Article: “IMMIGRATION NEWS THAT YOU CAN USE – CHANGE IN CASE FLOW PROCESSING BEFORE THE IMMIGRATION COURTS; SWORN STATEMENT SAMPLE WITHOUT NOTARY IN THE TIME OF PANDEMIC; KEEPING F-2B CATEGORIZATION WHEN PETITIONER NATURALIZES; H-1B COMPUTER CASE TREATMENT THIS YEAR.”

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.

Article: “IMMIGRATION NEWS THAT YOU CAN USE – PUBLIC CHARGE, VENEZUELA/BURMA TPS, AND INTERPRETERS”

As published in the Immigration Daily on March 24, 2021

As we notice that many readers would like to know about immigration developments in small bites rather than large articles, we will begin to write a series of shorter summaries of what we hope to be useful developments in the field:

  1. Public charge – The law has now officially reverted to 1999 and the rules in place until the Trump Administration. The old guidelines as to what were considered means tested public charge benefits only included SSI, Temporary Assistance For Needy Families (TANF), state and local cash assistance programs providing benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting persons institutionalized for long-term care, e.g. nursing homes or mental health institutions. The Trump administration added food stamp program participation (SNAP), Section 8 housing assistance under the housing choice voucher program, Section 8 project-based rental assistance, including moderate rehabilitation, public housing (under the Housing Act of 1937), and federally funded Medicaid (with certain exceptions). All of the Trump add-ons are now out. Readers should also remember that DHS has never considered as public charge benefits the receipt of emergency medical assistance, disaster relief, participation in the national school lunch programs, special supplemental nutrition program for women, infants, and children, the children’s health insurance program, subsidies for foster care and adoption, government-subsidized student and mortgage loans, energy assistance, food pantries and homeless shelters, and Head Start.
  1. Public charge – Financial joint sponsors have much less to fear from intrusions or attempts by city, state or federal governments to intimidate them and to claw back monies that the entities have expended on means tested public benefits for persons being sponsored. Before the Trump administration, the issue of claw back had been largely settled on the side of joint sponsors as it was unpopular the few times that it was tried when claw back suits were filed. The Trump administration on the other hand made fierce attacks on family-based financial sponsorship. It first announced in a May 23, 2019 “Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens,” that it would go after sponsors, and if a sponsor did not reimburse an agency upon request, the agency could then seek a court order for reimbursement. It next launched a new Systematic Alien Verification for Entitlements (SAVE) initiative in September 2020 encouraging all agencies administering federal means tested public benefits to use the new SAVE sponsorship initiative functionality to manage and report their sponsorship and agency reimbursement decisions. In the same month, the administration placed even more pressure on joint sponsors in a proposed rule, “Collection and Use of Biometrics by US Citizenship and Immigration Services,” that it could collect the biometrics of any sponsor associated with an immigration benefit or request including US citizens. Finally, it published a notice of proposed rulemaking, “Affidavit of Support on Behalf of Immigrants,” on October 2, 2020, to further intimidate potential joint sponsors by requiring them to submit three years tax returns, banking information, credit scores, credit reports, and information on their receipt of public benefits, and past failure to meet support obligations in other cases. The Biden administration issued Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” on February 2, 2021, revoking the 2019 Trump presidential memorandum, and DHS withdrew the affidavit of support notice of proposed rulemaking on March 19, 2021. In its withdrawal, DHS stated that it was aiming to reduce barriers and alleviate burdens on American families who wished to sponsor individuals immigrating to the US within the legal immigration system.
  1. Public charge – Cancellation of the Trump administration’s public charge rules means wholesale changes to the relevant immigration forms, and readers should not be caught short in using the pre-March 10, 2021, forms on or after April 19, 2021. The 3/10/21 edition of the forms must be used on that date barring an extension in the use of the older forms by DHS. Otherwise, usage of old forms brings the penalty of automatic rejection of applications and petitions. Those forms are I-485, I-485 supplements A & J for adjustment of status to permanent residence, I-864, I-864A, I-864W & EZ affidavits of support, I-129 CW and CWR relating to the Commonwealth of the Northern Mariana Islands and both I-539 & I-539A for change/extension of nonimmigrant status. Form I-129 petition for nonimmigrant worker, will also change, but the effective date was changed on March 25, 2021, from 4/19/21 to July 1, 2021.
  1. Public charge – Forms I-944 Declaration of Self-Sufficiency for adjustment of status to permanent residence and DS-5540 Public Charge Questionnaire for immigrant visa processing are both canceled. The I-944 was the more important as use of the DS-5540 had been enjoined by the US District Court for the Southern District of New York on July 29, 2020. With their demise goes the need to provide evidence of health insurance or ability to obtain such upon immigrating along with the torturous putting together of asset items with expert appraisals of worth and documents of education including expert evaluations in some cases.
  1. Public charge – Gone also are forms I-945 Public Charge Bond and I-356 Request for Cancellation of Public Charge Bond which USCIS could impose in questionable cases to require applicants to post bonds beginning at $8100 adjusted for inflation annually to ensure that they would not become public charges.
  1. Public charge – Altogether, good riddance to the above rules, and financial sponsors should no longer be as afraid to guarantee the support of family-based immigrants.
  1. Venezuelan/Burma (Myanmar) TPS – Temporary protected status will be given to all eligible nationals of Venezuela and Burma in the country since at least March 9, 2021 and March 11, 2021 respectively because of the present crises in their countries. Applicants for Venezuelan TPS have already begun to apply as the procedure was set out by a Federal Register notice on March 9, 2021, allowing applications to be submitted from that date until September 5, 2021, while the same cannot be said for Burmese as there has not yet been a corresponding FR notice for Burma. The Venezuelan notice defines eligible individuals as nationals of Venezuela or individuals having no nationality who last habitually resided in Venezuela. Both designations of TPS are for 18 months, with the one for Venezuelans through September 9, 2022. The rules for Burmese will likely be the same as those outlined for Venezuelans that applications for TPS and employment authorization can be filed concurrently. (Advance parole can also be requested, but the notice does not say it can be filed concurrently). Fees are variable dependent upon age and benefits sought. For those 14-65 years of age requesting employment authorization, the fee is $545. Most grounds of ineligibility can be waived, but not those relating to convictions for crimes involving moral turpitude, multiple criminal convictions for which the aggregate sentences to confinement were five years or more, convictions for drug offenses except as related to a single offense of simple possession of 30 g or less of marijuana, for those who engaged in genocide, participated in Nazi persecutions, or are national security threats, were convicted of any felony or two or more misdemeanors committed in the United States, or those that the Attorney General determines took part in persecuting others, where there are serious reasons for believing that the person committed a serious nonpolitical crime outside the United States, where the person is believed to be a member or participant in terrorist activity, or where the person was firmly resettled in another country prior to arriving in the United States.
  1. Venezuelan/Burma (Myanmar) TPS – The Federal Register notice for Venezuela notes that those who already applied for Deferred Enforced Departure may also apply for TPS if eligible and that “USCIS encourages individuals who believe they are eligible for TPS to file for the benefit during the initial registration period announced in this Notice, even if they are also covered by DED, in case they cannot qualify for TPS late initial filing under 8 CFR 244.2 (f) (2) after DD has expired.”
  1. Interpreters at USCIS affirmative asylum interviews – In light of the COVID-19 pandemic and other stated reasons, USCIS on March 22, 2021, extended a temporary final rule that affirmative asylum-seekers having interviews at asylum offices will not be required to bring their own interpreters, and that USCIS will use contract interpreters for the interviews. Previously the practice had been for applicants to bring interpreters and USCIS would have a contract interpreter only monitor the interpretation of questions and answers. Now USCIS will only allow for applicants’ interpreters to be used in situations where the applicant does not speak English or any of the 47 languages for which contract interpreters are available. The 47 languages are: Akan, Albanian, Amharic, Arabic, Armenian, Azerbaijani, Bengali, Burmese, Cantonese, Creole/Haitian Creole, Farsi Afghani/Dari, Farsi-Iranian, Foo Chow/Fuzhou, French, Georgian, Gujarati, Hindi, Hmong, Hungarian, Indonesian/Bahasa, Konjobal, Korean, Kurdish, Lingala, Mam, Mandarin, Nepali, Pashto/Pushtu, Portuguese, Punjabi, Quiche/K’iche, Romanian, Russian, Serbian, Sinhalese, Somali, Spanish, Swahili, Tagalog, Kamil, Tigrinya, Turkish, Twi, Ukrainian, Urdu, Uzbek, and Vietnamese.

