AMERICA CANNOT BE OPEN FOR BUSINESS THROUGH AN H-1B VISA LOTTERY

By Gary Endelman and Cyrus D. Mehta

In America, the best day of the week has always been tomorrow except, it seems, when it comes to immigration. On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

The congressionally mandated cap on H-1B visas for FY 2016 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more petitions than the H-1B cap during the first five business days of this year's program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed. USCIS used the lottery for the FY 2015 program last April. It is anticipated that USCIS will also use the lottery again for the FY 2016. The very existence of the H-1B lottery speaks most eloquently to the economic illiteracy of the current H-1B cap. Perhaps more than any other visa, the H-1B is viewed by those in charge as a problem to be contained, not an asset to be maximized. In a political system that has an almost mystical faith in the market, the inflexibility that characterizes the H-1B cap is eloquent testimony to an absence of imagination and a refusal to let the market set the level of H-1B demand.

A few days back, President Obama addressed the SelectUSA Investment Summit, and these were his words:

So the bottom line is this:  America is proudly open for business, and we want to make it as simple and as attractive for you to set up shop here as is possible.  That is what this summit is all about.  I hope you take full advantage of the opportunities that are here.

These words sound hollow if employers who desire to hire foreign talented workers on the H-1B visas have to depend on a lottery. If an H-1B visa petition is selected, the foreign worker can only start employment on October 1, 2015. If the H-1B visa petition is not selected, the employer has to try again in April 2016, with the hopes that the employee will come on board on October 1, 2016. It is self evident that the cap hinders the ability of a company to hire skilled and talented workers in order to grow and compete in the global economy. The hiring of an H-1B worker does not displace a US worker. In fact, research shows that they result in more jobs for US workers. The notion of a nonsensical quota reminds us of Soviet era central planning, and then to inject a casino style lottery into the process, just rubs salt into an oozing old wound. The lack of flexibility that robs our H-1B policies of any notion of flexibility reflects a bedrock belief, as wrong as it can possibly be, that immigration is only for the benefit of the immigrants. It is about them, we seem to be saying, not about us. Our self-interest is not at stake. Not only is this economically incoherent but it ignores the moral integrity of allowing an employment-based immigration system to function in harmony with the economy that it is supposed to serve. It will not only fail to prepare American workers for the future; it will fail utterly to protect them against the present. That is the most telling indictment of our current H-1B approach, namely it does nothing to benefit those who are presumably its intended beneficiaries. So long as this Maginot line of defense persists, those in charge of H-1B policy will have no incentive to look for anything better.

This absurd situation can be remedied quite quickly. The Immigration Innovation Act of 2015 (S. 153) (“I-Squared” Act) was introduced by  Senators Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), Coons (D-DE), Flake (R-AZ), and Blumenthal (D-CT). When partisan rancor is the norm in Congress, the I-Squared Act is genuinely bipartisan, and endeavors to provide critical reforms needed in the area of high-skilled immigration. The I-Squared Act will raise H-1B numbers so as to avoid these unnecessary scrambles for the H-1B visa. What is unique is that the H-1B numbers will not be the subject of an arbitrary cap just picked from a hat, but will fluctuate based on actual market demand. The cap will not go above 195, 000, but not below 115,000. In essence, for the first time, the H-1B allotment will be infused with the lubricant of capitalism, rising and falling in concert with the needs of the American economy.

Among the bill’s provisions are the following, although we refer readers to Greg Siskind’s detailed summary:

• Increases the H-1B cap from 65,000 to 115,000 and allows the cap to go up (but not above 195,000) or down (but not below 115,000), depending on actual market demand.

• Removes the existing 20,000 cap on the U.S. advanced degree exemption for H-1Bs.

• Authorizes employment for dependent spouses of H-1B visa holders.

• Recognizes that foreign students at U.S. colleges and universities have “dual intent” so they aren’t penalized for wanting to stay in the U.S. after graduation.

• Recaptures green card numbers that were approved by Congress in previous years but were not used, and continues to do so going forward.

• Exempts dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap.

• Eliminates annual per-country limits for employment-based visa petitioners and adjusts per-country caps for family-based immigrant visas.

• Establishes a grant program using funds from new fees added to H-1Bs and employment-based green cards to promote STEM education and worker retraining.

