, INS and USCIS have often approved immigration successorship deals where the assumption involved only immigration-related liabilities. This trend seems to have benefited by the enactment of Immigration and Nationality Act § 214(c)(10) which allows H-1B employers to dispense with the filing of a new or amended petition following a corporate restructuring if a “new corporate entity succeeds to the interests and obligations of the original petitioning employer . . .” However, Mr. Neufeld’s memorandum, again in the context of a labor certification, phrased the test differently, stating:

[A] valid successor-in-interest relationship may still be established in certain instances where liabilities unrelated to the original job opportunity are not assumed by the successor, e.g., where the successor does not assume the liability of a pending or potential sexual harassment litigation, or other tort obligations unrelated to the job opportunity in the labor certification.

Still, USCIS’s actions are welcome.  They essentially stand for the proposition that a cousin, however distant, remains part of the extended family even though her parent has died or disappeared.

Depending on your calculation, it only took 32 years (by my count) or 11 (since the 2009 USCIS memorandum).  Better late than never.

[Author’s Note:  This article was originally published on May 8, 2020 by the Bureau of National Affairs, Inc., on Bloomberg Law, and is accessible here. It is reproduced with permission from The Bureau of National Affairs, Inc. (800-372-1033) www.bloombergindustry.com. Copyright 2020] 

Covid-19’s impact is ongoing and Americans are eager to return to “normal.” Epidemiologists, however, tell us that until a vaccine is ready or we develop herd immunity the virus will appear and reappear in phases, producing rolling and roiling hot spots across the country. One of the hottest of hot spots continues to be the legal immigration system.

On April 22, President Donald Trump issued a proclamation banning most new arrivals on immigrant visas for 60 days because of the perceived impact of foreign workers on the U.S. economy. While his order did nothing to restrict the continued employment of noncitizens now in the country, he instructed the secretaries of Homeland Security, State, and Labor to review temporary visa programs and recommend steps “to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”

According to Stephen Miller, the president’s top anti-immigration adviser, guest worker programs are in the crosshairs, as he explained during a private call in which he tried to mollify restrictionists who believed the proclamation didn’t go far enough.

Ironically, also in April, researchers from the National Bureau of Economic Research and Harvard Business School reaffirmed the findings of earlier studies that immigration is a net boon for the U.S. economy, accounting for about a quarter of U.S. invention and entrepreneurship despite a generally inhospitable policy environment.

In the meantime, Congress has pusillanimously refrained from taking bold action to protect employers and their noncitizen workers already here and thus limit the pandemic’s avoidable detritus. Unlike in the immediate aftermath of 9/11 (where legislation included emergency remedial provisions to protect affected immigrants hurt by the tragedy), there’s been no movement in this Congress to limit Covid-19’s immigration fallout—aside from an effort to help some health-care workers.

Federal Authorities Ignore Calls to Relax Deadlines

Almost as quiescent as Congress, federal immigration authorities—primarily within U.S. Citizenship and Immigration Services (USCIS), the component within DHS responsible for deciding requests for legal immigration benefits—have largely ignored calls to relax immigration compliance deadlines and burdens, or prolong current grants of employment authorization.

On March 16 the Alliance of Business Immigration Lawyers (ABIL) urged federal immigration authorities to “help fight COVID-19 by suspending all immigration deadlines.” The American Immigration Lawyers Association (AILA) also wrote a series of increasingly urgent letters on March 16March 20, and March 23, and the U.S. Chamber of Commerce made essentially identical requests by letter on April 16.

Adding to the chorus, numerous other organizations, including the Association for Health Care Agencies, the New American Economy, and Americans for Prosperity, requested similar relief in an April 17 letter.

Because stakeholder pleas have fallen on seemingly deaf ears, AILA filed a suit against the DHS and USCIS on April 3 asserting that the defendants’ unwillingness to act by declining to extend deadlines and preserving the legal-immigration status quo has endangered public health and thus violated the Fifth Amendment’s due process clause and the Administrative Procedure Act.

USCIS remains all but silent or miserly in response. The agency has mostly said what it can’t or won’t do but has offered little in remedy or consolation.

  • USCIS has suspended its Premium Processing Service for all employment-based petitions, thus eliminating any realistic hope for expedited action.
  • It has closed its field offices and application support centers (although it will continue processing applications for employment authorization, and (prudently) suspended in-person interviews.
  • It will be delayed in issuing receipts for H-1B petitions filed on behalf of noncitizens selected in the recent lottery registration system.
  • It will allow copies or scans of wet-ink signatures (but not electronic/digital signatures) on petitions and applications requesting immigration benefits, and still requires that most submissions be sent in paper format with paper checks for filing fees rather than electronically.
  • It has modestly extended deadlines for responses to requests for evidence, notices of intent to deny or revoke petitions or terminate EB-5 regional center designations and some Administrative Appeals Office appeals, but only if the issuance date listed on the notice falls between March 1 to July 1.
  • It will consider whether to exercise discretion on a case-by-case basis and forgive lapses in immigration status attributable to Covid-19, and in deserving cases, grant an additional 30 days of satisfactory departure, beyond the 30-day period allowed in its regulations, for business visitor and tourist entrants under the visa waiver program who are unable to leave the U.S.

Informal feedback from the DHS and USCIS insiders suggests that the agency is reluctant to grant blanket approval to suspend deadlines in ways that deviate from existing laws and regulations. Presumably, they know that the exercise of blanket authority to confer immigration benefits would undercut the administration’s arguments in the DACA case now before the U.S. Supreme Court.

There, the DHS seeks to affirm its decision to end the program, and DREAMers in health-care professions, battling Covid-19, have recently asked the court to preserve it.

Yet, exercising blanket authority is precisely what USCIS has already done during this pandemic by overriding express compliance deadlines in its regulations. These actions confirm that USCIS knows it has the authority to extend deadlines.

Apropos of the present crisis, Bill Gates once said: “The theory behind the H-1B [visa]—that too many smart people are coming— that’s what’s questionable… It’s very dangerous. You can get this idea that the world is very scary; let’s cut back on travel…let’s cut back on visas.”

