NO ROOM AT THE INN: S.B. 1070 AND THE CONSTITUTIONAL RIGHT OF INTERSTATE TRAVEL

By Gary Endelman and Cyrus D. Mehta

In all the media frenzy over SB 1070, the extent to which Arizona has abridged the constitutional right of interstate travel has largely been overlooked. Indeed, when seeking to strike down SB 1070, the Justice Department almost exclusively based its objections on preemption by IRCA under the supremacy clause, devoting no attention to other constitutional infirmities. We write now to raise attention to another issue, which has largely been overlooked. Realizing full well that larger issues are at stake, it remains our view that infringement of the right to travel merits serious comment and stands as yet one more reason why Arizona’s initiative should trouble us all.

What about SB 1070 would discourage citizens and lawful resident aliens from travelling to Arizona? Consider the following scenarios and feel free to invent your own:

You are a naturalized American citizen born in Karachi, Pakistan. On a vacation to the Grand Canyon, you are stopped for speeding. Does the State Trooper then have “reasonable suspicion” to believe that you are “unlawfully present” in the United States?

You are a lawful permanent resident born in Honduras. Taking a vacation from your job with Kodak in Rochester, New York, you are trying to find the best directions to visit your old college roommate in Tempe. Not sure what to do, you make the mistake of asking local law enforcement at the next town. Suspicious, they demand to see your “green card” which you left in the motel safe so as not to lose it on the trip. Before you know it, the city police refuse to let you leave since there is no proof of your legal status and it will be the next day until federal authorities can verify it.

Your sister from Ciudad Juarez is getting married in Phoenix and you have to be there. Unfortunately, your car insurance has expired and, right before you leave, you file to renew it but there is not enough time to get a new insurance card before you have to drive from your home in Santa Fe, New Mexico. You get stuck at a random check point where all the drivers have to produce proof of insurance. Not having that, you show your Mexican birth certificate and most recent I-94 showing an expired H1B status for which an extension has been filed but not yet approved since your employer did not want to pay for premium processing. True, law enforcement officials in Arizona are not supposed to consider your “race, color, or national origin” but will they do that anyway under the rationale that this is permitted by the Arizona Constitution?

The semester is over and your whole dorm at Arizona State University has a keg party to celebrate. Things get louder than planned and the campus constabulary pays a not so friendly visit to see what is going on. Your friend from the University of Iowa has come to visit you and he remembers that back home in Cairo such situations do not always end happily. Will he want to come again next year?

Sure, these are made up concerns but are they that far removed from reality? In each of them, how hard is it to believe that the police officer or state trooper making the arrest or conducting the investigation would not claim probable cause to believe that you are removable from the United States? Who among us would be eager to travel to Arizona to find out? These questions are more than free-floating anxieties for they illustrate why SB 1070 strikes at one of the most basic constitutional freedoms, the liberty to travel from one state to another in a civilized and secure manner. Let’s find out what is at stake.

SB 1070 provides a safe harbor by stating that a person is presumed not to be an alien who is unlawfully present in the US if the person provides, inter alia, a valid Arizona driver license. What about a license or another form of identification issued by another state or other federal or state agency? The authors credit David Isaacson for pointing this out. Section 11-1051 states that another identification will only provide a safe harbor if the governmental entity “requires proof of legal presence in the United States before issuance, any valid United States Federal, State or Local government issued identification.” Not every state requires proof of “legal presence” before issuing a driver’s license. For instance, a perusal through New Mexico’s Department of Motor Vehicle’s website, http://www.mvd.newmexico.gov/Drivers/Licensing/How-to-get-a-New-Mexico-Driver-License.html, indicates that the state will accept a Matricular Consular Card, foreign birth certificate or valid foreign passport as proof of identification number and identity. If a US citizen with a driver’s license issued by New Mexico, who was originally born in India, is driving from Santa Fe to San Diego, her driver’s license will not help if an Arizona state trooper stops her if she was going at 58 mph instead of 55 mph and is not carrying other proof of being lawfully present, such as a US passport. If this person is prudent and aware of the dangers of SB 1070, she would rather avoid passing through Arizona and take an extremely circuitous route via Colorado, Utah, and Nevada in order to get to San Diego in California, her final destination.

