Hidden Treasure: How States That Want Immigrants Can Take Advantage of Arizona v. USA

By Gary Endelman and Cyrus D. Mehta

Anyone in favor of federal preemption of state immigration laws, especially Arizona’s SB 1070, was disappointed with the way the oral arguments before the Supreme Court justices on April 25, 2012 turned out in Arizona v. USA.  It appears that the core provision of SB 1070, Section 2(B), which mandates police officers to determine the immigration status of anyone they stop if they have a “reasonable suspicion” that the person in “unlawfully present in the United States” may be upheld even if other provisions are  preempted. And while it is obvious that this provision would lead to racial profiling, the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and other provisions. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law. All it does is to allow police officers to determine if someone was unlawfully present by inquiring about that person’s status with the federal Department of Homeland Security. Whether this would lead to the incarceration of both citizens and lawfully present non-citizens did not seem to concern the justices as the inquiry regarding immigration status would be made in conjunction with another state offense, such as speeding or driving without a license. Moreover, even without SB 1070, the justices noted that the federal government has allowed state enforcement personnel to do much the same thing, especially through its Secure Communities program or through cooperation in the “investigation, apprehension or detention of aliens in the United States” under INA § 287(g).

The colloquy, below,  between Chief Justice Roberts and Solicitor General Verrilli during oral argument gives us some insight into why 2(B) is likely to be upheld:

CHIEF JUSTICE ROBERTS: Right. So, apart from Section 3 and Section 5, take those off the table, you have no objection to Section 2?

GENERAL VERRILLI: We do, Your Honor. But, before I take 3 and 5 off the table, if I could make one more point about 3 and 5, please? The — I think -­because I think it’s important to understand the dilemma that this puts the Federal government in.

Arizona has got this population, and they’ve — and they’re, by law, committed to maximum enforcement. And so the Federal government’s got to decide, are we going to take our resources, which we deploy for removal, and are we going to use them to deal with this population, even if it is to the detriment of our priorities –­

CHIEF JUSTICE ROBERTS: Exactly. You — the Federal government has to decide where it’s going to use its resources. And what the state is saying, here are people who are here in violation of Federal law, you make the decision. And if your decision is you don’t want to prosecute those people, fine, that’s entirely up to you. That’s why I don’t see the problem with Section 2(B).

We hope we are proved wrong and the Supreme Court will find SB 1070 unconstitutional in its entirety, but even if we are not wrong, do not lose heart. Good things can also come out of it.  Take a look at Peter Spiro’s intriguing essay in the New York Times, where he argues that even if SB 1070 stands, it will ultimately wither as Arizona, and other copycat states, will continue to hurt economically. Thus, such laws that Arizona and some states will enforce with vigor will ultimately die their own natural death. Of course, this still does not excuse the fact that 2(B), while in existence, is likely to result in mass incarcerations, while the state police inquire about each detainee’s status. One saving grace it that someone who is actually affected, such as an individual who is lawfully present,  can mount another challenge based on due process and equal protection violations, rather than preemption, and this may have more of a chance to succeed. In the meantime, Spiro states, “One of federalism’s core virtues is the possibility of competition among states. Competition in this context is likely to vindicate pro-immigrant policies.” Thus, most other states that welcome immigrants, legal and undocumented, and recognize their contributions, will deliberately not pass similar laws like Arizona’s. By not enacting similar laws, they will be competing with those states by enticing their corporations, as well as jobs, to move over.

While there are very good arguments in support of preemption, if  part of SB 1070 is upheld, states that want immigrants can go even further than do nothing. For instance, a state can pass a law that encourages immigrants who reside within to apply for a personal endorsement from the state’s governor in support of a national interest waiver request, which waives the job offer and labor certification requirement, when applying for permanent residency. The state can set criteria for whom it wants to encourage, such as entrepreneurs or robotics specialists, and its governor can write a  personal letter in support of their petitions for permanent residency through the federal national interest waiver pursuant to INA § 203(b)(2)(B)(i). As in Arizona’s Section 2(B), the state is not creating a new immigration category, but simply assisting the federal government to make a determination under federal law. Unlike Arizona’s SB 1070, which is premised on driving away immigrants from the state through attrition, the purpose of a state law in our hypothetical example is to encourage the immigrant to remain in that state and contribute to its economy, which in turn will benefit the national interest of the US. Indeed, we commend noted attorney Rami Fakhoury of Troy, Michigan, who is proposing such standards for Governor Snyder of Michigan to implement in order to support a national interest waiver request from a Michigan resident.

