CONSEQUENCES OF VISA BULLETIN CUTOFF DATE RETROGRESSION UNDER THE CHILD STATUS PROTECTION ACT

By David A. Isaacson

In recent months, the Visa Bulletin issued by the Department of State has shown a “retrogression” of priority dates in a number of Family-based categories. This means that the cutoff date determining which priority dates are early enough to make a visa number available to particular immigrants so that they can move forward with the process of seeking permanent residence, and which priority dates are not early enough, has moved backward in time rather than forward. Some people who were previously eligible – who appeared to have reached the front of the waiting line – will need to wait until their priority date once again becomes current to get a visa number. This retrogression, which affected the Philippines in the December 2010 Visa Bulletin, http://www.travel.state.gov/visa/bulletin/bulletin_5197.html, and then expanded to the cutoff dates for the rest of the world in the January 2011 Visa Bulletin, http://travel.state.gov/visa/bulletin/bulletin_5212.html, has the potential to create complications for those who seek to make use of the Child Status Protection Act (“CSPA”).

The CSPA protects certain applicants from losing their status as children even though they have turned twenty-one. The provision of the CSPA relevant here is section 203(h) of the Immigration and Nationality Act (“INA”), which provides, in part:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
(1) IN GENERAL.-- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) PETITIONS DESCRIBED- The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

Subsection 203(a)(2)(A) refers to a petition filed by a Lawful Permanent Resident (“LPR”) on behalf of his or her spouse or child, and 203(d) provides for “[a] spouse or child” to derive status from the primary beneficiary of various sorts of I-130 and I-140 petitions. In the context of both a “2A” preference petition for one’s child under 203(a)(2)(A), and an application by a derivative child under 203(d), one must determine whether the applicant for an immigrant visa or for adjustment of status still qualifies as a “child” by the time that he or she is eligible to obtain an immigrant visa or adjust status.

Pursuant to INA § 101(b)(1), a “child” ordinarily must be less than twenty-one years old. Thus, there is the possibility of “aging out”—of losing one’s status as a child by getting too old. INA § 203(h)(1) says that, as long as the person seeking to be classified as a child has sought to acquire LPR status within one year of visa availability, their age for these purposes is calculated by taking the age at the time of visa availability, and subtracting the time that the I-130 or I-140 petition was pending. In effect, it is as if the child stopped aging at the time the petition was filed, did not start again until the petition was approved, and then stopped again on the day that a visa number became available. (Beneficiaries of petitions that were pending on September 11, 2001, who would otherwise have aged out after that date, should also be able to subtract an additional forty-five days from their age pursuant to section 424 of the USA PATRIOT Act, as clarified by section 42.42, note 12.8(b.) of Volume 9 of the State Department’s Foreign Affairs Manual, available online at http://www.state.gov/documents/organization/87848.pdf.) If the CSPA-adjusted age under INA § 203(h)(1) is under twenty-one years, then the child – assuming that he or she otherwise qualifies as a “child”, such as by being unmarried – may still adjust status or obtain an immigrant visa under the 2A preference petition, or derivatively on the petition covered by INA § 203(d).

Retrogression complicates matters by creating the possibility that there may no longer be only a single “date on which an immigrant visa number becomes available”, but rather multiple such dates. If, for example, the Visa Bulletin for November 2010 said that a particular priority date was current for the first time, but the Visa Bulletin for January 2011 retrogresses the relevant cutoff date so that this priority date is no longer current, then there will be (at least) two dates on which an immigrant visa number becomes available for someone with that priority date. The first will be November 1, 2010, when the visa number initially became available. The second, following the retrogression, will be the first day of the future month on which the cutoff date finally moves far enough forward that the priority date is current again. In effect, the CSPA is looking to the date on which people pass through the door at the front of a waiting line, but the retrogression has caused many people who had just passed through the door to move backwards and go back outside the door. As the line moves forward, those same people will one day pass through the door yet again, creating a second date of visa availability.

USCIS has said, in a 2008 memorandum from Acting Associate Director Donald Neufeld (updating § 21.2(e) of their Adjudicators Field Manual) that is available online at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/cspa_30apr08.pdf, that “[i]f a visa availability retrogresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140,” then USCIS will “retain the Form I-485 and note the date a visa number first became available.” When the visa number again becomes current, this original visa availability date, having been locked in by the prior filing of the Form I-485 adjustment application, will be used to calculate the CSPA-adjusted age. If, however, a Form I-485 is not filed before retrogression, but only within a year of when the priority date next becomes current, then the CSPA-adjusted age is “determined using the subsequent visa availability date.” (The filing of an I-485 may not be the only way to lock in a CSPA age, since as discussed in a recent article and blog post by Gary Endelman and Cyrus D. Mehta, http://cyrusmehta.com/News.aspx?SubIdx=ocyrus2010101843057&Month=&From=Menu&Page=4&Year=All and http://cyrusmehta.blogspot.com/2010/10/bia-continues-to-reaffirm-broad-sought.html, the Board of Immigration Appeals has indicated in unpublished decisions that one may seek to acquire lawful permanent residence for CSPA purposes without actually filing an adjustment application; that same logic ought to make it possible to lock in a CSPA-adjusted age before retrogression without actually filing the I-485, but relying on this would be very risky.)

Under the USCIS approach, therefore, you can lock in a child’s CSPA age if you file before a retrogression, but otherwise the child will in effect keep aging until the visa number becomes current again, and the child then seeks to acquire permanent residence within a year of this second date on which a visa has become available. The bright side of retrogression under the USCIS approach is that the subsequent visa availability date can give you another year in which to seek to acquire permanent residence, as long as the child’s adjusted age will still be under twenty-one on that second date.

The Department of State has indicated in Volume 9, Section 42.42 of its Foreign Affairs Manual, http://www.state.gov/documents/organization/87848.pdf, that its approach is similar but subtly different. Just as USCIS does with those who have filed an I-485, the Department of State will look to a child’s age at the first visa availability date if the relevant forms – which in the DOS context are the DS-230, Part 1, or a Form I-824 for a child following to join a principal applicant who adjusted in the United States – are filed within a year of that date and prior to the effective date of any retrogression. If not, the State Department will focus on whether the applicant had a full year to seek to acquire permanent residence before the retrogression:

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. If a visa availability date retrogresses . . . within one year of visa availability and the visa applicant has not yet sought to acquire LPR status, then once a visa number becomes available again the one year period starts over. The alien beneficiary’s age under the CSPA is redetermined using the subsequent visa availability date.

9 FAM 42.42 Note 12.7.

This apparent refusal by the State Department to give children a second chance after retrogression, if they had a full year to apply before retrogression and did not take advantage of it, may be stricter than the USCIS policy. Although the USCIS memo does not specifically address this situation, it strongly implies that whether a child has sought to acquire permanent residence within a year of visa availability can be measured from the second visa availability date that comes after a retrogression, regardless of how much time passed between the first visa availability date and the retrogression. That is, under the USCIS approach, if you miss your one-year deadline after the first visa availability date, you may get another chance if a retrogression followed by a second visa availability date occurs soon enough; under the Department of State approach, you will not.

Under either of these approaches, however, failing to move forward with the permanent residence process before a retrogressed Visa Bulletin takes effect can have dire consequences. If a child’s adjusted age is anywhere near twenty-one based on the first date of visa availability, then missing the opportunity to file before retrogression takes effect, and having to wait for a future forward movement to make a priority date current again after the retrogression, can easily lead to the child aging out. It is extremely risky to hope for a second visa availability date coming soon enough after a retrogression to allow a child’s adjusted age to remain under twenty-one. Therefore, it is essential that immigrants involved in CSPA-related cases affected by the retrogressions in the January 2011 Visa Bulletin act quickly to begin the process of seeking permanent residence before January 1.

(This post orginally appeared on www.cyrusmehta.com on December 26, 2010)

KEEPING HOPE ALIVE: PRESIDENT OBAMA CAN USE HIS EXECUTIVE POWER UNTIL CONGRESS PASSES THE DREAM ACT

By Gary Endelman and Cyrus D. Mehta

We are all extremely disappointed that the Senate blocked the DREAM Act on December 18. Even though a majority of the Senate voted for cloture, it was not enough. We need 60 votes for legislation to move forward, even when we have a majority of 55 out of 100. But do we need to wait endlessly for Congress to act? The answer is NO! Faced with unrelenting opposition from a radicalized Republican party that has declared war on immigrants, the Obama Administration is not powerless if it has the vision and the will to act.

