by Cyrus D. Mehta, ABIL Lawyer and Gary Endelman
The Insightful Immigration Blog

There was a time when a lawful permanent resident (LPR) or green card holder had more rights than today.

Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),   if an LPR with a criminal conviction traveled abroad,  he or she was not found inadmissible, or excludable as it was then known, if the trip was brief, casual and innocent.

This was as a result of a landmark decision of the Supreme Court, Rosenberg v. Fleuti, 374 U.S. 449 (1963).    Fleuti, an LPR and Swiss national, was found excludable after he returned from a visit to Mexico of only about a couple of hours under the then exclusion ground of being an alien “afflicted with psychopathic personality” based on his homosexuality.  This was only an excludable and not a deportable ground. If Flueti had not departed the US, he would not have been in the predicament he was in after his brief trip to Mexico. The Supreme Court interpreted a then statutory provision involving involuntary departures not resulting in an entry into the US, INA §101(a)(13),  to hold that Congress did not intend to exclude long term residents upon their return from a trip abroad that was “innocent, causal and brief.”Thus, under the Fleuti doctrine, such an LPR was not thought to have left the US so as to trigger excludability.

In 1996, IIRIRA amended § 101(a)(13), which now provides:

(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien --

(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

The Board of Immigration Appeals in Matter of Collado-Munoz, 21 I&N Dec. 1061 (BIA 1998),  interpreted this amendment as eliminating the Fleuti doctrine. Thus, post 1996, an LPR who was convicted of a crime involving moral turpitude (CIMT) and who travelled abroad  would be seeking admission in the US under new § 101(a)(13)(C)(v) and could be put on the same footing as any alien seeking admission who may not have the same long term ties to the US as the LPR. Such an LPR would be found inadmissible of that CIMT even if that crime did not trigger removability  had he or she not left the US. The BIA eliminated the Fleuti  doctrine   despite a long line of Supreme Court cases holding that returning LPRs were entitled to the same due process rights as they would have if they were placed in deportation proceedings. For instance, in Kwong Hai Chew v. Colding, 344 U.S. 590 (1953), involving a seaman LPR whose entry was deemed prejudicial to the public interest and who was detained at Ellis Island as an excludable alien, the Supreme Court held that we must first consider what would have been his constitutional rights had he not undertaken his voyage to foreign ports but remained continuously in the US.  Even in Landon v. Plasencia, 459 U.S. 21 (1982), where the LPR’s trip abroad involved a smuggling operation and was not  considered so innocent,  the Supreme Court held that she could seek the Fleuti exception even in exclusion proceedings as well as enjoy all the due process rights as an LPR.  Landon recognized the LPR’s long term ties with the country noting that her right to “stay and live and work in this land of freedom” was at stake along with her right to rejoin her family.  It seemed that the BIA in Matter of Collado-Munoz, an administrative agency, was limited by its inability to rule upon the constitutionality of the laws it administered despite the robust dissent of Board Member Rosenberg  who stated that “[w]e are, however, authorized and encouraged to construe these laws so as not to violate constitutional principles.” Circuit courts deferred to the BIA interpretation while “recognizing that there are meritorious arguments on both sides of the issue.”  See Tineo v. Ashcroft, 350 F.3d 382 (3d Cir. 2003).

As a result after IIRIRA, LPRs  with prior convictions who travelled abroad briefly for holidays, weddings or to visit sick relatives were found inadmissible upon their return, and were also detained under the mandatory detention provision pursuant to § 236(c) if the conviction was a CIMT. This was true even if the conviction occurred prior to 1996 when Fleuti existed. In January 2003,  Vartelas, an LPR,  returned from a week- long trip to Greece, and immigration officials at the airport determined he was an alien seeking admission pursuant to § 101(a)(13)(c)(v) as he was convicted in 1994 for conspiring to make counterfeit security, which was characterized as a CIMT.  Vartelas challenged his designation as an arriving alien seeking admission all the way to the Supreme Court, and in Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), the Supreme Court recently held that the Fleuti doctrine  still applies to LPRs with pre-IIRIRA convictions who travel abroad.  Noting that there was a presumption against retroactive legislation under Langraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Vartelas court noted, “Once able to journey abroad to fulfill religious obligations, attend funerals and weddings of family members, tend to vital financial interests, or respond to family emergencies, permanent residents situated as Vartelas now face potential banishment." We refer you the excellent practice advisory of the Legal Action Center of the American Immigration Council on how to represent clients with pre-1996 convictions who have been positively impacted by Vartelas v. Holder.

