DEFERRED ACTION: THE NEXT GENERATION

By Gary Endelman and Cyrus D. Mehta

President Obama at last came through with a bold memorandum on June 15, 2012, executed by DHS Secretary Janet Napolitano, granting deferred action to undocumented people. The Administration has always had authority to grant deferred action, which is a discretionary act not to prosecute or to deport a particular alien. While critics decry that Obama has circumvented Congress, the Administration has always had executive branch authority to exercise prosecutorial discretion, including deferred action, which is an expression of limited enforcement resources in the administration of the immigration law. It makes no sense to deport undocumented children who lacked the intention to violate their status and who have been educated in the US, and who have the potential to enhance the US through their hard work, creativity and determination to succeed.

We have always advocated that the Administration has inherent authority within the INA to ameliorate the hardships caused to non-citizens as a result of an imperfect and broken immigration system. In Tyranny of Priority Dates, we argued that the Administration has the authority to  allow non-citizens who are beneficiaries of approved family (I-130) or employment-based (I-140) petitions affected by the crushing backlogs in the priority date system to remain in the US through the grant of parole under INA 212(d)(5) based on “urgent humanitarian reasons or significant public benefits.” When the DREAM Act passed the House in 2010, but narrowly failed to garner the magic super majority of 60 in the Senate, we proposed that the President could also grant similar parole to DREAM children as well as deferred action in our blog, Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes The Dream Act.

 The new memorandum directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

While this memorandum is indeed a giant step in providing relief to a class of immigrants who have been out of status for no fault of their own, we propose other incremental administrative steps so that such individuals, even after they have been granted deferred action and work authorization, can obtain permanent residence. We are mindful, as the accompanying FAQ to the memorandum acknowledges, that the grant of deferred action does not provide the individual with a pathway to permanent residence and “[o]nly the Congress, acting through its legislative authority, can confer the right to permanent lawful status.”  But just as people were skeptical about our ideas for administrative action when we first proposed them, some of which has come to fruition, we continue to propose further administrative steps that the President can take, which would not be violative of the separation of powers doctrine.

There are bound to be many who have been granted deferred action to also be on the pathway to permanent residence by being beneficiaries of approved I-130 or I-140 petitions. Unless one is being sponsored as an immediate relative, i.e. as a spouse, child or parent of a US citizen, and has also been admitted an inspected, filing an application for adjustment of status to permanent residence will not be possible for an individual who has failed to maintain a lawful status under INA § 245(a). Such individuals will have to depart the US to process their immigrant visas at a US consulate in their home countries. Although the grant of deferred action will stop unlawful presence from accruing, it does not erase any past unlawful presence. Thus, one who has accrued over one year of unlawful presence and departs the US in order to process for an immigrant visa will most likely face the 10 year bar under INA § 212(a)(9)(B)(i)(II). While some may be able to take advantage of the proposed provisional waiver rule, where one can apply in the US for a waiver before leaving the US, not all will be eligible under this new rule.  A case in point is someone who is sponsored by an employer under the employment-based second preference, and who may not even have a qualifying relative to apply for the waiver of the 10 year bar.

We propose that the USCIS extend the holding of the Board of Immigration Appeals in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) to beneficiaries of deferred action. In Arrabelly and Yerrabelly, the BIA held that an applicant for adjustment of status, who leaves the US pursuant to a grant of advance parole, has not effected a departure from the US in order to trigger the 10 year bar under INA § 212(a)(9)(B)(i)(II). If a beneficiary of deferred action is granted advance parole, this person’s trip outside the US under this advance parole ought not to be considered a departure. Such facts would square with Matter of Arrabelly and Yerrabelly if the individual returned back to the US under advance parole. However, here, the individual may likely return back on an immigrant visa and be admitted as a permanent resident. That might be hard to sell to the government – how can you apply for a visa at a consulate in a foreign country and still not leave USA? Still, this idea has merit as it is the initial “departure” under advance parole that would not be a trigger for the bar to reentry, not the subsequent admission as an immigrant. In the leaked July 2010 memorandum to USCIS Director Mayorkas, the suggestion is made that the USCIS “reexamine past interpretations of terms such as ‘departure’ and ‘seeking admission again’ within the context of unlawful presence and adjustment of status.” Using  Matter of Arrabally and Yerrabelly in the manner we propose seeks to do just that. Once again, as with the concept of parole, we seek to build on past innovation to achieve future gain.

