Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

The power of online and social media to whip up a frenzy of vituperation in the immigration ecosystem surfaced vividly once again this week.  The first trigger event was action by nine Dreamers -- six who'd been deported to Mexico and three who left the U.S. and entered Mexico willingly. Protesting the Obama Administration's mass deportation and detention policies, the DREAM9, as these youthful activists are called, immediately approached the U.S. border and asked Customs and Border Protection officials to allow them in. 

The second trigger was an article by a well-regarded immigration lawyer describing the DREAM9 action as a "publicity stunt" and "flippant" behavior, when the focus should be on enacting comprehensive immigration reform.  He also expressed doubt that the three Dreamers who left the U.S. would qualify for readmission under the asylum laws or humanitarian parole.

All sorts of nastiness ensued.  Some protested that the lawyer had no right to criticize since he is not a Dreamer, while others suggested to these critics that the lawyer, as a citizen, has a higher right to speak under the First Amendment than undocumented protesters and their equally paperless supporters.  Both sides on this spat are wrong -- the First Amendment applies to everyone in the United States.  

The DREAM9 have reportedly been denied parole into the United States (the discretionary power of the government to admit individuals on a case by case basis under § 212(d)(5)(A) of the Immigration and Nationality Act for urgent humanitarian reasons or significant public benefit).  Shuttled off to the Eloy, AZ detention center as civil detainees, the DREAM9 sit in custody or solitary confinement, while they prepare to request asylum in the United States and participate in a hunger strike to protest detention conditions generally. 

As this dust-up shows, there have been collateral damage and casualties in this war of words, not the least of which are our nation's deservedly maligned, and mostly misunderstood immigration laws, as well as our tradition of activism and civil disobedience to spur changes in law and policy.  The lawyer (whom I respect) is right to consider the fine points of immigration law, but wrong to publicly prejudge the outcome of their requests for asylum and humanitarian parole since he is not privy to the facts.

Certainly, a case can be conceived of compelling humanitarian grounds and significant public benefits upon which to grant humanitarian parole or asylum. They have lived, been educated and are like the everyday Americans among whom they grew up.  Crime in Mexico, especially kidnappings of wealthy Mexicans or American tourists or those perceived as such have been acknowledged by the U.S. Department of State ("The number of kidnappings and disappearances throughout Mexico is of particular concern. Both local and expatriate communities have been victimized. In addition, local police have been implicated in some of these incidents").

Moreover, throughout American history our immigration laws have reflected the political sentiments of the times -- from the Alien and Sedition Act, the Chinese Exclusion Act, and our modern day Immigration and Nationality Act, a McCarthy-era law focused on preventing Communists from entering the country, to the Cuban Adjustment Act and the Chinese Student Protection Act.  Immigration law and politics are inextricably bound, as these Dreamers know well, given the Obama Administration's use of executive power to create the program known as DACA (Deferred Action for Childhood Arrivals) just in time to favorably influence the 2012 presidential election.

No less than voting, political protests and civil disobedience put pressure on the system, not just on the President. House leaders Cantor and Ryan have changed their tune to recognize a benefit for Dreamers. They now acknowledge the unfairness of depriving innocent youth who've lived like Americans their whole life a path to legality.

It's way too soon to critique the methods used by the DREAM9 and their supporters when immigration policy arguments are in flux. I commend them for their bravery and for their willingness to shed light on the whole rotten detention and removal system that needs to be reformed from its core. Criticizing these kids distracts from the real targets of criticism -- the dysfunctionality of the immigration laws, the prison-industrial complex and the border-focused government-contractor giveaway.

Or as another respected immigration lawyer reminded me, Frederick Douglas said:

by Cyrus D. Mehta, ABIL Lawyer and his Associate Myriam Jaidi
The Insightful Immigration Blog

An employer is in the process of preparing an H-1B extension for an employee.  The employer is preparing the petition several months before the expiration of the employee’s current H-1B status, and therefore has determined to file without premium processing. Moreover, pursuant to 8 CFR § 274a.12(b)(20), the employee can continue working for the same employer for a period not to exceed 240 days after the expiration of the H-1B status provided a timely request was filed.   The employee, however, has approached the employer, expressing a need for premium processing because of upcoming travel plans or other personal reasons.  If the employer does not need premium processing for its own business reasons, and premium processing would be only for the employee’s benefit, may the employee pay the premium processing fee, which is currently $1225? (Please note that this blog post addresses the premium processing fee in the H-1B context only; payment of the premium processing fee by a beneficiary of an I-140 immigrant petition is allowed without question.)

This is a gray area, like so many things in immigration law, because there is no clear rule on the issue and, believe it or not, different government agencies have taken different stances on the issue over time, and of course, no one approach is clearly definitive. Anecdotal data provides some guidance, as so much in our practice comes from cumulative experience on issues like the one here, i.e., whether a beneficiary may pay the premium processing fee.  Although no agency has opined on the issue since 2009, allowing the H-1B beneficiary to pay the premium processing fee may be defensible where the benefit inures solely to the employee, the employer has no need for the premium processing, and the payment of the premium processing fee does not drop the H-1B beneficiary’s wage below the required wage.

In 2001, legacy INS (the agency that was dissolved in 2003 and reconstituted as three agencies within the Department of Homeland Security, specifically US Citizenship and Immigration Services (USCIS), US Immigration and Customs Enforcement (USICE), an US Customs and Border Protection (USCBP)) confirmed with AILA (American Immigration Lawyers Association) liaison that “there is no bar to employees providing the Premium Processing fee checks.”  See ISD Liaison Report for 8/9/01 (AILA InfoNet Doc. No. 01082431 (posted 8/24/01)).  On August 12, 2009, the Vermont Service Center (one of the Service Centers of USCIS) issued a practice pointer prepared by their Adjudications Branch that made the following statement on page 12: “The petitioner, attorney, or beneficiary can pay $1000 Premium Processing fee.” See Adjudications Branch, Vermont Service Center, VSC Helpful Filing Tips (August 12, 2009; AILA InfoNet Doc. No. 09112363 (posted 11/23/09)).  No restrictions on the beneficiary paying the premium processing fee were noted by legacy INS or USCIS.

Interestingly, also in August 2009 the Department of Labor, Wage and Hour Division issued a Fact Sheet that conflicts somewhat with the USCIS position on the premium processing issue, but does not prohibit the employee from paying it.  That Fact Sheet states that an H-1B employee, “whether through payroll deduction or otherwise, can never be required to pay the following. . . .  Any deduction for the employer’s business expenses that would reduce an H-1B worker’s pay below the required wage rate (20 CFR § 655.731(c)(9)), including . . . any expense, including attorney’s’ fees and the premium processing fee (INA § 286(u)) directly related to the filing of the Petition for Nonimmigrant Worker (Form I-129/I-129W) (20 CFR §655.731(c)(9)(ii) and (iii)(C).”  Other things included in that list were tools and equipment, travel expenses while on employer’s business, and any expenses, including attorney’s fees, directly related to the filing of the Labor Condition Application (LCA).

The only other statement from the DOL was a decision by an Administrative Law Judge (ALJ) in 2008 where the ALJ cited the regulation provision referring to the then $1000 training fee to find that the regulation requires that the employer pay the premium processing fee.  See Toia v. Gardner Family Care Corp., 2007-LCA-00006 (ALJ Apr. 25, 2008) at page 20.  This was clearly an erroneous decision because the ALJ was confusing the premium processing fee, which the regulations do not  specifically prohibit payment by the H-1B beneficiary, and the training fee, which the regulations specifically state must not be paid by the H-1B beneficiary, because both happened to be $1000 at the time of the decision.  The DOL Fact Sheet is in fact more amenable to the idea that a premium processing fee could be paid by a Beneficiary because unlike the ALJ decision purporting to ban that practice, the DOL Fact Sheet leaves room to allow a beneficiary to pay a premium processing fee if doing so does not drop the wage below the required wage.