Not all share our view of Vartelas v. Holder. One expert commentator limits it to LPRs with pre-1996 convictions, and for this reason predicts that it will not have a broad impact.

We think differently.  Although the Supreme Court passed up the opportunity to rule on the viability of Fleuti for post 1996 convictions;  in footnote 2 while acknowledging that the BIA read INA §101(a)(13)(C)  to overrule Flueti  the Court noted,  “Vartelas does not challenge the ruling in Collado-Munoz. We therefore assume, but do not decide, that IIRIRA’s amendments to §101(a)(13)(A) abrogated Fleuti.” This is significant since the Supreme Court explicitly did not affirmatively decide that Fleuti  had been repealed for LPRs who had convictions after the enactment of IIRIRA. Practitioners with have LPR clients who have been charged as arriving aliens after a brief trip abroad should continue to advocate for the viability of the Flueti doctrine on behalf of their clients in removal proceedings.

There are compelling arguments for doing so, and we commend readers to the brilliant amicus brief that Ira Kurzban and Debbie Smith wrote for the American Immigration Lawyers (AILA) Association in Vartelas v. Holder providing suggestions on how to convincingly make them.  The key argument is that that  the §101(a)(13)(C) categories never abrogated Flueti; rather they codified some of the characteristics of Flueti by suggesting, for example,  that an LPR would not be seeking admission if the trip overseas was brief (§101(a)(13)(C)(ii)) and that it was innocent (§101(a)(13)(C)(iii)). Moreover, § 101(a)(13)(C) employs “shall not …unless” language, which suggests that the provisions within are only necessary conditions to trigger inadmissibility, but not necessary and sufficient conditions to trigger inadmissibility.

Moreover,  the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing" evidence that the LPR should be deported. Subsequent to Woodby, in Landon v. Plasencia, supra, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to an LPR in exclusion proceedings. With the introduction of  the § 101(a)(13)(C) provisions rendering a returning LPR inadmissible, the CBP’s Admissibility Review Office and more than one government lawyer argued that the heavy burden of proof that the government had  under Woodby had shifted to the LPR.  Indeed, INA §240(c)(2) places the burden on the applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible.  Fortunately, a recent decision of the BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) shatters this assumption once and for all. The BIA by affirming the Woodby standard in Rivens held, “Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense indentified in section 212(a)(2).”  It is surprising that Justice Ginsburg did not mention Rivens although footnote No. 1 in that decision reveals that the BIA was keenly attuned to what the Supreme Court might do with the Vartelas case.

Thus, the survival of Woodby, notwithstanding the enactment of §101(a)(13)(C),  carries with it the survival of Fleuti. Even though the Vartelas Court did not have to decide if Fleuti still lived, it reminds us that, despite the failure of the BIA to realize it in Collado-Munoz, Fleuti is at heart a constitutional decision. Vartelas belongs in this same line of cases because it too emphasizes the special protection that the Constitution offers to returning LPRs. The  portion of Vartelas that  could serve as a springboard for such an argument  in a future case is part of footnote 7of the slip opinion:

"The act of flying to Greece, in contrast, does not render a lawful permanent resident like Vartelas hazardous. Nor is it plausible that Congress' solution to the problem of dangerous lawful permanent residents would be to pass a law that would deter such persons from ever leaving the United States."

The authors credit David Isaacson for pointing that  the second sentence, in particular, suggests a potential willingness to avoid reading 101(a)(13)(C)(v) in the way that  Collado-Munoz did, essentially on the ground that such a reading makes no sense because of its logical consequence.  One might be able to combine this with the constitutional concerns raised in the AILA amicus brief and get Collado-Munoz overturned (and Fleuti restored) on the basis of a combination of purpose-based ambiguity in the statute and the doctrine of avoidance of constitutional doubts, which trumps Chevron deference, see, e.g., Edward J. DeBartolo Corp. v. Florida Coast Bldg. and Const. Trades Council, 485 U.S. 568, 574-575 (1988).  The effect would be analogous to Zadvydas v. Davis, 533 U.S. 678 (2001) where the statute was found ambiguous largely because of concerns relating to its purpose and then interpreted in the manner that would not raise serious constitutional concerns. To the authors, this places Vartelas in a much larger context where the full potential of the ruling may be examined and developed in the future.

