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Opportunity Knocks in Disappointing Decision Vacating STEM Optional Practical Training Rule for Foreign Students

8/14/2015

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

Adversity is the mother of progress
Mahatma Gandhi

I was at first greatly disappointed to find out that a federal district court judge vacated the 2008 STEM Optional Practical Training rule that extended practical training to F-1 students by an additional 17 months. However, if one reads Washington Alliance of Technology Workers (WashTech) v. DHS closely, the decision does not look so bad and provides an opportunity for the Obama administration to further expand STEM practical training, as promised in the November 20, 2015 executive actions for skilled workers.

Foreign students can receive up to 12 months of OPT upon graduation. In 2008, the Department of Homeland Security under President Bush’s administration published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. Plaintiffs WashTech challenged both the 12 month OPT and the STEM OPT. The challenge to the original 12 month OPT rule was dismissed, but on August 12, 2015, U.S. District Judge Ellen Segal Huvelle vacated the rule that extended OPT by 17 months for a total period of 29 months for STEM graduates. The 2008 rule was published without notice and comment, and the court agreeing with the plaintiffs ruled that the DHS had not shown that it faced a true emergency situation that allowed the agency to issue the rule without notice and comment.

It is disappointing that Judge Huvelle granted plaintiffs standing in the first place on the flimsy ground that they were currently employed as computer programmers, who were a subset of the STEM market. [Contrast this with the DC Circuit Court of Appeals ruling in Arpaio v. Obama  two days later dismissing Sherriff Arpaio’s standing claim on the spurious grounds that the executive actions would serve as a magnet for attracting more undocumented immigrants to Arizona and fewer people would be deported as a result of these executive actions.] Although the plaintiffs in WashTech were not unemployed, Judge Huvelle speculated that “[a]n influx of OPT computer programmers would increase the labor supply, which is likely to depress plaintiffs’ members’ wages and threaten their job security, even if they remained employed.” It is also somewhat amusing that the judge found the F-1 and H-1B interrelated in order to justify that plaintiffs also had standing under the “zone of interests” doctrine. Without considering that the F-1 visa requires a non-immigrant intent while the H-1B allows for dual intent, the judge held that “F-1 and H-1B perform the interlocking task of recruiting students to pursue a course of study in the United States and retaining at least a portion of those individuals to work in the American economy.”

While this is the bad part of WashTech, the good news is that Judge Huvelle left intact the legal basis for the OPT rule on the ground that the DHS is entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Pursuant to the oft quoted Chevron doctrine, 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 step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts. Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it.

Judge Huvelle in WashTech agreed that under Step 1 of Chevron, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is  ambiguous and that Congress has not clarified the word “student”. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. Under Step 2 on Chevron, the 2008 rule was held to be a reasonable interpretation of the ambiguous statutory provision.  For over 50 years, Judge Huvelle acknowledged, the government has allowed students to engage in practical training relating to their field of studies, which Congress has never altered. Indeed, in the Immigration Act of 1990, Congress included a three-year pilot program authorizing F-1 student employment for positions that were “unrelated to their field of study.” Congress would only do this, Judge Huvelle reasoned, because Congress recognized that practical training regulations long existed that allowed students to engage in employment in fields related to their studies. The decision goes into fascinating detail describing the history of practical training from at least 1947. Even after Congress overhauled the law in 1952, practical training continued, and still continued even after the Immigration Act of 1990 overhauled the H-1B visa by setting a numerical limit and imposing various labor protections. The decision also cites old Board of Immigration Appeals decisions recognizing practical training such as Matter of T-, 1 I&N Dec. 682 (BIA 1958), which noted that the “length of authorized practical training should be reasonably proportionate to the period of formal study in the subject which has been completed by the student” and only in “unusual circumstances” would “practical training…be authorized before the beginning of or during a period of formal study.”

Judge Huvelle finally and unfortunately, agreeing with the plaintiffs,  held that there was no emergency to justify the promulgation of the 2008 rule without notice and comment. H-1B oversubscription as a reason for the emergency in 2008 was “old hat” as the government conceded that the H-1B program has been consistently oversubscribed since 2004. Fortunately, Judge Huvelle sensibly realized that vacating the rule immediately would force “thousands of foreign students with work authorizations…to scramble to depart the United States.” Hence, the court stayed vacatur till February 12, 2016 during which time the DHS can submit the 2008 rule for proper notice and comment.  In the meantime, foreign students in STEM OPT have some respite, and those who are eligible for STEM OPT should be able to apply for a 17 month extension so long as they do so before February 12, 2016, although we need some affirmative guidance from the USCIS on this.

The DHS now has a golden opportunity to expand practical training through notice and comment even beyond a total of 29 months, and must do so on or before February 12, 2016 in compliance with the WashTech decision. Despite the protestations of Senator Grassley, who like WashTec stridently opposes the notion of foreign student practical training, Judge Huvelle’s decision has blessed the legal authority of the DHS to implement practical training under Chevron deference. As discussed in my prior blog, Senator Grassley in his angry missive to the DHS had leaked that the DHS was  moving on new regulations to allow foreign students with degrees in STEM fields to receive up to a 24 month extension beyond the original 12 month OPT period even prior to the final Washtech decision.  If a student obtains a new degree, he or she can again seek a 24 month extension after the original 12 month OPT period. The proposed regulations would further authorize foreign graduates of non-STEM  degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).

While this will put tremendous pressure on the DHS to propose a rule for notice and comment before February 12, 2016, it would be well worth it before all talented foreign students who would otherwise benefit the United States are forced to leave. As a result of the H-1B cap, it is the STEM OPT that has allowed foreign students to be employed in the United States. The prospect of no STEM OPT combined with the limited number of H-1B visas annually would be devastating not only for the tech sector, but for American universities, foreign students and for the overall competitiveness of the United States.  WashTech may have successfully been able to obtain a vacatur of the 2008 rule effective February 12, 2016, but theirs is only a Pyrrhic victory since the court has essentially endorsed the legality of both the 12 month practical training periods and any extensions beyond that.
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Extension of STEM Optional Practical Training for Foreign Students Under President Obama's Executive Actions?

6/15/2015

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

Senator Grassley’s latest angry missive to the DHS protests the proposed increase of F-1 student Optional Practical Training (OPT), which was part of President Obama’s  executive actions of November 20, 2014.  While the Senator’s rant against any beneficial immigration proposal is nothing unusual, it reveals for the first time DHS plans to unveil an OPT  extension regulation relating to its promise to retain skilled foreign talent. It is also refreshing that the Obama Administration is endeavoring to implement a key executive action, especially after a  noted immigration blogger justifiably began to wonder whether the Obama Administration was fulfilling its promise or not.

According to Senator Grassley’s letter dated June 8, 2015, the DHS is moving forward with new regulations on OPT

  • allowing foreign students with degrees in STEM fields to receive up to two 24-month extensions beyond the original 12-month period provided under OPT regulations, for a total of up to six years of post-graduation employment in student status; and
  • authorizing foreign graduates of non-STEM U.S. degree programs to receive the 24-month extension of the OPT period, even if the STEM degree upon which the extension is based is an earlier degree and not for the program from which the student is currently graduating (e.g. student has a bachelor’s in chemistry and is graduating from an M.B.A. program).


Presently, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM (Science, Technology, Engineering and Mathematical) fields. The Senator’s letter also seems to suggest that the agency is considering that employers will certify that they have not displaced US workers.  The STEM OPT extension is presently subject to a legal challenge by the  Washington Alliance of Technology Workers (Washtec). See Washington Alliance of Technology Workers v. DHS, Civil Action No. 1:14-cv-529.   Plaintiffs have alleged that the OPT STEM extension period is a deliberate circumvention of the H-1B visa cap in violation of Congressional intent, and have also been granted competitor standing, which recognizes that a party suffers injury when a government agency lifts regulatory restrictions on competitors or allows increased competition.

Notwithstanding Senator Grassley’s protest and the lawsuit, this is good news for foreign students, especially those who were not selected in the H-1B visa lottery for FY2016.  While the current lawsuit could potentially thwart the  efforts of the administration to extend STEM OPT especially in the face of mounting law suits,  we can also take comfort in an earlier failed legal challenge against STEM OPT.