We demonstrated in our article Tyranny of Priority Dates, http://scr.bi/i0Lqkz, that it is possible for the Executive to legalize the status of non-citizens without Congressional intervention to achieve something close to CIR. Our proposal for administrative solutions has become all the more relevant now that Congress has not passed the DREAM Act. DREAMERS must still lobby the administration for relief, which is has the ability to grant without going to Congress. Yes, the President does indeed have power to grant benefits administratively, such as parole and employment authorization. The Executive, under INA § 212(d)(5), has the authority to grant parole for urgent humanitarian reasons or significant public benefits. http://cyrusmehta.blogspot.com/2010/04/comprehensive-immigration-reform.html. Talented and dedicated DREAMERS who go to college, serve in the military or perform work of national importance under civilian direction are ideal candidates for invoking § 212(d)(5) under “urgent humanitarian reasons or significant public benefits.” Similarly, the Executive has the authority to grant employment authorization under INA §274A(h)(3), which defines the term “unauthorized alien” as one who is not “(A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General." Under sub paragraph (B), the USCIS may grant an EAD to DREAM kids who inadvertently fell out of status for no fault of their own and who only know America as their country.

The Executive’s use of parole, sua sponte, in such an expansive and aggressive fashion is hardly unique in post-World War II American history. The rescue of Hungarian refugees after the abortive 1956 uprising or the Vietnamese refugees at various points of that conflict comes readily to mind. While these were dramatic examples of international crises, the immigration situation in America today, though more mundane, is no less of a humanitarian emergency with human costs that are every bit as high and damage to the national interest no less long lasting. DREAM kids need not wait an eternity for Congress to come to the rescue.

The government has always had the ability to institute Deferred Action, which is a discretionary act not to prosecute or to deport a particular alien. Deferred Action is purely discretionary. They are both informal ways to allow continued presence in the United States. The INA never mentions deferred action. Neither does deferred action depends upon regulation. Deferred action is not mentioned in Title 8 of the Code of Federal Regulations but only in the old, and now inapplicable, Operations Instructions. The exercise of prosecutorial discretion to grant deferred action status is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport DREAM kids who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students.

Deferred Action has also been applied to battered spouse and children self-petitioners who had approved I-360 petitions under the Violence Against Women Act, so that they could remain in the United States and obtain work authorization. In 2006, Congress, in recognition of this informal practice, codified at INA § 204(a)(1)(k) the grant of employment authorization to VAWA self-petitioners. Deferred Action has also been granted to U visa applicants. More recently, and prior to the passage of INA § 204(l), the DHS provided interim relief to surviving spouses of deceased American citizens and their children who were married for less than two years at the time of the citizen’s death. Mr. Neufeld’s memo, issued on June 15, 2009, provides extraordinary relief to spouses whose citizen spouses died regardless of whether the I-130 petitions were approved, pending or even not filed. Such beneficiaries may request deferred action and obtain an EAD. Then, on October 28, 2009, Congress amended the statute, and created § 204(l) to allow, inter alia, a widow who was married less than two years at the time of the citizen’s death to apply for permanent residence.

How about parole in place? Unaccompanied minors brought as young children to the United States without inspection deserve such relief. Take a look at Section 235(a)(1) of the INA. Know what it says? It reminds us that these DREAMERS who are physically in this country without formal inspection or legal admission can be deemed to be applicants for admission. That is how “parole in place” works. By indulging in the legal fiction that these DREAMERS are actually knocking at the golden door and asking to be let in, the Obama Administration can make them eligible for adjustment of status to legal permanent residen (if they qualify as immediate relatives, such as a spouse of a US citizen) through expansion of the parole mechanism. The USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US.

Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to the DREAM Act and even Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine. While some may argue that there is no express Congressional authorization for the Executive to enact such measures, the President may act within a “twilight zone” in which he may have concurrent authority with Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

There is no bar in law or logic to a decision by the Department of Homeland Security that it will not seek to deport or remove anyone here without color of law who would qualify for DREAM Act benefits. Only in those instances where relief was available would ICE issue a Notice To Appear. Refraining from seeking removal of DREAMERS in the public interest would be entirely consistent with the reasons why the Administration lobbied the Congress so hard in the first place and hopefully will continue to do so. Be prepared for Steve King, Lamar Smith and their nativist allies in the Senate to react. They can threaten to use the power of the purse to curb these regulatory initiatives. Be strong and of good courage! Mr. President, keep your veto pen close at hand. Until we get a new law, justice will have to be squeezed out of the one we have now. The fact that Congress will not act does not mean that the DREAM is dead; it simply is deferred, while we go about its realization by other means.

DREAM ACT AND THE POLLS

Although the House voted in favor of the DREAM Act on December 8, 2010, with eight Republicans also joining with a yea, the prospects of passage of the bill in the Senate look less hopeful but still possible. This hesitancy is bolstered by the fact that the Republican minority in the Senate on Thursday filibustered a crucial defense bill because it also included a ban on discrimination against gays. The hypocritical "don't ask don't tell policy" if you are gay in the military still stands because of the obstructionism of the Republican minority in the Senate where you need 60 votes to survive a filibuster. http://www.nytimes.com/2010/12/10/opinion/10fri1.html?_r=1&hp. This move by the Republicans is even more surprising since a very recent Gallup poll indicates that 67% of Americans support repealing the "don't ask don't tell policy," http://politicalticker.blogs.cnn.com/2010/12/09/poll-two-out-of-three-say-repeal-dont-ask-dont-tell/

The DREAM (Development, Relief and Education for Alien Minors) Act allows children who were brought into the US illegally or who became illegal (as a result of their parents actions) to legalize their status. They should have entered the country before the age of 16 and lived here for five years. DREAM also requires that they must graduate from high school or obtain a GED and demonstrate good moral character. Qualifying children would be given a six year conditional status. During that time, the applicant must have been attending college or serving in the military for at least two years, and must have also passed criminal background checks.

In a clever political move on Thursday, Senator Reid tabled the vote in the Senate until next week so that the Senate could vote on the House bill, which unexpectedly passed on Wednesday. The last time the House passed a major immigration bill was HR 4437, which would have made all undocumented immigrants into felons, including those who assisted them such as pastors and medical personnel. Clearly, the passage of DREAM in the House is a sea change from the passage of HR 4437, which fortunately never went onto become law. http://www.huffingtonpost.com/frank-sharry/dream-act-makes-history-i_b_795118.html. But we do hope DREAM does. A new Gallup poll released Friday reveals that 54% of Americans support the DREAM Act. http://politicalticker.blogs.cnn.com/2010/12/10/poll-54-percent-support-dream-act/ It remains to be seen whether this would change the minds of Republican Senators who had supported prior versions of the DREAM Act, and even a few Democratic Senators (especially from states such as Montana that have no immigrants). Given that DADT was opposed even though more Americans (67%) were in support of its repeal, it remains to be seen whether the Gallup poll on the DREAM Act (with 54% in favor) will have a sway upon the recalcitrant Senators. Within that poll, two-thirds of Democrats say they would vote for the measure, but only 57 percent of independent voters are in favor and even a fewer 34 percent of Republicans say that they will vote for DREAM. In any event, the tabling of the Senate vote was a positive one, and will strenthen the prospects of DREAM's passage, as it will give more time to mobilize support, and the new Gallup poll should help advocates in gaining more votes in the Senate in favor of DREAM.

One cannot go wrong with DREAM. It is clearly the right thing to do. These kids are in the US in an undocumented capacity for no fault of their own. They are as American as any other kids, and share the same dreams and aspirations, only to have their hopes dashed when they realize that they are in a second class undocumented status. Giving these kids a chance will also help the economy by generating more taxable earnings and will also reduce the budged deficit by over $2.2 billion over a 10 year period, http://immigrationpolicy.org/just-facts/dream-act-supporting-us-economy-creating-opportunities-immigrant-students. And won't America ultimately benefit if you give more DREAMers a chance to aspire and succeed through innovation, creativity and industry?

According to Michael Mandel, Chair of the AILA-NY Advocacy Committee, the chances of success in the Senate are"uphill but very possible, " which is what he had heard, and it is critical that we continue to flood Congress with your calls. He urges that you take a few minutes to ask the recalcitrant senators listed below (but who are not yet lost causes such as John McCain) to vote YES on the DREAM Act. Also, keep checking http://www.dreamactivist.org/, http://www.nysylc.org/ and www.thenyic.org/dreamact for updates. Ultimately, in the end, the polls do matter, and the recent Gallup poll should sway these Senators to do the right thing by voting in favor of DREAM. And those Republicans who are afraid to come out in favor of this legislation because of the current anti-immigrant mood in the party caused by the Tea Party movement, they should pay heed to people like Newt Gingrich and Jeb Bush, who realize that the Republican party will be doomed if they alienate themselves from the growing number of Latino voters, http://bit.ly/gL38LJ.

