HALCYON DAYS IN H-1B VISA PROCESSING

Much has already been written to deservedly criticize the USCIS Memo by Donald Neufeld dated January 8, 2010 (Neufeld Memo), http://tiny.cc/z3ZU8, which suddenly undermines the ability of IT consulting firms to file H-1B visas, http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. The latest is an excellent blog post from my friend and colleague, Angelo Paparelli, http://blogs.ilw.com/angelopaparelli/2010/02/my-entry.html, who shows how the Neufeld Memo is a thinly veiled attempt to kill a successful business model that have benefited American businesses. Our firm is beginning to see Requests for Evidence that regurgitate the language of the Neufeld Memo regardless of the substantial evidence submitted that established the nexus between the IT consulting firm and its client. Winning the H-1B visa petition filed by an IT consulting company used to be tough, but it has never been more challenging since the issuance of the Neufeld Memo. We hark back at the days when interpretations from the prior Immigration and Naturalization Service, although not a piece of cake, were far more reasonable and commonsensical.

The H-1B worker likely to be most severely jeopardized by the sudden shift in policy brought by the Neufeld Memo is the beneficiary of an approved I-140 petition under the EB-2 from India or China, or EB-3 from any country (especially India which is more backlogged than other countries), who must file many extensions of H-1B status while waiting endlessly for immigrant visa availability. Suddenly, this time around while requesting for the H-1B extension well beyond six years under Sections 104 (c) or 106(a) of the American Competitiveness in the 21st Century Act, the petitioner must overcome the disqualifying example, cited in the Neufeld Memo, of a third party placement where “the beneficiary reports to a manager who works for the third-party company. The beneficiary does not report to the petitioner for work assignments, and all work assignments are determined by the third-party company. The petitioner does not control how the beneficiary will complete daily tasks, and no proprietary information of the petitioner is used by the beneficiary to complete any work assignments.” Such an H-1B will likely fail since the petitioner, according to the Memo, has no right of control over the beneficiary. And even when such an IT company can demonstrate a right of control over its employee (even if the day to day assignments are overseen by the client), an adjudicator can rely on the Neufeld Memo, which will give him or her sufficient leeway to arbitrarily deny the H-1B extension request. In the recent past, it was necessary to show a link between the petitioner and the client company. Now the Neufeld Memo wants more – this esoteric right of control - which may be most difficult to establish in the context of an IT consulting firm if it does not have its own proprietary product or methodology.

We look back with dreamy eyed nostalgia at earlier guidance. A 1995 memo by the then Assistant Commissioner of legacy INS, Michael L. Aytes, Interpretations of Itinerary in H-1B Petitions, HQADN (1995), more sensibly recognized that a contractor who paid the H-1B worker at all times remained an employer. Mr. Aytes advised:

Since the purpose of the regulation is merely to insure [sic] that the alien has an actual job in the United States, the itinerary requirement…can be met in a number of ways…the regulation does not require that the employer provide the Service with the exact dates and places of employment. As long as the officer is convinced of the bona fide[s] of the petitioner’s intentions with respect to the alien’s employment, the itinerary requirement has been met. The itinerary does not have to be so specific as to list each and every day of the alien’s employment in the United States. Service officers are encouraged to use discretion in determining whether the petitioner has met the burden of establishing that it has an actual employment opportunity for the alien.

With respect to the employer-employee relationship, Mr. Aytes in the good old days of 1995 reasoned so differently from Mr. Neufeld in 2010:

In the case of an H-1B petition filed by an employment contractor, Service officers are reminded that all prospective H-1B employers have promised the Department of Labor through the labor condition application process that they will pay the alien by appropriate wage even during periods of time when the alien is on travel or between assignments. Since the contractor remains the employer and is paying the alien’s salary, this constitutes employment for purposes of H-1B classification.