As an alternative we propose, as we did in The Tyranny of Priority Dates, that the government, in addition to the grant of deferred action, also grants parole in place on a nunc pro tunc or retroactive basis under INA 212(d)(5).  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.” The concept of parole in place was also proposed in the leaked memo. Interestingly, in this memo, a prime objective of granting parole in place was to avoid the need for consular processing of an immigrant visa application: “By granting PIP, USCIS can eliminate the need for qualified recipients to return to their home country for consular processing, particularly when doing so might trigger the bar to returning.”  This would only be the case, however, where the adjustment applicant is  married to a US citizen, or is the minor child or parent of a US citizen,  and need not be barred due to lack of an inspection or admission. Because we advocate a much wider extension of parole in place, the need for retroactivity, both for the parole and companion employment authorization becomes readily apparent. The use of parole in place, while not common, is certainly not without precedent and, as the leaked memo recites, has been expansively utilized to promote family unity among military dependents. For our purposes, “applicants for admission who entered the US as minors without inspection” were singled out as a class for whom parole in place was singularly suitable.

 Upon such a grant of parole in place retroactively, non-immediate relatives who have not maintained status may also be able to adjust status.   Such a retroactive grant of parole, whether in the I-130 or I-140 context, would need to be accompanied by a retroactive grant of employment authorization in order to erase any prior unauthorized employment.  We acknowledge that it may be more problematic for the individual to be eligible for adjustment of status through an I-140 employment-based petition rather than an I-130 petition, since INA § 245(c)(7), requires an additional showing of a lawful nonimmigrant status, in the case of an employment-based petition under INA § 203(b).  Still,  the grant of nunc pro tunc parole will wipe out unlawful presence, and thus this individual can leave the US and apply for the immigrant visa in the US Consulate in his or her home country without the risk of  triggering the 3 or 10 year bar.

One conceptual difficulty is whether parole can be granted to an individual who is already admitted on a nonimmigrant visa but has overstayed. Since parole is not considered admission, it can be granted more readily to one who entered without inspection.  But this impediment can be overcome: It may be possible for the government to rescind the grant of admission, and instead, replace it with the grant parole under INA § 212(d)(5). As an example, an individual who was admitted in B-2 status and is the beneficiary of an I-130 petition but whose B-2 status has expired can be required to report to DHS, who can retroactively rescind the grant of admission in B-2 status and be retroactively granted parole.

There may be other obstacles for individuals in removal proceedings or with removal orders, but those too can be easily overcome. If the individual is in removal proceedings, if he or she is also eligible for deferred action, such removal proceedings can be terminated and he or she can also receive a grant of nunc pro tunc parole, thus rendering him eligible for adjustment of status in the event that there is an approved I-130 or I-140 petition. Even a person who already has a removal order can seek to reopen the removal order through a joint or consent motion with the government for the purposes of reopening and terminating proceedings, and this person too could potentially file an adjustment application, if he or she is the beneficiary of an I-130 upon being granted  nunc pro tunc parole, and the beneficiary likewise could travel overseas for consular processing without risking the 10 year bar.  

We of course would welcome Congress to act and pass the DREAM Act, as well as Comprehensive Immigration Reform, so that this memorandum does not get reversed or discontinued in the event that a new Administration takes over from January 2013. However, until Congress does not act, the June 15, 2012 memo does provide welcome relief for young people, but it still leaves them in a limbo with only deferred action. The elephant in the room may be whether the USCIS has the capacity to deal with hundreds of thousands of requests for deferred action. In the absence of congressional action, the agency lacks the capacity to charge special fees for this purpose. Consequently,  all relevant federal agencies, including ICE and CBP, must willingly but swiftly reassign existing personnel now devoted to less urgent tasks so that the President’s initiative of last Friday does not become a dead letter. Our proposal for an additional grant of nunc pro tunc parole in place to individuals who have already been conferred deferred action will at least allow them to enter the regular immigration system and hope to adjust status to permanent residence, or consular process, and thus on the path to citizenship, should they become the beneficiaries of approved family or employment-based petitions. Again, as we noted earlier, and as we noted in Tyranny of Priority Dates, we are not asking for the executive branch to create new forms of status. We are only asking for the Executive to remove barriers to the ability of otherwise deserving applicants for permanent residents to take advantage of the existing system. We want to emphasize there is nothing in the INA that prevents the immediate adoption of our recommendations just as there was nothing in the INA that prevented last Friday’s memorandum. We also want to emphasize that I-130’s and I-140s will still be necessary. We do not want to create a new system, only to allow the old one to work more effectively. The future is ours to shape. For those who lack faith, we remind them of Tennyson’s injunction in Ulysses: “Come my friends, ‘tis not too late to seek a newer world.”

MATTER OF O. VAZQUEZ: BIA ISSUES PRECEDENTIAL DECISION ON “SOUGHT TO ACQUIRE” UNDER THE CHILD STATUS PROTECTION ACT

By Cyrus D. Mehta

In Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012), the first precedential decision on this issue, the Board of Immigration Appeals has clarified the “sought to acquire” provision 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. Thus, the meaning of the term “sought to acquire” permanent residency has been hotly litigated in recent times. Does it encompass only a filing of an application or can it encompass something less than a filing of an application for immigration status?