Senate Democrats: 866-967-6018 or 202-224-3121

Conrad (ND)

Dorgan (ND)

McCaskill (MO)

Webb (VA)

Warner (VA)

Landrieu (LA)

Pryor (AR)

Tester (MT)

Hagan (NC)

Senate Republicans: 866-967-6018 or 202-224-3121

Hutchison (TX)

Brownback (KS)

Murkowski (AK)

Brown (MA)

Kirk (IL)

Bennett (UT)

Voinovich (OH)

Snowe (ME)

Collins (ME)

Lemieux (FL)

Lugar (IN)

Bunning (KY)

BALCA'S NEW DECISION IN DENZIL GUNNELS OPENS THE DOOR TO SUBMIT MORE EVIDENCE FOLLOWING A LABOR CERTIFICATION DENIAL

By Cyrus D. Mehta

The Board of Alien Labor Certification Appeals (BALCA) has been extremely active recently issuing several important decisions. Since the PERM labor certification process is so exacting and unforgiving, there is very little opportunity for an employer to correct the record in the event of a mistake, or to supplement the record if the Department of Labor (DOL) objects to some aspect of the PERM application and issues a denial. BALCA recently issued an important decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010), that may provide more opportunities for the employer to provide supplemental evidence following a denial. Indeed, BALCA has made itself relevant again by cutting down on processing times and issuing more decisions. This post is based on a larger article analyzing selected BALCA decisions that will be part of the 13th Annual AILA New York Chapter Immigration Law Symposium on December 1, 2010

As a background, over three years ago BALCA issued HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006), a seminal decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

However, not every mistake can be overcome by invoking HealthAmerica, especially mistakes that are clearly in violation of the regulations. It should also be noted that the beneficial impact of HealthAmerica has been somewhat negated by 20 CFR §656.24(g)(2)(ii), which limits documents accompanying a motion for reconsideration to “[d]ocumentation that the employer did not have an opportunity to present previously to the certifying officer, but that existed at the time the application for permanent labor certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of §656.10(f).” Still, we see BALCA continuing to rule in favor of applicants who have made errors based on fundamental fairness and in recognition of the fact that the PERM process is an exacting an unforgiving one. Indeed, even in Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009), which involved a failure to state the magic language that an employer will accept any suitable combination of experience, training or education on the form, BALCA’s decision was grounded in the fundamental fairness doctrine enunciated in HealthAmerica, especially since there was no place on the ETA-9089 that signaled to an employer to insert this language. However, as noted below, the trend is for BALCA to be far less forgiving and to apply HealthAmerica very narrowly.

BALCA’s most recent decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) sets forth standards under which the CO must consider an appeal as a request to reconsider rather than treat is as a request for review. 20 CFR 656.24(g)(4) provides that “[t]he Certifying Officer, may, in his or her discretion, reconsider the determination or treat it as a request for review.” In Denzil Gunnels BALCA found that the CO abused his discretion by failing to consider the employer’s request as a motion, and instead, treating it as a request for review. Even though the employer filed a “Request for Review of Denial of Form ETA 9089,” it was attempting to submit supplementary evidence, a corrected ETA 9089, after the originally filed ETA 9089 failed to state “yes” or “no” in Section M1. The employer was thus attempting to request a motion for reconsideration, even though it did not say so clearly, and BALCA admonished the DOL indicating that its FAQs did not make clear that if the employer omits the magic word “reconsideration,” it will result in the request being placed in the BALCA queue. Note that if the CO sends the file to BALCA, an employer is unable to correct or supplement the record under HealthAmerica as BALCA is unable to consider new evidence.

BALCA in Denzil Gunnels concluded by setting forth circumstances under which the CO may exercise his discretion properly and the circumstances under which it will be found to be an abuse of discretion:

Step 1. Where an employer unambiguously requests BALCA review, the employer has made a tactical decision to appeal to BALCA and can no longer supplement the record. BALCA, however, left open the possibility that even where an employer uses the words “request for review,” but it is clear that the employer is seeking consideration or where there is ambiguity, BALCA will determine whether the CO abused his discretion by sending the file into the BALCA queue without first treating it as a request for reconsideration and reviewing the supplemental evidence.

Step 2. BALCA recognized that not all supplemental evidence can be accepted, and could be barred under 20 CFR §656.24(g)(2)(ii) where the employer did have a prior opportunity to submit evidence to the CO during an audit. This would be a case, labeled as Situation 1, where “Application is Filed - Audit - Audit Response - Final Determination - Reconsideration based on evidence submitted in audit response." Under Situation 1, BALCA will not find that the CO abused his discretion as the supplemental evidence was squarely barred under § 656.24(g)(2)(ii), and the CO was justified in treating the request for reconsideration as an appeal to BALCA. On the other hand, under Situation 2, "Application is Filed - Denial of Application - Reconsideration based on evidence that would have been submitted as part of the audit response," if a PERM application is denied without an audit, and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. See also CVS RX Services, Inc., 2010-PER-01108 (BALCA Nov. 16, 2010) (CO abused his discretion by referring file to BALCA when employer submitted supplemental evidence, after denial without audit, justifying that a professional journal was appropriate even though the position required a bachelor’s degree with no experience).

Step 3. BALCA further recognized that even in cases that fall squarely under Situation 1, the circumstances of an audit may not have been specific enough to put the employer on notice regarding a specific deficiency. Thus, these cases would be treated under Situation 2, even if an employer received an audit, but argues that it did not receive specific notice, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present supplemental evidence to the CO.

Denzil Gunnels, thus, opens the door for an employer to argue that it may not have received adequate notice of the deficiency and appears to provide a way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred by 20 CFR §656.24(g)(2)(ii). Thus, as an example, in its denial CO objected to whether a Sunday newspaper was appropriate or whether a specific US worker was lawfully rejected or not, one can argue that the generic boilerplate audit notice, even if it asked for evidence of the employer’s recruitment, did not adequately apprise the employer of these potential deficiencies, and can seek to supplement the record through a motion to reconsider. On the other hand, if an employer inadvertently submits an erroneous copy of an advertisement in response to an audit notification for evidence of recruitment, BALCA has held that this situation is the precise type of evidence barred by § 656.24(g). SeeTechdemocracy LLC, 2009-PER-00459, 2011-PER-00058 (BALCA Nov. 16, 2010).

THE SPIRIT IS AT THE AIRPORT, BUT THE FLESH IS IN THE UNITED STATES: UNDERSTANDING PAROLE

By David A. Isaacson

One immigration concept which sometimes gives rise to confusion is that of “parole”. The most common use of parole at present is to allow in, pursuant to an “advance parole” authorization, aliens who have a pending application for adjustment of status under INA § 245 or certain other relief. Perhaps because of how routine it is for an applicant for adjustment of status to seek and utilize advance parole (although it can be extremely dangerous for applicants with previous unlawful presence in the United States), it is easy to forget how unusual parole really is, as a matter of what one might call immigration metaphysics.

Section § 212(d)(5)(A), which provides the authority to parole aliens into the United States temporarily, specifies that parole “shall not be regarded as an admission of the alien” and that after the purposes of a parole have been served “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant to the United States.” According to INA §101(a)(13)(B), as well, “[a]n alien who is paroled under section 212(d)(5) . . . shall not be considered to have been admitted.” Parole can be considered a “lawful immigration status” in some contexts, such as the list in 8 C.F.R. § 245.1(d)(1)(v) of how one may maintain status for adjustment purposes, but it is not an admission. The question arises, if an alien who is paroled into the United States shall not be considered to have been admitted, what should we consider has happened to him?

The Supreme Court has previously described an alien granted parole as “in theory of law at the boundary line” and not “legally ‘within the United States’”. Leng May Ma v. Barber, 357 U.S. 185, 189-190 (1958); Kaplan v. Tod, 267 U.S. 228, 230 (1925). In Leng May Ma, the Supreme Court denied an alien the opportunity to apply for what was then called withholding of deportation (the predecessor of what is now withholding of removal under INA § 241(b)(3)), on the theory that the statutory provision applying to aliens “within the United States” who would face persecution if returned to their home countries did not apply to a parolee.

