As published in the Immigration Daily on April 26, 2021
Change in case flow processing before the immigration courts
The new revised EOIR policy memorandum, “Case Flow Processing before the Immigration Courts,” on April 2, 2021, represents a vast improvement over the predecessor memo of November 30, 2020, which forced affected attorneys between December 1, 2020 –April 1, 2021 to lump in applications for immigration relief with their initial pleadings even if they contested removability. The new trend in case flow processing is to do away with most master calendar hearings (where attorneys in non-detained cases put in their representation at least 15 days ahead of the date of hearing) by the immigration court vacating the date and sending a scheduling order for the parties to present further papers. The difference between the two memoranda was the November version setting deadlines for the filing of written pleadings, any evidence related to the charges of removability, and any applications for relief. That forced attorneys not only to do much more work, but to be very mindful of what was put down in relief applications to ensure that they did not in any way contradict written pleadings that the respondent was not removable. The new policy makes it fairer by first deciding the question of removability. After vacating the master calendar, the court now sends a scheduling order for 30 days for written pleadings and any evidence related to the charges of removability. By motion, parties can request a master calendar hearing or an extension of the filing deadlines. Once written pleadings and evidence on removability have been received, the parties have 20 days to file a response with the court. The immigration court then first decides the issue of removability, issuing a scheduling order for submission of additional supplementary briefing or evidence regarding removability, or scheduling a hearing on removability. Where removability is established, the court sends the parties the written removability determination and a scheduling order with deadlines for applications for relief along with supporting documents, and usually the deadline is 60 days from the date of the order sustaining the removability charge.
The April policy memorandum allows attorneys contesting removability to feel that they are not being squeezed into a box in which they wind up doing much work in a short amount of time which may be totally unnecessary if their clients are not removable, and work that in some cases may cast doubt on the attorneys’ arguments that their clients are not removable.
Sworn statement sample without notary in the time of pandemic
It is a truism that sworn statements are given more weight than unsworn statements in any proceeding. But in the pandemic, there is a true hesitancy in going into a building and meeting with someone just to have a paper or papers notarized. What can be done in an immigration context? We do not know the practice of other firms, but have taken to advising our clients that notarization may not be strictly necessary, and encourage in situations of hesitancy that they use the language, “I certify, swear, or affirm, under penalty of perjury under the laws of the United States of America, that the information in this affidavit is complete, true, and correct.” I note that the language is taken from the USCIS G-639 Freedom of Information/Privacy Act Request form.
Keeping F-2B categorization when petitioner naturalizes – please identify a central location.
People naturalize, but maybe not to the benefit of an adult child waiting for US immigration. In former times where they submitted F-2B petitions for unmarried children over the age of 21, the children could lose a year or years when the petitioners naturalized, automatically moving the petitions from F-2B to the F-1 category of adult children of US citizens. Currently under the May 2021 visa chart, immigrant visas are available for natives of most countries of the world (except Mexico and the Philippines) where F-2B petitions were filed prior to 8/15/15 while F-1 availability is only for petitions filed before 10/22/14. Fortunately, there is the opt-out provision for the adult children under Section 6 of the Child Status Protection Act which allows them to opt out and remain in the F-2B category. The opt-out requires the son or daughter to file a written statement with the “Attorney General” that he or she elects not to have such a conversion occur (or if it has occurred, to have such conversion revoked). The question remains in many cases – who do you notify? The “Attorney General” in immigration parlance generally refers to DHS and in this case to its USCIS component, but the difficulty is that there is no central location where the notification is to be made. So here is a suggestion to the agency – identify a central location. For most paper filed I-130 petitions, getting a message to the appropriate hands on a pending case is next to impossible. For approved petitions, the approving Service Center wants nothing more to do with the case since it already approved the petition. For cases that have been transferred overseas, USCIS overseas offices have largely closed. So most requests to USCIS at any location go unanswered. People to our understanding have brought proof of having sent the statement to either USCIS or the National Visa Center or the US consulates and embassies themselves to the immigrant visa interviews in the hope that such would suffice. It would be helpful for USCIS have a set procedure that people could follow.
H-1B computer case treatment this year
This is the year that H-1B computer cases should be easier for practitioners to handle and not be the magnet of as many RFE’s (Requests for Evidence) and denials as in the past. The confluence of the policy memorandum of USCIS on June 17, 2020, rescinding two prior policy memoranda relating to the employer-employee relationship and the requirement for contracts and itineraries involving third-party websites, and the winning of Innova Solutions v. Baran, No. 19-16849 (9th Cir. 2020), a case on what constitutes a specialized occupation, has brought about the following:
- PM 602-0114, “Rescission of Policy Memorandum,” the policy memorandum, rescinded the 1/8/10 memo, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference to AFM chapter 31.3 (g)(16)), page 270/6.2.8 (AD 10-24),” and 2/22/18 memo “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157.” Under the 2020 memo –
- In adjudicating whether an employer-employee relationship exists, an officer should consider whether a petitioner has met at least one of the factors under 8 CFR 214.2(h)(4)(ii) of “hire, pay, fire, supervise, or otherwise control the work of.” The memo says that H-1B petitioners are required to submit the LCA and a copy of any written contract between the petitioner and beneficiary or a summary of the terms of the oral agreement if a written contract does not exist, and that depending upon the content of such documentation, it may establish the employer-employee relationship.
- The petitioner has the burden of proof to establish that a bona fide job offer exists at the time of filing and that the petitioner will employ the beneficiary in a specialty occupation. If the petitioner’s attestations and supporting documentation meet the standard, then the officer should not request additional evidence and should approve the petition provided that all other eligibility requirements are met by a preponderance of the evidence.
- H-1B petitioners are not required to submit contracts and legal agreements between the petitioner and third parties.
- Evidence of specific day-to-day assignments is not required to establish that the position is in a specialty occupation although the petitioner may choose to provide such evidence.
- An officer may limit the validity of an approved H-1B petition to a shorter period of time, but the decision must be accompanied by a brief explanation as to why the validity period has been limited.
- In Innova Solutions v. Baran, the issue was whether a computer programmer position constituted a specialty occupation. The authoritative source cited by USCIS in denying the petition, the Occupational Outlook Handbook (OOH), stated that “[m]ost computer programmers have a bachelor’s degree in computer science or a related subject.” The OOH also listed a bachelor’s degree as the “[t]ypical level of education that most workers need to enter” the computer programmer occupation. USCIS seized upon the following OOH passage “however, some employers hire workers with an associate’s degree” in saying that “The OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation,” and that “the OOH also indicates that employers value computer programmers who have experience, which can be obtained through internships.” The H-1B statute and regulations recognize a specialty occupation as one in which the position requires “theoretical and practical application of a body of highly specialized knowledge” and that “[a] baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” The Ninth Circuit flatly rejected the government’s argument in the first circuit court case on specialized occupation supporting the fact that “normal” does not mean “always” – that words like “typical” and “most” cannot be separated from the word “normal.” The court said, “There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. “Typically” and “normally” are synonyms.” Also “While it is theoretically possible that there is “space” between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it.”
- In the aftermath of the decision, USCIS issued a policy memorandum on 2/3/21, PM-602-0142.1 “Rescission of 2017 Policy Memorandum PM-602-0142” repudiating and rescinding the 2017 guidance, “Rescission of the December 22, 2000 Guidance Memo on H-1B Computer Related Positions” in which it had said that the presumption of computer related cases being professional was no longer valid.
Petitioners in this H-1B cap season with March selectees have until June 30, 2021, to submit petitions, and the following months will tell whether the USCIS RFE/denial spotlight will finally move away from the computer sector.