Indeed, especially in the face of this vicious pandemic, the world is very scary, and some travel might need to be curtailed. Now, however, is not the time for America to render unlawful, out of status and deportable the very “smart people” already here from abroad who are poised and eager to help us solve the healthcare crisis and redress the economic devastation of the coronavirus.

As the U.S. Census Bureau reminds us, our long term well-being and prosperity depend on the ceaseless strivings of immigrants.

President Trump’s October 9, 2019 overtures landed as music to the ears of many grizzled immigration lawyers who persistently suffer battle fatigue from the culture of virtually never.  On that day the President released a double album, each with artfully penned liner notes:

The songs of TAFCAEA and IAGD,  resonating beautifully, and soothing frazzled heartstrings, make clear that in adjudicating and enforcing federal laws all covered Executive-Branch agencies must:

  • publish clear guidance rules that spell out permissible and prohibited conduct by regulated parties;
  • eliminate instances of “unfair surprise” so that members of the public (the regulated community) are not blindsided by unforeseen changes in how the agencies interpret federal laws;
  • place any purportedly binding agency rules not published in the Federal Register (known as sub-regulatory guidance) into an indexed and searchable section of each agency’s website (or else, the “rules” go away); and
  • soon announce rules of procedure governing administrative inspections and then be held accountable to comply with the published ground rules.

The media, with few exceptions, have given scant attention to TAFCAEA and IAGD.  See, e.g., “New Trump Orders: Guidance Should Be A Shield, Not A Sword,” by Susan E. Dudley, and “Trump Orders Limit Effect of Agency Guidance on Industry,” by a team of Bloomberg Law reporters.

Yet these early commentaries offered nothing on the foreseeable impact the new orders will have on the federal immigration bureaucracy.   Basking in joyful reverie, I ruminated about how the several U.S.  immigration agencies would respond to these new executive-branch constraints.

Must Federal immigration agencies sing in harmony with TAFCAEA and IAGD?

Reading the new executive orders more closely, I heard a discordant note, one that caused my high-flying heart to skip a beat.  TAFCAEA, at § 11(d)(1), and IAGD, at § 7(d)(1), contain identically-worded exclusions that seem to foreclose any change to the many heavy-handed immigration-agency practices decried repeatedly in this blog (e.g., here, here, and here):

[Nothing] in this order shall apply . . . to any action that pertains to foreign or military affairs, or to a national security or homeland security function of the United States (other than procurement actions and actions involving the import or export of non-defense articles and services)(emphasis added).

For heaven’s sake, I thought, immigration inherently involves foreign affairs and national- and homeland-security functions of the United States.  Hence, I feared, the Departments of State and Homeland Security would hasten to assert that TAFCAEA and IAGD in no way inhibit State’s and DHS’s standard operating procedures where interpretations change on the fly, and in so changing, routinely (and unfairly) surprise individuals and organizations petitioning for immigration benefits with new and ever-more-stringent eligibility criteria.

But then a phrase caught my eye, the exception to the exclusion provisions noting that TAFCAEA and IAGD would still apply to “the import . . . of . . . non-defense . . . services.”  What might the importation of non-defense services cover?  A keyword search of the Immigration and Nationality Act (“INA”) quickly homed in on two sections:

  • INA §§ 214(c)(1) and 218, requiring employers seeking to “import” a noncitizen to be employed under the H, L, O and P visa categories to submit a petition and obtain agency approval before a consular officer can issue a temporary work visa; and
  • INA §§ 212(a) and 278, rendering inadmissible and penalizing any noncitizen seeking to “import” foreign nationals for prostitution or other immoral purposes.

It’s hard to divine the unexplained rationale and import of the “import” exception, and I won’t tarry here with speculation.  At bottom, it seems clear, however, that the INA treats as synonymous the importation of services with the importing of people.  This suggests that TAFCAEA and IAGD should at least cover agency actions with respect to several nonimmigrant visa categories, including the H-1B (specialty occupation workers), H-2A (agricultural workers), H-2B (non-agricultural workers), H-3 (trainees), L-1 (intracompany transferees), O-1 (persons of extraordinary ability), P-1A (internationally recognized athletes), P-1B (members of an internationally recognized entertainment group), P-2 (performers or groups performing under a reciprocal exchange program), and P-3 (artists or entertainers in a culturally unique program).  For my money, that’s a heckuva lot of newly-established procedural due process of law.

It remains to be seen whether, for the sake of consistency of process, USCIS will extend the importation-of-services principle to other petition-based temporary visas, such as the E-1 and E-2 (treaty traders and investors), E-3 (Australian specialty workers), Q-1 (cultural trainees), R-1 (religious workers) and TN (workers under the North American Free Trade Agreement), and possibly also to employment-based immigrant visa petitions.

What do TAFCAEA and IAGD require?

As due process enthusiasts, immigration lawyers welcome the new lyrical pronouncements from the pen of our president (all with emphasis added):

  • The rule of law requires transparency. . . . . No person should be subjected to a civil administrative enforcement action or adjudication absent prior public notice of both the enforcing agency’s jurisdiction over particular conduct and the legal standards applicable to that conduct.  . . .  Agencies shall afford regulated parties the safeguards described in this order, above and beyond those that the courts have interpreted the Due Process Clause of the Fifth Amendment to the Constitution to impose. (TAFCAEA, § 1)
  • Guidance documents may not be used to impose new standards of conduct on persons outside the executive branch except as expressly authorized by law or as expressly incorporated into a contract. When an agency takes an administrative enforcement action, [or] engages in adjudication  . . . it must establish a violation of law by applying statutes or regulations.  The agency may not treat noncompliance with a standard of conduct announced solely in a guidance document as itself a violation of applicable statutes or regulations.  When an agency uses a guidance document to state the legal applicability of a statute or regulation, that document can do no more . . . than articulate the agency’s understanding of how a statute or regulation applies to particular circumstances.  (TAFCAEA, § 3)
  • When an agency takes an administrative enforcement action, [or] engages in adjudication, . . . it may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise [, i.e., a lack of reasonable certainty or fair warning of what a legal standard administered by an agency requires.] (TAFCAEA, §§ 2 and 4)
  • [Agencies must] treat guidance documents as non-binding both in law and in practice[,] . . . take public input into account when appropriate in formulating guidance documents, and make guidance documents readily available to the public. Agencies may impose legally binding requirements on the public only through regulations and on parties on a case-by-case basis through adjudications, and only after appropriate process, except as authorized by law . . . . (IAGD, § 1)
  • Within 120 days of the date of this order, each agency that conducts civil administrative inspections shall publish a rule of agency procedure governing such inspections, if such a rule does not already exist. Once published, an agency must conduct inspections of regulated parties in compliance with the rule. (TAFCAEA, § 7)

What will the impact of TAFCAEA and IAGD be on DHS, State and Labor?