The immigration law treatise, Buffenstein & Cooper, Business Immigration Law & Practice, Volume 1, Nonimmigrant Concepts (AILA 2011), confirms this is a gray area, and provides no conclusive answer.  The discussion in the treatise supports the argument that where premium processing is pursued at the insistence of the beneficiary, it could be considered the individual’s expense.

The crux of the matter is whether the premium processing fee would be viewed as a “business expense” of the employer under the DOL regulations governing the H-1B LCA, in which case the DOL could view it as a wage & hour issue and analyze whether the deduction of the premium processing fee worked an impermissible dropping of the H-1B employee’s wage below the required wage (the higher of the actual or prevailing wage). This is something of a distinction without a difference because in any cases where you have more than one similarly situated employee in a position (i.e., where the position is not unique) the deduction of the premium processing fee would always drop the wage below the actual wage.  In positions that are unique, whatever is paid to the unique employee is the actual wage so the premium processing fee would not necessarily drop the wage below the prevailing wage.

There is anecdotal evidence, based on surveying attorneys on a private list serve, that the DOL in at least two LCA investigations did not consider the premium processing fee to be an employer’s expense where the employee has requested premium processing for the employee’s benefit.  Many attorneys on the AILA list serve seemed to agree that premium processing should not be considered an employer expense, but this thread has not been updated since 2007.

One interesting question is whether the premium processing fee could be deducted from a benefit such as a performance bonus.  Cash bonuses are considered a “benefit” under the DOL regulations.  The regulation states as follows:

Thus, a company is required to *offer* H-1B employees the same benefits as US workers. However, another section of the regulation makes clear that the H-1B employee may choose to turn down benefits:

The upshot is that there is a strong argument to be made for the conclusion that where an employee demands premium processing of an H-1B petition solely for the employee’s benefit, that premium processing fee should not be deemed an “employer business expense” such as to trigger a wage/hour analysis of the offered wage that could result in a finding against the employer.  In addition, the fee could be deducted from the performance bonus so long as the employee has been offered benefits on the same basis and using the same criteria as offered to US workers, but opts for a different benefit.  If an employer takes this approach it would likely be best to get the employee’s agreement in writing that they are opting out of the full bonus because of their own need for premium processing on an H-1B petition to accommodate their personal circumstances, and that the premium processing is not done for the employer’s benefit.

Obviously, given the conflicting positions taken by USCIS and the DOL regarding premium processing fees, this remains a gray area and the most risk adverse and cautious approach would be to avoid any question of the employer paying the appropriate wage by having the employer pay the premium processing fee.  However, as noted above, it is defensible to have the employee pay the premium processing fee where it inures solely to the employee’s benefit.

What are the risks?  The regulations provide for various penalties relating to LCA violations.  A DOL action would only likely come to pass in the event of an employee filing a wage and hour complaint with the DOL, and based on a single complaint on any LCA issue, the DOL could audit all of the LCA files of an employer.

If an employee complains and the DOL determines that the premium processing fee worked a reduction in the required wage, the employer would be required at the very least to reimburse the employee for the premium processing fee.  Assuming in the worst case that the DOL misconstrues the premium fee to be like the training fee, which is what the ALJ did in the 2008 decision noted above, the DOL may also impose a $1,000 fine per violation.  As a practical matter, an employee may first make a demand for reimbursement or back wages before complaining to the DOL, and under those circumstances, it would be advisable for the employer to reimburse the employee for the premium processing fee.  The regulations provide for enhanced penalties for “willful” failure to pay the required wage such as fines up to $5,000 and debarment from filing new H-1Bs.  However, this is truly a worst case scenario speculation, based on collective experience with DOL investigations where DOL auditors have taken the position that the fee was not an employer’s business expense and have not required the employer to reimburse the employee for payment of the premium processing fee.  The expectation would be that an employer would be able to present a strong argument that this is a gray area and there was no willful failure here.

We hope that the DOL and USCIS will coordinate their positions on premium processing in H-1B cases and recognize that it is often employees, not employers, who truly need premium processing on their H-1B cases, and thus should be able to make the payment in those cases to facilitate their own personal plans.  Moreover, premium processing is not directly related to the filing of an H-1B petition.  It only expedites the petition, which has in any event been filed, and the employee often then desires that the H-1B petition be expedited for personal reasons.  In such cases the premium processing fee should not be viewed as an employer’s business expense, thus allowing both the employer and employee the best outcome.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

When I put on a suit, I feel like I’m pretending to be a grown up.  My husband keeps reminding me that we are “getting older” (well, duh).  My friends say that my evolving taste for nonfiction (I’ve always read fiction, leaning toward young adult novels) can be attributed to my advancing age.  And I generally have no idea what my 13-year-old stepdaughter is talking about.

I’ve been married for 11 years; my ten-year college reunion was ages ago; and the lady at the cosmetics counter has started recommending anti-aging moisturizers.  My daughter will turn three in August.  I own my own business.  I still don’t feel like a “real” grown up. 

I’ve been an attorney for six years now, but I don’t feel like an attorney – or at least not the way I always imagined being an attorney might feel.  I don’t feel important; I don’t like carrying a briefcase; and I have never yelled “objection!” in court.  I am desperate to use puppets in my I-9 training.

I’ll be honest;  I feel most like an attorney when I’m watching TV.  I think “this must be what doctors feel like when they watch Grey’s Anatomy.”  (Yes, doctor friends, I think you sit around watching ER and Nurse Jackie, noting the gross inaccuracies.) 

Brothers and Sisters was, for the first several seasons, a favorite show of mine.  But then in the fourth season Sarah Walker’s French fiancée, Luc, whose visa was running out, suddenly won the green card lottery.  In the show, this meant that an envelope appeared  in the mailbox one day, and inside that envelope was a green card.  Problem solved.  “Objection!” I shouted at the television.  What crap.  He may as well have won it via a scratch-off ticket he bought on a whim at the gas station.

In Green Card, then-INS officers more-or-less stalk a couple who have committed fraud by marrying solely to obtain a green card (they, of course, fall in love “for reals” in the process).  Despite their newfound love for one another, Gerrard Depardieu’s character is deported – not because the marriage was entered into for the purpose of committing immigration fraud – but because he cannot remember the name of his wife’s face cream.  I can barely remember the name of my own (anti-aging) face cream.

One of the worst offenders is The Proposal, which boasts a cast including Sandra Bullock, Ryan Reynolds, and Betty White.  What was the most unbelievable part of this movie?  The fact that I have now seen it twice, having apparently developed amnesia after the first go-round.  In this flick, Sandra Bullock’s character forces her assistant, who has dubbed her “Satan’s Mistress,” to marry her to avoid being deported after the application to renew her visa is denied. 

Let’s pretend for a moment that denial of the extension petition would cause deportation proceedings to begin right away (as The Proposal suggests).  What happens next is extraordinary:  the new couple (formed moments before) walks into the local USCIS office, cuts to the front of the line, and asks to file a fiancée visa petition.  It’s not possible to just walk into the USCIS office (you have to have an appointment, and you have to go through security, and then you have to wait, and wait, and wait).  It’s also kinda difficult (read: pretty much impossible) to file a fiancée visa petition while you’re in the U.S., and even more difficult to file pretty much anything in person. 