Soon after the DHS extended OPT from twelve months to twenty-nine months for STEM students, the Programmers Guild sued DHS. in Programmers Guild v. Chertoff, 08-cv-2666 (D.N.J. 2008), challenging the regulation, and initially seeking an injunction, on the ground that DHS. had invented its own guest worker program without Congressional authorization. The court dismissed the suit for injunction on the ground that DHS was entitled to deference under Chevron USA, Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Under the oft quoted Chevron doctrine, 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 step in only when the agency’s interpretation is irrational or in error. The Chevron doctrine has two parts: Step 1 requires an examination of whether Congress has directly spoken to the precise question at issue. If Congress had clearly spoken, then that is the end of the matter and the agency and the court must give effect to the unambiguous intent of the statute. Step 2 applies when Congress has not clearly spoken, then the agency’s interpretation is given deference if it is based on a permissible construction of the statute, and the court will defer to this interpretation even if it does not agree with it. Similarly, the Supreme Court in Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), while affirming Chevron, held that if there is an ambiguous statute requiring agency deference under Chevron Step 2, the agency’s interpretation will also trump a judicial decision interpreting the same statute. Brand X involved a judicial review of an FCC ruling exempting broadband Internet carrier from mandatory regulation under a statute. The Supreme Court observed that the Commission’s interpretation involved a “subject matter that is technical, complex, and dynamic;” therefore, the Court concluded that the Commission is in a far better position to address these questions than the Court because nothing in the Communications Act or the Administrative Procedure Act, according to the Court, made unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.

The District Court in dismissing the Programmers Guild lawsuit discussed the rulings in Chevron and Brand X to uphold the DHS’s ability to extend the student F-1 OPT regulation. Programmers Guild appealed and the Third Circuit also dismissed the lawsuit based on the fact that the Plaintiffs did not have standing. Programmers Guild, Inc. v. Chertoff, 338 Fed. Appx. 239 (3rd Cir. 2009), petition for cert. filed, (U.S. Nov. 13, 2009) (No. 09-590). While the Third Circuit did not address Chevron or Brand X – there was no need to – it interestingly cited Lorillard v. Pons, 434 U.S. 575, 580 (1978), which held that Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. Here, the F-1 practical training regulation was devoid of any reference to the displacement of domestic labor, and Congress chose not to enact any such reference, which is why the Programmers Guild lacked standing.

So, why is Washtec again challenging the STEM OPT extension after another challenger had previously failed? This is because the DC Circuit is a favorable court to get standing, which it has already been granted. Even if plaintiffs ultimately prevail on their competitor standing theory, which requires them to show that they are direct and current competitors to F-1 students, plaintiffs still have an uphill task. The plaintiffs rely on International Bricklayers Union v. Meese (another reason why they have commenced legal action in the DC Circuit),  which struck down an INS Operating Instruction that allowed foreign laborers to come to the US on B-1 visas to install equipment or machinery after it had been purchased from an overseas seller. The court in International Bricklayers agreed with the plaintiffs that the laborers were not properly in the United States on a B-1 business visa, which under INA 101(a)(15)(B) precluded one from “performing skilled or unskilled labor.” In fact, Congress had enacted the H-2B visa for this sort of labor pursuant to INA 101(a)(15)(H)(ii)(b).

On the other hand, the provision pertaining to F-1 students at INA 101(a)(15)(F)(i) is more ambiguous. It prescribes the eligibility criterion for a student to enter the United States, but does not indicate what a student may do after he or she has completed the educational program. For over 50 years, the government has allowed students to engage in practical training after the completion of their studies, which Congress has never altered.  Thus, a court should be more inclined to give deference to the Administration’s interpretation of INA 101(a)(15)(F)(i) under Chevron and Brand X even if it expanded STEM OPT beyond the maximum available  period of 29 months. From a policy perspective, the Administration should be given room to expand STEM OPT in order to retain skilled talent in the United States. Global competition for STEM students has increased dramatically, and many countries have reformed their immigration systems to attract such students. American innovation will fall behind global competitors  if we cannot find ways to attract foreign talent especially after they have been educated at American universities.

Senator Grassley’s misgivings about extending STEM OPT  are misplaced, and it is fervently hoped that the Administration will not pay heed to his letter and cynically scrap the program after putting up a show that it had tried it’s best. If extended STEM OPT is implemented, it will provide the impetus for the implementation of other key executive actions such as allowing entrepreneurs to be paroled into the United States and permitting beneficiaries of approved I-140 petitions to work and enjoy job mobility even if their priority dates have not become current. Each and every action will surely get challenged, but the Administration should fight on and prevail, like it did when the motion to preliminarily enjoin the granting of work authorization to H-4 dependent spouses failed.
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The Fate of Executive Action on Immigration After the Midterm Elections

11/9/2014

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

For courage--not complacency--is our need today--leadership--not salesmanship. And the only valid test of leadership is the ability to lead, and lead vigorously.

Senator John F. Kennedy’s speech accepting the 1960 Democratic nomination for President

Ever since the Democrats got a drubbing in the midterm elections, questions remain about the fate of immigration reform. President Obama had promised to reform the system through executive action after the election. The question is whether he will still do it despite the Republican Party gaining decisive control over both the Senate as well as the House. Last Friday, November 7, 2014, President Obama defiantly said that he would take executive action on immigration despite howls of protests from Republican leaders. They threatened that Obama’s unilateral action in the face of defeat in the midterm election would derail reform immigration legislation.

The authors believe that executive action ought not “poison the well, a term that has been oft repeated by the GOP against Obama’s proposed executive action, although it dare be said that the well no longer contains any water! If the President has authority under the Immigration and Nationality Act to take executive action in order to improve the decrepit immigration system, we do not see how it would usurp on Congress’s authority or violate the Separation of Powers doctrine. We have shown in Two Aces Up President Obama’s Sleeve To Achieve Immigration reform Without Congress: Not Counting Family Members And Parole In Place that the President can comprehensively reform the immigration system as part of his inherent authority. There is also sufficient ambiguity in many provisions of the Immigration and Nationality Act that beg reinterpretation so that they can bring ameliorative relief to millions. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.

Thus, there is no need for the Republicans to feel threatened by Obama’s proposed executive actions. If they do desire to pass immigration reform legislation, they can always do so and can even improve on the administrative measures that Obama can possibly implement. After all, executive action will always be limited and is no substitute for legislation. The President would only have the authority to defer the deportation of non-citizens who meet certain deserving criteria; he cannot issue them green cards or create new visa categories without Congressional action.  The President may also have authority to reinterpret ambiguous provisions, such as INA section 203(d) so that family members are all counted as a single unit rather than separately, thereby reducing or even eliminating much of the crushing backlogs in the family and employment-based preferences.  Indeed, Obama’s executive action could be conditioned on Congress passing meaningful immigration reform legislation, upon which such action can be withdrawn. Subsequent immigration legislation from Congress can also incorporate some of the administrative measures, such as not counting family members separately. The notion of not counting family already exists in S. 744, which was passed by the Senate in a bipartisan manner in June 2013, and which the House has never taken up. Indeed, the House can still vote on this measure today and can pass comprehensive immigration reform even before Obama acts.

The question is whether the GOP is ready to pass immigration legislation. The real reason that S. 744 was not taken up in the GOP controlled House, even prior to the midterm elections, was the dislike that many House members in legalizing millions of undocumented people who have deep ties with the United States and who are also part of American families. This dislike is grounded in nativist tendencies that many GOP House members have shown, and who receive support from xenophobic organizations such as NumbersUSA and Federation for American Immigration Reform. Even if President Obama gives the new GOP Congress time to enact immigration legislation, they may never be able to do so because of the nativist element within the party that will always be opposed to any immigration measures save border security and tough immigration enforcement.