Unfortunately, the prospects of this bill’s passage are not too strong. Senator Grassley chairs the Judiciary Committee in the Senate and he will likely not consider the bill. Nor will Senator Jeff Sessions who chairs the Immigration Subcommittee. Both of them are arch foes of positive skilled immigration reform. They also do not see that passing the I Squared Act will indeed benefit rather than harm the United States. They also have allies on the left such as the AFL-CIO and think tanks like the Economic Policy Institute who oppose the H-1B visa. The reason that they do not know how to use immigration to create economic opportunity is that they do not think of immigration in this fashion. They have a static view of the economy where the focus is on not letting foreigners steal the jobs that do exist rather than examine how employers or entrepreneurs can use immigration to create new economic opportunity. Indeed, the odd marriage of the left and the right in opposition to a rational H-1B program reflects a shared belief that immigration is bad for American workers, that no new wealth can be created, that opportunity is gone, that we have to protect what now exists rather than seek to invent that which has yet to be imagined. The H-1B illustrates the Luddite pessimism of its opponents who believe that America’s best days are behind it. At a time when change is the only constant, those who want to place a straightjacket around the H-1B vainly seek to hold back the future. Operating from these misplaced assumptions, it is not at all surprising that the United States ranks near the bottom among major economies in terms of policies to allow hiring highly skilled immigrant workers, according to a study.

IT consulting employers who hire professional workers from India unfortunately seem to be getting more of a rap for indiscriminately using up the H-1B visa. However, it is this very business model has provided reliability to companies in the United States and throughout the industrialized world to obtain top-drawer talent quickly with flexibility and at affordable prices that benefit end consumers and promote diversity of product development. This is what the oft-criticized “job shop” readily provides. By making possible a source of expertise that can be modified and redirected in response to changing demand, uncertain budgets, shifting corporate priorities and unpredictable fluctuations in the business cycle itself, the pejorative reference to them as “job shop” is, in reality, the engine of technological ingenuity on which progress in the global information age largely depends.  Such a business model is also consistent with free trade, which the US promotes vehemently to other countries, but seems to restrict when it applies to service industries located in countries such as India that desire to do business in the US through their skilled personnel.

While Senator Grassley and his cheerleaders may gloat, decent people should feel bad for all the rejected foreign national prospective employees who would have otherwise qualified to work in a specialty occupation, as defined under the H-1B visa law. More people will get rejected than selected, and their hopes and dreams will be dashed.  Many who are in the United States after graduating from American universities may have to leave. Others won't be able to set foot into the United States to take up their prized job offers. Imagine if all of these rejected folks could actually come and work in the United States. Their employers would benefit and become more globally competitive - and could have less reason to outsource work to other countries. They would have also been productive workers, and spent money in the US economy, including buying houses and paying taxes. The H-1B cap will once again rob the economy of this wonderful cascading effect. 

We have said this before and it is worth repeating again. What we are dealing with is a global battle for talent. More than any other single immigration issue, the H-1B debate highlights the growing and inexorable importance of a skilled entrepreneurial class with superb expertise and a commitment not to company or country, but to their own careers and the technologies on which they are based. They have true international mobility and, like superstar professional athletes, will go to those places where they are paid most handsomely and given a full and rich opportunity to create. We are no longer the only game in town. The debate over the H-1B is, at its core, an argument over whether the United States will continue to embrace this culture, thus reinforcing its competitive dominance in it, or turn away and shrink from the competition and the benefits that await. How can we, as a nation, attract and retain that on which our prosperity most directly depends, namely a productive, diverse, stable and highly educated work force irrespective of nationality and do so without sacrificing the dreams and aspirations of our own people whose protection is the first duty and only sure justification for the continuance of that democracy on which all else rests? This is the very heart of the H-1B maze. The H-1B has become the test case for all employment-based immigration. If we cannot articulate a rational policy here that serves the nation well, we will likely not be able to do it anywhere else.

The ongoing H-1B debate is really about the direction that the American economy will take in the digital age and whether we will surrender the high ground that America now occupies. History teaches us that those who shrink from new challenges rarely achieve greatness. In the 15^th century, vast Chinese armadas with ships far larger than Columbus’ fleet crossed the Chinese sea venturing far west to Ceylon, Arabia and East Africa. Seven times from 1405 to 1433, Chinese traders sailed to the Persian Gulf and beyond, bringing vast new trading areas under Chinese imperial control. Yet, precisely at a time when China was poised to create this global commercial empire, they drew back. Less than a century later, all overseas trade was banned and it became a capital crime to sail from China in a multi-masted ship. This was one of history’s great turning points. The high ground in the information age global economy of the 21^st century will belong to those who dare to dream. Maybe a rational H-1B policy would be a good place to start.

