January 30, 2014


The Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states:
There will be no special path to citizenship for individuals who broke our nation’s laws that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the US, but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits). Criminal aliens, gang members, and sex offenders and those who do not meet the above requirements will not be eligible for this program. Finally, none of this can happen before specific enforcement triggers have been implemented to fulfill our promise to the American people that from here on, our immigration laws will indeed be enforced
Even if there is no special path to citizenship, the GOP document does not state that such legalized individuals cannot seek permanent residence and citizenship through normal channels within the existing, and most likely a reformed immigration system. While it would be really beneficial for the integration of the nation to have a special pathway to citizenship, like the Senate bill after individuals are put in a provisional status for 10 years and 3 more years as a permanent resident, such a proposal would still be welcomed by those who are out of status or have removal orders, with no other forms of relief to remain in the US. They will be able to live and work freely, and even potentially travel outside the US.  For those who presently lack such basic freedoms, who among them would not readily embrace their new life even if it is not all we or they would have hoped for?  If the existing immigration system is reformed to include more pathways to legal residence, then such individuals can still hope to become US citizens. Indeed, they could also potentially become citizens more quickly than the 13 year special path to citizenship under the Senate immigration bill.

Thus, as explained in our prior blog, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary. The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Many may have adult citizen children or spouses who can petition for their lawful permanent resident status.  Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long under the existing system. Then, there are also few avenues for obtaining a green card. If the GOP cannot provide a direct pathway to citizenship, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story. 

Whether to have a special pathway is not the only sticking point. The GOP document adamantly refuses to go to conference on the Senate’s immigration bill. Still, the other goals in the GOP principles have much in common with the Senate bill. Border security and interior enforcement must come first, there must be a fully functioning entry-exit visa tracking system, and like the Senate bill, a firm insistence on abandoning the paper-based work eligibility verification system with an electronic version. Such common goals can potentially still result in a compromise between the Senate and the House, even if the GOP document presently states that it will not go into conference on the Senate bill. 

Of course, the GOP appears to display a complete dislike for President Obama’s prosecutorial discretion policies – and there will also most likely be a legislative proposal stemming from it that would prevent the President from stopping immigration enforcement. On the other hand, prosecutorial discretion has always existed in law enforcement from time immemorial, and it will be impractical to prevent the Executive from exercising this prerogative. It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system for all these years, any administration, devoid of ideology, would have exercised discretion to remedy the imbalance. People on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 10 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it was wiser for this Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. This happened with the Deferred Action for Childhood Arrivals (DACA) program. The young individuals who have been able to legalize their status have gone onto completing college, getting jobs and benefiting the country.  The GOP document recognizes that it is time to allow children who were brought into country for no fault of their own, and who have no status, to obtain both legal residence and citizenship. DACA is a clear example of how bold administrative action by the Executive, based on prosecutorial discretion, can build consensus around a righteous principle that can ultimately be enacted into law. If the immigration system becomes more viable after reform, there will be less of a need for prosecutorial discretion. Still, there may be some cases that would deserve the exercise of discretion, and this should never be taken away from a President, whether Democratic or Republican, through legislation. 

Finally, the GOP document recognizes the need to attract foreign nationals who pursue degrees in American colleges to remain in the US, so that they can use their expertise in US industries that will spur economic growth and create jobs for Americans. “When visas aren’t available, we end up exporting this labor and ingenuity to other countries,” the document states. No one can dispute this.   The GOP document, also takes into account the need for future flows of temporary workers to come into the US legally in order to sustain the needs of the agricultural industry, among others.

All advanced industrial economies throughout the world, including the United States, must confront the prospect of dealing with aging populations and the societal challenges that result. Demographers have a term for those societies where the birth rates have fallen so low that they do not keep up with those who have died:” demographic winter”. Some nations, such as Japan, Italy and Russia are at or will soon reach this state of “demographic winter”.  In the United States, the Census Bureau estimates that, as the massive baby boomer generation slouches towards retirement, the number of elderly people over age 65 could soar to 82 million by the year 2050. Immigration provide the magic elixir , the fountain of youth. Compounded by growing automation, America will have fewer workers to pay for more social benefits to sustain a hugely expanded senior citizen population.  If such demographic projections are correct, continued high levels of immigration will be necessary to provide a large enough workforce to sustain a rapidly aging citizenry. Absent a sudden and unexpected rise in the birth rate, there is no other answer.