In the same vein, a state can designate certain occupations as shortage occupations, which may assist the Department of Labor in more easily certifying a labor certification  pursuant to INA § 212(a)(5) of an employer filed on behalf of a non-citizen resident in the state. A state can be a more effective judge of shortage occupations than the federal government, and if a labor certification is filed on behalf of a non-citizen in that particular state designated shortage occupation, the DOL may be more influenced in making a favorable determination on the labor certification. Similarly, even with regards to an undocumented immigrant, a state may be able to enact criteria for recommending that such a person, who has otherwise not been convicted of serious crimes and is say an essential farm worker, is deserving of prosecutorial discretion by the federal government under its new prosecutorial discretion policy and thus be permitted to remain in the state and  prevent its farm produce from otherwise rotting away. There may already be such authority under INA § 287(g), which authorizes the federal government to enter into a written agreement with a state to perform the function of a qualified immigration officer in relation to the “investigation, apprehension and detention” of non-citizens. In the era where the government has implemented a broad prosecutorial discretion policy, a state can assist the federal government in the “investigation,” rather than the apprehension or detention, of an individual who may merit such discretion from the federal government.

While Utah has also passed an enforcement oriented immigration law similar to Arizona’s, it contains one unique provision quite unlike any other state’s law. The Utah provision offers work permits to undocumented immigrants who pass background checks, have paid fines and can demonstrate a work history. The measure does not offer legal status or citizenship, but would allow unauthorized workers who meet its criteria to continue working in Utah. This provision also requires a federal waiver. If the Utah provision, which is currently enjoined, is allowed to go forward, in the event that the Supreme Court gives a green signal to states in Arizona v. USA, we estimate that there will be more states that will enact laws similar to the Utah guest worker provision than Arizona’s SB 1070.

There is no reason to think that it will always be punitive. Many of the progressive achievements in modern American history, such as women suffrage, popular election of senators, wage and hour laws, occupational safety, and most recently same sex marriages, to name but a select few, first appeared on the state level. The many instances where federal intervention has been necessary to protect civil rights against state abuse should not blind us to the possibility that state action can also be a force for good. Long ago, Justice Brandeis recognized that federalism offered a constitutional framework for experimentation and creativity:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…

New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S.Ct. 371, 76 L.Ed. 747 (1932)(Brandeis, J. dissent)

Since the New Deal, the operating assumption in American politics has been that reform must come from Washington DC to be imposed upon the states. The growth of the imperial presidency has flowed directly and inevitably from this core conviction. This is certainly the case with immigration reform given the plenary federal power over this issue as an extension of foreign policy. The inability or unwillingness of Congress to deal effectively with undocumented migration to this country on an unprecedented level has created the impetus for state action to fill up the vacuum. We advocate that Congress must deal with this situation by creating more pathways to legal status over an enforcement only approach, which is what states like Arizona have done.  Until now, such state action has been deprived of constitutional legitimacy; the Supreme Court may be ready to change that. Indeed, the first signs of this came with Chamber of Commerce v. Whiting, 131 S. Ct. 1968, 179 L.Ed.2d 1031 (2011) when a 5-3 ruling upheld the 2007 Legal Arizona Workers Act thus transforming the power of state regulators to grant or withhold business and professional licenses into tools of immigration enforcement. Should the High Court sustain SB 1070, for the first time since the 1870’s, the states will be able to take advantage of a constitutional regime that not only tolerates but welcomes their presence and invites their participation. Of course, Congress can also deal with states legislating on immigration by expressly preempting such action, but one will need to wait for that day to happen.

Those who think immigration is good for America will then have to find a way to review and revise their most basic assumptions on the nature of American reform. There is a way to make lemonade out of lemons.  Even now, not all state and local action has been negative. Utah is but one such example. Look and you will find others. Congress may not have passed a federal Dream Act but California and Illinois have done precisely that on the state level. Maryland too adopted its own Dream Act in 2011 and the Maryland Supreme Court will soon decide if this measure must go to a voter referendum this fall. In his most recent state-of-the-city address, New York City Mayor Michael Bloomberg vigorously supported a Dream Act for New York State, though Governor Cuomo has yet to declare his position. 12 states now grant in-state tuition rates to undocumented students. Texas, California and New Mexico provide financial aid to undocumented students. If we look north to our neighbor, Canada, its provinces have considerable influence in Canada’s immigration policy. An intending immigrant to Canada will get a preference if he or she meets certain requirements of Quebec province, for example.

