NEW PORTAL WELCOMES ENTREPRENEURS TO THE USA: BUT WILL THIS CHANGE THE CULTURE OF "NO" AT USCIS

By Cyrus D. Mehta

Consistent with its earlier policy of welcoming entrepreneurs, the USCIS launched a new portal called Entrepreneur Pathways providing resources on how foreign entrepreneurs can use existing visas to launch their innovative startups in the US.  The portal is quite good, and it is hoped that USCIS officials retreat from their culture of “No” and process cases in the spirit of this new guidance.

At the outset, we clearly need Congress to create a Startup Visa rather than entrepreneurs using existing visas that were not designed for them, but those legislative proposals are still floundering. One version of a Startup Visa would require the entrepreneur to invest a minimum of $100,000 in order to get a two year green card. To keep the green card past two years, the founder would need to create five jobs and either raises at least $500,000 in additional funding or $500,000 in revenues. Even if Congress enacted a Startup Visa, these requirements could be rather burdensome for a nimble entrepreneur who could still launch a successful business without an initial $100,000 investment.

There are enough opportunities under our existing immigration law for entrepreneurs who may not need to make such a high investment in their startup. The existing visa system if interpreted broadly, together with the Startup Visa, would provide a welcoming environment for job creating foreign entrepreneurs in the US. The new portal shows the way on how entrepreneurs can use the existing immigration system to set up ventures in the US and possibly even flourish. While these ideas have been used by creative immigration attorneys on behalf of their clients from time immemorial, it is good to know that the portal validates them, largely based on the input that the USCIS received from real entrepreneurs through its Entrepreneur in Residence initiative. Most important, the EIR has endeavored to train USCIS officers about the unique aspects of a startup business. It is hoped that USCIS officers, after receiving such training, will change their mindset and be willing to distinguishing a legitimate startup from a fraudulent artifice.

For instance, startups may not yet be generating a revenue stream as they are developing new technologies that may lead to products and services later on. Many have received financing through venture capital, angel investors or through “Series A and B” rounds of shares. Startups may also operate in more informal spaces, such as the residences of the founders (with regular meetings at Starbucks) instead of a commercial premise. Some are also operating in “stealth mode” so as not to attract the attention of competitors and may not display the usual bells and whistles such as a website or other marketing material. Startups may also not have payroll records since founders may be compensated in stock options. Still, such startups are legitimate companies that should be able to support H-1B, L, O or other visa statuses.

The portal suggests that if a foreign student has a “Facebook” type of idea, he or she can start a business while in F-1 Optional Practical Training provided the business is directly related to the student’s major area of study. After completing F-1 OPT, this student can potentially switch to H-1B visa status (provided there are H-1B visa numbers at that time). Regarding the startup owner being able to sponsor himself or herself on an H-1B, the USCIS is surprisingly receptive, but still obsessed with the Neufeld Memo that there must be a valid employer-employee relationship and that the entity has a right to control the employment. Still, the USCIS suggests that a startup may be able to demonstrate this if the ownership and control of the company are different. This can be shown through a board of directors, preferred shareholders, investors, or other factors that the organization has the right to control the terms and conditions of the beneficiary’s employment (such as the right to hire, fire, pay, supervise or otherwise control the terms and conditions of employment). Some of the suggested evidence could include a term sheet, capitalization table, stock purchase agreement, investor rights agreement, voting agreement or organization documents and operating agreements.  

Even with intra-company transferee L-1 visas for executives and managers, the portal recognizes that an entrepreneur may establish a “new office” L-1 (which could be a subsidiary, parent, affiliate or branch of the foreign company) with a validity period of one year, which allows a ramp up period where the entrepreneur can be involved in “hands on” tasks instead of function as an executive or manager. After the one year ramp up, the organization must be able to support the entrepreneur in a true managerial or executive capacity. The portal also refreshingly suggests that entrepreneurs who can demonstrate extraordinary ability in their field of endeavor can take advantage of the O-1 visa, and can set up a company who can sponsor them. Interestingly, there is no mention of the control test for the O-1 visa like for the H-1B visa. Finally, the portal also provides guidance for nationals of certain countries that have a treaty with the US, which facilitates the E-2 investor visa.

All this looks good on paper (rather online!), and it remains to be seen whether USCIS officers will faithfully interpret this guidance. Even if an H-1B founder of a company successfully establishes that the entity can control her employment through a board of directors or through preferred shareholders, the USCIS could likely challenge whether a position in a startup, where the beneficiary may be wearing many hats, can support a specialized position. The H-1B visa law requires the petitioner to demonstrate that a bachelor’s degree in a specialized field is the minimum qualification for entry into that occupation. Also, positions in innovative startups may not necessarily fit under the occupations listed in the Department of Labor’s Occupational Outlook Handbook but may yet require at least a bachelor’s degree. It is hoped that USCIS examiners are trained to be receptive to other evidence to demonstrate that the position requires a bachelor’s degree. Furthermore, an MBA degree should be considered a specialized degree in itself since many MBA programs at top business schools focus on entrepreneurship and other fields, such as technology or web analytics, which equip one to be a successful entrepreneur.

In the end, the success of the Entrepreneur in Residence initiative largely depends on whether the USCIS has been able to alter the mindset of its officials who are in the habit of saying “No.” 

US MISSION IN INDIA EXPANDS INTERVIEW WAIVER PROGRAM: DOES THIS BODE WELL FOR H-1B AND L VISA APPLICANTS?