It is time that both sides of the aisles compromise to forge immigration reform that would be beneficial to the United States. According to a new Pew Report,  America with a 28% growth rate is in good shape, compared to its economic rivals including China and Brazil, and we have immigrants to thank for this. America can only continue to rely on immigrants to boost its workforce, widen the tax base and support the social security net if it admits more immigrants through immigration sensible reform. The GOP document does provide some chance for this to happen in 2014. 
There is a larger reason beyond the merits of the House GOP proposals why all sides should welcome this statement of principles as a step in the right direction.  It is vitally important for America to remain a healthy and functioning democracy that it have a political system where both major political parties accept the complexity of governing and confront the challenges of modernity. We tend to forget it now, and so do they, but the Republican Party was born in protest. The political expression of the Northern revulsion against the Dred Scott decision, the GOP embodied an aggressive nationalism that helped to usher America into the modern era. For some time now, there has been a civil war within the GOP over immigration between those who viewed immigrants as an asset to be maximized versus those who saw it as a problem to be controlled. There are historical antecedents for both camps. The pro-side can look back to Theodore Roosevelt, the first modern Republican president who was an outspoken advocate for the immigrant masses of the early 20th century while the nativist wing finds their ancestral justification in 1924 Immigration Act whose purpose and effect was to go back to the America of 1890 before the tsunami of Jewish and Catholic migration. Just as America needs true immigration reform, it needs both the Republican and Democratic Parties to be national in scope and outlook. What happened today is step in this direction. As the refugee Austrian actor Paul Heinreid (Victor Lazlo) tells Humphrey Bogart (Richard Blaine) in the immortal movie “Casablanca”: “Welcome back to the fight. This time I know that our side will win.”