Our position on SB 1070 has not changed. We do not believe it is constitutional. We do not write to endorse a patchwork immigration system of 50 different approaches without unity or definition. The dangers of this are apparent to all and we devoutly wish that our ideas will be made irrelevant when the Supreme Court finds SB 1070 to be constitutionally impermissible. Yet, candor requires us to admit that the result may not be as we would like. Now is the time to prepare for what may come and think the unthinkable. We owe it to our clients and our country to turn a problem into an opportunity.  Until now, both supporters and critics of SB 1070 have assumed that if the Supreme Court were to uphold the law,  it will unleash a tsunami of copycat legislation. This may happen and it may hurt. Yet, the future often has a way of surprising us. More may emerge; the outcome could well be different than what most hope or fear. This blog points a way forward. What happens next is up to you.

This post originally appeared on The Insightful Immigration Blog.

Is It Still A Federal Case? An Unintended Consequence of Arizona v. USA

By Gary Endelman

Of all the unexpected consequences of Arizona v USA, perhaps the least likely is the potential reshaping of licensure regulations for the immigration bar. So long as the states did not seek to regulate immigration, lawyers licensed in one state could practice immigration law in another, save for those jurisdictions such as California and Colorado that banned such practice. Relying on ABA Model Rule 5.5(d) and Supreme Court precedent in the case of Sperry v. Florida, 373 US 379, 383-84 (1963), immigration was a federal practice and any credentialed advocate could join in. That is why USCIS recognized this multi-jurisdiction bar in 8 CFR 292.1(a)(1) and 1.1(f). The State Department is no less courteous:

9 FAM 40.4 N12.3 Local or U.S.-Licensed Attorneys Practicing Abroad  You must extend to a U.S. attorney who has been practicing abroad and is a member of a State bar association or to a local attorney-at-law, the same courtesies in correspondence that are extended to an attorney practicing in the United States, provided you are satisfied that the required relationship exists.

This has never been without controversy. New York makes out of jurisdiction lawyers register every two years at a $375 fee. In Texas, a solo immigration practitioner from New York State moved to Houston but did not bother to sit for the Texas bar exam.  She was not given a Texas-size welcome; the Unauthorized Practice of Law Committee of the Texas State Bar sued her, expressing a concern for the integrity of the Texas family and penal code as well as the potential harm to Texas residents. Ultimately, the case was dropped. See John Council, Out of Bounds: Lawyer Without Texas Bar Card Fights for Right to Practice, 18 Tex. Law. 24. (2002); Gregory Siskind, New York Immigration Lawyer Wins Battle to Practice in Texas, Immigration Daily available hereFor those who want a deep dive into the delicacies of this controversy, see the wonderful article by Charles Kuck and Olesia Gorinshety as well as the masterful insights provided by Cyrus Mehta.

The exemption from state bar rules depends upon dealing exclusively with federal law. Can this easily or always be done? That is the concern voiced by Texas Ethics Opinion No. 516:

Without issuing an opinion on the subject of unauthorized practice of law, the committee assumes that the representation of clients in Texas by an out-of-state attorney solely on issues or matters of federal law in the area of immigration and nationality law before the U.S. Immigration and Naturalization Service and in federal courts does not constitute the unauthorized practice of law in Texas. The committee further assumes sat this is incorrect regardless of whether the out-of-state attorney lives in or outside of Texas, maintains an office in Texas, or is employed by an attorney who is licensed to practice law in Texas, so long as the representation of clients in Texas by an out-of-state attorney is in fact limited only to issues or matters of federal law…However, the committee recognizes that the foregoing assumptions do not resolve all unauthorized practice of law problems presented in this question. As a practical matter, it simply may not be possible to separate federal and state law issues when representing clients on matters under the U.S. Immigration and Nationality Act. Representing clients on immigration and nationality law may require an out-of-state attorney to know and advise such clients on issues and matters involving Texas law. For example, Texas law governing family matters such as marriage, divorce and adoption may be determinative in certain immigration cases; likewise, immigration law questions may necessarily involve giving advice on Texas criminal law statutes, Texas employment laws, or other Texas law. Accordingly, the risk of engaging in the unauthorized practice of law in Texas inevitably increases with the number of immigration and nationality cases handled by an out-of-state attorney. http://www.law.uh.edu/libraries/ethics/opinions/501-600/eo516.pdf