Mr. Aytes’ guidance on determining the employer of an H-1B petition, based on who pays the alien’s salary, was so much simpler and consistent with real world economic reality and tax law. Take a look at this Op-Ed in last Sunday’s NY Times, http://www.nytimes.com/2010/02/21/opinion/21shulman.html?scp=5&sq=shulman&st=cse, drawing attention to Section 1706 (especially after the plane crash by a computer programmer pilot into the IRS building in Austin), which specifically requires people in the IT consulting industry to be treated as employees and not as independent contractors, and excludes computer programmers from the safe harbor Form 1099 requirement under Section 560 of the IRC. The Neufeld Memo assumes, in contradiction of Section 1706, that H-1B programmers are not considered employees of the IT staffing firm, when Congress specifically directed them to be treated as such, at least for tax purposes, under 1706. Moreover, in a letter dated October 23, 2003 to Lynn Shotwell, Efren Hernandez III, then Director, Business and Trade Branch of USCIS recognized that if a new LCA was obtained as a result of a change in work location after the H-1B petition was filed, an amendment to the H-1B petition was not required. It is noted that the Neufeld Memo also contradicts DOL regulations that allow an H-1B worker to be placed for 30 or 60 days without the need to obtain a new LCA. 20 C.F.R. § 655.735(c). All this points out to the fact that an employer who assigns employees at third party sites, contrary to the Neufeld Memo, need not determine the location of every job site when filing the H-1B petition.

When a management consulting firm that may either use employees in-house to work on various client projects, or station its employees at client sites for extended periods of time, files H-1B petitions on behalf of prospective employees, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved and every client site at which an H-1B employee may be stationed. Similarly, when a law firm that may use associates in-house to handle various client matters, or station associates at client corporations for extended periods of time, files an H-1B petition, it is not expected that such a firm will pinpoint every client engagement in which an H-1B employee may be involved, and every client site at which an H-1B employee may be stationed. The rules do not differ for IT consulting firms in this respect simply because its business is software development and consulting rather than management consulting or the practice of law. And in the event of a lag between work assignments, INA 212(n)(2)(C)(vii) and 20 C.F.R. §655.731(c)(7)(i) prohibit an employer from “benching” and must continue to pay the required wage. Congress contemplated time lags between assignments, and enacted a law that required the employer to pay during the unproductive period.

We demand that USCIS immediately withdraw the Neufeld Memo and to revert back to the halcyon days of Mr. Aytes’ 1995 guidance. The Neufeld Memo not only hurts the competitiveness of U.S. business but also jeopardizes the status of H-1B workers who are waiting endlessly for the green card. If there were no backlogs in the EB quotas, they would be permanent residents by now and would not be needlessly harassed by the Neufeld Memo when applying for the next round of H-1B extensions.

WILL THE NOTICE OF ENTRY OF APPEARANCE REQUIREMENT BY AN ATTORNEY HINDER PRO BONO ASSISTANCE TO IMMIGRANTS?
By
Cyrus D. Mehta* and Myriam Jaidi**

On February 2, 2010, the Department of Homeland Security (DHS) published an interim rule, (available at http://tiny.cc/GvK9A), which adopts the Executive Office for Immigration Review (EOIR) rule at 8 Code of Federal Regulations (CFR) § 1003.102 that provides grounds to discipline practitioners for ethical violations. One specific provision, § 1003.102(t), which is the focus of this article, sanctions practitioners for failing to file a Notice of Entry of Appearance or sign pleadings, applications, motions or other filings if they have been engaged in practice and preparation.

The Department of Justice (DOJ) rules at 8 CFR § 1003.102, which were revised on January 20, 2009, significantly expanded the grounds under which a practitioner who practices before the EOIR can be disciplined. These rules can be found on the USCIS website at http://tiny.cc/j1rrs and will become part of the new DHS rule on March 4, 2010, and will extend to practitioners who practice before all of the components of DHS in immigration matters. This article raises preliminary questions about the impact of the specific section, 8 CFR § 1003.102(t), on pro bono clinics and services and illustrates that practitioners need further clarification from DHS to ensure that the rule does not undermine the provision of quality pro bono services.

Immigration practitioners are encouraged, even challenged, to take on pro bono representation and to participate in pro bono clinics. These clinics do a yeoman’s job in providing desperately needed assistance to indigent individuals who are unable to afford counsel and often require assistance on applications that are relatively straight forward and tend to require a simple, though thorough, review by an immigration attorney to spot important issues. In some clinics, non-attorney volunteers also assist in the filling up of applications that are supervised by volunteer lawyers. Typical examples of such applications are the N-400 for naturalization and more recently in the wake of the devastating earthquake in Haiti, the I-829 for Temporary Protected Status applicable to Haitian nationals. The need is significant and has prompted Second Circuit Judge Robert Katzmann and Second Circuit judicial nominee Denny Chin (currently a Federal District Court judge in the Southern District of New York) to bring together judges, private practitioners from large firms and solo offices, academics, clinicians, legal aid providers, and grievance committee members to study what could be done to promote good legal representation for low income immigrants. The reports of the study group are available here, http://tiny.cc/t95Wm.