(Guest Author Gary Endelman is the Senior Counsel of Foster)

THE REAL REASON FOR L-1B VISA DENIAL RATES BEING HIGHER FOR INDIAN NATIONALS

By Cyrus D. Mehta

A study issued by the National Foundation For American Policy confirms what we attorneys who work in the trenches have feared most. It was already been assumed that an L-1B case for an Indian national will face much higher scrutiny, and one was always prepared to put in a lot more work into such a case, only to expect that the case could still be denied.  The NFAP report entitled L-1 Denial Rates Increase Again For High Skill Foreign Nationals now confirms that Indian nationals face the highest refusal rates in the L-1B visa program.

The L-1B visa allows the transfer of a specialized knowledge employee from an overseas entity to a related US entity. This visa should allow US companies to quickly transfer employees in order to remain globally competitive. Instead, the overall denial rate, according to NFAP report, was 35%. Prior to 2008, the overall denial rate was under 10%

Alarmingly, the denial rate for employees coming from India was 56% in 2014 while the denial rate for employees transferred from all other countries was only 13%. The following table from the NFAP report comparing denial rates is very stark and speaks for itself: 

L-B Denial Rates by Country: FY 2012-2014

Country of Origin	Total	Denials	Denial Rate
Indian Nationals	25,296	14,104	56%
Canadian Nationals	10,692	424	4%
British Nationals	2,577	410	16%
Chinese Nationals	1,570	347	22%
Japanese Nationals	1,145	171	15%
German Nationals	1,100	161	15%
French Nationals	753	140	19%
Mexican Nationals	740	157	21%

Source: USCIS; National Foundation for American Policy.

Immigration attorneys knew it in their bones that when they file an L-1B petition on behalf of an Indian national, however meritorious, it is likely to result in a Request for Evidence, and potentially a denial. USCIS examiners change the goal posts to the point that it has become frustratingly ridiculous. We now have the NFAP report to thank for confirming our worst fears. 

Take the example of a company that legitimately produces a software application for the financial industry. It is a proprietary product of the company, and is branded as such. Over the years, the company has developed a loyal client base for this product. The product is upgraded frequently. An employee of the company who has worked on the development of this product in India needs to be transferred to the US so that she can train sales staff in the United States, and also assist in customization upgrades based on each client’s unique needs. This individual should readily qualify for the intra-company transferee L-1B visa as she has specialized knowledge of the company’s proprietary software product. This is what the L-1B visa was designed for by Congress.  Still, there is still going to be a likelihood of refusal of the L-1B visa for this Indian national employee. Even if the L-1B was previously approved, the renewal or extension request of L-1B status may fail. Indeed, the NFAP report confirms that “U.S. Citizenship and Immigration Services adjudicators are more likely to deny a case for an extension of L-1B status than an initial application.” The report goes on to correctly observe: “This seems counterintuitive, since the individual whose status is being extended typically has already worked in the United States for three years and is simply continuing work.” 

A prior blog  describes a common example for denying an otherwise meritorious L-1B visa application of an Indian national: 

In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.

 So let’s try to find out why the refusal rate for Indian nationals is higher than others. Some will justify that since there are more L-1B visa applicants from India, the refusal rate will be proportionately higher. True, but this does not explain why the refusal rate for Indians is 56% while the refusal rate of the next highest number of L-1B visa applications, Canadians, is only 10%. Another argument is that the L-1B visa is seen as a way to get around the H-1B annual cap, and again, since there are more Indian nationals applying for the H-1B visa who did not qualify, it is okay to get tough on their L-1B visa applications. This too is a spurious justification. It is perfectly appropriate for an employer to try to file an L-1B visa for an employee who is qualified for that visa, notwithstanding the fact that he did not make it under the H-1B visa lottery. A person can be eligible for more than one visa classification.

Another justification is that the L-1B visa, like the H-1B visa, is used to facilitate outsourcing. In other words, US workers are replaced by L-1B visa workers who are paid less, and the jobs eventually get transferred to India. One can understand the concern about US workers being replaced by foreign workers, but this does not explain why a company which has a proprietary product that is sold to US financial services clients should get adversely impacted with an arbitrary denial of its L-1B visa application for a specialized knowledge employee.

Moreover, even if an Indian heritage IT firm, accused of outsourcing, wishes to bring in L-1B specialized knowledge employees, it is incumbent upon the USCIS to still meritoriously and objectively determine whether they qualify under the specialized knowledge criteria for the L-1B visa.   As explained in a prior blog, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. This vendetta, spurred on by the likes of Senator Grassley who is the new Chair of the Senate Judiciary Committee and even left leaning think tanks like the Economic  Policy Institute, to deny L-1B visa applications of Indian nationals have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers have always supplied at prices that American business and its consumers could afford. What has gone unnoticed is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that the US government now seeks to destroy. One can also recall Senator Schumer's infamous slip of tongue when he referred to Indian IT companies as "chop shops" instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Gary Endelman adds in an e mail to the author “that the overly restrictive view of the L-1B discourages international trade and investment and that, by discouraging Indian migration to the USA, the USCIS actually expands the wage differential between India and the USA, thereby increasing outsourcing rather than limiting it.”

