As published in Immigration Daily on March 1, 2018.
Extorting the protectors of the innocent (DACA) and what the future holds – In an attempt to cast himself as mentally sound and show his mastery of the nuances of politics, Donald Trump held a televised meeting with members of Congress on DACA on January 9, 2018, and promised to sign any bill that they sent to him. He then proceeded to extort those interested in saving the protected statuses of the approximate 690,000 DACA recipients in a series of mad tweets decrying any attempt to put together an acceptable bill unless it pushed through his entire anti-immigration package of border wall funding, much tougher immigration enforcement, repealing the diversity visa program, and chopping off most categories of family-based cases. With the failure of the Democratic shutdown of Congress in early February, it has become apparent that no relief bill will pass by March 5, 2018, the ending date of DACA. The Supreme Court’s decision on February 26, 2018, to deny an extraordinary stay of two District Court rulings imposing nationwide injunctions against Mr. Trump’s unilateral stoppage of DACA has given some relief as those with DACA status can continue to apply for extensions of protection and work authorization until the Ninth Circuit Court of Appeals renders its decision and the Supreme Court properly takes up the subject on appeal. Where does that leave the DACA recipients? Not in a good place. After the large amount of congressional attention given to the immigration issue in January and February, there is probably little appetite to take it back up given the period of relief afforded by the Supreme Court and the wasted week allotted to immigration issues in mid-February in which the Republicans tried to box the Democrats into politically unpalatable corners and vice versa. There will only be more appetite if the Republicans suffer huge losses in the midterm elections of November and come to the conclusion that they cannot continue supporting the Trump agenda. So unfortunately, the midterms may turn out to be the crucial moment for DACA proponents to turn out the vote. Other issues on which the Republicans are vulnerable in being close to Trump are assault rifles, the Russia investigation, his constant lying, disregard of sexual harassment claims, chaos in the White House, lack of coherent foreign-policy, etc. Immigration advocates cannot only try to persuade voters on the immigration issue alone regardless of how sympathetic the circumstances of the DACA recipients.
I-485 filing despite U.S.C.I.S. suggesting that such would be improper – In September, 2015, the State Department in the interests of attempting to ensure that many numbers of available immigrant visa numbers would not continue to be wasted, came up with the plan to add a second chart for each month to the visa bulletin so that individuals could begin to prepare and file their cases ahead of their visas becoming available. In this way, U.S.C.I.S. and the US consular posts could complete many more cases before the end of the government fiscal year and use up many more of the available immigrant visa numbers than in past years when unused numbers were lost forever. State then introduced Chart A and Chart B, the “Final Action Date” and “Filing Date” charts respectively. U.S.C.I.S. had a voice in stating that it had the authority to decide what chart could be used for filing cases during any particular month. Therefore the practice has evolved that U.S.C.I.S. announces within 7-15 days of State Department issuance of the bulletin which chart it will allow people to use for filing either family or employment based cases. But a strange phenomenon has occurred that U.S.C.I.S. has not addressed either in policy or in its I-485 adjustment of status form instructions – whether one can properly file where U.S.C.I.S. decides to use the “filing date” chart, but that date is less advanced in a category than the “final action date” chart, and the applicant has a priority date that is already available under the latter chart. An example is the visa bulletin for the month of March 2018 wherein the F-3 category for married sons and daughters of US citizens has final action date availability before December 15, 2005, but filing date availability only before December 1, 2005, and U.S.C.I.S. has instructed the use of the latter chart. An applicant with a priority date of December 8, 2005, would properly wonder whether he or she had the authority to file for adjustment of status during the month. It is clear that under the law pertaining to adjustment of status, applicants are allowed to file once the final action date has been reached as §245(a) of the INA permits adjustment of status filing where there is visa availability. This being the case, U.S.C.I.S. should make it clear in either policy or form instructions that filings are allowed. Failure to clarify means that many who are eligible to file during the month may continue to needlessly wait. Also if U.S.C.I.S. has a contrary view, it should immediately state the reasoning behind its interpretation.
H-1B decisions to mull over – U.S.C.I.S.’s Administrative Appeals Office in two non-precedent decisions on January 25, 2018, gave insight as to how it would look at whether the submitted labor condition application (LCA) corresponded with the H-1B petition, especially focusing on H-1B wage levels. The AAO set forth a five-part examination encompassing the following:
- Whether the petitioner selected the appropriate SOC code for the proffered position after comparing the petitioner’s duties to those provided in the O*Net.
- Whether the petitioner’s experience requirements would warrant an increase in the level of pay.
- Whether the petitioner’s minimum educational requirement as compared to the education requirement contained in Appendix D of the Department of Labor guidance would warrant an increase in wage level.
- Whether the provided job duties as compared to O*Net are generally encompassed by the O*Net description or whether they require special skills or other requirements beyond those listed in the O*Net which would warrant an increase in pay.