Let’s read the Constitution for a bit. The Fourteenth Amendment reminds us that Arizona cannot “deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The term “person” when used for this purpose includes both citizens and aliens here under color of law. Yick Wo v. Hopkins, 118 US 356 (1886). Any attempt by Arizona to classify travelers based on their where they come from is “inherently suspect and subject to close judicial scrutiny.” Graham v. Dept. of Pub. Welfare, 403 US 365, 372 (1971).Taken together, each of the individuals noted above belong to a “discrete and insular” minority, United States v. Carolene Products Co., 304 U.S. 144, 152-153 n.4 (1938) and we would do well to remember that “ the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” Takahasi v. Fish & Game Comm’n, 334 US 410, 420 (1948).All those who come here, not just citizens, can claim the Constitution as their own.

We take for granted our freedom to move from state to state but, precisely because not everyone can, the Constitution protects it. The right to mobility has repeatedly been recognized and upheld by the Supreme Court. See, e.g., Memorial Hospital v. Maricopa County, 415 US 250, 255 n.7 (1974); Oregon v. Mitchell, 480 US 112, 237(1970); Edwards v. California, 314 US 160(1961); Twining v. New Jersey, 211 US 78, 97 (1908). This is a right that is “firmly embedded in our jurisprudence, “ United States v. Guest, 383 US 745, 757 (1966), a freedom so central that it is “assertable against private interference as well as governmental action…a virtually unconditional personal right, guaranteed by the Constitution to us all.” Shapiro v. Thompson, 394 US 618, 643 (1969) ( Stewart, J, concurring ). Whoever they are, wherever they began, regardless of why they arrive, those who come to Arizona enjoy the “right to be treated as a welcome visitor rather than an unfriendly alien…”Saenz v. Roe, 526 US 489, 500-501 (1999). Whatever authority Arizona has, it is not so great as to decide who has the right to live or visit; indeed, the very exclusivity of SB 1070 runs directly counter to the fundamental spirit and essential character of the Fourteenth Amendment itself, an expression in Mr. Justice Cardozo’s ringing words of the “theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.” Baldwin v. G.A. F. Seelig, Inc., 294 US 511, 523 (1935)(Cardozo, J). The chilling effect that SB 1070 must have on the right of interstate travel can “produce nothing but discord and mutual irritation, “ as Chief Justice Taney so eloquently expressed in his celebrated dissent in Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1949).

Those who defend SB 1070 correctly note that the right of interstate travel has traditionally been regarded as a privilege of national citizenship. While the Supreme Court has not taken a step further to establish an explicit nexus between the right to travel and alienage, it is no less true that the Court has neither prohibited such a connection nor opined against it. “There are millions of aliens within the jurisdiction of the United States, “Mr. Justice Stevens reminds us in Matthews v. Diaz, 426 US 67, 77(1976), “ The Fifth Amendment, as well as the Fourteenth Amendment, protects everyone of these persons from deprivation of life, liberty, or property without due process of law…(citations omitted) Even one whose presence in this country is unlawful, involuntary or transitory is entitled to that constitutional protection.”

Critics will rightly note that the word ”travel” nowhere appears in the text of the Constitution itself. Some liberties are so intrinsic that they need not be mentioned by name. Before we had our present charter, Article IV of the Articles of Confederation, our first constitution, guaranteed that “ the people of each State of each State shall have free ingress and regress to and from any other State.” Professor Zechariah Chafee teaches us that, whatever its constitutional provenance, freedom to travel, no less than freedom of speech, press, religion or assembly, is a basic human right whose exercise comes under the full panoply of due process of law. Zechariah Chafee, Three Human Rights in the Constitution of 1787 at 185. http://www.constitution.org/cmt/zc/zc_3hrc.htm

Why oppose SB 1070? Mr. Justice Jackson gave us the answer in Edwards v. People of State of California, 314 US 160, 184 (1941) when he refused to allow California to bar poor people : indigence was not a contagion that must be quarantined. The Arizona legislature has already recognized why SB 1070 is so troubling to so many and, through its subsequent enactment of HB 2162, advised law enforcement authorities not to “consider race, color or national origin,” except to the extent allowed under the Arizona or US constitutions. Despite this, we know in our bones that the impermissible invocation of these invidious and immutable characteristics is the only way for this evil law to be enforced; its very existence is an irresistible invitation to government overreaching the protection against which is "implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 US 319, 325 (1937)(Cardozo, J).