To make the issue somewhat more understandable to nonlawyers, the author of this posting sometimes explains to clients that in effect their spirit has remained at the airport, and only their body has been allowed into the United States. They may think that they have been allowed into the United States, but actually they have only been allowed to physically wander around the country while DHS decides whether they should in fact be let in.

Appreciating the nature of parole can provide useful insight into otherwise-mysterious immigration phenomena. One which has been obscure to some is the policy announced in a 2000 memorandum of INS Acting Associate Commissioner Cronin, under which certain aliens formerly in H-1B status who re-enter the United States pursuant to a grant of advance parole rather than on their H-1B visa can seek and be granted extensions of stay as H-1B nonimmigrants. Being able to “extend” H-1B status would seem to imply that one had that status in the first place, and some have understood the Cronin memorandum to imply a sort of latent or inchoate H-1B status for parolees with an extant valid H-1B petition on their behalf. But this author believes that a Cronin memorandum “extension” is better understood as delayed admission of the paroled alien into the United States in H-1B status. As the Cronin memorandum puts it, “If the Service approves the alien’s application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.”

If a paroled alien is considered, as a matter of law, still to be waiting at the airport during the period of the parole, then DHS can decide to admit her in H-1B status as a new arrival would be admitted in H-1B status. Just as an alien who has entered on advance parole is often subsequently admitted as a lawful permanent resident by the grant of her adjustment application – analogous to an immigrant who is admitted as an LPR following consular processing of an immigrant visa, except that no actual visa is required – an alien on advance parole can under the Cronin memorandum be admitted as an H-1B nonimmigrant instead.

One interesting implication of this view is that it suggests that unauthorized employment or other violations of the terms of H-1B employment by a paroled alien prior to an application for a Cronin memo “extension” should be disregarded by USCIS. Ordinarily, an admitted alien seeking an extension of stay must demonstrate continuity of status and a lack of status violation, although USCIS does have the authority to excuse a gap in status pursuant to 8 CFR 214.1(c)(4) if “[t]he alien has not otherwise violated his or her nonimmigrant status,” 8 CFR 214.1(c)(4)(ii). But there is no requirement as a matter of statute or regulation that an alien seeking admission as a nonimmigrant have previously maintained status, at least so long as the alien has not accumulated 180 days of unlawful presence as that term is defined in INA § 212(a)(9)(B) (which does not include many status violations). This is why it is sometimes possible for an alien with a valid nonimmigrant visa to resolve a prior status violation simply by exiting the United States, and being readmitted on that visa. Therefore, if we understand a Cronin memorandum “extension” as an admission of an alien whose spirit had remained at the airport, this admission can take place regardless of how the alien may or may not have been employed during the period of parole, for prior failure to maintain status or unauthorized employment would not bar admission as a nonimmigrant. On this analysis, the only difference between an alien who takes a trip outside the United States in order to return on a valid visa, and an alien who obtains a Cronin memorandum “extension”, would be that the latter did not need to leave the country because as a matter of law he or she was never truly here in the first place!

This analysis of the Cronin memorandum process could be useful in the context of an alien seeking adjustment of status under INA § 245(k), which forgives certain employment-based immigrants for periods of unauthorized employment or time out of status totaling less than 180 days. USCIS has asserted, in a July 14, 2008 memorandum from Acting Associate Director Donald Neufeld, that unauthorized employment continues to accrue for these purposes even after the filing of an adjustment application. But in the § 245(k) context, as the Neufeld memorandum acknowledges, the total amount of time under the 180-day clock is measured from the alien’s most recent admission. Since parole is not an admission according to INA § 212(d)(5)(A) and § 101(a)(13)(B) (and according to the Neufeld memorandum), but it appears that an “extension” under the Cronin memorandum is an admission, an alien subject to the Cronin memorandum who has entered on advance parole should be able to reset his or her § 245(k) clock to zero simply by obtaining admission as an H-1B nonimmigrant via a Cronin memo “extension”. The prior time on the § 245(k) clock should then be wiped out just as it would had the alien left the United States and been readmitted as an H-1B nonimmigrant.

The here-but-not-here nature of parole as explained in Leng May Ma and its predecessors has other interesting implications, as well. Strictly speaking, although the author knows of no case in which this argument has been made, Leng May Ma implies that parolees whose parole expires or is revoked cannot then become inadmissible under INA § 212(a)(9) for unlawful presence accrued between that time and their subsequent departure from the United States—because as a matter of law, they were never here! It is difficult to see how an alien can be unlawfully present if he or she is not present.

Some provisions of the INA, such as that in INA § 240A(b)(1)(A) authorizing cancellation of removal for certain nonpermanent residents, refer to an alien who “has been physically present” in the United States for a particular amount of time, which would include a paroled alien whose body is physically within the United States even if as a matter of law the alien is not really here. However, INA § 212(a)(9)(B) does not include such a reference. Although Congress apparently knew how to differentiate between mere physical presence and full-fledged legal presence, in INA § 212(a)(9)(B) they referred to an alien who is “unlawfully present in the United States,” defined further in § 212(a)(9)(B)(ii) as one who “is present in the United States after the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” The even-harsher so-called “permanent bar” provision at INA § 212(a)(9)(C)(i), regarding aliens who enter without inspection after previous unlawful presence, similarly refers to one who is “unlawfully present”. The statute could have referred to one “unlawfully physically present in the United States” or “physically present in the United States after the period of stay authorized by the Attorney General”, but it did not. Thus, the argument can be made that a parolee whose parole has expired or been revoked should not be deemed unlawfully present for purposes of § 212(a)(9)(B)-(C), because under Leng May Ma and Kaplan he or she has never truly come into the United States at all.

DON'T GET TOO COMFORTABLE: STATUS AFTER THE GRANT OF AN H-1B EXTENSION UNDER AC 21

By Gary Endelman and Cyrus D. Mehta

The American Competitiveness in the 21st Century Act (AC 21) has been a great benefit for those whose applications for permanent residency cannot be completed before the sixth year in H-1B status. Under Section 106(a) of AC 21, an individual is able to extend H-1B status beyond six years if, inter alia, a labor certification was filed 365 days prior to the end of the 6th year. In companion Section 104 (c) of AC 21, the H-1B status may be extended for three years at a time if one is a beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for the backlogs in the employment-based first (EB-1), second (EB-2) or third preferences (EB-3).

AC 21 is therefore a generous ameliorative measure against delays in processing of permanent residency application, or even if there are no processing delays, against delays caused by backlogs in the EB preferences. For example, a beneficiary of an I-140 petition in the EB-3 for India may well have to wait for the green card for over a decade, and AC 21 allows the H-1B status to be extended long after the six year limitation has ended, thus allowing the intending immigrant to work in the US and remain in status.

This benefit to extend H-1B status comes to an end if one of the applications that served as the basis for the extension – the underlying labor certification, I-140 petition or adjustments of status application - gets denied. The authors will argue that once the H-1B status is extended under AC 21, it cannot be switched off if there is a denial of the underlying application or petition during either the one year or three year extension period. Such a denial, on the other hand, should only preclude a further H-1B extension under AC 21.

We give great credit to immigration scholar and guru, Naomi Schorr, for bringing to our attention in her recent article, It Makes You Want To Scream: Who Knows? 15 Bender’s Immigr. Bull. 1387 (Oct. 15, 2010), that there is ambiguity in a not so clearly written USCIS memorandum that seems to suggest that the H-1B status may no longer be valid after the denial of the underlying application or petition. In a Memorandum from William R. Yates on a number of AC 21 issues dated May 12, 2005, http://bit.ly/aMjERW, one section indicates that the H-1B extension under AC 21 could be applied during the remainder of the sixth year for whatever time was left for that year plus the additional extra year under AC 21. Question 3 is worth repeating:

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?

Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

We agree with Ms. Schorr that we cannot precisely understand what this question and answer actually means. It could mean, as Ms. Schorr suggests, a situation “where a petition for a sixth year has been approved, but the underlying basis for the extension is denied before the end of the six years? Or, does it reach someone who’s already in an extended period of H-1B status and act to immediately, by operation of law, put an end to that status? If so, it’s certainly a trap for the unwary.”

The authors offer an alternative reading of this question and answer. We note that the Yates Memorandum talks about the extension rather than the revocation of status. It could mean that the USCIS may deny the H-1B after the filing but before it is adjudicated during the sixth year. For example, an H-1B extension is filed requesting an additional three months remaining in the sixth year (based on 3 months of time spent abroad that can be recaptured towards the sixth H-1B year) and an additional 7th year under AC 21. If at the time of adjudication, the USCIS examiner finds that the underlying labor certification has been denied, the extension request can still be granted for an additional 3 months, which is the remainder of the sixth year, but not for the 7th year. Once the USCIS has allowed the H-1B temporary worker to cross the 6th year Rubicon, that decision remains intact even if the labor certification or I-140 immigrant petition later go down in flames. Denial of any of these applications does not mean that the 7th year extension was improvidently granted nor is it a reason to revisit it.