Article: “BIDEN PLAN FOR UNDOCUMENTED AND THOSE WITH REMOVAL ORDERS IS GENEROUS”

As published in the Immigration Daily on February 22, 2021

The Biden Administration’s big immigration bill, “The US Citizenship Act”, sent to Congress on February 18, 2021, is expected to draw opposition and faces an uphill climb. In what form it will emerge from Congress if it does remains to be seen. This article will only discuss one part of the bill – the provisions for the undocumented including those with final orders of removal or deportation to apply for status as “Lawful Prospective Immigrants”.

Generally, applicants must be physically present in the US on January 1, 2021, and maintain continuous physical presence from that date until the application is approved although absences of less than 180 days during a calendar year are not to be considered violations of the residence requirement if the absences are brief, casual, and innocent, whether or not the absences are authorized by DHS. Ineligibility grounds are confined to criminal, security, human smuggling, ineligibility for citizenship, child abducting and unlawful voting bars. Deportation or removal orders are not a bar; neither is the two-year home residence requirement restriction for some J-1 visa holders.

Most criminal acts as well as human smuggling, ineligibility for citizenship, child abduction and unlawful voting are waivable.

On crimes, felonies can bar, but state laws classifying offenses as felonies for which an essential element is the individual’s immigration status are not applicable. Most felonies, except for aggravated felonies can be waived except that multiple barring crimes involving moral turpitude can only be waived if the noncitizen has not been convicted of any offense during the 10 year period prior to the application for lawful prospective immigration.

Misdemeanors can also bar, but it takes three or more, and not counted are simple possession of marijuana or marijuana related paraphernalia, any offense regarding marijuana or marijuana related paraphernalia no longer prosecutable in the state of conviction, any offense for which an essential element is the individual’s immigration status, any offense involving civil disobedience without violence, and any minor traffic ticket. A further limiting factor on misdemeanors is that there can be no multiple counting of misdemeanors occurring on the same date and arising from the same act, omission, or scheme of misconduct. Waivers can also be given for misdemeanors on a scale of waiving one if there were no offenses within five years of application, and waiving two if there were no offenses within 10 years of application.

Waiver criteria do not primarily depend upon having qualifying relatives in the country. Humanitarian purposes, family unity, or public interest are to govern waiver decisions. DHS is to consider all mitigating and aggravating factors including severity of the underlying circumstances, conduct, or violation; the length of the individual’s residence in the US; evidence of rehabilitation if applicable; and the extent to which the individual’s removal or denial of application would adversely affect the individual or the individual’s US citizen or lawful permanent resident family members.

Persons who are out of the country having been deported during the Trump Administration beginning on January 20, 2017, can be given a waiver of deportation or removal and the requirement to be physically present in the US on January 1, 2021, and apply for the program. The waiver decision would again be based on humanitarian purposes, to ensure family unity or if it would be in the public interest. Eligibility factors for such a waiver are that the individual was continuously physically present in the US for not fewer than three years immediately preceding the date on which he or she was removed or deported and that the applicant did not reenter the US unlawfully after January 1, 2021.

Deported or removed individuals who sneaked back into the country by January 1, 2021, appear to be eligible for the program.

Lawful permanent residents, persons admitted as refugees or granted asylum, or individuals who are in a period of authorized stay in a nonimmigrant status according to the records of DHS or the Department of State as of January 1, 2021, are ineligible for the program.

Applicants can apply with their family members in a single combined application, and there would be an accompanying petition to classify the dependent spouse or children of the principal applicant. The dependents can be in status. Other classes that can be in status and apply are those in nonimmigrant status solely by reason of §702 of the Consolidated Natural Resources Act of 2008, H-2A farmworkers, persons who have engaged in “essential critical infrastructure labor or services” during the Covid-19 response period, and those paroled into the Commonwealth of the Northern Mariana Islands or Guam who did not reside in the Commonwealth or Guam on November 28, 2009.