TAFCAEA and IAGD haven’t been enacted on a clean slate.  On October 9,  President Trump made this clear:

Regulated parties must know in advance the rules by which the Federal Government will judge their actions.  The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., was enacted to provide that “administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.”  Morton v. Ruiz, 415 U.S. 199, 232 (1974). The Freedom of Information Act, America’s landmark transparency law, amended the APA to further advance this goal.  The Freedom of Information Act, as amended, now generally requires that agencies publish in the Federal Register their substantive rules of general applicability, statements of general policy, and interpretations of law that are generally applicable and both formulated and adopted by the agency (5 U.S.C. 552(a)(1)(D)).  The Freedom of Information Act also generally prohibits an agency from adversely affecting a person with a rule or policy that is not so published, except to the extent that the person has actual and timely notice of the terms of the rule or policy (5 U.S.C. 552(a)(1)).

Unfortunately, departments and agencies . . . in the executive branch have not always complied with these requirements. In addition, some agency practices with respect to enforcement actions and adjudications undermine the APA’s goals of promoting accountability and ensuring fairness.  (TAFCAEA, § 1)

It’s too soon to say just how the federal immigration agencies will react (and whether regulated parties might bring APA litigation challenges if the reactions fall short of the President’s commands in TAFCAEA and IAGD).  At a minimum, failing to take action to comply, the agencies should see their topsy-like interpretations and guidance memoranda (which are almost never published in a single place, let alone as regulations) become dead letters.

Each of the agencies publishes online resources, mostly in disparate locations.  USCIS publishes a policy manual, a redacted public version of its adjudicator’s field manual,  and numerous policy memoranda. The Labor Department publishes fact sheets, online job directories, and regulatory pronouncements.  The State Department publishes its Foreign Affairs Manual, a landing page for the Bureau of Consular Affairs, and many of State’s U.S. embassies and consulates publish procedures, interpretations, eligibility criteria, and policies, such as this one from the U.S. Embassy (London).  It also maintains an email inquiry service known as LegalNet.com for attorney queries on visa issues, but never publishes its advisory opinions to consular officers (which often will include legal interpretations which trump the otherwise applicable principle of consular nonreviewability).

IAGD, at § 3, would put an eventual end to this practice:

Within 120 days of the date on which the Office of Management and Budget . . . issues an implementing memorandum under section 6 of this order, each agency or agency component, as appropriate, shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component.

An even earlier outcome will be viewable on February 6, 2020.  That’s when USCIS’s illegally constituted unit known as the Fraud Detection and National Security (FDNS) Directorate, the Labor Department’s Wage and Hour Division (WHD), and U.S. Immigration and Customs Enforcement (ICE) – each of which conducts “conducts civil administrative inspections” – must “publish [their own] rule of agency procedure governing such inspections . . . and must conduct inspections of regulated parties in compliance with the rule.”  Thus, for example, when that happy day arrives, FDNS site visits into H and L visas, WHD audits of H-1B compliance with DOL’s Labor Condition Application regulations, and ICE I-9 inspections and F-1 site visits will at last operate under transparent procedures.

* * *

It’s nothing short of music to an immigration lawyer’s ears.

 

 

 

 

The legal cannabis business is spreading like weeds.  As several states and foreign countries have enacted laws decriminalizing or legalizing marijuana for medicinal or recreational use, a fresh rush of reefer madness has overtaken the business world.  Investments in the cannabis industry are now available as ETFs (Exchange Traded Funds), and marijuana startups are proliferating at every step along the supply chain.

Not to be a downer, but this blogger worries that many imbibers of high and heady times may not realize that engaging in, and even facilitating, the marijuana trade carries risks – not the least of which are the chockablock provisions of the Immigration and Nationality Act (INA) that portend bad trips aplenty.

Should you be worried about legal marijuana’s adverse consequences under federal immigration law?

Yes, of course, if you are a noncitizen:

  • residing anywhere in the U.S. who uses, shares (whether you do or don’t Bogart that joint), or sells marijuana in any form, whether psychoactive THC or only non-psychoactive CBD
  • residing abroad who used Mary Jane before it was legal in your home country, and you want to visit the U.S., work here, or apply for a green card
  • residing abroad hoping to get an E-2 or EB-5 investor visa who wants to invest in and start a business even only remotely involved in the weed trade (other than agricultural hemp [per new § 297A Agricultural Marketing Act of 1946, 7 U.S.C. 1621 et seq., Note: 7 U.S.C. 1639o, enacted through § 10113 of the 2018 Farm Bill])
  • residing anywhere who invests in cannabis businesses through purchases of mutual funds or individual stocks (whether publicly listed or privately sold)
  • married to a U.S. citizen who is petitioning for your “green card” status (lawful permanent residency) while owning a duplex (where you live together on one floor and s/he sells legal cannabis as a dispensary operator on the other)
  • practicing law in the U.S. on a green card or work visa whose clients want to engage in business as growers/producers, distributors/sellers, manufacturers/processors of legal cannabis

Yes, also be worried if you engage in business in the U.S. (whether or not in states where weed is legal for medical or recreational use), your business employs noncitizens, and, say, you:

  • are a property owner who rents land to a cannabis farmer or retail space to a marijuana dispensary
  • are a financial services company and your top employee, a U.S. green card holder, recommends investments in cannabis-industry businesses or approves a loan to start up or expand such a firm
  • are a cannabis grower or dispensary operator with a separate wholly-owned IT services subsidiary that manages your web site promoting marijuana sales
  • want to employ a research scientist to investigate potential products or services, or delivery systems, involving any form of cannabis (except agricultural hemp).

