BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

by Cora-Ann V. Pestaina

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus D. Mehta

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE AAO ON H-1B VISA CREDENTIAL EVALUATIONS AND THE 'THREE-FOR-ONE" RULE

By Cora-Ann V. Pestaina

As immigration practitioners, we file H-1B visa petitions all the time. We know that in each petition, the employer must demonstrate that the position requires a professional in a specialty occupation and that the foreign national – the intended employee - has the required qualifications. It’s become common knowledge that progressively responsible work experience may substitute for any deficiency in the foreign national’s education and everyone is pretty comfortable with the equivalency ratio of three years of work to one year of college training (the “three-for-one” rule). Under this rule, a foreign national with twelve years of work experience could be deemed to possess the equivalent of a four-year US baccalaureate degree and therefore qualified to hold a specialty occupation.

Going forward on new H-1B petitions and especially as we gear up for the upcoming H-1B cap season, a recent non-precedent decision by the Administrative Appeals Office (AAO) discussing USCIS’ recognition of any years of college-credit for a foreign national’s training and/or work experience is worthy of some careful review as it provides detailed analyses that can help us ward off nasty Requests for Evidence (RFE) from the USCIS upon the filing of H-1B petitions.

The case involved an H-1B visa petition filed by a software solutions provider to employ a foreign national in the position of Senior Associate, Solution Architect. The petitioner based its beneficiary-qualification claim upon a combination of the beneficiary’s foreign coursework (a three-year Bachelor of Commerce degree) and the beneficiary’s work experience and training. The USCIS Director denied the H-1B petition and the AAO subsequently dismissed an appeal of the denial, both on the grounds that the petitioner failed to demonstrate that the beneficiary was qualified to perform the duties of the specialty occupation-caliber Software Developer position.

In its decision to dismiss the appeal and deny the petition, the AAO cited language at 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Immigration and Nationality Act (INA). Section 214(i)(2) of the Act, 8 U.S.C. § 1184(i)(2), states that an alien applying for classification as an H-lB nonimmigrant worker must possess:

(A) full state licensure to practice in the occupation, if such licensure is required to practice in the occupation,

(B) completion of the degree described in paragraph (1)(B) for the occupation, or

(C) (i) experience in the specialty equivalent to the completion of such degree,and(ii) recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

8 C.F.R. § 214.2(h)(4)(iii)(C), Beneficiary qualifications, provides for beneficiary qualification by satisfying one of four criteria. They require that the evidence of record establish that, at the time of the petition's filing, the beneficiary was a person either:

(1) Hold(ing] a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(2) Hold(ing] a foreign degree determined to be equivalent to a United States baccalaureate or higher degree required by the specialty occupation from an accredited college or university;

(3) Hold[ing] an unrestricted state license, registration or certification which authorizes him or her to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or

(4) Hav[ing] [(A)] education, specialized training, and/or progressively responsible experience that is equivalent to completion of a United States baccalaureate or higher degree in the specialty occupation, and hav[ing] [(B)] recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The AAO pointed out that the clear, unambiguous language at both 8 C.F.R. § 214.2(h)(4)(iii)(C)(4) and at section 214(i)(2)(C) of the Act, stipulates that for classification as an H-1B nonimmigrant worker not qualifying by virtue of a license or qualifying degree, a beneficiary must possess TWO requirements - the experience in the specialty equivalent to the completion of such degree; AND recognition of expertise in the specialty through progressively responsible positions relating to the specialty.