By Cyrus D. Mehta 

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

• Business/Tourism (B-1 and/or B-2)
• Dependent (J-2, H-4, L-2)
• Transit (C) and/or Crew Member (D) - including C-1/D
• Children applying before their seventh birthday traveling on any visa class
• Applicants applying on or after their 80th birthday traveling on any visa class

Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:

• Children applying before their 14th birthday traveling on any visa class
• Students returning to attend the same school and same program
• Temporary workers on H-1B visas
• Temporary workers on individual L-1A or individual L-1B visas

The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with "clearance received," however, that applicant is not eligible for a waiver of a personal interview.

Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.

It remains to be seen whether the expanded IWP will improve the processing of H-1B and L visa applications. For over two years, US Consulates in India have routinely held up the processing of H and L visa renewal applications. Many of these applications are re-adjudicated even after the H-1B or L visa petition has been approved by the USCIS, and that too after the petitioner overcame objections by responding in detail to a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).  The visa applicant is often requested to provide further proof of the bona fides of the job opportunity or the petitioning company. This is done mainly for visa applicants who are employees of IT consulting companies. Even if the visa applicant is able to overcome any suspicions about the employer or the bona fides of the job opportunity at the US consulate, it could take several months before the visa is re-issued and this delay could cause extreme hardship to the applicant, including the loss of the job. As a result, many beneficiaries of H-1B and L petitions have not traveled outside the US, even for a vacation, out of an abundance of caution. First time H-1B and L visa applicants may still be subjected to a vigorous re-adjudication of their petitions, but it is hoped that the expansion of the IWP to H-1B and L applicants will eliminate further delays caused due to re-adjudications. If every H-1B or L renewal applicant is subjected to the same vigorous scrutiny as before then it would defeat the objective of the expansion of the IWP.

Still, applicants for renewals of their H-1B and L visas should not take for granted that they will be accepted for streamlined processing under the expanded IWP, especially if there have been changes to the terms of the employment. For example, if the H-1B petition was approved based on the beneficiary working at a client site in Philadelphia, and the client site has now been changed to San Francisco, the US Consulates in India do not take too kindly to this change after the approval of the petition. The US consul may want to see an amendment to the H-1B petition reflecting the new job site. Otherwise, there is a likelihood that the consul could recommend to the USCIS that the petition be revoked, leading to even further delays. Although petitioners may appropriately rely on USCIS guidance that an amended petition is not required if the job site changes, so long as a Labor Condition Application (LCA) is certified for the new site prior to the employee’s move there, US consuls in India may not honor this guidance.  It is therefore recommended that a petitioner continue to amend the H-1B petition if there is a change in the job site after the approval of the petition.

The U.S. embassy in New Delhi said that this is "one of many steps the Department of State is taking to meet increased visa demand in India." The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website at http://www.ustraveldocs.com/in. For more details about procedures for submitting a renewal application, see http://www.ustraveldocs.com/in/in-niv-visarenew.asp

WHERE DO WE GO FROM HERE: THE NEW FACE OF COMPREHENSIVE IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

It may have taken the Bolsheviks 10 days to shake the world but the presidential election last week did it in one. The political calculus on comprehensive immigration reform changed utterly and likely forever.

Hispanic voters accounted for 10% of voters on November 6th, reaching double-digits for the first time, and President Obama won them by a 71-28% margin. The number of registered Latinos soared by 26% in the past 4 years to an astonishing 12.2 million. The Hispanic rejection of Governor Romney contrasts sharply with the 44% of the Hispanic vote won by former President Bush in 2004. The latter pushed for CIR in 2007 and remains the only President ever to make a televised speech on immigration from the Oval Office. Moreover, the last time that CIR passed the US Senate in 2006, 23 of the 62 Aye Votes, came from Republicans, including one from then Senate Majority Leader Bill Frist of Tennessee.

Nor have Hispanics always been in love with President Obama under whose administration deportations reached record levels. Despite his 2008 promise to move on CIR, the President had done precious little until this summer, something he had to admit under tough questioning at a forum sponsored by the Spanish-language Univision network. Then came the President’s Deferred Action for Childhood Arrivals (DACA) initiative and the momentum for change took off. On the day after the election, an ABC News/Washington Post poll revealed a majority of all Americans (57%) backed a pathway for citizenship to bring the undocumented in from the shadows; among Hispanics the notion was even more popular (82%). Fox News commentator Sean Hannity proclaimed that his position on CIR had “evolved”;Arizona Governor Jan Brewer who rode to re-election on her state’s nativist immigration law now thought that CIR was “fine and dandy”; libertarian Senator Rand Paul announced an intent to make CIR a key plank in his run-up for 2016 and old-time immigration stalwarts like John McCain and Lindsey Graham who had seemingly found their old views radioactive in recent years now rediscovered them, eager to join in bipartisan CIR discussions with their Democratic colleagues.

In his first news conference after his reelection on November 14, 2012, President Obama expressed confidence that he could pass an immigration reform bill early in his second term. He said that we should “seize the moment” buoyed by the strong endorsement he received from Latino voters favoring him over Mitt Romney.

