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.

DISTURBING TREND OF K VISAS BEING RETURNED FOR REVOCATION AT US CONSULATES

By Cyrus D. Mehta

My distinguished colleague, Paul Parsons, in Austin, Texas, has justifiably complained to Jeff Gorsky, Chief, Legal Advisory Opinions Section, Visa Office, State Department, http://bit.ly/bl44VO, about the arbitrary manner in which consular posts administratively close K-1 or K-3 visa cases, and recommend revocation of the petition visas when they suspect the bona fides of the relationship. The K-1 visa allows a US citizen to sponsor a fiancé or fiancée. The K-3 visa allows the spouse of a US citizen to enter the US after the I-130 petition to sponsor the spouse for permanent residence has been filed.

If the consul has doubts about the relationship or a bona fide intent to marry, the case is quickly dispatched to the USCIS for revocation even before the attorney has a chance to intervene on behalf of the hapless client. It would be one thing if the USCIS acted quickly, by issuing a Notice of Intent to Revoke (NOIR), and allowing the petitioner to respond to any allegations of fraud or the alleged lack of a genuine relationship. Unfortunately, the USCIS takes its own sweet time, and it usually takes in excess of a year, and sometimes even in excess of two years, before the petitioner receives a NOIR. To add insult to injury, the K-1 approval has a validity date of only 4 months pursuant to 8 CFR § 214.2(k)(5). If the USCIS does not act quickly by issuing a NOIR within the 4 month period, which it most likely will not do, then the DHS never provides an opportunity to the petitioner to rebut the allegations on the ground that the 4 month validity period of the K-1 has lapsed. Another distinguished colleague, Brent Renison, in Portland, Oregon, has filed a class action suit complaining against this procedure and also challenging the validity of 8 CFR § 214.2(k)(5), http://www.entrylaw.com/tranclassaction.html. This is a most worthy law suit challenging a very arbitrary practice, and affected K-1 visa applicants may seek to join as class members. Details on the class action are provided in the link above.

A careful reading of 8 CFR § 214.2(k)(5), however, reveals that there is authority to extend the validity of the K-1 petition for an additional 4 months:

Validity . The approval of a petition under this paragraph shall be valid for a period of four months. A petition which has expired due to the passage of time may be revalidated by a director or a consular officer for a period of four months from the date of revalidation upon a finding that the petitioner and K-1 beneficiary are free to marry and intend to marry each other within 90 days of the beneficiary's entry into the United States. The approval of any petition is automatically terminated when the petitioner dies or files a written withdrawal of the petition before the beneficiary arrives in the United States.

The State Department’s Foreign Affairs Manual at 9 FAM 41.81 Note 6.2 provides further authority to extend the K-1 any number of times:

An approved K-1 visa petition is valid for a period of four months from the date of Department of Homeland Security (DHS) action and may be revalidated by the consular officer any number of times for additional periods of four months from the date of revalidation, provided the officer concludes that the petitioner and the beneficiary remain legally free to marry and continue to intend to marry each other within 90 days after the beneficiary's admission into the United States. However, the longer the period of time since the filing of the petition, the more the consular officer must be concerned about the intentions of the couple, particularly the intentions of the petitioner in the United States. If the officer is not convinced that the U.S. citizen petitioner continues to intend to marry the beneficiary, the petition should be returned to the approving office of DHS with an explanatory memorandum.

Notwithstanding this authority in the 8 CFR and the FAM, it makes no sense for the USCIS to refuse to give the petitioner an opportunity to respond on the ground that the K-1 has a limited validity of only 4 months. If that is indeed the policy, it also makes no sense for a US Consulate to even return a K-1 petition for revocation. It is a waste of time, government expense, and falsely raises the expectations of the affected parties who may be looking forward to challenge the illusory revocation.

When a K-1 petition is sent for revocation, it is also not prudent to file a new I-129F petition for a new K-1 visa. Consuls can be quite cynical, and will most likely instruct the K-1 visa applicant to wait for a resolution of the prior petition, which was recommended for revocation, before they will adjudicate the new K-1 visa. The love birds may decide that enough is enough, and one may pop the question to the other, and they get married. This ends the fiancé or fiancée relationship, and the I-129F petition is now rendered moot, even though it has been sent for revocation. The US citizen files a well documented I-130 petition establishing the bona fides of the marriage so that the foreign national spouse can apply for an immigrant visa at the US Consulate upon the approval of this petition. Surely, the consul should not be able to say that the post is still awaiting the outcome of the resolution of the K-1 petition. There is no longer an intent to get married, the parties are now married! The petitioner cannot possibly fight the NOIR, if at all it is issued, on the I-129F. It is hoped that a consul will independently look at the bona fides of the marriage de novo without asking the spouse to wait for the outcome of the K-1 visa petition.