- Whether any supervisory duties warrant a higher wage level.
The AAO sustained one of the appeals (Matter of B-C-, Inc., ID #1139516 (AAO Jan. 25, 2018)), and in the one denied (Matter of G-J-S-USA, Inc., ID #1182139 (AAO Jan. 25, 2018)) pointed out that the petitioner’s stated minimum education requirement was a Masters degree in finance or related field whereas the requirement contained in Appendix D indicated that the usual education level was a bachelor’s degree. The decisions are a welcome relief in showing the direction that the agency will follow in appeals pertaining to LCA wage levels vis-à-vis job duties, especially in the focus on Appendix D. U.S.C.I.S. adjudicators in the past have seemingly believed that any advanced degree merits another point in wage level. The appendix shows that for a number of occupations, a first professional degree, PhD, or Masters should not increase the entry level wage of the position.
Other H-1B scuttlebutt to watch out for – U.S.C.I.S. signaled in a new policy memorandum on February 22, 2018, its intent to make it even more difficult to obtain approvals for outsourced H-1B workers. The memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” gave background on determining the relationship of employer-employee, referenced U.S.C.I.S.’s mission to protect the interests of U. S. workers, stated that a petitioner must establish by a preponderance of the evidence that the beneficiary will be employed in a specialty occupation and for the entire length of time requested, and that the employer will maintain an employer-employee relationship for the duration of the requested period of time. It then went into graphic detail concerning the many pieces of evidence that it might require to prove such, and added that where an H-1B extension is requested for someone who was placed at one or more third-party worksites, the petitioner should establish that all of the H-1B requirements had been met for the entire prior approval period of time. In the same vein in attempting to curb outsourcing, “The Protect and Grow American Jobs Act,” placing new requirements of American worker recruitment on H-1B dependent companies and increasing the salary level for H-1B workers, passed the House Judiciary Committee in November, but will not likely affect this H-1B season because of the lack of legislative days in Congress and its other pressing concerns. The period for submitting H-1B cap cases this year will be from April 2-6, 2018, assuming that the 85,000 figure is reached within that time. Most practitioners believe that there will be fewer H-1B filings this year due to discouragement of the Trump administration, the many requests for further evidence (RFEs) to H-1B filings in 2017, numerous denials, and the expected strict scrutiny of petitions this year. The silver lining is that with the lesser expected numbers of petitions, the chances of being selected will rise. U.S.C.I.S. has already announced that it does not anticipate that premium processing will be suspended for non-H-1B petitions, and there will be a short suspension of premium processing for H-1B cap subject petitions. In 2017, premium processing for both was suspended for months. It also stated that it was not anticipating any procedural changes for the H-1B cap season.
Planning your litigation according to the circuit court – Sometimes an attorney has the opportunity to pick the forum for immigration court, and may wish to take full advantage to better litigate his or her client’s future case if he or she knows that a critical element may depend upon that person’s state of residence. Clients are often willing to move across state lines if doing so would help their cases. Two recent cases illustrate the importance of residence. A Board of Immigration Appeals decision, Matter of Castillo Angulo, 27 I & N Dec. 194 (BIA 2018), focused on the issue of admission “in any status” to qualify for LPR cancellation of removal in establishing the required continuous presence in the US for seven years. The Board held that in this case arising in the Ninth Circuit (covering Alaska, Washington, Montana, Idaho, Oregon, California, Nevada, Arizona, and Hawaii), an alien who was “waved through” a port of entry had established an admission “in any status” within the meaning of the law, but that this interpretation only applied for cases in the Fifth (covering Louisiana, Mississippi, and Texas) and Ninth Circuits and that otherwise, an alien had to prove that he or she possessed some form of lawful immigration status at the time of admission from which to count the seven years. A First Circuit case, Pereira v. Sessions, No. 16-1033 (First Circuit, 7/31/17) illustrated the stop time rule’s applicability where a notice to appear (NTA) in the immigration court did not contain the date and time of the alien’s initial hearing. Under the stop time rule, an alien’s period of continuous physical presence ends for purposes of cancellation of removal when he or she is served with an NTA. The First Circuit believed that the lack of date and time did not nullify the stop time rule. But in contrast, the rule in the Third (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands) and Ninth Circuits would hold the other way. Although the government may decry the reliance on circuit law in some cases citing Brand X (National Cable & Telecomm. Ass’n v.Brand X Internet Test Servs, 545 U. S. 967 (2005)) that the BIA may adopt different interpretations of ambiguous provisions of the immigration laws despite contrary court decisions, and that those interpretations, if reasonable, are entitled to deference, exploring differences in rulings in the circuit courts where the attorney knows what will be a critical issue may mean the difference between the client being allowed to stay or being removed.