The rule DHS will adopt on March 4, 2010 and which concerns us here, 8 CFR § 1003.102 (t), sanctions a practitioner who:

t) Fails to submit a signed and completed Notice of Entry of Appearance as Attorney or Representative in compliance with applicable rules and regulations when the practitioner:

(1) Has engaged in practice or preparation as those terms are defined in §§1001.1(i) and (k), and

(2) Has been deemed to have engaged in a pattern or practice of failing to submit such forms, in compliance with applicable rules and regulations. Notwithstanding the foregoing, in each case where the respondent is represented, every pleading, application, motion, or other filing shall be signed by the practitioner of record in his or her individual name…

The terms “practice” and “preparation” are defined in new sections 8 CFR § 1.1 (i) and (k), as follows:

The term practice means the act or acts of any person appearing in any case, either in person or through the preparation or filing of any brief or other document, paper, application, or petition on behalf of another person or client before or with DHS.

The term preparation, constituting practice, means the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers, but does not include the lawful functions of a notary public or service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and naturalization procedure.

As is quite evident, “practice” and especially “preparation” have been defined broadly to encompass pro bono assistance that an attorney may provide at a clinic where he or she may assist numerous individuals in understanding the requirements of and filling out particular applications. After these forms are completed, the applicant is responsible for submitting the application on his or her own to the appropriate filing address. Does this mean that a pro bono volunteer attorney needs to submit a notice of entry of appearance and sign his or her name on, for example, the I-829 or N-400 form? Given that these clinics often include a system whereby some volunteers check individuals in to determine whether they have the necessary documents with them, other volunteers may rove and answer questions raised by individuals as they complete the forms on their own, and another set of volunteers who do a final review of the application and documents, which of these volunteers would be required to sign as the preparer or put in the G-28?

Clearly, this rule was not intended to target pro bono lawyers who render assistance at a pro bono clinic for a deserving cause. The preamble to the proposed rule that sought to expand the grounds for disciplining practitioners in 8 CFR §1003.102, published in the Federal Register at page 44183 (http://tiny.cc/N3Jkt) states,

This provision is intended to address the growing problem of practitioners who seek to avoid the responsibilities of formal representation by routinely failing to submit the required notice of entry appearance forms. Furthermore, the difficulties in pursuing a practitioner for discipline for participating in the preparation of false or misleading documents are apparent when the practitioner fails to submit a completed notice of entry of appearance.

Nevertheless, without clarification, it appears that pro bono attorneys may need to submit a notice of appearance or to sign forms as preparers under 8 CFR § 1003.102(t).

While 8 CFR § 1003.102(t)(2) appears to make the failure to file a notice of entry of appearance a ground of discipline only applicable to one who is deemed to have “engaged in a pattern and practice of failing to submit such forms,” the signing of the form by the practitioner in his or her name is a separate requirement in the next sentence of § 1003.102(t)(2). That sentence indicates that the attorney would be required to sign the forms only where “the respondent is represented . . . by the practitioner of record.” However, considering that “the term representation . . . includes practice and preparation as defined in paragraphs (i) and (k),” 8 CFR § 1.1(m), what triggers the signature requirement is unclear. Overall, the rules do not provide clear guidance as to whether a pro bono attorney who is participating in a clinic to assist individuals who will submit forms pro se must sign as preparer.

The scope of acts that may fall under the rule must be clarified, given that the definition of “practice” includes not just a person appearing in a case, but also includes, through the added definition of “preparation” activities such as “the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers…” This definition is broad enough to include acts such as an attorney giving only brief advice through a consultation. Under those circumstances it is virtually impossible for such an attorney to submit a notice of entry of appearance if nothing is prepared or filed after the conclusion of such brief advice. On the other hand, if an attorney assists in the preparation of a motion, pleading or application, or reviews an application prepared pro se by the applicant, in addition to giving the brief advice, and even if the applicant will ultimately file pro se, it would trigger the requirement, at the very minimum, of the attorney signing his or her individual name on the application.