 According to the BIA in Matter of O. Vazquez, an alien may satisfy the “sought to acquire” provision of section 203(h)(1)(A) of the Immigration and Nationality Act (“Act”) by filing an application for adjustment of status or by showing that there are other extraordinary circumstances in the case, particularly those where the failure to timely file was due to circumstances beyond the alien’s control. The BIA further elaborated that the “sought to acquire” requirement could still be met if the applicant filed an adjustment application, but was rejected for technical reasons, such as the absence of a signature. With respect to a showing of extraordinary circumstances, the BIA indicated that an applicant could show that he or she paid an attorney to prepare an application prior to the one year deadline, but the attorney then failed to take the ministerial step of actually filing the application, thus effectively depriving the aged out child from the protection of the CSPA for no fault of its own.

 While the BIA did provide examples of “sought to acquire” just short of a filing; unfortunately, the BIA’s interpretation in Matter of O. Vazquez is more restrictive than its earlier interpretations in unpublished decisions discussed in a prior blog, BIA Continues To Reaffirm Broad “Sought To Acquire” Standard Under CSPA.  The BIA stopped short of holding that the term can encompass other actions not associated with the filing of an adjustment application, such as seeking the advice of an attorney or other similar sorts of efforts. In Matter of O. Vazquez, the “aged out” child argued that he sought to acquire permanent residency by consulting a notario organization within one year of the visa availability. The BIA held that such an action did not fall under the “sought to acquire” definition. Given that the CSPA is a remedial statute to ameliorate the hardships caused to children who age out, the facts in this case were also sympathetic as the alien was wrongly advised by an organization not authorized to practice law in the first place, and thus deprived of the chance to be protected under the CSPA.

As a background, 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 Matter of O. Vazquez.

The BIA unfortunately arrived at this more restrictive interpretation by agreeing with DHS’s position that the reason for Congress not including the term “filed” is because § 203(h) applies to the Department of Homeland Security (DHS) and Department of State (DOS), both of which adjudicate requests for immigration status. The DHS adjudicates applications for adjustment of status from within the US while the DOS adjudicates applications for immigrant visas from outside the US. Under DOS immigrant visa processes, one generally does not “file” an immigrant visa application, DS-230, but rather, the DOS regulations use the word “submit” or “submission” rather than “file” when referring to a DS-230 visa application. See 22 C.F.R. § 42.63 and 22 C.F.R. § 42.63(c). The “filing” of an application in DOS occurs after it is submitted and much later in the process, the BIA noted. See 22 CFR § 42.67(b). According to the BIA, it was due to the difference in the usage of terms in the DOS and DHS regulations that Congress compelled Congress to use the term “sought to acquire” permanent residency rather than to allow for broader actions such as consulting with a notario organization, as was done in Matter of O. Vasquez, to satisfy the “sought to acquire” definition.  

Still, it can be argued that the discussion in Matter of O. Vazquez of the use of the word “filing” in DOS regulations, and the multi-step DOS process more generally, does seem to leave room for the possibility that something other than submission of a DS-230 can qualify as seeking to acquire permanent residence for CSPA purposes.  Matter of O. Vazquez holds that “it is reasonable to expect the proper filing of an application, when it comes to DHS cases, as a way to unquestionably satisfy the ‘sought to acquire’ element of the Act.”  25 I&N Dec. at 820.  This holding is limited by its terms to “DHS cases”, in which the formal application process is in the ordinary case more unified into a single step of filing an application form (or that single filing step plus an interview).  The taking of any substantial step in the multistage DOS immigrant-visa process, such as the payment of the immigrant visa fee, as we pointed out in State Department Takes Broader View Of “Sought To Acquire” Provision Under CSPA, or the making of a written request that a particular derivative child be added to a consular case, should arguably still be sufficient to meet the “sought to acquire” requirement even under Matter of O. Vasquez.

Another aspect worth exploring further may be footnote 3 of the decision, on page 821.  The BIA analogizes its “extraordinary circumstances” standard to that applicable to termination-of-registration cases under INA 203(g).  In practice,  DOS has not applied the 203(g) standard as strictly as, say, some IJs apply the asylum one-year “extraordinary circumstances” standard.  If that is so, the linkage of the new Matter of O. Vazquez CSPA sought-to-acquire standard to the 203(g) standard may be significant: the Matter of O. Vazquez standard for extraordinary circumstances is apparently supposed to be interpreted no more strictly than 203(g).

In the view of this author, Congress probably intended the “sought to acquire” requirement to apply more broadly than interpreted in Matter of O. Vazquez. In a prior unpublished decision In re Jose Jesus Murillo, A099 252 007 (October 6, 2010), the BIA interpreted the legislative history behind the CSPA as being expansive, which is worth reproducing here:

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).