Why not just blow off your worries?

These fearsome consequences are not necessarily certain or inevitable, but the underlying fear is reasonable because cannabis (at least for now) remains a Schedule I Controlled Substance under federal law, even if only used for medical purposes.  Thus, the Justice Department cares not a whit that weed is legal in California, Canada and countless other jurisdictions.  Just ask Jesus Gabriel Navarro Guadarrama. On June 16, 2019 the Board of Immigration Appeals (BIA [an arm of the DOJ]) determined that his two convictions under Florida law for possession of 20 grams of marijuana warranted deportation (even though a single conviction for possessing 30 grams or less for personal use might have saved him from banishment).

Simply put, even though many states (foreign and domestic) see things otherwise, the Feds continue to enforce marijuana penalties under the immigration laws, be it MJ use, possession, or “trafficking.”  Indeed, under INA § 212(a)(2)(C)(i) the trafficking bar is so broad that it can trigger the deportation or refusal of admission of any noncitizen whom an immigration or consular officer merely has “reason to believe” has been “a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking [of marijuana] . . . or endeavored to do so.”

Immigration precedent decisions of the BIA, such as Matter of Davis, have defined illicit trafficking expansively:

Black’s Law Dictionary defines “traffic” as “[commerce]; trade; sale or exchange of merchandise, bills, money, and the like. The passing of goods or commodities from one person to another for an equivalent in goods or money.” Black’s Law Dictionary, 1340 (5th ed. 1979). “Trafficking” is in turn defined as: “Trading or dealing in certain goods and commonly used in connection with illegal narcotic sales.” Id. Essential to the term in this sense is its business or merchant nature, the trading or dealing of goods, although only a minimal degree of involvement may be sufficient under the precedents of this Board to characterize an activity as “trafficking” or a participant as a “trafficker.” . . .

Illicit” is defined as “not permitted or allowed; prohibited; unlawful; as an illicit trade.” Black’s Law Dictionary, supra, at 673. Giving effect to this plain meaning, the use of “illicit” in . . . the Immigration and Nationality Act simply refers to the illegality of the trafficking activity. (Emphasis added.)

What this means in the real world is that visas for working, visiting, studying, or immigrating here, may not be issued to persons using or possessing cannabis (see Vol. 9 of the State Department’s Foreign Affairs Manual [at 9 FAM 302.4-2(B)(1) and (2)].  It also means that merely “proliferating” the cannabis trade is verboten, and that even lawful permanent residents and the U.S. businesses that employ them can readily run afoul of the INA’s cannabis prohibitions and penalties.

How so? Consider these recent agency actions.

  • U.S. Customs and Border Protection (CBP) has announced, for example, that a “Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.” (Emphasis added.)
  • Similarly, U.S. Citizenship and Immigration Services (USCIS) has declared that “certain conduct involving marijuana . . . continues to constitute a conditional bar to [establishing good moral character] for naturalization eligibility, even where such activity is not a criminal offense under state law.”

According to USCIS, conduct making citizenship a pipe dream (for at least five years, possibly longer) extend to a variety of federal offenses which ”may include, but [are] not limited to, possession, manufacture or production, or distribution or dispensing of marijuana . . . For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws.” (Emphasis added; footnotes omitted.)

USCIS adds that a cannabis-related conviction is not required.  Merely making a binding admission to having participated, partaken or proliferated a forbidden act associated with the drug is enough to cause the loss of eligibility to naturalize.  Worse yet, the agency adds that “even if an applicant [for naturalization] does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.”

U.S. immigration laws make no distinction between psychoactive THC, medicinal CBD, or hemp, as this excerpt from the State Department’s Foreign Affairs Manual, 9 FAM 302.4-2(B)(1) and (2) (although arguably the species known as indica may be distinguishable from sativa):

For the purpose of these Notes, the term marijuana includes any of the various parts or products of the plant Cannabis Sativa L., such as bhang, ganga, charras, Indian hemp, dagga, hashish, and cannabis resin.

Just say no versus just say maybe (until Congress, the Administration or the Courts act)

These agency pronouncements arise against a flurry of legislative, executive and judicial actions which offer hope that the problem of conflicting MJ legality might eventually be ameliorated in one way or another:

  • H. R. 1595 – The Secure And Fair Enforcement Banking Act, which passed in the House, would prohibit federal banking regulators from penalizing banks that finance legitimate marijuana-related businesses, while its counterpart in the Senate, S. 1200, The SAFE Banking Act, awaits a vote.
  • H. R. 4390 and S. 2021 The Removing Marijuana from Deportable Offenses Act, not yet up for a vote, which, though laudable, would only provide that “any offenses involving the use, possession, or distribution of marijuana shall not be considered as grounds of inadmissibility.” In other words, these bills would not in express terms retroactively reverse the consequences for persons already ordered deported from the U.S. like the hapless Jesus Gabriel Navarro Guadarrama and innumerable others.
  • The Food and Drug Administration recently reopened the comment period on the potential rescheduling of marijuana so that it might no longer be classed as a Schedule I drug under international treaties.
  • The Drug Enforcement Administration announced in August that it is accelerating its review of applications by marijuana suppliers to provide the drug for research purposes (noting that in the last two years the agency has increased the number of registered researchers “by more than 40 percent from 384 in January 2017 to 542 in January 2019.” The DEA added, however, that “[before] making decisions on these pending applications, DEA intends to propose new regulations that will govern the marijuana growers program for scientific and medical research . . . [and] help ensure DEA can evaluate the applications under the applicable legal standard and conform the program to relevant laws.”
  • Meantime, the Second Circuit Court of Appeals on May 30 directed the DEA to reconsider its classification of cannabis as a Schedule I drug.

* * *

Inevitably, in this blogger’s view, the problem of adverse immigration consequences over cannabis will at some point blow away.  Until federal immigration authorities stop throwing the baby out with the bong water, however, countless noncitizens and the U.S. families and businesses who interact with them will fear the prospect of uncertain and uneven enforcement of America’s outdated immigration laws.