The two are immediately granted an interview with a USCIS officer.  [Objection!  Objection!  Objection!]  From there, the movie is similar to Green Card, in that the main characters fall for one another (though in this movie, the development of these new feelings is harder to believe than in Green Card).  Their newfound love develops after flying from NYC to Alaska, and the USCIS officer who interviewed them follows them and attends their (impromptu) wedding.  Ah, yes – that’s how it’s done.  (Cough.)  I’ll try not to ruin the end for anyone who still wants to see it after this glowing review, but I will say that the magic solution here is even more unbelievable than in Green Card; at least in Green Card, the guy gets deported.

The Terminal is underrated; I like this one.  And the whole premise seemed unrealistic until the past month.  A man (Tom Hanks) boards a plane to the U.S. and, while in flight, a coup in his country results in revocation of his visa and voids his passport, making it impossible for him to enter the U.S. or return to his home country.  Tom Hanks’s character ends up living in the international terminal at JFK.  Fantasy?  Well, sure, immigration officials don’t usually just let you wander out of customs  if you’re not admissible to the U.S., and security might typically take issue if you start ripping things out of electrical panels, or maybe keep you from living in part of the terminal that is under construction.  But I certainly hope that Edward Snowden studied this film before hopping a plane to Russia. 

Much could be said about the episodes at the end of the first season and beginning of the second season of Will and Grace, in which Jack (Sean Hayes) marries Karen’s housekeeper, Rosario (Shelley Morrison) to avoid her deportation.  And about Crossing Over, a movie starring Harrison Ford that includes Ray Liotta as a corrupt immigration officer who arranges to trade a green card for sex but (see a pattern?) falls for the woman in the process.  

One movie that seems to get it right is The Visitor.  If you haven’t seen it, you should.  A professor (Richard Jenkins) who keeps, but apparently rarely uses, an apartment in NYC comes into the city to find the apartment occupied by a couple who have rented it from some sort of con man.  He decides to share the space with them rather than evict them.  Once you accept that, the rest of the movie is pretty faithful to the immigration system, as one half of the couple is arrested, then detained by immigration, at which point he more-or-less disappears into the system, being moved from one facility to another without warning, then deported without notice to his family.  This is a lovely, quiet movie about the emotional toll that the system can take. 

But The Visitor is the exception to the rule, which seems to be that movies and TV shows must use immigration law badly and only as a device or an obstacle.  

Why do TV shows and movies do this?  It could be because the writers don’t know better and no one thinks to ask an attorney (or someone who has actually won the green card lottery), but it’s probably because it is rare for real immigration law to translate into good entertainment:  it’s slow, and it’s technical.  Winning the green card lottery means winning a chance to apply for a green card; the whole process can take more than a year.  When the government suspects marriage fraud, it usually starts by requesting piles of documents and conducting an interview; again, we are talking about months and years here, not weeks.  And the government doesn’t care if the relationship has grown into a “real” marriage; the question is whether the marriage was entered into for the purpose of fraud.   

The show Army Wives had a plot line a couple of years ago that mirrored a case that I was handling.  Army Wives did a better job than most of showing how immigration law works, but it had to gloss over some of the technicalities.  I talked to an immigration attorney who had consulted with Army Wives on the technical aspects of the law, and she confirmed that the show had to cut things because (1) it would take too long to show how things actually work, (2) most people wouldn’t understand it, and (3) to make people like me feel like attorneys when we watch.  Okay, I added that last one.

Real immigration law seems so poorly suited for entertainment that I couldn’t even bring myself to write a whole blog post about immigration law, asking Angelo if I could write a “junk food” version about TV and getting old.  Don’t get me wrong; I love immigration law.  I love talking about it.  I have a blast presenting I-9 training (with or without puppets).  But as much as I’d love to star (or even have a bit part) on a TV show, chances are, no one is going to make one about my job any time soon. 

And as I have gotten older, I’ve found that most people aren’t dying to hire an attorney who feels important or loves carrying a briefcase.  Most don’t want me to yell “Objection!” in court, because they’d prefer to stay out of court.  I haven’t yet had a client ask me to make or use puppets, but I have a feeling that training will be more entertaining if it is presented by a furry blue woman with googly eyes.  Instead of real (or real-ish) characters’ lives being changed by fake immigration law, I’ll use outlandish characters and apply real immigration law.  How about a mash-up of Alf, E.T., and the LGMs from Toy Story as a new, literally green employee (who may or may not try to eat the cat)?  That would give a different meaning to the box on the I-9 that says “alien authorized to work” and create opportunities to train about non-discrimination.

Everyone likes a little fantasy.  And where immigration law is concerned, fantasy is a key ingredient if you’re trying to create entertainment. 

Maybe I hold onto my own fantasy about using puppets in my training to fight the stereotypes (learned from TV and movies) about “important” attorneys and their briefcases.  Maybe it is because I am not old.  But I have to admit that when my teenage stepdaughter teared up last night at the end of The Proposal because it was “just so romantic,” I sure didn’t feel young.

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

Former Attorney General Alberto Gonzales, along with an immigration attorney, David Strange, published an Op Ed in the New York Times entitled What the Court Didn’t Say on July 17, 2013. They muddy the waters by contending that despite the recent Supreme Court decision in United States v. Windsor, 133 S. Ct. 2675 (2013) which struck down section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, it is not clear whether same sex spouses may be entitled to immigration benefits as Congress always intended spouses to be of the opposite sex under the Immigration and Nationality Act (INA). For those who do not know, Mr. Gonzales was the Attorney General who authorized the infamous torture memos during the Bush administration. His essay too involves tortured reasoning as we shall see.

What the Op Ed does not tell us is the dramatic extent to which DOMA was an aberration, a break from the long-standing American tradition that the regulation of marriage belonged to the states:

Sosna v. Iowa, 419 U.S. 393, 404 (1975)

From this perspective, it is DOMA that stands out as a radical departure from well-established jurisprudence and its judicial invalidation as a prudent exercise in constitutional restoration. Ambiguity over the immigration impact flowing from DOMA’s demise, contrary to what Gonzales contends, is not created by Windsor’s unremarkable reaffirmation of the Congressional power to disallow any immigration benefit from marriage fraud. This issue was not before the Court. The question of the moment was not whether Congress could define the scope of marriage as part of its plenary power over immigration, something which all acknowledge, but whether DOMA was a constitutionally permissible manifestation of such authority. We now know that it was not.

Ironically, the publication of the essay coincided with the issuance of Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013) by the Board of Immigration Appeals on the same day, which held that United States v. Windsor was applicable to non-citizen same sex spouses seeking immigration benefits. Even before Windsor and Zeleniak, there had been hints of a thaw in the way that federal authorities thought about same sex marriage. In Matter of Dorman, 25 I& N Dec. 485 (A.G. 2011), Attorney General Holder vacated the BIA’s removal order so that it could consider whether, absent DOMA, a same sex spouse could create the kind of familial relationship to sustain remedial relief through cancellation of removal.

Matter of Zeleniak affirms the long held view that the marriage must be legally valid in In Zeleniak the same sex marriage was valid under the laws of Vermont. As with the Windsor decision itself, Zeleniak marked not the breaking of new ground but a long overdue return to orthodox principles that the BIA had repeatedly embraced:

Matter of Hosseinian 19 I&N Dec. 453, 455 (BIA 1987); See also In re Gamero, 14 I&N Dec. 674 (BIA 1974)

The next question in Zeleniak was whether the restrictions in section 3 of DOMA were applicable, which prior to United States v. Windsor they were. Section 3 of DOMA provided:

On June 26, 2013, while the appeal in Zeleniak was still pending at the BIA, the Supreme Court in US v. Windsor struck down section 3 of DOMA. The following passage of the Supreme Court decision, also cited in Zeleniak, is worth noting:

US v. Windsor at 2693

As a result of the repeal of the section 3 DOMA impediment, the BIA in Matter of Zelenaik held that since the marriage was valid under the laws of the state where it was celebrated, it would be recognized for immigration purposes. The BIA remanded to the USCIS to determine whether the marriage was bona fide, which was the sole remaining issue. The ruling is applicable to various provisions of the INA, including sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status).