Here is a transcript of the section of the news conference dealing with immigration:

Q: And also, what lessons, if any, did Democrats learn from this last election and the Latino vote?
OBAMA: Well, I think what was incredibly encouraging was to see a significant increase in Latino turnout. This is the fastest-growing group in the country and, you know, historically what you’ve seen is Latino vote -- vote at lower rates than the broader population. And that’s beginning to change.
You’re starting to see a sense of empowerment and civic participation that I think is going to be powerful and good for the country. And it is why I’m very confident that we can get immigration reform done. Before the election, I had given a couple of interviews where I predicted that Latino vote was going to be strong and that that would cause some reflection on the part of Republicans about their position on immigration reform. I think we’re starting to see that already.
I think that’s a positive sign. This has not historically been a partisan issue. We’ve had President Bush and John McCain and others who have supported comprehensive immigration reform in the past. So, we need to seize the moment.
And my expectation is that we get a bill introduced and we begin the process in Congress very soon after my inauguration.
OBAMA: And, in fact, some conversations I think are already beginning to take place among senators and congressmen and my staff about what would this look like. And when I say comprehensive immigration reform, it’s very similar to the outlines of previous immigration reform. I think it should include a continuation of the strong border security measures that we’ve taken. Because we have to secure our border. I think it should contain serious penalties for companies that are purposely hiring undocumented workers and -- and taking advantage of them.
And I do think that there should be a pathway for legal status for those who are living in this country, are not engaged in criminal activity, are here to --simply to work. I’ve -- it’s important for them to pay back taxes. It’s important for them to learn English. It’s important for them to potentially pay a fine, but to give them the avenue whereby they can resolve their legal status here in this country, I think is very important. Obviously making sure that we put into law what -- the first step that we’ve taken administratively dealing with the DREAM Act kids is very important as well.
The one thing that I’m -- I’m very clear about is that young people who are brought here through no fault of their own, who have gone to school here, pledged allegiance to our flag, want to serve in our military, want to go to school and contribute to our society, that they shouldn’t be under the cloud of deportation. That we should give them every opportunity to earn their citizenship. And so, you know there are other components to it, obviously. The business community continues to be concerned about getting enough high-skilled workers.

And I am a believer that if you’ve got a PhD in physics, or computer science who wants to stay here, and start a business here, we shouldn’t make it harder for them to stay here, we should try to encourage him to contribute to this society. I think that the agricultural sector, obviously has very specific concerns about making sure that they’ve got a workforce that helps deliver food to our table. So there’re gonna be a bunch of components to it, but I think whatever process we have needs to make sure border security’s strong, needs to deal with employers effectively, needs to provide a pathway for the undocumented here, needs to deal with the DREAM Act kids.

While it is remarkable that the strong Latino support has changed the dynamic on immigration reform, let us not forget that comprehensive immigration reform should also encompass all others who have been mired under a broken immigration system. President Obama did make reference to “[t]he business community continues to be concerned about getting enough high-skilled workers,” but he said it more as an afterthought. We completely and wholeheartedly support a pathway to legalization and citizenship for the millions of undocumented immigrants who have otherwise led productive lives in the US and benefit the country in more ways than one. Immigration reform should not be viewed as only a Latino issue, it is an American issue. The view that reform is a Latino issue is not surprising due to two reasons. First, most Americans continue to think that immigration benefits the immigrants not themselves. Second, because of that, business immigration is not deemed to have the ethical legitimacy the same way that family migration has. For that to change, for sweeping CIR to become reality, all of us must realize that immigration is not a problem to be controlled but an asset to be maximized.

Immigration reform will surely benefit immigrants, but in turn, will also benefits America. It will create a stimulus for the economy and make employers more competitive. We therefore hope that immigration reform will ameliorate the plight of beneficiaries of approved I-140 petitions who are stuck in the endless employment-based third (EB-3) backlogs. These are people whose employers have obtained labor certifications years ago, and who are in the pipe line for a green card, but for the oversubscription in the preference category. Indeed, the wait for an India EB-3 whose labor certification is filed today is anticipated to be 70 years. This is dysfunction at its worst. The wish list for reform is endless and that is because the system is so broken. We clearly need to expand family-based visa numbers too, and it is clearly inhuman to tolerate spouses of permanent residents to be waiting for 3 years before they can get green cards. We should bring back more due process as well as give more discretion to the USCIS or the Immigration Judge to decide whether an immigrant convicted of a crime should stay or be deported. The 3 and 10 year bars have had the perverse effect of creating a larger undocumented population in the US. Because of these bars, many are caught in a federal Catch-22. They are unable to apply for green cards in the US, but if they return to their home country to process for a visa at a US consulate they will be barred for 10 years. Ironically, sluggish economic growth has done what ever-stricter border enforcement could not. Illegal immigration has consistently receded in recent years, spiking in 2000 under President Clinton but down by a third by the time that President Obama took office. Between 2005-2010, the Pew Hispanic Center estimates that as many Mexicans departed these shores as arrived. Today, net migration from Mexico is non-existent.

We focus here in this blog on the need to also reform our employment-based immigration system. Future blogs will focus on other reform proposals. Any CIR proposal needs to contemplate an expansion of the number of green cards under the employment-based preferences so that an employer is able to obtain the services of a foreign national more quickly after the US labor market has been tested through the labor certification process. We also need more temporary work visas. The current 65,000 H-1B cap, along with the additional 20,000 H-1Bs reserved for graduates with advanced degrees from US universities does not meet the demands of US employers. Moreover, we eed to provide an incentive for foreign students whom we educate, especially in STEM (Science, Technology, Engineering and Math) fields, to not leave and compete with the US from their home countries. Studies have shown that the US is losing in the competition for global talent, and any reform proposal needs to stop this bleeding. There should also be better oversight over officers who are bent on denying temporary work visas because they have self-appointed themselves guardians of the economy or because they do not like a certain business model, such as India-based IT consulting, which is what the Neufeld memo sought to do. Officers must faithfully apply the law as intended by Congress. Finally, we also need to have a visa that will encourage entrepreneurs and startups in the US.