January 19, 2014


In the ongoing litigation over the authority of the Department of Labor (DOL) to promulgate H-2B prevailing wage methodology in the Third Circuit, Louisiana Forestry Ass’n v. Secretary of Labor, No. 12-4030, the DOL wrote a letter  stating that the Board of Alien Labor Certification Appeals’ decision in Island Holdings LLC, 2013-PWD-00002 (BALCA 3, 2012) did not represent the legal position of the Secretary of Labor. The DOL had issued increased prevailing wage determinations to an employer after it changed its wage methodology through an Interim Final rule that took effect on April 24, 2013. The order to increase wages was issued after the DOL had already certified the labor certification for the H-2B workers at a lower wage.  BALCA in Island Holdings invalidated the wage increases on the ground that there was no specific statutory or regulatory authority that would authorize DOL to increase the wage rate at an unknown future date.
The DOL’s letter to the Third Circuit disregarding the BALCA ruling in Island Holdings would have enormous implications on labor certification practice and administrative law. We credit Wendel Hall of C.J. Lake, counsel in the Island Holdings case, for alerting us to the significance of this issue and also bringing it to the attention of DOL itself.  If BALCA does not speak for DOL, is it necessary to exhaust administrative remedies before challenging a PERM denial in federal court? If BALCA does not speak for DOL, should the courts pay Chevron style deference to BALCA decisions? Can DOL ignore other BALCA decisions on PERM since BALCA does not speak for Secretary of Labor?
The Supreme Court established a two-step analysis in Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) for evaluating whether an agency’s interpretation of a statute it is entrusted to administer is lawful. Under Step One, the court must determine whether Congress has clearly spoken to the precise question at issue in the plain terms of the statute. If that is the case, there is no need for the reviewing court to delve any further.  Under Step Two, if the statute is silent or ambiguous, the reviewing court must determine whether the agency’s interpretation is based on a permissible construction of the statute.  A permissible interpretation of the statute need not be the best interpretation or even the interpretation that the reviewing court would adopt. Step Two is commonly known as Chevron deference where the reviewing court grants deference to the agency’s permissible interpretation of an ambiguous statute.
Still, Chevron deference cannot be accorded unless there is an agency construction of a statute to which the federal court must defer. DOL has now told the 3rd Circuit that BALCA does not speak for the Secretary of Labor since the administrative law judges on BALCA are only subordinate DOL employees. Therefore, an interpretation by BALCA does not represent the official view or understanding of the DOL. For this reason, one may never reach the question of deference since there is no agency finding or interpretation capable of commanding it. In United States v. Mead, 533 U.S. 218 (9th Cir. 2001), the Supreme Court held that not all agency interpretations qualify for Chevron deference, and deference is only accorded “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”    Using the Mead language or rationale, one can conclude that, since DOL has now decided that BALCA does not speak for the DOL, Congress has not delegated any interpretive authority to BALCA. Hence, no deference can or should be paid to any BALCA ruling.  Such a ruling would appear not to be entitled to deference
Even under the lower  standard in Skidmore v. Swift & Co, 323 U.S. 134 (1944) the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.”  If DOL does not think that BALCA speaks for the Secretary of Labor, using the Skidmore criteria, how can BALCA ever have the power to persuade? Not having that, any BALCA decision would not be invested with any deference under Skidmore.
Finally, in Auer v. Robins, 519 US 452 (1977), the Supreme Court held that the same Chevron type of deference applies to the agency’s interpretation of its own regulations. However, even under the Auer concept of deference, which gives federal agencies the right to interpret their own regulations, there would be no deference to a BALCA decision since the DOL has now told the Third Circuit that an opinion by BALCA is not an interpretation by the DOL but only an expression of what individual subordinate DOL employees think.
Since DOL does not think BALCA speaks for the Secretary of Labor, is there a need to exhaust administrative remedies before challenging a PERM labor certification denial in federal court? Moreover, if no deference to a BALCA decision is justified or required, can there be a failure to exhaust? We doubt it. If DOL does not think that BALCA speaks for the agency, how can an appeal to BALCA be mandatory despite 20 CFR 656.24(d)(e)(3) that advises an employer a failure to appeal to BALCA within 30 days constitutes a failure to exhaust. How can going to BALCA be a mandatory administrative remedy when BALCA speaks only for itself and not the DOL?  There is a conflict between this regulation and the DOL view in the 3rd Circuit Louisiana Forestry case. This regulation is key since, for Administrative Procedure Act purposes, only if exhaustion is required by an agency regulation can recourse to the federal courts be barredDarby v. Cisneros509 US 137, 144-54 (1993) 
The four criteria set forth in Darby v. Cisneros in order to bypass an administrative appeal, are as follows:
  • Federal review has been brought pursuant to the APA;
  • There is no statute that mandates an administrative appeal;
  • Either: a) there is no regulation that mandates an administrative appeal; or b) if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and
  • The adverse agency decision to be challenged is final for purposes of the APA.
BALCA cannot provide an administrative remedy to the parties concerned since its decisions do not represent the official view of the DOL. Rather than constituting “superior agency authority” to use the language of Section 10 (c ) of the APA, 5 USC 704, BALCA consists of a collection of subordinate DOL employees  in the view of the DOL itself. Since that is the case, BALCA “lacks the ability or competence to resolve the issue or grant the relief requested…” Iddir v. INS, 301 F.3d 492, 498 (7th Cir. 2002).  
None of the various reasons most regularly advanced for the exhaustion doctrine apply here given the DOL repudiation of BALCA as the final expression of the DOL. The need to first appeal to BALCA does not promote administrative efficiency since it can be ignored by the DOL as the individual perspectives of subordinate employees. For the same reason, it will not avoid needless litigation or promote the conservation of judicial resources. When DOL agrees with BALCA, it accepts what BALCA says. When DOL disagrees, it can tell the court, as here, that BALCA does not speak for the DOL.  This is how and why the lack of deference is linked to the absence of any need to exhaust remedies.
Aggrieved employers and aliens may wish to directly seek review in federal court than seek review at BALCA after the DOL’s letter to the Third Circuit. Strategically, going directly into federal court may be advantageous if the plaintiff wished to challenge a regulation on constitutional grounds rather than waste time with BALCA, which may not have jurisdiction over such a challenge. Moreover, if the employer desires to file a new PERM application, and still seek review of the old denial, going to BALCA would preclude the filing of a new application until there was a final adverse decision. 20 CFR § 565.24(e)(6). The same prohibition does not apply if the aggrieved employer directly goes into federal court.
Finally, 20 CFR 656.26 does not require an alien to go to BALCA; indeed, the alien has no such right. In the labor certification context, the alien is not even informed of a right to appeal in contrast to the  notification of such right provided to an alien investor,  8 CFR 204.6(k), or fiancé(e) , 8 CFR 123.2 (k)(4). Then, under Darby, an alien ought to be able to get APA standing even if the employer does not seek review of the denial with BALCA, which in any event has been downgraded by the DOL.  The Sixth Circuit in Patel v. USCIS very recently held that an alien had standing to seek review of the denial of an I-140 petition as the alien’s interests are within the zone of interests protected by INA section 203(b)(3). See also Stenographer Machines v. Regional Administrator for Employment and Training, 577 F.2d 521 (7th Cir. 1978); Cf Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) (although alien has standing to sue on a denied labor certification, government’s motion to dismiss granted due to absence of employer’s participation in the litigation).  Given that the DOL has rendered BALCA irrelevant in its letter to the Third Circuit, aliens ought to be able to bolster their argument about seeking review of a denied PERM labor certification in federal court. 
The DOL repudiation of BALCA as an authoritative voice calls into question the relevancy of BALCA itself. If BALCA does not speak for the DOL to a federal judge, how can it do so in any other context? Can BALCA represent the DOL in an administrative law sense only?  Is it possible for BALCA to be invested with a sense of finality only with respect to decisions on labor certification, both temporary and permanent, but to lose such imprimatur should the DOL go into court? To answer these questions, we would do well to cast our minds back to the reason that DOL created BALCA in the first place. At that time, the DOL’s administrative decisions were neither consistent nor uniform. So the DOL revised the regulations to create a Board of Alien Labor Certification Appeals (BALCA) in 1987 to replace the system of appeals to single administrative law judges within the DOL. The rule creating the BALCA said, “[T]he Board will enhance uniformity and consistency of decisions.” 52 Fed. Reg. 11218 (Apr. 8, 1987). A subsequent BALCA decision explained: “The purpose of the Board is to provide stare decisis for the immigration bar.” Matter of Artdesign Inc., 89–INA–99 (Dec. 5, 1989). Subsequently, however, these goals were not achieved, and the BALCA invented a device (the en banc decision) to resolve inconsistencies in BALCA decisions. The BALCA suffers from a strange defect: unlike the DHS and the BIA where regulations exist that make BIA decisions binding on all officers and employees of the Service and Immigration Judges, BALCA decisions cannot command unquestioning obedience from the federal agency it claims to represent. Yet, until today, both the regulators and the regulated assumed that BALCA spoke not merely or even primarily for the administrative law judges themselves but for the Department of Labor. Now, we are not so sure.