While Zeleniak has clearly interpreted“spouse” to mean someone of the same sex or opposite sex, so long as the marriage was valid in the place where it was celebrated, Gonzales and Strange still argue that there is sufficient legal ambiguity in the definition of spouse in the INA.

They cite a 1982 case, Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982) where the United States Court of Appeals for the Ninth Circuit held that Congress only intended to define a citizen’s spouse as a person of the opposite sex in the INA. It is worth noting the genesis of that case: the marriage petition was denied by the then Immigration and Naturalization Service on the ground that "[Adams and Sullivan] have failed to establish that a bona fide marital relationship can exist between two faggots." Whatever reliance that Gonzales and Strange may have placed in Adams v. Howerton, it may no longer have any force after Zeleniak since Zeleniak has overruled Adams v. Howerton.

How can a lowly decision of the BIA overrule a decision of the lofty Ninth Circuit Court of Appeals? Under the oft-quoted Chevron doctrine that the Supreme Court announced in Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 US 837(1984), federal courts will pay deference to the regulatory interpretation of the agency charged with executing the laws of the United States when there is ambiguity in the statute. The courts will intrude only when the agency’s interpretation is manifestly irrational or clearly erroneous. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 US 967 ( 2005),while affirming Chevron, held that, if there is an ambiguous statute requiring agency deference under Chevron, the agency’s understanding will also trump a judicial exegesis of the same statute.

Congress had delegated to the legacy INS, and now to the DHS (and to the EOIR), the authority to unpack the meaning of the INA. Nowhere in this foundation statute do we find any definition of “spouse” though INA Section 101(b) defines both “parent” and “child”.The possibility exists that this is no accident. Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of all else), one logical inference from this conspicuous omission is that Congress did not feel the imposition of a statutory definition was central to its regulation of immigration law or policy, preferring instead to leave it to those federal agencies charged with its administration to interpret what a “spouse” properly meant. That is precisely what the BIA in Zeleniak has done. Rather than seeking to prolong indecision when no reason for it exists, which is the purpose and consequence of the Gonzales and Strong position, the swift and sure response by USCIS to the end of DOMA reflects a deference to the Constitution that Attorney General Gonzales would do well to emulate. As a professor of constitutional law, doubtless Attorney General Gonzales knows full well that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong…” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 395 (1969).

Thus, under Brand X, the BIA’s interpretation of spouse in the INA, which is undoubtedly ambiguous, has been interpreted to mean a spouse of the same or the opposite sex in Zeleniak. Whatever doubts Adams v. Howerton may have caused with respect to the definition of spouse in the immigration context, and further sowed by Gonzales and Strong, they have been laid to rest by the agency’s interpretation of “spouse” in Zeleniak.

Even if Gonzales and Strong could not have foreseen Zeleniak spoiling their show on the day their Op Ed was published in the New York Times, they ought to have known that the immigration agency has always recognized the validity of the marriage based on where it is celebrated. But for DOMA’s impediment, whether the marriage was been same sex or opposite sex spouses, the marriage would have been recognized. Thus in Matter of Lovo, 23 I&N Dec. 746 (BIA 2005), decided long after Adam v. Howerton, so long as North Carolina recognized the marriage between a male citizen and a post-operative transsexual female, the marriage would be considered valid under immigration law and section 3 of DOMA would no longer be an impediment.

While Congress has enormous powers over immigrants, and can determine that even a valid marriage has to be a bona fide marriage and not be entered into solely to gain an immigration benefit, it cannot pass laws that our patently unconstitutional – even if those affected are immigrants. Secretary Napolitano recognized this soon after Windsor found section 3 of DOMA unconstitutional by announcing: “I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” Brand X has also done a great hatchet job by allowing the BIA to forever demolish Adams v. Howerton.

America’s immigration laws have often been a window into our national psyche. The national origins quota of 1924 flowed directly from the widespread disillusionment with World War I and rising concerns over the dangers of foreign radical thought. The myriad ideological grounds of exclusion strewn throughout the McCarran-Walter Act of 1952 were eloquent if silent testimony to the tensions of the early Cold War. The Immigration Act of 1965 which abolished the national origins quota and opened up America to global migration was part and parcel of the civil rights crusade of the Great Society. Just the same way, the judicial emasculation of DOMA supported by the ready cooperation of the BIA, Attorney General Holder and Secretary Napolitano did not happen in a vacuum but, rather, emerged out of a societal sea change on marriage equality that has finally found legal expression. This is as is it should be for the meaning of America has always changed as Americans themselves have changed. The great American poet of the anti-slavery movement James Russell Lowell once famously remarked that “Once to every man and nation comes the moment to decide.” Mr. Attorney General, when it comes to the cause of marriage equality, America has made its decision.

(Guest writer Gary Endelman is Senior Counsel at FosterQuan)

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Will comprehensive immigration reform (CIR) die a slow and ignominious death in the House?  Will the Republican Party, whose thought leaders on the far right chant "Kill the Bill," face a near-term visit by the Grim Reaper? Are conservatives abandoning conservatism over immigration, as David Brooks and this blogger maintain? Are lobbyists who were "drinking brandy and smoking cigars" while writing the Senate immigration bill the cause of its apparent failure in the House?  

Will Paul Ryan outflank John Boehner and pull off a twofer (saving CIR and snatching the Speaker's gavel)?

Is President Obama, whose second term is seen by some as flagging, now apparently channeling Hamlet on CIR ("To travel or not to travel?  That is the question.")? Should he stay in the background (as he reluctantly agreed during Senate action on CIR)?  Or should he go out on the hustings to drum up CIR support (as some in the Hispanic Caucus have urged)? Does he really think that a weekly address and a nifty White House White Board on the economic benefits of CIR are enough to sway the House?

Has border-surge mania gone too far? Are House Republicans and Democrats, other than the Gang of Seven, meeting in stealth mode to work out a solution?  

Will John Boehner break the Hastert Rule, or will he allow the House to play house in "regular order," or will a discharge petition dislodge the Senate bill and force a House vote (as Rachel Maddow fancies)?

These are all Beltway questions for Washington talking heads to ponder.  The answer to moving immigration reform legislation in the House can be found on Main Street, in city halls, and in state capitols. It lies in regional and state immigration solutions.

Some ideas, to be sure, are futuristic (like the Migration Policy Institute's proposal to "[Leverage] "Migration and Human Capital in the U.S., Mexico, and Central America"), while others are far-fetched (check out "The Megamerge Dissolution Solution" which proposes that the U.S. create 10 new American states out of Mexico). 

Despite the focus on Washington, there's a serious movement afoot that's growing in rustbelt cities like Detroit, Cleveland, Pittsburgh, Dayton, Indianapolis and Lansing.  It's about welcoming international students and foreign entrepreneurs, risk takers and job creators, and even their undocumented brothers and sisters,  who revitalize metropolitan areas, states and regions.

The solution in the House -- which either party can coopt -- is devolution.  House members should espouse small government solutions that transfer the authority to the states and to regional government entities to pre-approve large allotments of visas and green cards -- far more than the puny quotas of the Senate bill.   The economies of Mississippi, Alabama, Alaska, New Mexico, the heartland states, and the Great Lakes states, are each different.  So why should there be only one federal immigration policy? Some of the federal power to select projects deserving of special-purpose employment-based visas should be conferred on the states.  Immigrants create economic opportunities for Americans  -- it's our national story.

