Deciphering the workings of the bureaucratic mind is never easy.  What seems settled practice is often anything but. Abrupt abandonment of longstanding policy can happen in a nanosecond — many times with nary a word of forewarning or explanation. Usually there’s an unstated backstory  — one that can be divined by asking the forensic question first popularized by the Romans:  Cui bono? (Who benefits?)  Yet once in a while there is simply no logical explanation.

A recent example of illogic at its most stark comes from an unexplained about-face in policy just adopted by the nation’s agency that grants or denies immigration benefits — U.S. Citizenship and Immigration Services (USCIS), a component within the Department of Homeland Security (DHS). This “turnabout is unfair play” change involves “advance parole,” the privilege to enter the U.S. without a visa that USCIS and its predecessor, the old Immigration and Naturalization Service, have collectively made available for decades.

This USCIS policy change will unnecessarily impede the flow of U.S.-based global travel to and from the United States. Without strengthening the integrity of the immigration system, or enhancing President Trump’s admonition to “Hire American,” the change will gum up the workings of the national and global economy, and needlessly disrupt the lives of individuals and families here and abroad.

A few words of explanation: Advance parole is a special form of permission to return to the U.S. without a visa stamp in one’s passport.  As the name applies, USCIS grants it to a foreign national before s/he leaves the country. It is a generally reliable reassurance that the advance parolee will be allowed to reenter upon return from foreign travel. It is also essential to most persons applying for a green card, because a different USCIS rule treats applications for adjustment as having been abandoned if the applicant travels abroad without having first received advance parole. In the exercise of agency discretion, USCIS grants parole in finite increments for legitimate business or personal reasons requiring travel abroad.

Until a few weeks ago, USCIS’s standard practice has been to allow noncitizens — largely green card applicants — already granted a period of advance parole to apply for, and receive renewal for another term before the current grant expires. For years, USCIS allowed this beneficial practice to persist, presumably so that frequent international travelers would have no advance-parole gap, and thus, no impediment to travel abroad and reentry.

But now, USCIS apparently has just remembered that an instruction to the advance parole application (Form I-131) states: “If you depart from the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.”  In plain English, this means that if you are a noncitizen who (1) has an unexpired advance parole document, (2) applies for renewal, and (3) travels abroad with the intention of returning before the initial grant expires, then the act of departure NULLIFIES your renewal application because USCIS considers that you’ve abandoned it.

This would be little more than an annoyance involving the burden of reapplication if USCIS adjudicated advance parole applications quickly. To every applicant’s dismay, however, USCIS — according to its own published processing times reports — takes between SIX TO NINE MONTHS to decide whether or not to grant advance parole.

The upshot of this USCIS policy reversal is that it creates a de facto foreign travel ban.  It means that most green card applicants cannot leave the U.S. on short notice no matter if grandma is dying or a business emergency requires immediate foreign travel.  It also means that if they do leave the country without advance parole travel authorization or re-authorization, not only will they have to reapply for a green card (assuming they have a visa for reentry), they might not even be able to get back in at all.  Some might be required to apply for and receive a nonimmigrant or immigrant visa from a U.S. consulate abroad; others who had been unlawfully present in the United States before their departure might have to wait three or ten years before becoming eligible to receive a visa and return to the United States.

Furthermore, for the two categories of nonimmigrants who can travel abroad and reenter without advance parole — H-1B (Specialty Occupation workers and their H-4 dependents) and L-1 (Intracompany Transferees and their L-2 family members) — they may well need to apply for renewals of their visas at a consular post abroad, but only after USCIS has approved their employers’ requests to extend the visa-petition validity period.

So what’s this all about USCIS?  Asking the “who benefits” questions, we wonder: Is it you?  Does your agency reap a windfall in additional filing fees from abandoned and renewal applications for advance parole travel authorization?  The answer is “no.”  Ever since July 30, 2007, renewal applications for advance parole on Form I-131 require no filing fee.

In other words, USCIS will be required to renew advance parole applications for free, and deal with a slew of expedited-adjudication requests for advance parole renewals, also for zero dollars.  Perhaps USCIS adjudicators look with envy at immigration officers in other DHS components who view themselves as unshackled by executive orders to clamp down hard on illegal immigration. So, folks at USCIS headquarters: Is this a dog whistle? Have you concluded, perhaps for the sake of your own and your teammates’ job security, that you must be seen as strictly enforcing the eligibility requirements for legal immigration benefits, even if all stakeholders and your agency suffer?

If that’s the case, you’ve gone too far. Your forebears at INS and your former selves in prior administrations realized that when a “rule” makes no sense, hurts immigration stakeholders for no good reason, and puts more uncompensated work on your desks, the appropriate course is to see if another, less damaging interpretation might be permissible. A more relaxed view of the so-called rule is especially warranted if the requirement merely originates in an instruction to a form.

To be sure, 8 CFR § 103.2(a)(1) provides that USCIS form “instructions are incorporated into the regulations requiring its submission.”  But a warning or advisal in this context that USCIS would consider departure from the United States as an abandonment of an advance parole application cannot fairly be considered an instruction that explains how to complete and file a form to request permission to reenter the United States. Moreover, if your agency has already granted permission to travel abroad and return on a document that is unexpired, why would you infer that an advance parole renewal application has been abandoned? Have you already forgotten that a 2012 Board of Immigration Appeals precedent decision binding upon your agency — under a common sense reading of the immigration laws — expressly rejected your interpretation that travel outside United States with an unexpired advance parole document authorizing one’s readmission is not to be treated as an abandonment of the pending application.

So again I ask you, the leaders of USCIS, who benefits from this senseless policy reversal?

The pattern by now is all too familiar. With the Trump Administration fully ensconced, the rollback of President Obama’s eight-year legacy continues. This time it involves the International Entrepreneur Regulation — an imperfect and burdensome rule that would have become effective last month had the Administration not  imposed a delay. The Obama-era rule created a labyrinthine human steeplechase allowing a few foreign entrepreneurs, in league with U.S. venture capitalists, to secure an immigration benefit through “parole” by together investing $250,000.Parole is a statutory immigration benefit that allows lucky parolees to enter the U.S. without a visa. If U.S. Customs and Border Protection (CBP) or U.S. Citizenship and Immigration Services (USCIS) grants parole, one or the other agency must determine on a case-by-case basis that urgent humanitarian reasons or a significant public benefit warrant the grant of this extraordinary, discretionary privilege.

At the 11th hour, however, United States Citizenship and Immigration Services (USCIS) announced its intention to rescind the regulation, claiming that the rule conflicted with a January 25, 2017 Executive Order 13767, “Border Security and Immigration Enforcement Improvements,” which required the Secretary of Homeland Security to “take appropriate action to ensure that parole authority under  [Immigration and Nationality Act] section 212(d)(5) . . . is exercised only on a case-by-case basis.” Thus, USCIS invited the public to tell the agency why the rule should or should not be rescinded.

Last week, I took USCIS up on its offer and sent the following comment:

August 10, 2017
Samantha Deshommes
Chief, Regulatory Coordination Division
Office of Policy and Strategy
U.S. Citizenship and Immigration Services
Department of Homeland Security
20 Massachusetts Avenue NW
Washington, DC 20529

Submitted via:  http://www.regulations.gov/

Re:      International Entrepreneur Rule: Delay of Effective Date

82 Fed. Reg. 31887 (July 11, 2017)

DHS Docket No. USCIS-2015-0006

Dear Ms. Deshommes:

I respectfully submit this comment in my individual capacity as an interested immigration stakeholder in response to the notice of the Department of Homeland Security (DHS), “International Entrepreneur Rule: Delay of Effective Date,” published in the Federal Register at 82 Fed. Reg. 31887 (July 11, 2017).

I am an attorney admitted to practice law and in good standing in the States of Michigan (1976), California (1981), and New York (2005).

My comment to the captioned DHS Docket No. USCIS-2015-0006 notice hereby incorporates by reference the August 10, 2017 comments of the American Immigration Lawyers Association (AILA) and the American Immigration Council (Immigration Council); the October 17, 2016 comments of the Alliance of Business Immigration Lawyers (ABIL) to an earlier version of the proposed international entrepreneur regulation, and my August 26, 2016 Nation of Immigrators blog post, entitled, “Venture Capitalists and Immigration Proponents Likely Disappointed by USCIS Proposed Entrepreneurial Parolee Rule”.

While I concur in these incorporated comments which suggest numerous improvements to the extant version of the final International Entrepreneur regulation (the Final Regulation), I write separately in the event that DHS and U.S. Citizenship and Immigration Services (USCIS) determine, despite the comments, that they will nonetheless proceed with their stated intention to revoke the Final Regulation.

The Trump Administration is understandably concerned about blanket parole authorizations and apparently believes emphatically that statutory parole authority should be exercised on a case-by-case basis. With respect, I maintain that the USCIS’s Final Regulation and its Supplementary Information convincingly demonstrate that the requirement that case-by-case parole adjudications would in fact be accorded to International Entrepreneurs who apply for parole.

Should the Administration nevertheless proceed, however, to revoke the International Entrepreneur Final Regulation I urge that the revocation be simultaneously replaced by the issuance of an Executive Order or the adoption of binding policy to be incorporated into the USCIS Policy Manual that would more generously incentivize foreign and domestic entrepreneurs and their joint-venture partners who in good faith endeavor to create desirable jobs for American workers.

Thus, I offer the following suggestions for inclusion in an Executive Order or a new chapter on international entrepreneurs in the USCIS Policy Manual, and ultimately, in a proposed and final regulation following public notice and an opportunity to comment.