(Guest writer Gary Endelman is the Senior Counsel at FosterQuan)

January 13, 2014


By David A. Isaacson 

Under the Immigration and Nationality Act (“INA”), there are three ways that adopted children can qualify as the children of a U.S. citizen parent for purposes of acquiring lawful permanent resident status, and generally derivative U.S. citizen status, through that adoptive parent.  Section 101(b)(1)(E) of the INA, perhaps the most familiar, defines an adopted child as a child for immigration purposes where the child was adopted under the age of 16 (or under the age of 18 and is the sibling of a child adopted by the same parents while under the age of 16), and “has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years.”  Sections 101(b)(1)(F) and 101(b)(1)(G) of the INA provide different procedures for children sometimes referred to as orphans, depending upon whether the child is from “a foreign state that is a party to the Convention on Protection of Children in Respect of Intercountry Adoptions, done at The Hague on May 29, 1993,” commonly referred to as the Hague Adoption Convention.  By regulation, according to 8 C.F.R. §204.2(d)(2)(vii)(D), the regular 101(b)(1)(E) procedures based on two years of legal custody and joint residence may not be used to file an I-130 petition for certain children from countries that have subscribed to the Hague Adoption Convention.  In an interim memorandum posted by USCIS on January 3, 2014 (although dated December 23, 2013) and designated PM 602-0095, however, USCIS has indicated that it will somewhat narrow the class of children ineligible for regular 101(b)(1)(E) procedures.

To understand PM 602-0095, it is important to understand the background of the problem that it addresses.  Pursuant to 8 C.F.R. §204.2(d)(2)(vii)(D), which governs I-130 petitions filed for an adopted child based on INA §101(b)(1)(E),

On or after the Convention effective date, as defined in 8 CFR part 204.301, a United States citizen who is habitually resident in the United States, as determined under 8 CFR 204.303, may not file a Form I-130 under this section on behalf of child who was habitually resident in a Convention country, as determined under 8 CFR 204.303, unless the adoption was completed before the Convention effective date. In the case of any adoption occurring on or after the Convention effective date, a Form I-130 may be filed and approved only if the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.

That is, for an adoption completed after the April 2008 effective date of the Hague Adoption Convention, USCIS will not approve an I-130 petition for “a child who was habitually resident in a Convention country” unless “the United States citizen petitioner was not habitually resident in the United States at the time of the adoption.” A list of Convention countries is available on the State Department website.