Republicans in the House need not take the swift boat to oblivion like a capsized generation of California Republicans in a prior decade.  If the GOP House members are unwilling to swallow "a single, massive, Obamacare-like [immigration] bill" -- notwithstanding their devouring of a 600+ page farm bill (while excising food stamps for the needy) -- so be it.  They can still use decentralized immigration reform to create jobs and spending in their districts and thereby gain political-risk insurance so that they are not "primaried" on their right flank.

Republicans worry about building walls but forget that walls are breached or surmounted by those with a will:

The brick walls are there for a reason. The brick walls are not there to keep us out; the brick walls are there to give us a chance to show how badly we want something. The brick walls are there to stop the people who don’t want it badly enough. They are there to stop the other people.

Those are not the words of an illegal border crosser in Arizona. (They're actually from the late Randy Pausch and "The Last Lecture.") Still, they could just as well be said by the immigrant strivers who would come, legally, to cities like my hometown of Detroit and other Great Lakes cities to break down the brick walls of blight, unemployment and poverty with the hammer of creatively destructive capitalism and the timeless American energy and will to make life anew for their families and communities -- if only the House would allow them.

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

The display of the Cyrus Cylinder in museums across America has sparked interest on whether Cyrus, who founded the Persian Empire in 549 BC, may have influenced the U.S. Constitution. [1] Our essay explores  the  extent to which Cyrus  may have influenced one of the Founding Fathers, Thomas Jefferson, who in turn inspired the Religion Clauses in the First Amendment, which provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”.

The Cyrus Cylinder describes how Cyrus freed people enslaved by the Babylonians, and allowed them to practice their religion and returned their various gods to their sanctuaries. A notable inscription from the Cyrus Cylinder reads, “I returned them unharmed to their cells, the sanctuaries that make them happy.” [2] The Cyrus Cylinder, often referred to as the first charter of human rights, demonstrates that Cyrus was a tolerant king who allowed people in his vast multinational empire to freely practice their various religions. The Old Testament also has references to Cyrus permitting the Jews to return from exile and to rebuild their temple in Jerusalem.  Indeed, the father of Israeli independence, David Ben Gurion, openly cited Cyrus as a hero and President Harry S. Truman proudly compared himself to Cyrus when, in 1948, the United States became the first nation to recognize the new state of Israel. Much as Cyrus ended the Babylonian captivity, enabling the Jews to return to their biblical homeland and rebuild their ancient temple, Truman made possible the re-establishment of an independent Jewish state after almost 2000 years.

Although the Cyrus Cylinder was discovered long after the death of the Founding Fathers of the U.S. Constitution in 1879, it is well known that Jefferson was influenced by Xenophon’s Cyropaedia, which dwells on Cyrus as an ideal ruler, although it is by no means a historical account. It is well known that Jefferson possessed two copies of Cyropaedia – one of which was a Greek and Latin version. All the Founders were familiar with Xenophon's Anabasis and Isaiah in the Hebrew Scriptures. Jefferson mentions Xenophon as a master of rhetoric in his autobiography. Xenophon viewed Cyrus as a just and tolerant ruler, who ruled over his subjects with persuasion rather than through force. Cyrus did not force his religion, presumably a Zoroastrian, on the various subjects of his vast empire. [3]

There are also several biblical references to Cyrus, most notably the words of Deutero-Isaiah, in which he presents Cyrus in a divine manner: “That says to Cyrus, He is my shepherd, and shall perform all my pleasure; even saying to Jerusalem, Thou shalt be built; and to the temple, Thy foundation shall be laid." [4] Surely, these references to Cyrus would not have escaped Jefferson’s attention, given that he was a keen student of Xenophon’s Cyrus. Jefferson’s interest in and appreciation for Cyrus was an inheritance from the Scottish Enlightenment.  Scottish intellectuals often cited Cyrus in their own efforts to arrive at the proper relationship of church and state. [5]

Jefferson strongly believed that religion was a personal matter and should be free from government influence. In his Notes on the State of Virginia, Query XVII,  Jefferson objected to laws that allowed children who could be taken from their parents if they had not been baptized by stating, “But it does me no injury for my neighbor to say that there are twenty gods, or no gods. It neither picks my pocket nor breaks my leg.” [6] It was in Jefferson’s letter to the Danbury Baptist Association in 1802, in response to why as President he had not proclaimed national days of fasting that he famously referred to the “wall of separation between church and state” which has served as the basis for interpreting the Establishment Clause. [7]

Like Cyrus, Jefferson saw in the lack of government intervention not the absence of piety but the creation of an opportunity for the robust expression of individual conscience. Cyrus’ true gift to Jefferson and to us is the sublime realization that liberty of thought and action is the one true measure of devotion whose inheritance can only strengthen those bonds which unite a people to their rulers and to their God.  The measure of great power Cyrus knew and the Founders realized was not its ruthless exposition but the principled decision to refrain from its exercise. It was this insight that turned imperial obedience into civic acceptance both for ancient empires and the young republic. The one true test of power is the strength not to use it, either to compel the dictates of individual conscience or to shape the conduct of subjects and citizens in the public arena.

The First Amendment in the U.S. Constitution expresses America’s commitment to religious pluralism through two provisions – one protecting the free exercise of religion (the Establishment Clause) and the other barring the establishment of the religion (the Free Exercise Clause). The interpretation of these two clauses has remained contentious, but their very existence has endowed freedom of worship with a secular legitimacy that it might otherwise have lacked, much as Cyrus did  by treating diversity as a source of strength not weakness. While some believe that the government should strictly enforce separation by not supporting any form of religion in schools or other governmental institutions, including references to God on currency and pledeges, others contend that the Judeo-Christian values of the Founding Fathers provide a historical sanction for overt religiosity such as prayer in public school and references to God in the public sphere. [8]

Notwithstanding the lack of unanimity in interpreting the  Religion Clauses, America has been  successful in integrating so many groups of immigrants since its founding  as it is  similar to Cyrus’ model, where the government does not support one dominant religion while at the same time is not against religion. Indeed, the American model relating to freedom of religion was later adopted in the Indian Constitution. Even though India  is a religious country, where the majority belong to the Hindu religion, it is also a home to other major religions. The Indian Constitution in Article 25 grants to citizens of India of all religious persuasions freedom to profess, practice and propagate their faith in a way that does not disrupt public order and does not affect public health and morality adversely. It is thus no coincidence that Zoroastrians and Jews have been able to worship freely, and prosper, in India and America.

In an age where governmental actors are increasingly foisting their religious beliefs on people, resulting in strife, Cyrus’ model of not interfering in religion, which influenced America’s and India’s system of government, is worthy of further consideration and emulation even in the second decade of the  21st century. Cyrus understood that only the strong can be tolerant, that the wise ruler encourages a government powerful enough to protect the people but wise enough to restrain it.

Whatever doubts Jefferson may have entertained on key Christian doctrines, such as the divinity of Jesus or the truth of his resurrection, he did not feel the need to impose such skepticism upon others, respecting their faith even as he doubted the value of adopting it. For Cyrus and Jefferson, tolerance was at the core of their approach towards governance. As effective rulers, they made it easy for those whose beliefs they did not share to accept, indeed to embrace, their political supremacy, whether it be the evangelical Baptists who loved Jefferson or the ancient Hebrews who honored Cyrus. Circumspect in their public manifestations of piety, Cyrus in his day and Jefferson in his knew the pragmatic dividend to be reaped from toleration. The Declaration of Independence speaks fleetingly of “Nature and Nature’s God” and the Constitution makes no mention of the Deity nor imposes any religious test for office. Cyrus and the Founding Fathers sought not to banish religion but to subordinate it as an organizing principle to what they regarded as a more meaningful immortality, imperial fame for Cyrus and the republican nobility of the American revolutionary experiment for Jefferson. That was the one, true and abiding glory they both sought.