Executive action on immigration is hardly novel.  After Castro took power in Cuba, Presidents Eisenhower, Kennedy and Johnson paroled in more than 900,000 Cubans.  Seven years later, Congress signified its approval through enactment of the Cuban Adjustment Act in 1966.  In recent decades, when emergencies erupted and humanitarian crises presented themselves, Presidents of both political parties have not hesitated to act on their own initiative outside the customary channels of legislative activity, often to protect large numbers of vulnerable immigrants from deportation. This has happened over 20 times since the mid-1970’s.  In almost all such instances, the Congress subsequently ratified such executive orders with appropriate legislation. This is, for example, what happened at the close of World War II when President Truman allowed 250,000 European refugees to enter or remain in the United States; three years later, in 1948, Congress enacted the Displaced Persons Act, allowing 400,000 additional admissions. In April 1975, at the end of the Vietnam War, President Ford asserted his parole authority to sanction the evacuation of 200,000 South Vietnamese. Further congressional approval of President Ford’s executive order came in 1980 with enactment of the Refugee Act making possible the resettlement of 1.4 million Indochinese people. That same year, President Carter took in 130,000 Mariel Cubans who eventually obtained “Cuban-Haitian entrant status” under President Reagan.  Six years later, the Immigration Reform and Control Act made these Cuban-Haitian entrants lawful permanent residents of the United States. The next year, Attorney General Meese ordered the legacy INS not to remove some 200,000 Nicaraguans and, a little after that, extended similar protection to 190,000 Salvadorans seeking to escape from the horrors of civil war. Ten years after Attorney General Meese first acted, Congress made possible their adjustment of status. In 1989, following Tiananmen Square, the Bush Administration granted Deferred Enforced Departure to 80,000 Chinese students studying here; three years later, Congress paved the way for their green card status through the Chinese Student Protection Act. The point is always the same and remains instructive today: Executive Action in immigration is always a prelude to congressional legislation, not a substitute for it nor a barrier to its enactment.

President Obama is also in a bind now and of his own doing. He had promised to take executive action well before the midterm elections, but delayed doing so after being persuaded by Democratic Senators who were facing defeat such as Mark Pryor and Kay Hagan, and who in any event lost on November 2, 2014. Obama’s delay in reforming the broken immigration system through executive action thus backfired. The authors believe that had he taken immigration action prior to the election, it may have energized some of his base who could have turned up in the election. Perhaps, Mark Udall of Colorado may not have lost if he had been less ambivalent about immigration,   and if Obama had been able to implement a major historic immigration initiative. The deferred action initiative for immigrant youth prior to the Presidential election in 2012 certainly helped Obama’s victory. Obama had promised immigration reform to the Hispanic community and has to live up to that promise in order to secure his legacy, and to improve the chances of Democratic Presidential candidates in 2016. It would be harder for him to implement administrative immigration reform now that his party has lost control of the Senate, but he still has the authority to do so and he must.

The political imperative for executive action is undeniable. According to an analysis of census data by the Center for American Progress, the Latino population in America increased by 43% in the first decade of the 21st century.  This year, 24.8 million Latinos were eligible to vote; in terms of eligible voters, they accounted for 11.3% of the entire population.  Over the next four years, experts anticipate that more than 4 million Latino voters will be added to the rolls. This is a 17% increase in time for the 2016 election. The potential impact in key battleground states could be decisive. In Florida alone, projections by the Center for American Progress are that 600,000 Hispanics (as compared to 125, 000 new Anglo voters) will be eligible to vote in the next presidential election. In Texas, a state without which it would be virtually impossible for the GOP to win the White House, roughly 900,000 new Hispanic voters are expected to join the electorate by 2016, washing away the projected Anglo voter increase of 185,000.  Remember also that more than 90% of Latinos under age 18 are US citizens and that 800,000 Latinos become voter eligible each year as the Anglo share of the American electorate continues to fall each election cycle

There is a political opportunity here for the Republicans if they can recognize it. The re-election of two Hispanic Republican Governors - Susan Martinez in New Mexico and Brian Sandoval in Nevada - show that the Hispanic vote can no longer be taken for granted.  Texas Attorney General Greg Abbott won 44% of the Hispanic vote in thumping Democratic State Senator Wendy Davis by 30 points. In Georgia, Republican Governor Nathan Deal rode to re-election in no small part on the basis of 47% of the Hispanic vote while Senator-elect David Perdue defeated his Democratic challenger Michelle Nunn, daughter of former Senator Sam Nunn, having earned 42% of the Hispanic vote. In an election eve poll by Latino Decisions,  some 67% of those surveyed revealed that immigration was either the most or one of the most important issues. For those political junkies interested in a state by state breakdown, we offer this also for their reading pleasure. If the Republicans recognize that they can woo the Hispanic electorate in their favor  in light of these recent trends, it would be in their best interest to focus on passing comprehensive immigration legislation even while Obama takes executive action.

In 1924, in a vain effort to tap down the anticipated political influence of surging Jewish and Catholic immigrant populations from Southern and Eastern Europe, the Republican Party created a national origins quota using 1890 as a baseline population year to increase Protestant migration from Northern and Western Europe.  This remained in effect until its abolition in 1965. But, it did not work. The children and grandchildren of those disfavored ethnic and religious groups who had already made it to the New World before the gates closed did not forget this slap in the face and became the cornerstone of a New Deal coalition that swept the Democratic Party to national victory in 5 straight presidential elections. For the Republican Party to block President Obama now would be to repeat that historic mistake and consign itself to minority status on the presidential level for decades to come. It would be a political miscalculation of epic proportions. The stakes are no less high for the Democrats. No longer competitive in the states of the Old Confederacy, if they want to retain the electoral college advantage and popular vote majority they have enjoyed in the last 6 presidential elections, the Democratic Party must seize and hold the high ground in  the key states of Florida, Arizona, Nevada, Colorado, New Mexico as well as retain their dominant position in California. Much as civil rights has spelled their political irrelevance in the Old South, immigration can be their salvation in the battleground swing states where the Hispanic vote is and will remain the path to power. Both political parties have a vested interest in a robust embrace of immigration reform. For America’s sake, let us devoutly wish that they realize it.
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Fogo de Chao v. DHS: A Significant Decision for L-1B Specialized Foreign Chefs and Beyond

10/26/2014

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

The best way for a great nation of immigrants such as America to showcase its richness and diversity is through fine ethnic restaurants. A better appreciation of different cuisines can also foster tolerance and social harmony. Cities and towns become more interesting and thrive if they have restaurants with diverse cuisines. For such restaurants to exist, though, there needs to be an immigration policy that would allow restaurants to access foreign specialty chefs. This unfortunately is not the case. The United States Immigration and Citizenship Services (USCIS) views applications for chefs under the limited and narrowly drawn nonimmigrant visa categories with a jaundiced eye. One such pathway for chefs is the L-1B visa for specialized knowledge employees who are being transferred from a foreign entity to a qualifying US entity.  The Brazilian restaurant chain Fogo de Chao successfully brought in 200 specialty chefs on the L-1B visa, when the USCIS changed its mind and denied one of their visas. The restaurant appealed the denial.

On October 21, 2014, the United States Court of Appeals for the District of Columbia Circuit in  Fogo de Chao v. DHS, No. 13-5301, skewered the USCIS for denying the L-1B visa to a Brazilian churrasqueiro or gaucho chef.  Fogo de Chao contended that it sought to recreate for its customers in the United States an authentic churrascaria experience, and it did so by employing a number of gaucho chefs from Brazil who learned this style of cooking first hand by growing up in the Rio Girande do Sul region and through training and at least two years of experience in Fogo de Chao’s Brazilian restaurants. A gaucho chef who possessed this knowledge would be capable of i) preparing and cooking five to six skewers of meat on an open grill; ii) circulating through the dining room to carve meats for guests; iii) educating those guests about both the cuts of meat being served and gaucho culinary and cultural traditions, and iv) monitoring the estimated future demand for food over the course of the evening.

The key issue in Fogo was whether a foreign national chef could gain such specialized knowledge through one’s own cultural traditions, upbringing or life experience. The USCIS, including its Administrative Appeals Office, held that one’s own cultural upbringing falls within the realm of general knowledge rather than specialized knowledge, and thus such a chef would not qualify for an L-1B visa. The Court of Appeals in Fogo disagreed with the USCIS’s  rather wooden application of the law. (Many immigration practitioners like me will take great delight in the scolding given to the USCIS for  being so wooden as we have experienced this tendency first hand!) The Fogo Court held that there was nothing in INA section 214(c)(2)(B) which precludes culturally acquired knowledge as a form of specialized knowledge. That INA section defines specialized knowledge in a rather circular way, as follows:
…an alien is considered to be serving in a capacity involving specialized knowledge with respect to a company if the alien has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company
A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”. Most are deterred from seeking review of a “wooden” decision in federal court to challenge an erroneous decision of the USCIS because of the Chevron deference the court will give to the government’s interpretation of a particular visa statutory provision.  The Fogo Court  gave no such deference because the USCIS regulation at 8 CFR section 214.2(l)(1)(ii)(D) merely parroted the statutory L-1B definition in the same circular manner, and a parroting regulation deserves no deference. Gonzales v Oregon, 546 US 243, 257 (2006). Instead, the Court applied the lower standard under Skidmore v. Swift & Co, 323 U.S. 134 (1944) where the weight accorded to an administrative interpretation or judgment “depends upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those facts which give it power to persuade, if lacking power to control.”   Even under the lower Skidmore standard, the Fogo Court held that the  Administrative Appeals Office lacked the power to persuade that it could categorically exclude cultural knowledge as a basis for specialized knowledge.