If the U.S.’s dysfunctional and baffling immigration laws were a bemusement park, one of the scariest rides would be that tottering roller-coaster, “Worksite Enforcement.”  The ride is rickety and showing its age (having been constructed long ago through the enactment of the Immigration Reform and Control Act of 1986 [IRCA]).  This law — like every good ride — was designed from the outset to push, pull and contort riders in opposing, vertiginous directions, prompting all to become excited and some to heave, as they continuously revolve around the Form I-9 (Employment Eligibility Verification).

The ride propels millions of U.S. employers and innumerable new hires in a circular journey during the first three days of the new employment relationship.  Employers on the ride are pushed by one group of carneys (the Homeland Security Investigations [HSI] of U.S. Immigration and Customs Enforcement [ICE], and U.S. Citizenship and Immigration Services [USCIS] in the Department of Homeland Security [DHS]) to confirm that all new hires and current employees with expiring work permission are okay to work in the United States. These carneys frighten employers on the ride by fining and sometimes criminally prosecuting those who know or should know that persons they employ lack work permission.

At the same time, other carneys (the Immigrant and Employee Rights [IER] Section of the Department of Justice [DOJ]) pull employers on the ride in the opposite direction — away from the temptation to discriminate against workers on the basis of citizenship status or national origin, or to engage in other unlawful practices.

Employees, prospective and current, must also spin on the I-9 unmerry-go-round.  Without the employer’s help or suggestion, workers must choose the original forms of ID from the dizzying I-9 Lists of Acceptable Documents to present to the employer in order to prove personal identity and the right to work.

No bemusement park would be complete without a haunted house — and I-9 Land does not disappoint.  It features a stomach-churning trolley ride known as the Social-Security Administration (SSA) No-Match Notice for employers who are dared or goaded to enter.  Last March, SSA pulled the canvas off this ride (having allowed it to go dark for several years after a history of complaints from far and wide).

Like every good haunted house, SSA starts the No-Match trolley with a surprise — a seemingly innocuous notice that alerts employers of a curious discrepancy.  SSA records, the agency notice states, contain data fields that are inexplicably different from the same information reported by the employer to the Internal Revenue Service (IRS).  The notice to employers states:

You reported X# employee names and Social Security numbers (SSN) on the Wage and Tax Statements (Forms W-2) for tax year xxxx that do not match our records. We need corrected information from you so that we can reconcile employer wage reports and credit your employees’ earnings to their Social Security records. It is important because these records can determine if someone is entitled to Social Security retirement, disability, and survivors benefits, and how much he or she can receive. If the information you report to us is incorrect, your employee may not get benefits he or she is due. There are a number of reasons why reported names and SSNs may not agree with our records, such as typographical error. (Bolding in original)

Witting or not, SSA lulls credulous employers into believing that this is an important but merely ministerial paperwork matter requiring simple correction:

IMPORTANT: This letter does not imply that you or your employee intentionally gave the government wrong information about the employee’s name or SSN. This letter does not address your employee’s work authorization or immigration status.

You should not use this letter to take any adverse action against an employee, such as laying off, suspending, firing, or discriminating against that individual, just because his or her SSN or name does not match our records. Any of those actions could, in fact, violate State or Federal law and subject you to legal consequences. (Bolding in original)

SSA also helpfully (in the sense of the adage, “I’m from the government, and I’m here to help you”) offers dupable employers a sample notice to employees with discrepant payroll records, which soothingly reports:

According to Social Security, the information above does not match Social Security’s records. You should:

  • Check to see if the information above matches the name and Social Security Number on your social security card. If it does not match, please provide me with the exact information as it is shown on your Social Security card.
  • If the information above matches your card, please check with any local Social Security office to resolve the issue. Once resolved, please inform me of any changes. Go to www.ssa.gov or call 1-800-772- 1213 to find the office nearest you.

NOTE: This notice does not imply that you intentionally provided incorrect information about your name or Social Security Number, nor does this adversely affect your employment.

The No-Match ride quickly torments unsuspecting employers who follow this advice. No-Match notice recipients are in for a shock for there are terrors just around the bend:  A huge population of undocumented individuals in the U.S. workforce, estimated at about 7 million, the ready availability of fraudulent documents of identity and employment eligibility, the plague of identity theft, and the prevalence of imposters assuming the identities of actual U.S. citizens and green card holders, and the imminent 2020 deadline on Real ID driver’s licenses,.

Hapless employers on the No-Match ride, especially those in industries with historically high levels of unauthorized employment (such as hospitality, manufacturing, agriculture, food service), will soon discover that the SSA discrepancies — once brought to the attention of affected employees — are not satisfactorily or favorably resolved.

In some cases, the employees take no action, and the employer declines to follow up.    This is a perilous course because it raises the specter that if, as is foreseeable, the employee indeed lacks the right to work, then the carneys of HSI (once the relevant facts come to light) will likely accuse the employer of having had “constructive knowledge” of the individual’s unlawful employment under 8 CFR § 274a(1)(l)(1).  This USCIS regulation lists examples of “you should have known” constructive knowledge, including situations where an employer has “information available to it that would indicate that the alien is not authorized to work . . . ”

As I discussed in “To Know or Not to Know:  Immigration, Constructive Knowledge, and the Diligence That’s Due,” an employer’s receipt of a No-Match notice imposes on employers a duty to investigate and resolve, one way or another, the question of whether the affected employee is work-authorized in the United States.

No-Match notices pose a serious risk if they are ignored or treated perfunctorily.  Fines for the knowing and “should have known” employment of unauthorized workers are substantial, increasing periodically with inflation adjustments, and worse still, criminal sanctions can be imposed under the “harboring” laws, and a host of other federal pain points.

So how do employers get off the No-Match ride?  Painful as it may prove to be, they confront employees with the discrepancies in SSA and employee-reported information, and insist that, within a reasonable time, each notified worker takes steps to correct, by presenting credible evidence, what may be an unwitting error, or reaffirm identity and employment eligibility on the I-9, or else, face termination of employment.