This is where SB 1070 comes in. If the Supreme Court finds that Arizona can use its retained police powers to regulate and punish conduct by and the presence of undocumented immigrants, then it will be much more difficult to separate state from federal law in the analysis of any immigration problem,whether in Arizona or in all the other States that either have their own state immigration laws already or will be encouraged to adopt them.  No longer will immigration lawyers be able to refrain, if they can now, from state law questions. Should this happen, and the lines between state and federal jurisprudence between irretrievably blurred to the point where they cease to exist, it is hard to imagine how any immigration lawyer who is not licensed in the state where they practice can avoid engaging in the unauthorized practice of law. Do we really want this? As Proverbs warns us, he “who troubleth his own house shall inherit the wind.”

From Madison To Morton: Can Prosecutorial Discretion Trump State Action In Arizona v. USA?

By Gary Endelman and Cyrus D. Mehta

Warning against the danger of faction in his famous Federalist Paper No. 10, James Madison sought to moderate the impact through the diffusion of power amongst the three branches of the federal government as well as between state and federal authority. This coming Wednesday, the United States Supreme Court will hear oral argument over the most contentious provisions of Arizona SB 1070. It is perhaps no small exaggeration to say that the outcome of this case will determine if prosecutorial discretion as a tool of immigration enforcement can survive.

In an age of finite resources, to govern is to choose. That is why ICE Director John Morton decided this past June 2011 to exercise prosecutorial discretion in removal cases involving non-citizens who demonstrate favorable factors, such as their length of presence in the US, the person’s ties to the community, including the presence of immediate relative who may be US citizens or permanent residents, the circumstances of the person’s entry into the US, particularly if he or she was brought in as a young child and whether the person is likely to be granted permanent residency in the future, to name a few. Mr. Morton in a separate policy memo also included the victims and witnesses of crime, including domestic violence, and those persons who were plaintiffs in non-frivolous lawsuits or otherwise engaged in action to protect their civil rights. Director Morton elected to concentrate on deporting national security concerns or those non-citizens with a serious criminal history. This was not the first time that those who were charged with enforcement of our immigration laws embraced the virtues of prosecutorial discretion. On November 17, 2000, then INS Commissioner Doris Meissner explained it this way:

Prosecutorial Discretion is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day…The favorable exercise of prosecutorial discretion means a discretionary decision not to assert the full scope of the INS’s enforcement authority as permitted under the law…It is important to recognize not only what prosecutorial discretion is but also what it is not. The doctrine of prosecutorial discretion applies to law enforcement decisions whether, and to what extent, to exercise the coercive power of the Government over liberty and property, as authorized by law in cases when individuals have violated the law..The distinction is not always an easy bright-line rule to apply… Like all law enforcement agencies, the INS has finite resources, and it is not possible to investigate and prosecute all immigration violations

It is an oversimplification, but still an insightful one, to conclude that, thanks largely to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( IIRAIRA), the importance of prosecutorial discretion has increased in inverse measure to the shrinking remedial actions left open to immigration judges whose ability to grant relief from removal, especially in the context of criminal convictions, has been dramatically curtailed. If the consequences of deportation can no longer be avoided or ameliorated, then the decision on whom to target and how to punish become a moments of surpassing criticality. While prosecutorial discretion is not the answer to a legislature run amuck, it may serve to limit the damage. As Assistant Attorney General Robert Raban wrote to Congressman Barney Frank on January 19, 2000, it is in bad times, more than good, when justice needs prosecutorial discretion the most:

Consequently, the IIRAIRA rendered the exercise of prosecutorial discretion by the INS the only means for averting the extreme hardship associated with certain deportation and/or removal cases…