Also noteworthy in Fogo  was  the government’s  dismissal of  the relevance of the economic hardship the restaurant  would suffer if it had to train another employee to perform the gaucho chef’s proposed duties. The Fogo Court disagreed, emphasizing that economic inconvenience is sometimes the most concrete evidence that can be used to determine whether knowledge is specialized. According to the Fogo Court: “Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts….That specialized knowledge may ultimately be a ‘relative and empty idea which cannot have plain meaning’...is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.” Id. at 28 (citations omitted).

Although Fogo applied to a Brazilian gaucho chef, it can arguably be applied to other occupations involving specialized knowledge. Skills gained through certain cultural practices may be relevant in determining specialized knowledge in other settings, such as Japanese management techniques. Similarly, acquiring deep knowledge in a particular software application through another employer can equip the L-1B visa applicant with specialized knowledge that can stand out in comparison to others. Moreover, demonstrating economic hardship as a way to prove specialized knowledge has gained more force after Fogo. The 1994 Puleo Memorandum was resurrected in Fogo, which endorsed a dictionary definition of the terms “special” and “advance” rather than soley tether specialized knowledge to the company’s products or processes. Fogo has also paved the way to argue that the USCIS’s interpretation of specialized knowledge does not deserve Chevron deference.   Finally, Fogo ought to potentially have more precedential value than other circuit court decisions since under  28 U.S.C. §1391(e)(1)(B) a petitioner could seek review in the U.S. District Court for the District of Columbia as the Administrative Appeals Office is located in the District of Columbia.

In recent times, the USICS has had the upper hand in L-1B visa adjudications by literally reading specialized knowledge out of the statute. Fogo  thus comes as a breath of fresh air and should hopefully temper the USCIS’s zeal in “woodenly” debarring specialized knowledge workers who can otherwise bring great value to America. We all need to forcefully deploy the hidden nuggets in Fogo to restore the more commonsensical definition of specialized knowledge.
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The Walking Dead: Why Courts of Appeals Should Not Defer to BIA or Attorney General Precedent Decisions That Have Already Been Vacated by Another Court of Appeals

10/20/2014

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by David Isaacson, Associate with ABIL member, Cyrus D. Mehta
The Insightful Immigration Blog

In my previous post Burning Down the House: The Second and Third Circuits Split on Whether Arson Not Relating to Interstate Commerce is an Aggravated Felony, I raised the issue of whether the Court of Appeals for the Second Circuit in Luna Torres v. Holder, No. 13-2498 (August 20, 2014), should have deferred as it did to the decision of the Board of Immigration Appeals (BIA) in Matter of Bautista, 25 I&N Dec. 616 (BIA 2011), after the Court of Appeals for the Third Circuit had already vacated that decision in Bautista v. Attorney General, 744 F.3d 54 (3d Cir. 2014).  As I was reminded by Matthew L. Guadagno in the comments to that post, it is a conventionally accepted rule that “when a precedent decision of the Board is struck down by a circuit court, that precedent decision continues to be followed by the Board in all other circuits unless the Board renders a new decision.”  But one of the points I had been trying to make in Burning Down the House, although evidently not clearly enough, is that the federal courts should not give deference to the Board’s common practice in this regard.  This follow-up post attempts to clarify my thinking on the matter.

As I noted in Burning Down the House, it seems in some sense disrespectful of the Third Circuit’s decision vacating Matter of Bautista for the Second Circuit to have said, as it did, that “Matter of Bautista . . . governs Luna’s case.”  Arguably, there was no extant decision and judgment of the BIA in Matter of Bautista which could so govern, since it had already been vacated by a court of competent jurisdiction.  The precedential decision in Matter of Bautista, in an important sense, no longer existed by the time of the Second Circuit’s decision.  And while the BIA had reached the same result in its unpublished decision in Luna Torres’s case as in Matter of Bautista, the Second Circuit had previously held, in Rotimi v. Gonzales, 473 F.3d 55, 56 (2d Cir. 2007), that “a nonprecedential decision by a single member of the BIA should not be accorded Chevron deference” (that is, deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)).  Thus, the nonprecedential decision in Luna Torres’s case cannot, under Rotimi, have been what the Second Circuit was deferring to in its opinion.  Deference was evidently given to Matter of Bautista itself, and yet one might reasonably ask why the Second Circuit should have felt itself bound to defer to a precedential decision that had already been vacated by another Court of Appeals.

The general rule, as has been recognized by the Second Circuit and by other courts, is that “vacatur dissipates precedential force,” In re: Bernard Madoff Inv. Securities LLC, 721 F.3d 54, 68 (2d Cir. 2013).  That is, “vacated opinions are not precedent.”  Asgeirsson v. Abbott, 696 F.3d 454, 459 (5th Cir. 2012).  Or, as the Ninth Circuit has put it more emphatically, “a decision that has been vacated has no precedential effect whatsoever.”  Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) (emphasis in original).  These opinions referred to the vacating of a federal court decision, not the vacating of a BIA decision, but logically the principle should apply to a vacated BIA decision as well.

To vacate, after all, has been defined as “to annul; to cancel or rescind; to render an act void; as, to vacate an entry of record, or a judgment.”  Matter of Bautista was annulled, was cancelled, was rescinded, by the Court of Appeals for the Third Circuit, in a case over which that Court properly had jurisdiction.  It was, one might say, dead, having been killed by a competent authority.  And yet, the Second Circuit in Luna Torres deferred to the BIA’s vacated decision in Matter of Bautista as a precedent nonetheless—perhaps because the argument was not made that it ought not do so.  One might refer to Matter of Bautista, under such circumstances, as a zombie precedent, one which has risen from the grave to walk the earth again even after being killed.

To be sure, a vacated decision can under some circumstances have “persuasive authority” even though it is not binding.  Brown v. Kelly, 609 F.3d 467, 477 (2d Cir. 2010).  The analog of such persuasive authority in the context of a BIA decision under review by a Court of Appeals, however, would be not Chevron deference, but the more limited form of deference given under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to an administrative opinion with the “power to persuade,” Skidmore, 323 U.S. at 140, which some Courts of Appeals have found applicable to non-precedential BIA decisions, as in Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014), Siwe v. Holder, 742 F.3d 603, 607 (5th Cir. 2014), and Latter-Singh v. Holder, 668 F.3d 1156, 1160 (9th Cir. 2012).  (The Second Circuit has reserved the question whether unpublished, non-precedent BIA opinions are even entitled to Skidmore deference, for example in Mei Juan Zheng v. Holder, 672 F.3d 178, 186 n.4 (2d Cir. 2012).) Even if a zombie precedent still walks the earth in some form, therefore, it should not have the same force and effect as a precedential opinion that has not been vacated, killed, by a Court of Appeals.

The somewhat obscure question of whether certain arson crimes constitute aggravated felonies is far from the only context in which zombie precedents play a significant role in immigration law.  The decision of former Attorney General Michael Mukasey in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), for example, which altered the long-standing approach for determining whether certain convictions qualified as crimes involving moral turpitude, was vacated by the Court of Appeals for the Fifth Circuit in Silva-Trevino v. Holder, 742 F.3d 197 (5th Cir. 2014).  The American Bar Association has written a letter to Attorney General Eric Holder urging him to withdraw Matter of Silva-Trevino, but Attorney General Holder appears content to let the process play out in the Courts of Appeals.  (Now that Attorney General Holder has announced his impending resignation, we may eventually get to see whether his successor feels differently.)  So for the moment, under the BIA’s conventional practice, Matter of Silva-Trevino would continue to govern in the circuits whose Courts of Appeals have not yet specifically rejected it.  Although vacated by the Fifth Circuit, Matter of Silva-Trevino may continue its existence as a zombie precedent.  If the Second Circuit, in a future case, were to address an unpublished BIA opinion purporting to rely on Matter of Silva-Trevino, one might expect, based on the Second Circuit’s decision in Luna-Torres, that the Second Circuit would continue to defer to the rule of Matter of Silva-Trevino despite that precedent’s zombie status, rather than refusing under Rotimi to give Chevron deference to the unpublished opinion which had purported to rely on Matter of Silva-Trevino. One might also hope, however, that the Second Circuit would handle the matter differently, if an alternative possibility were brought to its attention.