The significance of Vartelas  is not limited to returning permanent residents with pre-1996 convictions. Rather, when viewed with a wide-angle lens, it may serve as the ruling that restores Fleuti as a constitutional decision. Unlike the assumption of the BIA in Collado-Munoz that Fleuti was decided in what Ira Kurzban and Deborah Smith insightfully term a “constitutional vacuum,” Justice Ginsburg has given back to Fleuti the constitutional provenance that sadly it seemed to have lost.Unlike the Fifth Circuit in De Fuentes v. Gonzalez, 462 F.3d 498,503(5th Cir. 2006) that saw no “constitutional core” in Fleuti or the Third Circuit in Tineo v. Ashcroft, 350 F.3d 382,397 (3d Cir 2003) which boldly though mistakenly proclaimed that  Fleuti had no basis in constitutional principle, Vartelas harkens back to an appreciation of lawful permanent residence that IIRIRA made us think for a while had vanished: “Once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.” Landon v. Plascencia, 459 US at 32 (citing Johnson v. Eisentrager, 339 US 763, 770(1950)). If that happy day comes when Fleuti is restored in full, legal scholars may well lookback to Vartelas v Holder as the case that made it all possible. The lasting contribution to the law that the Supreme Court has made through Vartelas v Holder may well be not only, or even primarily, in its forthright rejection of IIRIRA retroactivity, but rather in reclaiming for Fleuti its lasting  place in the penumbra of constitutional safeguards that have nurtured and protected the rights of lawful permanent residents.  In this sense, Fleuti did not create new rights for permanent residents so much as refine and expand existing constitutional alliances. For this reason, a revival of Fleuti would not be a radical leap into terra incognita but the rightful restoration of a constitutional regime that commands our attention and merits our respect. We do not know what the future will be for Fleuti   but, now, thanks to Vartelas,  there might be a story to tell.

by Laura Danielson, ABIL Lawyer
The Lamp Beside the Golden Door

In my many years of practicing immigration law I have seen numerous loving binational couples (one a US citizen and the other a citizen anywhere else) who have sought out legal counsel so that they can remain together in the U.S. For opposite sex couples, the solution is usually pretty simple. Our immigration system favors family relationships, particularly those between husbands and wives when one is a U.S. citizen. Yes, there can be tricky timing and travel considerations but for the most part this process simply requires filing joint paperwork and waiting for the arduous bureaucracy to churn through the process. I’ll never forget when I explained to one couple that they would be separated for many months waiting for approvals if the foreign spouse left the U.S. as initially planned after his 90 day visit. The prospective husband asked me if I’d mind leaving my office for ten minutes or so, which surprised me but I dutifully did so. I learned that he got on bended knee in front of my desk and asked his American girlfriend to marry him right then and there. Fortunately she said “yes”, so I was comfortably able to return to my office, offer my congratulations, and start the paperwork.

Things do not happen so easily for same sex binational spouses, however. Over the years I’ve met with numerous couples who simply want to be able to live together in the U.S., but despite state or foreign recognized marriages they cannot because the Defense of Marriage Act (“DOMA”) prohibits the granting of federal benefits, such as immigration status. In the best scenarios, the foreign spouse has top level education, experience, and a cooperative petitioning employer to  file employment-based immigration paperwork. For example, Canadian born Jack Gilad, whom who we profiled in Green Card Stories, was able to get immigrant status through his employer so that he could live permanently with his spouse, Doug Hauer, and their two parrots.

Many others have to cobble together solutions such as extending scholastic programs far longer than normal for those on student visas or applying for annually renewable artist visas (for those who are talented enough to qualify). Some couples might also take turns visiting one another in their respective countries on tourist visas,  giving up stable jobs and time with other family members to do so. None of these temporary solutions are satisfactory and my clients live in fear that one day something will happen to make it impossible to continue along these lines: a dancer’s injury; a denied visa renewal; a loss of financial stability.

In rare cases we have been able to get political asylum for gay or lesbian individuals who have a legitimate fear of persecution in their home countries. These claims have been possible since 1994, when then Attorney General Janet Reno acknowledged that persecution for sexual preference is a basis for asylum.

At present there are estimated to be at least 35,000 binational same sex couples living in the U.S. Some couples have given up on living in the U.S. altogether and have gone to live in one of 19 countries around the world that currently grant immigration benefits to same sex couples (provided the foreign national spouse has status there.) It is difficult to know how many couples have left the U.S. to live abroad, but it stands to reason that there are at least as many as those who have remained. In a letter last year to President Obama, Richard Brendan described how difficult the decision he made over twenty-five years ago to leave behind his family has been. In seeking the President’s support for legislation that would unite same sex binational families, he wrote, “Please do not allow future generations to grow old without their parents, siblings, nieces and nephews, cousins, aunts, uncles and of course childhood friends. You are not expected to understand what this does to one’s spirit for life.”