Since averting one’s glance won’t suffice, employers may come to learn, frighteningly, that a large segment of their workforce is unauthorized, and must be terminated.  This is where immigration lawyers, acting as sherpas, are poised to help escort employers off the No-Match ride.   Seasoned immigration counsel can suggest reasonable steps to pursue, consistent with real business needs, so that disruptions and risks are kept to a minimum. For details, listen to the forthcoming webinar next week, or ask for the slide deck and recordings, presented by this blogger, and Seyfarth Shaw colleagues, Leon Rodriguez (USCIS Director under President Obama) and Dawn Lurie (I-9 practitioner extraordinaire).

At least one prominent immigration lawyer has pooh-poohed the notion that employers are under a duty to do anything more than alert affected employees that SSA has issued a No-Match notice and instruct them to fix it.  He points to DHS’s 2009 rescission (in the face of a preliminary injunction) of a safe harbor procedure for compliance with No-Match notices.  Don’t count on it.  The No-Match ride is more perilous than that.  Aside from the IRS penalties for providing inaccurate payroll reports, there is the haunting specter of the HSI carneys. Cue the words of Governor Ahnold in the Terminator (“Ahll be baack”).    As DHS reinforced in the 2009 rescission notice, despite the safe-harbor’s elimination, IRCA remains on the books and will be enforced:

[A] finding of constructive knowledge of unauthorized employment may be based on the totality of the circumstances. Employers remain liable where the totality of the circumstances establishes constructive knowledge that the employer knowingly hired or continued to employ unauthorized workers. An employer’s receipt of a No-Match letter and the nature of the employer’s response to the letter are only two factors that may be considered in determining the totality of the circumstances.  . . .

DHS acknowledges that receipt of the No-Match letter, without more, does not mean that the employee is not authorized to work or that the employee provided a fraudulent name or social security number. The discrepancy may be based upon a number of reasons unrelated to immigration status, such as clerical errors or employees’ name changes that may not have been reported to SSA. However, a No-Match letter may also be generated because the individual is unauthorized to work in the United States and provided fraudulent information to the employer at the time of hire.

In the same notice rescinding the safe-harbor process, DHS warned employers not to go overboard by discriminating against lawfully authorized workers who are dinged by a No-Match notice:

DHS acknowledges that an employer who terminates an employee without attempting to resolve the issues raised in a No-Match letter, or who treats employees differently based upon national origin, perceived citizenship status, or other prohibited characteristics may be found to have engaged in unlawful discrimination under the anti-discrimination provision of the INA . . . That fact does not, however, warrant DHS changing its earlier position that receipt of a No-Match letter and an employer’s response to a No-Match letter, in the totality of the circumstances, may be used as evidence of a violation of the employment restrictions of the Immigration and Nationality Act. . . . Employers should not use No-Match letters, without more, as a basis for firing employees without resolution of the mis-match, and DHS has never countenanced such a practice.

Still the scariest part of the No-Match ride is that it can go on forever.  Confronted workers tagged by a No-Match notice who are rightly terminated simply take their seemingly genuine but imperfect documents, or procure a better, more convincing set, and move to a different unsuspecting employer in 2019 America where a sizzling, low-employment economy makes finding a job a snap.

Only Congress can fix this bemusement park, if and when it eventually comes to grips with the need for comprehensive immigration reform — legislative fixes that include some path to legal status for the undocumented and a foolproof system of employment eligibility verification.  Meantime, employers, hold tight, and endure the ride.

Much digital ink has already been spilled reporting on the phantom tide of undocumented migrants supposedly breaching our Southern border.  This article will address a different, but very-real immigration flood, and suggest ways U.S. employers, noncitizens, and their lawyers ought be emboldened to add to the deluge.

Ironically, it is about a dry subject – federal district court review of what immigration grievants claim are widespread, arbitrary, capricious and otherwise unlawful work-visa petitions and employment-based green card denials under Section 702 of  the Administrative Procedure Act,  5 U.S.C. § 702 (APA).  The agency triggering this agita is U.S. Citizenship and Immigration Services (USCIS), a component of the U.S. Department of Homeland Security (DHS). As immigration stakeholders are painfully aware, USCIS routinely flouts its own regulations, precedent immigration decisions, and the APA, all the while spurred on by the dog whistle of an executive order known as BAHA.

Although the focus here will be on USCIS’s rejections of employment-based immigration petitions, the same observations and strategies offered here readily apply as well to family-based requests for immigration benefits.  The ideas below may also help in litigating the practices formulated in Washington by the Bureau of Consular Affairs which have resulted in growing numbers of visa refusals premised unlawfully on BAHA (notwithstanding the execrable principle of consular nonreviewability).

Increasingly, with a fervor heretofore unknown, USCIS is denying petitions that seek new or extended grants of employment authorization for prospective and current knowledge workers, while – in especially galling fashion – reopening and revoking previous work approvals for incumbent employees. (Media articles have reported the phenomenon here, here, here, here, here, and here, while Members of the House are demanding data and documents on these troubling developments.)

The reasoning of the denials has regularly relied upon a “jurisprudence” alien to our Anglo-American legal heritage – MSU (Make Stuff Up) law. The most egregious and recurrent refusals have involved the H-1B visa category for workers in specialty occupations.  (USCIS recently offered its own analysis of why it often demands additional evidence when it is poised to deny H-1B visa petitions: “Understanding Requests for Evidence (RFEs): A Breakdown of Why RFEs Were Issued for H-1B Petitions in Fiscal Year 2018 USCIS”).  As will be shown below, some of the most go-to grounds for H-1B petition denials are unanchored to statutory text, agency regulations and long-standing interpretive guidance can be found among the gamut of immigrant and nonimmigrant work visa classifications.

Old litigation wine in new bottles.

With mounting outrage, rebuked employers and noncitizen workers are channeling Howard Beale from the venerable film Network, and screaming, “We’re as mad as hell, and we’re not going to take this anymore!”  Just like the film, it is an old story with modern resonance – old, because the APA has been around since 1946, and foreign workers, American employers, and their immigration lawyers have been suing USCIS since its inception in 2003, and long before that, the APA defendant of choice was the legacy agency, Immigration and Naturalization Service (INS).

An OILy solution slip-sliding away.