  1. Parole authority under the Final Regulation – because of the inherent limitations and restrictions of parole admission – is at best a less than optimal way to attract and enable entrepreneurs to innovate in the United States. Parole offers no direct path to a work visa or permanent resident status, and a grant of parole is an unreviewable discretionary decision offering finite benefits. Parole is not a nonimmigrant status within the existing authority of the Immigration and Nationality Act for employment-based foreign citizens seeking to come to the United States. A better and likely more successful regulation encouraging foreign entrepreneurs and innovators to cast their lots with the United States should be based upon existing authority under the Immigration and Nationality Act (INA) for the importation of employment-based workers.
  1. Existing authority under the INA’s employment-based nonimmigrant and permanent resident visa categories already endows the Trump Administration with power to immediately publish an Executive Order or amend the USCIS Policy Manual, and in due course to publish proposed and final rules which would define specific examples and circumstances under which qualified and worthy entrepreneurs would be authorized to enter and work in the United States on a temporary or permanent basis. Included among these provisions are the O-1 visa for extraordinary ability individuals, and the employment-based immigrant visa categories for extraordinary ability individuals (EB-1-1), outstanding professors or researchers (EB-1-2), individuals of exceptional ability or advanced degree holders based on a national interest waiver (EB-2), and an expansively interpreted restatement of the Department of Labor’s Schedule A, Group II labor certification exemption (also EB-2).
  1. Were the Trump Administration to take the actions suggested above under existing INA authority, it should do so by adopting more reasonable requirements that better reflect business reality and legitimate practices in the startup sector than those contained in the Obama Administration’s Final Regulation. Such an effort would be far more likely to create well-paying jobs for US workers in new industries, and offer world-class innovations in American goods and services. Such a rule would also advance President Trump’s objective to Make America Great Again, would more likely enhance entrepreneurial innovation in the United States, and would better compete for the scarce supply of entrepreneurs and innovators against alternative national immigration schemes such as those offered by Canada and other countries that compete for the same scarce global pool of talented entrepreneurs.

* * *

For these reasons, I respectfully ask USCIS and DHS that they not throw out the entrepreneurial baby, even if they must toss the parole bathwater. Thank you for considering my comment.

Sincerely,

Angelo A. Paparelli

Blogger and Immigration Lawyer

 

Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.

Facts: Former Senator Jeff Sessions (a stalwart opponent of legal immigration) is the Attorney General. Sen. Charles Grassley (no friend of the EB-5 program) has proposed legislation, with Sen. Dianne Feinstein, to eliminate the EB-5 program.

Facts: Trump Administration appointees and nominees have previously worked closely with Messrs. Sessions and Grassley, or with the Federation for American Immigration Reform (FAIR), a nonprofit widely regarded as an anti-immigrant advocacy group. The decisionmakers include:

Sessions alumni

Stephen Miller, now Senior Advisor to the President for Policy.

Gene Hamilton, now Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor.

Grassley alumni

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS).

Kathy Nuebel Kovarik, now Chief of the USCIS Office of Policy and Strategy.

FAIR alumni

Julie Kirchner, now USCIS Ombudsman.

Aside from Stephen Miller, reportedly an author or coauthor of Versions 1.0 and 2.0 of the controversial Executive Order described by the President as the “travel ban,” not much is known publicly about the intended policy positions of these individuals, except for Mr. Cissna[1] and Ms. Kirchner, [2]  both lawyers of strong pedigree.

Mr. Cissna has been most recently “detailed” to Sen. Grassley where he helped write S.2266,[3] the H-1B and L-1 Visa Reform Act of 2015  — a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits, as well as S.1501,[4] the American Job Creation and Investment Promotion Reform Act of 2015 — introduced by and Sen. Grassley and Sen. Leahy — which included an array of what have come to be known as EB-5 “integrity” measures.

Before and after his stint with Sen. Grassley, Mr. Cissna spent years as a lawyer at DHS immersed behind the scenes in immigration policy.  His testimony before the Senate Judiciary Committee and his written answers to questions from three Senators tell us how he intends to deal with the EB-5 program if approved as USCIS Director:

  • He will finalize the two prior rulemaking efforts of USCIS during the Obama Administration (an advance notice of proposed rulemaking and a proposed rule) into final effect “according to the process set forth in the Administrative Procedure Act and related DHS and OMB [Office of Management and Budget] guidance.”[5]
  • He is “committed to enforcing USCIS policies ensuring the integrity of all USCIS adjudications, no matter who the applicant or petitioner is, as well as policy deliberations, including their independence from any inappropriate external influences.”[6]
  • He has observed that the “USCIS Ombudsman and the USCIS director should maintain an independent, yet respectful and cooperative relationship, as both share the goal of improving USCIS” and acknowledged the “USCIS Director’s statutory obligation to ‘meet regularly with the Ombudsman . . . to correct serious service problems identified by the Ombudsman . . .’”[7]
  • He confirmed his intention to “strive to ensure that the agency carries out its mission in a fair, lawful, efficient, and expeditious manner.”[8]

Before becoming the Ombudsman, Ms. Kirchner apparently did not make any public statements revealing her personal views on the EB-5 program.[9]   During her tenure as Executive Director of FAIR, however, the organization actively opposed EB-5 program.[10]

In accepting her position and taking her oath of office, Ms. Kirchner is no doubt aware of Section 452 of the Homeland Security Act, the statutory mandate prescribing the authority and duties of the Ombudsman, which provides:

Section 452 of the Homeland Security Act (HSA) provides:

(a) IN GENERAL – Within the Department, there shall be a position of Citizenship and Immigration Services Ombudsman (in this section referred to as the ‘Ombudsman’). The Ombudsman shall report directly to the Deputy Secretary. The Ombudsman shall have a background in customer service as well as immigration law.

(b) FUNCTIONS – It shall be the function of the Ombudsman—

1) To assist individuals and employers in resolving problems with [U.S.]  Citizenship and Immigration Services;

2) To identify areas in which individuals and employers have problems in dealing with [U.S.]  Citizenship and Immigration Services; and

3) To the extent possible, to propose changes in the administrative practices of [U.S.]  Citizenship and Immigration Services to mitigate problems identified under paragraph (2).

In addition, Section 452(c)(F) of the HSA requires the Ombudsman to report annually to Congress and recommend “such administrative action as may be appropriate to resolve problems encountered by individuals and employers, including problems created by excessive backlogs in the adjudication and processing of immigration benefit petitions and applications[.]”[11]

The responsibilities of the Ombudsman are particularly significant given that in August 2015 USCIS published a set of EB-5 “Protocols,” which limited the direct intervention of USCIS leadership in specific EB-5 cases, but exempted the USCIS Ombudsman from its prohibitions.[12] Since direct outreach to USCIS senior leadership in specific cases is now greatly restricted, the statutory role of the USCIS Ombudsman in assisting “individuals and employers in resolving problems with” USCIS becomes essentially the only way that EB-5 stakeholders can raise quality assurance problems in specific cases.  To be sure, the USCIS Office of Public Engagement (OPE) conducts regular EB-5 stakeholder engagements and listening sessions. These OPE opportunities, however, are often structured to preclude posing questions or concerns about specific cases.

Ms. Kirchner, the fifth individual to hold the title of Ombudsman, will likely review and adapt for herself the varying approaches of her predecessors.  At least one Ombudsman took a more aggressive approach, which understandably produced resistance at USCIS.  Others in varying degrees have been more or less assertive, innovative, affable and collaborative in finding ways to communicate directly with USCIS Service Center adjudicators and help resolve individual and employer  problems.

So, how much power does an Ombudsman have in interacting with USCIS?  As a matter of historic practice, prior incumbents often achieved a measure of success by acting as disinterested intermediaries, but did not offer or make public the Office’s own interpretations of the Immigration and Nationality Act (INA), deferring instead to USCIS.  As a coequal component of DHS with USCIS, however, the Ombudsman  is authorized by its mandate in HSA § 452(b)(2) and (b)(3) to “identify” problematic areas in the public’s “dealing with [USCIS]” and to “propose changes in the administrative practices” of USCIS.

Clearly, therefore, the Ombudsman’s duties of identifying problems and proposing changes to USCIS’s administrative practices are sufficiently broad to include problems and practices stemming from misinterpretations of the INA and agency regulations.  A recent instance in which a legal interpretation by the Ombudsman would have been appropriate and welcome is on long-unresolved issues of the period during which EB-5 conditional resident’s funds must be redeployed and whether the redeployment must be in “at-risk” assets once the investment project has concluded but before conditions on residency have been removed.[13]

Knowledgeable immigration lawyers recognize that the role of the Secretary of Homeland Security, and the Department’s component agency, USCIS, is to “administer” and “enforce” the INA and all other immigration laws, whereas the Attorney General possesses exclusive authority within the Executive Branch to determine and rule on all questions of law.[14]

Since the Ombudsman’s role is to identify problematic areas in the public’s dealings with USCIS and to propose changes in its administrative practices, the Ombudsman undoubtedly holds coequal authority with USCIS to challenge the latter’s legally unsupportable and troublesome administrative interpretations of the law and regulations underpinning the EB-5 program, subject only to the Attorney General’s power to conclusively determine questions of law that are binding within the Executive Branch.

Recently, Ms. Kirchner provided welcome insights on the EB-5 program. In the Ombudsman’s 2017 Report to Congress, she acknowledged the adverse consequences caused by the lack of robust anti-fraud and national- security protections, and by the failure of the House and Senate to agree on a permanent or multi-year reauthorization of the Regional Center program. Concerning the unfortunate pattern of successive short-term EB-5 Regional-Center reauthorizations, Ms. Kirchner observed:

Legislative efforts to reform the EB-5 program have stalled over numerous issues, including the methodology for determining TEAs, the two-tiered investment framework,and effective dates for any new provisions. In the meantime, Congress has reauthorized the Regional Center program in a series of short-term extensions. These short-term extensions trigger filing surges by investors seeking to secure a place in the queue before the minimum investment amount is increased or changes are made to other provisions. They also contributed to delays in updating EB-5 regulations as the agency yielded to signals from Congress that it intended to make statutory changes to the program.[15]

In addition, Ms. Kirchner observed in her 2017 Report that extremely long backlogs in EB-5 adjudications at USCIS continue to plague the program, and, with regard to the predominant segment of all EB-5 investors, namely, individuals born in mainland China, that the lack of annual EB-5 immigrant visa numbers “will likely [require them to] wait 10 years or longer for their EB-5 immigrant visas due to oversubscription, absent an increase in or recalculation of the annual quota.”[16]

One troubling observation in the 2017 Report hinted that the Office of the Ombudsman may not offer its own independent statutory and regulatory analysis in situations where USCIS’s policy guidance appears to deviate from the INA and agency regulations, even though the views of USCIS cause problems for individuals and businesses:

In November 2016, USCIS released an addition to its Policy Manual titled “Investors.” This six-chapter policy treatment is a significant achievement, as it synthesized and aligned the agency’s regulations, decisional law, policies, and procedures with enabling statutes. Given the complexity of the EB-5 Program, the creation of this comprehensive and authoritative resource has been well received by EB-5 stakeholders.[17]

This statement no doubt comes as a surprise to many external EB-5 legal experts. The lawyers who submitted an eight-page AILA Comment replete with numerous and wide-ranging suggested corrections to the EB-5 chapters in the USCIS Policy Manual would likely disagree with the characterization that this sub-regulatory guidance can be fairly characterized as a “comprehensive and authoritative resource [that] has been well received by EB-5 stakeholders.” Thus, it remains to be seen just how much future federal litigation (likely brought under the Administrative Procedure Act, the INA, and other statutes) will be spawned raising substantive legal questions on the degree to which the manual is in fact comprehensive or authoritative. Hence, scholars of EB-5 jurisprudence must stay tuned as EB-5 jurisprudence evolves.