In the worst cases, where there are no immigration options either to live abroad or to get visa extensions in the U.S., couples make the difficult decision for the foreign spouse to live in the underground hell of an undocumented person, unable to get work permission or even driver’s licenses in most states. The DOMA Project tells numerous stories of couples in this situation on their site called, “Stop the Deportations”. These couples live in fear not only of detection and permanent separation from their partners, but also of the appalling conditions that immigration detention facilities can present to LGBT individuals. Currently, such facilities are not bound by the Prison Rape Elimination Act (PREA), which mandates that jails follow certain protocols to protect inmates against sexual violence. The Department of Justice has found that PREA does not fall within ICE’s purview and civil rights complaints have been filed.

DOMA, which is the only obstacle blocking the grant of immigration benefits to foreign nationals married to same sex spouses of U.S. citizens, was found to be unconstitutional by the Obama administration a year ago, at least as to Article 3, which is the clause prohibiting foreign spouses in lawful marriages from being granted immigration benefits. The administration announced back then that it would no longer expend resources in defending DOMA’s constitutionality. This opened the door for a recent lawsuit, in which Immigration Equality has brought together five married, binational gay and lesbian plaintiffs, all of whom have been in long term relationships. Their stories are in many ways the same as those of opposite gender couples who have remained together for years, sharing life’s joys, burdens and in some cases the experience of raising children together.

Some people agree that when same sex couples choose to live together they shouldn’t be discriminated against, but that it is going too far to grant them the rights and responsibilities of marriage. After all, if they care so much about remaining together then they can prepare wills and directives that will pretty much have the same effect, right? Well, no. I’m witness to the significant and sometimes tragic burdens imposed on same sex binational couples and their families that cannot be fixed through these directives. The problem cannot even be fixed by getting lawfully married in states that recognize their right to do so. I have long thought that the time is ripe for us to do something about this and look forward to a favorable outcome in Immigration Equality’s challenge to DOMA. Even before that, our administration has the power to stop deporting same sex marital partners, and it should take steps to do so immediately. As the White House website states: President Obama believes [that]… Americans with partners from other countries should not be faced with a painful choice between staying with their partner or staying in their country.’

And if some of you are still not persuaded, let me end with a binational couple’s story that illustrates the absurdity of our government trying to regulate these matters of the heart. Years ago the foreign partner entered the U.S. as a male and had a sex change operation. She then fell in love with an American woman who wanted to marry and sponsor her for immigrant status. Told by other lawyers that their situation was hopeless under DOMA they came to see  me. Based on my experience a number of years earlier with the denial of a transsexual woman’s marriage to an American man, I told them that in transsexual cases the government took the position (at that time) that the only gender that mattered (even with anatomy to the contrary) was the one on the foreign spouse’s passport. In this case the foreign spouse’s passport listed her as male, so I suggested they just go ahead, get married, and file their paperwork. I even called the Immigration Service to discuss it ahead of time and the supervisor agreed that this was an approveable case. And as far as I know, this same sex bi-national couple approved years ago by the Immigration Service has lived happily ever after (and with no adverse consequences to anyone.)

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

At President Obama’s signing ceremony for the JOBS Act last week, White House guests slapped high fives with bipartisan glee. They came to the Rose Garden to help “Jumpstart Our Business Startups,” as the new law’s title optimistically promises to do. With pen in hand, the President joined in the merriment, observing that it’s not about blather but action:
http://www.whitehouse.gov/photos-and-video/video/2012/04/05/president-obama-signs-jobs-act

One of the great things about America is that we are a nation of doers -- not just talkers, but doers. We think big. We take risks. And we believe that anyone with a solid plan and a willingness to work hard can turn even the most improbable idea into a successful business. So ours is a legacy of Edisons and Graham Bells, Fords and Boeings, of Googles and of Twitters. This is a country that’s always been on the cutting edge. And the reason is that America has always had the most daring entrepreneurs in the world. . . . [M]aybe one of them or one of the folks in the audience here today will be the next Bill Gates or Steve Jobs or Mark Zuckerberg. And one of them may be the next entrepreneur to turn a big idea into an entire new industry. That’s the promise of America. That’s what this country is all about.

With an eye to November and an 11% approval rating, members of the House and Senate are trying at last to rebrand themselves as a “done-something” Congress. Would it were so with the DREAM Act or with urgently needed reforms to our antiquated system of legal immigration whose last major enactment occurred in 1990. Regrettably, when it comes to immigration, the American people get claptrap not high fives.