The petitioner submitted three sets of credentials evaluation documents, each an evaluation of a combination of the beneficiary’s foreign education and his work experience and training. Regarding the documentation of the beneficiary’s work experience, the evaluations relied heavily upon an experience letter which indicated that the beneficiary had been employed full-time “from June 2008 through the present” and that he “currently serves in the position of Sr. Associate, Solution Architect.” The letter provided a list of the beneficiary’s current job duties. The AAO found the experience letter deficient in that it did not establish any progression in the beneficiary’s duties and responsibilities or any progression through increasingly responsible positions that would meet the requirement, at 8 C.F.R. §214.2(h)(4)(iii)(C)(4), to show recognition of expertise in the specialty through progressively responsible positions directly related to the specialty in question. In other words, the AAO found that the experience letter did not indicate the position in which the beneficiary had initially been hired and whether the beneficiary still held that same position or whether the beneficiary’s current position represented a promotion or a series of promotions. The AAO found that the letter identified only the beneficiary’s current job duties in “relatively abstract terms of generalized functions” and did not state how long the beneficiary was performing in that current job. Because the letter failed to recount the beneficiary’s prior positions with the employer and the duties and responsibilities of those prior positions, it therefore did not establish that the beneficiary had achieved progressively responsible positions to indicate recognition of expertise in the pertinent specialty, as the provisions at 8 C.F.R. §214.2(h)( 4)(iii)(C)( 4) include as an essential element for establishing a beneficiary's qualifications through a combination of education, training, and/or experience. The AAO held that the letter provided an insufficient basis for the evaluators to make any conclusions about the nature and level of college-course-equivalent knowledge that the beneficiary gained throughout his employment.

The AAO also took issue with what it described as a “misinterpretation and misapplication of the so-called “three-for-one” rule” which evaluators use to recognize any three years of work experience in a relevant specialized field as equivalent to attainment of one year of college credit in that specialty. The AAO stated that only one segment of the H-lB beneficiary-qualification regulations provides for the application of the three-for-one ratio, and that is the provision at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), which reserves the application exclusively for USCIS agency-determinations and moreover, that portion of the regulations requires substantially more than simply equating any three years of work experience in a specific field to attainment of a year's worth of college credit in that field or specialty. The AAO pointed out that evaluators seem to have adopted as their standard of measure only the numerical portion of the ratio segment of the regulation at 8 C.F.R. §214.2(h)(4)(iii)(D)(5), that is, "three years of specialized training and/or work experience must be demonstrated for each year of college-level training the alien lacks" and neglected to recognize the rest of the test which limits application of the “three-for-one” rule to only when USCIS finds that the evidence about the "the alien's training and/or work experience" has (1) “clearly demonstrated” that it included the theoretical and practical application of specialized knowledge required by the specialty occupation; (2) “clearly demonstrated” that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation; AND (3) “clearly demonstrated” that the alien has recognition of expertise in the specialty evidenced by at least one type of documentation such as:

(i) Recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation;

(ii) Membership in a recognized foreign or United States association or society in the specialty occupation;

(iii) Published material by or about the alien in professional publications, trade journals, books, or major newspapers;

(iv) Licensure or registration to practice the specialty occupation in a foreign country; or

(v) Achievements which a recognized authority has determined to be significant contributions to the field of the specialty occupation.

Finding that the beneficiary’s experience letter failed to meet these three criteria, the AAO held that such evidence did not qualify for recognition of any years of college-level credit.

The decision also points out that under 8 C.F.R. §214.2(h)(4)(iii)(D)(3), only a “reliable credentials evaluation service that specializes in evaluating foreign education credentials” can evaluate a foreign national’s education. In the instant case, the AAO therefore dismissed two evaluations prepared by individuals and not by credentials evaluation services as having no probative weight. 

The AAO also found fault with one evaluation of the beneficiary’s experience/training since the proof of the evaluator’s own credentials qualifying him to provide the evaluation included an endorsement letter from the Chairman of the Department of Computer Science at the education institution where the evaluator was employed, dated four years prior to the evaluation and a letter from the Registrar which stated that the evaluator had the authority to “recommend college-level credit for training and experience” and did not state that he had the power to “grant” college-level credit or go into any detail as the specific extent of his authority in this regard. The letter from the Registrar was also dated a year prior to the evaluation. 

The AAO decision also touched on the fact that two evaluations mentioned that the beneficiary had completed “professional development programs in a variety of computer technology and accounting-related subject[s]” and provided no concrete explanatory information about the substantive nature of those programs and what their completion may have contributed in terms of equivalent U.S. college-level coursework.