Persons who are prima facie eligible to apply will be given a reasonable opportunity along with limited protections if they make the application within a reasonable period of time in that they are not to be removed before DHS makes a decision denying relief; a final order of removal has been issued; and the DHS decision is upheld by a court or the time for appealing for judicial review has expired. An exception to waiting until the end of judicial review for removal is if the order of removal is based on criminal or national security grounds.

To apply, required documentary evidence of ID includes not only traditional past legalization IDs like passport, national identity document, birth certificate/identity card with name and photograph, school ID card with name and photograph and school records, state ID card, Department of Defense uniformed services ID card, any immigration or other document issued by the US government with the name and photograph – but also any other evidence that DHS determines to be credible.

Documents establishing continuous physical presence include any other evidence determined to be credible, sworn affidavits, official records from religious entities confirming participation in a religious ceremony, and the more typical required evidence such as passport entries with US admission stamps, DOJ or DHS documents noting the person’s date of entry, schooling records, employment records, uniform services records, birth certificate for child born in the US, hospital or medical records, auto license receipts or registration, deeds, mortgages, or rental agreement contracts, rent receipts or utility bills, tax receipts, insurance policies, remittance records, travel records, and dated bank transactions.

Upon submission of the application, DHS will not deny the application until it sends out a Request for Initial Evidence (RFI), and the applicant fails to submit the evidence including requested biometric data by the deadline date. If the applicant fails to comply with the request and the application is denied, the individual can submit an amended application or supplement the existing application without an additional fee as long as the amended or supplemented application contains the required information and any fee that was missing from the initial application.

Denied applications can be appealed to an administrative appellate authority to be established or designated by DHS, and administrative appeals are limited to one for each decision. The time for appeal is 90 days from the date of service of the denial unless a delay beyond the 90 day period is reasonably justifiable. Further judicial review is allowed and governed by the rules involving immigration cases.

Approved applicants will be allowed to remain in the US for six years with travel and work authorization. A further extension of six years is possible. Applicants are eligible to apply for adjustment of status to permanent residence after five years of lawful prospective immigrant status.

For those concerned that DHS may share the submitted application information for removal proceedings or other purposes, there is a strong privacy restriction against the sharing of information except to a duly recognized law enforcement entity in connection with an investigation or prosecution of a criminal or national security offense, or for identification purposes of identifying a deceased individual upon request of an official coroner.

This part of the big bill affecting undocumented immigrants is to be fast tracked as the DHS Secretary is to issue a final regulation no later than 180 days after the President signs the legislation into law.

Hopefully the legislation will come to pass as it is long needed not only to bring people out of the shadows and to help reverse the reign of terror fostered by the Trump administration, but to help grow the economy as all serious studies have shown that immigrants-lawful and unlawful-benefit this great country socially, economically, and culturally.

[Please note that this article does not purport to be an extensive article outlining most of the “US Citizenship Act” or even cover all classes eligible to become lawful prospective immigrants. It touches on the major points of the legislation for the undocumented and those with final orders.]

 

Article: “WHAT IS THE BIDEN ADMINISTRATION PLAN FOR H-1B SEASON?”

As published in the Immigration Daily on January 25, 2021

By this time last year, USCIS had already come out with the rules for employer registration for the new H-1B season along with the timetable. At the time of this writing, nothing has been sent by Washington on timing or procedure. It may well be because we have a new administration with a new DHS chief, Alejandro Mayorkas, awaiting confirmation, and no one is certain what the Biden policy will be. His appointment of Marty Walsh, the Boston mayor and affirmed champion of the working people and a former union leader, indicates that President Biden may not be as sympathetic in the H-1B arena as he is in other areas of immigration. Indeed, the White House fact sheet of January 20, 2021 explaining “The US Citizenship Act of 2021” stated as a goal that “The bill… incentivizes higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.”

A look at the H-1B midnight regulations of the Trump administration and their present state may give us an idea of what options and dangers may loom for new cap subject H-1B’s in the upcoming months. There were three related regulations:

  1. The regulation for high wages to be favored in the employer registration selection system, “Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H–1B Petition,” was published on 1/8/21 and slated to go into effect on 3/9/21.
  2. The regulation bringing back the Department of Labor (DOL) rule dramatically increasing wage levels, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United “States,” was published on 1/14/21, and set to go into effect 60 days thereafter (3/15/21). Under the rule, DOL would gradually phase in the new wages over a period of a year and a half, with the first increase to take place on 7/1/21. For H-1B workers who are beneficiaries of approved I-140 petitions as of 10/8/21, the phase-in period for increased wages was extended to 3 ½ years.
  3. The DHS regulation, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” bringing back the court rejected regulation in truncated form and only including the provision making end-user organizations file LCA’s and H-1B petitions (redefining the employer-employee relationship) was published as an advance copy on 1/15/21, still needs to be published in the Federal Register, and if published would not take effect for at least 180 days. (DOL acknowledged on 1/21/21 that the regulation is a nonstarter by withdrawing its supportive Office of Foreign Labor Certifications (OFLC) H-1B Program Bulletin and Wage & Hour Field Assistance Bulletin espousing DHS’s regulation as validating its own interpretation along with withdrawing a notice for publication in the Federal Register announcing and requesting public comments on the interpretation).

Under Biden Chief of Staff Ron Klain’s memo of January 20, 2021, stopping whatever midnight rulemaking could be withdrawn or paused by memo, all pending regulations were to be withdrawn and agencies instructed to consider postponing for 60 days regulations that had been published but not yet implemented. The shutdown memo has the following effects on the three regulations:

  1. As the first and second were published, the agencies must consider postponing them for 60 days since they have not yet been implemented, but whether they will be withdrawn depends upon the new administration’s views on the regulations.
  2. If the administration favors the first two regulations, they could go into effect as scheduled on 3/9/21 and 3/15/21 respectively under one of the memo’s exceptions to 60 days postponement. However, the second regulation would have no effect on this H-1B season as the raising of wage levels would not come into play until 7/1/21, which would be after this year’s H-1B season is over.
  3. The third regulation is definitely to be withdrawn under the Klain memo as it has not been published.
  4. The major questions lie with the first regulation. So far, there is seemingly no direction as to when H-1B season will begin or what the rules will be. While some lawyers believe that H-1B registration must begin on March 1st, that is not a magic date as such was just the date to start accepting registrations for 2020, the first year of implementation for the employer registration system. This year, registrations could begin on 3/15/21 or even 4/1/21, and USCIS would just have 15 or 30 more days of the backend of adjudication, e.g. instead of adjudicating a case on 9/2/21, it may adjudicate on 10/2/21.

