PERM AND THE ROVING EMPLOYEE

by Cora-Ann Pestaina

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

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

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

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

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

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

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

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

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

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

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

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

Please see answer to number 19 above.

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

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

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

Please see answer to number 19 above.

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

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

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

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

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

By Cyrus D. Mehta

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

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

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

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

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

INDIAN IMMIGRATION POLICY AND THE TRANSNATIONAL PREVAILING WAGE FOR IT WORKERS

By Gary Endelman and Cyrus D. Mehta

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

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

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

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

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

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

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

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

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

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

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

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

by Gary Endelman and Cyrus D. Mehta

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

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

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

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

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

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

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

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

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

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

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

THE ENIGMA OF BOKHARI V. HOLDER: WORK AUTHORIZATION IS NOT LAWFUL STATUS

By Gary Endelman and Cyrus D. Mehta
It has always been known that being authorized to work in the US is not the same thing as being in a lawful status. The Fifth Circuit Court of Appeals recently issued a decision in Bokhari v. Holder, No. 09-60538, September 29, 2010,  confirming this enigma. Simply stated, the fact that Mr. Bokhari timely filed an L-1A extension, which allowed him to continue working in the United States, was not sufficient for him to establish lawful immigration status that would have permitted him to file an application to adjustment status to lawful permanent residence. While this decision defies logic and has raised the hackles of many in the immigration bar, it does not break new ground and has been consistent with USCIS’s prior policy. The question is whether we should be affirming the status quo or continuing to litigate so that we can correct this contradiction. Read on.

Here are the facts in Bokhari v. Holder. On June 9, 2003, one day before his prior L-1A nonimmigrant visa status was due to expire, Mr. Bokhari’s employer filed form I-129 to extend his L-1A status. Unfortunately, the USCIS denied the I-129 petition on March 19, 2004. Mr. Bokhari diligently filed an appeal on April 19, 2004 which too got denied on September 2, 2005. While Mr. Bokhari was unsuccessfully attempting to extend L-1A status, he took another stab by filing an I-140 petition for permanent residence under the multinational manager category on June 8, 2004, and simultaneously filed an I-485 application to adjust his status even while he was not in lawful status. We know that Mr. Bokhari filed the I-485 late – long after his L-1A status expired – but he claimed the protection of INA § 245(k). This provision allows an applicant who has failed to maintain status for less than 180 days to still file for adjustment of status. Mr. Bokhara’s I-140 petition got approved on July 11, 2005, but his I-485 application got denied on September 20, 2005 and DHS commenced removal proceedings against Mr. Bokhari.

The sole issue in the case was whether Mr. Bokhari was in unlawful immigration status for more than 180 days and was thus ineligible to adjust status. Mr. Bokhari argued that while his request to extend L-1A status was pending, he was in lawful status. He actually had a solid argument since 8 C.F.R. § 274a.12(b)(20) authorizes an alien to continue working while the extension request for a nonimmigrant work visa status remains pending for 240 days. Thus, even though his original L-1 status expired on June 10, 2003, Mr. Bokhari asserted that he continued to remain in lawful status until March 29, 2004, when DHS denied the I-129 extension request. As he filed his I-485 application on June 4, 2004, he claimed that he had not been in unlawful status for more than 180 days. DHS disagreed and argued that he failed to maintain lawful status from June 10, 2003, and even though he was authorized to continue working, such a grant of authorization under 8 CFR §274a.12(b)(20) was not tantamount to lawful immigration status.

The Fifth Circuit agreed with DHS. It relied on another regulation, 8 CFR § 245.1(d)(1)(ii), which defines “lawful immigration status” with regard to a nonimmigrant, as one “whose initial period of admission has not expired or whose nonimmigrant status has been extended.” Hence, one whose status had not been extended, such as Mr. Bokhari’s, was not in lawful immigration status. The Court pointed to other similar paradoxical situations where an alien may be granted stay of removal and be granted employment authorization, but still be considered illegal, see United States v. Flores, 404 F.3d 320 (5th Cir. 2005), and also relied on an old administrative decision, see In re Teberen, 15 I.&N. Dec. 689 (BIA 1976), which made clear that an extension application in itself did not confer lawful status, and thus an alien could still be found deportable during this period.

The USCIS has also long drawn a distinction between maintaining lawful status and being lawfully present in the United States, See Unlawful Presence v. Out of Status, http://bit.ly/ahjXpj. Even though someone may be thoroughly out of status, such as an F-1 visa student no longer enrolled in school, this student is not accruing unlawful presence for purposes of the 3 and 10 year bars pursuant to INA § 212(a)(9)(B), which triggers after one departs the US and only after accruing more than 180 days of unlawful presence. Similarly, an applicant for adjustment of status, whose underlying nonimmigrant L or H status has expired, will not be considered unlawfully present for purposes of triggering the 3 and 10 year bars but will still not be considered to be in lawful status. This unfortunate individual might even be amenable to removal as a deportable alien pursuant to INA §237(a)(1)(C), see USCIS Consolidated Guidance on Unlawful Presence, http://bit.ly/c9xHs9.