Our reading suggests that once the H-1B extension is approved, it cannot terminate by operation of law based on a denial of the underlying application. Such a radical interpretation, if at all the government meant it that way in the Yates Memorandum, contravenes the plain language of the AC 21 statute and also defies logic with respect to prior USCIS polices regarding how it treats status violations. Section 106(b) of AC 21 states that "[t]he Attorney General shall extend the stay of an alien who qualifies for an exemption under section (a) in one-year increments until such time as a final decision is made” This can be clearly read as allowing H-1B extensions so long as there is no final decision at the time of filing the extension but not after the extension has been granted. Indeed, a later USCIS Memorandum dated May 30, 2008 further interpreting AC 21 by Donald Neufeld, http://bit.ly/c5YV4j, further supports our position. Mr. Neufeld instructs USCIS adjudicators that the State Department visa bulletin regarding whether the priority date is current or not should be checked at the time of filing the H-1B extension. This suggests that if during the three year H-1B extension period, the priority date does become current, the H-1B status continues and will not terminate.

This reading is further supported by the fact that if the Yates Memorandum is construed broadly, the alien would go out of status as soon as the underlying application is denied, even though the alien has the right to continue to pursue it further on appeal within a few days or weeks. If the labor certification gets denied, the H-1B status will extinguish, but then it ought to get revived when an appeal to the Board of Alien Labor Certification Appeals BALCA) is filed within 30 days. If BALCA affirms the denial of the labor certification, the H-1B status will again get extinguished, but the employer has 6 years to seek review in federal court under Chapter 7 of the Administrative Procedures Act and continue to pursue the labor certification beyond the BALCA denial. If an APA action is taken prior to the filing of the next extension request, the H-1B status ought to get revived again.

Under different circumstances, however, H-1B status and any other nonimmigrant status cannot be switched on and off like a light bulb. We wish this were the case, but it is not so. Once an alien falls out of status, say by failing to work for a few months, H-1B status does not get revived when the alien reports back to work. The right way to rectify status is to leave the US and reenter or file a new extension and ask that the status violation be excused under 8 CFR §214.1(c)(4).

Similarly, with respect to three year H-1B extensions under AC 21 § 104(c), the alien "may apply for [the extension] and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon." If the Yates Memorandum also applies to a § 104(c) extension, which the plain reading of the text suggests may not be the case, and if the adjustment of status application is denied, under a literal reading of the Yates memo, the H-1B status comes to an end within the 3 year period. But, pause and take a deep breath. If USCIS denies the AOS, the application may be renewed in a removal proceeding pursuant to 8 CFR § 245.2(a)(5)(ii). And at the time of the renewal of the AOS before the Immigration Judge, the same regulation provides that an applicant does not have to meet the statutory requirements of § 245(c) again so long as she or he met them at the time the renewed application was initially filed. This event, the placing of the alien in removal proceeding, ought to again "turn on" the H-1B status, which if it does, would also be an instant ground to terminate removal proceedings as the alien is in status and should not be removed. Thus, the very act of placing the alien in removal proceedings would automatically give grounds to terminate the removal proceeding. How logical (or illogical) will that be from a policy perspective?

Also, neither the employer nor the H-1B worker may know about the termination of status. It is possible for an H-1B extension under AC 21 to occur with a new employer based on the prior employer’s labor certification or I-140 petition, See On The Edge Of The Precipice – Being Laid Off During The 7th year H-1B, http://bit.ly/cqmC16. If the prior employer yanks the I-140 petition during the three year extension period, and the H-1B is no longer in status, what does this portend for the new employer’s obligation under the Form I-9, Employment Eligibility Verification? What if the H-1B beneficiary files for adjustment of status unwittingly not knowing that his or her H-1B status switched off some time ago and is now not found to be eligible for the benefit?

Clearly, the termination of H-1B status could not have been intended by Congress when it enacted AC 21, otherwise the Congress would have been more explicit about it. Therefore, a sensible reading of both § 106(a) and § 104(c) ought to support the argument that once the AC 21 extension is granted, the H-1B beneficiary is home free until it is time to again request a further extension. Still, as our teacher Naomi Schorr rightly reminds us, there is not much in immigration law these days that is safe from challenge. So, no matter how confident we are that our views on AC 21 make sense, the authors feel it prudent to pay homage to the sage counsel of baseball immortal Satchel Paige: “ Don't look back. Something might be gaining on you.”

PERM AND THE ROVING EMPLOYEE

by Cora-Ann Pestaina

Practitioner to Employer Client: We can certainly assist you in the filing of a PERM application for your employee. Where will the employee be working?

Employer Client: Well, he will work out of his home in New Jersey and additionally at three different client sites in Pennsylvania, New York and Connecticut.

Practitioner: *silent groan* This will require some special attention.

Filing a labor certification for a roving employee is akin to navigating a minefield. One tiny “mistake” and BOOM! It doesn’t matter that there is precious little guidance from the DOL to begin with. The DOL will happily issue you that denial listing in nice, bold print the various “obvious” reasons why you did not draft the advertisement correctly, recruit correctly or use the proper prevailing wage, etc.

A lot of what we now know about filing a labor certification for a roving employee has been learned through trial and error. The above scenario is merely one type of roving employee. The most common type of roving employee is the IT consultant who will not work at the employer’s headquarters but instead will be assigned to one or more known or unanticipated client sites. As described in the scenario above, a roving employee could also work from home and visit various client sites confined to one region or spread throughout the US. The issues surrounding roving employees include ensuring that the advertisements contain all the required language and choosing the location out of which to base the recruitment and the prevailing wage determination and deciding where to post the Notice of Filing.

In the ordinary course, a labor certification is filed in the area of intended employment. The Department of Labor's regulations require an employer to prove through a test of the labor market that there are not sufficient workers in the US who are able, willing, qualified, and available at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. In the case of the roving employee, where the area of intended employment is presently unknown or subject to constant change, it becomes difficult to determine the location where the labor certification should be filed and thus where the recruitment should be performed and the prevailing wage obtained. The statute or the regulations are both silent on this issue. As indicated in a paper analyzing recent BALCA decisions by Cyrus D. Mehta for the AILA New York Immigration Symposium on December 1, 2010, the most recent guidance comes from a decision by the Board of Alien Labor Certification Appeals (BALCA) in Amsol, Inc., 2008-INA-00112. In Amsol, the employer filed several labor certifications listing its address as Casper, Wyoming and the address where the aliens would work as “Casper, WY and any other unanticipated location in the US.” The employer argued, and BALCA agreed, that the employer should be governed by the Employment and Training Administration’s Field Memorandum No. 48-94 (May 16, 1994) § 10, which provided that "[a]pplications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located." In Amsol, BALCA referenced Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007) and pointed out that the mere business presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location. In Paradigm the employer’s office in Erie, PA was not the appropriate location for a labor market test where the offered position involved unanticipated locations because the prevailing wage in Erie, PA was lower than the prevailing wage at the employer’s headquarters in Columbia, MD. Accordingly, at least in the most common case of the roving employee, where a job will involve various unanticipated work sites, the employer’s headquarters is accepted as the appropriate location for filing the labor certification. Following that, it is also therefore acceptable to obtain the prevailing wage determination from that location and to post the Notice of Filing at the employer’s headquarters. In Amsol, it was also important that the employer advertised in a national magazine, demonstrating that the employer did not choose Casper, WY in an attempt to test the market least likely to provide qualified US workers.

The less common issue of the home office has not yet been the subject of a BALCA decision. What should the employer do when the employee works from home in a location that is different from the employer’s headquarters? Thus far, the only DOL guidance can be found in the minutes of a March 15, 2007 DOL Stakeholders meeting which can be found at AILA Doc. No. 07041264. On the subject of the home office, the minutes read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer's headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer's headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee's region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company's headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite.

AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

The DOL’s response to the Stakeholders’ query indicates that the choice is left to the employer. If the employer lists the worksite as the employee’s home then the employer can perform recruitment and also request the prevailing wage from the location of the employee’s home. Alternatively, the employer can list the worksite as the employer’s headquarters and recruit out of that location. However, if adopting this alternative strategy, the employer should be mindful to conduct recruitment that also covers the home office (e.g. recruitment that is national in scope). Additional guidance was also provided in the following question which was asked and answered as follows:

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer's headquarters.