The reader may wonder at this point why the unavailability of an I-130 petition under INA §101(b)(1)(E) would be a problem for a child from a Hague Adoption Convention country, if Hague Adoption Convention procedures under INA §101(b)(1)(G) can be used instead.  The answer is that the procedures under INA §101(b)(1)(G) are designed for cases in which the petitioner seeks out a child in a foreign country for the specific purposes of adoption and immigration, and are ill-fitted for many cases in which an adoptive relationship already exists before any thought of immigration benefits has entered anyone’s mind, or in which the child already resides in the United States.  For example, one factor ordinarily requiring the denial of a Form I-800 petition under the Hague procedures, according to 8 C.F.R. §204.301(b)(1), is that “the petitioner completed the adoption of the child, or acquired legal custody of the child for purposes of emigration and adoption, before the provisional approval of the Form I-800,” unless “a competent authority in the country of the child’s habitual residence voids, vacates, annuls, or terminates the adoption or grant of custody and then, after the provisional approval of the Form I-800 . . . permits a new grant of adoption or custody.”  Many adoptive parents are understandably horrified at the thought of giving up custody of an adopted child with whom they have had a parental relationship for some time, in order to allow the Hague Adoption Convention procedures to play out.  Also, unless the child was already related to the adoptive parent in one of several ways listed in the regulations at 8 C.F.R. §204.301(b)(2)(iii), any contact with the child’s biological parents before the Hague process begins can be grounds for denial of the I-800 petition under 8 C.F.R. §204.301(b).  Even if these pitfalls are avoided, Form I-800 cannot be approved for a child who is in the United States “unless the petitioner, after compliance with the [regulatory] requirements . . . either adopt(s) the child in the Convention country, or else, after having obtained custody of the child under the law of the Convention country for purposes of emigration and adoption, adopt(s) the child in the United States.”  8 C.F.R. 204.309(b)(4).  Thus, where there is a pre-existing adoptive relationship or other obstacles to the Hague Adoption Convention process would apply, U.S. citizen adoptive parents may be anxious to escape the bar of 8 C.F.R. §204.2(d)(2)(vii)(D) and obtain approval of an ordinary I-130 petition based on two years of legal custody and residence with the child under INA §101(b)(1)(E)

The regulations make clear one way in which a U.S. citizen petitioner can escape from the bar of 8 C.F.R. §204.2(d)(2)(vii)(D), by demonstrating that the U.S. citizen petitioner is not habitually resident in the United States. According to 8 C.F.R. §204.2(d)(2)(vii)(E), “[f]or purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United States citizen . . . to have been habitually resident outside the United States, if the citizen satisfies the 2-year joint residence and custody requirements by residing with the child outside the United States.”  That is, so long as the two-year joint residence and physical custody requirements are fulfilled by the petitioner residing with the adopted child outside the United States, an ordinary I-130 petition may be approved under INA §101(b)(1)(E).  USCIS has also clarified, in a Memorandum dated October 31, 2008, and incorporated in relevant part into Chapter 21.4(d)(5)(F) of the USCIS Adjudicator’s Field Manual, that the 8 C.F.R. §204.2(d)(2)(vii)(E) exception is “not the only situation in which the adoptive parent may claim not to have been habitually resident in the United States at the time of the adoption.” Rather, “[t]here may be other situations in which the adoptive parent can establish th[at] he or she was not domiciled in the United States, and did not intend to bring the child to the United States as an immediate consequence of the adoption.”  In such other cases of a non-habitually-resident petitioner, as well, USCIS has recognized that “the Hague Adoption Convention process would not apply.”

Where the U.S. citizen petitioner is admittedly a habitual resident of the United States, but it appears that the adopted child may be a habitual resident of the United States as well (in which case the Hague Adoption Convention procedures again should not apply), things get more complicated.  At least part of the regulations err on the side of presuming that a child who has come to the United States from a Hague Adoption Convention country is still a habitual resident of that country, so that an I-130 petition for that child by a U.S. citizen parent habitually resident in the United States will not be allowed.  Title 8, section 204.2(d)(2)(vii)(F) of the Code of Federal Regulations provides:

For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will not approve a Form I-130 under section 101(b)(1)(E) of the Act on behalf of an alien child who is present in the United States based on an adoption that is entered on or after the Convention effective date, but whose habitual residence immediately before the child's arrival in the United States was in a Convention country. However, the U.S. citizen seeking the child's adoption may file a Form I-800A and Form I-800 under 8 CFR part 204 , subpart C.

Read in isolation, this might suggest that a child who resided in a Hague Adoption Convention country before coming to the United States could never be the beneficiary of an I-130 petition by a U.S. citizen adoptive parent habitually resident in the United States.  Another portion of the regulations, however, provides for a determination regarding the child’s habitual residence:

If the child’s actual residence is outside the country of the child's citizenship, the child will be deemed habitually resident in that other country, rather than in the country of citizenship, if the Central Authority (or another competent authority of the country in which the child has his or her actual residence) has determined that the child's status in that country is sufficiently stable for that country properly to exercise jurisdiction over the child's adoption or custody. This determination must be made by the Central Authority itself, or by another competent authority of the country of the child's habitual residence, but may not be made by a nongovernmental individual or entity authorized by delegation to perform Central Authority functions. The child will not be considered to be habitually resident in any country to which the child travels temporarily, or to which he or she travels either as a prelude to, or in conjunction with, his or her adoption and/or immigration to the United States.