NATURALIZING IN A FLAT WORLD

by
Gary Endelman and Cyrus D. Mehta

As we enter the second decade of the 21st century, the world seems to be getting far more flat than what Tom Friedman originally envisaged with people being able to deliver services and products to the US and other countries from anywhere via the internet. Also, coinciding with this flat world is the most severe US recession in living memory, which compels people, including immigrants, to find jobs in other parts of the world and yet remain firmly rooted with the US.

Gone are the days when immigrants came to the US in sailboats and steamships, destined never to return home. In today’s globalized flat world, with access to cheap direct flights across continents, broadband internet, Blackberries, Twitter, Facebook, LinkedIn and video conferencing, an immigrant can continue to maintain deep ties and bonds even if absent from the country. It is quite typical for a US company to assign its key employee, a freshly minted green card holder, working in the US to set up operations in Mumbai or Shanghai for a few years, with the intention of ultimately returning to the US. Yet, this person’s ability to become a US citizen can get jeopardized as a result of this overseas assignment. In our previous article on a related subject, Home Is Where The Card Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849 (July 1, 2008), we focused on strategies to preserve permanent residence. In this blog post, we examine the tension between our citizenship laws and the global economy, and the challenges it poses to those who desire to naturalize.

An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

This is the killer provision, which we focus on in this post, and which creates problem when a permanent resident is based overseas and wishes to naturalize after completing 3 or 5 years, but is not able to continuously reside in the US even though he or she still returns to the country frequently and maintains extensive ties. Naturalization is a most desired goal, since paradoxically, once the person successfully naturalizes, he or she is no longer required to maintain a residence in the US. However, in order to naturalize, the applicant must maintain continuity of residence, and this is often thwarted by the fact that he or she is working overseas. The spouse who is overseas because he or she is accompanying the other spouse and who is often caring for the children, also suffers as a result.

There appear to be two views of what constitutes residence. INA § 101(a)(33) states: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Note that the concept of domicile, which considers the applicant’s intent rather than the place where he or she actually lives, is not relevant in determining whether the applicant for naturalization has resided continuously in the US. Under this provision, an applicant may be deemed to not being a resident regardless of the number of days he or she is away from the US. An applicant who is getting nowhere during the naturalization interview because of the examiner’s invocation of § 101(a)(33) should remind the examiner that the statute requires not mere residence but continuous residence in the US, and must point him or her to 8 C.F.R. § 316.5(c)(1)(i), which provides that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back to back lengthy trips although each one was less than 180 days. Remember, if your client did not stay away one year, he or she must be considered a resident of the same state where they lived before leaving. 8 C.F.R. 316.5 (b)(5). See Accardi V. Shaugnessey, 347 US 260(1954); Morton v.Ruiz, 415 US 199, 235 (1974)(“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”).

What if the person was out of the US for more than six months and less than a year and has disrupted continuity of residence? Don’t lose hope. 8 C.F.R. § 316.5(c)(1)(i) provides examples of the types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence. Specifically, the regulation states that the evidence may include “but [is] not limited to” evidence that during an extended absence:

(A) The applicant did not terminate his or her employment in the US;
(B) The applicant’s immediate family remained in the US;
(C) The applicant retained full access to his or her US abode; or
(D) The applicant did not obtain employment while abroad.

In Li v. Chertoff, 490 F.Supp.2d 130 (D. Massachusetts 2007), a federal district court held that an applicant who had absences of more than six months but less than 1 year as a student in Canada did not disrupt the continuity of residence even though she had obtained permanent residence in Canada. The plaintiff, after being downsized from a US employer, went to Canada to pursue an opportunity to study in a dental program at the University of Alberta. Her husband accompanied her to Canada and took up a job with the same contractual term as the plaintiff’s course of study. The rest of the plaintiff’s family still lived in the US and she retained a home in Cambridge, Massachusetts, where mail was delivered and she also continued to file tax returns in the US. While rejecting the application of the generic definition of residence in § 101(a)(33) in favor of continuous residence, the court clarified that that the four criteria in 8 C.F.R. §316.5(c)(1) may establish that the applicant did not disrupt the continuity of her residence, but also noted that it may consider other relevant factors. Although the court did not accept her argument that she did not terminate her employment in the US under prong (A) since her employer forcibly terminated her, the court accepted the fact that her extended family remained in the US under prong (B), even though her most immediate family member, her husband, accompanied her to Canada, and it was undisputed that she retained access to her home in the US under (C) and she did had not obtained employment in Canada under (D).