Please see answer to number 19 above.

This guidance also indicates that whenever the job requires work in various locations, the employer may post the Notice of Filing at the company’s headquarters.

But what should the employer do when the employee will work from home, in a location different from that of the employer’s headquarters and will also work from unanticipated locations throughout the US? From the DOL’s response to the Stakeholders’ queries, it would appear that the employer could recruit in the location of the employee’s home. However, in such a case, the employer should take pains to show that it is not filing from the employee’s home location in an attempt to lower the prevailing wage or to minimize US worker applicants. As in the Amsol case, the best course of action would be to obtain prevailing wages for both the employer’s headquarters location and the employee’s home location and ensure that the offered wage exceeded the higher of the two and, also ensure that at least one of the additional three forms of professional recruitment is national in scope. The Notice of Filing can be posted at the employer’s headquarters. The above mentioned Stakeholders Meeting minutes provided further guidance as follows:

21. For purposes of completing ETA-9089, if an employee works from home, what address should be identified in H.1 and H.2--the actual home address of the employee or the address of the employer's headquarters or office from which the employee is based/paid?

Please see answer to number 19 above.

Final Note: When a job is regional, such as an employee working out of a home office but travelling throughout a specific geographic area, the analysis of where to obtain the prevailing wage and recruit can be thorny. Prior to PERM guidance was that the prevailing wage would be determined where the majority of duties are performed. Best practice under PERM would be to use the highest wage within the region/MSA and recruit in the regional edition of a nationwide paper. This gets complicated as there are few nationwide papers with regional editions or newspapers that could be considered regional.

As in the scenario described at the beginning of this article, what if the employer is located in one state, the employee will work from home in another state and also in three other specific states in the region? Again, this issue has not been directly addressed by the DOL. But, employers should ensure that recruitment is performed in the manner best likely to discover qualified US workers. As described above, the employer could recruit from the location of the employee’s home choosing the regional edition of a national newspaper as one form of recruitment; ensure that prevailing wage exceeds the highest of the prevailing wages for each state in which the employee will work; and post the Notice of Filing at the employer’s headquarters.

With regard to roving employees, it is critical that the employer’s advertisement inform US workers that a “home benefit is available” or that the worker “must be willing to work anywhere in the US” or that “travel is required.” Any such requirement must also be included in the prevailing wage request and in Box H.14 on the ETA Form 9089 lest the employer be accused of offering conditions in the advertisements that were less favorable than those offered to the alien in violation of 20 CFR § 656.17(f)(7).

It would seem that the DOL has adopted a “You will know if you made the wrong choice when the PERM gets denied” attitude to the issue of the roving employee. At the recent AILA PERM Conference in New Orleans, many practitioners expressed ongoing frustration with the lack of guidance. Learning through trial and error is not acceptable for a process as costly as PERM and practitioners can ill-afford to demonstrate an inability to correctly advise clients. Another AILA Stakeholders meeting was held last week and roving employee issues were certainly on the list of questions for the DOL. While holding one’s breath is not suggested, the minutes of that meeting will hopefully shed some well-needed light on this tricky issue.

SILVER LINING ON IMMIGRATION AFTER THE NOVEMBER 2010 MID-TERM ELECTIONS

By Cyrus D. Mehta

Now that the Republican party controls the House, what does it portend for immigration? There is a sense of foreboding and pessimism. Most fear that any prospect for Comprehensive Immigration Reform is dead, although it never got jump started even though the Democrats controlled both the chambers of Congress from 2006 until now. Instead, we will see enforcement oriented measures being passed. FAIR has already issued a statement of what it considers immigration reform, which obviously is all enforcement and no sensible expansion of visa categories that would provide for a more orderly flow of legal immigration and stem illegal immigration, http://ht.ly/33QoA. AILA's President David Leopold worries that Rep. Lamar Smith, the expected chair of the House Judiciary Committee and Rep. Steve King, the slated chair of the House Subcommittee on Immigration will pass mean spirited immigration legislation, like HR 4437, which would have criminalized the undocumented, or to use their subpoena powers to investigate harass the President or other leaders of the immigration agencies, http://ailaleadershipblog.org/2010/11/03/the-morning-after/.

An article in Bloomberg BusinessWeek also suggests that businesses may not even see any changes in the immigration system for skilled workers, such as an expansion of H-1B visa numbers or an expansion of the employment preferences, where some applicants must wait for at least a decade or more before they can get green cards, http://bit.ly/cDVMcD. Rep. King has stated in this BusinessWeek article that he would first want to pass measures that would crack down on illegal immigrants before considering proposals that business want regarding much needed expansion in visa categories. But what has skilled immigration, which is mostly legal, have to do with cracking down on illegal immigration and closing the borders? In August 2010, Senator Schumer's border security bill substantially raised the H-1B and L visa fees on companies that had more than 50% of their workforce on H-1B and L visas (all legal workers to boot) to pay for border security, including deploying a couple of drone aircrafts on the US-Mexico border that are used in Pakistan and Afghanistan, http://cyrusmehta.blogspot.com/2010/08/world-according-to-senator-schumer-if.html.

Let's hope that our pessimism is off the mark, although I admit that I might be dreaming given that Rep. King's anti-immiration rhetoric is shriller than most even among other enforcement oriented Republicans, http://bit.ly/a6S0ac. There might be common ground between the President, Democrats and Republicans to pass incremental measures, which is now the new mantra if anything can ever be achieved. The Economist also feels that it might be premature to write off any prospect for immigration reform, http://www.economist.com/node/17366155. Indeed, there is precedent for this. Some of the most innovative ameliorative immigration legislation such as the American Competitiveness in the 21st Century Act and the Child Status Protection Act got passed in a Republican controlled Congress. One common ground between the Administration and the new Congress, at least in the short term, is to work together to pass more business friendly immigration measures, such as more H-1B visas for skilled workers and an expansion in the employment-based preferences, with perhaps adding new categories for business entrepreneurs and those with advanced skills in the sciences and technology. Even Rep. King in the BusinessWeek article seems to be inclined to pass measures "for higher-skilled workers only if the potential employees meet criteria to boost the U.S. economy." All these proposals should be appealing to the new Republican leadership at the helm in the House who believe in the spirit of personal responsibility, hard work and enterprise, without relying on the government for a handout. Immigrants best exemplify this ideal.

Finally, even though Republicans gained a lot in the mid-term elections, beware that an overtly anti-immigration agenda will see you go down in flames like Sharon Angle in Nevada who demonized immigrants in her election campaign commercials or Meg Whitman whose hypocritical attitude towards her immigrant nanny was telling on the voters, http://bit.ly/cZX2Zo . Indeed, it is likely that the reason why the Democrats still control the Senate is because of Latino voters who either rewarded or punished candidates based on their attitude towards immigrants. Barbara Boxer, as an example, was the recipient of this reward.

In the past, one of the reasons for lack of support from Republican leaders, who traditionally supported immigration, was that the Democrats would take credit. This is no longer true after the recent Republican election gains. Now is the time for both the Democrats and the Republicans to work together in Congress, along with the President's support, to pass immigration friendly measures so that both parties can claim credit among voters in future election cycles.

INDIAN IMMIGRATION POLICY AND THE TRANSNATIONAL PREVAILING WAGE FOR IT WORKERS

By Gary Endelman and Cyrus D. Mehta

For many years, those concerned about the hemorrhaging of good paying jobs to India, especially in the IT sector, have blamed overly liberal US immigration policies for their ills. Precisely the opposite is true. Right now, there is a deep and growing IT shortage for world-class talent in India, something that is openly acknowledged in the India press and by top Indian corporate leadership, http://bit.ly/d5TSsO. Even an Internet giant like Google is having a devil of a time in recruiting top-drawer talent, http://bit.ly/a2kT22. Despite the huge numbers of engineering graduates each year, a far smaller number are employable in the global economy and Indian IT firms are increasingly forced to launch innovative initiatives in a desperate attempt to solve the problem, http://bit.ly/cFMSIn.