* * *

In the final analysis, insufficient hard facts are known to foretell how Mr. Cissna, Ms. Kirchner, and their respective agencies will discharge their responsibilities under the immigration laws. As noted, they are both accomplished lawyers, and during their respective honeymoon periods, EB-5 stakeholders should accord them the respect and confidence, consistent with existing rules of professional responsibility, that the views of their former employers are not necessarily predictive of their future policies.[18]

Time will tell whether and how well Ms. Kirchner and Mr. Cissna engage together in resolving EB-5 stakeholder concerns over backlog reduction, wayward adjudications, kitchen-sink requests for additional evidence, and other frustrations.  Until more is known about real-world actions of the Ombudsman and adjudications at USCIS, EB-5 stakeholders and their immigration lawyers must decide for themselves whether resort to Ombudsman intercession will more likely help or hurt regional centers and immigrant investors in specific cases. The calculus in approaching or avoiding the Ombudsman should be based on a variety of factors, such as, the financial strength of the project and its potential or actual job-creation activities; the factually-demonstrable urgency in receiving an adjudication; the presence or absence of red-flag factual or legal issues; and the likelihood that the particular case presents issues that, once resolved, would benefit multiple EB-5 stakeholders, and thereby allow the Ombudsman to husband its scarce resources, and get more bang for its intercessory buck; and other relevant  considerations.

This author believes that USCIS (under Mr. Cissna) and the Office of the USCIS Ombudsman (under Ms. Kirchner) will be led in good faith by talented and accomplished lawyers who have taken oaths to support and uphold the Constitution and the immigration laws of the United States, unless either of them, by their conduct, demonstrates otherwise.

For the time being, as a matter of fact, this author will continue to seek the intervention of the Ombudsman in worthy cases, given that (a) Office of the Ombudsman continues to be staffed by experienced lawyers and other career officers who have historically been helpful in employment-based immigration matters, (b) the EB-5 program continues to be a tax-generating engine of economic growth and job creation, and (c) fully law-compliant EB-5 petitions continue to encounter “problems” at USCIS.

As for USCIS itself, the agency’s widely-known endemic problems continue to cry out for resolution.  Submission of well-documented cases establishing EB-5 eligibility, participation in public engagement, advocacy at public conferences and through print and social media, and litigation — this author believes — remain the tools of choice.

Footnotes:

[1] Mr. Cissna’s legal career is outlined in his answers to the questionnaire of the Senate Judiciary Committee, accessible here (unless otherwise noted, all links are current as of June 12, 2017).

[2] Ms. Kirchner’s official biography can be found here.

[3] S.2266 is available here.

[4] S.1501 is available here.

[5] May 27, 2017 Responses of Lee Francis Cissna to Questions for the Record from Sen. Dianne Feinstein), available here, No. 11 (Responses).

[6] Responses to Sen. Durbin, available here, No. 9.  Sen. Durbin expressly asked “How would you ensure that President Trump’s family business interests won’t affect the adjudication of [the EB-5 program] . . . or the consideration of possible reforms to [the program].”

[7] Responses to Sen. Durbin, No. 6.

[8] Responses to Sen. Feinstein, No. 2.  In the preface to her question Sen. Feinstein stated that “one of the agency’s strategic goals is ‘providing effective customer-oriented immigration benefit and information services’ . . . [and] one of USCIS’s core customer service principles is ‘to approach each case objectively and adjudicate each case in a thorough and fair manner.’”

[9] Based on the remarks made by a representative of the USCIS Ombudsman at the Federal Bar Association Annual Immigration Conference on May 12, 2017, Ms. Kirchner reportedly has indicated to staff that she is interested in the EB-5 investor program, the H-1B visa category and other areas of employment-based immigration law.

[10] Ms. Kirchner is listed, for example, as a lobbyist in 2012 concerning  S.3245 sponsored by Sen. Leahy, a bill to “permanently reauthorize the EB-5 Regional Center Program, the E-Verify Program, the Special Immigrant Nonminister Religious Worker Program, and the Conrad State 30 J-1 Visa Waiver Program,” regarding provisions  “relating to more controversial issues in three of the four programs because of significant deficiencies in oversight and fraud.” See Form LD-2 for Third Quarter 2012, available here.  Also, in 2012, while Ms. Kirchner served as FAIR’s Executive Director, the organization published “Selling America Short: The Failure of the EB-5 Visa Program,” available here.

[11] As discussed in the text below, on June 29, 2017 Ms. Kirchner, in her formal capacity as Ombudsman, submitted to Congress her Office’s  2017 Annual Report (“2017 Report”).  The report, discussed later in the text, is available here (last accessed on July 12, 2017).

[12] Entitled, “Ethics and Integrity: Protocols for Processing of EB-5 Immigrant Investor Visa Petitions and EB-5 Regional Center Applications, Including Stakeholder Communications,” the document is available here.

[13] The USCIS’s continuing at-risk “sustainment” requirement for redeployed funds, lasting until conditions on residency have been removed, is an issue that begs for interpretation by the USCIS Ombudsman. See June 14, 2017 USCIS Policy Alert, “Job Creation and Capital At Risk Requirements for Adjudication of Form I-526 and Form I-829,” (accessible here) and amendments to the USCIS Policy Manual at Volume 6: Immigrants, Part G, Investors [6 USCIS-PM G] (accessible here). See also, “USCIS Finalizes EB-5 Sustainment and Redeployment of Capital Issues and Consequences of Regional Center Termination,” by Robert C. Divine in the current issue. For arguments opposing the USCIS redeployment and sustainment interpretations, see American Immigration Lawyers Association Comments on the USCIS Policy Manual Regarding Eligibility Requirements for Regional Centers and Immigrant Investors. Volume 6: Immigrants, Part G, Investors (December 14, 2016; AILA Doc. No. 16121565 Posted 12/15/16 [“AILA Comment”]), at pp 6-7 (noting that the at-risk requirement is a creature of the regulations and not the INA, and that as a matter of law the EB-5 investment need merely be “… sustained over the two years of the petitioner’s conditional permanent residence in the United States”).

[14] See INA § 103(a).

[15] See, 2017 Annual Report at 32 (footnotes omitted).

[16] Id. at 33.

[17] Id. at 31-32 (footnotes omitted).

[18] Rules of legal ethics generally hold that “a lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” See American Bar Association Model Rules of Professional Conduct Rule 1.2(b)(“Scope Of Representation And Allocation Of Authority Between Client And Lawyer”), accessible here. The author understands that Ms. Kirchner apparently did not serve as an attorney of FAIR, but as its Executive Director. In this author’s view, however, merely because an individual on behalf of a prior employer has opposed immigration relief for unauthorized immigrants (see, e.g., Ms. Kirchner’s November 8, 2007 testimony before Congress to that effect, accessible here) does not require or necessarily justify the conclusion that she would ipso facto take steps to maintain America’s legal immigration system in its clearly dysfunctional state.

“It’s tough to make predictions, especially about the future.”

~ Yogi Berra

fortune tellerThe talk of the nation – at least that segment interested in U.S. green card benefits available to foreign investors – is about the welcome or feared changes likely to occur in the EB-5 employment-creation immigration investor visa program.  Scuttlebutt and divination have yielded a wide range of ever more restrictive, complex and burdensome changes that are foreseeable for this year.

This article will add to this mix a few of the author’s soothsayings, derived from attendance at conferences, discussions with knowledgeable insiders, and a review of the plethora of differing bills and drafts emanating from both houses of Congress (or their respective staffers).  Reader beware, however; some, none, but not likely all, of the predictions below may happen.  Nonetheless, preparedness for the unknown future is probably better than obliviously passing time, doing nothing and learning that the light at the end of the tunnel is an oncoming train.

Continuation of the Regional Center program. Despite the oft-stated gripe that the EB-5 program allows foreign citizens to buy a U.S. passport, and subject to the connivery of malefactors, Congress will enact and President Trump will sign an appropriation bill or continuing resolution to extend the Regional Center program beyond its current sunset date (April 28, 2017).  Sometime thereafter, broad reforms of the EB-5 program (predicted below) are likely to become law.

No future for USCIS’s draft rules. USCIS’s January, 2017 proposals for new regulations, which among others would have significantly increased the minimum amount of investment, will never be promulgated in final form without substantial revisions.

Extended longevity for the Regional Center program.  Rather than the fits-and-starts renewals of the past few years, Regional Center investments will be given at least a five-year lease on life.

Cough up more dough.  EB-5 investors will no longer qualify with at least a $500,000 investment.  Expect that investments minimums will increase to at least $800,000 or a $1.2 million.

Enhanced transparency and more timely reports of material changes.  Expect Congress to insist that Regional Centers, New Commercial Enterprises, Job Creating Entities, related parties, and EB-5 investors must disclose far more detailed data and documents than heretofore required. How USCIS will manage the filings and place them online (as Congress will likely require) remain to be seen.

Submission and approval of exemplar business plans before I-526 petitions can be filed. As a practical matter, it makes sense to require that project-related documents and Regional Center designation or amendment requests be given a deferential green light before USCIS adjudicates individual investor petitions; but this exacerbates the immigrant visa quota backlog.

Due diligence will become more than merely de rigueur.  Individual non-investor participants will be required routinely to certify that — after internal and external due diligence reviews – entity-related filings fully comply with state and federal securities laws and all other applicable laws and rules.  Anticipate also that regional centers and all other project participants (including their lawyers, agents or individuals in active concert with them) must describe policies and procedures that ensure law compliance.

Audits and site visits will proliferate.  Entity stakeholders should expect that their activities and records will face onsite or remote scrutiny for law and program compliance at least once every three years.

No hidden payments.  Expect that never again will the previously prevalent practice of burying or hiding fees paid to third parties, including migration agents, be countenanced.

Well capitalized players only.  Congress will assuredly gouge out ever-higher filing fees, including mandatory deposits into an enforcement-oriented integrity fund and more exorbitant petition filing fees). It will also provide for substantial monetary fines for EB-5 program violations and other legal transgressions – which may be paid only from non-EB-5 money.  The heyday of thinly capitalized Regional Centers is over.