The State of Arizona, it would seem, has other priorities. While ICE may feel the need to choose, Arizona manifestly does not. Indeed, the four provisions of SB 1070 are precisely the ones that most flagrantly impose burdens on ICE in the absence of federal selection. In the absence of a matching federal mechanism, SB 1070 requires Arizona law enforcement officers to check the immigration status of anyone they stop, arrest or detain if they have a “reasonable suspicion “ the person is unlawfully present. SB 1070 complete disregards the Morton prosecutorial discretion policy, which now allows an ICE official to grant a stay of removal to a person who even has a removal order. While SB 1070 may still consider this person to be unlawfully present, under the federal prosecutorial discretion policy, this individual who has been granted a stay of removal, along with an order of supervision, may even apply for a work permit. Furthermore, ignorant or indifferent to federal policies that implicitly tolerate or openly protect the undocumented, SB 1070 criminalizes a failure to carry immigration registration documentation. It has already been pointed out that a battered woman who has obtained discretionary deferred action after filing an I-360 self-petition under the Violence Against Women Act will not be conferred with a registration document. Yet, such a person is allowed to remain and even work in the US until he or she obtains permanent residence. While neither the Immigration Reform Control Act of 1986 or the INA as a whole consider unauthorized employment as criminal conduct, SB 1070 does; even to apply for or solicit work is no less felonious. In the absence of federal warrant or any expression of federal interest in prosecution, SB 1070 sanctions warrantless arrest based on probable cause that the alien in question has committed a deportable offense. The New York Times recently but accurately termed this “an invitation to chaos:”

While Arizona says its law merely empowers law enforcement to work cooperatively with federal officers, that is demonstratively false. The four provisions at issue go beyond federal law, turning federal guidelines into state enforcement rules and violations of federal rules into state crimes. They transform a federal policy that allows discretion in seeking serious criminals among illegal immigrants into a state mandate to target everyone in Arizona illegally…

This concern is at the core of the pre-emption argument against SB 1070, though it has not received much ink in the popular press. In effect, Arizona seeks to impose an unfunded mandate on Washington, precisely the reverse of what is the norm. As Judge Paez wrote for the Ninth Circuit Court of Appeals in United States v. Arizona, 641 F. 3d 339, 352-53 (9th Cir.2011):

By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents…the threat of 50 states layering their own immigration enforcement rules on top of the INA weighs in favor of preemption…

It is for this reason that the United States devoted a full 7 pages of it’s appellate brief to the Supreme Court ( pp.17-23) on this very issue. The curtailment of prosecutorial discretion is the negation of federal priorities. On pp. 22-23, we get to the heart of the matter:

The framework that the Constitution and Congress have created does not permit the States to adopt their own immigration programs and policies or to set themselves up as rival decision makers based on disagreement with the focus and scope of federal enforcement. Yet that is precisely what SB 1070 would do, by consciously erecting a regime that would detain, prosecute and incarcerate aliens based on violations of federal law but without regard to federal enforcement provisions, priorities and discretion. SB 1070 cannot be sustained as an exercise in cooperative federalism when its very design discards cooperation and embraces confrontation.

It is not hard to understand or appreciate why or how Arizona is frustrated, for good people of diverse views share this same conviction that ours is a broken immigration regime. It is the particular manner in which Arizona has elected to manifest this dissatisfaction that places the prosecutorial discretion of federal authorities at risk. We must not sacrifice constitutional verities to contemporary passions. Let us return to Madison Federalist No. 51:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary…

In an increasingly complex, hyper-technical system, the need for discretion as a way to make intelligent choices seems more open and obvious than ever. It is widely acknowledged that we have a dysfunctional immigration system whose systemic dislocation has contributed to the buildup of the undocumented population. In the absence of Congressional intervention to restore a permanent balance, the Administration can and must exercise discretion, devoid of ideology or sentiment, to cobble together interim solutions as the need for them arises. Despite SB 1070, rhetoric is not reality and the targeted exercise of discretion to reconcile divergent and often competing interests is something that the Supreme Court should endorse. James Madison would.

Justice Ginsburg’s Observation on Piepowder Courts in Vartelas v. Holder

By Gary Endelman and Cyrus D. Mehta

In the recent landmark Supreme Court decision of Vartelas v. Holder, No. 10-1211, 565 U.S. ___, U.S. LEXIS 2540 (March 28, 2012), which partially restores the rights of lawful permanent residents (LPR) with pre-1996 convictions, Justice Ginsburg, who wrote the opinion for the majority,   made an interesting reference to piepowder courts. For an explanation of the potential significance of Vartelas v. Holder, we refer readers to our previous blog entitled Fleuti Lives! Restoration of A Constitutional Decision.