Three years ago the Council on Foreign Relations (CFR) issued a bipartisan report and recommendations on U.S. immigration policy, the work of a task force study led by Florida Governor Jeb Bush and Thomas F. "Mack" McLarty III, former White House Chief of Staff to President Clinton. Last month, another bipartisan CFR task force, this one headed by Condoleezza Rice, former Secretary of State under the second President Bush, and Joel Klein, ex-Chancellor of the New York City education department and Counsel in the Clinton White House, issued its study and suggestions to improve U.S. national security by reforming education.

Taken together, these reports sound a clarion call for immediate legislative action on legal immigration.

As the Bush-McLarty report proposed:

The Task Force recommends that the United States tackle head-on the growing competition for skilled immigrants from other countries and make the goal of attracting such immigrants a central component of its immigration policy. For decades, the primary goal has been to ration admission; in the future, recruiting the immigrants it wants must be the highest priority.

The Rice-Klein study on education reform and national security concurs:

Too many schools have failed to provide young citizens with the tools they need to contribute to U.S. competitiveness. This, coupled with an immigration system in need of reform, poses real threats to the prospects of citizens, constrains the growth of the U.S. talent pool, and limits innovation and economic competitiveness.


The epicenter of the logjam on immigration bipartisanship – at least in the Senate – is Iowa Republican, Chuck Grassley.  Although he voted “Yea” on the bill that became the JOBS Act, Sen. Grassley is an immigration obstructionist, seemingly blind to the links between employment-based visas, U.S. prosperity and job creation for our citizens.

Despite passage in the house by a 389 to 15 vote margin, he has held up a vote on the Fairness for High-Skilled Immigrants Act — a bill that would eliminate the per-country caps on employment-based immigrants and thus allow foreign workers born in China, India and other quota-backlogged countries to obtain a green card more quickly. Sen. Grassley has also blockaded a proposal pushed by fellow Republican Senator, Scott Brown, which would give Irish citizens parity with Australians in receiving E-3 visas.

The Iowa senator worries that “flooding the employment market with foreign workers when high-skilled Americans are seeking jobs at unprecedented levels, just doesn't square with improving the home-team advantage, let alone fostering a level playing field.”

Even more worrisome to Sen. Grassley are immigration fraudsters who steal jobs from Americans. He sees them everywhere, much like the young boy, Cole Sear, in the 1999 film, The Sixth Sense, who sees dead people all around:

Cole Sear (played by Haley Joel Osment): I see dead people. Malcolm Crowe (played by Bruce Willis): In your dreams? [Cole shakes his head no]

Malcolm Crowe: While you're awake? [Cole nods]

Malcolm Crowe: Dead people like, in graves? In coffins?

Cole Sear: Walking around like regular people. They don't see each other. They only see what they want to see. They don't know they're dead.

Malcolm Crowe: How often do you see them?

Cole Sear: All the time. They're everywhere.

Sen. Grassley wants to place even more rigid controls on the H-1B visa (for Specialty Occupation Workers) and the L-1 visa (for Intracompany Transferees). The senator would inflate the wages that U.S. employers must pay skilled foreign workers (even though the law of supply and demand is producing that result already without an act of Congress), require feckless labor market testing of workers in occupations with low unemployment rates, and give even more authority to the Labor Department to send disruptive auditors to the worksites to investigate the supposedly ever-present fraud that he perceives.

And as Congress dawdles on legal immigration, Sen. Grassley has been a one-man lightning rod, jolting the immigration agencies under the W and Obama administrations and intimidating them so that they jump to his bidding.

Under pressure from Sen. Grassley, U.S. Citizenship and Immigration Services (USCIS) and the Department of State have denied and revoked visas and work petitions, while sending ever larger legions of immigration gumshoes from the USCIS Fraud Detection and National Security Directorate (FDNS) on unannounced and repeated visits to worksites around the country.

Not content to engage in officious intermeddling with an Executive Branch immigration agency, Sen. Grassley has also been busy tasering the Department of Homeland Security (DHS) Inspector General (IG) into issuing breathless reports based on unscientific measurements that unpersuasively document "evidence" of perceived fraud (links available here, here and here).  It's not as if the IG has nothing to do; rather, he should be spending more time investigating DHS's internal operations.