On the other hand, it should not be assumed that the marriage of the couple and the subsequent filing of an I-130 petition would provide the panacea to the problem of the K-1 being sent for revocation. The consul may also hold up the immigrant visa processing on the ground that there was fraud or misrepresentation in the K-1, and this would provide an independent ground of inadmissibility under INA § 212(a)(C)(6)(i) to deny the immigrant visa application. Under such circumstances, in the event that a belated NOIR is issued on the K-1, it may be well worth it to respond to the allegations even though there is no longer a fiancé or fiancée relationship, and Marc Ellis in an insightful article also suggests a similar strategy, http://www.ilw.com/articles/2006,0323-ellis.shtm. Here too, it makes no sense for the consul to find prior fraud during the K-1 visa interview (if the consul suspected their bona fide intention to marry) when the couple have further reaffirmed their bona fides after marrying, but as we know, a lot of things do not make sense in K-1 visa processing these days. In my opinion, the K-3 may not be worth it as the I-130 petition is being approved quite quickly, and if both the I-130 and the I-129F get approved simultaneously, the National Visa Center will process the I-130 and not the K-3 for consular processing.

Given the risks of K-1 revocations, and all the complications accompanying such revocations, it behooves an I-129F petitioner to thoroughly document the relationship with the fiancé or fiancée, including trips together or meetings, exchange of correspondence, gifts to each other, and affidavits from others, such as friends and relatives, attesting to the relationship. Moreover, although an engagement ceremony is not required, if such an engagement ceremony did indeed take place, it should be thoroughly documented and explained within its cultural or religious context. The petitioner and his or her fiancé (e) should also include a detailed statement about how they first met, their contacts with each other, and about their clear plans to get married in the US.

Finally, it is extremely important to note that the parties should not be married prior to the grant of the K-1 visa as that would vitiate the I-129F. Even an unregistered marriage ceremony, so long as it is recognized as a marriage in the country, such as a Hindu marriage in India, will be considered a marriage and would invalidate the I-129F petition. Under those circumstances, the petitioner should withdraw the I-129F, and instead, file an I-130 petition. Even if a marriage has occurred, it should not be assumed that it would be considered bona fide. Similar documentation must be submitted with the I-130 petition, including proof of the wedding, to further establish the bona fides of the marriage so as to ensure a smooth and quick grant of the immigrant visa at the consular post.

MATTER OF LEGASPI: NARROWING THE SCOPE OF 245(i) GRANDFATHERING FOR DERIVATIVE BENEFICIARIES

By Cyrus D. Mehta

§ 245(i) of the Immigration and Nationality Act, which sunset on April 30, 2001, has been a great boon for those who are not in status in the United States. It permits adjustment of status of certain aliens who are unable to adjust under § 245(a) for entering without inspection or who are disqualified under § 245(c) of the Act, which include those who have accepted unauthorized employment or are in unlawful immigration status.

Even though more than 9 long years have elapsed since April 30, 2001, § 245(i) permits certain aliens to remain “grandfathered” if they were beneficiaries of visa petitions or labor certifications filed on or before April 30, 2001 provided they were properly filed and approvable as filed. See 8 CFR § 245.10(a). Derivative beneficiaries too, as specified in § 203(d), such as spouses or minor children who could accompany the principal beneficiary, can claim the benefit of grandfathering under § 245(i).

This is how § 245(i) works. A labor certification was filed prior to April 30, 2001 on behalf of principal alien “A” who was married to spouse “B” and who had a minor child “C” at the time of the filing. All of the aliens are grandfathered under § 245(i) even till this day. This is true even though “C” is no longer a minor and “B” may no longer be married to “A.” As long as the labor certification was properly filed and approvable as filed on behalf of “A” prior to April 30, 2001, it does not matter that the employer subsequently withdrew the labor certification in 2003. All of these aliens, "A," "B" and "C," if the subject of new labor certifications in 2010, may ultimately adjust status under 245(i) notwithstanding the fact they are not lawfully present. “A”, “B” and “C”, however, had to have been in the United States on December 21, 2000, assuming that the labor certification was filed after January 14, 1998.