There is also no guarantee that USCIS will use an employer registration system this year as it could revert to the former system of all petitioners submitting full H-1B packages in hopes of being selected, but the success of the registration program last year dictates otherwise.

The good news is that President Biden is much more balanced than his predecessor, and any changes should be analyzed, reviewed, and measured rather than produced by mercurial temperament. H-1B petitioners this year should have certainty concerning the OES wage system and stand unaffected by the attempted changes to the definitions of specialty occupation and employer-employee relationship. Indeed, the court victories against the second and third regulations provide H-1B practitioners with more arguments on these issues.

The first regulation’s shifting the odds of selection dependent upon an employer’s ability to pay higher wages to its H-1B workers should not be supported by this administration for many reasons, including the resultant stifling of innovation and promotion of discrimination against smaller sized organizations with specialty occupation positions to be filled, but without deep pockets to increase levels of pay like their larger sized competitors, e.g. large biotech companies willing to pay two or three times the going rate for researchers while smaller ones with equal or superior promise cannot reach that wage level, and so are unable to secure needed scientists, researchers, chemists, and the like.

Article: “The Congressional Review Act and Freeze on Regulations Give Immigrants Hope for Relief ” by Arthur Lee, Esq.

As published in the Immigration Daily on January 11, 2021

Notwithstanding the debacle in the Capitol this past week and fears that an unstable president will unleash actions to further endanger or divide the country during his last nine days in office, the victory of the Democrats in the two senatorial races in Georgia promises hope to immigrants as well as others affected by the steady parade of regulations that the Trump administration has been marching out in the last months.

Some of the regulations that could be canceled under the Congressional Review Act or an immediate regulatory freeze are the H-1B rule tying lottery selection to highest wages offered (86 FR1676 finalized on 1/8/21 with implementation date of 3/9/21); the no traditional administrative closure rule as used by immigration judges and the BIA despite over 1 million plus pending asylum cases (85 FR 81588 in effect on 1/15/21); the DHS/ EOIR joint rule tying eligibility for asylum to health concerns as affecting the security of the US (85 FR 84160 effective 1/22/21); the DHS/DOJ joint rule barring asylum to those who transit third countries without applying for asylum in one of the countries (85 FR 82260 effective 1/19/21); and the USCIS/EOIR rule imposing seven mandatory bars on asylum (85 FR 67202 effective 11/19/20).

  1. The Congressional Review Act:

The Congressional Review Act, established in 1996, allows a joint resolution of Congress to nullify regulations finalized in the last 60 days of the legislative session if such is done in the first 60 legislative days of the new Congress. Now that the Senate is in the hands of the Democrats, a simple majority of both houses of Congress allows a joint resolution of disapproval to be made and signed by the president. This is the expedited procedure envisioned by Congress in 1996 to cancel midnight regulations of the previous administration.

60 legislative days are not the same as 60 calendar days, and although the author does not have complete calendars of the days that Congress was in session in 2020, the look back conceivably affects all passed regulations since August 2020. In looking forward and seeing the Congressional calendar for 2021, and taking into account that changes can be made and that the counting of the 60 days does not begin until January 15, Congress could conceivably pass joint resolutions through April 2021. An example of the applicable timeline is that on March 27, 2017, a Department of Defense, General Services Administration, and National Aeronautics and Space Administration rule amending the Federal Acquisition Regulation (FAR); Fair Pay and Safe Workplaces (81 Fed. Reg. 58,562 (Aug. 25, 2016)) was overturned (see Pub. L. No. 115-11 (March 27, 2017)).

The Act can also be used to nullify other agency memos, guidance documents, statements of policy, and interpretive rules that are in effect rules but were never submitted to Congress. In such case, the General Accountability Office (GAO) would verify that such qualify as rules, and Congress then has 60 legislative days to pass a joint resolution of disapproval. This is another tool by which agency rulemaking without going through the regulatory process during the Trump years can be further nullified. Since a “rule” is not legally a rule without being submitted to Congress, another choice of the Biden administration in that situation would be to publish a notice that the rule not being in effect is being withdrawn or abandoned.

  1. The Regulatory Freeze:

Implementation of a regulatory freeze on January 20, the day of inauguration, would immediately stop whatever regulations have not yet been finalized as of that date. Jen Psaki, a Biden spokesperson, said that the Biden-Harris White House would issue a memo to take effect on the afternoon Eastern time on January 20 to halt or delay midnight regulations, actions taken by the Trump administration that will not have taken effect by Inauguration Day. If it is similar to the memos put out by Rahm Emanuel in January 2009 and Reince Priebus in January 2017, the memo would have three components:

  • Subject to some exceptions for emergencies, no regulation should leave the Office of Information and Regulatory Affairs (OIRA) or agencies to be published in the Federal Register.
  • For regulations sent for formal publication, they should be withdrawn and reviewed.
  • For recent regulations that have been published, temporarily postpone the effective date by 60 days, subject to certain exceptions. In addition, agencies should consider proposing for notice and comment a rule to delay the effective date beyond 60 days.

With reference to published regulations yet not implemented, an agency like DHS could temporarily postpone the effective date of the regulation by 60 days while reopening the regulation for further notice and comment, and upon receiving comments, either withdraw the final rule or extend the effective date of it.