No knowledgeable observer would deny the existence of immigration fraud. I see its victims often among the immigrants who seek my counsel after having been bamboozled not just by a few unscrupulous lawyers but also by the larger ranks of incompetent and dangerous consultants and notarios – a population still coddled by the Labor Department even though USCIS, quite laudably, has mounted a campaign against them. And of course, some percentage of employers will bend or break or simply misunderstand the befuddling “rules” that the immigration agencies have written (or failed to write) in response to the existing crazy-quilt of laws passed by Congress since at least the 1950s. Despite the massive aggrandizement of law-enforcement resources to guard the immigration system since September 11, little evidence exists to show that visa fraud is widespread or that it occurs at any greater rate than in other federal programs.

We can electrify and fortify our borders, and send in the immigration drones and detectives, but we still need law-abiding sojourners and immigrants to reinvigorate our economy and uplift our people.

As much as NationOfImmigrators assails the wrongdoing of the immigration agencies, this blogger knows nonetheless that they are peopled mostly with patriots trying to do the right thing (as a USCIS Service Center Director correctly reminded me last week and as the USCIS’s Fiscal Year 2011 Highlights Report confirms).

They make mistakes, to be sure, and engage in insincere Washingtonian wordsmithing. Take for example the oft-repeated conceit that FDNS site visits are merely cleverly surprising methods to insure integrity in immigration petitions and are not law-enforcement actions subject to Fourth Amendment protections.

The veil’s been lifted on that falsehood, however, with the issuance of a March 30, 2012 federal court order in a Freedom of Information Act (FOIA) suit by the American Immigration Lawyers Association (AILA) against USCIS and DHS. AILA’s lawsuit seeks release of three USCIS documents, viz., its H-1B Benefits Fraud Compliance Assessment Report (BFCA), H-1B Petition Fraud Referral Sheet and H-1B Compliance Review Worksheet. Although the suit continues, the court generally affirmed for now USCIS’s assertion that its actions in refusing disclosure are justifiable under the FOIA exemption found at 5 U.S.C. § 552(b)(7)(E). This section protects records or information compiled for law enforcement purposes from disclosure “to the extent that the production of such law enforcement records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The agency relies on exemption 7E because the requested records, as USCIS’s own pleadings assert, have been “withheld to preserve the integrity and effectiveness of certain techniques and operations of current law enforcement significance.”

On what are these “techniques and operations of current law enforcement significance” based? The court’s order offer’s a tantalizing snippet:

The final page of the BFCA Report identifies several primary fraud or technical violation(s) indicators: (1) firms with 25 of fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies; (2) firms with an annual gross income of less than $10 million have higher rates of fraud or technical violation(s) than firms with annual gross income greater than $10 million; (3) firms in existence less than 10 years have higher incidences of fraud or technical violation(s) than those in existence for more than 10 years; (4) H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violation(s) than other occupational categories; and (5) beneficiaries with only bachelor’s degrees had higher fraud or technical violation(s) rates than those with graduate degrees.

Ironically, many of the same putative indicators of fraud or technical immigration violations are attributes that describe the precise traits of “Business Startups” – the very entities which bipartisan supporters in Congress hope to “Jumpstart” by passing the JOBS Act. Newly established businesses typically employ less than 25 workers at the outset, initially gross less than $10 million per year, by definition have been in existence less than 10 years, and, just like larger firms, may choose the H-1B visa category to hire accountants, HR specialists, business analysts and workers in sales and advertising jobs for persons who hold only a bachelor’s degree. Clearly, USCIS and its FDNS unit are now running scared by Sen. Grassley’s gassy harrumphing, and see fraud where the President and most members of Congress, including the Senior Senator from Iowa, see opportunities for job creation.

The solution is to debunk the notion that American job losses are caused by increased legal immigration; rather, as the National Foundation for American Policy has shown, more employment-based immigration creates more jobs for U.S. workers.  

One true believer in the power of immigration, Steve Case (former AOL founder and now venture capitalist), who was instrumental in gaining the votes for the JOBS Act, says, "[m]omentum begets momentum."  Case now has set his sights on passing job-creating immigration laws before the November election (a controversial subject among some immigration proponents who believe that only a comprehensive solution, including remedies for the undocumented, will rectify America's immigration dysfunctions).

Perhaps with the help of Steve Case and other business leaders, Sen. Grassley may yet be persuaded to spend less time calling the President “stupid” and, instead let his love of job-creating startups push him to transform his antipathy into appreciation for employment-based, legal immigration reform.

by Cora-Ann Pestaina, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

As usual, BALCA (Board of Alien Labor Certification Appeals) decisions are very important for practitioners as they offer crucial insights into how to avoid some of the pitfalls in preparing and filing a labor certification application under Program Electronic Review Management (PERM) or into what arguments can be made in response to the unfortunate receipt of a PERM denial notice. BALCA recently issued some notable decisions.