Compare Li v. Chertoff with an earlier case In Re Bartkiw, 199 F.Supp. 762 (E.D. Pa. 1961), where the former INS granted naturalization based on incorrect information, not knowing about Bartkiw’s relocation to Canada. The district court in Pennsylvania in denying Bartkiw’s claim that she had not disrupted residence made an observation which was redolent of an era prior to feminism’s onset a few years later:

We find it impossible to conclude that this young woman, married, with her husband holding a responsible position in Canada where he was a citizen, and who thereafter maintained a home with him, did not intend to live in Canada as a resident. It may very well be, as stated in our findings of fact, that both she and her husband hoped that at some time in the future she would become a citizen of the United States; that he would obtain employment in the United States and that they would live here permanently as husband and wife. But, unfortunately for the position of the respondent, that hope for the future and not a present fact.

Bartkiw, 199 F.Supp. at 766.

Clearly, Li v. Chertoff is the better decision, and naturalization examiners ought to be taking into account other factors besides the four factors set forth in 8 C.F.R. § 316.5(c)(1). What if the accompanying spouse of the rotational executive is pregnant with complications and both are unable to return to the US within 180 days? Should this not be considered a relevant factor? After all, the regulation suggests that the evidence that may be used to rebut the disruption of continuity of residence need not be limited to these four factors. In analogous cases involving the abandonment of permanent residence, which can be avoided if the trip abroad was temporary, the term “temporary visit abroad” has recently been subject to interpretation by the Circuit Courts. The Ninth Circuit’s interpretation is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

See Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir. 1997); Chavez- Ramirez v INS, 792 F.2d 932 (9th Cir. 1985).

The Second Circuit, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” See Ahmed v.Ashcroft, 286 F.3d 611, 613 (2d Cir. 2002); see also Hana v. Gonzales, 400 F.3d 472 (LPR status not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize).

Practitioners should creatively argue on behalf of their clients that unforeseen events may have delayed a return back to the US in less than 180 days. Moreover, even if one’s intent is not relevant in determining disruption of residence, unlike the law on abandonment of permanent residency, these decisions can still be helpful to argue that there were relevant factors to assess whether or not residence had been abandoned for purposes of naturalization. We should also forcefully argue that working for a US corporation overseas on a temporary basis ought to be a relevant factor and not a negative. See Matter of Wu, 14 I&N Dec. 290 (R.C. 1973) (denial of reentry permit was erroneous since the LPR was employed for an American firm overseas and had successfully applied for preservation of continuity of residence for purposes of naturalization).

Finally, while beyond the scope of this post, always explore if there are other ways to naturalize that would obviate the perpetual anxiety of a permanent resident living outside the US. Under INA § 319(b), spouses of US citizens working overseas for US corporations or their subsidiaries, or in certain other capacities, can naturalize without meeting the residency requirements, http://tiny.cc/so5p3. Employees working abroad can preserve their residency by filing Form N-470 if, inter alia, they work for an American firm or corporation, or a subsidiary thereof, that is engaged in the development of foreign trade or commerce of the US. But in order to be eligible, the applicant must demonstrate one year of actual unbroken physical presence in the US after acquiring permanent residency. Matter of Graves, 19 I&N Dec. 337 (Comm’r. 1985); Matter of Copeland, 19 I&N Dec. 788 (Comm’r. 1988). Very few can meet this requirement as even a brief day trip to Canada during that one year period will disqualify the applicant from filing the N-470 application. Remember what an N-470 will do and what it will not do. If approved, the N-470 means that concerns over continuity of residence can be put aside. However, all other substantive requirements for naturalization, including satisfaction of physical presence requirements still must be satisfied. The N-470 may avoid disruption of continuity of residence but your client could still be deemed to have abandoned permanent resident status. That is where and why the re-entry permit can be a lifesaver especially since, if the issue of green card abandonment is raised when the person returns to the US, contrary to what you and your client might expect, there is some recent case authority for placing the burden of proof that abandonment did not occur squarely upon the unsuspecting shoulders of the soon to be surprised permanent resident. And if you are out for more than one year, you will need to accumulate another round of 4 years and 1 day to naturalize. 8 C.F.R. 316.5(c)(1)(ii). This could be true even if it was Uncle Sam that prevented your client from coming back sooner. In Gildernew v. Quarantillo, 594 F.3d 131, 133 (2d Cir. 2010) TSA put the permanent resident on a “No Fly” list for a year while he cooled his heels in Ireland. Ultimately concluding that there was no”derogatory information” against him , TSA let him come home but too late to save his ability to naturalize as he had been out of the US for more than one year.