  1. The Dawn of a New Day?

Joe Biden and Kamala Harris have great opportunity early in the administration to capture many goals, especially with Republican legislators not so beholden to Trump and his agenda after the bloodshed and violence incited by the president against the Congress on January 6. Memories are short, however, and action should be quick as Republican legislators voicing outrage now may be less inclined to go against the Trump agenda dependent upon time and Trump’s ability to hold onto his base. Also the Democrats’ hold on power in the Congress is tenuous, one vote in the Senate and a few votes in the House. A major difficulty of introducing any bill related to immigration now of course is the pandemic and the ability to move the legislation in the face of an out-of-control pandemic and so many Americans out of work. The question is also whether the Democrats can have a united caucus in both houses of Congress on immigration issues. Added into the mix on employment-based matters is the willingness of the Biden administration to rescind the Trump changes given that Democrats in the past have been the party sounding the clarion call against foreigners taking jobs in this country. The recent designation of Boston mayor Marty Walsh, a former union leader, to become the Secretary of Labor is not inspiring as he has been described as a “lifelong champion of the working people.” The lessons of the past, however, have shown that the best chances for immigration reform success are in the first days of an administration. So we urge the Biden administration to take its cue from history and act accordingly – not just on the huge ticket items of legalization for 11 million undocumented immigrants and a pathway to citizenship for the Dreamers, but also on the smaller items such as outlined above.

 

Article “BIDEN TO DO LIST – TWO VERY IMPORTANT ITEMS”

As published in the Immigration Daily on January 4, 2021

Before he is inaugurated, Joe Biden should appoint an immigration advisor who has his ear the same way that Stephen Miller has had Donald Trump’s ear during the past four years. The damage to the field of immigration and to humanity that such a close association has had – an appalling number of executive orders, regulations, interpretations, and guidances to the agencies charged with overseeing the border, points of entry, adjudications, immigration court procedures and decisions – can only be undone by a Stephen Miller clone with opposite views and energy who is close to the president. The influence that he has had with the president has been complete including a hand in over 400 immigration executive actions identified by the Migration Policy Institute by July 2020.

On day one of his presidency, Joe Biden should put a freeze on all federal regulations which have not already been implemented. An excellent article by the American Immigration Lawyers Association (AILA) on December 9, 2020, “Trump Policies That May Be Finalized before Inauguration Day 2021” listed a number of regulations that the current administration wishes to finalize before leaving office. Some of them at this point have already been implemented. A portion from the article follows:

The sacrificed lives and continued toll on legal and undocumented immigrants, US citizens and permanent resident parents, children, brothers and sisters, US companies, innovation and the economy demand such attention from Day 1.

Without an immediate freeze, implemented regulations are harder to retract, especially without control of the Senate. At least some of the above proposed regulations will still be floating around on Inauguration Day. The Congressional Review Act (CRA) could eliminate the implemented regulations by simple resolution, but require a majority of both houses of Congress. With Mitch McConnell in charge of the Senate, that will not happen. January 5, 2021, will determine control of the Senate dependent upon the results of the two senatorial contests in Georgia.

Without an advisor solely dedicated to immigration changes and working hand-in-hand with the president, four years will not undo the damage of the last four years. So far, we have seen two cabinet picks, Susan Rice and Alejandro N. Mayorkas, whose roles impact on immigration. As the Director of the White House Domestic Policy Council, Ms. Rice is to have an expanded role over the administration’s approach to immigration, healthcare, and racial equality. Mr. Mayorkas in his post of Secretary of Homeland Security is directly charged with governing that huge agency of which there are 16 separate agencies including FEMA, the TSA, US Coast Guard, US Secret Service, and Office of the Inspector General. Their portfolios are too large to get down to the brass tacks that the job requires to reverse the work of Trump/Miller. As described in thebulwark.com article, “Uninstalling Stephen Miller,” on December 17, 2020,

As a senior advisor to the president, Miller used his position to focus on immigration while avoiding the congressional scrutiny to which agency officials are subject. Miller frequently circumvented department heads, opting instead to call lower-level staff to implement his orders, reportedly telling them things like “This is the most important thing you will do at your agency.” Without looping in cabinet secretaries, Miller would hold weekly meetings with their subordinates, occasionally helping get promotions for those who shared his beliefs. Even senior officials reported that they frequently felt torn between Miller and the actual head of their agency. Miller and his allies would go “out of their way to vilify all immigrants,” demanding press releases whenever a refugee or immigrant committed a gruesome crime. This tendency of Miller’s was underscored by his correspondence with officials at the Department of Justice (DOJ) to manufacture statistics linking immigrants to violent crime and terrorism—efforts that were the likely impetus for a misleading 2019 DOJ report claiming that immigrants now comprise 64 percent of all federal arrests, having “more than tripled,” between 1998-2018.

The job does not require someone as Machiavellian as Miller. President Biden needs a “horse whisperer” like Miller who can access the president and help coordinate immigration policy with Rice and Mayorkas. An advisor who must pass ideas through the cabinet members to get to the president would not be nearly as effective. Hopefully there will be a successful search for such a person.

Article “S386/HR1044 – Passed By Senate – Goes to Conference with Part That Must be Fixed”

As published in the Immigration Daily on December 7, 2020

S386, the Senate counterpart to HR1044, which would among other items, change the immigration laws to lift the country restrictions on employment based visas and give most of them to India-born but also allow early filing of I-485 applications to adjust status with three year work and travel authorizations, was passed by Senate voice vote on December 2, 2020, but must go back to the House of Representatives because of amendments made prior to Senate passage.

Details on the bill and the changes through December 2019 were covered by our articles in the Immigration Daily, “Amended HR1044 in S386 Happening Now Amid a Flood of Concerns,” 9/23/19, and “Intersection of the Relief Act and Fairness for High Skilled Immigrants Act of 2019,” 1/2/20. Our opposition to the India domination of employment-based immigrant visas in future years at the expense of the rest of the world including China and new restrictions on H-1B and L-1 visas was tempered by the December 2019 amendment allowing early adjustment of status even when an immigrant visa number was not available. We said then that the changes made the favorability quotient of the legislation a closer question. The amended version of S386 expands the time in which adjustment of status can be filed from 270 days after approval of the immigrant visa petition to two years and places restrictions on duties, hours, and compensation along with requiring a confirmation of bona fide job offer or portability with any request for an employment authorization document.