No foreign governments or nationals allowed. Foreign governments, sovereign funds or state-owned enterprises will be allowed, directly or indirectly, to provide capital or be involved with a Regional Center, a New Commercial Enterprise, or a Job Creating Entity.  Only U.S. citizens or lawful permanent residents will be permitted to own these entities.

The U.S. securities laws will apply extraterritorially.  Congress will at last put to rest the feeble claims that EB-5 investments are not securities or that securities jurisdiction ends at the U.S. border.  It will also extend the SEC’s lasso to foreign migration agents and promoters.

With expensive provisos, good-faith but swindled investors can keep their priority dates.   Priority-date preservation must occur within a short window of time but only if cheated investors ante up another capital contribution of at least the minimum required investment.  Money will talk but those with no more investment money will walk (or otherwise leave the U.S.), notwithstanding that hoodwinked investors put up their life savings to immigration under the EB-5 visa category.

Set-aside TEA preferences will be established.  Minimum investment amounts and more generous visa-number allotments (with rollover of unused visas) will go to EB-5 investors contributing capital to projects in rural or high-poverty urban areas, or to infrastructure or manufacturing projects.  (The name of this movie is The Return of the Pork-Barrel Earmarks.)

Fund administrators will proliferate.  Ronald Reagan’s “trust but verify” methodology will come to the EB-5 program.  Private plan and yacht builders beware:  Money will not move unless independent administrators certify that EB-5 funds will go solely to their lawfully required destinations.  Fund administrators will also be required and authorized to review all deal docs of the NCEs and JCEs and to provide timely reports to USCIS, the SEC, and EB-5 investors of any untoward or otherwise materially different activities than outlined in signed documents or governmental filings.

New regulations, studies and reports will regularly be published.  Inspectors-general and GAO reports on every nook, cranny and aspect of the EB-5 program will be publicly released.  In addition, the Commerce Department will issue regulations outlining job creation methodologies and USCIS alone will determine eligibility for TEA classification.

Some good news.  Minors will receive limited age-out protection; concurrent submission of I-526 petitions and I-485 adjustment of status applications will be allowed as now occurs in other employment-based immigrant visa categories; USCIS must reduce processing times; and investors who have waited two years after filing I-526 petitions that are ultimately approved, and who then are either admitted as immigrants or adjusted to lawful permanent resident status will go straight to green card status without conditions.

* * *

As scriptures report, prophets often bring unwelcome news.  As the last election proved, prognosticators – no matter that their conjectures may be based on metrics or gut instincts – can be wrong.  Whether or not these predictions manifest someday, please be nice to me.  Keep in mind the words of Yusuf Islam (Steven Demetre Georgiou, but commonly known by the stage name Cat Stevens), in his unforgettable song, quoted here, clearly out of context:

I was once like you are now, and I know that it’s not easy

To be calm when you’ve found something going on

But take your time, think a lot

Why, think of everything you’ve got

For you will still be here tomorrow

But your dreams may not . . .

Look at me, I am old, but I’m happy

As the Obama presidency nears its twilight, let me tell you about our leader’s eight-year, largely-disappointing record on immigration.

But first a bias alert:  I voted for the President twice; I like and respect him; and I marvel at how glib, cool, incisive, studious, and otherwise mostly big-hearted he’s been.  With favorability ratings nearing 60 percent, he’s seen by most Americans and citizens of other countries as consistently suave, temperate, well-spoken, thoughtful, and unflappable.

What’s more, he’s been right on most domestic and foreign policy choices, including health care, the resuscitation of the U.S. auto industry, deficit reduction, global climate change, positive engagement with Iran, and a breakthrough in U.S.-Cuba relations.

His has been a corruption-free presidency that only a handful of predecessors have rivaled.  His signature achievement, available health care for almost all Americans, though imperfect and needing tweaks, stands as a Mt. Everest that no president heretofore had scaled.

The inheritor of an economy on life support suffering sky-high unemployment, a peerless dad and husband, a role model for aspiring Horatio Algers and stand-up comedians everywhere, and a surprisingly talented singer and dancer, President Obama has turned the country around on virtually every metric (other than immigration).  He’s done this despite unceasing opposition and insults from all stripes of Republicans and a bloviating right-wing media that spewed hatred and false memes, while sowing unwarranted doubts about his citizenship, his faith, and his very legitimacy.

Despite the few modest immigration improvements he can rightly claim, future historians will likely rue his most despicable actions – his uncharacteristic heartlessness and intransigence on strict immigration enforcement against asylum-seeking moms and kids, and his Guinness-worthy record of deporting mostly low-level immigration violators, while these anti-immigrant measures had been fueled by his naive and ultimately unfounded hope that the GOP would therefore engage with him on comprehensive immigration reform.

Historians will no doubt point to his many missed immigration opportunities, and downgrade his proclamation of several well-intentioned Executive Actions in late 2014 that, by the end of Term Two, have produced less-than-half-a-loaf results.

His immigration outcomes, as detailed below, will ultimately be seen as having violated the apt medical injunction (“First, do no harm), while also calling to mind Walter Mondale’s disparaging query (“Where’s the beef?”).

Alas, he will be remembered – quite unfortunately – for these immigration bungles and stumbles (most of which have been reported in this blog):

  • Broken promises on comprehensive immigration reform during first year in office when Dems ruled.
  • A failure of oversight of federal departments and components responsible for decisions whether to grant or approve requests for immigration benefits such as work visa status, work permission and lawful permanent residency.
  • High-flown promises on Executive Actions but no holding of immigration bureaucrats’ feet to the fire, with (as noted) more stringent and less generous outcomes on immigration benefits.
  • Acquiescence in unlawfully strict legal interpretations, narrow grants of immigration benefits, and burdensome document demands by unaccountable adjudicators.
  • New, stricter rules and proposals on L-1B visa eligibility international entrepreneurs, and adjustment of status portability.
  • The absence of anything resembling true “Visa Modernization.”
  • The failure to publish comments on draft policy memorandums so that the public would know what other commenters had proposed
  • An out-of-control Administrative Appeals Office which engages in ex parte discussions on policy with USCIS engineered and which orchestrated the highly disruptive, outrageously expensive and wholly unnecessary ruling in Matter of Simeio.
  • Failure to pursue APA rulemaking for DACA/DAPA which formed the basis for his district court loss in Texas v. United States.
  • Incorrectly claiming he lacked authority to provide relief and then belatedly (but albeit correctly) exercising executive authority in a wide array of immigration programs.
  • Failure to materially improve persistently bad immigration technology (ELIS and the talking bot, Emma [although preexisting email software known as Emma already existed).
  • Acquiescence in ever higher filing fees without insisting that USCIS first establish and stick to reasonable processing times
  • Expansive exercise of worksite enforcement authority while I-9, and E-Verify problems persist
  • CBP and ICE abuses too numerous to mention.
  • The Justice Department’s haughty insistence on finalizing without virtually no change its harsh antidiscrimination rules which tip the scales of justice in favor of DOJ attorneys, allowing them to enforce strict liability claims and unlawfully broaden the population of individuals protected against citizenship status discrimination to include noncitizens.

***

At least one recent good thing, however, makes me happy – his elimination of the discriminatory NSEERS (National Security Entry-Exit Registration System) which intentionally targeted nationals of countries with predominantly Muslim populations.

In the final analysis, I like and admire President Obama, but not much for his immigration policies and misguidedly tolerated practices. I clearly was naive to have hoped for far more enlightened activism on immigration from a man whose Kenyan father was hounded out of the United States by the Immigration and Naturalization Service and Harvard for dating a white woman.

[Blogger’s Note: Today is the last day to submit comments to the Justice Department on its proposed rule which would modify its immigration-related antidiscrimination regulations, which are enforced by the Office of Special Counsel for Unfair Immigration-Related Employment Practices (the Special Counsel). The proposal’s fine print reveals that DOJ’s effort is in essence an unlawful power grab that would expand the time for the Special Counsel to file a claim before an Administrative Law Judge from 180 days to five years, strengthen the government’s hand in proving its case, and strip employers of legitimate defenses.  My colleague, Maura Travers, and I drafted a comment which lays out why this grab for power should be stopped.  Today, on behalf of the Alliance of Business Immigration Lawyers, I submitted the following ABIL comment without the caption and byline of this post.  Stay tuned for the final rule.  Meantime, see all public comments here.  Comments of the American Immigration Lawyers Association and the U.S. Chamber of Commerce are accessible at the preceding links.]

 

Beware the Justice Department’s Stealthy Grab for Enhanced Power to Enforce Immigration Discrimination Rules

By Angelo A. Paparelli and Maura Travers

Submitted Electronically via https://www.regulations.gov

Hon. Loretta E. Lynch
Attorney General
U.S. Department of Justice

RE:      Comment on Proposed Rulemaking entitled “Standards and Procedures for the Enforcement of the Immigration and Nationality Act,” 81 Fed. Reg. 53965, with deadline extended, 81 Fed. Reg. 63155. [CRT Docket No. 130; AG Order No. 3726-2016] RIN 1190-AA71

Dear Attorney General Lynch:

This comment will respond to your Notice of Proposed Rulemaking entitled Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 81 Fed. Reg. 53965 (the proposed rule). I submit this comment on behalf of the Alliance of Business Immigration Lawyers, of which I am a member, and in my capacity as a lawyer who has litigated numerous administrative claims of unfair immigration-related employment practices. The views I express are those of ABIL and me, and do not necessarily reflect the opinions of any other person or entity.

 

ABIL is comprised of 19 of the top U.S. business immigration law firms and practice groups, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 250 attorneys (700+ total staff) devoted to business immigration in 25 major U.S. cities, and 25 international destinations. A number of our ABIL members have served as a past President or as members of the Board of Governors of AILA (the American Immigration Lawyers Association), the 11,000-member organization comprised of most U.S. immigration lawyers. Our ABIL lawyers are also immigration law professors at prominent law schools, and have written well regarded immigration treatises and textbooks. ABIL regularly comments on proposed rules and draft agency memoranda.

Introduction. The proposed rule would amend 28 CFR § 44 — which was codified to enforce § 102 of the Immigration and Control Act of 1986 (IRCA) — in order to incorporate the statutory text as amended by § 421 of the Illegal Immigration Reform and Immigrant Responsibility Act  of 1996  (IIRIRA). The current rule prohibits certain unfair immigration-related employment practices and designates the Office of Special Counsel for Immigration-Related Unfair Employer Practices (Special Counsel) to investigate complaints.