No one likes to be sued, and fewer still relish losing.  The INS — then an agency in the U.S. Department of Justice (DOJ) — was no different.  INS commissioners of yore found that when APA actions challenging their agency’s immigration decisions were brought in the various federal district courts, the local Assistant U.S. Attorney (AUSAs) assigned to the case often pressured INS to surrender and settle by issuing to the plaintiff the approval notices they failed to secure through the usual immigration petition and application process.  AUSAs, INS perceived, much like most lawyers practicing in disparate legal fields, seemed genetically indisposed (pardon the imminent seafood puns) to pry open grimy immigration mollusks because they had more delectable fish to fry.  Why fuss and suss complicated immigration law issues when there were “sexier” antitrust, intellectual property, organized crime, and other more intellectually-stimulating, and career-enhancing cases to pursue or defend? — or so INS reasoned.

The result:  INS and DOJ built what they thought would be a better mousetrap in the hope that litigants in civil immigration suits would beat a path of retreat from the APA’s door.  Thus was born in DOJ the Office of Immigration Litigation (OIL), a cadre of federal lawyers steeped, nerdlike, in the immigration-law dark arts of benefits-denials and deportation.  Often, and sadly, the OILy strategy has worked.  The Feds could deploy overpowering resources that few immigration litigators of employment-based APA cases could muster.

Fast forward to 2019:  OIL attorneys simply cannot keep up quite as easily as before with the flood of immigration class actions and suits seeking to enjoin Executive Branch decisions to terminate Temporary Protected Status, DACA, and employment authorization for F-1 foreign students, and institute family-separation and child-imprisonment not to mention DOJ lawsuits asking federal courts to allow withholding of grant funds to sanctuary cities and states.  OIL’s docket will likely be overwhelmed still more with the anticipated onslaught of suits opposing the “national-emergency” border funding and property-confiscation orders issued last month. As of August, 2017, OIL employed a comparatively small team, comprised of approximately 250 attorneys and 60 support staff.

Unsurprisingly, the immigration-litigation DeLorean is already headed back to the future on an OIL-slicked road. Immigration lawyers across the country report recently that USCIS is often caving on newly-filed APA suits, often even before DOJ provides an answer to the complaint, as Bloomberg Law’s Laura Francis reports (“Businesses Challenging Visa Denials Seeing Early Successes”).

To be sure, some white flags of surrender may be waived strategically. USCIS has proposed (and is overdue) to issue BAHA-friendly H-1B regulations in the future.  Perhaps some court victories may be due to the agency’s desire to avoid federal court rulings that might restrict the agency from doing a full-BAHA rule in the near-term regulatory future.

Flood-the-zone immigration litigation.

Still, math is math, and resources are finite.  Just as DOJ cannot mint new immigration judges fast enough for the tsunami of respondents in removal proceedings, the likelihood is that OIL faces a recruiting challenge of its own, since experienced immigration litigators willing to side with the government  and defend restrictionist immigration policies are perhaps as rare as the chance of finding a snowball in Congress.

The message to employers, foreign workers, and their immigration attorneys who have received unjust USCIS denials is clear.  The APA is your friend.  It’s time to put on your big-boy and big-girl pants and go into federal court. (For those who need a little CLE loin-girding, AILA invites you to attend its 2019 Spring Federal Court Litigation Conference on March 12 in Chicago [and for early birds, I’ll be speaking at 8:05 AM with Diane M. Butler and Denyse Sabagh, on “Anticipating Suing The Government: “Game On!”].)

What you can learn there (or through self-study, or affiliation with an experienced immigration litigator) is that APA litigation challenging USCIS actions is often less taxing than the bet-the-company suits that capture headlines.  The Immigration and Nationality Act does not require exhaustion of administrative remedies before filing an APA action in Federal District Court.  As a result, the usual problems with appeals to the USCIS Administrative Appeals Office – delay, de novo review and the finding of new or additional grounds  to affirm the denial – can be avoided.  Moreover, except in rare circumstances, the APA does not allow the usual civil discovery methods of interrogatories, requests for admissions, and depositions; rather, the case is adjudicated on the administrative record of proceedings.  Better still, cases are resolved more quickly, by cross-motions for summary decision, or, by settlement (meaning your client gets its work visa or green card).

Head-fake litigation preparedness.

Even sweeter than causing the government to cave quickly, and issue an approval notice soon after the Federal District Court receives your APA lawsuit, is the act of instilling sufficient fear in the immigration adjudicator that he or she will be overturned or look bad for having issued an MSU denial in the first place.

Instilling fear requires effort. The visa petition or green card application (and any response to a USCIS request for additional evidence) must be accompanied by compelling evidence and be prepared so thoroughly and persuasively as to cause the USCIS adjudicator to believe that – if s/he denies the case – the next stop would be an APA challenge in Federal District Court where the adjudicator will be overturned, chided, embarrassed or otherwise placed in a bad light. While this does not mean that the employer or foreign worker must decide at the case preparation stage to sue USCIS, it should signify at least that the immigration lawyer will be well-positioned to persuade them that the suit should be filed.  In other words, shooting blanks too often, and signaling head fakes insincerely may reap diminishing returns over time.

Still, there are numerous opportunities for APA challenges to employment-based visa and green card denials.  Often, USCIS uses boilerplate references to assert legal propositions that are often incorrect or inapt in a particular case, and therefore legally vulnerable under an APA litigation challenge.  Here are a few examples:

  • Discrediting the opinions of experts. USCIS boilerplate text often cites Matter of V-K-, 24 I&N Dec. 500, n. 2 (BIA 2008) for the proposition that expert opinion testimony offering predictions of the anticipated contributions that noncitizens might make to the U.S. national interests or U.S. economy “does not purport to be evidence as to ‘fact’”), although the Board of immigration Appeals overruled that case in Matter of Z-Z-O-, 26 I&N Dec. 586, n. 2 (BIA 2015) with respect to the standard of review for predictive factual findings.  USCIS also is wont to cite Kazarian v. USCIS, 596 F.3d 1115, 1122 (9th Cir. 2010) to support “the USCIS’s conclusion that the ‘letters from physics professors attesting to [the petitioner’s] contributions in the field’ were insufficient was ‘consistent with the relevant regulatory language.’” The citation to Kazarian, however, is meaningless because the physics professors’ letters are not described or included in that case, thereby precluding meaningful analysis of the quoted sentence.
  • Claiming that H-1B petition does not correspond with the Labor Condition Application. USCIS often cites and quotes the following excerpt from U.S. Department of Labor regulations at 20 CFR § 655.705(b) as legal authority for decisions denying H-1B classification:

[The Department of Homeland Security (DHS)] accepts the employer’s petition (DHS [sic.] Form I-129) with the DOL-certified LCA attached. In doing so, the DHS determines whether the petition is supported by an LCA which corresponds with the petition, whether the occupation named in the labor condition application is a specialty occupation . . ., and whether the qualifications of the nonimmigrant meet the statutory requirements for H-1B visa classification. (Underlining and bolding added.)