Indians are already disadvantaged in the US immigration system. As a result of the per country limits in the employment-based (EB) preferences, those born in India have to wait much longer for their green cards than others. In fact, Indian born beneficiaries of EB third preference I-140 petitions may need to wait decades before they can apply for green cards. Then, Indian three year degrees, and even other qualifications on top of the degree, do not get the same level of recognition than degrees from other countries. As a result, many who could qualify for the EB-2 now have to wait for a lifetime in the EB-3 for their green cards while their children age out, and may not be able to derivatively get the green card with their parents. It is even becoming harder to obtain an equivalency based on a three year degree. The latest revelation that the L-1B refusal rates for Indians is the highest, despite the fact that the claim is meritorious and the denial often happens at the renewal stage (after it was previously approved), only leads to one conclusion. It is discrimination. A mindset has crept into the system that L-1B visa applicants from India are undesirable, and ways are then found to deny the application.  The NFAP report is a wakeup call for fair minded people to question such discriminatory practices and to work towards a more just immigration system for people from all countries. 

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.

EVERY COUNTRY EXCEPT THE PHILIPPINES: NEW DEVELOPMENTS IN OPT-OUT PROVISION UNDER THE CHILD STATUS PROTECTION ACT

Cyrus D. Mehta

Section 6 of the Child Status Protection Act (CSPA) allows beneficiaries of I-130 petitions that have been converted from the Family Second Preference (F2B) to the Family First Preference (F1), after the parent has naturalized, to opt out and remain in the F2B. The American Immigration Council’s February 2015 advisory provides a comprehensive overview of the CSPA.

While the wait in the F1 is generally less than in the F2A, in some instances, it is possible for the F1 to be more backlogged than the F2B.  The Philippines has been the prime example, and was the only country where the F1 was worse off than the F2B for several years. Thus, the issue of whether to opt out of the F1 mainly concerned people born in the Philippines for several years.  Since June 2014, this has changed. The Philippines F1 has been doing better than the F2B, and there has been no need for beneficiaries of I-130 petitions born in the Philippines to opt out.   On the other hand, since June 2014, with the sole exception of Mexico, beneficiaries born in all other countries are better off under the F2B than the F1. This changed too for Mexico as of October 1, 2014, when even Mexican born beneficiaries started doing better under F2B than F1. Under the latest State Department Visa Bulletin of March 1, 2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html, except for the Philippines, beneficiaries of I-130 petitions born in all other countries are better off under the F2B than the F1.

An quick analysis of how the F-1 has compared to the F2B since 1992 is provided below (courtesy David Isaacson):

According to the list of Family Worldwide priority dates for FY1992-2014 available at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_worldwide_online.pdf, F1 has always been ahead of F2B, with a brief exception in FY-2001 (when F1 but not F2B became briefly unavailable in August and September 2001), until June 2014, when F2B pulled ahead (at first it was just 01APR07 for F2B versus 22MAR07 for F1, then the gap widened).  F2B has also been ahead in the three Visa Bulletins so far of FY2015, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-december-2014.html , http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-january-2015.html, http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-february-2015.html , and http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-march-2015.html.

For the Philippines, according to the FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Philippines_online.pdf, F2B pulled ahead of F1 in August of 1992, and stayed ahead until July of 2014.  Beginning in August 2014, Philippines F1 pulled back ahead of Philippines F2B, and it too has stayed that way October 2014-March 2015.

As for Mexico, the Mexico FY1992-2014 list at http://travel.state.gov/content/dam/visas/family-preference-cut-off-dates/Cut-off_Dates_Mexico_online.pdf  shows F1 generally ahead of F2B, but there have been more anomalies over the years.  At the end of FY1996 and in February-March of 2002, F1 was unavailable but F2B wasn’t.  There was an inversion in July 2001 right before both became unavailable for the remainder of FY2001.  In July-September of 2005, Mexico F1 retrogressed all the way to January 1, 1983, while F2B was at January 1, 1991.  In May of 2006, Mexico F2B again pulled slightly ahead of Mexico F1 before falling behind again in the remaining months of FY2006.  In FY2007, Mexico F2B was ahead of Mexico F1 in May 2007 through September 2007.  In FY2009, Mexico F2B pulled ahead, or rather F1 feel behind, during July-September 2009.  The next inversion after that was indeed October 2014, and then it has stayed inverted since.