8 C.F.R. §204.303(b).  The “Central Authority”, as the term is used here, refers to an entity designated under the Hague Adoption Convention by a Convention country to perform functions under the Convention, as explained in the definitional provisions at 8 C.F.R. §204.301.
In its October 31, 2008 Memorandum, USCIS recognized that under certain circumstances, a child resident in the United States should be exempt from the seeming bar of 8 C.F.R. §204.2(d)(2)(vii)(F) to approval of an I-130 petition under INA §101(b)(1)(E), where the Central Authority of the child’s country had determined that the child was no longer a habitual resident of that country.  As the October 31, 2008 Memorandum explained:

There may be situations, however, in which the parent is not able to complete a Hague Adoption Convention adoption, because the Central Authority of the child’s country has determined that, from its perspective, the Hague Adoption Convention no longer applies to the child. The purpose of 8 CFR 204.2(d)(2)(vii)(F) is to prevent the circumvention of the Hague Adoption Convention process. Thus, USCIS has determined that 8 CFR 204.2(d)(2)(vii)(F) must be read in light of the Hague Adoption Convention regulations in subpart C of 8 CFR part 204. If, under subpart C, there is a sufficient basis for saying that the Hague Adoption Convention and the implementing regulations no longer apply to a child who came to the United States from another Hague Adoption Convention country, then USCIS can conclude that 8 CFR 204.2(d)(2)(vii)(F) no longer applies.

The governing regulation, 8 CFR 204.303(b), explains when the child is habitually resident in a country other than the country of citizenship. This regulation does not explicitly apply to children in the United States, but USCIS has determined that it can be interpreted to permit a finding that a child who, under 8 CFR 204.2(d)(2)(vii)(F), is presumed to be habitually resident in another Hague Adoption Convention country can be found to be no longer habitually resident [in] that country, but to be habitually resident, now, in the United States. USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) no longer precludes approval of a Form I-130 if the adoption order that is submitted with the Form I-130 expressly states that, the Central Authority of the other Hague Adoption Convention country has filed with the adoption court in the United States a written statement indicating that the Central Authority is aware of the child’s presence in the United States, and of the proposed adoption, and that the Central Authority has determined that the child is not habitually resident in that country. A copy of the written statement from the Central Authority must also be submitted with the Form I-130 and the adoption order.

If the adoption order shows that the Central Authority of the other Hague Adoption Convention country had determined that the child was no longer habitually resident in that other Hague Adoption Convention country, USCIS will accept that determination and, if all the other requirements of section 101(b)(1)(E) are met, the Form I-130 could be approved.

October 31, 2008 Memorandum at 5.  As USCIS explained later in PM 602-0095, summarizing prior guidance, a modified version of this process could also be used even if the adoption had already occurred: “In cases where the written statement from the Central Authority in the child’s [country of origin] is not obtained until after the adoption was finalized, petitioners would have to submit an amended order that contains the required language, as well as the written statement.” PM 602-0095 at 2.

This process for the recognition by USCIS of a determination by the Central Authority of the child’s country of citizenship that the child was no longer habitually resident there was based on the assumption that the Central Authority in the country where the child has been habitually resident (referred to by USCIS as the “Country of Origin,” or COO for short) would cooperate in issuing a determination.  Practitioners and USCIS subsequently discovered, however, that the Central Authorities of some of the Hague Adoption Convention countries in which children had been habitually resident  were not willing to cooperate with the process.  As USCIS explained:

The guidance did not completely resolve the problem it was intended to resolve. In some instances, the Central Authority in the COO either cannot or will not take a position concerning whether the child is still habitually resident in the COO. Thus, the adoptive parent(s) may be unable to establish either that the Hague Adoption Convention did not apply to the adoption, or that the adoption was completed in accordance with the Hague Adoption Convention process.

PM 602-0095 at 2-3.  It was “[i]n light of this development” that USCIS provided additional guidance in PM 602-0095, which has been incorporated into Chapter 21.4(d)(5)(G) of the Adjudicator’s Field Manual.

Under PM 602-0095, the previous policy regarding instances in which the Central Authority of the COO has given a determination of lack of habitual residence remains intact.