With regard to any use of a foreign national’s resume as evidence of his work experience, the AAO decision pointed out that  a resume represents a claim by the beneficiary, rather than evidence to support that claim.

This is one non-precedent decision and the AAO seems to be taking a very hard line in denying a case where the beneficiary provided evidence of his work experience. Immigration practitioners who file H-1B petitions may feel that USCIS has not been taking such an extreme stance in previous petitions. It is up to each practitioner to discuss the issue with the prospective H-1B employer and decide on whether to submit a wealth of documentation with the initial H-1B petition or take the chance that the USCIS could issue an RFE. So what can we take away from this AAO decision?

• Most importantly, the “three-for-one” rule cannot be taken for granted. It is important that the foreign national obtain extremely detailed experience letters from former employers, which describe each position that the foreign national has held such that the progressively responsible nature of the positions is evident and indicates the foreign national’s level of expertise in the specialty. The description of the foreign national’s duties and responsibilities should make it clear that his work included the theoretical and practical application of specialized knowledge required by the specialty occupation. The letters should also mention the foreign national’s peers, supervisors and subordinates who have degrees in the specialty occupation. The H-1B petitioner must also demonstrate that the foreign national has recognition of expertise in the specialty evidenced by at least one type of a list of five types of documentation described above. This can be accomplished by submitting two expert opinion letters from two college professors along with contemporaneous evidence of their ability to grant college-level credit.
• Only a foreign credentials evaluation service may evaluate a foreign national’s education. Accordingly, if the foreign national has a combination of education and work experience, the submission to the USCIS cannot contain only expert opinions from professors but must also include an evaluation from a foreign credentials evaluation service. 
• Any evidence of the foreign national’s training must be accompanied by transcripts and a discussion about the nature of the program and what each program is worth in equivalent U.S. college level coursework. Again, if relying on a college professor to do an equivalency, the evaluation must be corroborated with evidence from the college authorities that the professor has the authority to grant credits and must provide further details under what circumstances this professor is authorized to grant those credits.
• The foreign national’s resume should never be used as documentation of his experience.

IGNORING THE ELEPHANT IN THE ROOM: AN INITIAL REACTION TO JUDGE HANEN’S DECISION ENJOINING DAPA AND EXPANDED DACA

By David A. Isaacson

On February 16th, as the holiday weekend was coming to an end, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas issued a Memorandum Opinion and Order in the case of State of Texas, et al., v. United States, et al.,  granting the motion of the plaintiff States for a preliminary injunction against the “Deferred Action for Parents of Americans and Lawful Permanent Residents” program, known as DAPA, and the expansion of Deferred Action for Childhood Arrivals, known as DACA, that were set out in a November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson.  (The original DACA program, as instituted in 2012 by then-Secretary of Homeland Security Janet Napolitano, was not challenged by the plaintiff States, and is not affected by the injunction.)  According to Judge Hanen, the plaintiff States have shown a likelihood of success on the merits of their claim that DAPA and the DACA expansion were authorized in violation of the Administrative Procedures Act (APA), as well as meeting the other requirements for a preliminary injunction.

The Memorandum Opinion and Order is more than 120 pages long, so a full analysis is not feasible in a blog post, especially one being published just two days after the Memorandum Opinion and Order itself.  In this blog post, however, I will focus on what I think is one of the most important conceptual flaws in the Memorandum Opinion and Order.  It appears to overlook key sources of statutory and regulatory authority for DAPA and expanded DACA, particularly the portions of DAPA and expanded DACA which relate to the grant of employment authorization and related benefits.