Although the regulations do not target pro bono attorneys, language in the preamble to the EOIR proposed rule indicates that pro bono attorneys are meant to be covered by the rule if their actions are found to fall within the definitions of “practice” and/or “preparation”:

11. Section 1003.102(t)--Notice of Entry of Appearance

Comment . One commenter thought that the proposed provision was too broad because it subjects practitioners who provide pro bono services to discipline if they do not sign pleadings or submit a Form EOIR-27 or EOIR-28. The commenter suggested that disciplinary sanctions only be imposed when filings demonstrate a lack of competence or preparation, or the practitioner has undertaken “full client services.” Another commenter approved of this change, but suggested that pro se aliens be provided notice of this requirement in their own language and that immigration judges inform all who appear before the court of the requirement.

Response. The Department believes that all practitioners should submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR, in cases where practitioners engage in “practice”' or “preparation” as those words are defined in 8 CFR 1001.1(i) and (k). It is appropriate to require practitioners who engage in “practice” or “preparation,” whether it is for a fee or on a pro bono basis, to enter a notice of appearance and sign any filings submitted to EOIR. As stated in the supplemental information to the proposed rule, this provision is meant to advance the level of professional conduct in immigration matters and foster increased transparency in the client-practitioner relationship. Any practitioner who accepts responsibility for rendering immigration-related services to a client should be held accountable for his or her own actions, including the loss of the privilege of practice before EOIR, when such conduct fails to meet the minimum standards of professional conduct in 8 CFR 1003.102. It is difficult for EOIR to enforce those standards when practitioners fail to enter a notice of appearance or sign filings made with EOIR. However, in an effort to ensure clarity of this ground for discipline, a sentence will be added to this provision that makes it clear that a notice of appearance must be submitted and filings signed in all cases where practitioners engage in “practice” or “preparation.” If a practitioner provides pro bono services that do not meet these definitions, then a notice of appearance is not necessary.

As for the suggestions made by the second commenter, the Department declines to codify in the regulations a rule that requires notice to pro se aliens or anyone appearing before an immigration judge of an attorney's obligation to enter a Notice of Appearance. The scope of this rule is to provide notice to attorneys of their responsibilities when engaging in practice and preparation before EOIR and to provide grounds for discipline when an attorney fails to carry through on his or her responsibilities.

73 Fed. Reg at 76914 (July 30, 2008). This fact makes clarification essential to the continued viability of pro bono clinics. In order to meet the challenges proclaimed by Judge Katzmann and the needs presented by human crises, such as the recent devastation caused by the earthquake in Haiti, pro bono attorneys need to know how to proceed when they assist indigent immigrants in preparing applications.

Clearly, 8 CFR § 1003.102 (t) appears to be in conflict with ABA Opinion 07-446 (May 5, 2007), http://tiny.cc/18eBI, which holds, “A lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosures of the nature or extent of such assistance.” Although the opinion is not binding and assumes a context in which no law regulates undisclosed advice, it raises the important issues, not contemplated in the preamble or the rule itself, of the right of an individual to proceed pro se without disclosing a lawyer’s involvement, the importance of “unbundling” legal services to allow assistance tailored to a specific need (and this is authorized under ABA Model Rule 1.2(c)), and the question of whether the fact of the assistance is material or the failure to disclose that assistance would constitute fraud in some way.

Although some may question the harm pro bono attorneys are concerned about in signing an application as a preparer, the signing requirement may dissuade volunteers from participating for fear of sanctions or potential litigation against them. Many clinics require individuals seeking assistance to sign a waiver or a limited scope of services agreement in order to protect the sponsoring organization and individuals volunteering from legal action. Most lawyers participating in pro bono clinics do not expect to be sanctioned as a result of reviewing a document or answering simple questions about a form that may be unclear to a non-lawyer. The new rule therefore jeopardizes the availability of pro bono services for the immigrant poor because it fails to clarify the scope of its reach.

The authors suggest that interested bar associations and organizations organizing pro bono clinics around a brief services model send in comments to the DHS rule on or before March 4, 2010 asking for modification of this requirement for pro bono volunteers providing pro se assistance to indigent immigrants.

(The views expressed in this article are solely of the authors and do not represent the views of any of the organizations they have any involvement with, presently or in the past.)

* Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is also an Adjunct Associate Professor of Law at Brooklyn Law School where he will teach a course on Immigration and Work. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International Who's Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration related topics.