Let us first consider the merits of the government’s position. While an adjustment applicant is not in a lawful status, or for that matter, one whom like Mr. Bokhari has applied for an extension of nonimmigrant status, he or she is still in a period of stay authorized by the Attorney General. The whole notion of a "period of stay authorized by the Attorney General" was created by USCIS to cover the twilight period between the expiration of status and its renewal. The two ideas do not mean the same thing as one falls away when the other arrives, such as adjustment of status giving way to lawful permanent resident status or an L-1 extension giving way to L-1 status once the extension request is granted. If the two concepts mean the same thing, then we would not have need for these "periods of stay." Why do we have 8 C.F.R. §274a.12(b)(20)? It is to provide continued work authorization incident to previously approved status pending renewal of such status. In other words, allowing for continued work authorization is an interim relief measure until the status can be renewed. Once the extension is approved and the status is renewed, the need for such temporary measures drops away.

On the other hand, such a person who is in a “period of stay authorized by the Attorney General” is also vulnerable to removal. It makes no sense to allow one to stay and work in the United States under 8 C.F.R. §274a.12(b)(20) and then put him or her into removal proceeding. Moreover, those who are more susceptible to deportation in a post 9-11 world through illegal racial profiling, are likely to get snared if they have pending applications at the time of apprehension. This is what happened to the plaintiff, an Egyptian national, in El Badrawi v. DHS, 579 F. Supp. 2d 249 (D. Conn. 2008), http://www.bibdaily.com/pdfs/El%20Badrawi%209-22-08.pdf, who claimed he was falsely arrested while his employer, University of Connecticut, filed an extension to extend H-1B status. The court in El Badrawi v. DHS found the government’s position “bewildering” that Mr. El Badrawi was entitled to work in the United States but not entitled to be physically present in the United States. Even though Mr. Bokhari relied heavily on El Badrawi v. DHS, the Fifth Circuit gave short shrift to this decision. While Mr. El Badrawi was not claiming any entitlement to adjust status, his claim to be lawfully in the US and not be susceptible to arrest and deportation while his H-1B extension was pending was a legitimate one.

It is worth remembering that the INA never defines “status”. For this reason, consider the possibility that 8 CFR § §245.1(d)(1)(ii) may not be faithfully interpreting the statute. INA § 245(c)(2) only refers to an applicant not being eligible for adjustment of status because he or she is in “unlawful immigration status.” The authors credit the insight of David Isaacson who suggests that there must be a difference between "lawful immigration status" and "lawful nonimmigrant status, " which is a separate bar to adjustment under INA § 245(c)(7), so that an extension can be viewed as a lawful status for the purpose of preserving § 245 eligibility. After all, pursuant to 8 CFR 245.1 (d)(1)(ii), extension of nonimmigrant status would qualify as a lawful immigration status. When the extension is still pending, such lawful status can be viewed as remaining valid in a provisional sense pending final adjudication of the extension request; in the interlude between expiration and renewal, the extension keeps the nonimmigrant status alive, looking back at the past yet open to the future.

This interpretation provides non-resident aliens with a more realistic assurance of being able to stay lawfully in the United States while their extension applications remain pending under §274a.12(b)(2). Those who are specifically granted work authorization while they file extension applications, or who file I-485 applications, should be less susceptible to removal that the student who had dropped out of school. It is neither legally sound nor logically persuasive to place non-citizens, and their derivative family members in removal, if they have pending applications for extensions or adjustment applications. They should also be considered to be maintaining a lawful immigration status while their requests for an extension are pending. Nobody would like to constantly live in fear, especially if they were in the EB-3 preference, and applying for yet another extension beyond the 6th year H-1B limitation, to imagine that ICE could issue a Notice to Appear for a removal proceeding when a timely non-frivolous H-1B extension along with H-4 extensions of family members were in process.

Whether USCIS has a regulation or not granting work status, it is not good policy to render nonimmigrants who file timely applications be susceptible to removal from the US. However, not all such twilight statuses need to be deserving of such immunity, such as an F-1 student who has dropped out of school, and who may not be accruing unlawful presence for purposes of the 3 and 10 year bar, but can still be put into removal. As opposed to such a student who has dropped out of school and not reinstated status, it would be wrong to deport a nonimmigrant who has been lawfully in the US and who has applied for a timely extension of status. It is hoped that in the future we will see more decisions that follow El Badrawi v. DHS rather than Bokhari v. Holder.