However, since Matter of O. Vazquez is a precedential decision, we will need to now live and work with it when dealing with instances under which our clients have “sought to acquire” permanent residency in order to protect their age under the CSPA.

(The author thanks David A. Isaacson for his thoughtful input)

“CULTURALLY UNIQUE” DEFINITION UNDER P-3 VISA CAN INCLUDE HYBRID OR FUSION ART FORMS OF MORE THAN ONE CULTURE OR REGION

By Cyrus D. Mehta

U.S. Citizenship and Immigration Services' (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision in Matter of Skirball Cultural Center, 25 I&N Dec. 799 (AAO 2012) addressing the term "culturally unique" and its significance in adjudicating P-3 visa petitions for performing artists and entertainers. This decision is significant in light of a growing trend where the culturally unique artistic tradition of one country or ethnicity is influenced by artistic traditions from elsewhere. For instance, musicians trained in Indian classical music have incorporated Western jazz and rock influences. The most famous example of such a fusion band was Shakti, which incorporated South Indian Carnatic music and jazz elements, featuring guitarist John McLaughlin, South Indian violinist L. Shankar and Zakir Hussain on tabla and T.H Vikku Vinayakram on the ghatam (an earthen pot). Examples of hybrid groups abound all over the world, and a contemporary example is Afro Celt Sound Systems, which is a hybrid of African and Celt music. Afrobeat is another classic example of a fusion genre that originally fused American funk music with African rhythms, and its main exponent has been Fela Kuti. Until this decision, there was a risk that such groups would not be considered to be “culturally unique” as they did not incorporate the music which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

The Skirball Cultural Center filed a P-3 nonimmigrant petition on behalf of a musical group from Argentina that was denied a performing artists' visa for failing to establish that the group's performance was "culturally unique" as required for this visa classification. USCIS noted that "due to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions, the decision was recommended for review."

The AAO approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. USCIS said that the regulatory definition of "culturally unique" requires the agency to make a case-by-case factual determination. The decision clarifies that a "culturally unique" style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The petitioner had sought classification of the beneficiaries as P-3 entertainers for a period of approximately six weeks. The beneficiaries were musicians in the group known as Orquesta Kef. The ensemble of seven musicians from Argentina had been performing together for between four and eight years, according to a letter dated September 2009, and performed music that blended klezmer (Jewish music of Eastern Europe) with Latin and South American influences. The group's biography stated that the band had developed "its own and unique musical style" based on "the millenary force of tradition and the powerful emotion of the Jewish culture, mixed in with Latin American sounds." The petitioner also provided a letter from an associate professor at the University of Southern California's Annenberg School for Communication supporting the band's claim to cultural uniqueness, among other submitted expert opinion letters and published materials.

The decision noted that Congress did not define the term "culturally unique" and the former Immigration and Naturalization Service (now USCIS) defined it in regulations as "a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons." See 8 C.F.R. § 214.2(p)(3)(2012).

In her decision denying the petition, the director stated that a hybrid or fusion style of music "cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons."

The AAO said that the director's reasoning was not supported by the record, noting:

[T]he fact that the regulatory definition allows its application to an unspecified "group of persons" makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of "culture" is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion. Of course, the petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture. To determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record.

The AAO pointed out that the director's decision failed to note that the beneficiary group was a klezmer band and "seemed to struggle to identify the nature of the group's musical performance, focusing instead on the group's musical influences. Here, the evidence establishes that the beneficiaries' music is, first and foremost, Jewish klezmer music that has been uniquely fused with traditional Argentine musical styles." The AAO said it found particularly persuasive an expert opinion explaining that klezmer music, “while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures." The AAO also noted the fact that the beneficiaries were South Americans born to Eastern European immigrants and therefore were influenced by both cultures to create something new and unique to their experience. All the opinion letters submitted also recognized the existence of a distinct Jewish Argentine culture and identity that was expressed in the beneficiary group's music. Furthermore, the AAO noted, the published articles submitted recognized a musical movement in Argentina that fuses Argentine styles with influences from Jewish music and other Eastern European styles, and the articles and opinion letters placed the beneficiary group at the forefront of this trend.

Accordingly, the AAO found that the petitioner had established by a preponderance of the evidence that the modern South American klezmer music performed by the beneficiary group was representative of the Jewish culture of the beneficiaries' home country of Argentina and that the group's musical performance therefore fell within the regulatory definition of "culturally unique." The AAO added that the petitioner had submitted an itinerary showing that the beneficiary group would be performing at Jewish cultural centers and temples during its U.S. tour, which provided further evidence that the performances would be culturally unique events.