In addition to broadly reforming the employment-based immigration system, here are some additional pointers that can greatly improve the system we have presently. Even if there is reform of the employment-based immigration system, backlogs could still build up again the coming years. When the numbers in the employment and family-based system were last increased under the Immigration Act of 1990, who would have envisaged that the EB-3 for India would be a 70 year wait! As part of CIR, INA §203(d) should be modified to specify that family members should not be counted separate and apart from the principal alien to stop double or additional counting. Such double counting undermines the principle of family unity which is at the core of our immigration values. Also, when the Child Status Protection Act (CSPA) was enacted, the kind of visa retrogression we have today did not exist. Congress never anticipated systemic visa backlogs particularly affecting EB3 and EB2 for India and China. That is why they wrote the age formula the way they did. Not until the priority date is current can the pendency of the I-140 be subtracted from the chronological age to give you the CSPA age. In any CIR proposal this should be changed so that you only look to the age of the child when the I-140 is approved. That would make the CSPA relevant to backlogged categories, which is not now the case. We also propose that INA § 245(a)(3) be modified to allow the filing of an adjustment of status application without regard to the priority date. This could be possible for both FB and EB beneficiaries who have an approved an I-130 or I-140 petition. Such adjustment of status applications will be provisionally submitted with final approval subject, as under current law, to the immediate availability of an immigrant visa number.

With regard to H-1B visas, the truth is that a cap on H-1Bs is a cap on the US economy and should be removed. Since many Indian and Chinese students start work in the United States as temporary H-1B workers, we propose the creation of a streamlined or Blanket H-1B application process for large H-1B employers similar to the Blanket L system under which work visa applications can be presented directly to US Consulates abroad, thus bypassing the need for individual H applications with the USCIS. Allow large H-1B employers to enter into centralized application arrangements with US Consulates in connection with the Blanket H-1B similar to what the USCIS now offers many corporate employers so that economies of speed, efficiency, and informed adjudication can be achieved on a consistent basis. It would also be a good idea to remove the six-year maximum imposed by the Immigration Act of 1990 and transform the H-1B visa into what it really is, namely a "pre-immigrant" instead of a "non-immigrant" visa that it is not now and never has been. Also, end the ban on spousal employment for H-4s that cruelly and unnecessarily puts the promising careers of countless professional spouses into the deep freeze. There should be a broader more accessible visa, unlike the very limited H-2B visa we have today, for essential factory, hotel, restaurant, construction and farm workers. That will be the only way to ensure that the undocumented population does not build up again.

If the labor certification procedure will still exist in a CIR proposal, the notion of minimal qualifications that is required when an employer files a labor certification is wholly artificial and does not exist in the real world. Although the points system was suggested in earlier CIR proposals in 2006 and 2007, a points-based system may not effectively match the skills of potential immigrants with prospective employers. Those who wish to be productively self-employed as entrepreneurs can avail of a specific startup visa. CIR is a good opportunity to broaden the application of the equally qualified standard from academic to all PERM labor certification cases. We also suggest removing the need for print advertisements in all PERM cases since many employers, especially in IT, advertise only on the Internet; allowing use of experience with the same employer, and eliminating the need for a fixed job description that can never change no matter how long a wait till the green card. Keeping a PERM application so static will be totally unrealistic for EB backlogs if they again begin to accumulate.

The shocks waves of November 6th are only a harbinger of things to come. A new study by the Pew Hispanic center predicts that, within 20 years, 40 million Hispanics will be eligible to vote as compared to 23,7 million today. Hispanics are younger and have a higher birth rate than other groups. If the rate of Hispanic political participation reaches the level of Whites and African-Americans, we could experience a doubling of Hispanic voters by 2032. Hispanic voters will constitute fully 40% of the growth in the American electorate between now and 2030. If the rate of Hispanic naturalization rises, this would be even more powerful since 5. 4 million permanent residents of Hispanic heritage did not vote. Nativists should also take note of the fact that about 800,000 Latinos turn 18 each year. Furthermore, it was not just the strong Latino turn out in favor of Obama. Even Asian Americans, who make up 3% of the electorate, overwhelmingly supported Obama.