There is indeed an alternative to respecting zombie precedents, which would still allow the BIA to perform its functions as an administrative agency entitled generally to Chevron deference, while giving more appropriate weight to the actions of a Court of Appeals that has overturned a precedent decision despite such deference.  As discussed in Burning Down the House, the Second Circuit could in Luna Torres have vacated the nonprecedential decision in Luna Torres’s case and remanded to the BIA for the issuance of a precedential decision, just as it had vacated the nonprecedential BIA decision in Rotimi and remanded for the issuance of a precedent decision.  The Court of Appeals would thereby have said to the BIA, in effect, that it should, in light of the Third Circuit’s decision in Bautista, issue a new precedential decision, Matter of Luna Torres.  The BIA could then have determined in this new decision not only whether it continued to stand by its reasoning from Matter of Bautista in light of the Third Circuit’s contrary reasoning, but whether it was troubled by the prospect of its ruling being valid only in some judicial circuits but not others, and whether it might therefore find it appropriate to acquiesce in the Third Circuit’s ruling in the interest of national uniformity.  It does not appear that this possibility was considered by the Second Circuit in Luna Torres.

It is not as though the BIA’s action, when presented with such a choice, would necessarily be foreordained.  Admittedly, the BIA has in some instances made a precedential choice to reaffirm the reasoning of a prior precedent even after its rejection by multiple circuits.  In Matter of E.W. Rodriguez, 25 I&N Dec. 784 (BIA 2012), for example, the BIA reaffirmed Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010), after its holding regarding the ineligibility of certain Lawful Permanent Residents for waivers of inadmissibility under INA §212(h) had been rejected by multiple Courts of Appeals, and indicated that Koljenovic would continue to be followed in circuits that had not rejected it. However, in some instances, the BIA has also been known to reverse course following rejection of its precedent by one or more Courts of Appeals.

In Matter of Silva, 16 I&N Dec. 26 (BIA 1976), for example, the BIA acquiesced in the Second Circuit’s decision in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), regarding the availability of relief under former INA §212(c) to certain lawful permanent residents who had not departed from the United States following a criminal conviction.  In so doing, the BIA declined to follow its own earlier contrary decision in Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971).

Similarly, in Matter of Marcal Neto, 25 I&N Dec. 169 (BIA 2010), the BIA overruled Matter of Perez Vargas, 23 I&N Dec. 829 (BIA 2005), which had barred Immigration Judges from evaluating the continuing validity of an I-140 petition following the exercise of portability under INA §204(j), after the rejection of Perez Vargas by several Courts of Appeals.  Matter of Perez Vargas had by that time been vacated by the Court of Appeals for the Fourth Circuit in Perez-Vargas v. Gonzales, 478 F.3d 191 (4th Cir. 2007), and thus was already what I have called a zombie precedent.  The conventional view would say that Courts of Appeals should have deferred to Matter of Perez-Vargas until Matter of Marcal Neto was decided; I would argue that after Perez-Vargas v. Gonzales was decided, unpublished decisions relying on Matter of Perez Vargas were no longer entitled to deference, since Matter of Perez Vargas itself no longer existed.  In the end, the BIA did decide to retreat from its zombie decision and adopt the view of the Court of Appeals for the Fourth Circuit (as well as other Courts of Appeals that had addressed the matter).

In some cases, the BIA might, after a Court of Appeals decision rejecting its analysis of an issue, find some third approach that incorporated the wisdom of the Court of Appeals decision without following it exactly.  In Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011), for example, the BIA overruled Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), in part following its rejection by some circuit Courts of Appeals.  The BIA in Matter of Alyazji did not entirely adopt the theory of those Courts of Appeals that an adjustment of status was simply not an “admission” for purposes of determining deportability under INA §237(a)(2)(A)(i) for conviction of a crime involving moral turpitude committed within five years after the date of admission.  The BIA in Alyazji accepted a similar result in most contexts and retreated from Shanu, however, by holding that the date of admission for purposes of INA §237(a)(2)(A)(i) deportability was “the date of the admission by virtue of which the alien was present in the United States when he committed his crime”—so that the clock would run from a prior admission as a nonimmigrant that had been followed by an adjustment of status, and would not restart anew from the adjustment of status, unless the person being adjudged deportable had adjusted status after entering the United States without inspection (and thus had no prior admission by virtue of which he was present in the United States at the time). Here as well, therefore, the BIA did not simply insist that it would adhere to a prior precedent decision until that precedent decision was rejected by every Court of Appeals or by the Supreme Court, in the way that the conventional view of what I have called zombie precedents seems to suggest.

In a case where the zombie precedent was originally decided by an Attorney General, it seems even less likely that the BIA would continue to follow it in a precedential decision if informed by a Court of Appeals that it had that option.  Matter of Silva-Trevino was a departure by former Attorney General Michael Mukasey from many years of BIA precedent, and there is no apparent reason that the BIA, or current Attorney General Eric Holder, or his successor, should be so enamored of Silva-Trevino following its rejection by multiple Courts of Appeals as to insist on it in a new precedential decision.  A refusal by Courts of Appeals to defer to Matter of Silva-Trevino as a zombie precedent, unless its reasoning were reaffirmed in a precedent decision made free of the original decision’s binding force, might therefore hasten its demise substantially.

We know from fiction such as The Walking Dead and Night of the Living Dead that zombies are not, ordinarily, thought to be especially appealing or worthy beings.  For the reasons explained in this blog, zombie precedents should be given no more respect.  If the BIA wants courts to defer to the reasoning of a precedent decision that has already been given a proper burial by a Court of Appeals, the BIA should be required to afford that reasoning new life through a new precedent decision, which gives proper consideration to the contrary views of the Court of Appeals that vacated the original decision and explains why those contrary views have been disregarded.
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Two Aces Up President Obama's Sleeve to Achieve Immigration Reform Without Congress -- Not Counting Family Members and Parole in Place

6/29/2014

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

Nothing more poignantly describes the current humanitarian crisis at the Southwest border than a recent New York Times article describing the journey of Alejandro, 8, who came to the United States on his own with only his birth certificate looking for his parents who are somewhere in San Antonio or an aunt in Maryland. The story of an adorable, courageous and resourceful 8 year old braving a dangerous journey in search of his parents will pull at the heartstrings of any parent.

There may be many reasons for this crisis and what may draw unaccompanied young children to the United States, but one reason for this is our broken immigration system. This system does not allow people accessible pathways to come to the United States legally or gain legal status.  Even those who are here as permanent residents or naturalized citizens have to wait years before their loved ones can join them due to the backlogs in our family and employment-based immigration preferences.  Until recently there was some hope that the House would pass its own version of immigration reform after the Senate passed S. 744 last year. Those hopes have now been dashed.

The impetus to preserve family unity is pervasive and exists across all cultures, and so is the deep love that parents have for their children and that children have for their parents. Many of the children fleeing violence in Central American countries are trying to unite with parents living in the United States. However, the broken immigration system does not allow families to unite through legal means Instead of beefing up the border with more enforcement; President Obama can bring some balance to the immigration system through bold administrative measures that will promote family unification in a legal and orderly manner. While there are several proposals on the table, one that resonates is to not count derivative family members in the employment and family preferences. The solution is simple but elegant: Count all members of a family together as one unit rather than as separate and distinct individuals. Do that and systemic visa retrogression, resulting in family members waiting endlessly, will quickly become a thing of the past.

Not Counting Family Members

Section 203(d) of the Immigration and Nationality Act (INA) is the provision that deals with family members. Let us examine what section 203(d) says: “A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101 (b)(1) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.” There is nothing in section 203(d) that explicitly provides authority for family members to be counted under the preference quotas. While a derivative is “entitled to the same status, and the same order of consideration” as the principal, nothing requires that family members also be given numbers. If Congress allocates a certain number of visas to immigrants with advanced degrees, it makes no sense if half or more are used up by family members.