In the Memorandum Opinion and Order, Judge Hanen accepts that the Department of Homeland Security (DHS), and in particular the Secretary of Homeland Security, Jeh Johnson, has the authority to set priorities regarding whom to remove from the United States.  “The law is clear that the Secretary’s ordering of DHS priorities is not subject to judicial second-guessing.”  Memorandum Opinion and Order at p. 69.  “The States do not dispute that Secretary Johnson has the legal authority to set these priorities,” Judge Hanen writes, “and this Court finds nothing unlawful about the Secretary’s priorities.”  Memorandum Opinion and Order at 92. 

Judge Hanen asserts in his Memorandum Opinion and Order, however, that DHS’s statutorily granted authority to set enforcement priorities does not go so far as to authorize DAPA because of the affirmative benefits which are to be granted under the program.  He similarly holds that the usual presumption against APA review of decisions not to enforce a statute, as set out by the Supreme Court in Heckler v. Chaney, 470 U.S. 821 (1985), does not apply in this case because DAPA is not merely a determination not to enforce: 

Instead of merely refusing to enforce the INA’s removal laws against an individual, the DHS has enacted a wide-reaching program that awards legal presence, to individuals Congress has deemed deportable or removable, as well as the ability to obtain Social Security numbers, work authorization permits, and the ability to travel. 

Memorandum Opinion and Order at 85-86.  A similar theme is sounded later in the opinion when contrasting DHS’s statutory authority to set priorities, of which Judge Hanen approves, with the benefits conferred under DAPA:

The [Homeland Security Act]’s delegation of authority may not be read, however, to delegate to the DHS the right to establish a national rule or program of awarding legal presence—one which not only awards a three-year, renewable reprieve, but also awards over four million individuals, who fall into the category that Congress deems removable, the right to work, obtain Social Security numbers, and travel in and out of the country.

Memorandum Opinion and Order at 92.

Setting aside for the moment the ability to travel internationally, which is offered only as part of a subsequent application by those already granted DAPA or DACA and is granted when appropriate pursuant to the discretionary parole authority of INA §212(d)(5)(A), 8 U.S.C. §1182(d)(5)(A), the core of Judge Hanen’s concern (or at least a key portion of it) appears to be with the grant of employment authorization and the related documentation, such as a Social Security number, for which one who is granted employment authorization becomes eligible.  It is certainly true that those who receive Employment Authorization Documents (EADs), and are thereby able to receive Social Security numbers, become in an important sense “documented” where they were previously “undocumented”.  But it is not true that DHS has acted without statutory authority in giving out these important benefits.  

It is at this point in the analysis that Judge Hanen appears to have overlooked a very important part of the legal landscape, what one might term the elephant in the room.  The statutory authority for employment authorization under the INA is contained in section 274A of the INA, otherwise known as 8 U.S.C. §1324a.  That section lays out a variety of prohibitions on hiring and employing an “unauthorized alien”, and concludes by defining the term as follows:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General. 

8 U.S.C. §1324a(h)(3). 

That is, the Attorney General – whose functions have now been in relevant part taken over by the Secretary of Homeland Security – is statutorily empowered to authorize an alien to be employed, thus rendering the alien not an “unauthorized alien” under the INA.  There are a few restrictions on this authority noted elsewhere in the INA: for example, 8 U.S.C. §1226(a)(3) states that an alien who is arrested and placed in removal proceedings may not be provided with work authorization when released from custody unless he or she is otherwise eligible for such work authorization “without regard to removal proceedings”.  But overall, the authority provided by 8 U.S.C. §1324a(h)(3) is quite broad. 

Moreover, it is not as though this authority has gone unremarked upon in the context of DAPA and DACA expansion.  The November 20, 2014 Memorandum from Secretary of Homeland Security Jeh Johnson regarding DAPA and DACA (or “Johnson DAPA Memorandum” for short)  states that “Each person who applies for deferred action pursuant to the criteria above shall also be eligible to apply for work authorization for the period of deferred action, pursuant to my authority to grant such authorization reflected in section 274A(h)(3) of the Immigration and Nationality Act.”  Johnson DAPA Memorandum at 4-5.  Nonetheless, other than a quote from this section of the Johnson DAPA Memorandum at page 13 of the Memorandum Opinion and Order, Judge Hanen’s Memorandum Opinion and Order does not appear to address the authority provided by INA §274A(h)(3), 8 U.S.C. §1324a(h)(3). 