The graying of America may be the most serious domestic problem of the next quarter-century. As the massive baby boomer generation slouches towards retirement, an aging population needs the fountain of youth. Immigration may be the magic elixir. The US Census Bureau estimates that the number of elderly people over age 65 could rise from 34.6 million today to 82 million by the year 2050. This trend will be most evident between 2011 and 2030 when those baby boomers born from the late 1940's to the early 1960's hit retirement age. Census experts predict that the numberof senior citizens over this period will soar from 13% to 20% of the population. During the same time, the number of foreign-born people living in the United States should dramatically increase, both in absolute terms and as a percentage of the general population. Their number should grow from 26 million today to 53.8 million by the year 2050, an increase from 10 to 13% of the population. If these census statistics are correct, continued high levels of immigration will be necessary to provide a large enough workforce to support a rapidly aging America. The Census Bureau predicts the immigrants will become a majority in Texas within the next 14 years; five states will have a majority of non-White residents by 2025 and, in the course of the next half-century, Latinos may comprise about 25% of the entire US population. That's a lot of folks and they will no longer be concentrated in a select number of states, such as California, New York, Texas, or Florida, but will be distributed throughout the nation. They will be the deciding votes in elections on all levels and their voice will be a strong and powerful one in setting the political agenda. In 1998, the National Immigration Forum joined with the Cato Institute to publish a study by Stephen Moore on the fiscal impact of immigration. What he found was startling and directly relevant to the problem so much on the mind of Chairman Greenspan. Most immigrants arrive in the United States in the floodtide of their working years; more than 70% of them are over age 18 when they get here. Stephen Moore estimated that there were roughly 17.5 million immigrants now in America whose education was paid for by their home countries, not US taxpayers. He concluded that this represented an infusion of unearned human capital worth some $43 trillion into the US economy. At a time when fewer and fewer wage earners will have to be paying for growing retirement benefits enjoyed by more and more elderly, it is worth remembering that immigration is one of the main forces keeping the Social Security Trust Fund afloat. In 2007, for example, the Social SecurityTrust Fund realized a net benefit of $120-240 billion from undocumented workers in the shadow economy representing 5.4%-10.7% of the Fund’s total assets of $2.24 trillion. Immigration is an essential strategy that responsible policy makers must use in a robust way to solve the systemic problem of financing Social Security

For all these reasons, there is no alternative to sweeping comprehensive immigration reform. We are all in this together. The American poet James Russell Lowell famously wrote that “once to every man and nation comes the moment to decide.” This is our moment. The time to act is now.

OBAMA WINS AND SO DOES IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

Since President Obama’s decisive re-election victory, there has been a growing realization, mainly among Republicans, that the party will continue to be decimated in future elections if it does not take action on reforming the broken immigration system. It is clear that Romney’s comments on self-deportation, along with his embrace of Kris Kobach, the architect of the anti-immigrant laws of states like Arizona and Alabama, hurt him terribly among Hispanic voters in his quest for the White House. Recently, House majority leader John Boehner has pledged to work with the President and the Senate, which is controlled by the Democrats, to reach a deal on immigration. This would have been unthinkable before the election results on Tuesday, November 6 and is like music to the ears of immigration advocates who have been complaining for years about the need to fix the immigration system.

This bonhomie among GOP leaders and pundits for positive immigration reform may be short lived. Rancor may soon set in, as it is already happening, with regards to preventing the “fiscal cliff.” The country is still divided evenly, and a foreign newspaper, the Times of India, after the 2012 elections, astutely called us “The Divided States of America.” We still ardently hope that Congress can bring about comprehensive immigration reform (CIR), which would include an expansion of green card categories and temporary visas, along with the legalization of the 12 million or so undocumented people living here and contributing to the US. In order to prevent a buildup of the undocumented population in the future, reform must also allow for visas that would facilitate future flows of legal workers.

While all this is achievable, and a deal can be struck, it could also come apart if the bottled up enmity between the two parties flares up again. Notwithstanding the likes of Sean Hannity moving over to the side of CIR, there is bound to be rebellion in the rank and file of the Republican party, which considers CIR anathema. In his stirring victory speech Obama said, “We believe in a generous America, in a compassionate America, in a tolerant America, open to the dreams of an immigrant’s daughter who studies in our schools and pledges to our flag.” But Obama still has the ability to deliver his promise to the Hispanics, Asian Americans and others who voted him in and routed Romney in the event that Congress enters into another stalemate. He has a powerful card up his sleeve, and this is his ability to provide relief through administrative action. Administrative action is not a perfect alternative, as the President does not have the power to give green cards without Congressional authorization. But he does have the power to defer the deportation of large groups of undocumented immigrants, as he did through the Deferred Action for Childhood Arrivals (DACA) program, which we have shown can withstand judicial scrutiny. He can expand DACA to a broader group of undocumented immigrants who have lived in the US for say 5 years, and have not been convicted of a felony or three misdemeanors. As we have shown in our prior blog, Issues Ripe for Rulemaking: Some Modest Proposals, there is no prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required. This could be done purely by act of regulation or even through a policy memo. For those who want a statutory basis, the USCIS can rely on its parole authority under INA 212(d)(5) to grant such interim benefits for “urgent humanitarian reasons” or “significant public benefit.” This we have explained previously in Comprehensive Immigration Reform Through Executive Fiat.

Knowing the power of the President to take action on his own, Congress will want to remain relevant and protect its institutional prerogative by enacting legislation so as to avoid creating the opportunity for the exercise of presidential initiative.  That is why Obama might want to enlarge DACA to other groups, not as an alternative to CIR but to make it more likely. If he announces broader initiatives, he can use them as a bargaining chip to withdraw if and when Congress acts. The President remains the First Officer of our Government and, as the Republicans are beginning to realize, the political saliency of the immigration issue can no longer be denied or deferred. By keeping the pressure on through the sustained but disciplined assertion of executive initiative, the President makes it more likely, not less, that CIR will make the bumpy transition from rhetoric to reality.