In Matter of Legaspi, 25 I&N Dec. 328 (BIA 2010), http://www.justice.gov/eoir/vll/intdec/vol25/3694.pdf, the Board of Immigration Appeals (BIA) narrowed the scope of § 245(i) grandfathering for derivative beneficiaries by depriving them of conferring a similar 245(i) benefit to their spouses. After Matter of Legaspi, spouses of derivative beneficiaries cannot grandfather by virtue of being married to an alien who is grandfathered under § 245(i). In this case, the respondent was married to Ms. Blanco who was grandfathered under § 245(i), and thus he too claimed to be similarly grandfathered under § 245(i). Ms. Blanco qualified as a derivative beneficiary by virtue of an I-130 visa petition that her grandfather filed on her father’s behalf in 1987. Even though she never became a permanent resident under the 1987 petition, the BIA acknowledged that she remained a grandfathered alien under § 245(i).

The BIA rejected the respondent’s claim to be an independently grandfathered alien under § 245(i) by virtue of his marriage to Ms. Blanco in 2003. He was unable to adjust status under § 245(a) because he was not in lawful status, and needed § 245(i), as a defense in removal proceedings. This part of the BIA’s decision is consistent with a Memo from William R. Yates, USCIS dated March 9, 2005 (USCIS 245(i) Memo), http://bit.ly/dsyJJb, which is the government’s latest interpretation on § 245(i), and states that a spouse who marries a grandfathered alien after April 30, 2001, cannot independently “grandfather” under § 245(i). On the other hand, the USCIS 245(i) Memo did acknowledge that such a spouse could still seek to adjust status under § 245(i) as a dependent of the “grandfathered” alien:

An application for labor certification is filed on behalf of principal alien “A” in 2000. At that time, principal alien “A” is unmarried. Principal alien “A” marries spouse “B” in 2002. Principal alien “A” and spouse “B” have child “C.” An I-130 is filed on behalf of principal alien “A” and is ultimately approved in 2004. Principal alien “A” applies for adjustment of status. May spouse “B” and child “C” apply for adjustment of status under section 245(i) in conjunction with principal alien “A”?

If all other grandfathering requirements are met, spouse “B” and child “C” may seek to adjust status only as dependents of the principal alien “A.” Principal alien “A” is grandfathered as described in Scenario 1. Because spouse “B” marries principal alien “A” after April 30, 2001 sunset date, spouse “B” and child “C” are not grandfathered.

Until Matter of Legaspi, it was thought that a spouse who married any grandfathered alien after April 30, 2001, even if not independently grandfathered, could still adjust under §245(i) as a dependent of the grandfathered alien. This was assumed even if the original alien became grandfathered as a derivative beneficiary, such as Ms. Blanco. While in Matter of Legaspi, the respondent spouse was not seeking to adjust with Ms. Blanco but was eligible to adjust as a following to join spouse (revised on 10/12/10), the BIA’s opinion threatens to shut off this possibility too. The BIA argues that had Ms. Blanco been married at the time of her grandfather’s petition in 1987, she would not have been qualified as a derivate beneficiary as she would not have met the definition of “child” for purposes of § 203(d).

It is this aspect of the BIA’s decision in Matter of Legaspi that is problematic. While one can agree that a derivative beneficiary such as Ms. Blanco must have been single in order to qualify as a “child” at the time the petition was filed in 1987, Ms. Blanco continues to remain “grandfathered” under § 245(i) even after she ceases to be a child and even after she marries. Should she adjust status through a post-April 30, 2001 filed labor certification, her spouse (who may not be eligible under § 245(a)) ought to be able to adjust with her as a dependent under § 245(i). § 245(i) provides an eternal grandfathering benefit to qualified aliens, even after they ceased to be spouses and children. Once they are “grandfathered,” a new spouse ought to be able to at least adjust with them as dependents under § 245(i).

Matter of Legaspi, in this sense, erroneously interprets § 245(i), which was a generous provision that sought to allow aliens who were not otherwise eligible to be able to file an adjustment application in the US. Under the BIA’s logic in Matter of Legaspi, aliens other than derivative beneficiaries could also be affected. Anyone who got protection under § 245(i) by virtue of being single, such as an adult son or daughter of a permanent resident spouse, may not be able to have their “after acquired” spouses adjust with them as dependents under § 245(i).

It is hoped that the BIA clarifies its position in a future decision. While Matter of Legaspi makes clear that an “after acquired” spouse cannot independently grandfather under § 245(i), such a spouse ought to at least be able to adjust status as a dependent.