Without going into detail on the other changes, a major concern is Section 9 which is a “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.” This may literally have the potential of affecting hundreds of millions of Chinese nationals and seriously hamstring the incoming Administration’s attempts to conduct relations with the People’s Republic of China. Who does it affect? Who knows? The paragraph underneath the heading appears to target applications for adjustment of status, but the heading of the section “Admission or Adjustment of Status” could be used to bar Chinese nationals applying for immigrant visas or even student visas. Now is the time to eliminate this controversial section which, if the legislation is passed and signed into law, may have to be litigated in court, modified by another law, or clarified by DHS regulations or memoranda. In China, many students have joined the Communist Youth League, which is a common occurrence – much more common than joining the Boy Scouts or Girl Scouts in America. Are they all to be inadmissible and not adjustable in the future? How to interpret the word “Affiliated”? Is the affiliation to be considered the present only or to include the past?

Before the pandemic, students from China comprised over one third of the foreign students studying in the United States. That is because a degree from the US has been seen in the past to be more valuable than degrees from other countries when the students return to China. Any question of inadmissibility could further prevent or discourage Chinese students from entering this country, thus depriving colleges and universities of much-needed revenue and cultural diversity along with the chance of favorably influencing China’s future leaders to American ideals.

Elimination of the section would be most appropriate as membership in the Communist Party is already covered under INA §212(a)(3)(D) that “Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.” Chinese nationals that are or were affiliated with the military forces and would be of concern to the US are likely Communist Party members and would be covered by the INA section anyway. (It should also be noted that many who served in the People’s Liberation Army were not indoctrinated or party members and joined for other purposes like one of our clients who was an artist only and not a party member).

If not elimination, the caption of the section should be changed to be consistent with the underlying text – from “Prohibition on Admission or Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party,” to “Prohibition on Adjustment of Status of Aliens Affiliated with the Military Forces of the People’s Republic of China or the Chinese Communist Party.”

At the very least, a more favorable change should be made to Section 9 in the conference between Senate and House negotiators. Although time is tight and the 116th Congress about to expire, this section should not be ignored in the rush to pass the bill. Same or similar legislation in the 117th Congress should find favor with the Biden administration, especially as one of the bill’s lead sponsors is the incoming Vice President, Kamala Harris, whose mother was Indian.

Article: “The U.S. Government Should Consider Excusing Some Violations of Voluntary Departure Orders During The Pandemic ” by Arthur Lee, Esq.

As published in the Immigration Daily on October 27, 2020

Many deportable aliens utilize voluntary departure as a form of relief that allows them to leave the U.S. on their own in order to avoid the stigma of an order of removal on their record and certain bars to readmission, and eliminate risk of detention prior to departing the U.S.. During ordinary times, it is reasonably easy for a noncitizen who agreed to voluntary departure to leave the country within the time allowed to depart. As such, the penalties for not departing on time are understandably unforgiving. However, the U.S. government should consider leniency toward those who were granted voluntary departure during the time of coronavirus and not able to leave on time despite their best efforts.

Voluntary departure was codified in 1940 to help the U.S. government reduce costs on litigation by giving certain aliens an option to leave with less consequences on their future applications for immigration. Immigration Judges were given authority to schedule the alien’s departure date. When IIRIRA passed in 1996, IJs were divested of discretion in setting departure dates, and could only give a maximum of 120 days to an alien to depart under voluntary departure. This change was made with the goal of speeding up removal proceedings.

If an alien fails to depart by his/her voluntary departure deadline, he/she faces a plethora of harsh penalties including a final order of removal, civil fines of up to $5,000 and ineligibility for, among other things, adjustment of status, further voluntary departure, and cancellation of removal for 10 years. These severe penalties were enacted to deter aliens from violating their voluntary departure orders, and conceived in the context of relatively normal times where it would be easy to find a way out of the United States, and a failure to leave except for severe medical reasons was often viewed as a person flouting court orders and not making a legitimate effort to depart. In 2019, the last “normal” year, for instance, there was an average of 188,901 flights per day around the world. The world was inter-connected, and if one’s goal was just to leave the United States, that was easy to do. This would have certainly been doable in a 120 day period barring exceptional circumstances. By contrast, in 2020, many countries have closed or severely limited their borders to mitigate the spread of the virus. The number of daily flights cratered to approximately 64,523 on March 29 of this year with many cancellations due to travel bans and lack of passenger demand. Last minute cancellations on flights have become very common, and countries have enacted travel bans—some changing with high frequency so passengers could not know for sure whether they would be able to take their desired route until the day they board their flight. During the global peak of the pandemic, many countries did not even allow nationals of other countries to transit through their airports to reach a certain destination. As such, those with connections were often not allowed to board their flights as they would not be able to land at their connecting stops. Also, many countries, such as China, had and continue to have policies discouraging their nationals from moving back home during the pandemic. All of these factors have created an environment in 2020 in which departing the United States is far more difficult than any other time since the introduction of voluntary departure.

Since March 2020, booking a flight out of the U.S. and getting on it successfully has become a challenge layered with not only unpredictability but exorbitant costs. Take, for example, a national of China given 120 days to depart the U.S. in mid-February. In February, China and many other regions of Asia were the coronavirus hot spots. That national, very reasonably, could have decided to wait until the virus came diminished in China before departing the U.S.—as such, he/she would have pushed the booking window to sometime in April-June 2020. Then, once this national saw that the COVID situation in the U.S. became worse than that of China in March-April, then he/she decided to book a flight to China. To his/her dismay, the flight to China was canceled by the airline last minute as the flight operator decided to eliminate some flights due to lack of demand and budget cuts. Or perhaps the Chinese government compelled the airline to cancel that flight as it wanted to reduce flights from outside of the country to prevent the spread of the virus. Regardless, now it is May 2020 and he/she is stuck without a flight. He/she then books a flight to China leaving at the beginning of June, transiting through Taiwan (direct flights to China were already scarce at this time). However, the day before his flight, he/she is informed by the airline that he/she would not be able to get on the flight to transit in Taiwan because Taiwan is not accepting transit passengers. It is late May, and the Chinese national is stuck without a flight. At this point, his/her options are very limited. Chinese nationals are generally not allowed entry to many countries without visas (this is the case for the nationals of many countries). He/she must now fly to a country which will allow a Chinese national without a visa, and is allowing transit or entry during the coronavirus. At this point, all direct flights to China are booked out. All routes through connecting third countries must be researched as to whether they would allow a Chinese national to transit—and flights through countries that would allow transit are all booked out. At this point, the only options for this Chinese national are to fly to a country that would allow Chinese nationals without a visa, and would not bar him/her due to coronavirus restrictions. The option is to pay an exorbitant price to fly to a third country, one in which the Chinese national is a stranger, and in which he/she would not be able to get around. The options are therefore to either jeopardize safety in flying to unfamiliar territories or missing the voluntary departure date.