ISSUES RIPE FOR RULEMAKING: SOME MODEST PROPOSALS

By Gary Endelman and Cyrus D. Mehta

Immigration lawyers are used to interpreting complex immigration statutes in the absence of regulations. Indeed, there has evolved a “common law” within immigration practice based on governmental guidance memos and even letters written by government officials in response to an attorney’s query. Immigration lawyers often refer to a letter of Efren Hernandez or Jacqueline Bednarz from more than a decade ago as if they have the halo of an authoritative and binding decision. The problem is that unless the government actually promulgates a regulation under the Administrative Procedure Act, such memos and letters are hardly binding. Still, stakeholders, including the government agencies, have conveniently created an illusion that they are binding, and readily cite to them, even when they are not.  From an immigration attorney’s point of view, the stakes are too high for challenging their authority. It is strategically prudent to demonstrate how their client qualifies under such informal agency guidance, and seek a quick approval, rather than challenge their validity in long drawn litigation. 

Agency interpretations advanced in “opinion letters” neither justify nor enjoy Chevron-style deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000) (contrasting interpretations in opinion letters with those “arrived at after…a formal adjudication or notice-and-comment rulemaking.”). Instead, “interpretations contained in less reliable formats such as opinion letter are ‘entitled to respect’ under Skidmore v. Swift., 323 U.S. 134, 140 (1944), but only if they have the ‘power to persuade.’” Christensen, 529 US at 587; see also Catskill Devel, LLC. V. Park Place Enter. Corp., 547 F.3d 115, 127 (2d Cir. 2008) (under Skidmore, agency viewpoint articulated in an opinion letter was “entitled to deference only to the extent that it ha(d) the power to persuade” the court).

Much of our legal reasoning rests upon a very uncertain foundation. One is reminded, for example, that all of the American Competitiveness in the 21^st Century Act (AC 21) interpretations upon which we routinely rely are not the product of APA rulemaking but of agency memoranda or opinion letters. To the extent that these may benefit us or our clients, let us remember that they are not endowed with Chevron-style deference and can be ignored or overturned by subsequent court rulings.  We have seen this in the context of AC 21 adjustment of status portability. In a 2009 decision styled Herrera vv USCIS, No. 08-55493, 2009 U.S.App. LEXISs 14592 (2009), the Ninth Circuit held that the revocation of an I-140 petition under INA 204(j) without bothering to acknowledge or distinguish the facts of the case  sub judice  from the 2005 Aytes Memo on AC 21, which states that a withdrawal of an I-140 petition after 180 days did not undermine portability. See Cyrus D. Mehta, Ninth Circuit In Herrera v. USCIS Rules that Revocation of I-140 Petition Trumps Portability, http://www.cyrusmehta.com/Print_Prev.aspx?Subldx=ocrus200979113434. 

Several years ago, stunned lawyers learned to their utter dismay that even opinions of the legacy INS General Counsel could not be counted on. Matter of Izumi, A 76 426 873 (decided by Associate Commissioner, Examinations, July 13, 1998). The absence of  guidance is the lawyer's worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is secondary and glossing over that which is truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator also is at sea. Uncertain what standards to employ, frustrated by a nagging suspicion that overly clever attempts by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst looks in vain for guidance that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is sure, almost anything can happen.  In the absence of borders, can order survive?

At the recently concluded CIS Second Annual Conference in Washington DC on October 18, 2012, Cyrus D. Mehta addressed key issues ripe for rulemaking involving unlawful presence, American Competitiveness in the 21st Century Act (known as "AC 21"), EB-5, Child Status Protection Act and more. A power point presentation, which is part of the conference record, lays out some areas that are in need of rule making as well as some areas that do not need new rulemaking. Of course, this presentation does not claim to cover every issue, but selects a narrow slice of issues, which can greatly benefit from rulemaking.  The need for rulemaking, in the opinion of the authors, can be broken into several components, as follows:

First, some areas are ripe for rulemaking especially when the law has been interpreted in a consistent and reasonable manner over several years through policy guidance memos.  Although there may be no compelling need for a rule, a rule affirming a guidance memo would create consistency and would guide all the agencies administering immigration law. One area that would benefit from such rulemaking is unlawful presence that triggers inadmissibility under INA 212(a)(9)(b)(B). There already exists a weighty USCIS May 6, 2009 Interoffice Memo providing guidance on unlawful presence, which has generally been accepted by the government and stake holders. Still, a   rule on unlawful presence  affirming this memo would bind CBP, where some offices have taken inconsistent position on Canadian overstays not being treated as if they are in duration of status (like students in D/S) and thus not accruing unlawful presence and triggering the 3 or 10 year bars. Such a rule could also potentially help to clarify the conundrum between maintenance of status and period of stay authorized by the attorney general (POSABAG)., as discussed in  this previous blog,  Cyrus D. Mehta, Victory in El Badrawi: Narrowing The Disconnect Between Status and Work Authorization, http://blog.cyrusmehta.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. It is incongruous to allow ICE to attempt to remove one from the US while that person has filed a timely application with USCIS to extend nonimmigrant status or is in the process of adjusting status to permanent residence.  The promulgation of a rule may also avoid differences in interpretations by US consulates, such as minors accruing unlawful presence for purposes of INA 212(a)(9)(C) bar when  minors do not accrue unlawful presence for purposes of the 3 and 10 year years under 212(a)(9)(B)(iii)(I).  Finally, such a  rule should affirm informal USCIS Chief Counsel Divine letter, July 14, 2006, holding that time spent for purposes of 3 or 10 year bars can be spent in the US, and not necessarily outside the US, See Cyrus D. Mehta,  Can One Spend The 3-And 10-Year Bars In The US? http://cyrusmehta.com/News.aspx?SubIdx=ocyrus2008982149&Month=&From=Menu&Page=30&Year=All.