Pursuant to the authority contained in 8 U.S.C. §1324a(h)(3), the Attorney General and then the Secretary of Homeland Security have promulgated regulations for many years listing various categories of people who are authorized to accept employment by virtue of their status, or who can apply (initially to the INS, and now to USCIS) for authorization to accept employment.  The list is currently contained in 8 C.F.R. §274a.12, and as noted in earlier versions of that regulatory section, it has existed in substantively similar form since at least 1987, when it was put in place by 52 Fed Reg. 16221.  Included on the list are not only such obvious categories as Lawful Permanent Residents, asylees, and refugees, but also those with various sorts of pending applications for relief, certain nonimmigrants, and many other categories.

One subsection of the 8 C.F.R. §274a.12 list that is particularly relevant here is 8 C.F.R. §274a.12(c)(14), the existence of which is acknowledged in passing by the Memorandum Opinion and Order at page 15 and footnote 66 of page 86 but is not discussed elsewhere.  That provision has long included among the list of those who may apply for employment authorization: “An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment.” 

As noted in footnote 11 of the Office of Legal Counsel memorandum regarding the legal basis for DAPA, which also addresses much of the authority discussed in the foregoing paragraphs, a prior version of this regulation authorizing employment for deferred-action recipients actually dates back to 1981.  But for present purposes, it is sufficient to point out that the 1987 version of the employment-authorization regulations has continued in force, with various modifications not relevant here, for over 35 years.  The validity of 8 C.F.R. §274a.12(c)(14) as it has been in effect for over three decades does not appear to have been challenged by the plaintiff States or by Judge Hanen, nor is it clear how it could be, given the broad authority provided by 8 U.S.C. §1324a(h)(3). 

This long-existing regulation, grounded firmly in explicit statutory authorization, clearly states that an alien beneficiary of “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), which is called “deferred action,” id., may be granted employment authorization upon a showing of economic necessity.  (Such a showing of economic necessity is, in fact, required when seeking employment authorization under DACA, the instructions for which require the filing of the Form I-765 Worksheet regarding economic necessity; the instructions for DAPA, when they are published, will presumably have the same requirement.)  Thus, the regulation at 8 C.F.R. §274a.12(c)(14) authorizes the very features of DAPA and DACA which so troubled Judge Hanen as explained in the Memorandum Opinion and Order: the jump from the setting of enforcement priorities to the granting of affirmative benefits.  The notion that those whose cases are given lower priority as a matter of administrative convenience to the government, should potentially be granted employment authorization as a consequence, is not some new idea created for DAPA and DACA without notice and comment, but has been set out in regulations for many years. 

One might say that DAPA and DACA are composed of two logically separable components: first, the designation of certain cases as lower priority, and second, the tangible benefits, principally employment authorization and related benefits, which flow from that designation.  Judge Hanen has found the designation of certain cases as lower priority to be unobjectionable, and has held the provision of tangible benefits in those cases to be in violation of the APA.  But according to a long-existing regulation which no one has challenged, the second component of DAPA and DACA may permissibly flow from the first. 

It is therefore logically problematic to say, as Judge Hanen has done in his Memorandum Opinion and Order, that the provision of benefits under DAPA violates the APA even though the prioritization of cases would not.  The bridge from the first step to the second was, as it were, installed a long time ago.  Although Judge Hanen refers to “a new rule that substantially changes both the status and employability of millions,” Memorandum Opinion and Order at 112, it is in fact a very old rule that has provided that those who are treated, as a matter of convenience, as being lower priority, should be made employable if they can demonstrate economic necessity.  Since the prioritization is concededly acceptable, it follows that the employment authorization and related benefits should be acceptable as well.