As the immortal philosopher Will Rogers was fond of saying: “Even if you are on the right track, you'll still get run over if you just sit there.”

DIFFERENT STROKES: USING DIFFERENT EXPERIENCE REQUIREMENTS ON A LABOR CERTIFICATION AND I-140 PETITION

by Cora-Ann V. Pestaina

We’ve pretty much gotten used to (but not accepted!) the vast inconsistencies that exist in degree-equivalency requirements with regard to filing an H-1B, a PERM or an I-140. We’ve been forced to cope with (though we will never understand!) the fact that the degree-equivalency regulations that govern EB-2 and EB-3 professionals are inconsistent with the degree-equivalency regulations that govern H-1B specialty occupations and that USCIS degree-equivalency regulations and the DOL’s SVP scheme applied to labor certifications widely differ. We’ve come to understand how vital it is that we map out the entire green card process prior to filing a PERM application and that we anticipate every potential pitfall and make early strategic decisions to prevent them. Yet, despite all our hard-earned knowledge and efforts, most of us will, at some point, be forced to deal with an unanticipated snag on an equivalency issue especially when the government changes its interpretation on an particular foreign degree.

Ronald Y. Wada, who many of us turn to for guidance through the frustratingly obscure law of degree-equivalency, has written a new article, The Nth Degree – Issues and Case Studies in Degree Equivalency: Crossing the Borderland Between DOL and USCIS Requirements, 15 Bender’s Immigr. Bull. 863 (June 15, 2010). The article addresses the differences between the reviewing practices of the DOL and USCIS. While we’ve always focused on degree-equivalency requirements, the article highlights a different issue – experience.

The PERM program established a “substantially comparable” standard when considering whether prior experience gained on-the-job with the same employer may be used to qualify a foreign national for the job offered. Specifically, under the PERM regulations, a sponsoring employer is permitted to consider experience gained with that employer in instances where it establishes that the position in which the alien gained the qualifying experience is not “substantially comparable” to the job for which labor certification is being sought. Substantially comparable is defined by the regulations as a job or position requiring performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). Then, there is the USCIS rule, established in Matter of Wing’s Tea House, 16 I&N Dec. 158 (Acting Reg’l Comm’r 1977), a precedent decision, which holds simply that the foreign national must possess the qualifications specified on the labor certification as of the priority date.

In his article, Mr. Wada writes, “Since the AAO has stated in numerous nonprecedent decisions (and federal courts have affirmed) that USCIS has the authority to determine whether the beneficiary meets the job requirements shown on the PERM application, once the labor certification is approved by the DOL the rule regarding what experience can be counted shifts to the USCIS rule.” This circumstance could provide the escape from the snare of a badly designed PERM, provide another option when the foreign national presents new information at the I-140 phase (“Sorry, I guess I can’t get all those experience letters after all!”) or even help in instances where the USCIS attempts to revoke a previously approved I-140.

The Wada article presents the case where a PERM was designed with a Master’s degree requirement and was certified. At the I-140 phase, the USCIS refuses to accept the foreign national’s Master’s degree deeming his credentials equivalent to only a U.S. Bachelor’s degree. A bachelor's degree plus five years of post-baccalaureate progressive experience equates to a Master's degree. If the foreign national is able to demonstrate five years of progressive, post-degree work experience prior to the priority date of the PERM application, then under the USCIS policy in Matter of Wing’s Tea House, the foreign national may yet qualify for the offered position and for EB-2. Importantly, the foreign national may even utilize experience gained on the job with the sponsoring employer – something he could not do during the labor certification phase especially if the two positions with the same employer were not more than 50% different! He may combine experience gained with a previous employer and experience gained with the sponsoring employer to arrive at the requisite 5 years of post-degree experience. It is only necessary that the foreign national meet the job requirements prior to the priority date, which is established when the labor certification is filed. USCIS does not set forth any “substantially comparable” standard à la the DOL.