Second, some areas simply cry out for a rule because the absence of which renders the statute inoperable. A regulation long overdue   will assist a group of EB-5 investor applicants who have filed removal of their conditional resident applications more than a decade earlier. The 21st Century Department of Justice Appropriations Authorization Act, H.R. 2215; PL 107-273 – which affect investors who filed I-526 applications between January 1, 1995 and August 31, 1999 and I-829 applications before November 2,2002 -  can only take effect upon the promulgation of a regulation.  Their I-829 applications still remain pending in 2012 due tot the absence of a  regulation. Even in the absence of such a long overdue regulation, EB-5s should at least be found eligible for naturalization as they have been conditional residents for over a decade.

Third, we can and should advocate for new or modified regulations, where there has been harshness and the impact to those seeking immigration benefits that may not necessarily reflect the plain meaning of the statute. Such regulations may also be in the spirit of the Obama administration’s policies concerning prosecutorial discretion. We make a few selected proposals that can greatly improve both efficiency and fairness: 

•Foreign equivalent degree determinations have caused hardship to employment-based beneficiaries of I-140 petitions, especially as they are inconsistent with the way H-1B foreign equivalent degrees are determined, and after the DOL has approved labor certification based on the employer’s good faith recruitment. The USCIS insists on a single source 4 year degree under an I-140 petition, and if the EB beneficiary has a degree  based on a three year foreign degree and post graduate diploma, it will not accept that as the equivalent of a US  4 year bachelor’s degree even if it was determined to be so for the H-1B visa. See Cyrus D. Mehta, EDGE Says Indian 2-Year Master’s Degree Following A 4-Year Bachelor’s Is Not Equivalent To A US Master’s Degree, http://blog.cyrusmehta.com/2012/01/edge-says-indian-4-year-bachelors.html. Many EB beneficiaries who would otherwise be able to qualify under the EB-2 have to qualify under the EB-3. If the equivalency is not properly defined on the PERM labor certification, the I-140 gets denied. We recommend that the current definition of “foreign equivalent degree” under 8 CFR 204.5(k)(2) and 204.5(l)(2) be modified to parallel the H-1B definition of equivalent degree under 8 CFR 214.2(h)(4)(iii)(D). 

•With respect to the Child Status Protection Act (CSPA),  we propose the issuance of a regulation overruling Matter of Wang, 25 I&N Dec.28 (BIA 2009), now that two circuit courts, Khalid v.Holder,  655  F.3d  363 (5th Cir. 2011)  and  De Osorio v.Mayorkas, __ F.3d __(9th Cir. 2012)  have rejected it.  Aged out children who cannot get CSPA protection should have the former priority date convert to a new F2B petition filed by the LPR parent under INA 203(h)(3).  Such  a policy is consistent with prosecutorial discretionary polices of Obama administration, including deferred action for childhood arrivals. See Cyrus D. Mehta, Reinterpreting The Automatic Conversion Provision Of The CSPA To Help DREAM Kids, http://blog.cyrusmehta.com/2011/09/reinterpreting-automatic-conversion.html. 

•Given that the endless waits in the China and India EB-2 India, and that the  EB-3 wait is long as 60 years, we propose an amendment to 8 C.F.R. § 245(g)(1), See Gary Endelman and Cyrus D. Mehta, Re-Defining “Immediately Available” To Allow Early Filing Of An Adjustment Of Status Application, http://blog.cyrusmehta.com/2010_03_01_archive.html, shown here in bold italics, that would expand the definition of visa availability and allow an I-485 application to be filed prior to the priority date becoming current under the Visa bulletin: 

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.  

•While INA 245 conditions adjustment of status on having a current priority date and meeting various conditions, there is no prohibition anywhere that would bar USCIS from allowing the beneficiary of an approved I-140 or I-130 petition to apply for an employment authorization document (EAD) and advance parole. No action by Congress would be required. This could be done purely by act of regulation. For those who want a statutory basis, the USCIS can rely on its parole authority under INA 212(d)(5) to grant such interim benefits for “urgent humanitarian reasons” or “significant public benefit.” See Gary Endelman and Cyrus D. Mehta, Comprehensive Immigration Reform Through Executive Fiat, http://blog.cyrusmehta.com/2010/04/comprehensive-immigration-reform.html.  