As explained below, the proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices. These changes contravene the statutory text and the legislative history of the governing statutes, and would impose unreasonable burdens on employers, even though an employer’s actions were not motivated by immigration-related animus or hostility. The proposed rule would also substantially expand the authority of the Special Counsel to investigate allegations of immigration-related unfair employment practices and the time periods within which individuals and the Special Counsel must file complaints against employers with the Office of the Chief Administrative Hearing Officer (OCAHO).

Overly Broad Proposed Definition of Citizenship Status. Proposed 28 CFR § 44.101(c) would provide a new definition of the phrase “citizenship status” found in Immigration and Nationality Act (INA) § 274B [codified at 8 U.S.C. § 1324b] to mean “an individual’s status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen.” By statute, however, the protection against citizenship status discrimination only applies to certain protected individuals, not to all non-citizens. Protected individuals under § 274B include only U.S. citizens, certain lawful permanent residents who are taking timely steps to become U.S. citizens through naturalization, and persons granted classification as refugees, asylees or temporary residents under IRCA’s 1986 legalization program (assuming that such temporary residents still exist).

The citizenship-status definition should not be expanded to include all non-citizens but only to persons who are protected individuals under INA § 274B. Thus, the definition must be narrowed so that, as revised, it would expressly exclude the following foreign nationals (1) lawful permanent residents who have not timely pursued naturalization, (2) applicants for asylum or refugee status, and (3) foreign citizens in the United States, with or without a particular legal status, who are not “protected individuals” under § 274B.

The Department of Justice (DOJ) offers Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 (1993), as justification for the inclusion of all non-citizens in the proposed definition of citizenship status. That decision, however, is inapplicable because the supposed proposition for which the Special Counsel cites the case is obiter dictum — given that the claimant, Ms. Kamal-Griffin, was a U.S. lawful permanent resident. As a result, this case only provides justification for limiting the class of non-citizens to persons who are statutorily protected against citizenship status discrimination, including lawful permanent residents such as that claimant. In Kamal-Griffin, the Administrative Law Judge stated:

IRCA’s legislative history makes clear that Congress intended the term “citizenship status” to refer both to alienage and to non-citizen status. The House of Representatives Committee on the Judiciary (“Committee”), recognizing the importance of an authorized individual’s right to work, stated its rationale for prohibiting employment discrimination based on citizenship status:

The Committee does not believe barriers should be placed in the path of permanent residents and other aliens who are authorized to work and who are seeking employment particularly when such aliens have evidenced an intent to become U.S. citizens. It makes no sense to admit immigrants and refugees to this country, require them to work and then allow employers to refuse to hire them because of their immigration (non-citizenship) status. Since Title VII does not provide any protection against employment discrimination based on alienage or non-citizen status, the Committee is of the view that the instant legislation must do so.

H.R. Rep. No. 682, Part 1, 99th Cong., 2d Sess. 70 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5674. (Emphasis added.)

Clearly, then, Kamal-Griffin stands for the proposition that only narrowly prescribed categories of non-citizens are eligible to assert citizenship status discrimination, namely, lawful permanent residents, refugees and asylees. Accordingly, the definition of citizenship status should be correspondingly narrowed to exclude non-citizens who are not “protected individuals” under § 274B.

Proposed Elimination of Burden on Special Counsel to Prove Animus or Hostility. Among the most pernicious amendments to the current regulation sought by the DOJ in the proposed rule would hold employers liable for citizenship status discrimination if they treat employees or applicants for employment differently based on their immigration status, regardless of whether there is proof of animus or hostility involved. The proposed rule would amend the discriminatory intent requirement by incorporating the term “discriminate” as the term is allegedly now defined in § 274B following enactment of § 421 of IIRIRA in 1996. The proposed rule seeks to clarify that “discrimination means the act of intentionally treating an individual differently, regardless of the explanation for the discrimination, and regardless of whether it is because of animus or hostility.”

The Special Counsel’s position seems to be that the DOJ must merely prove that the employer intended the natural and foreseeable consequence of its actions and that essentially violations can be found on virtually a strict liability basis. That position is incompatible with the current regulation and the cases interpreting INA § 274B. To establish a violation under applicable case law, the Special Counsel must prove that an employer knowingly and intentionally discriminated on the basis of citizenship status.

The regulations interpreting INA § 274B provide:

(a)(1) General. It is an unfair immigration-related employment practice for a person or other entity to knowingly and intentionally discriminate or to engage in a pattern or practice of knowing and intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment-

Because of such individual’s national origin;

In the case of a protected individual, as defined in 44.101(c), because of such individuals’ citizenship status.

28 C.F.R. § 44.200 (emphasis added.) Sections (a)(2) and (a)(3) describe the companion retaliation and documentation abuse provisions, which are defined as “unfair immigration-related employment practices,” subject to the same standard. Id.

The cases discussing the statute and regulations make clear that a specific, discriminatory intent must motivate any alleged violation of anti-discrimination provisions of INA § 274B.

Instructive is the case of  U.S.A. v. Diversified Technology & Services of Virginia, Inc., 9 OCAHO 1095 (2003). In that case, the Special Counsel maintained, just as in the proposed rule, that “intentional discrimination does not require proof that the employer subjectively harbored some special, hostility, toward the protected group, only that the employment decision was premised upon the protected characteristic.” Diversified Technologies, 9 OCAHO 1095. The Administrative Law Judge (ALJ) rejected that analysis, finding instead that

The adverse decision must be shown to have actually been made by reason of, on account of, or on the basis of the protected characteristic. . . . This means at a minimum that there must be a factual basis upon which a rational fact-finder could infer a causal connection; the nexus cannot be established just by a formulaic assertion that the protected characteristic was the reason.”

Id. at 19. (Emphasis added.) The court also ruled:

Congress did not intend that all mistakes in the verification process should give rise to penalties under § 1324b either; by amending 1324(b)(a)(6) in the manner it did, Congress has specifically instructed us that errors in carrying out documentary inquiries for purposes of § 1324a compliance can now be penalized under § 1324 only where there is a showing that there actually was a discriminatory intent.

Id. at 21 (emphasis added). See also, Ondina-Mendez v. Sugar Creek Packing Co., 9 OCAHO 1085 (2002) (holding that “[t]he addition of the intent requirement means that now an employer may avoid liability if the employer can present persuasive evidence that its request for additional documents, its refusal to accept verification documents that appear genuine on their face, was made for legitimate reasons not attributable to discrimination.”)

Given these decisions, the proposed rule should be revised so that the Special Counsel must still present direct evidence of a discriminatory intent, hostility or animus in order to establish a violation of the statutory protection against citizenship status discrimination.

Unjustifiable Expansion of Time Periods for Investigation and Deadlines to File Complaints. Under the current regulations at 28 CFR § 44, an individual or an organization may file a charge with the Special Counsel within 180 days of the alleged occurrence of an immigration-related unfair employment practices. If the Special Counsel receives a charge more than 180 days after the alleged occurrence, the Special Counsel must dismiss the charge with prejudice.

The proposed rule would vastly expand the Special Counsel’s investigatory timeframe by granting the Special Counsel discretion to apply the principles of “waiver, estoppel, or equitable tolling” to investigate charges filed beyond the 180-day filing deadline. These expanded “equitable” provisions provide the Special Counsel with immense leeway to obviate the statutory 180-day filing deadline found in INA § 274B.

As provided in § 274B and 28 CFR § 44, the Special Counsel must undertake an investigation of a charge and file a complaint before an administrative law judge (ALJ) within 120 days of receipt of the charge. If the Special Counsel declines to file a complaint, the charging party must file a complaint with an ALJ within 90 days after receipt of the Special Counsel’s letter of determination.

Under the proposed rule, however, the Special Counsel will not be bound by the statutory time limits that are applicable to individuals filing private actions. The Special Counsel’s authority to file a complaint based on a charge by a complaining party would be subject to the “equitable limits on the filing of a complaint.” In other words, the Special Counsel would have up to five years to file a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO).

As a practical matter, the elimination of the current deadlines, quite foreseeably, would be extremely burdensome and disruptive to employers who are asked to produce documents for inspection during an investigation — including Employment Eligibility Verification Forms (Forms I-9) — up to five years after an alleged occurrence. Under the current U.S. Citizenship and Immigration Services I-9 regulations, employers are only required to retain Forms I-9 for terminated employees for a maximum of three years after the date of hire or one year after the date of termination, whichever is later.

Even more troubling, the proposed rule would inexplicably eliminate the current 180-day limit within which the Special Counsel may file a complaint alleging an unfair immigration-related employment practice with the OCAHO. In making this proposal, the DOJ does not explain why it is no longer reasonable to continue with the current rule which was found acceptable to the Department in 1987, as shown in the excerpt from the Supplementary Information accompanying the current rule:

Section 44.304 Special Counsel acting on own initiative.

Section 44.304(b) has been amended in the final rule to limit the period of time in which the Special Counsel. on his or her own initiative. may, investigate and file a complaint of an unfair immigration-related employment practice. We believe that requiring a complaint to be filed within 180 days of the occurrence of an unfair immigration-related employment practice is a reasonable implementation of the desire of Congress reflected in 8 U.S.C. 1324b(d)(1), (3), to place a time limit on the actions of the Special Counsel.

52 Fed. Reg. 37402, 37409 (Oct. 6, 1987). (Emphasis added.)

Accordingly, these proposed changes unjustifiably expanding the time periods for investigation and the deadlines to file complaints, should not be adopted. The current rule should stay the same. If in a given case equitable principles ought to be applied to extend these time periods, then the decision to do so should be reposed solely in the discretion of the Administrative Law Judge based on the evidence presented.

Misleading Change of Definition of Charging Party. The proposed rule contains an amended definition of the term “charging party.” It would replace the word “individual” with the term “injured party.” The DOJ maintains that the changed term is merely undertaken “in order to simplify the regulatory text.” The definition of charging party should remain as it now is or be clarified to eliminate the impression, even if only subliminally, that an individual filing a claim has been “injured.” Use of the phrase, “injured party,” will then likely appear in every OCAHO published decision where a person files a claim, even in cases where an Administrative Law Judge has dismissed the claim as unproven. The mere assertion of injury is insufficient to be given the designation of “injured party.” This term in the definition should remain the same or be changed to a neutral term, such as “claimant.”