Voluntary departure was never intended to be such a challenge to a noncitizen to make the date or be barred from most forms of immigration relief for 10 years. Rather, it was seen as a plea deal option to expedite the country’s removal operations and provide a reasonable solution for a noncitizen to depart on his or her own to avoid many of the consequences of a deportation. In 2020 during the pandemic, departure from the country is a significant challenge on its own marred with unpredictability, cancellations at no notice, ever-changing travel rules of all countries, and exorbitant cost. As such, failure to meet the 120 day voluntary departure deadline during the COVID-19 pandemic should be forgivable, and certainly should not carry such harsh penalties as the inability to gain most immigration benefits and relief for the next 10 years, so long as the noncitizen is able to show that he or she undertook a good faith effort to leave on time.

The authority to alleviate the consequences of a violation of voluntary departure under the circumstances lies with Congress which wrote the law, the President through a possible executive order (since we have seen many statutes “trumped” by executive order in the past few years), or by DHS itself in extending an individual’s time to depart the US through devices such as satisfactory departure or deferred departure and divorcing the VD penalty until the end date of the other program’s extension. By whichever method, the present situation, although admittedly not affecting millions of people, should not stand.

 

Article: “Interim Final Regulations (IFRs) on Wage Hikes by DOL and on H-1Bs by DHS and Some of the Flaws of Their Logic”

As published in the Immigration Daily on October 19, 2020

In the last desperate days of the Trump presidency, it becomes increasingly clear that this administration sees the handwriting on the wall and is speeding up its actions to indelibly stamp the nation with Supreme Court confirmation hearings and regulations thrusting the nation further backwards on immigration, race relations, the environment, women’s rights, gay rights, foreign relations, and America’s role on the world stage. It hopes that, with the assistance of the Supreme Court, it will keep the Trump agenda largely intact even if Democrats sweep both houses of Congress and the presidency.

To reward Senate Republicans for their complicity during four years of a misguided and corrupt presidency would not be in the best interests of the country, and voters should vote a straight Democratic ticket across the nation.

The recent use of interim final regulations (IFRs) in the field of immigration instead of the regular process of beginning with a proposed regulation, going through a period of comment, review by the Office of Management and Budget (OMB) and final regulation with another small period of time before implementation, illustrates that this administration intends to continue piling on regulations until the day that Joe Biden takes office on January 20, 2021. The Bidens might have to call on the DC police and National Guard to evict the Trumps.

The Department of Labor (DOL) IFR, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” was published in the Federal Register on October 8, 2020, with an immediate implementation date. Its simple proposition is that wages on the OES system go up blindingly – that in calculating wages, DOL looked at all the wages in a certain occupation in the area of employment and recalculated OES level wages to a higher percentile of where all the wages fall. Level I went from what the 17th percentile is earning to what the 45th percentile is earning; Level II from the 34th percentile to the 62nd percentile; Level III from the 50th percentile to the 78th percentile; and Level IV from the 67th percentile to the 95th percentile. The orchestration of various premises to bring this about was fairly devious and moved in five said and unsaid steps: 1.) Mythologization of H-1B specialty occupation jobs almost to the point of being rare birds requiring more than a regular bachelor’s degree –a specialized bachelor’s degree. 2.) That without higher qualifications than a regular (as opposed to specialty) bachelor’s degree, an alien cannot obtain the visa. 3.) That the current wage system is not accurate since it takes into account wages paid to workers who almost certainly would not qualify to work in a specialty occupation. 4.) That an alien qualifying for an H-1B visa should be paid at the same level as a US worker with the same qualifications, and since most H-1B entry level individuals have a Master’s degree, they should be paid at the same rate as US workers with similar degree and experience. 5.) Entry-level H-1Bs should be paid the same rate as similarly qualified US workers regardless of the actual job that they are performing. This ignores a number of factors such as 1.) The H-1B registration process is skewed to accepting more US Masters and higher degreed individuals than those with bachelor’s degrees. The Trump administration expressed pleasure at changing the formula of H-1B selection, so it seems fairly incongruous to somehow try to imply that aliens and their employers are gaming the system in having Masters level individuals fill entry-level positions or that their possessing a Masters degree suggests that the position is anything other than entry-level. 2.) USCIS ignores its own regulatory list of H-1B amenable fields when it sides even further with DOL that many occupations in these fields can be adequately filled without a directly related specialized bachelor’s degree or its equivalent. 3.) To say that an H-1B candidate with a Master’s degree in an entry position should be paid as much as a US worker with a Master’s degree in a much more complex position defies logic. Extending that proposition to its logical conclusion, an alien just graduated with a PhD in chemical engineering with past experience in the home country who manages to grab a job as a junior chemical engineer would be paid at the same rate as a non-alien senior chemical engineer with a similar PhD. Such thinking is violative in spirit of §212(n)(1)(A) of the INA that employers pay H-1B workers the greater of the actual wage level paid by the employer to all other individuals with similar employment in question or the prevailing wage level for the occupational classification in the area of employment. The statute envisions a connection between the payment for “similar employment” and the occupational classification prevailing wage – not the DOL ignoring the specific job that is offered.