•Section 106(a) of AC 21 allows an H-1B visa holder on whose behalf a labor certification has been filed 365 days prior to the maximum time limit to obtain an H-1B extension beyond the six years. AC 21 Section 106(a) ought to also allow the spouse of an H-1B who is also in H-1B status to be able to go beyond the six year maximum without having his or her own labor certification. This used to be allowed but the Aytes Memo on AC 21 seems to suggest that only dependent H-4 spouses would get tthe benefit of such an extension. Now, both spouses need to have labor certifications filed on their behalf to obtain the benefit of AC 21 Section 106(a).  The statue itself has more flexibility and speaks of “any application for labor certification…in a case in which the certification is required or used by the alien to obtain status under section 203(b) of such Act.” (emphasis added). Under this interpretation, the H-1B husband who does not have his own labor certification can still use his H-1B wife’s labor certification on a derivative basis to file for adjustment of status. This interpretation can be implemented by the USCIS through a regulation and such remediation would be faithful to the generous spirit of AC 21. It would help to soften the hardship caused by chronic visa backlogs with respect to China and India as well as worldwide EB-3. The current interpretation placed upon AC 21 Section 106(a) is contrary to the intent of Congress. It is not enough to say that the H-1B spouse for whom a labor certification has not been filed can change to non-working H-4 status. Given the backlogs facing India and China, not to mention worldwide EB-3, it is simply realistic and punitive to deprive degreed professionals of the ability to work for years at a time but force them to remain to preserve their eligibility for adjustment of status. All this can be done with the stroke of a pen. See Gary Endelman and Cyrus D. Mehta: Two H-1B Spouses And One Labor Certification: Both Spouses Should Be Able To Seek 7^th Year H-1B Extensions Under AC 21, http://blog.cyrusmehta.com/2010/03/two-h-1b-spouses-and-one-labor.html. Of course, the issue of the spouse of an H-1B being limited for 6 years, who is also in H-1B status, can be obviated if USCIS goes ahead with its proposed regulation to allow H-4 spouses to work, but it has been allowed to languish and USCIS seems content to allow it to die. This proposed regulation also appears to limit the group of H-4 spouses who can potentially work, and we refer readers to our blog that advocates that H-4 spouses and children be granted employment authorization in the same way as L-2 or E spouses from the very moment an H-1B is admitted into the US. See Gary Endelman and Cyrus D. Mehta: Working: H-4 Spouses Get To Take A Leap Forward, But Is It A Giant One, http://blog.cyrusmehta.com/2012/02/working-h-4-spouses-get-to-take-step.html. 

•There is nothing in the INA, which suggests that derivative family members be counted in addition to the principal applicant under the employment-based and family-based preference. This has been carefully outlined in our article, Gary Endelman and Cyrus D. Mehta, Why We Can’t Wait: How President Obama Can Erase Immigration Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm.  INA 203(d) only states that “[a] spouse or child….be entitled to the same status and the same order of consideration …if accompanying or following to join, the spouse or parent.” Hence, there is ambiguity in the plain language of INA 203(d) to allow a rule that will not count all family members in addition to the principal applicant. Thus, a principal applicant with four derivative family members (spouse + 3 children) should only take one visa number and not 4 visa numbers from the preference categories. This will greatly assist in reducing the endless backlogs in the FB and EB preferences, which were not intended by Congress when it last increased visa numbers through IMMACT90.  There is no regulation in 8 CFR instructing what INA 203(d) is supposed to be doing. We do not claim that derivative beneficiaries are exempt from numerical limits. They are subject to numerical limitations in the sense that the principal alien is subject by virtue of being subsumed within the numerical limits that applies to this principal aline. There is a difference between not being counted at all, for which we do not contend, and being counted as an integral family unit as opposed to individuals. We seek not an exemption from numerical limits but rather a different way of counting such limits. 

Finally, there are legal issues, where regulations have already been promulgated, that do not require modification through a new rule just because of a new sentiment. For example, since the economic downturn, there has been a tendency on the part of immigration officials to become self appointed guardians of our economy, and with misguided zeal, they endeavor to protect jobs of American workers by reinterpreting the law. The definition of the employer-employee relationship for H-1B purposes is quite clear under 8 CFR 214.2(h)(4)(ii), and attempts to modify it through the Neufeld Memo are  simply not necessary, See Cyrus D. Mehta, Halcyon Days In H-1B Visa Processing,  http://blog.cyrusmehta.com/2010/02/halcyon-days-in-h-1b-visa-processing.html.  The Neufeld Memo too has been treated as interpretive guidance and not binding in Broadgate v. USCIS, http://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2010cv00941/142518/15.  We propose that the Neufeld Memo be withdrawn. Similarly, the L-1B specialized knowledge definition under 8 CFR 214.2(l)(1)(ii)(D) reflects the intent of  the Immigration Act of 1990 (IMMACT90), and there is no need to muddy the waters by restricting the definition by resurrecting administrative decisions prior to IMMACT90 when the specialized knowledge definition was more restrictive, and included proprietary knowledge, which was eliminated after 1990. 

What is blindingly transparent is that what we have now simply has broken down. Years pass after Congress enacts major immigration legislation and, time after time, implementing regulations are nowhere to be found. Is there anyone who knows anything about immigration practice who would not acknowledge a real and present need for rules that are clear, specific and accurate?  While the broad outlines of immigration policy are set by Congress what this policy means each day in real life is most often a matter of what the implementing regulations say. The job of Congress is to articulate a long- range vision while that of the Executive is to make short-term, tactical adjustments. 

How the agency puts the law into practice often has more to do with its ultimate impact, of lack of one, than the black letter law itself. The gap between what Congress intended and what the regulation mandates can often be the distance between rhetoric and reality. The proposals we advance reflect our core belief that the American economy would benefit from a more cooperative relationship between regulators and those they regulate.  We urge that traditional notice and comment rulemaking be informed by a creative exchange about possible solutions to ultimate problems. Our hope is that the rulemaking process itself facilitates mutual education on the proposed rule’s practical effect so that honest strategies can emerge capable of resolving fundamental differences. 

Those who believe as we do that immigration is good for America have their principles right. Our challenge as a nation is to translate these principles into practice. This is why we write. We do not expect that this will be easy but we ask our readers who shrink from the task to remember the story of the rebellious prince who ran away from the palace of his father the King. “Come back” said the King through his most trusted messenger, only to be told “I cannot.” Back came the royal reply: “Go as far as you can, and I will come to you the rest of the way.”

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