Matter of Skirball Cultural Center remarkably recognizes the significance of crossover cultural trends and that “the idea of culture is not static,” which is increasing in our globalized world, where people have access to music from anywhere on an iPhone and have learned to enjoy fusion and hybrid forms. The favorable impact of this decision can extend to other art forms such as dance and drama too. Thanks to this decision, audiences in America need not fear of being deprived of hearing their favorite fusion bands live!

HALT AMERICA'S DECLINE BY WELCOMING SKILLED AND ENTREPRENEURIAL IMMIGRANTS

By Cyrus Mehta

In recent times, there has been a confluence of diverse events, if stitched together, make immigration reform a virtual no brainer even if we have yet to come out of the economic doldrums.   Indeed, immigration reform in favor of skilled immigration, even if it is piecemeal and not comprehensive, can stimulate our economy in unimaginable ways.

First, the Census Bureau has officially indicated that white births are no longer a majority in the US. Non-Hispanic whites accounted for 49.6 percent of all births in the 12-month period ending last July. This is not something to be alarmed about; rather it is cause for celebration. The population in the US is now multi-ethnic and represents the diverse nations of the world. In our hyper-connected world, Americans who can adapt and interact with others across national boundaries can gain more benefit, bringing about further innovation, ideas and the understanding of other cultures. Of course, critics of increased immigration will bemoan this fact and blame it on the 1965 Immigration Act, which abolished the national origin quota system and opened up immigration to people from all countries. But such fear is driven more by xenophobia than anything else.   It is the 1965 Immigration Act, which has brought diversity into the US. Those who have come to the US regardless of their country of origin have clearly contributed to the country in immeasurable ways. They have also forged closer ties between the US and their country of origin. The symbiotic relationship between Silicon Valley and Bangalore is one such example.  While it has become a national obsession to comment about America’s declining superpower status, one way for it to continue to remain a superpower and be respected as well as admired is to foster a multi-ethnic population that represents all the countries of the world. Even the rest of the world will sit more comfortably with a multi-ethnic superpower than a superpower that favors one group over all others.

Second, we are on the cusp of what The Economist has called The Third Industrial Revolution. New advances in manufacturing will soon make the factory as we now know it obsolete. As manufacturing is going digital, especially with the advent of 3D Printer, we will no longer need long lines of factory workers. A product can be designed on a computer and “printed” on a 3D printer, which will have the potential of rendering supply chains obsolete. Also, the factory of the future will run on its own devoid of workers in oily overalls, and as The Economist presciently notes, “[m]ost jobs will not be on the factory floor but in the offices nearby, which will be full of designers, engineers, IT specialists, logistics experts, marketing staff and other professionals. The manufacturing jobs of the future will require more skills. Many dull, repetitive tasks will become obsolete: you no longer need riveters when a product has no rivets.” The US needs to attract these new skilled professionals who will run the factories of the future.

Third, a new report, Not Coming to America: Why The US Is Falling Behind In the Global Race for Talent, reveals how foreign countries are reshaping their immigration policies to boost their economy while the US remains mired in an obsolete and broken immigration system. The US is thus losing talent to other countries. The report, which has been issued by Partnership For A New American Economy, headed by NYC Mayor Michael Bloomberg, identifies three major risks if it does not reform its immigration laws: a shortage of workers in innovation industries, a shortage of young workers and slow rates of business startup and job creation. US companies are hungry for jobs in science, technology, engineering and math (STEM), but these jobs are hard to find among native US workers. The report also explores the more business friendly immigration policies of Australia, Canada, Chile, China, Germany, Ireland, Israel, Singapore and the United Kingdom in attracting talented immigrants and entrepreneurs. For instance, New Zealand has a rather broad welcoming policy for foreign entrepreneurs. There is no specific job creation or minimum capital requirement, and after two years of self employment “beneficial to New Zealand,” the entrepreneur can apply for permanent residency.

This fortuitous alignment of the stars bodes well for reform of our immigration system, which is not just creaky and obsolete but completely broken. The US has no special visa category that would encourage entrepreneurs to start innovative businesses and become permanent residents. The H-1B visa, which US companies rely on to bring in foreign skilled employees, especially in the STEM fields, is hobbled by a 65,000 annual cap, and the numbers under the FY2013 cap are expected to be reached many months ahead of the start of the next fiscal year, October 1, 2012! Even the employment-based immigration system has broken down even though there is no national origin quota. If you are born in China and India, and have been sponsored by an employer through the onerous labor certification process, it can take several years, even decades, before you get permanent residence.