In response to this talent crunch, Indian IT firms have been compelled to raise salaries. Already, wage inflation is a fact of life in India. The low wage advantages of India are steadily being eviscerated. http://www.indiadaily.com/editorial/17290.asp. Yet, despite this sharp rise in compensation, the fact that inflation is going up even faster threatens to wipe out much, if not all, of these highly prized gains. http://news.bbc.co.uk/2/hi/business/8563743.stm

Faced with all of this, how has the United States responded through its immigration policies? By adopting manifestly inadequate immigrant visa quotas combined with a miserly 65,000 H-1b visa allotment, the United States has done its best to keep the best and the brightest Indian IT talent at home. As a result, the talent shortage, while severe, and the wage inflation, while undeniable, has not nearly been as far reaching or dramatic as they would have been if US policies were more welcoming. In effect, US immigration policies have achieved the worst of all possible results. Indian IT workers do not earn as much as they could or should; as a result, they spend and consume less so that there is a reduced stimulative impact, thereby diminishing the purchasing power of all sectors of the Indian economy who depend upon the IT salaries for their own well being. Beyond that, precisely because they serve as a powerful though unintended depressant upon Indian IT wages, protectionist US immigration policies promote the exodus of white collar IT jobs and allied occupational opportunities from the US to India! How? Simple. Read on.

Despite what the US Department of Labor thinks, there is a transnational prevailing wage that governs IT compensation irrespective of national boundaries. The greater the difference in IT salaries between the US and India, the more pressure will be exerted upon IT employers in the US to leave and the greater will be the loss of jobs, not to mention the loss of many allied jobs that depend upon the continued presence of a vibrant IT sector. Correspondingly, if the IT wage differential between our two economies narrowed, the pressure to outsource would ease. If we wanted to even the playing field, the US would greatly expand both temporary and permanent work visas for India in the IT professions so that more IT jobs would remain here and Indian IT workers would be able to keep pace with inflation. It is a win-win situation. Right now, by bashing Indian migration, immigration restrictionists are accelerating outsourcing and enabling India to develop an effective strategic alternative to Silicon Valley years faster than need be happening.

It seems as if India is coming to the rescue of the United States. The Indian Ministry of Home Affairs (MHA) has announced the elimination of the prior odd 1% quota rule for all employment visa applications filed by Indian host companies or a maximum of 20 foreign nationals per company. To qualify for employment visas, the workers must now be highly skilled or professional, and in addition to meeting the other visa requirements, demonstrate that they will be paid a salary equivalent to at least $25,000 per year. This minimum salary requirement does not apply to ethnic cooks, interpreters or language teachers (other than English language teachers), or staff working for an Embassy or High Commission in India. Full details of the new rules for an Employment Visa are set forth in the Indian Ministry of Home Affairs FAQ, pp. 6-7, http://www.mha.nic.in/pdfs/work_visa_faq.pdf.

By restricting work visas to highly skilled workers making at least $25, 000, India is not only reducing the transnational wage differential but essentially eliminating it since the true wage for visa issuance will be $75,000.It is an article of faith that wage recoupment must be 3 times the normal amount in order to compensate for all other inefficiencies inevitably associated with the outsourcing process. If we cannot adopt intelligent immigration policies to save ourselves, it seems that India will do it for us.

It is true that the Indian rules only affect foreign knowledge workers rather than directly changing the wage scale for the domestic work force. We also note that the Indian rules apply to highly skilled workers across the spectrum, although our essay focuses on IT workers. However, the indirect impact is profound, greatly exceeding the sheer numbers which will be limited. Foreign IT workers earning $25,000 in India can exert enormous purchasing power upon other sectors of the Indian economy that will inevitably benefit. Beyond that, these changes create a two track wage system, one for foreigners and one for Indian workers. Inevitably, the two will exert an influence upon each other. Indian workers will demand equal wages for equal work, refusing to be paid less than their foreign colleague at the neighboring work station doing the same work but earning much more. They will move to another country if denied for these are the Indian IT gurus who enjoy global occupational mobility, a freedom without precedent in Indian history. The inflationary pressure exerted by foreign wage levels upon domestic compensation will increase as we climb the food chain so that the more experienced workers, the supervisors and experienced IT professionals whose expertise makes outsourcing from the United States possible, are also the very same workers who will demand that the wage gap between the two wage systems be narrowed, if not eliminated. This is precisely what will happen over time as Indian companies seek to alleviate the talent shortage whose existence poses a real and direct threat to Indian IT world market share. Ironically, India is repeating the mistakes of the H-1B labor condition application where the wages of foreign workers are kept artificially high not in response to actual market conditions but solely as a result of government diktat. As in the United States, this is an unsustainable condition whose primary consequence will be the injection of systemic wage instability that complicates intelligent business planning and spreads pervasive incoherence.

It also remains to be seen how India will administer the other requirement in the MHA FAQ that “Employment Visa shall not be granted for jobs for which qualified Indians are available.” How will that be determined? It is hoped that the visa applicant is allowed to make the case, and India does not adopt the rigid rules of the US Labor Certification system, requiring employers to undergo an artificial test of the labor market to establish that no US worker is available for the position. This system has been an abject failure in the US. Serving mainly to frustrate employers, it has conspicuously failed to expand job opportunities for domestic workers. One hopes that Indian officials will accept an employer’s attestation regarding shortage of skills in the occupation that will be filled by the foreign worker, along with the business need to hire such a person in India, supported by general statistics of shortage of talent in a particular occupation.

We cannot help but observe, though, that India is learning precisely the wrong lessons from the United States. For both nations, giving in to domestic protectionist pressures amounts to a voluntary and wholly unnecessary surrender of global market share. Expansion of bureaucratic restraints upon the IT sector may satisfy domestic critics but it will undermine job creation. If India adopts the "minimally qualified" standard that has given labor certification in this country its Twilight Zone character, the vitality of the IT industry which drives the entire Indian economy will suffer a powerful blow with untold consequences for India and the world. Once India's immigration policies turn inward, a fateful, perhaps irrevocable step has been taken. Economic leadership in the 21st century will fall to those who win the global competition for talent and innovation, much as the race to capture natural resources shaped the recent past. Enlightened immigration policies that view the movement of human capital as an asset to be maximized rather than a problem to be controlled are central to seizing and defending the economic high ground. Will India turn away from the future and can the United States seize the unexpected opportunity this presents?

There is a silver lining in this for India as well. While wage inflation will cause a temporary loss in market share, in the long run, it will serve to refocus the Indian IT industry on the core need to win clients by superior service and quality of performance, precisely the character traits that has and will serve India well, long after their short-term low wage advantages had disappeared. National greatness cannot rest upon a race to the bottom. That is not where India’s future lies. The sustained pursuit of excellence is a goal to which India can and should dedicate itself for only this will allow the full and proper development of its enormously impressive talent base. Over time, not only will fewer IT jobs flee America, but higher Indian wages, both within the IT sector and beyond, will make possible the creation of a business model that can sustain Indian leadership in IT and reinforce its inherent value. In fact, this is exactly what is already happening. As the wage gap shrinks between India and the major outsourcing countries, IT giants are strategically positioning themselves so that future growth will come from experience and maturity rather than labor arbitrage. Diversification is the hallmark of this next generation business model. Wipro is actively moving into solar and other forms of renewable energy, http://bit.ly/bBcGVz. Infosys has pumped $100 million into Europe to expand its software footprint all across the Continent, http://bit.ly/ahPCbP. At the same time, by expanding into Southeast Asia, Infosys will widen India's access to other emerging markets, http://bit.ly/da929d. No longer content to win new markets on the cheap, Infosys grows its Australian customer base through award-winning excellence as the IT consultant of choice, http://bit.ly/ceXxjj.

India may still remain a hub for IT services regardless of rising costs due to the sheer number of skilled workers and the fact that it has a high level of IT sophistication on which to build. As India diversifies, greater symmetries between the Indian and American economies will present themselves as both countries profit from maximizing what they do best. This is not a zero sum gain. On the contrary, everyone benefits from a more rational prevailing wage whose consistent application stabilizes global commercial relationships. Based on the comparative purchasing power in India relative to the United States and the large pool of low wage workers whose presence will remain a constant factor on the Indian scene for the foreseeable future, any discussion of the transnational prevailing wage and its impact must necessarily be both modest and evolutionary in its assessments. The changes that are coming may well take a long time in getting here. Nonetheless, given the dynamic nature of both the American and Indian economies, the inevitably of change is cannot be denied. It is on the way and both nations should use the time they have now to prepare for it. If that happens, an expanded H quota for Indian IT managers and professionals is a win-win formula for both countries.