It remains USCIS policy that USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if the adoption order (or amended order) expressly states that the Central Authority in the COO advised the adopting court that the Central Authority was aware of the child’s presence in the United States, and of the proposed adoption and did not consider the child habitually resident in the COO. The written statement from the Central Authority must accompany the Form I-130 and the adoption order (or amended order).

PM 602-0095 at 3.  However, under certain circumstances, USCIS is now willing to proceed along these  same lines without an affirmative statement from the Central Authority of the COO:

In cases where the COO has a policy of not issuing statements of habitual residence, or where the petitioners show that they have attempted to obtain the statement of habitual residence from the COO for at least 6 months with no response, and the child was not paroled into the United States, USCIS will determine that 8 CFR 204.2(d)(2)(vii)(F) does not preclude approval of a Form I-130 if:

1.      At the time the child entered the United States, the purpose of the entry was for reasons other than adoption (intent criteria);
2.      Prior to the U.S. domestic adoption, the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States, (actual residence criteria); and
3.      Any adoption decree issued after February 3, 2014, confirms that the COO Central Authority was notified of the adoption proceeding in a manner satisfactory to the court and that the COO did not object to the proceeding with the court within 120 days after receiving notice or within a longer period of time determined by the court (notice criteria).

PM 602-0095 at 3.    

Pages 4 through 6 of PM 602-0095 list in detail the required evidence that should be provided in order to establish these criteria to the satisfaction of USCIS, and the other factors that USCIS may consider in regard to these criteria.  In regard to the first criterion, intent at time of entry, one particularly significant requirement is that of an “[a]ffidavit from the petitioning adoptive parent(s),” or “APs,” which USCIS indicates should include:
  • ·         Description of child’s circumstances prior to child’s entry to the United States (i.e., Where did the child live and/or go to school? Who cared for the child? What events led to the child’s travel to the United States? Reason for the child’s travel to the United States?).
  •  ·         List of individuals who have cared for the child since his or her entry into the United States and the relationship to the child.
  •  ·         Description of any contact the adoptive parents had with the child, or any contact with the child’s birth parents, or any adoption or child welfare agency or NGO (in the United States or abroad) related to the child that took place:
(a) before the child came to the United States; or,
(b) after the child’s arrival but before a court placed the child with the AP(s).
  • ·         Sworn statement from AP(s) stating under penalty of perjury that on the date of the child’s entry into the United States the AP(s) did not intend to adopt the child nor intend to circumvent the Hague Adoption Convention procedures.
PM 602-0095 at 4. 

Other “[e]vidence establishing the timeline and course of events that led to the child’s availability for adoption by the adoptive parents” is also important.  USCIS will consider a “court order containing findings related to the child’s purpose for entering the United States, if available”, as well as the results of checks of U.S. government systems regarding entry on a visa or by the Visa Waiver Program.  PM 602-0095 at 4.  “Evidence that the child was a ward of a U.S. State or State court prior to the adoption” will be considered, and “should establish that the child was a ward of a U.S. State or State court prior to the adoption.”  Id. at 4-5.  USCIS will also consider as favorable certain factors which would normally be of relevance in a Hague Adoption Convention process, specifically:
  •          Evidence of birth parent’s inability to provide proper care for the child.
  •          Evidence to establish one or both birth parents are deceased.
  • ·         Evidence to establish any living birth parents freely consented to the proposed adoption OR the birth parents’ parental rights were fully and properly terminated.
Id. at 5.  On the other hand, “[a]ny evidence that suggests that the entry was for the purpose of adoption” will be considered as an adverse favor, and “[a] prior adoption in the COO by AP(s) in United States is a heavily weighted adverse factor, but not a bar.”  Id.

With respect to the Actual Residence criterion, PM 602-0095 presumes that this criterion has been satisfied “if the child was physically present in the United States for two years or more prior to the adoption.” Id. at 5.  Otherwise, a variety of evidence will be considered:

Absent such presumption, adjudicators must consider the length of time that the child has spent in the United States prior to the adoption and supporting evidence establishing the child’s actual residence and compelling ties in the United States prior to the adoption.
O Depending on the child’s age, documentation from the time period prior to adoption
may include:

·         Evidence of continuous medical care in the United States;
·         Statement from petitioners explaining the child’s social interactions, including family and peer relationships;
·         School records;
·         Registration for extra-curricular activities;
·         Affidavits from knowledgeable individuals (such as the child’s doctor or teacher, day care provider, landlord, or neighbors) attesting to the child’s actual residence in the United States;
·         Evidence that the child’s birth parent, guardian, or caretaker resided in the United States.