There is no regulation in 8 Code of Federal Regulations (C.F.R.) instructing what section 203(d) is supposed to be doing. Even the Department of State’s regulation at 22 C.F.R. 42.32 only parrots section 203(d) and states that children and spouses are “entitled to the derivative status corresponding to the classification and priority date of the principal.” 22 C.F.R. 42.32 does not provide further amplification on the scope and purpose of section 203(d). We acknowledge that section 203(d) derivatives are wholly within the preference system and bound by its limitations. They are not independent of numerical limits, only from direct limitations. It is the principal alien through whom they derive their claim who is counted and who has been counted. Hence, if no EB or FB numbers were available to the principal alien, the derivatives would not be able to immigrate either. If they were exempt altogether, this would not matter. There is a difference between not being counted at all, which we do not argue, and being counted as an integral family unit as opposed to individuals, which we do assert. We seek not an exemption from numerical limits but a different way of counting such limits.

If the Executive Branch wanted to reinterpret section 203(d), there is sufficient ambiguity in the provision for it do so without the need for Congress to sanction it. A government agency’s interpretation of an ambiguous statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it.  Brand X  can be used as a force for good. For instance, in  Sciallaba v. Osorio: Does the Dark Cloud Have A Silver Lining, Cyrus  Mehta and David Isaacson propose that notwithstanding the Supreme Court’s recent decision concerning  section 203(h)(3) of the INA, where the Court agreed with the  Board of Immigration Appeal’s (BIA) more restrictive interpretation of this Child Status Protection Act provision in Matter of Wang, 25 I&N Dec. 28 (BIA 2009),  the BIA has the power to reverse Matter of Wang under Brand X. Matter of Wang held that not all children who are unable to protect their age under the Child Status Protection Act can claim the earlier priority date under which their parent immigration to the United States.

As the plurality opinion in Sciallaba v. Osorio explained in its conclusion:
This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.
Kagan slip op. at 33.

Thus, when a provision is ambiguous such as section 203(d), the government agency may reasonably interpret the provision in a reasonable manner. In our prior article relating to not counting relatives, Why We Can’t Wait:   How President Obama Can Erase Immigrant Visa Backlogs With A Stroke Of A Pen, http://www.ilw.com/articles/2012,0201-endelman.shtm, we discussed  that  there are admittedly some statutory provisions which might be read as pointing against an interpretation to not count family members. Most notably, it has also been pointed to us that  INA section 202(b) permits a spouse or child to “cross charge” to the foreign state of either of the parents or the spouse to avoid family separation, and this may suggest that derivatives must be individually counted for purposes of the per country cap. Still, this too can be interpreted differently under Chevron and Brand X, namely, that the entire family be counted as single unit to the other spouse or parent’s country. Of course, the statutory provision which militates in favor of such an interpretation is most notably the text of INA §203(d) itself. If this happened, the EB and FB preferences could instantly become “current.” The backlogs would disappear. The USCIS might even have to build a new Service Center!

Expansion of Parole in Place

 The very idea of “parole” in section 212(d)(5) of the INA is linked to  allowing deserving aliens to come to the United States for “urgent humanitarian reasons or significant public benefit.” In most cases, we think this only applies to people who are not yet here. Not so. Digging a bit deeper into the INA, we find in section 235(a)(1) this golden nugget: an applicant for admission is “an alien present in the United states who has not been admitted…” Putting all of this together, there is nothing in law or logic that prevents the full embrace and unfettered application of parole to those already in the United States outside the color of law. The invocation of ‘parole in place” is another example of using new interpretive techniques to mine the existing law for greater benefits. It is the antidote to the inability of Congress to enact comprehensive immigration reform. There should be no concern over a possible infringement of separation of powers for the authority of Congress over the legislative process is being fully respected.  Part of the responsibility of the President to enforce the laws is to adopt an understanding of them that best promotes what Congress had in mind when it passed the law in the first place. Parole in place does precisely that. This is not amnesty. The requirements for obtaining legal status on a permanent basis apply in full. It is merely an attempt to think of the law we have not purely or primarily as an instrument of enforcement but as a platform for remediation of the human condition. Indeed, is this not how law in the American tradition is meant to function?

The creation of new solutions by federal agencies has become the norm rather than the exception in our system of governance if for no other reason that the sheer multiplicity of issues, as well as their dense complexity, defies traditional compromise or achievable consensus which are the hallmarks of Congressional deliberation. They require timely and directed executive action as a formula for keeping present problems from getting worse. This is exactly why Congress authorized the Attorney General to grant employment authorization without terms or limitations pursuant to INA 274A (h) (3)(B), a provision that should be linked with the robust exercise of the Executive’s parole power. The INA leaves the granting of parole completely up to the discretion of the Attorney General, now shifted to the DHS. It is hard to imagine a more open invitation to Executive rule- making to provide when parole can be extended, as there is absolutely nothing in the INA that would contradict a DHS regulation allowing parole in place. Not only is it appropriate for the DHS to formulate immigration policy on highly minute technical issues of surpassing moment such as parole in place, but the Constitution expects that to happen. Indeed, without this, who would do it? Far from crossing the line and infringing the authority of Congress, what we ask the DHS to do augments Congressional prerogative by providing a practical way for them to function.

In addition to not counting derivatives, the Obama Administration can extend parole in place (PIP) that has been granted to military families to all immediate relatives of US citizens, which would allow them to adjust in the US rather than travel abroad and risk the 3 and 10 year bars of inadmissibility under sections 212(a)(9)(B)(i)(I) and (II) of the INA. Such administrative relief would be far less controversial than granting deferred action since immediate relatives of US citizens are anyway eligible for permanent residence. The only difference is that they could apply for their green cards in the US without needing to travel overseas and apply for waivers of the 3 and 10 year bars.

The concept of PIP can be extended to other categories, such as beneficiaries of preference petitions, which the authors have explained in The Tyranny of Priority Dates. However, they need to have demonstrated lawful status as a condition for being able to adjust status under INA section 245(c)(2) and the current memo granting PIP to military families states that “[p]arole does not erase any periods of unlawful status.” There is no reason why this policy cannot be reversed. The grant of PIP, especially to someone who arrived in the past without admission or parole, can retroactively give that person lawful status too, thus rendering him or her eligible to adjust status through the I-130 petition as a preference beneficiary. The only place in INA section 245 where the applicant is required to have maintained lawful nonimmigrant status is under INA section 245(c)(7), which is limited to employment-based immigrants. Family-based immigrants are not so subject. For purposes of section  245(c) of the INA, current regulations already define “lawful immigration status” to include “parole status which has not expired, been revoked, or terminated.” 8 C.F.R. section 245.1(d)(v). Indeed, even if one has already been admitted previously in a nonimmigrant visa status and is now out of status, the authors contend  that this person should be able to apply for a rescission of that admission and instead be granted retroactive PIP. Thus, beneficiaries of I-130 petitions, if granted retroactive PIP, ought to be able adjust their status in the US.

There is also no reason why PIP cannot extend to beneficiaries of employment I-140 petitions. If this is done, would such persons be able to adjust status to lawful permanent resident without leaving the USA? In order to do that, they not only need to demonstrate lawful status, but also  to have maintained continuous lawful nonimmigrant status under INA section 245(c)(7), as noted above.  Is there a way around this problem? At first glance, we consider the possibility of using the exception under INA section 245(k) which allows for those who have not continuously maintained lawful nonimmigrant status to still take advantage of section 245 adjustment if they can demonstrate that they have been in unlawful status for not more than 180 days since their last admission. We would do well to remember, however, that 245(k) only works if the alien is “present in the United States pursuant to a lawful admission.”  Is parole an admission? Not according to INA section 101(a)(13)(B). So, while retroactive PIP would help satisfy the 180 day requirement imposed by INA section 245(k)(2), it cannot substitute for the lawful admission demanded by section 245(k)(1). Even if an out of status or unlawfully present I-140 beneficiary who had previously been admitted now received nunc pro tunc parole, the parole would replace the prior lawful admission. Such a person would still not be eligible for INA section 245(k) benefits and, having failed to continuously maintain valid nonimmigrant status,  would remain unable to adjust due to the preclusive effect of section 245(c)(7). Similarly, an I-140 beneficiary who had entered EWI and subsequently received retroactive parole would likewise not be able to utilize 245(k) for precisely the same reason, the lack of a lawful admission. Still, the grant of retroactive PIP should wipe out unlawful presence and the 3 and 10 year bars enabling this I-140 beneficiary to still receive an immigrant visa at an overseas consular post without triggering the bars upon departure from the US. Thus, while the beneficiary of an employment-based petition may not be able to apply for adjustment of status, retroactive PIP would nevertheless be hugely beneficial because, assuming PIP is considered a lawful status, it will wipe out unlawful presence and will thus no longer trigger the bars upon the alien’s departure from the US.