Matter of Wing’s Tea House could also work in instances where, whether it’s an EB-2 or an EB-3 I-140, the foreign national belatedly discovers that her previous employer still harbors ill-will toward her and thus refuses to issue her an experience letter. If the foreign national is left short 1 year of experience and she had been employed with the sponsoring employer for at least 1 year before the labor certification was filed on her behalf, under Matter of Wing’s Tea House, the foreign national could combine experience gained with the sponsoring employer and her previous experience to qualify her for the offered position despite the fact that her on-the-job experience would not have qualified her for the offered position at the labor certification phase due to the DOL’s “substantially comparable” rule.

But will it actually work? Having said all that, we should bear in mind that the USCIS is afforded grounds in 20 C.F.R. §656.30(d) to invalidate a labor certification based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. While the scenarios outlined above would not compel such a finding, is there a chance that the USCIS could request that the DOL revoke the labor certification? Under 20 C.F.R. §656.32(a) the DOL may revoke an approved labor certification, based on a finding that the certification was not justified. If the foreign national is found not to possess the degree or the experience listed on the PERM, which is not being used consistently at the time of the I-140, could it be held that the certification was not justified? It is interesting food for thought. However, Matter of Wing’s Tea House indeed presents an innovative path that could possibly be used to save an I-140 in trouble.

THE ONLY TRUE TEST OF LEADERSHIP: PRESIDENTIAL INITIATIVE AND IMMIGRATION REFORM

By Gary Endelman and Cyrus D. Mehta

Facing the setting sun out beyond the vast confines of the Los Angeles coliseum, John Kennedy accepted the Democratic nomination for President in 1960 by proclaiming that “the only valid test of leadership is the ability to lead and lead vigorously.” Doubtless thinking how to respond to the challenges of his own time, President Kennedy has unwittingly showed the way to meaningful immigration reform for our era. While we fondly hope and fervently pray that the Congress will enact comprehensive immigration reform, we must not stand silent while waiting for Godot. There is enormous remedial potential in the current corpus of immigration law that can be realized through the dedicated application of executive initiative if the vision and will to do exists. It was for this purpose and with this intent that we wrote at length in The Tyranny of Priority Dates in BIB Daily, http://scr.bi/i0Lqkz. While our ideas there were audaciously incremental, we did not cite to past examples of innovative executive leadership that expressed profound policy changes through regulatory revision. It is our great good fortune to remedy this troubling omission with a large helping hand from Solicitor General Elena Kagan recently nominated by President Obama to replace retiring Justice John Paul Stevens on the United States Supreme Court. What a relief!

In 2001, then Harvard Law School Dean Kagan wrote her most widely cited foray into legal scholarship Presidential Administration in 114 Harvard Law Review 2245, http://www.harvardlawreview.org/issues/114/june01/Article_7038.php We freely admit that Dean Kagan does not mention immigration even once in over a hundred pages. Most of the article analyzes the influence wielded by various Presidents over the federal regulatory process, presenting at length legal arguments for and against such a sweeping exercise of authority. However, deep within the bowels of this robust exegesis, one finds a golden nugget that we hope to polish for our own very different purposes. On pages 2281-2282, we take a deep breath and read the following:

President Clinton treated the sphere of regulation as his own and in doing so
made it his own, in a way no other modern President had done. Clinton came to
view administration as perhaps the single most critical-in part because the
single most available- vehicle to achieve his domestic policy goals ( emphasis
added).

Dean Kagan offers several examples: a rule to curb underage smoking by restricting the marketing and advertising of tobacco products to children; a rule that allowed the states to offer paid family leave to new parents through the mechanism of unemployment insurance and regular issuance of executive memoranda that directed agency heads to take specified actions within the scope of those powers previously delegated to them by the Congress; making public lands off limits from private development as national monuments; prohibition of discrimination on the basis of sexual orientation; barring federal contracts with companies that used strikebreakers or child labor; mandating a minimum level of employment by federal agencies of welfare recipients and those with physical disabilities; compelling the adoption of workplace rules on expanded religious expression and making sure that regulatory agencies honored strict environmental codes. Doubtless, there are many others. See Presidential Administration at 2292. As it turns out, Dean Kagan reminds us that other Presidents had also changed the nation through the stroke of a pen:

Presidents, of course, discovered long ago that they could use executive orders
and similar vehicles(for example, proclamations) to take various unilateral
actions, sometimes of considerable importance. Consider, by no means as typical
examples but as historical highlights., Thomas Jefferson’s Louisiana Purchase,
Theodore Roosevelt’s reservation of public lands for a system of national parks,
Harry Truman’s desegregation of the armed forces, Lyndon Johnson’s
requirement that federal contractors adopt affirmative action policies, and…
initiation of OMB regulatory review. See Presidential Administration at
2291.