* * *

For these reasons, Attorney General Lynch, you should reject the Special Counsel’s proposed changes to the current regulations. The changes reflect the unlawful and unfair placement of the government’s finger on the scales of justice. When Congress enacted INA § 274B, and amended it with the enactment of IIRIRA, it could never have been envisioned that the 1996 limitations on the authority of the Special Counsel would be used as justification for a wholesale expansion of governmental power and the regulatory elimination of lawful defenses that employers may assert before an ALJ. The scales of justice are in equipoise. They should remain that way.

Respectfully submitted,

The Alliance of Business Immigration Lawyers

Angelo A. Paparelli, member

international entrepreneurThe Department of Homeland Security, through its component agency, U.S. Citizenship and Immigration Services (USCIS), has issued a proposed regulation to allow a qualified foreign citizen to gain entry and be employed in the United States if he or she will engage in activities that are likely to “increase and enhance entrepreneurship, innovation, and job creation in the United States” with a “start-up” entity.    The USCIS proposed regulation would not change any other means of gaining work permission under the existing employment-based visa categories, e.g., the EB-5 immigrant investment program, immigrant visa classifications based upon, or exempt from, PERM labor certification, or through family-based immigration avenues.

Under the Immigration and Nationality Act, parole (an immigration “term of art” having nothing necessarily to do with the criminal laws) is a discretionary grant of permission to enter the U.S. under narrowly prescribed terms.  Parole is not a formal “admission” to the country but a specially permitted “entry.”  Unlike a green card or work visa — both of which are considered a legal “status” in the United States — parole can be automatically revoked by immigration officials without mandatory notice to the parolee.  USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the U.S. in order to be granted parole; they may not change to a nonimmigrant status within the United States.

USCIS proposes an initial two-year grant of parole to a qualifying “International Entrepreneur,” with one additional three-year renewal allowed.  Under the proposal, the entrepreneurial parolee may work only in a start-up entity formed within the last three years in which s/he (a) will play a “central role in the operations and future growth of the entity,” and (b) owns at least a 15 percent interest.  USCIS also proposes that the parolee’s spouse and children may be given parole entry, and that the spouse can be granted open-market employment authorization.  The entrepreneurial parolee, however, may only be employed by the USCIS-approved start-up entity.  USCIS also proposes to amend its Form I-9 (Employment Eligibility Verification) to allow a start-up entity to accept an original foreign passport and Form I-94, issued by U.S. Customs & Border Protection with the notation “PE-1,” as a “List A” document of identity and employment authorization.

The pre-publication version of the rule and its preamble run to 155 double-spaced pages.  Once it is published in the Federal Register, expected in the next few days, the public will have 45 days to offer comments. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence.  USCIS will review the evidence and give a thumbs-up approval or deny the application with no right of rehearing or appeal.

In order to qualify, the parole applicant must show that the start-up entity has the “substantial potential for rapid growth and job creation.” This can be established through investments from established “U.S. investors (such as venture capital firms, angel investors, or start-up accelerators).” The parole applicant may prove this with evidence that the “entity has received investments of capital totaling $345,000 or more from established U.S. investors with a history of substantial investment in successful start-up entities.”  USCIS proposes that aside from the parole applicant, only U.S. citizens and lawful permanent residents (green card holders) may invest in the start-up. A start-up entity may employ no more than three entrepreneurial parolees, according to the USCIS proposed rule.

Alternatively, the proposed rule suggests that the submitted evidence should include proof of grants or awards of at least $100,000 from local, state or federal government entities that have “provided support for economic, research and development, or job creation purposes.”

Venture capitalists and foreign entrepreneurs — who have waited since November 2014 to see how USCIS would articulate President Obama’s Executive Action announcing a proposed rule — are likely to be disappointed.  They may see the benefit of entrepreneurial parole as too small and too short in duration in return for the effort to establish the proposed rule’s very burdensome and narrow requirements.  Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the realization that the proposed regulation offers no pathway to lawful permanent resident status.

Fortunately, however, if USCIS receives compelling and substantiated comments within the next 45 days, the final rule may become a more viable avenue to jump-start innovation, job creation and economic growth.  Only time will tell.

Preferring words over numbers, I chose the practice of law. Preferring people over numbers, I forsook tax law and opted to practice immigration. How naïve of me to think that numbers could be so easily avoided. Everywhere they confront and torment me.

  • USCIS filing fees soar.Overload
  • Fines for violating I-9 regulations, engaging in prohibited immigration discrimination, and employing unauthorized workers are increased as employers and ICE each try to persuade an administrative law judge of the rightness of their fine calculations.
  • The Labor Department increases H-1B fines increasing them across the board but especially its super penalty (see slides 42-43)  which goes from $35,000 to $50,758 when a prohibited layoff and a violation of the Labor Condition Application regulations happen concurrently.
  • The Labor Department’s Specific Occupational Classifications – a dizzying collection of code numbers and numerical crosswalks – must be mastered to satisfy federal bureaucrats’ unquenchable demands for just the right numbers. For example, the SOC’s numbering scheme must be consulted to (1) determine prevailing wages in H-1B, H-2A, H-2B petitions and PERM labor certification applications; (2) decide whether a worker applying for a long-delayed green card may change career track as long as the new position is in the same or a similar occupational classification as the sponsored position; or (3) demonstrate that an H-1B job is a specialty occupation.
  • In an era of super commuting, Bureau of Census data must be examined to prove that a particular job relocation is within “normal commuting distance,” for purposes of the Labor Department’s definition of “area of intended employment,” thereby to decide (1) if a job relocation requires submission to the USCIS of an amended H-1B petition, or (2) if the DOL will accept an alternate wage survey.
  • Multi-page business plans chock full of numbers must be reviewed and tallied to show that a noncitizen merits an E-2, H-1B, L-1 or EB-5 visa.
  • Economic impact analyses must be studied to see if the tally of inputs (construction costs or operating revenues) produce the requisite EB-5 job-creating outputs of at least ten jobs per investor. Meantime, immigration lawyers must follow the money to determine the lawful path and source of putative E-2 and EB-5 investors’ respective capital contributions.
  • Immigration lawyers must also forecast the baffling forward and backward movement of immigrant visa numbers, allocated by more than 120 countries of birth, as prescribed in an indecipherable agglomeration of statutory provisions governing numerical visa quotas. Likewise, arithmetically based are the estimates of numerical demand for scarce H-1B and H-2 in the annual visa raffles.
  • Back at the office, clients more often than not demand flat fees for immigration legal services, and require lawyers to respond to the proliferation of Requests for Proposals. Calculating what meager set amounts will secure the work, without losing one’s shirt, is a nightmare for numerically-phobic immigrations lawyers. Spreadsheets chocked with numbers must be analyzed to determine the monthly nut and just the right right mix and number of immigration lawyers, paralegals and staff to accomplish the clients’ work while avoiding burnout.

Mama never said there’d be days like these, there’d be days like these, my word-loving Mama NEVER said.

bankruptSeveral widely-publicized actions by the Securities Exchange Commission (SEC), and the inevitable litigation that has piled on in consequence, have pressure-tested the EB-5 ecosystem and found it defective. Simply stated, the system too likely and too often fails.  Sadly, many EB-5 investors, after writing half-million-dollar or greater checks, ultimately have learned that no balances remain in their capital accounts and no green cards land or stay in their own and their family’s wallets.

Stripped of cash and cards, an unacceptable number of EB-5 investors find out that they have been fleeced. This calamity is not necessarily attributable to the ever-present moral hazard of failing to thoroughly investigate a proposed investment, and imprudently placing at-risk funds into an unsound business opportunity.  Rather, the flaw lies in structural and process failures of misfeasant government officials and market participants to take care that EB-5 investors are adequately protected from errant or  unscrupulous promoters, developers, regional-center principals and migration agents, and from sundry Ponzi schemers, garden-variety fraudsters and sophisticated con artists.

No EB-5 stakeholders and the ecosystem itself cannot continue to thrive if too many investors are defrauded of money and the promised permanent residency.   Clearly, a  healthy, sustainable EB-5 ecosystem cannot endure without meaningful investor protections and reliable safeguards that promote real job creation.

Why is this happening?

Culprit number one — thoughtless lawmakers.  The successive Congresses that crafted and amended the EB-5 program surely must have known that some degree of fraud, waste, and abuse are the inevitable byproducts of all government programs. Yet, lawmakers never included investor protections in the enabling EB-5 legislation. Even more appalling, our legislators should have foreseen that foreign investors, many of whom lack rudimentary English fluency or business savvy, would at once be dazzled by the allure of a green card and likely unaware of the risk that the U.S. government’s own EB-5 program would be unsafe.

The Immigration Act of 1990, the law that ushered in the EB-5 program, and follow-on amendments, never authorized federal immigration administrators to debar from program participation blatantly out-of-compliance regional centers, developers, hucksters and their co-conspirators, or to protect investors from the harsh consequences of clearly foreseeable fraud and financial crimes.  On the contrary, Congress knew from the outset that some deals will likely go south because scoundrels might hoodwink investors, or because other investments involve business plans with little likelihood of actual success.

Nonetheless, from inception, the law has provided that conditional residency would end and EB-5 investors brought before immigration judges in deportation proceedings if investments were not sustained — something that’s hard to do if one has been swindled — or the requisite jobs were not created.

Congress should also have known that securities law enforcers and immigration administrators would probably not quickly uncover the shenanigans hiding in some unregistered investments whose job-creating worthiness — by legislative design — would only be determined some two years hence.

Regrettably, Congress never provided for a real-time, on-the-scene watchdog to protect investors’ interests and make sure that promised actions supposedly leading to job creation for U.S. workers would actually happen.

Culprit number two — unaware and insensitive bureaucrats.  As the SEC has acknowledged, it arrived several years late to the EB-5 program, having been oblivious for too many years to the Commission’s established statutory duty to protect investors in all securities transactions, including EB-5 deals. While SEC enforcement of EB-5 investments has fortunately intensified in the last few years and months, the Commission most often will likely play only an ex post facto enforcement role in punishing wrongdoers and trying to make investors whole once a deal has already failed or investors have been hurt, unless a whistleblower or grieving investor surfaces sooner.

So too have immigration administrators been derelict.  Regulations of the legacy agency, the Immigration and Naturalization Service (INS), and the current Department of Homeland Security immigration components — U.S. Immigration & Customs Enforcement (ICE)  and U.S. Citizenship and Immigration Services (USCIS) — offer defrauded investors no relief or even the possibility that discretion might be favorably exercised.  To be sure, USCIS has tasked its Fraud Detection and National Security Directorate to make unannounced site visits to projects and regional centers and called for investor interviews when the issue of removing conditions on residency are to be ultimately adjudicated.  These actions, however, have yet to occur in great numbers, may not be efficacious, or may just be too little too late.