Our proposal to grant PIP retroactively so that it erases unlawful presence can also assist people who face the permanent bar under section 212(a)(9)(C) of the INA. If PIP can retroactively erase unlawful presence, then those who entered the country without inspection after accruing unlawful presence of more than 1 year will not trigger the bar under this provision if the unlawful presence has been erased.

One of the biggest contributors to the buildup of the undocumented population in the US has been the 3 year, 10 year and permanent bars.  Even though people are beneficiaries of immigrant visa petitions, they do not wish to risk travelling abroad and facing the bars.  Extending PIP to people who are in any event in the pipeline for a green card would allow them adjust status in the US or process immigrant visas at consular posts, and become lawful permanent residents. These people are already eligible for permanent residence through approved I-130 and I-140 petitions, and PIP would only facilitate their ability to apply for permanent residence in the US, or in the case of I-140 beneficiaries by travelling overseas for consular processing without incurring the 3 and 10 year bars. PIP would thus reduce the undocumented population in the US without creating new categories of relief, which Congress can and should do through reform immigration legislation.

Achieving Something Close to Comprehensive Immigration Reform Without Congress

Not counting family members and expanding parole in place can be a potent combination for nearing comprehensive immigration reform administratively in the face of Congressional inaction. The waits in the EB and FB preferences will disappear, and family members waiting abroad can unite with their loved ones more quickly and need not be forced to take the perilous path across the Southwest border in desperation. The expansion of PIP to beneficiaries of approved I-130 and I-140 petitions would allow them to obtain lawful permanent residence, rather than being stuck in permanent limbo due to the 3 and 10 year bars. After removing the obstacle of the bars, the grant of lawful permanent residence would be more rapid as there would be no backlogs in the FB and EB preferences, and loved ones from abroad can unite with newly minted immigrants in the United States through an orderly and legal process.

Our proposals fall squarely within the mainstream of the American political tradition, animated by the spirit of audacious incrementalism that has consistently characterized successful reform initiatives. We acknowledge that immigration reform passed by Congress would solve more problems in a fundamental way. We seek less dramatic but no less meaningful advances through the disciplined invocation of executive initiative only because these are the ones that can be achieved sooner and with greater predictability. Our justifiable zeal for immigration reform must not blind us to the benefit of more moderate proposals. We are confident that future progress will follow in a way that minimizes disruption and maximizes acceptance. We hold fast to the distinction between prudence and absolutism, between incremental reform and revolutionary upheaval. In the long run, the American experience has been characterized more by the former than the latter and it has led to a fruitful stability that has been the envy of the world.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)
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Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?

6/10/2014

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by Cyrus D. Mehta, ABIL member and his Associate David Isaacson
The Insightful Immigration Blog

On June 9, 2014, the Supreme Court issued its ruling in Scialabba v. Cuellar de Osorio. (The case had previously been known as Mayorkas v. Cuellar de Osorio before Lori Scialabba was appointed as Acting Director of USCIS, replacing former Director Alejandro Mayorkas.)  The Court ruled in Cuellar de Osorio that the BIA’s previous interpretation of the Child Status Protection Act (CSPA), as set out in Matter of Wang, 25 I&N Dec. 28 (BIA 2009), was a reasonable interpretation of an ambiguous statute.  In particular, the Court deferred to the BIA’s narrow interpretation of INA §203(h)(3), 8 U.S.C. §1153(h)(3), severely limiting which derivative beneficiaries of visa petitions could retain their parents’ priority dates.  This is a disappointing decision, but the details of the opinions in Cuellar de Osorio do leave room for some hope.

As discussed in several several previous posts on this blog, INA §203(h)(3) provides for “automatic conversion” in the cases of certain beneficiaries of preference visa petitions whose age, even as adjusted under the CSPA to account for the time taken to process the visa petition, is determined to be above 21.  Some principal and derivative beneficiaries, according to the statute, will under these circumstances have their petitions automatically converted to the appropriate category, and retain the original priority date.  The question in Cuellar de Osorio and Matter of Wang was who gets to benefit from this automatic conversation.  The en banc Court of Appeals for the Ninth Circuit in Cuellar de Osorio, as well as the Court of Appeals for the Fifth Circuit in Khalid v. Holder, had argued for a broad interpretation which allowed all derivative beneficiaries to benefit, as at least some of the language of the statute seemed to suggest.  The BIA in Matter of Wang, as well as the Court of Appeals for the Second Circuit in Li v. Renaud and an earlier Ninth Circuit panel decision in Cuellar de Osorio, had chosen narrower approaches, which in effect allowed automatic conversion and priority date retention only for the principal and derivative beneficiaries of family 2A preference petitions, not the derivative beneficiaries of other categories of preference petitions.  The Supreme Court took the Cuellar de Osorio case to resolve this disagreement.

 There was no single Supreme Court majority opinion in Cuellar de Osorio, but a total of five justices accepted the BIA’s narrow interpretation of the statute as set out in Matter of Wang, for two different sets of reasons.  The plurality opinion was written by Justice Kagan, and supported by Justices Kennedy and Ginsburg.  Chief Justice Roberts, joined by Justice Scalia, authored an opinion concurring in the judgment, but for somewhat different reasons.  Justices Sotomayor and Alito authored dissenting opinions; Justice Sotomayor’s dissent was joined by Justice Breyer in its entirety and by Justice Thomas except with regard to one footnote.

To appreciate the different opinions in Cuellar de Osorio, it is helpful to review the text of §1153(h)(3), quoted in the opinion of the Chief Justice and in a footnote to the plurality opinion.  It states:
If the age of an alien is determined under paragraph [1153(h)](1) [the CSPA provision the adjusts the age of a preference petition beneficiary to compensate for elapsed processing time] to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
The different opinions in Cuellar de Osorio took different views of what Congress may have meant in prescribing that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

Justice Kagan’s plurality opinion described §1153(h)(3) as “Janus-faced”.  Kagan slip op. at 14.  The first half of the provision, she said, looks toward a broader interpretation of the sort supported by the Ninth Circuit, but the second half describes a remedy, automatic conversion, which Justice Kagan and the plurality saw as most naturally applying only when the new petition to which automatic conversion would occur would have the same petitioner and same beneficiary.  Given this “internal tension”, Justice Kagan said, the BIA was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)—often abbreviated as “Chevron deference”.  As Justice Kagan and the plurality saw it, there are “alternative reasonable constructions” of §1153(h)(3), “bringing into correspondence in one way or another the section’s different parts.  And when that is so, Chevron dictates that a court defer to the agency’s choice—here, to the Board’s expert judgment about which interpretation fits best with, and makes most sense of, the statutory scheme.”  Kagan slip op. at 14.  As the plurality opinion explained in its conclusion:
This is the kind of case Chevron was built for.  Whatever Congress might have meant in enacting §1153(h)(3), it failed to speak clearly.  Confronted with a self-contradictory, ambiguous provision in a complex statutory scheme, the Board chose a textually reasonable construction consonant with its view of the purposes and policies underlying immigration law.  Were we to overturn the Board in that circumstance, we would assume as our own the responsible and expert agency’s role.  We decline that path, and defer to the Board.
Kagan slip op. at 33.

Chief Justice Roberts, joined by Justice Scalia, reached essentially the same conclusion as the three-Justice plurality led by Justice Kagan, but for different reasons.  Concurring in the judgment, the Chief Justice wrote that he did not see “conflict, or even internal tension . . . in section 1153(h)(3).”  Roberts slip op. at 2.  Rather, he “d[id] not think the first clause points to any relief at all.”  Id. at 3.  Instead, he described the second clause of §1153(h)(3) as “the only operative provision.”  Id. at 3-4. In that only operative provision, he took the view that beyond certain basic requirements, “Congress did not speak clearly to which petitions can “automatically be converted.”  Id. at 4.

The dissenting Justices, in contrast, were of the view that even if there was some ambiguity in the statute, it was not sufficient to justify the interpretation that the Board adopted in Matter of Wang.  While “Section 1153(h)(3) is brief and cryptic” and “may well contain a great deal of ambiguity, which the [BIA] is free to resolve,” Justice Alito wrote, it was at least clear that “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”  Alito slip op. at 2 (emphasis added in original).  The BIA, he contended, was “not free to disregard this clear statutory command.”  Id.  Justice Sotomayor, as well, argued in her dissent that because a reading of the statute was possible that gave effect to both the automatic conversion language and the statute’s broad description of who was eligible for automatic conversion, that reading should have been followed.  Because there were potential interpretations that “would treat §1153(h)(3) as a coherent whole,” she said, “the BIA’s construction was impermissible.”  Sotomayor slip op. at 9.