One wonders how the US has an immigration system dominated by quotas, which also micromanages the employer and foreign national worker, when it espouses free market capitalism. Such a system is more reminiscent of one that could have been designed by communist apparatchiks in the former Soviet Union.  In order to unleash economic growth, it is essential to allow foreign nationals easy access into the US so that they can implement their ideas, create companies and employ more Americans. In a recessionary economy, we need more entrepreneurs to set up businesses and create jobs, and immigrants may have a greater propensity to engage in entrepreneurial activities. There may be a ray of hope. In a rare bipartisan move, freshman senators Marco Rubio (R-FA), Chris Coons (D-Del.), Jerry Moran (R-Kan,) and Mark Warner (D-Va) have introduced Startup Act 2.0, which includes immigration-related provisions to attain the following objectives:

• Creates a new STEM visa so that U.S.-educated foreign students, who graduate with a master’s or Ph.D. in science, technology, engineering or mathematics, can receive a green card and stay in this country where their talent and ideas can fuel growth and create American jobs;
• Creates an Entrepreneur’s Visa for legal immigrants, so they can remain in the United States, launch businesses and create jobs;
• Eliminates the per-country caps for employment-based immigrant visas – which hinder U.S. employers from recruiting the top-tier talent they need to grow.

While the chances of this bill passing in the current partisan political climate, prior the 2012 Presidential elections remain remote, one can still be surprised. After all, immigration ought to cut across partisan lines, and our elected representatives need to enact sound immigration proposals for the good of the country and the world. Although it would be ideal to comprehensively reform our immigration system, which would include providing a path to legalization for the millions of undocumented immigrants, small but meaningful initiatives such as Startup 2.0 could still be passed in the mean time. In the event that Startup Act 2.0 goes nowhere, there is still scope within our existing system to encourage skilled and entrepreneur immigration if only our immigration bureaucrats interpret existing immigration visa categories generously rather than in a mean spirited and niggardly manner. For instance, the intra-company transferee L-1A visa ought to remain a viable option for an entrepreneur to establish a branch or subsidiary of a foreign business in the US. Yet, in recent times, L-1A petitions get turned down wholesale on the ground that a small startup entity can never support a person in an executive or managerial capacity. This is nonsense and bureaucratic gobbledygook, as Congress never intended that small businesses could not support entrepreneur executives or managers. Sad to say, we happen to be in double whammy mode of no good legislation, along with bureaucrats reading out existing visa categories out of the law. The writing is on the wall, and unless we want to perversely see America spiral into decline, it is time to act fast and enact sound immigration reform.

ASSAULT ON BATTERED IMMIGRANTS: HR 4970 UNDOES VAWA PROTECTIONS AND RISKS LIVES

By Myriam Jaidi

“This will get people killed,” my colleague and I agreed while we reviewed the “Immigration Provisions” of HR 4970, the bill introduced in the House in April, ostensibly to “reauthorize” the Violence Against Women Act (VAWA) originally promulgated in 1994 and reauthorized and strengthened since its original passing.  The Immigration Provisions found in Title VIII of HR 4970, however, will effectively dismantle VAWA as we know it in the immigration context, place people in danger, set up a system that will likely violate the United States’ treaty obligations, and reverse decades of progress in the nation’s understanding of domestic violence and the pernicious ways in which an abuser can exercise power and control in domestic relationships.  Overall, HR 4970 undermines the central goals of VAWA: protecting victims of domestic violence and other crimes and assisting law enforcement with the protection of victims, and the investigation and prosecution of crimes.  If passed, it would also pull VAWA relief out of the paradigm governing all other forms of humanitarian relief in the immigration context. 

The risks run high and tempers hot in the context of domestic violence or other types of abusive relationships – such as trafficker to trafficking victim, criminal to crime victim.  Men and women come to us for help in our capacity as immigration lawyers – it is important to recognize that although the law is called the Violence Against Women Act, it helps all victims regardless of whether they are male or female, and we have seen many cases of men being abused either in marital relationships or other contexts.  Clients who come to us have been traumatized and are deeply fearful of further abuse and retaliation from their abuser for their daring to seek help and to escape the abuser.  They fear that the fact of submitting an application will lead to discovery and place them in grave danger.  And they are fearful of law enforcement and concerned that instead of being protected for coming forward, they will be removed from the United States, perhaps sent back to a place where abusers or their family members will have free reign to harm them.

Congress recognized a long time ago that immigrants are a particularly vulnerable group when it comes to relationship dynamics because they are at a disadvantage – their ability to obtain a green card requires sponsorship. Thus, the person seeking status is, until the end of the process, until the green card has been delivered, subject to the will of the sponsoring United States citizen (USC) or lawful permanent resident (LPR). Congress created the self-petitioning process “so that the battered alien can seek status independent of the abuser.” Paul Virtue, Acting Executive Associate Administrator, Non-Disclosure and Other Prohibitions Relating to Battered Aliens: IIRIRA § 384 (May 5, 1997).