The only thing which Secretary Johnson’s November 2014 Memorandum really added to the pre-existing rules governing deferred action and its consequences was a set of criteria for DHS officers to use in determining whether to grant deferred action.  But since the grant of deferred action, as it has long been described in regulation, is merely “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14), it can hardly be less permissible under the APA, or for that matter under the Constitution (the basis of another challenge which Judge Hanen did not reach), to grant deferred action than it is to give certain cases lower priority.  If DHS is indeed free to give certain cases lower priority, a proposition which is difficult to seriously dispute given basic background norms of prosecutorial discretion, then pursuant to 8 C.F.R. §274a.12(c)(14) as promulgated under the authority of 8 U.S.C. §1324a(h)(3), DHS is also free to grant employment authorization to those whose cases it has given lower priority and who can show economic necessity for employment.

In a world of finite resources, deciding which cases are worth pursuing necessarily implies deciding which cases are not worth pursuing.  Every dollar of funding or hour of officer time that DHS were to spend seeking to remove someone who meets the DAPA criteria would be a dollar of funding or hour of time that it could not spend seeking to remove a more worthy target.  The DAPA criteria are flexible by their nature, including a final criterion of “present[ing] no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate,” Johnson Memorandum at 4.  But where no such negative factors exist, DHS has reasonably determined that parents of U.S. citizens and Lawful Permanent Residents who meet the other DAPA criteria are likely to be appropriate candidates for deferred action—which is, to repeat, simply “an act of administrative convenience to the government which gives some cases lower priority,” 8 C.F.R. §274a.12(c)(14).  Having made that determination, DHS is authorized by both statute and regulation to confer employment authorization on those whose cases it has given this lower priority.  In ruling otherwise, without addressing either 8 C.F.R. §1324a(h)(3) or the implications of 8 C.F.R. §274a.12(c)(14) promulgated under its authority, Judge Hanen appears to have overlooked the proverbial elephant in the room.

WHO IS 'LAWFULLY PRESENT' UNDER THE AFFORDABLE CARE ACT?

By Gary Endelman and Cyrus D. Mehta

Had I been present at the creation, I would have given some useful hints for the better ordering of the universe.

Alphonse X the Wise of Castile

Many non-citizens will be subject to additional payment to the Internal Revenue Service if they do not maintain “minimum essential healthcare coverage” under the Patient Protection and Affordable Care Act (Affordable Care Act – ACA).  This is known as the “individual mandate” or the “individual shared responsibility provision.”  By the same token, eligible non-citizens can also access health plans on the health exchanges or Marketplace. The last day to enroll is February 15, 2015 for the current year.  Our first blog discussed the impact of the ACA on lawful permanent residents or green card holders who reside outside the United States.  This blog focuses on non-citizens who are lawfully present in the United States. Section 1411(a) (1) of the ACA renders non-citizens lawfully present in the United States subject to the individual mandate.

The ACA is linked to immigration issues, just as it is joined at the hip with tax law, and it behooves the careful practitioner to consider the commonality   of all these issues and how each of them can inform our understanding of the others when advising non-citizen clients. While an immigration practitioner need not be an expert in other disciplines, he or she must be aware of the eligible statuses for coverage under the ACA, the deadlines for enrollment, and the potential for the client to being subject to an additional payment to the IRS for failing to obtain coverage, unless the client can qualify for an exemption.

The definition of “lawfully present” in 45 CFR 155.2 tracks the prior definition, as it applied to pre-existing condition insurance plans, under 45 CFR 152.2.  A summary of the definitions of “lawfully present” is posted on healthcare.gov, which we reproduce below:

Immigrants with the following statuses qualify to use the Marketplace:

• Lawful Permanent Resident (LPR/Green Card holder)
• Asylee
• Refugee
• Cuban/Haitian Entrant
• Paroled into the U.S.
• Conditional Entrant Granted before 1980
• Battered Spouse, Child and Parent
• Victim of Trafficking and his/her Spouse, Child, Sibling or Parent
• Granted Withholding of Deportation or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT)
• Individual with Non-immigrant Status (includes worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
• Temporary Protected Status (TPS)
• Deferred Enforced Departure (DED)
• Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) is not an eligible immigration status for applying for health insurance)
• Lawful Temporary Resident
• Administrative order staying removal issued by the Department of Homeland Security
• Member of a federally-recognized Indian tribe or American Indian Born in Canada
• Resident of American Samoa