On the surface, the Supreme Court’s decision in Cuellar de Osorio is obviously disappointing for a great many immigrants who were hoping to recapture priority dates of petitions initially filed for their parents through automatic conversion.  Aged-out children who have waited patiently for many years for their parent’s priority date to become current are told that they must now go back to the beginning of the line on a new petition filed by their parent under the Family 2B preference—which for most of the world has a backlog of more than seven years as of the June 2014 Visa Bulletin, and is backlogged many years more for those chargeable to Mexico or the Philippines.  While it is an unfortunate decision from that perspective, however, Cuellar de Osorio does contain some seeds of hope for better outcomes in the future.

The first seed of hope, with respect to §1153(h)(3) itself, is the latitude which the Court has provided for the executive branch to reconsider its decision.  Justice Kagan’s plurality opinion is careful to state that “we hold only that §1153(h)(3) permits—not that it requires—the Board’s decision to so distinguish among aged out beneficiaries.”  Cuellar de Osorio slip op. of Kagan, J., at 21.  The concurring opinion of Chief Justice Roberts and Justice Scalia is not as explicit in this respect, but it describes its disagreement with the plurality as involving “a different view of what makes this provision ambiguous under Chevron” rather than going to the question whether the provision is ambiguous at all. Indeed, the Chief Justice criticized Justice Kagan’s “Janus-faced” metaphor of §1153(h)(3). “But when Congress assigns to an agency the responsibility for deciding whether a particular group should get relief, it does not do so by simultaneously saying that the group should and that it should not. Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice.” Id. at 2.   Thus, a majority of the Court agrees that the meaning of §1153(h)(3) is an ambiguity subject to Chevron deference, rather than suggesting, as the Second Circuit had done in Li v. Renaud, that a narrow reading of §1153(h)(3) is compelled by the statute.

When a statute is ambiguous in this way, the Supreme Court has made clear in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), the agency may reconsider its interpretation even after the courts have approved of it. Thus, the Court’s description of §1153(h)(3) as an ambiguous statute subject to Chevron deference to the BIA’s interpretation implies that the BIA could, even after Cuellar de Osorio, reverse its position in Matter of Wang.  So too could the Attorney General, on whose behalf the BIA ultimately acts, go against Matter of Wang and adopt a broader interpretation of §1153(h)(3).  As the INA provides, within the executive branch, “determination and ruling by the Attorney General with respect to all questions of law shall be controlling.”  INA §103(a)(1), 8 U.S.C. §1103(a)(1).  Ultimately, it is within the power of Attorney General Holder to save those beneficiaries who have waited in line for many years, and now find themselves pushed to the back of a new line that may be decades long.  Whether or not these results of the Wang interpretation affirmed in Cuellar de Osorio may be legally permissible, they are not desirable as a policy matter, and the Supreme Court has left the Attorney General the power to recognize this.  In light of the Obama Administration’s many noteworthy administrative reform measures in the face of Congressional inaction, the provisional waiver rule and Deferred Action for Childhood Arrivals being such examples, a broader interpretation of §1153(h)(3) would be consistent with these efforts.

Of course, Congress too could fix the problem, by redrafting the statute to make it clearer that all derivative beneficiaries whose adjusted age is over 21 can retain the principal beneficiary’s priority date.  This was done in section 2305(d)(5)(C) of  S. 744, the comprehensive immigration reform bill passed by the Senate, which unfortunately has not been brought to a vote in the House of Representatives.  But if Congress continues not to act, the executive branch has the power to remediate the unfairness of requiring those who have waited in line with their parents for many years to go to the back of a new line and start over from the beginning.

Another policy argument in favor of such a reversal of Matter of Wang which would be worth the consideration of the BIA or the Attorney General, or for that matter Congress, is that the Matter of Wang interpretation of §1153(h)(3), now affirmed in Cuellar de Osorio, reintroduces some of the arbitrariness which the enactment of the CSPA had sought to avoid.  The age-adjustment process under INA §203(h)(1), 8 U.S.C. §1153(h)(1), in effect subtracts from the adjusted age of a visa applicant the time during which a visa petition was pending.  If the adjusted age of a derivative applicant is under 21, the CSPA as interpreted in Wang and Cuellar de Osorio will allow the applicant to utilize a principal beneficiary parent’s priority date; otherwise, the benefit of the priority date will be lost entirely.  But that means that children whose parents were petitioned for on the same date, and whose parents’ priority dates become current simultaneously, may be treated in dramatically different fashion depending on how long it happened to take USCIS to process the petition on behalf of their parents during the time that no visa number was available.  The broader interpretation of §1153(h)(3) rejected by the BIA in Matter of Wang would have reduced this arbitrariness, by enabling even a child whose parent’s petition happens to be processed relatively quickly, and whose CSPA-adjusted age is therefore over 21 when the priority date becomes current, to enjoy some benefit from that petition and its priority date.

The potential positive implications of Cuellar de Osorio beyond the CSPA context are also worth considering.  As previously discussed in posts on this blog and articles by co-author Cyrus D. Mehta and Gary Endelman regarding “The Tyranny of Priority Dates” and “Comprehensive Immigration Reform Through Executive Fiat”, the executive branch’s authority under Brand X can potentially be used as a force for good in the immigration context.  This occurred for example in Matter of Douglas, 26 I&N Dec. 197 (BIA 2013), where, as discussed in one of the aforementioned blog posts, the BIA chose not to follow an unfavorable decision by the Court of Appeals for the Third Circuit regarding procedures for acquisition of citizenship under former section 321(a) of the Immigration and Nationality Act.  If, as the plurality in Cuellar de Osorio indicates, tension between the apparent meaning of different statutory provisions is sufficient to activate the Chevron and Brand X authority of the executive branch even if one could conceive of a potential interpretation which could harmonize the different provisions (at the cost of some awkwardness), this will expand the power that the executive branch may have to use Chevron and Brand X for pro-immigration ends.

Take, for example, the proposal in “The Tyranny of Priority Dates” that the executive branch re-interpret INA §203(d) so that derivative family members do not consume additional visa numbers beyond those taken up by the principal beneficiaries of visa petitions, thus freeing up a greater quantity of visa numbers for use by others.  As discussed in that article, there are admittedly some statutory provisions which might be read as pointing against such an interpretation.  But there are also statutory provisions which pull in favor of such an interpretation, most notably the text of INA §203(d) itself when it states that a derivative family member is “entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.”  INA §203(d), 8 U.S.C. §1153(d).  If family members must be provided with separate visa numbers, then how can one fulfill this command for the family members of the principal immigrant who receives the last available visa number in a fiscal year for a particular category—will they not inevitably be subject to a delay in their “order of consideration” that is inconsistent with §203(d)?  This tension, interpreted in line with the version of Chevron deference implemented by the Cuellar de Osorio plurality, would provide sufficient authority to reinterpret the priority-date system in a way that could significantly reduce the current backlogs in the visa preference categories.

Remarkably, Cuellar de Osorio was not decided on the usual conservative-liberal ideological lines as with many Supreme Court decisions. The pairings of justices who decided one way or the other are rather odd much like combining a full-bodied red Malbec with a delicate white fish -  Ginsburg and Scalia were part of the plurality that denied relief to children while Sotomayor and Thomas vigorously dissented. The outcome in this case is neither a liberal nor a conservative victory.  This could potentially give President Obama through his Attorney General some political cover if they decided to use Brand X as a force for good by reversing Matter of Wang. Of course, the government caused this in the first place by litigating all the way to the Supreme Court. Sceptics will rightly question why the government would change course after having gone so far. However, the Attorney General, through the BIA, has reversed course before. For example, in Matter of Silva, 16 I&N Dec. 26 (BIA 1976), the BIA acquiesced to Francis v. INS, 532 F.2d 268 (2d Cir. 1976), and allowed 212(c) relief for LPRs in deportation proceedings who had not previously departed and returned, despite its earlier contrary holdings in Matter of Francis and Matter of Arias-Uribe, 13 I&N Dec. 696 (BIA 1971). If Congress fails to  enact Congressional reform, it is likely that the Administration will endeavor to provide relief through further administrative measures. Our blog provides the Administration with a way to do so for children who were left out of the American Dream solely because they were unlucky to have aged out.
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