As more countries in a globalized world attract immigrants who follow different religions, Cyrus’ model of religious toleration will go a long way in fostering peace and harmony. The fact that in America new immigrant groups can freely establish their places of worship, even after facing religious persecution elsewhere, is redolent of the inscription on the Cyrus Cylinder that “I returned them unharmed in their cells, in the sanctuaries that make them happy.” The lasting attraction of America was and remains the one central truth that here one could become all that they were capable of being regardless from where they came from. For that to live on, the American creed has always celebrated personal freedom and religious diversity. No one in the ancient world exemplified that more completely than Cyrus. That is the enduring meaning of what Cyrus first established more than 2,000 years ago by allowing people for the very first time to freely practice their own religion, and which inspired Xenophon’s Cyropaedia.

Cyrus was not a Jeffersonian reformer and the link between them is more diffuse than direct. In our desire to make Cyrus relevant, we must not forget that, like all rulers, he was a product of his own time.  Yet, it remains true to note that his philosophy of toleration lived on far beyond what Cyrus ever could have imagined and its continuing influence upon those who launched the American experiment in freedom was  both pervasive and undeniable. Thomas Jefferson was hardly a naïve reformer. Like the other Founding Fathers, he followed Cyrus not because he shrank from power but because he wished to exercise it more effectively, knowing that the ability to weave together a mosaic of culture and thought will in the end produce a more enduring fabric. This remains our most sacred inheritance.

[1] See e.g. Cyrus Cylinder: How a Persian monarch inspired Jefferson, BBC News, http://www.bbc.co.uk/news/world-us-canada-21747567

[2 ] The British Museum Translation of the Text on the Cyrus Cylinder, http://www.britishmuseum.org/explore/highlights/articles/c/cyrus_cylinder_-_translation.aspx

[3] In Mary Boyce, Zoroastrians – Their Religious Beliefs,  the author at p.51 suggests that Cyrus  was a Zarathushti as there was evidence of fire holders and that one of his daughters was referred by the Greek writers  as “Atossa,” which in Persian is “Hutaosa,” who was the queen of King Vishtaspa, Zarathustra’s first royal patron. Clearly, Cyrus’s successors such as Darius and later were more explicit that they were Zarathushtis and invoked Zarathustra’s God, Ahura Mazda.

[4] For a commentary on the biblical references to Cyrus,  See Joseph Wiesehöfer, Ancient Persia, I.B. Taurus; Pierre Briant, From Cyrus to Alexander – A History of the Persian Empire, Eisenbrauns; Mary Boyce, supra.

[5] Ancient Persia Influenced Thomas Jefferson, US Democracy, IIP Digital, US Department of State,  http://iipdigital.usembassy.gov/st/english/article/2013/03/20130312143982.html#ixzz2RsF6GhFX

[6] Notes on the State of Virginia, Query XVII,  http://etext.virginia.edu/toc/modeng/public/JefVirg.html

[7] Jefferson’s Wall of Separation Letter, personal correspondence with Danbury Baptist Association in 1802,  http://www.constitution.org/tj/sep_church_state.htm

[8] The Supreme Court decision in McCreary County v. ACLU 545 U.S. 844 (2005), which narrowly held that the display of the Ten Commandments at a county court violated the Establishment Clause, best exemplifies how difficult it is to interpret the Religion Clauses in the First Amendment.

Charles Kuck, ABIL President
Musings on Immigration

One of the striking things about reading hundreds of newspaper articles about "immigration reform" with thousands of quotes from politicians is the amazing misuse of words and phrases that form an essential part of the debate.  To aid you in your understanding of the immigration reform debate, here are definitions of the key words and phrases, as used by the different side,s on this very important issue.

Angelo Paparelli, ABIL Immediate Past President
Nation of Immigrators

Over the 4th of July weekend, I devoured a fascinating book and, in the course of it, learned a new synonym for "bureaucracy"  -- "cutcherry" -- taken from Hindi and apparently originating with the British East-India Company's bureau office in what is now Chennai.

The book, The Professor and the Madman ~ A Tale of Murder, Insanity, and the Making of the Oxford English Dictionary, by Simon Winchester, describes the unusual literary collaboration between Professor James Murray, who led most of the 70-year effort to compile the Oxford English Dictionary, and an American, Dr. William Chester Minor, acquitted of murder by reason of insanity and held for decades in a British asylum for the mentally ill. Dr. Minor was among the most prolific and insightful contributors to the OED, as this passage shows:

For years Prof. Murray and his staff were astounded at the time and energy their contributor, Dr. Minor, devoted to the OED.  They assumed that he was retired and did not know that his abundance of effort was a daytime remedy to keep at bay the psychological demons who assailed him at night.

Often it seems that our own immigration cutcherry, U.S. Citizenship and Immigration Services (USCIS), labors with the energy and effort of a Dr. Minor and the vast army of co-contributors who helped Prof. Murray compile the OED.  Public outreach and engagements, both nationally and locally, are announced with great frequency, not just in English, but also in Mandarin, Cantonese, Vietnamese and Spanish.  

The frequency and quality of these engagements are a testament to the man who introduced them, Alejandro Mayorkas, the USCIS Director the past four years.  Director Mayorkas, himself an immigrant from Cuba, has made great strides in transforming the world's largest immigration agency, a cutcherry so plagued when he arrived that it became apparent to him that his first order of business was to instruct his staff to compile a list of all extant immigration policies and canvass the public about which agency practices and interpretations should be reassessed first.  

An example of his leadership can be seen in two recent policy memos published last week with an invitation for the public to comment: Interim Policy Memorandum: PM-602-0086 Precedent and Non-Precedent Decisions of the Administrative Appeals Office (AAO) and Final Policy Memorandum: PM-602-0087 Certification of Decisions to the Administrative Appeals Office (AAO).

Director Mayorkas spoke movingly of his immigrant roots, his accomplishments and his vision for the future of USCIS at what may have been his valedictory address at the American Immigration Lawyers Association annual conference in San Francisco last month, receiving a heartfelt standing ovation, rather than the usually perfunctory applause, from a too-often jaundiced immigration bar.  On June 27, President Obama announced his attention to nominate Director Mayorkas to serve as the Deputy Secretary of Homeland Security, under Janet Napolitano, who likewise applauded the announcement.

Earlier last month, he also spoke at the annual symposium of the American Council for International Personnel, where a questioner asked how USCIS could possibly assemble the infrastructure and legions of personnel needed if comprehensive immigration reform with its innumerable changes to visa categories and a registered provisional immigrant category and prospect of citizenship for the 11 million or so unauthorized persons among us were to pass.  He responded in reasonable granularity and then ended his answer confidently with: "We will be ready!"

I've not always agreed with Director Mayorkas, as more than a few posts on this blog will attest. For example, while the AAO has improved in speed and quality of adjudication in recent months, it remains afflicted by antiquated processes and too often exhibits faux rather than full-fledged justice that will not be remedied by the mere issuance of two policy memos, as I've noted before (here, here, here, here, here, here, here and here).  See my listing of "25 Proposed Reforms to the Administrative Appellate Process within U.S. Citizenship and Immigration Services."  (By the way, in reading the two new policy memos, I am reminded of one more reform -- USCIS should allow the public to recommend non-precededent AAO decisions as the Board of Immigration Appeals has done, see, e.g., Matter of Walsh and Pollard, which the BIA designated as precedent as the request of James Stillwaggon and yours truly many years ago.)