Applicants for any of these statuses qualify to use the Marketplace:

• Temporary Protected Status with Employment Authorization
• Special Immigrant Juvenile Status
• Victim of Trafficking Visa
• Adjustment to LPR Status
• Asylum (see note below)
• Withholding of Deportation, or Withholding of Removal, under the immigration laws or under the Convention against Torture (CAT) (see note below)

Applicants for asylum are eligible for Marketplace coverage only if they’ve been granted employment authorization or are under the age of 14 and have had an application pending for at least 180 days.

People with the following statuses and who have employment authorization qualify for the Marketplace:

• Registry Applicants
• Order of Supervision
• Applicant for Cancellation of Removal or Suspension of Deportation
• Applicant for Legalization under Immigration Reform and Control Act (IRCA)
• Legalization under the LIFE Act

Note that undocumented aliens are not included in the above definitions, including beneficiaries of the 2012 DACA program as well as future recipients of the November 20, 2014 Obama Executive Actions that expand DACA as well as the Deferred Action for Parents Accountability program (DAPA). 

While the above list provides a comprehensive summary and quick reference, some analysis of the actual regulatory definitions is warranted under 45 CFR 152.2.

A nonimmigrant is only considered “lawfully present” if he or she “has not violated the terms of the status under which he or she was admitted or to which he or she has changed after admission.” See 45 CFR 152.2(2). This is unclear as a nonimmigrant may have technically violated his or her status unwittingly in many ways, but may  still have eventually cured it. For example, if a person on an H-1B visa was mistakenly admitted into the United States for a lesser period of time than the validity period in the H-1B approval notice, and does not realize this, he or she has potentially technically violated status. Still, this person can hope to correct it by filing a late extension of status in the US, or leaving the US and returning, or at times, asking the CBP to extend the date within the US.  An individual who is presently in lawful status should be considered “lawfully present” in order to access a health plan on the exchange. The larger point is that maintenance of status may now have a wider significance beyond the more modest confines of the INA. In turn, this commends the value of an inter-disciplinary approach to the whole question of ACA jurisprudence. Interestingly, while 45 C.F.R. 152.2 gives a precise definition of “lawfully present” it does not contemplate nor define “unlawful presence” thus reflecting a refreshing preference for inclusion as opposed to exclusion, something the INA would do well to emulate.

Under 45 CFR 152.2(4) (vii), only an applicant for adjustment of status whose visa petition has been approved is subject to the ACA. However, it is possible to file an adjustment of status application concurrently with an I-130 or I-140 immigrant visa petition, without the need for such a petition to be approved. Thus, one who has filed an adjustment of status application concurrently with an I-130 or I-140 petition cannot have access to a plan under the health exchange until the petition is approved. Still, once the person is issued employment authorization after filing an adjustment application pursuant to 8 CFR 274a.12(c) (9) he or she can access the ACA even if the I-130 or I-140 petition has not been approved. 45 CFR 152.2(4) (iii) renders one who has been granted employment authorization under 8 CFR 274a.12(c) (9), (10), (16), (18), (20), (22), or (24) as lawfully present. But 8 CFR 274a.12(b)(20) is conspicuous by its absence in the ACA rules determining lawful presence, which allows those in a nonimmigrant status to continue employment for 240 days during the pendency of a timely filed extension request.  It is thus unclear whether someone in a period of stay authorized by the Attorney General (POSABAG) while a timely extension request is pending could take advantage of the ACA. Even if a noncitizen is lawfully present, he or she has to also be a tax resident. IRS regulations at 26 CFR 1.5000A-3(c) exempt noncitizens who are nonresident tax aliens from the individual mandate. So while a non-citizen may be lawfully present and can access the health exchange, he or she will not be subject to the individual mandate under the IRS rules. It is also worth noting that one who is lawfully present may not be eligible to access health insurance who is here in the United States briefly. 45 CFR 155.305, which establishes eligibility criteria for enrolling exchange, requires the applicant to be a “citizen or national of the United States, or is a non-citizen who is lawfully present in the United States, and is reasonably expected to be a citizen, national, or a non-citizen who is lawfully present for the entire period for which enrollment is sought.” See 45 CFR 155.305(a) (1).This durational requirement reinforces our understanding that the ACA is not a new form of government welfare nor can we view such a durational requirement as denying or abridging a fundamental constitutional right. Compare this to the lesson taught by the Supreme Court in Shapiro v. Thompson, 394 U.S. 618 (1969) that struck down waiting periods for public assistance.