BIA CONTINUES TO REAFFIRM BROAD "SOUGHT TO ACQUIRE" STANDARD UNDER CSPA

by Gary Endelman and Cyrus D. Mehta

In a recent unpublished decision, the Board of Immigration Appeals, in In re Jose Jesus Murillo, A099 252 007, October 6, 2010, http://drop.io/oucv5fe, reaffirmed its broadened “sought to acquire” standard under the Child Status Protection Act (CSPA). The CSPA artificially freezes the age of a child below 21 years of age so that he or she is not deprived of permanent residency when the parent is granted the same status. One of the requirements is for the child to seek permanent residency within one year of visa availability. Often times, a CSPA protected child falls through the cracks by failing to meet the prevailing rigid filing requirements within the one-year deadline.

The Board in In re Jose Jesus Murillo held that the term “sought to acquire” includes substantial steps towards the filing of the relevant application, although these steps may fall short of an actual filing or submission to the relevant agency. The Board’s interpretation will provide further relief to children who are otherwise protected by the CSPA but unable to comply with or navigate the complex bureaucratic requirements to file within one year. It should be noted that In re Jose Jesus Murillo is an unpublished decision, devoid of any precedential authority, and does not bind the DHS or the DOS. Still, it follows closely on the heels of other unpublished Board decisions that have applied the same “sought to acquire” standard and thus provides more ammunition to those who need to make similar arguments. See In re Kim, 2004 WL 3187209 (BIA Dec. 20, 2004), (the child beneficiary “sought to acquire” LPR status within one year of visa approval because her parents hired an attorney to start preparing the adjustment application within the one-year period); In re Castillo-Bonilla, 2008 WL 4146759 (BIA Aug 20, 2008) (the respondent “sought to acquire” LPR within the one-year period when, during this time, he informed both the Immigration Judge and the Board that he wished to file an adjustment application, even though the application was not actually filed within one year).

INA §203(h), introduced by Section 3 of the CSPA, provides the formula for determining the age of a derivative child in a preference petition even if the child is older than 21 years. To qualify as a child under INA §101(b)(1), one must be below the age of 21 and unmarried. The age is determined by taking the age of the alien on the date that a visa first became available (i.e. the date on which the priority date became current and the petition was approved, whichever came later) and subtracting the time it took to adjudicate the petition (time from petition filing to petition approval). Based on this formula, if the child’s age falls below 21, the child is protected under the CSPA. Specifically, §203(h)(1)(A) also requires the alien to have “sought to acquire” LPR status within one year of visa availability. It is the interpretation of the term “sought to acquire” that was the subject of the Board’s holding in In re Jose Jesus Murillo.

Both the Department of Home Security (DHS) and the Department of State (DOS) have interpreted the phrase “sought to acquire” narrowly. DHS limits this phrase to filing an I-485 application for adjustment of status. See “Revised Guidance for CSPA” (April 30, 2008), http://www.uscis.gov/files/nativedocuments/CSPA_30Apr08.pdf. The DOS too has interpreted “sought to acquire” narrowly and indicated that in consular processing cases, the date that a child seeks to acquire LPR status is the date Form DS 230, Part I, is submitted by the child, or by the child’s parent on the child’s behalf to the National Visa Center (NVC). See “Child Status Protection Act: ALDAC 2” (January 17, 2003), http://travel.state.gov/visa/laws/telegrams/telegrams_1369.html. In cases where the principal beneficiary parent adjusts status in the US, and the child will be applying for the visa overseas, the DOS requires the principal to file Form I-824 to initiate the child’s follow-to-join application. The DOS has also indicated that since Form I-824 is not the only way to initiate the process, posts may seek advisory opinion in cases in which some other “concrete” step has been taken.

We question why the DHS and DOS sought and continue to seek the most restrictive interpretation of what is clearly a remedial statute. Here is the legislative history of the CSPA, which is worth reproducing from the Board’s decision in In re Jose Jesus Murillo:

The congressional. intent in enacting the CSPA was to "bring families together" (Rep. Sensenbrenner, 148 Congo Rec. H4989-01, H49991, July 22, 2002) and to "provide relief to children who lose out when INS takes too long to process their adjustment of status applications"(Rep. Gekas, id. at R4992); see also, Rep. Jackson-Lee, "where we can correct situations to bring families together, this is extremely important.'.' ld. atH4991. In enacting the CSPA, Congress expressed its concern that alien children "through no fault of their own, lose the opportunity to obtain immediate relative status." H.R. Rep. 107-45, H.R. Rep. No.4 5, I 07th Cong., 1st Sess. 2001, reprinted in 2002 U.S.C.C.A.N. 640, 641 (Apr. 20, 2001). Indeed, the United States Court of Appeals for the Ninth Circuit has held that the CSPA should "be construed so as to provide expansive relief to children of United State citizens and permanent residents." Padash v. INS,358 F.3d 1161, 1172 (9th Cir. 2004).

In In re Jose Jesus Murillo, the Board rejected the DHS’s position that “sought to acquire” means the actual filing of an application or petition. The Board stated that “it is not bound by the interpretation of the DHS or DOS as to the statutes which it administers” (citing Matter of M/V Saru Meru, 20 I&N Dec. 592, 595 (BIA 1992)). The Board observed that INA §203(h)(1)(A) includes the unique term “sought to acquire” rather than terms such as “file,” “submit” or “apply,” which appear in other parts of the INA. While each of these terms require the presentation of an application to relevant officials, the meaning of words such as “seek” or “sought” include “to try to acquire or gain” or “to make an attempt” according to the Board, which referred to the Merriam-Webster’s Collegiate Dictionary.

In In re Jose Jesus Murillo, the respondent claiming status as a child did not file the I-485 application within one year of visa availability. However, the respondent argued that he still satisfied the “sought to acquire” element because he hired an attorney to prepare his adjustment of status application within one year of the visa numbers becoming available, and he filed his application within a reasonable time thereafter while he was still under the age of 21. The Board held that the respondent child, whose age was otherwise protected under the CSPA, clearly demonstrated an intent to file his application and made substantial advances towards having the application prepared and filed through an attorney within the one-year period. The Board observed that if it had found otherwise, the child would have aged out and would have been unable to seek CSPA protection for no fault of his own. The Board also did not require a showing that this attorney was ineffective in filing the document within one year.

The Board’s decision to broaden the term “sought to acquire” to include steps short of actually filing an application is indeed welcome. There are many situations in which a child protected under the CSPA may not be able to comply with the rigorous filing requirements of the DHS or the DOS within the one-year filing period. Moreover, the Board’s ruling would assist those who are in removal proceedings, and who may not be able to obtain a timely hearing with an Immigration Judge in order to file an adjustment application within one-year of the visa number becoming available, and an alternative filing with the clerk of the court is not made within the year or rejected. There may be other situations where the parent may have filed an I-485 adjustment application many years ago, and may not have included the I-824 application with his or her application. It was not usual to attach an I-824 with an unadjudicated I-485 adjustment application prior to the CSPA. Moreover, there have also been situations where the NVC, during the initial processing of a consular visa application, may have erroneously omitted the child’s name even though he or she was protected under the CSPA. As a result, the child or the parent of the child may not have complied with the DOS requirement of filing a DS 230, Part I, but may have taken other steps to seek LPR status such as attempting to contact the NVC by letter or telephone to include the child, or took other steps such as seeking the advice of an attorney.

In these situations too, one can demonstrate that the CSPA child “sought to acquire” LPR status within one-year of visa availability. On the other hand, not every step to seek permanent residence in the one year period will be viewed favorably especially when it does not comport with CSPA’s purpose, which was to protect an alien child from aging out due to no fault of his own. In In Re Mario Francisco Cisneros Baron, 2009 WL 3713334, the respondent asserted that neither did he nor his parents file an adjustment application within one year because of his criminal convictions. He was put into removal proceedings and left voluntarily, and then illegally reentered and lodged an adjustment application in connection with subsequent removal proceedings. The Board, in this case, remained unpursuaded that his parents consulted with a lawyer within one year of the visa availability date since, here, the respondent was himself partially responsible for failing to file an adjustment application “because of a tactical decision resulting from his own criminal behavior.”

While none of these are published decisions, those seeking CSPA protection should rely on In re Kim, In re Castillo-Bonilla and now In re Jose Jesus Murillo to make similar arguments in cases before the DHS, an Immigration Judges, the Board, before US Consuls overseas and even in federal court. We commend the Legal Action Center of the American Immigration Council for filing a winning amicus brief in In re Jose Jesus Murillo, and readers will surely profit from its CSPA Practice Advisory, http://www.legalactioncenter.org/practice-advisories/child-status-protection-act. Practitioners should continue to seek to interpret “sought to acquire” in a broadly humane way for their clients to achieve what the Congress intended, a formula for the protection of children and advancement of family unit