There is no reason why Presidents cannot make immigration policy in precisely the same way. Doing so would be yet another reminder that the most long-lasting impact of Immigration Reform and Control Act of 1986 was to bring the whole issue of immigration out of the shadows and into the mainstream of national political conversation and public debate. Immigration as an issue has grown up; what Presidents have done in so many other aspects of governance can now be tried within the confines of the Immigration and Nationality Act. So, for example, until Congress acts to overthrow the tyranny of priority dates and reverse the implosion of the green card category system by revising INA § 245(a)(3) and removing the arbitrary and capricious burden of a current priority date as a condition precedent to application for adjustment of status, the President can give hope to untold thousands, especially from India and China, but also those with no graduate degree, through the simple stroke of a pen. How? By taking a new long look at what “immediate availability” of an immigrant visa number can or should mean, which is one of the central ideas in The Tyranny of Priority Dates.

Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability? It would only be more fair to allow someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140 immigrant visa petition. Upon filing of an I-485 application, one can enjoy the benefits of occupational mobility or “portability” under INA § 204(j) and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization, which they otherwise would not be able to get on an H-4 dependent visa.

Unfortunately, INA § 245(a)(3) only allows the filing of an I-485 application when the visa is immediately available to the applicant, and this would need a Congressional fix. We know that Congress either NEVER makes any sensible fix or takes a very long time to do so. So, why not find a way for the immigration agency, USCIS, to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3)?

The only regulation that defines visa availability is 8 C.F.R. § 245(g)(1), which provides:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted Legal Permanent Resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA 245(a)(3) through the new definition of immediately available through the qualifying or provisional date.

In The Tyranny of Priority Dates we propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in italics, that would expand the definition of visa availability:

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

Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), the authors propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. Since parole is not considered a legal admission, they will not be eligible for adjustment of status but will have to depart the United States and use the now-valid visa as a travel document to return when visa availability subsequently presents itself. The authors suggest the insertion of the following sentence, shown here in bold italics and deletion of an other sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:

9 FAM 42.55 PN1.1 Qualifying Dates

“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Delete this sentence: [However, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.]

If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Similarly, those overseas, can also be paroled into the United States prior to a current priority date. Nothing could be simpler. The reason to seek Congressional modification of INA § 245(a) is not because it is the only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal. What we propose is not out of the ordinary and without precedent. For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US. Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine, http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus20105711018&Month=&From=Menu&Page=2&Year=All.

Given the obvious and not insignificant benefits of broad administrative solutions proposed in The Tyranny of Priority Dates, any transitional angst is surely worth the effort. If, as Antonio reminds Sebastian in Act II of Shakespeare’s The Tempest, “what’s past is prologue,” the rich history of executive initiative as a mechanism to achieve meaningful change that Solicitor General Kagan has so eloquently brought to our attention can serve as milestones along the march to comprehensive immigration reform so that, when Congress does decide to follow, they will know where to go and how to get there.

INDIAN GOVERNMENT BACKS DOWN OVER PASSPORT SURRENDER RULE, BUT WILL THE NEW GUIDANCE LEAD TO FURTHER CONFUSION?

As a result of pressure from the overseas Indian, the Indian government has backed down. Here is the latest guidance from the Indian Consulate in New York website, http://www.indiacgny.org/php/showHighLightDet.php?h_id=144&key.

"In supersession of the rules regarding Surrender/Renunciation Certificate the Government of India have decided as follows:-

Persons of Indian Origin (PIOs) who have already acquired foreign citizenship voluntarily till May 31, 2010 shall cease to be Indian citizens upon their acquiring foreign citizenship. However, such persons are required to surrender their Indian passports, whether valid or expired, to the Indian Consulate so that the passport is not misused. Such persons are not required to pay any fee under the Citizenship Act. They will have to pay US$ 20/- for Surrender/Cancellation of the passports.