 Being a “resident” for immigration purposes is not the same as being a “resident” for tax purposes. Tax law uses many of the same terms as immigration but the identical words or concepts can have dramatically different meaning. It is a measure of the ever-growing extent to which immigration has become inextricably interconnected to so many other areas of American life that we are increasingly prone to use immigration terms such as “lawfully present” when discussing non-immigration topics, sometimes with significantly different meanings. Definition therefore is inherently contextual and the relationship of the ACA to our immigration law is a fluid and dynamic one. INA § 101(a)(33) states: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.” Note that the concept of domicile, which considers the applicant’s intent rather than the place where he or she actually lives, is absent from this definition. Remember, in the naturalization context,  if your client did not stay away one year, he or she must be considered a resident of the same state where they lived before leaving. 8 C.F.R. 316.5 (b) (5). See Accardi V. Shaughnessy, 347 US 260 (1954); Morton v. Ruiz, 415 US 199, 235 (1974) (“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures”).

Nonimmigrants are considered to be resident aliens for tax purposes if they meet the “substantial presence” test. Non-citizens are considered residents through the substantial presence test if they are physically present in the US for 31 days during the current year; and a total of 183 days during a 3-year period by counting all the days of the current calendar year, 1/3 days of the previous calendar year, and 1/6 days of the second previous calendar year. See IRC §7701(b) (1) and (3).

Even those who become tax residents under the substantial presence test may continue to remain non-residents if they meet a closer connection to a foreign country test. However, not all may be able to meet this test. A frequent tourist to the US in B-2 status can potentially become a tax resident under the substantial presence test, and thus subject to the ACA. If this tourist is the subject of an immigrant visa petition, such as an I-130 petition filed by a sibling, whose date has not become current, he or she can no longer meet the closer connection test. At the time of filing the 1040 return, this individual will be subject to the shared responsibility payment.

Most students lawfully present in the US in F, J, M or Q status, or their dependents, are exempt for 5 years from counting days of presence under the substantial presence test. Even after five years and having become subject to the substantial presence test, they can continue to be treated as nonresident aliens if they meet the closer connection to a foreign country test. Teachers or trainees present in the US in J or Q status (and their dependents) are exempt from counting days towards substantial presence only for the first two years in the United States. This includes all Js and Qs who are not students, such as research scholars, professors, short-term scholars, specialists, physicians, trainees, interns, au pairs, and camp counselors. Even if these students are not subject to the individual mandate, they can still qualify for coverage through the health exchanges in the event that the school does not provide equivalent coverage

It is hard today to harken back to a time when immigration was less central to the rhythm of American life than it is now. Yet, before the enactment of the Immigration Reform and Control Act of 1986 (IRCA), most employers did not need to worry about immigration nor was immigration policy a matter of white-hot national debate. The lasting importance of IRCA was to bring immigration and immigrants in from the shadows, a process that continues to the present day.   The ACA continues this process of inclusion and the extent to which the marriage of immigration with health care can be a lasting and meaningful one will go far towards assuring the success of both. 

(Guest author Gary Endelman is the Senior Counsel at Foster)