Id. at 5.  “A Court order finding that the child actually resided in the United States for a substantial period of time, establishing compelling ties in the United States prior to the adoption” will be considered as well, as will “[e]vidence that the child was a ward of the state or court prior to the adoption.”  Id.  “Evidence that the child lived outside of the United States shortly before the adoption” will be counted as adverse evidence in the Actual Residence determination.

For the third, Notice criterion, what is required is, as one might expect, evidence that the COO Central Authority has been notified of the objection and has declined to object or has not responded for the required period.  The “Required Evidence” according to PM 602-0095 for this purpose is:

o Evidence of notice to the COO Central Authority of the pending adoption providing the Central Authority 120 days to object. Notification should include the following language:
·         If you do not intend to object, please notify the court.
·         If you require additional time beyond 120 days, please notify the court.
o Evidence of the COO’s non-objection must be incorporated into the language of the adoption order.

·         If AP(s) filed the Form I-130 with a court order that lacks the COO non-objection language, USCIS may RFE for an amended order. The petitioner(s) do not need to submit the actual statement from the COO, however USCIS may issue an RFE requesting it if necessary.

The new process set out in PM 602-0095 is a significant improvement on the former situation of adoptive parents potentially facing a bar to petition approval if the COO’s Central Authority chose not to get involved in the case, and for that USCIS should be commended.  However, it is not a complete solution, for several reasons.  The current version of PM 602-0095 excludes children whom it ought to have helped, and is unavailable to certain adoptive parents who have done nothing wrong and ought to be able to avail themselves of its protections.

One notable anomaly in PM 602-0095 is that it applies only where “the child was not paroled into the United States.”  The parole exception is presumably designed to avoid the scenario where prospective adoptive parents apply for humanitarian parole for a child with the concealed purpose of adopting that child.  If this is the thinking behind the exception, however, then it appears to be seriously overbroad.  Consider a scenario where a child may have entered on advance parole in connection with a parent’s application for adjustment of status, for example, years before being orphaned by the death of the primary-applicant parent or abandoned by that parent.  If that child, years after entry on advance parole, is adopted by a U.S. citizen, and if the Central Authority in that child’s country of origin will not cooperate with the determination of habitual residence, refusing to allow approval of an I-130 petition for that child serves no apparent policy purpose and appears pointlessly cruel. 

The requirement that “[a]t the time the child entered the United States, the purpose of the entry was for reasons other than adoption,” PM 602-0095 at 3, also seems overbroad given the lack of an expressed time limitation.  Logically, intent to adopt a child at the time of the child’s entry into the United States should not be considered problematic if the child’s country of origin, or the United States, were not signatories to the Hague Convention at the time of the entry.  If a child entered the United States before April 1, 2008, for the purpose of adoption, but the adoption was finalized after that time (thus potentially subjecting the child and adoptive parents to the strictures of the Hague Adoption Convention), what purpose is served by denying an I-130 petition filed for such a child who has established compelling ties in the United States, and to whose adoption the COO Central Authority has not objected after being given notice?

The requirement of a sworn statement from the adoptive parent or parents “stating under penalty of perjury that on the date of the child’s entry into the United States [they] did not intend to adopt the child,” PM 602-0095 at 4, is also overbroad in another way beyond the underlying substantive criterion: it is in tension with the notion of dual intent which exists elsewhere in immigration law.  Earlier in PM 602-0095, as discussed above, the substantive criterion is said to be that “the purpose of the entry was for reasons other than adoption.” Id. at 3.  But just as the law recognizes that an H-1B temporary worker may have both a bona fide intent to enter temporarily as a nonimmigrant, and a latent intent to adjust status if possible later on, USCIS should recognize that adults may have the dual intent to provide shelter and temporary guardianship to, for example, an underage F-1 student, while simultaneously having the latent intent to adopt the child later if circumstances develop in such a way that this seems advisable.  (The author thanks Cyrus D. Mehta for inspiration regarding the relevance of the dual-intent notion to this context.)  To require adoptive parents to forswear previous adoptive intent, rather than stating under penalty of perjury that some other legitimate intent besides adoption existed on the date of the child’s entry into the United States, ignores the possibility of dual intent and is in that sense overbroad.

USCIS has offered PM 602-0095 as an interim memo for comment, with the comment period ending on January 17, 2014, and so there may be time to fix these problems.  The author of this blog post will likely submit a comment regarding PM 602-0095 in line with the above observations.  Readers who agree with these observations may wish to consider doing so as well.