** Myriam Jaidi is an Associate with Cyrus D. Mehta & Associates, PLLC where she represents clients on a full range of employment- and family-based immigration matters. Ms. Jaidi received her J.D. from the University of Michigan Law School where she served as Editor-in-Chief of the Michigan Journal of Race & Law and was awarded the Dores McCree Award for Service to the Law School Community. She received her M.A. from Stanford and her B.A. cum laude from Harvard University in History.

MORE ON H-1B ADMISSIONS AT NEWARK: EXPEDITED REMOVAL SHOULD BE USED WISELY

Customs and Border Protection (CBP) has extraordinary power under Section 235 of the Immigration and Nationality Act to summarily remove a nonimmigrant from the U.S. at a port of entry if they find him or her inadmissible either for fraud or for failure to possess the proper visa. Generally, there is no further hearing or review of such an order, unless the applicant for admission claims to be a U.S. citizen, lawful permanent resident, refugee or asylee, or claims to fear harm in his or her home country. The individual facing such an order also does not have the right to have an attorney present at secondary inspection at the port of entry.

The recent incidents involving H-1B entrants who were subjected to expedited removal orders at Newark airport, especially Indian computer programmers in the IT consulting industry, has caused a stir in the H-1B community, http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. CBP Headquarters appears to be standing behind the actions of CBP in Newark. CBP HQ informed AILA's CBP Liaison Committee, according to a posting on the AILA InfoNet website on February 2, 2010, that "several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or U.S. Citizenship and Immigration Services (USCIS) for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. " The report goes onto state, "In the Newark enforcement actions, CBP Newark worked closely with USCIS - Fraud Detection and National Security (FDNS) and the Department of Labor - Office of Investigations. CBP HQ stated that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements."

The AILA InfoNet posting also indicated that "on January 27, 2010, AILA members attending a CBP meeting in Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person's admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal."

On the other hand, CBP HQ did not specifically discuss the facts of specific cases with AILA. If someone believes that he or she was improperly determined inadmissible or improperly treated, he or she can inquire through the normal inquiry process with CBP in Newark, http://www.cbp.gov/xp/cgov/toolbox/contacts/ports/cbp_psml.xml. Therefore, those who feel that they signed statements under duress or were properly maintaining H-1B status and wrongfully deported, should continue to pursue the matter with CBP Newark. Affected individuals should also ascertain whether CBP contacted their employer, as they claimed they did in their response to AILA, where clarification was needed. Even if an employer may have been investigated by the DOL or by CIS-FDNS, it still does not warrant the CBP to issue an expedited removal order unless the H-1B worker was not properly using the H-1B visa or was in collusion with the employer. The H-1B entrant could still have been in status despite an investigation of the employer.

It is also unfair, if the CBP is using the January 8, 2010 Nuefeld Memo on H-1B visas, http://tiny.cc/z3ZU8, to conclude that the H-1B entrant will not properly use the visa, or is engaging in fraud, solely because he or she is working at a client, whether direct or indirect, of the employer. While the Memo indicates that H-1B workers working at third party sites who report to managers there may no longer be eligible for an H-1B visa, it is a complex document, and may allow IT consulting companies to still demonstrate the right of control over their employees, even if working at client sites, See From Problem To Springboard: Tips On Using The Neufeld Memorandum in Support of H-1B Petitions, http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201012455838. All this cannot be demonstrated or rebutted during a secondary inspection interrogation of an H-1B employee, and despite the CBP HQ response, we believe that the Newark actions were still arbitrary and unwarranted, See Why Is H-1B A Dirty Word? http://ailaleadership.blogspot.com/2010/02/why-is-h-1b-dirty-word.html. And assuming that there is a conclusive finding of fraud or improper prior approval of the H-1B petition, the DHS may issue a notice of intent to revoke the petition, and allow the employer to respond, rather than issue an ER at the airport to the H-1B employee after a cursory review of the situation. Assuming that the CBP believes that the employer perpetrated fraud, but the H-1B employee is innocent, it can still allow him or her to withdraw admission. A withdrawal of admission allows the individual to return to the U.S. upon applying for a new visa at a U.S. Consulate. Expedited removal, on the other hand, bars the H-1B employee for 5 years.

We acknowledge that the CBP has tremendous power over a nonimmigrant visa entrant under Section 235 at the POE, but we respectfully ask the CBP to use this power wisely and to reverse any erroneous decisions of its officers at Newark regarding H-1B visa entrants.