Unfortunately for USCIS, the U.S Department of Labor (DOL) has described the highlighted text above as a “minor,” non-substantive update in the phrasing of its regulation.  The prior version of 20 CFR § 655.705(b) — effective until January 18, 2001 — differed materially in that it did not contain the “whether the petition is supported by an LCA which corresponds with the petition.”  See the December 20, 2000 Federal Register, the DOL in its preamble to the interim final rule explained its reasons for the wording change in the amended regulation, as follows:

Miscellaneous Matters. The Department has also made minor changes to the regulations . . .  [Several] places (e.g., §§ 655.700, 655.705, 655.715), have been revised to reflect the amendments made by the ACWIA and the October 2000 Amendments, and to reflect the current Departmental organizational structure. (65 Fed. Reg. 80110, 80202 (Dec. 20, 2000), Supplementary Information; bolding added).

Aside from according weight to the DOL’s non-substantive re-phrasing of 20 CFR § 655.705, USCIS also misinterprets the ambiguous “Corresponds with” sentence in the regulation.  Typically, USCIS’s H-1B denials unjustifiably change the phrase by imagining it to state instead that “the job title, DOL SOC Code and Wage Level selection process in the LCA must correspond with the job duties described by the employer in the H-1B petition or in an accompanying statement.”

This expansive restatement constitutes clear legal error. USCIS may not arrogate to itself the exclusive authority and justly-earned expertise of the DOL by pretending that the “Corresponds with” sentence somehow empowers an Immigration Officer to wade, without a lifesaver or any appreciable swimming ability, into the deep water of DOL prevailing-wage-determination procedures. Congress has conferred upon the DOL Secretary the exclusive authority and duty to certify an LCA unless it is incomplete or obviously inaccurate. See INA § 212(n)(1)(G)(final paragraph)(providing that an employer may not be prohibited from using “legitimate selection criteria” in a nondiscriminatory fashion if they are “relevant to the job,” and “normal or customary to the type of job involved”).

  • Relying upon novel adjudication procedures to make it harder for noncitizens to qualify as individuals of extraordinary ability in a particular field. USCIS relishes citing the Kazarian case, supra, to claim that even if a petitioner submits the minimum number of categories of acceptable qualitative evidence described in current regulations (e.g., three out of ten categories to qualify for the EB1-1 employment-based green card classification), the petition can still be denied in a so-called “final merits determination.” See the USCIS policy memorandum PM-602-0005.1 , adopted without benefit of compliance with the APA’s rulemaking requirement that the public be given notice and an opportunity to comment before an agency declares new legislative rules.  (For well-deserved criticism of this two-stage analysis, see the excellent blog post by my colleague, Cyrus Mehta, “The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference.“)  What USCIS omits to state, however, is that INS published previously endeavored to comply with APA notice-and-comment rulemaking when it published a proposed rule in 1995 that, in effect, would have incorporated the two-stage “final merits determination” procedure into agency regulations.  See, INS Proposed Rule, “Employment-Based Immigrants,” 60 Federal Register 29771, 29780 (June 6, 1995), which stated:

204.5 Petitions for employment-based immigrants.

(i) * * *

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility. Meeting three of the evidentiary standards listed in paragraph (i) (3) of this section is not dispositive of whether the beneficiary is an alien of extraordinary ability. The petitioner has the burden of proof to establish that he or she is an alien of extraordinary ability. (Emphasis added.)

Unfortunately for immigration adjudicators, INS and USCIS never incorporated the proposal into a final regulation. Tellingly, however, USCIS adopted the “comparable-evidence” text in the foregoing 1995 proposed rule when it promulgated a final rule. See 8 CFR § 204.5(h)(4)(“If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility”).

  • Requiring corroboration of all evidence and claiming that perceived inconsistencies, however immaterial, create doubt sufficient to deny employment-based petitions. USCIS loves to cite Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988) for the proposition that “doubt cast on any aspect of the petitioner’s proof may . . . lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.”  The assertion of course seems reasonable on its face.  Regrettably, however, USCIS turns Matter of Ho on its head by claiming that all statements of fact submitted by a petitioner must be corroborated.  This mode of denial flatly contradicts the more recent precedent decision, Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010), which held:

Even if the [USCIS adjudicator] has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is more likely than not” or “probably” true, the applicant or petitioner has satisfied the standard of proof. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (discussing “more likely than not” as a greater than 50% chance of an occurrence taking place).

The Ho ploy of many a USCIS adjudicator also ignores the fact that every petitioner must sign an acknowledgement confirming that all evidence is submitted under penalty of perjury, and thus carries with it the real potential for criminal prosecution under a host of federal criminal penalties including 18 U.S.C. § 1001, making it unlawful for any person to knowingly make a false statement which is material and is made with regard to any matter within the jurisdiction of any department or agency of United States, and  18 U.S.C. § 1546(a), making it unlawful and punishing any person who under penalty of perjury knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact.

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If this article achieves anything, the hope is that employers, noncitizens, and their immigration lawyers who have been denied justice at USCIS should stop being so gosh-darned pusillanimous.  The shrinking violet should no longer be the flower that defines you.  Paraphrasing the much beloved, long departed immigration lawyer, Sam Williamson, father of an AILA past president and of a well-known inspirational speaker running for the Presidency in 2020, this author proclaims: “Sue the miscreants!”