Those Indian citizens, who intend to acquire foreign citizenship on or after 1st June 2010 will have to submit a declaration of renunciation of their Indian citizenship with payment of US$ 175/- as per fee structure under Rule 23 of the Citizenship Rules, 2009.

The issue of refund of any part of renunciation fee already paid by applicants till 31 May 2010, if applicable, has been taken up with the Government of India. The decision when received will be uniformly applied to those concerned and the information will be put on our website when available. Meanwhile no email/phone queries will be entertained. "

The first point is consistent with what I wrote in my prior blog, http://cyrusmehta.blogspot.com/2010/05/new-indian-government-rule-requiring.html#comments. One ceases to be an Indian citizen upon taking up the citizenship of another country under Section 9 of the Indian Citizenship Act, 1955. A policy requiring renunciation after one automatically ceased to be an Indian citizen made no sense, and then retroactively penalizing the individual for failing to renounce Indian citizen was extremely unfair. On the other hand, those who have taken up US citizenship or a citizenship of another country will still need to surrender their passports, albeit for a lesser fee. This will still result in hardship if the person who got US citizenship decades ago has lost the Indian passport.

It is the second point in the new policy that is most puzzling. It says that those who intend to take up the citizenship of another country after June 1, 2010 must first submit a declaration of renunciation of citizenship under under Rule 23 of the Citizenship Rules, 2009, which stem from Section 8 of the Citizenship Act. Section 8 provides that a citizen of India may renounce Indian citizenship. Rule 23 is reproduced below:

23. Declaration of renunciation of citizenship.- (1) A declaration of renunciation of citizenship of India under sub-section (1) of section 8 shall be made in Form XXII, and shall state-
(a) under which provisions of law, the applicant is an Indian citizen; and
(b) the circumstances in which the applicant intends to acquire foreign citizenship.
(2) On receipt of the declaration of renunciation of citizenship of India under sub-rule (1), an acknowledgement in Form XXIII shall be issued by an officer designated under rule 38.
(3) The declaration shall be registered in the Ministry of Home Affairs, Government of India.
(4) The Central Government in the Ministry of Home Affairs shall maintain a register in Form XXIV containing the names of persons whose declaration of renunciation of citizenship are registered under this rule.

Rule 23 requires an Indian citizen to renounce Indian citizenship while intending to take up the citzienship of another country, and not after s/he becomes a citizen of another country. How will this play out? What if the US citizenship does not pan out for some reason or is delayed? It quite often happens that one may not become a US citizen, as expected, if a security check has not cleared or if additional evidence is requested. US citizenship may also be denied if an Indian disrupted continuity of residence by spending more than 180 days outside the US during the qualifying 5 year or 3 year period, and is unable to rebut the prsumption of abandonment. Will this person become stateless between the renunciation and the acquistion of the new citizenship? Will this person be deprived of using his or her Indian passport for travel during this period? What if the renuncation has been effectuated and the person is never granted US citizenshp? Strangely, the new policy has been differently announced on the Indian Consulate's website in San Francisco, which does not incorporate the second point, http://www.cgisf.org/. So what is the correct new policy?

I applaud the Indian government for backing down and eliminating the potential hardship the prior misguided policy would have caused to thousands of overseas Indians who had become US citizens several years ago. Yet, the fact that people may have to surrender lost passports of many years, even decades ago, will still cause hardship. On the other hand, the new policy of requiring renunciation prior to an Indian becoming a citizen of the US or another country, if this is the case, requires immediate clarification as it will cause even more hardship and uncertainty than the withdrawn policy.

Update - 6/3/10

Since the publication of this post, the Indian Consulate in New York has added the following sentence after the first two points in its new guidance: "They may fill the Form and either send it by mail or bring personally to the Consulate. "A perusal through the form suggests that a person is required to renounce Indian citizenship after acquring the citizenship of the US or another country and not before. Thus, it does not seem that one has to renounce Indian citizenship before acquiring the ciitzenship of another country, and the second point in the new guidance is inartfully drafted on the website of the Indian consulate in New York. Although I still question how one can renounce Indian citizenship when it has ceased to exist (although it is perfectly justified to require the surrender of the Indian passport), it is at least better than requiring someone to renounce Indian citizenship before he or she acquires the citizenship of another country.