Culprit number three — EB-5 market participants.  The construction, lending and escrow industries — sectors especially active in EB-5 projects —  have long been accustomed to the salutary, sentinel effect of meaningful oversight.  Money doesn’t move from one contracting party to another unless predetermined and mutually agreed conditions are satisfied.  The ever-present risk that funds or assets will be stolen, lost or wasted, or that desired outcomes might not be achieved, can be eliminated or mitigated if a real-time watchdog monitors contract compliance and fulfillment.  The same safeguard could readily be applied for the protection of EB-5 investors and the assurance of job creation — but until now EB-5 market players seemed not to care.  Instead, conflicts of interests continue to abound in the EB-5 industry and wrongdoers still go undetected until it’s too late.

What’s to be done?

All three culprits can expiate their sins if they act together or at least separately to introduce a new participant in the EB-5 ecosystem — the independent fiduciary — a person or firm that would represent the interests of investors in trying to assure the ultimate return of principal, the maximization of profits (once job creation at the requisite level has been confirmed by USCIS), and the ultimate prize — unconditional permanent residence.

An independent fiduciary would act much like a bank officer who decides whether agreed conditions have been satisfied before releasing progress payments of loan proceeds.  The investors’ independent fiduciary could also perform:

  • an auditing function to confirm that required business and accounting records are maintained, and only permissible expenditures are paid,
  • corporate secretary/treasurer functions to make timely disclosures to investors of financial activities, monitor fund administration and job creation/hiring, give notice of the time, date and methodology for investors to vote on corporate matters, and report any significant developments or material changes to the business plan,
  • a watchdog function to confirm that insurance underwriter conditions are fulfilled and required permits and licenses are maintained; and
  • an education and information function to explain to investors the role and activities of the independent fiduciary, and formally confirm to government officials how EB-5 program requirements are met when and as they are due.

Other loss mitigation safeguards could also be established.  These include (a) the expanded availability and acquisition of EB-5 insurance to pay a form of indemnity (the return of the investment) if investor petitions are not approved or conditions on residence are not removed, (b) the addition of other traditional forms of insurance protection (e.g., fidelity bonds, and coverage for errors and omissions, business interruption, directors and officers liability and general liability), and (c) the use of standby letters of credit.

Without eliminating moral hazard, Congress could provide in the forthcoming integrity measures that a regional center’s or project developer’s engagement of an independent fiduciary, purchase of particular types of insurance, and/or arrangement for a standby letter of credit would serve as a good-faith prohibition against the denial or loss of lawful permanent resident status in cases where the SEC, ICE or USCIS determines that EB-5 investors have been defrauded.

USCIS could add similar protections in its (reportedly) soon-to-be-published EB-5 regulations.  The agency could also specify by regulation or policy memorandum circumstances where the exercise of prosecutorial discretion should be exercised and of the full range of its parole authority and employment authorization are granted to defrauded but otherwise admissible EB-5 investors.

Market players should also have “skin in the game” of protecting EB-5 investors.  They should require the engagement of independent fiduciaries and procurement of appropriate insurance coverages or letters of credit that reduce but do not eliminate all investment risk so that USCIS’s at-risk capital requirements are nonetheless satisfied.  Market participants should also recognize that risk reduction will add costs but likely generate overriding cost savings that will redound to the benefit of primary lenders, project developers and regional centers while also attracting migration agents, investment advisors and the EB-5 investors themselves.  Ultimately and ideally, only deals with fiduciary and insurance protections will be marketable.

* * *

Checks and balances — the brainchildren of the Founding Fathers — established our constitutional form of government that has endured for centuries.  One of these features is the protection of minorities against majority power.  So too will a new system of checks and balances protect vulnerable EB-5 investors likely reduce the prospect that investors will write very sizable checks but yield no balances in their capital accounts or place green cards in their wallets.

Woman With Back Pain[Blogger’s Note:  This post is submitted as a necessarily-lengthy formal comment to the November 20, 2015  draft guidance of U.S. Citizenship and Immigration Services, PM-602-0122, interpreting the phrase, “the same or [a] similar occupational classification” as used in the “increased job flexibility” provisions of Immigration and Nationality Act (INA) §§ 204(j) and 212(a)(5)(A)(iv). This comment incorporates by reference the content of all hyperlinked words and phrases below.  

[By email: ope.feedback@uscis.dhs.gov

[Attention:  Hon. León Rodriguez, Director, U.S. Citizenship and Immigration Services

[SUBJECT: Comment of Angelo A. Paparelli to Draft Policy Memorandum PM-602-0122, “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Job Portability, Immigration and Nationality Act (INA) §§ 204(j) and 212(a)(5)(A)(iv), ” as provided in Public Law 106-313, the American Competitiveness in the 21st Century Act (AC21).]

An Immigration Opportunity Lost:
USCIS Stiffens on Job Flexibility

A frisson of fear coursed through me when I learned that U.S. Citizenship and Immigration Services (USCIS) would issue new policy guidance on “job flexibility” — the statutory right of some long-patient green card applicants to change jobs or careers within the same or a similar occupational classification.   Congress introduced this limber possibility in the American Competitiveness in the 21st Century Act (AC21), S.2045 , at a time when the legacy agency, the Immigration and Naturalization Service (INS), still held sway over immigration-benefits decisions.

The better way — APA Notice-and-Comment Rulemaking.  In lieu of USCIS policy guidance, my strong preference would have been that the successor immigration agency pursue notice-and-comment rulemaking under the Administrative Procedure Act (APA). I worried that the more relaxed exercise of issuing draft policy guidance and inviting public comments would become yet another sad episode in the continuing manifestation, particularly in the last ten years, of America’s new form of extra-constitutional government, the Administrative State. Increasingly, the Administrative State — a form of government by bureaucracy “under which [federal] administrative agencies are able to push policy toward their preferences rather than being wholly faithful to their legislative principals” — has become the unwelcome default mode of lawmaking and governance in this era of Congressional impasse.

The Road to Good Intentions. As USCIS forecasted in November 2014 (Item 4 in its list), the forthcoming interpretation would “[p]rovide clarity on adjustment [of status] portability [in order] to remove unnecessary restrictions on natural career progression and general job mobility [and] provide relief to workers facing lengthy adjustment delays.” (Emphasis added.) Despite these soothing words, I foresaw that an admittedly informal “flexibility” practice that had worked reasonably well under a generally relaxed interpretation announced in a series of five agency advisories, e.g., here and here, would ossify in the hands of the current crop of policy formulators at USCIS’s headquarters.  Unfortunately, these fears have come home to roost. As this blog post and comment will show, the November 20, 2015 draft guidance, PM-602-0122, is as stiff and lacking in vitality as a corpse in rigor mortis.

The Pre-AC21 Status Quo. When Congress enacted AC21, it added two provisions promoting “job flexibility” for long-delayed adjustment of status (green card) applicants.  In doing so, the House and Senate tipped their hats to Buddha’s fundamental Law of Impermanence, the precept that, over time, stuff happens. In other words, as William Gladstone, the noted British statesman, reportedly said, “justice delayed is justice denied.”

Congress knew when it passed AC21 that INS decisions on employment-based applications for adjustment of status, the benefit of gaining green card status while in the U.S., were taking far too long.  In a predecessor bill to AC21, the “Immigration Services and Infrastructure Improvements Act of 2000”  (S. 2586), Senator Dianne Feinstein, its lead author, along with several other senators, acknowledged what immigration stakeholders of the era had long known:

[Section 2](a) Findings.–Congress makes the following findings:
. . .
(3) The processing times in the Immigration and Naturalization Service’s other immigration benefits [cases, i.e., other than naturalization applications] have been unacceptably long. Applicants for family- and employment-based visas are waiting as long as 3 to 4 years to obtain a visa or an adjustment to lawful permanent resident status.

(4) In California, the delays in processing adjustment of status applications have averaged 52 months. In Texas, the delays have averaged 69 months. Residents of New York have had to wait up to 28 months; in Florida, 26 months; in Illinois, 37 months; in Oregon, 31 months; and in Arizona, 49 months. Most other States have experienced unacceptably long processing and adjudication delays. (Emphasis added.)

Clearly, Congress recognized when including in AC21 a “Title II” (also entitled, the “Immigration Services and Infrastructure Improvements Act of 2000”) that agency processing delays were forcing indentured adjustment applicants to wait years longer than the targeted 180-day period in the new law’s job-portability provisions:

[Sec. 202](b) POLICY.—It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, . . .

SEC. 203. DEFINITIONS.

In this title:

(1) BACKLOG.—The term ‘‘backlog’’ means, with respect to an immigration benefit application, the period of time in excess of 180 days that such application has been pending before the Immigration and Naturalization Service.

 (2) IMMIGRATION BENEFIT APPLICATION.—The term ‘‘immigration benefit application” [includes] any application . . . to . . . adjust . . . status . . . under the Immigration and Nationality Act. (Emphasis added.)

Thus, the 106th Congress that enacted AC21 clearly knew about inordinate green card delays when it provided “job flexibility” relief to beneficiaries whose adjustment of status applications had been “long pending” — meaning those remaining unadjudicated for more than 180 days.  Thus, it allowed a worker (sponsored for a green card in any one of four employment-based immigrant visa preference categories) to change jobs or employers after the adjustment application had been pending more than six months.  The only AC21 condition imposed, however, is that the new position must be in the “same or [a] similar occupational classification” as the one described in the employer’s labor certification application or immigrant visa petition.

Need for a Regulation. Undoubtedly, publishing a proposed USCIS regulation and allowing formal comment from stakeholders before finalizing the rule would be a welcome approach.  To be sure, prior agency guidance left a few lingering ambiguities requiring clarification and did not establish procedures which could and should be formalized in the rulemaking process.  For example, some adjustment applicants probably remained tethered unhappily to Employer #1 because they feared that USCIS might disagree about job similarity and refuse the long-awaited green card.  Moreover, as I proposed in “‘Parting is Such Sweet Sorrow’: Musings on Adjustment of Status Portability” (Musings), Employer #2 gets a windfall, the hiring of an incipient permanent resident already granted open-market authorization pending the adjudication of the adjustment application.  But Employer #2 might still lose if costly training which it provided is wasted or its project engagements are impaired by an adverse USCIS adjudication on the same-or-similar-job issue.  Even worse, Employer #1 — the firm that did the heavy trudging through the red tape and suffered the time required to traverse trap-laden Department of Labor (DOL) and USCIS rules, incurring legal fees and other costs  en route — becomes collateral damage in the war for talent as it loses the services of the the porting worker.