DOCUMENTATION OF THE SWA JOB ORDER
While the Department of Labor (“DOL”) is obsessed about the employer presenting proof of publication of its recruitment, BALCA recently held, in an en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation.

The PERM regulations at 656.17(e)(2)(i) require an employer filing a PERM application to place a job order with the SWA serving the area of intended employment for a period of 30 days. That same section of the regulations also states, “[t]he start and end dates of the job order entered on the application serve as documentation of this step.” Pursuant to 656.10(f), all documentation supporting the PERM application must be retained for five years after filing the application. 656.17(a)(3) mandates that the employer must furnish “required supporting documentation” to the Certifying Officer (“CO”) if the PERM application is audited. A substantial failure by the employer to provide the required documentation will result in a denial of the PERM application. 656.20(b).

In A Cut Above Ceramic Tile, the employer attested, on an ETA Form 9089 filed on January 8, 2007, that, as part of its domestic recruitment efforts for the position of Tile Setter, it placed a job order with the SWA in the area of intended employment from July 13 to August 12, 2006. On June 11, 2009, the DOL issued an audit notification, which included the request for a copy of the job order placed with the SWA downloaded from the SWA internet job listing site; a copy of the job order provided by the SWA; or other proof of publication from the SWA containing the content of the job order. As part of its audit response, the employer included a copy of its completed Employer Job Order Information Sheet from VaEmploy.Com, the SWA for the state of Virginia. Citing 656.20(b) as authority, the CO denied the PERM application based on the employer’s failure to provide proof of publication of the SWA job order containing the content of the job order, as requested in the audit notification letter. The CO found that the employer’s submission of the Employer Job Order Information Sheet did not show the final content of the job order as run by the SWA.

The Employer filed a motion for reconsideration of the PERM denial arguing that the PERM regulations provide that the SWA job order is documented by the start and end dates entered on the ETA Form 9089. The employer also argued that it had tried to obtain proof of publication from the SWA but had been informed that proof of the publication of its job order had been deleted. The CO affirmed the denial and forwarded to case to BALCA which also affirmed the denial and held that the employer’s documentation only showed that the job order was placed for the required 30-day period but did not provide proof of its contents.

The Employer then filed a petition for en banc review which BALCA granted to resolve the issue of whether a CO may deny certification of a PERM application based on the employer’s failure to provide proof of the publication of the SWA job order. BALCA invited the American Immigration Lawyers Association (AILA) to file an amicus brief which it did. There was a conflict between BALCA panels because, in another case, Mandy Donuts Corp., 2009-PER-481 (Jan. 7, 2011), a BALCA panel compared the PERM regulations at 656.17(e)(2)(i) on placement of the job order and the regulations at 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C) on placement of a newspaper advertisement and pointed out that the PERM regulations for documentation of proof of newspaper advertisements specifically require the employer to provide copies of the newspaper pages in which the advertisement appeared or proof of publication furnished by the newspaper. The panel held that the PERM regulations only require “placement” of the job order for 30 days which is documented by the start and end dates entered on the PERM application.

The en banc panel in A Cut Above Ceramic Tile agreed with the Mandy Donuts panel and held that the distinction in the regulations is clear. The drafters of the regulation could easily have included a requirement that employers provide proof of publication of the SWA job order. In fact, the regulations governing the placement of a job order for the H-2B temporary nonagricultural labor certification program, also administered by the Employment and Training Administration (“ETA”) specifically require that the employer maintain a copy of the SWA job order or other proof of publication containing the text of the job order. 656.15(e)(1). The en banc panel reasoned that the ETA intentionally drafted the H-2B and the PERM SWA job orders regulations differently. In fact the ETA specifically stated in its response to comments regarding the audit process, that the employer is only required to provide the start and end date of the job order on the application to document the job order has been placed and the gathering of additional information on the job order from the SWA will not be necessary. See ETA, Final Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 69 Fed. Reg. 77326, 77359 (Dec. 24, 2004). Essentially, the CO does not have the power to request just any type of documentation and the employer’s application may only be denied under 656.20(b) when the absent documentation is required.