Given the draconian provisions of the bill, discussed below, the drafters of HR 4970 appear to be operating on the unfounded assumption that fraud is rampant in the VAWA self-petition context. This has not been our collective experience at CDMA nor have we heard anecdotally that fraudulent self-petitions have been routinely approved. To the contrary, our experience shows that the VAWA Unit at the United States Citizenship and Immigration Services (USCIS) Vermont Service Center (VSC) is extremely well trained and carefully adjudicates VAWA self-petitions, issuing requests for evidence and/or notices of intent to deny in cases where an applicant has not provided sufficient proof of eligibility and denying cases where applicants ultimately are unable to demonstrate by a preponderance of the evidence that they are eligible for deferred action under the law.

HR 4970 changes all aspects of a VAWA self petition, taking this form of affirmative relief out of the paradigm governing other forms of affirmative, humanitarian-based forms of relief, and converting the process into a trial of the VAWA self-petitioner. Title VIII of HR 4970 jettisons the long-standing standard of proof in VAWA self-petitions. The Immigration and Nationality Act (INA) does not provide for a standard of proof for VAWA self-petitions, therefore pursuant to Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010) a VAWA self-petitioner “must prove by a preponderance of evidence that he or she is eligible for the benefit sought.” In assessing whether an applicant has met this burden, INA § 204(a)(1)(J) provides that in adjudicating a self-petition, the Department of Homeland Security (DHS) “shall consider any credible evidence relevant to the petition” and DHS has discretion to determine what evidence is credible and how much weight to give the evidence. Moreover, the rules governing the process provide that a petition may not be denied solely on the basis of information provided by the abuser or a member of the abuser’s family living in the same household as the victim. See 8 USC § 1367(a). Any derogatory information must be independently corroborated. Also, violations of the confidentiality provisions can result in disciplinary action or civil penalties up to $5,000. See 8 USC § 1367(c).

Congress set the standard of proof as it did, precluded dependence on information provided by the abuser, and created strict confidentiality standards based on the established need to protect applicants from being located by an abuser or subjected to retaliation and further abuse. People do in fact get hurt and even killed in these situations. Because of that fact, the protections for applicants under VAWA, especially the confidentiality protections as promulgated in 1996, have been crucial to the central goals of VAWA and therefore strengthened with each subsequent reauthorization of VAWA to date (2005 and 2011).

HR 4970 would impose a “clear and convincing” evidence standard and dismantle the confidentiality provisions, replacing them with a perverse situation in which power over the application submitted by a battered spouse is effectively handed back to the abuser. The clear and convincing evidence standard is a very high standard, far above the default preponderance of the evidence standard applicable to most immigration petitions, whether business or family based. Even individuals in removal proceedings attempting to show that a mandatory ground of denial of an application for relief do not apply to them, carry only the burden of proving by a preponderance of the evidence that the grounds do not apply. 8 C.F.R. § 1240.8(d). Thus a battered spouse faces a higher standard of proof in an affirmative application process under HR 4970 than an individual in removal proceedings attempting to overcome evidence that he has committed a particularly serious crime or presents a danger to the security of the United States!

Moreover, the protections of applicants for asylum are not granted to VAWA self-petitioners under HR 4970. HR 4970 provides that upon filing, a VAWA case will be transferred to a local service center for adjudication and that an officer “shall conduct an in-person interview of the alien who filed the petition” and “may also gather other evidence and interview other witnesses, including the accused United States citizen or lawful permanent resident, if they consent to be interviewed.”

The government and the advocacy community have learned over decades how important confidentiality is to victim safety. As recognized by the White House in a recent blog, “the risks of serious injury and homicide increase when a victim is taking steps to leave an abusive relationship,” a central basis for the confidentiality provisions of VAWA. Confidentiality is a long-standing, crucial component of humanitarian forms of relief. For example, in the asylum context, confidentiality is paramount and it is unthinkable to ask the abuser for input on the persecution of the asylum applicant. Title 8, Code of Federal Regulations (CFR) section 208.6 provides that

Information contained in or pertaining to any asylum application, records pertaining to any credible fear determination conducted pursuant to § 208.30, and records pertaining to any reasonable fear determination conducted pursuant to § 208.31, shall not be disclosed without the written consent of the applicant, except as permitted by this section or at the discretion of the Attorney General.

In the asylum context, confidentiality is considered breached when information contained in an asylum application is disclosed to a third party such that the third party can “link the identity of the applicant to: (1) the fact that the applicant has applied for asylum; (2) specific facts or allegations pertaining to the individual asylum claim contained in an asylum application; or (3) facts or allegations that are sufficient to give rise to a reasonable inference that the applicant has applied for asylum.” Joseph E. Langlois, Director, Asylum Division, Office of Refugee, Asylum, and International Operations, USCIS Interoffice Memorandum, Fact Sheet on Confidentiality (June 15, 2005). That is a significant protective regime founded on a compelling logic: “Public disclosure of asylum-related information may subject the claimant to retaliatory measures by government authorities or non-state actors in the event that the claimant is repatriated, or endanger the security of the claimant’s family members who may still be residing in the country of origin.” Id. 