The Department of Homeland Security (DHS) IFR, “Strengthening the H-1B Nonimmigrant Visa Classification Program,” was published in the Federal Register on the same day, but with an implementation date of December 7, 2020. As with the DOL rule, this regulation was rushed through the screening process and review waived by the OMB to ensure that it would appear before the election. The IFR redefines specialty occupation in a way in which very few individuals will be able to qualify by changing the degree requirement for the specialty position from being one that is “normal”, “common”, or “usual” to the occupation to one that is in a “directly related specific specialty” or its equivalent. According to the Occupational Outlook Handbook (OOH), the seeming “bible” of USCIS, however, very few professional occupations can be done by just holders of one specific degree. USCIS lists a number of fields amenable to H-1B occupations at 8 C.F.R. § 214.2(h)( 4)(ii) as:

Specialty occupation means an occupation which [(1)] requires theoretical and practical application of a body of highly specialized knowledge in fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which [(2)] requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

Yet for examples, the OOH holds forth that biomedical engineers can qualify to become biomedical engineers through a related engineering field & electrical or electronics engineers through a related engineering field (engineering); chemistry or materials scientists through a bachelor’s degree in chemistry or a related field (physical sciences); market research analysts through a bachelor’s degree in market research or a related field (social sciences); medical or health services manager through a bachelor’s degree in health administration, health management, nursing, public health administration or business administration (medicine & health); high school teacher through a bachelor’s degree with many states requiring them to have majored in a subject area (education); fashion designer through a bachelor’s degree in a related field such as fashion design or fashion merchandising (arts).

The IFR quotes INA §214(i)(1)’s second requirement of specialty occupation being attainment of a bachelor’s or higher degree in the specific specialty or its equivalent and then describes very restricted circumstances under which any equivalency would be found such as electrical engineering and electronics engineering study for the position of an electrical engineer. However, this is a mean-spirited interpretation of “equivalent” in today’s world of education in which cross subject majors are taught all the time. Use of the words “normal”, “usual”, and “common” more accurately describe the equivalent education that should be looked at to qualify for a specialty occupation.

The rate of denial for new H-1Bs is currently 29% through the second quarter of FY 2020 and only anticipated to increase tremendously under the IFR.

It is expected that multiple lawsuits will be filed against the two IFRs, and there is a report that multiple technology companies have already filed suit on October 16, 2020, against the Department of Labor in a New Jersey federal court. Both rules are expected be challenged as not having gone through adequate review, especially the effect upon impacted parties, and one of the arguments certain to be used against the DHS rule is its improper chain of succession invalidating any actions by the current DHS Secretary, Chad Wolf.

The DHS rule is not retroactive and will only be applied to petitions filed on or after the effective date of the regulation, including amended petitions or petition extensions. It is not to be applied to pending petitions nor to previously approved petitions either through reopening or a notice of intent to revoke.

Of some comfort is the thought that a Joe Biden presidency will be more reasonable to the immigration needs of US businesses, but it is a long time to January 20, 2021, and to however long it will take him and his administration to get around to H-1B questions. Without the Senate, the Democrats will have a difficult time trying to reverse four years of Trump actions in immigration and other areas. Joe Biden will have a lot on his plate immigration-wise as a July 2020 Migration Policy Institute report catalogued 400+ executive actions taken in 3 ½ years by the Trump administration in the field of immigration.

Article: In Provisional I-212 Appeal Win, AAO in Non-Precedent Decision, In Re: 9072079 (AAO 9/24/20),Clarifies What Constitutes After-Acquired Equity, Correct Standard of Adjudication, and Rightful Consideration of Evidence.

Please see attached AAO decision Dated September 24, 2020

We at the law firm are pleased to release a copy of our recent win at the Administrative Appeals Office (AAO) in a non-precedent provisional I-212 decision which decided in favor of our client on three points:

  1. After-acquired equity – The equity of our applicant’s wife being a permanent resident was downgraded in the District Director’s decision as an after-acquired equity and entitled to less weight as his wife had entered the United States with permanent residence following the applicant’s deportation order. We pointed out that the decision conflated the wife’s date of entry with the date of marriage in mistakenly reducing the weight of equities of extreme hardships faced by the spouse and the AAO agreed stating that the record reflected that the applicant had married his spouse 25 years prior to his deportation order and that their four children were born prior to the deportation order.
  2. Standard of adjudication – The District Director found it unlikely that the applicant could establish extreme hardship to his spouse to qualify for a provisional waiver. The AAO pointed out that extreme hardship to a qualifying relative is not a requirement for permission to reapply for admission, and that positive factors may include the applicant’s respect for law and order, family responsibilities, and hardship to the applicant and other US citizen or lawful permanent resident relatives. The AAO further thought that the Director’s considering the unlikelihood that extreme hardship to the spouse could be established in a later I-601A application in his decision was not within the province of the Director as “[a] provisional waiver application is a separate application for relief, and pursuant to the regulation at 8 CFR §212.7(e)(4)(iv), an individual inadmissible under section 212(a)(9)(A) of the Act for having been removed must obtain permission to reapply for admission before applying for a provisional waiver.” The AAO added a footnote that the applicant could seek the I-212 permission “[i]rrespective of whether a waiver under section 212(a)(9)(B)(v) for unlawful presence will be needed after the applicant departs and regardless of whether he obtains a provisional waiver.”
  3. Correct consideration of evidence – Besides the Director’s error on the weight to be given to the equity of the permanent resident wife, the AAO took issue with his not fully considering evidence of significant positive equities in the record such as the applicant’s living in the United States for 30 years, having no apparent criminal history, payment of taxes, assisting community and family members, and the applicant’s statement that if forced to leave the United States, he could never have his entire family together again, that he loved his family and would do anything for them, provided care for his wife, used his construction skills to assist friends and neighbors, and helped his son in his restaurant. Also that the submitted evidence included the spouse’s medical report and psychological evaluation showing that she suffered from a host of medical and psychological problems and the spouse’s statement that the applicant did everything he could to keep her healthy and comfortable, and that she would suffer emotionally if she returned to China because she would miss her family members in the US and feared returning to the country where she was forcibly sterilized. The AAO also noted that the Director’s decision did not consider submitted evidence regarding the applicant’s claimed hardships to his US citizen and lawful permanent resident children and grandchildren as well as to himself which included affidavits of the applicant’s US citizen son and grandson.

Although a non-precedent decision, the AAO decision is instructive in addressing points of law at the intersection of a provisional I-212 application for permission to reapply for admission and a later contemplated I-601A application for provisional unlawful presence waiver.