Piepowder, or dusty feet courts, as Justice Ginsburg’s decision explains in footnote 12, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in Medieval Europe. These courts were set up to resolve disputes while the merchants’ feet were still dusty.

Justice Ginsburg made this reference to piepowder courts in the immigration context in our modern era, stating that an immigration official at the border would not set up a piepowder court to determine whether an LPR committed an offense identified in INA § 212(a)(2) to determine whether he or she was inadmissible. This is what Justice Ginsburg said: “Ordinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.”

The Supreme Court’s observation on quaint “dusty feet” courts, although charming, is also extremely significant. Most lawyers who do not practice immigration law, and of course everyone else, will be surprised to know that a non-citizen, including an LPR, can be found inadmissible under INA § 212(a)(2) for being convicted or who admits having committed certain crimes, such as crimes involving moral turpitude or controlled substance offenses.  Thus, a non-citizen, including an LPR, need not have a criminal conviction to be found inadmissible, he or she can be equally snared for having admitted to the commission of a crime. Clearly, with respect to an LPR travelling from abroad, Justice Ginsburg’s observation appears to restrict a CBP officer’s ability at an airport from trying to obtain a confession regarding the commission of a CIMT. A CBP official cannot set up a piepowder court at the airport, like the merchants of a bygone era, to try an LPR who has travelled through many time zones, and who instead of having dusty feet may have bleary eyes, for the purposes of bludgeoning him or her into an admission for having committed a crime.

Admittedly, the observation on piepowder courts was obiter dictum. It  was made in the context of whether INA § 101(a)(13)(C), enacted by the Illegal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows the government to charge a long term LPR as an arriving alien for having committed an offense under 212(a)(2), could be applied retroactively.  The Supreme Court in Vartelas v. Holder held that the  doctrine enunciated in Rosenberg v. Fleuti, 374 U.S. 449 (1963), that an LPR who made a brief, casual and innocent trip abroad should  not be charged as an arriving alien,  still applies to LPRs with pre- IIRIRA criminal conduct. Noting that there was a presumption against retroactive legislation under Landgraf v. USI film Products, 511 U.S. 244 (1994), the Supreme Court  in Vartelas concluded that  INA § 101(a)(13)(C)(v) resulted in an impermissible retroactive effect as it  created a “new disability” to conduct completed  prior to IIRIRA’s enactment in 1996. This new disability was Vartelas’ inability to travel after 1996, which he could freely do so prior to 1996. The Court criticized the Second Circuit in the same case below, which did not find INA §101(a)(13)(C)(v) retroactive since it did not reference a conviction but only the commission of a crime, which if pleaded to prior to 1996 in reliance of more favorable treatment under pre-1996 law, would have been impermissibly retroactive as in INS v. St. Cyr, 533 U.S. 289 (2001). It was at this point that Justice Ginsburg said that “[t]he practical difference (between a conviction and commission of a crime), so far as retroactivity is concerned, escapes our grasp” and then made her observation that an immigration official would in any event need to determine under the clear and convincing standard at the border by checking the record of conviction, rather than convene a piepowder court, to determine whether the alien committed the crime.

It is also significant that Justice Ginsburg in her observation on piepowder courts affirmed that the burden has always been on the government to establish that an LPR is not entitled to that status, and this burden established in Woodby v. INS, 385 U.S. 276 (1966), is that the government must prove by “clear, unequivocal and convincing” evidence that the LPR should be deported. This burden applies to all LPRs regardless of whether they have pre-1996 or post-1996 criminal convictions. Thus, under a Woodby analysis too, since the government bears a heavy burden of proof, it would be turning the tables on the LPR if the government tried to extract a confession regarding the commission of a crime and thus be able to escape from the heavy burden it bears under the “clear, unequivocal and convincing” standard. This can potentially happen with an LPR who may have had the charges dismissed or reduced, but a nasty CBP official still wants to know the real story via a hypothetical piepowder court at the airport. Indeed, the Board of Immigration Appeals held many years ago in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the Woodby standard, in the absence of other evidence, to establish deportability. The following extract from Matter of Guevara is worth noting:

The legal concept of a “burden of proof” requires that the party upon whom the burden rests carry such burden by presenting evidence. If the only evidence necessary to satisfy this burden were the silence of the other party, then for all practical purposes, the burden would actually fall upon the silent party from the outset. Under this standard, every deportation proceeding would begin with an adverse inference which the respondent be required to rebut. We cannot rewrite the Act to reflect such a shift in the burden of proof. [citing Woodby v. INS, supra; other citations omitted]

Of course, an LPR can still voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957).