The rationale behind the VAWA confidentiality provisions are similarly rooted and make sense in the context of the significant risks faced by battered individuals and the purpose of VAWA: to allow battered immigrants “to leave their batterers without fearing deportation.” Violence Against Women Act of 1993: Summary and Purpose, H.R. Rep. No. 103-395, at 25 (1993). Congress developed the existing confidentiality measures to protect victims of domestic violence from being tracked down by their abusers for retaliation and continued abuse. These provisions are crucial to breaking the cycle of power and control that is the crux of domestic violence, and essential to bringing immigrant victims out of the shadows. Experience bears out the fact that whether or not the petitioning individual lives with his or her abuser the possibility that the abuser will be contacted about the application puts the individual in danger. Clearly, HR 4970 makes a mockery of the important protections and undermines them by providing that “all credible evidence submitted by an accused [USC or LPR] . . . shall be considered.” HR 4970 strongly implies that the abuser has to be given notice of the application, as the only way an investigation may be done is if the abuser is contacted and asked to participate. This should simply not be allowed. People will be killed as a result of a measure like this.  

The bill’s use of the term “the accused” in reference to the abuser is completely inappropriate and highlights the fact that the bill shifts the inquiry from a victim-centered assessment of eligibility to a trial of the victim, shockingly taking a defensive stance in favor of the abuser, with the presumption being that the applicant is lying. Other fora already exist in which “the accused” can have his or her day in court such as divorce court, criminal court, family court, or civil court. Disputes between individuals can be weighed in all of these fora. But the self-petition process should not be a trial and is not intended to be adversarial. Furthermore, as noted above, there is extensive documentation of the fact that victims are afraid to come forward and press charges against their abusers specifically because they fear retaliation meted upon them or their children and other loved ones.

Another deeply troubling aspect of the bill is the proposed dismantling of the VAWA Unit at the USCIS Vermont Service Center. The VAWA Unit has amassed 12 years of specialized experience in adjudicating VAWA self-petitions and officers there receive extensive training on how to assess applications, uncover fraud, and properly determine an applicant’s eligibility under the law. Dismantling this unit in favor of local adjudication would be a huge waste of money and undermine the purpose of VAWA.  

HR 4970 adds other obstacles to the process by requiring a stay of adjudication “if an investigation or prosecution is pending” and directing the adjudicating officer to consider the fact that “no investigation has been undertaken or if a prosecutor’s office has not commenced a prosecution after the matter was referred to it . . . .” No acknowledgement is made of the legion reasons why a case might not be prosecuted even after it commenced, including prosecutorial discretion, limited resources, a victim being threatened by the abuser that his or her cooperation will lead to retaliation by the abuser, or a combination of factors. In the U visa context, a prosecutor will sometimes decide not to issue the required U visa certification to the victim who needs it to apply for a U visa, if there is to be a trial in a criminal case, until the trial is completed. This is done for various reasons, the central one being so that the defense cannot use the fact of the certification to impeach the victim’s testimony or to ensure cooperation of the witness at trial. However, the key distinction is that in one case the prosecutor is exercising her discretion whereas in the other, the prosecutor’s discretion does not come into play in a meaningful way. HR 4970 makes the decision for the prosecutor – and stalls a case if a prosecution ensues or paints a case with a negative brush if a prosecutor decides not to proceed.  

Another highly disturbing component of the bill is the mandated denial of a petition and expedited removal of an applicant “upon receiving any evidence of any material misrepresentation on a petition . . . .” The evidence need not be credible. The misrepresentation need not be knowing or willful. Thus a simple mistake of fact on the part of the applicant leads to draconian results including not only denial of the petition, but being processed for expedited removal and being barred from eligibility for any other form of relief. This provision could potentially come into direct conflict with the United States’s treaty obligations, such as those imposed by Article 3 of the Convention Against Torture, which prohibits the United States from returning an alien to a state where there are substantial grounds for believing that the individual would be subjected to torture.  

This bill effectively represents throwing decades of research and aggregated knowledge about domestic violence out the window and constitutes an abuser’s dream codified and approved by the federal government. And no wonder. The Huffington Post discovered one of the driving forces behind HR 4970 is the head of a mail order bride service. A federal jury awarded one of the brides her company matched with an abusive American husband $434,000 after a trial. The verdict was affirmed upon appeal by the United States Court of Appeals for the Fourth Circuit. Go figure.