Yet I've long admired Director Mayorkas for his sincerity, diligence, commitment, intelligence, elocution, rhetorical flourishes and wit.  He has faced his challenges from within and without, and addressed them with his resolute energy and drive, never losing sight of his oath of office and the people his agency helps and protects.  Our consolation as immigration stakeholders is that once he leaves he'll likely not forget his experiences at USCIS and with the larger community, and apply his learning and insight to address the even more daunting problems faced by the Homeland Security Department, of which immigration is only one component.  Godspeed, Ali Mayorkas.  We will miss you but never forget you.

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

When Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010), was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian has been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary. Read on….

As background, an individual can obtain permanent residence in the US by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Grammy). If the applicant is not the recipient of such an award then documentation of any three of the following is sufficient:

1. Receipt of lesser nationally or internationally recognized prizes or awards.
2. Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
3. Published material about the person in professional or major trade publications or other major media.
4. Participation as a judge of the work of others.
5. Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
6. Authorship of scholarly articles in the field, in professional or major trade publications or other media.
7. Artistic exhibitions or showcases.
8. Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
9. High salary or remuneration in relation to others in the field.
10. Commercial success in the performing arts.

See 8 CFR § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

In Kazarian, the main bone of contention was what constitutes “authorship of scholarly articles in the field, in professional or major trade publications or other media.” In the original decision, Kazarian v. USCIS, 580 F.3d 1030 (Kazarian 1), the Ninth Circuit agreed with the Appeals Administrative Office (AAO) that “publication of scholarly articles is not automatically evidence of sustained acclaim; we must consider the research community’s reaction to those articles.” The Court in Kazarian 1 acknowledged that this reasoning “may be circular, because publication, on its own, indicates approval within the community.” However, the Court went on to justify the AAO’s circular reasoning probably unmindful of the adverse impact that it would have for future EB-1 petitioners, “Because postdoctoral candidates are expected to publish, however, the agency’s conclusion that the articles must be considered in light of the community’s reaction is not contrary to the statutory mandate that the alien have achieved “sustained national or international acclaim.” (citation omitted).

It was precisely this reasoning that  the new Kazarian decision reversed, on the ground that it was inconsistent with the governing regulation, 8 CFR § 204.5(h)(3)(vi), which simply states, “Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.” The regulation does not require consideration of the research community’s reaction to those articles, which was essentially an invention of the USCIS.

Unfortunately after the initial victory, Kazarian, as interpreted by the USCIS,  has resulted in a two part test. In the first part of the test, the USCIS has to determine whether the individual has met three of the 10 criteria to establish extraordinary ability. However, that is not sufficient and does not result in an approval. Even after meeting the first part of the test, the individual has to establish through a vague and undefined “final merits determination” that he or she is extraordinary.

Whether we like it or not, the two part test, based on the USCIS’s interpretation of Kazarian is here to stay with us – at least for now – and the focus of this article is to suggest ways to confront it and still win petitions for persons of extraordinary ability or outstanding professors and researchers.

In its December 22, 2010 Policy Memorandum, ("Policy Memorandum"), USCIS implemented a "two-part adjudicative approach" for extraordinary ability, outstanding researcher and professor, and exceptional ability immigrant visa petitions. The Service cites Kazarian as the basis for modifying the Adjudicator's Field Manual to include a second step in the adjudication process, the "final merits determination." Although Kazarian did not actually create a “final merits determination,” and objected essentially to the AAO’s imposition of extra requirements under the evidentiary criteria in 8 CFR §§ 204.5(h)(3)(iv) and (vi), the Service seized on the following excerpts in Kazarian as a basis for justifying a “final merits determination” analysis:

Kazarian v. USCIS, 596 F.3d  at 1121.

Under this two part test, the USCIS must essentially accept the evidence of extraordinary ability under the 10 criteria set forth in 8 CFR §204.5(h)(3)(i)-(x). The USCIS cannot object to the submission of the alien’s “scholarly articles in the field, in professional or major trade publications or other major media” under §204.5(h)(vi) unless there is consideration of the research community’s reaction to those articles, as it did erroneously in Kazarian. Still, the USICS may take this  extra evidentiary factor into consideration, namely, the lack of reaction in the research community,  during the “final merits determination” analysis. It is readily apparent that the analysis under the second step defeats the very essence of the holding in Kazarian that the USCIS  cannot impose extra requirements under the evidentiary criteria. What it cannot do under the first step, the USCIS  can still do under the “final merits determination.”

Unfortunately, post Kazarian decisions seem to be affirming the two-part test and final merits determination analysis notwithstanding the holding in a prior decision, Buletini v. INS, 860 F.Supp. 1222 (E.D. Mich 1994), which held, "[o]nce it is established that the alien's evidence is sufficient to meet three of the criteria listed in 8 C.F.R. § 204.5(h)(3), the alien must be deemed to have extraordinary ability unless the INS sets forth specific and substantiated reasons for its finding that the alien does not meet extraordinary ability.” Id. at 1234.  Under the burden shifting approach in Buletini, the petitioner should be deemed qualified, and the burden then shifts  onto  the  Service to reject the evidence that meet the criteria, if suppose, it finds that the evidence was  fraudulent or too dated and stale. In fact, such a burden shifting approach is not unknown in other aspects of immigration law. As my colleague David Isaacson has pointed out, in the asylum context, an applicant who demonstrates that he or she has suffered past persecution on account of a protected ground is rebuttably presumed to have a reasonable fear of future persecution on that same ground.  8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).  In such cases, by regulation, “the Service shall bear the burden of establishing by a preponderance of the evidence” that a change in circumstances, or the reasonable possibility of relocating within the country of persecution, should lead to a denial of asylum.  8 C.F.R. §§ 208.13(b)(1)(ii), 1208.13(b)(1).

Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011), aff’d Rijal v. USCIS, 683 F.3d 1030 (9th Cir. 2012) is a decision that explicitly follows the Policy Memorandum, and ignores the burden shifting approach as set forth in Buletini.  Although the petitioner in Rijal, a Nepali documentary film maker, submitted a UNICEF prize, the USCIS concluded that it did not meet the evidentiary criterion of  “lesser nationally or internationally recognized prizes or awards of excellence”   as it was awarded more than 4 years ago and did not provide evidence of the alien’s sustained acclaim. While the court criticized the USICS for failing to consider this evidence under 8 CFR §204.5(h)(3)(i) and for similar errors under other evidentiary criteria, it nevertheless held that the petitioner did not suffer prejudice from these errors as “it made those errors with an eye toward the ultimate merits determination.” Rijal at 1347.  Based on a holistic determination of the petitioner’s evidence, the court held that the USCIS appropriately found that the petitioner did not demonstrate sustained national or international acclaim. It is clear that the Ninth Circuit in Rijal affirmed the two step test set forth in the  Policy Memorandum even though the suggestion of a “final merits determination” was mere dicta in Kazarian.