 Section 6 of the CSPA has been codified in Section 204(k) of the Immigration & Nationalization Act (INA) entitled "Procedures for unmarried sons and daughters of citizens," which provides:

• In general. - Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter be­ing an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to clas­sify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).

• Exception. - Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family-sponsored immigrant shall be made as if such naturalization had not taken place.

• Priority date. - Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.

• Clarification. - This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.

What Section 204(k) means is that an F2B beneficiary of an I-130 petition is automatically converted into F1 upon the naturalization of the parent who was previously a lawful permanent resident (LPR).  However, such a beneficiary may opt-out, either prior to the conversion or after the conversion, by requesting such an election through a written statement.  If an election has been made, the son or daughter would be considered under the F2B as if such naturalization of the parent never took place.

At issue is the interpretation of the phrase "in the case of a petition under this Section initially filed for a alien's unmarried son or daughter's classification as family-sponsored immigrant under Section 203(a)(2)(B)."

In a previous USCIS Memo dated March 23, 2004 (March 23, 2004 Memo), the USCIS opined that the opt-out provision applied only to a beneficiary whose initial Form I-130 was filed after he or she turned 21 or over as  the unmarried son or daughter of an LPR.  If on the other hand, the I-130 petition was filed by an LPR on behalf of his or her child when the child was under 21 years of age, and the child attained the age of 21, and then the parent naturalized, the opt-out provision would no longer be applicable according to that Memo.

Fortunately, the USCIS reversed itself in a subsequent Memo from Michael Aytes, dated June 14, 2006 (June 14, 2006 Memo), and opined that the phrase "initially filed" would be applicable to the beneficiary who was sponsored as a minor.  The June 14, 2006 Memo generously notes that the prior policy had a perverse result of older siblings who were originally sponsored under F2B acquiring permanent residency more quickly than the younger siblings who had to wait longer under the F1.  The Memo also notes that it is reasonable to interpret "initially filed" as "initially filed for an alien who is now in the unmarried son or daughter classification."

At present, beneficiaries born in all countries excepting the Philippines may opt out from F1 and remain in F2B, and thus the guidance provided in the March 23, 2004 Memo regarding contacting the USCIS Officer in Charge in Manila may no longer be relevant. According to a April 2008 Memo from Donald Neufeld (April 2008 Neufeld Memo), one must file a request in writing at the USCIS District Office with jurisdiction over the beneficiary’s residence. For example, one would have to make such a request with the New Delhi Field Office (which covers India, Pakistan, Bangladesh, Nepal, Bhutan, Sri Lanka, Afghanistan, and the Maldives) if the beneficiary resides in any of these countries.   The question is whether all USCIS District offices are set up to accept unsolicited requests of this sort, and whether such a request would truly be effective.

In addition to writing to a USCIS District Office, one should not be prevented from also writing to either the Service Center that processed the I-130 petition or to the National Visa Center, if the approved I-130 petition is already residing there. It may also be well worth it to notify the USCIS at the time of filing an adjustment of status application if the beneficiary resides in the United States.  For instance, if the beneficiary has automatically converted to F1 and finds that F2B is more advantageous, he or she should still go ahead and file the adjustment of status application accompanied by a letter requesting that he or she be allowed to opt-out of F1. The adjustment-application option arguably complies with the April 2008 Neufeld Memo because a family-based adjustment filing with the lockbox is made with the expectation that it will likely be ultimately forwarded to the local District Office for an interview, by way of the National Benefits Center. 

The timing of making such a request is also crucial. It is probably advisable to make the request to opt out just prior to the priority date becoming current or at the time when it has become current. While one may in principle be able to reverse an opt-out, it is preferable to   wait until the F-2B is current or almost current before opting out.  One would not want to be the test case for how many times you can opt out, and reverse, and reverse your reversal, if the relative positions of the F-1 and F-2B keep changing over time before the priority date is current.

Finally, the USCIS has always taken the position, affirmed by the Board of Immigration Appeals in Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011) that it is the beneficiary’s biological age that is locked in when the petitioner naturalizes and not the protected CSPA age. Hence, if the beneficiary, who has already turned 21, has his or her age protected under the CSPA so as to remain in the Family Second Preference (2A), as the minor child of a permanent resident parent, then it may not be advisable for the parent to naturalize if the child would be disadvantaged under the F1, or if there is an opt out, under the F2B.  Zamora-Molina further held that the child could not opt out from F1 to F2A, only to F2B.  It is thus important to strategically consider whether naturalization by the parent would be worth it if it would disadvantage the child’s ability to more quickly receive the green card.

(The information contained in this blog is of a generalized nature and does not constitute legal advice).