While this en banc decision may appear attractive, and is certainly useful when inheriting flawed cases, practitioners ought to continue the practice of printing copies of the job order to demonstrate good faith recruitment. The BALCA en banc panel made sure to comment, in note 5, that “the spirit and the context of the PERM regulations, which are grounded in attestations backed up by retained documentation to support attestations, strongly suggest that an employer should retain and be able to produce documentation about the content and dates of action on all elements of recruitment. We would anticipate that most employers recruiting in good faith will have retained documentation in some form to show the content of the job order, and if so be able to produce it.” However, it is now clear that failure to produce the SWA job order cannot be the sole basis for a PERM denial.

THE USE OF PRIVATE EMPLOYMENT FIRMS TO CONDUCT RECRUITMENT
Under 656.17(e)(1)(ii), when conducting recruitment for a professional position, the employer must conduct three additional recruitment steps to advertise the position. The employer may choose from ten forms of recruitment including the use of a private employment firm or placement agency. 656.17(e)(1)(ii)(F) states:

The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment forms for the occupation involved in the application.

In Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010), BALCA rejected the employer’s argument that 656.17(f), requiring that advertisements placed in newspapers of general circulation or in professional journals state the name of the employer and provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity, was not applicable to the additional recruitment steps for professional occupations, and held that the regulation in fact governs all forms of advertisement. However, not all the additional recruitment methods for professional positions readily lend themselves to these requirements. For instance, when recruiting through private employment firms, it makes no business sense to indicate the name of the employer because an applicant could then bypass the headhunter and apply directly to the employer. Indeed, in Credit Suisse Securities, BALCA acknowledged in note 7 that the requirements of 656.17(f) only applies to advertisements, and that it was not making a determination with respect to job fairs, on-campus recruiting, private employment firms and campus placement offices.

In World Agape Mission Church, 2010-PER-01117 (Mar. 23, 2012), the employer conducted recruitment for the professional position of “Pastor (Associate)” recruiting through a private employment agency as one of the three additional recruitment steps for professional positions. The CO issued an audit notification and, as part of its response to the audit notification, the employer submitted a letter from the private employment agency certifying that the agency had checked its database for any qualified applicants and had posted the job posting online. The job posting listed the job title, salary information, a job description, experience and education requirements, and that the position was full-time. The job posting was identifiable by a job number. The CO argued that the employer’s name must be included in an advertisement to ensure that the results of an employer’s test of the labor market are legitimate. The CO cited 656.17(f)(1), requiring that advertisements placed in newspapers of general circulation “name the employer.”

BALCA noted its decision in Credit Suisse Securities but held that an advertisement placed by a private employment agency is different than one placed directly by the employer. BALCA referenced its decision in HSB Solomon, 2011-PER-2599 (Oct.25, 2011) that 656.17(f) does not apply to advertisements placed by private employment firms. However, World Agape Mission Church makes it clear that the employer still has a duty to recruit in good faith and to make the job opportunity clearly open to all U.S. workers even when using a private employment agency. Of particular note was the fact that the job posting provided applicants with sufficient information like the job title, job duties, and education/experience requirements, and even if it did not list the name of the employer, it listed a job number which matched the job number listed in the letter from the employment agency certifying its recruitment. This allowed the CO to match the listing to the agency’s advertisement even without the inclusion of the employer’s name in the posting.

SUPERVISED RECRUITMENT
As the supervised recruitment train keeps barreling through, we have to keep on the lookout for any BALCA decisions to help guide us through the process. BALCA recently issued two decisions worth reading.

In Kennametal, Inc., 2010-PER-01512 (Mar. 27, 2012), BALCA held that the employer had improperly rejected U.S. workers because it did not consider the possibility that certain applicants could become qualified after a reasonable period of on-the-job training. But most interestingly, BALCA held that the employer’s rejection of applicants for not possessing the requisite bachelor’s degree was unlawful and specifically listed examples of applicants who had an associates’ degree and 10 to 24 years of experience. BALCA held that because the employer indicated in its advertisements that it would “accept a combination of education, training and experience” (well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc), the employer should have considered these applicants and interviewed them to further evaluate their skills. This is particularly interesting in light of the fact that the DOL routinely requests that employers list the Kellogg language in the supervised recruitment advertisements even where it is not applicable. Now, employers have to be alert to the fact that the DOL could then use that same Kellogg language against them to argue that they unlawfully rejected U.S. workers.

In JP Morgan Chase & Co, 2011-PER-00635, BALCA upheld the CO’s denial of the PERM application under supervised recruitment because the employer did not list the addresses of the U.S. worker applicants in the body of its recruitment report as required under the supervised recruitment regulations at 656.21(e)(3) despite the fact that the employer had submitted copies of all the resumes which listed the U.S. addresses of the applicants.