Noroozi and Assadi v. Napolitano,  ___ F. Supp. ___ (SDNY Nov. 14, 2012), available on AILA InfoNet at Doc. No. 12111644 (posted 11/16/12), is another recent decision from the Southern District of New York that has agreed with the Kazarian two-step analysis. Petitioner Noroozi represented Iran in table tennis at the 2008 Olympics in Beijing. Although neither Noroozi nor the Iranian table tennis team won any medal at the Olympics, the USICS initially approved the EB-1 petition, but then subsequently revoked it. A second EB-1 petition was filed, which was denied on the ground that Noorzi only met two of the criteria, but not three. The court agreed with the USCIS that there was no evidence to substantiate that he played a “leading or critical role” for his team and nor did the “published material” about him pass muster since it focused more on the team and only briefly mentioned Noroozi. Even though the failure to meet the evidentiary criteria could have ended the analysis, the court also discussed how Noroozi did not merit a favorable judgment under the second part “final merits determination.”  Since Noroozi ranked 284th in the world in table tennis, and finished 65th place in table tennis in the 2008 Olympics, the court noted that this would oblige the USCIS to hypothetically grant EB-1 petitions to the 283 higher ranked table tennis players, and also to the 283 higher ranked players in other sports, assuming they were non-US citizens, as well as to the 64 table tennis players who outperformed Noroozi in the 2008 Olympics. The court’s  “final merits determination” in Noroozi  is troubling as the EB-1 was never intended only for the number one player in a sporting field, and this decision should be contrasted with a pre-Kazarian decision involving an ice hockey player in the National Hockey League whose team won the Stanley Cup, but was not an all-stars or one of the highest paid players, but was still found to be qualified  under EB-1. See Muni v. INS, 891 F. Supp. 440 (N.D. Ill 1995).  The “final merits determination” permits USCIS to set subjective baselines with respect to rankings of   players in sports even if they would potentially qualify under the ten evidentiary criteria as Muni did after he sought reversal of the denial of his EB-1 petition in federal court. Interestingly, in Noroozi, the attorney also became a plaintiff along with the petitioner on the ground that the USCIS denied the EB-1 petition based on the petitioner’s association with the attorney who had been unfairly singled out in a DOS cable. That strategy too failed since the court rejected that there was any bad faith on the part of the USCIS in denying Noroozi’s EB-1 petition.

Various unpublished AAO decisions [See e.g. AILA InfoNet Document Nos. 12062752 and 12062753]   suggest that the government’s final merits determination will consider evidence whether or not the petitioner has demonstrated : 1) a “level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the[ir] field of endeavor,” 8 CFR § 204.5(h)(2); and 2) “that the alien has sustained national or international acclaim and that his or her achievements have been recognized in the field of expertise.” § INA 203(b)(1)(A); 8 CFR § 204.5(h)(3). See also Kazarian, 596 F.3d at 1119-20.   While it makes sense to preserve the argument in the record that the final merits determination is inapplicable and to propose the burden shifting approach under Buletini instead, it also behooves a petitioner to argue that his or her client merits a favorable adjudication under the “final merits determination” analysis given that it has been blessed in post-Kazarian decisions.  The amorphous nature of this standard allows the petitioner’s attorney flexibility to make a broad argument just as it gives the USCIS examiner the same flexibility to approve or not approve a case even after the petitioner has submitted evidence under the evidentiary criteria. For instance, if a petitioner has met 3 out of 10 evidentiary criteria, the agile practitioner may be able to argue that the petitioner has demonstrated to be among the small percentage who has risen to the top of the field, sustained national or international acclaim, and recognition of achievements, by highlighting only the strongest evidence rather than evidence submitted under all three criteria. If the scholarly articles are very impressive, but the awards are not and the petitioner may have judged the work of only one PhD student, then the focus could be on the impressive scholarly articles when qualifying him or her under the final merits determination. Moreover, under the final merits determination, a petitioner may be able to point to other evidence that may not categorically fall under the 10 evidentiary criteria, such as testimonials from eminent authorities in the field, as well as petitioner’s stellar academic background. Of course, if the evidence submitted under the evidentiary criteria is all qualitatively superior and extensive, then the practitioner must not rest on these laurels and take pains to highlight this for the “final merits determination.”Finally, the practitioner must always remind the USICS that the “final merits determination” is governed by the preponderance of evidence standard, as suggested in the Policy Memorandum too, which requires only 51% certainty.

It need not be this way as Congress probably did not intend for the USCIS to create a subjective final merits determination, when it enacted the priority worker categories under the Employment-based first preference in the Immigration Act of 1990. The starting point for examining the legislative history of the Immigration Act of 1990 is the House Report. See H.R. Rep. No. 723, Pt. 1, 101st Cong., 2d Sess. 4 (Sept. 19, 1990).  With respect to aliens of extraordinary ability, the House Report states:

There is nothing in this passage that suggests that the USCIS needed to conduct a two-step analysis to determine extraordinary ability. On the contrary, the House Report broadly suggests a number of possibilities under which an alien can establish extraordinary ability, such as through publications in respected journals, media accounts or statements of recognition of exceptional expertise by qualified organizations. Moreover, the House Report also indicates that “[a}n alien can also qualify on the basis of a career of acclaimed work in the field.”

The implementing regulations appropriately relied on the House Report in defining “extraordinary ability” to mean “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” See commentary on implementing regulations at 56 Fed. Reg. 60897 (Nov. 29, 1991). The proposed regulations would have used one of the “few (emphasis added) who has risen to the very top of the field,”  but after listening to the objection of commentators, the Service substituted the word “few” with “small percentage” in deference to the same, albeit broader, verbiage that was used in the House Report. By developing the ten evidentiary criteria at 8 C.F.R. §204.5(h)(3)(1)-(x), and recognizing that if an alien met three out of the 10 criteria, the Service appropriately followed Congressional intent by allowing this alien to demonstrate  extraordinary ability, which is “a level of expertise indicating that the individual is one of the small percentage who have risen to the very top of the field of endeavor.” There is nothing more that is required within the regulatory criteria to demonstrate whether an alien was within that “small percentage,” and this appears to be consistent with the House Report too. Given the broad examples in the House Report for demonstrating extraordinary ability, the Service also promulgated an additional regulation, 8 C.F.R. § 204.5(h)(4),  that permits submission of comparable evidence when the given criteria do not apply to the candidate’s occupation or achievements. The DHS Ombudsman’s recommendations to improve the quality of extraordinary ability adjudications also discusses that the administrative practice prior to Kazarian was to base an applicant’s extraordinary ability on complying with 3 out of the 10 evidentiary criteria.

The extraordinary ability provision, as crafted by Congress in 1990, should be viewed in the context of other introductory passages in the House Report preceding the section on extraordinary ability. Congress was clearly concerned about the US labor market facing two problems, which immigration policy could help correct. Id. at 52. “The first is the need of American business for highly skilled, specially trained personnel to fill increasingly sophisticated jobs for which domestic personnel cannot be found and the need for other workers to meet specific labor shortages.” Id. The following passage from the House Report is worth extracting, and while written in 1990, is relevant even in 2013:

Indeed, it is very clear that IMMACT90, as reflected by the intent of Congress in the House Report, has failed to address the problem of timely admittance of highly skilled immigrants. The waits under the employment-based second preferences (EB-2) for India and China and in the employment-based third preferences (EB-3) for all countries, and worse for India, are far greater in 2013. In the case of the India EB-3, the wait could be several decades long. If immigration law was not in synchronization with global developments in 1990, it is much less so in 2013 especially since the world has become far more globalized and interdependent. Indeed, one way to correct the imbalance is for the USCIS to faithfully interpret the pivotal extraordinary ability provision in light of Congressional concern in 1990, which continues to be even more of concern today, and that is to expeditiously allow an alien of extraordinary ability who meets 3 out of the 10 evidentiary criteria to be able to obtain permanent residence  in the employment-based first preference (EB-1), which unlike the EB-2 for India and China, and the EB-3, remains current and has always remained current. A second-step subjective merits analysis, as proposed by the USCIS, would continue to thwart Congressional intent as it would lead to arbitrary denials of aliens who otherwise can demonstrate extraordinary ability, and who would clearly be able to benefit the U.S.

(This article is partly based on Demystifying the Final Merits Analysis of Extraordinary Ability by Cyrus Mehta, Roberto Caballero and Rita Sostrin, Immigration Practice Pointers, AILA 2013-14 Ed. The article contains general information and should not be relied upon as a substitute for legal advice.)