The Equitable Solution — Cell Mitosis. APA rulemaking could thus provide necessary equitable relief to all three deserving parties (the adjustment applicant and Employer #1 on the one hand, and Employer # 2 on the other) by adopting some variant of the “cell mitosis” theory I proposed in Musings.

Just as cells dividing through mitosis inherit cellular DNA, pipeline immigration benefits could likewise be “inherited.”  If mitosis principles were to be applied, the porting employee and Employer #2  would win because their cellular “inheritance” endows green card status, and in an increasingly overheated labor market, the employment of an in-demand worker.  But Employer #2 should not lose everything, given that the DOL’s test of U.S. worker unavailability for the position in question had already been passed.  Instead, Employer #2 could “inherit” (a) the earlier “priority date,” the place in the immigrant visa waiting line, which Employer #1 had reserved for the departing worker, and (b) the right to petition for a comparably qualified non-citizen candidate to fill the same, now-vacant job and to help the new hire and his or her immediate relatives gain green cards through adjustment of status.  Thus, subject to any waiting period in the green-card queue and the same numerical limits of the immigrant visa quota, the porting employee, his or her equally qualified substitute, and Employers #1 and #2, would ultimately gain salutary immigration benefits.  Why? Because they earned them under AC21 and a flexible, job-flexibility final regulation — a rule well within USCIS’s regulatory authority to prescribe.

To those at USCIS or elsewhere who might argue that Employer #2’s “inheritance,” as I’ve described it, would contravene the DOL regulation, 20 CFR § 656.12(a), prohibiting the “offer [of an approved labor certification] for sale, barter or purchase by individuals or entities,” this blogging promoter of applying mitosis principles in the immigration ecosphere would respond that that horse has already left the barn.  In practical effect, AC21’s portability provisions already refute the DOL notion, also espoused in § 656.12(a), that an approved labor certification is not “an article of commerce.” The statutory and commercially-valuable right of adjustment portability effectively permits Employer #2 to “purchase” (though a “same or similar” job offer accepted by the porting worker) the intangible proprietary right to employ the individual as long as s/he has secured the interim adjustment benefit of a USCIS-issued Employment Authorization Card or another form of work permit.

The Need for Transparency. An APA-compliant proposed rule would also make all stakeholder comments publicly accessible on Regulations.gov, and USCIS would be required to elucidate in writing its rationale for accepting some suggestions and eschewing others. This transparency is unlike the current USCIS practice which provides no access to public comments and no explanation of why stakeholder proposals to change draft guidance were accepted or rejected in the final policy.  Regrettably, this behind-the-walls process of willful obscurantism is likely to apply to the finalized USCIS adjustment-portability policy once the comment period for the November 20, 2015 draft guidance (the Draft) expires on January 4, 2016.

What’s Wrong with the USCIS Draft Memorandum? As a partial remedy to the agency’s opaqueness in declining to publish stakeholder comments on job-flexibility, this blog lists several objections and suggest improvements to the Draft:

1.  The Draft ignores AC-21’s legislative history of abhorrence to immigration case backlogs and the resulting need for job flexibility.  As noted above, Congress clearly saw and tried to mitigate the interrelated problems of bureaucratic delays and the likelihood of changed circumstances.  Delays in adjustment processing had grown unreasonably — up to as long as 69 months.  To lessen the foreseeable risk that changed job circumstances would cause the loss of green-card eligibility, Congress enacted a law which — in the words of USCIS quoted above — would ” [(1)] provide clarity on adjustment [of status] portability[,] [(2)] remove unnecessary restrictions on natural career progression and general job mobility, [and] . . . [(3)] provide relief to workers facing lengthy adjustment delays.”

2.  The Draft cherry-picks an especially strict definition of the word, “similar,” which AC21 left undefined.  Although the USCIS cites Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2002-03 (2012), for the principle that “when a term goes undefined in a statute, an agency ordinarily should ‘give the term its ordinary meaning,'” its proffered Draft violates the “ordinary meaning” principle.  The Draft opts for the online version of a British dictionary, the Oxford English Dictionary (OEM), publicly inaccessible except by paid subscription, which apparently defines “similar” as “having a marked resemblance or likeness.”  USCIS also cites the second definition of “similar” in the American online dictionary, Merriam-Webster.com (MW), to mean “alike in substance or essentials”  — a definition clearly less restrictive than the OEM‘s “marked resemblance” formulation.  The Draft does not explain, however, why it omitted MW‘s first definition of “similar,” to wit, “having characteristics in common : strictly comparable [emphasis added].”  Perhaps the omission is an example of the Administrative State where agencies “push policy toward their preferences.”  This stricter definition, however, would contravene the Supreme Court more recent application of the rules of statutory construction, Utility Air Regulatory Group v. EPA, a 2014 decision which restricted administrative-agency interpretations of statutes in the following words:

Under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,  . . . we presume that when an agency-administered statute is ambiguous with respect to what it prescribes, Congress has empowered the agency to resolve the ambiguity. The question for a reviewing court is whether in doing so the agency has acted reasonably and thus has “stayed within the bounds of its statutory authority.” . . . .

Even under Chevron‘s deferential framework, agencies must operate “within the bounds of reasonable interpretation.”  And reasonable statutory interpretation must account for both “the specific context in which … language is used” and “the broader context of the statute as a whole.” Robinson v. Shell Oil Co.  A statutory “provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme … because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”  Thus, an agency interpretation that is “[inconsistent] with the design and structure of the statute as a whole,” does not merit deference. (Citations omitted; emphasis added.)

Instead of requiring the stricter showing of “marked resemblance,” USCIS should give the phrase, the “same or similar occupational classification,” its ordinary meaning, namely that a job would be “similar” to another if the subject matter expertise required in each of the two jobs, or the stated duties, skills and qualifications, are fairly “comparable.”   Thus, the Shakespearean comparison (“Shall I compare thee to a summer’s day?”) would not withstand a reasonable “comparability” analysis, but an engineer employed in a huge multinational enterprise who morphs in today’s gig economy into a self-employed engineering consultant or a professor of engineering seeking multiple teaching assignments, in most cases should (not the permissive “may” in the Draft) be accorded AC21 job-flexibility benefits.

3. The Draft misapplies and gives undue probative weight to the DOL’s Standard Occupational Classification (SOC) system — a complicated, arbitrary and abbreviated composite of occupational classifications not developed for the legislative purpose of AC21 job-flexibility analysis.   Rather the Labor Department’s Bureau of Labor Statistics (BLS) intended the SOC to permit statistical analyses for use by “Federal statistical agencies to classify workers . . . for the purpose of collecting, calculating, or disseminating data.”   As the BLS explains the SOC system, however, its shortcomings for immigration adjustment job-flexibility analysis becomes apparent:

All workers are classified into one of 840 detailed occupations according to their occupational definition. To facilitate classification, detailed occupations are combined to form 461 broad occupations, 97 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together.

Although the Draft treats the SOC like a veritable Code of Hammurabi, or revered totem (“this memorandum instructs [Immigration Services Officers] on how they may use the [DOL’s] . . .SOC . . . codes”),  USCIS should not prescribe it as the exclusive source of job-similarity comparisons.

4. The Draft fails to offer reasonable alternatives to the SOC.  USCIS should offer a variety of alternative ways in which job-similarity, with the SOC listed as merely one of other acceptable measure of comparability, can be established by the “preponderance of the evidence” standard of proof.  For example, given that USCIS views the DOL as authoritative in the evaluation of job comparisons, then the AC21 flexibility analysis should also allow use of the Labor Department’s easily applied  “substantially comparable” job or position test used in 20 CFR § 656.17(i)(5)(ii) of its PERM labor certification regulation:

A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.

The application of a “substantially comparable” or the equivalent “more than 50%” rule is already familiar to Immigration Service Officers who must routinely apply this test in many other visa categories.  Consider the L-1A nonimmigrant and EB-1(3) tests for intracompany or multinational managers or executives whose employer must show that the foreign candidate has been and will be “primarily” engaged in managerial duties or executive responsibilities.  Similarly, treaty-based E-1 visa applicants must show that the treaty national or entity is “principally”engaged in trade of goods or services between the treaty country and the United States.  USCIS interprets the adverbs, “primarily” and “principally,” as requiring a greater than 50% bright-line test.  Indeed, the “preponderance of the evidence” test applicable in virtually all immigration-benefits decisions is itself a “more than 50%” test.  Furthermore, the “substantially comparable” test is much more easily and quickly decided than the abstruse SOC system.  As 20 CFR § 656.17(i)(5)(ii) notes, the “substantially comparable” measure “can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.”

5.  The Draft expressly supersedes all job-flexibility discussions in five prior INS and USCIS advisories.  By revoking prior guidance, the Draft makes it uncertain whether earlier pronouncements allowing self-employment as an approved basis for adjustment portability, holding that multinational managers or executives can port and/or disregarding as irrelevant any issue of whether Employer #2 can satisfy the otherwise applicable standard of “ability to pay” the wage stated in the labor certification or immigrant visa petition will reappear in the final job-flexibility policy guidance.

6.  The Draft offers no explanation of procedures to tee-up the granting of a request for adjustment of status job-flexibility benefits.  Given the Draft’s revocation of the prior adjustment portability policy memos, USCIS fails to say whether the usual way to invoke adjustment portability — the adjustment applicant’s submission, after having ported, of a letter from Employer #2 demonstrating job similarity — will continue to be required.  The Draft also offers no clue whether USCIS will establish, before a porting occurs, a form-based process for the adjudication of a prospective change of job or employer.  Clearly, USCIS should obviate the need for the current bet-the-green-card procedure whereby the adjudication of job similarity is only available after a change of job or employer has already occurred. Hence, the Draft’s lacunae of guidance on procedures and its dubious over-reliance on the SOC makes job moves by the adjustment applicant still the risky business it has always been.

* * * * *

President Obama and USCIS deserve praise for their desire to help adjustment applicants change jobs or employers more freely.  Unfortunately, however, the agency’s chosen vehicle of movement — an unduly cramped interpretation of AC21’s job flexibility provisions, coupled with its unwarranted fixation on the SOC — will freeze in place AC21’s intended beneficiaries and thereby impair the virtuous economic goal of enhanced worker mobility.  The USCIS should scrap the Draft and publish a proposed job flexibility regulation.