Justice Ginsburg’s piepowder observation in Vartelas v. Holder, together with Matter of K and Matter of Guerra, provide more arsenal to an LPR who is charged as an arriving alien based on the commission rather than the conviction of a crime under INA § 212(a)(2). Beyond this, the disinclination to sanction ad hoc investigation through a “dusty feet” court conducted without legal sanction or moral restraint reflects a commendable preference for the stability of the written record as the framework for informed decision.

The conceptual framework that governs any discussion of retroactivity is the traditional two-step formula announced in Landgraf v. USI Film Products, supra. Since Congress did not expressly instruct on how far back IIRIRA could go, we move to the second prong announced by the High Court at page 277 of Landgraf, namely whether giving retrospective effect to INA 101(a)(13)(C)(v) will contradict basic notions of proper notice and upset “settled expectations” on which the actor “reasonably relied.” When in doubt, retroactivity is disfavored. The Supreme Court got it right. “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 US at 265.

Justice Ginsburg’s admonition reflects a profound appreciation of the due process rights that returning LPR’s have traditionally enjoyed.   While Woodby may not have been a constitutional decision, the warning against piepowder courts can only be understood in a constitutional context.  Remember the returning LPR seaman in Kwong Hai Chew v Colding, 349 US 590(1953) that authorities sought to exclude without a hearing; the Supreme Court reminded us that he deserved full constitutional rights to a fair hearing with all the due process protection that would have been his had he never left. Remember what Rosenberg v Fleuti, 374 US 449, 460(1963) taught us: “A resident alien who leaves this country is to be regarded as retaining certain basic rights.” Remember the ringing injunction of Shaughnessy v. US ex rel Mezei, 345 US 206, 213(1953): “A lawful resident alien may not captiously be deprived of his constitutional rights to procedural due process.”  In essence, behind Justice Ginsburg’s distaste for piepowder courts when applied to returning resident aliens, regardless of when their conviction or admission took place, is nothing less than the right “to stay in this land of freedom.” Landon v. Plasencia, 459 US 21, 36 (1982) quoting Bridges v. Wixon, 306 US 135, 154 (1945).

The refusal to sanction IIRIRA retroactivityin Vartelas v. Holder provides the kind of predictabilitythat LPRs need and deserve before they leave the USA and seek to return.  This, after all, is why retroactivity is disfavored .This is precisely why a piepowder court is not allowed; an LPR should know what this status means, what his or her rights are and should be able to leave the US with the confidence that an uneventful return is not only possible but entirely to be expected. In this sense, the refusal to embrace IIRIRA retroactivity and the caution against a piepowder court spring from the same place and say the same thing- predictability is at the very essence of a lawful society.  After all, to borrow Einstein’s happy phrase, God does not play dice with the universe.

This post originally appeared on The Insightful Immigration Blog.

FLEUTI LIVES! The Restoration of a Constitutional Decision

By Gary Endelman and Cyrus D. Mehta

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

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

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

In 1996, IIRIRA changed this by amending § 101(a)(13), which now provides:

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

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking removal of

the alien from the United States, including removal proceedings under this Act and

extradition proceedings,

(v) has committed an offense identified in section 212(a)(2), unless since such offense

the alien has been granted relief under section 212(h) or 240A(a), or

(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.

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

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

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

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

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

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

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

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

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

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

This post originally appeared on The Insightful Immigration Blog.

Will The Revised USCIS Q&A On Establishing The Employer-Employee Relationship In H-1B Petitions Save Staffing Companies?

By Gary Endelman and Cyrus D. Mehta

Since the issuance of the January 8, 2010 guidance memorandum by Donald Neufeld, concerning the employer-employee relationship in H-1B petitions (Neufeld Memo), especially when an employer places an H-1B worker at a third party client site, workers at IT consulting and staffing companies have been the most adversely impacted.  Indeed, it seems that the Neufeld Memo was designed to kill the staffing company.

The adverse effects of the Neufeld Memo have been felt most keenly by Indian nationals on H-1B visas who make up most of the workforce at such companies.  This legitimate IT business model, which has been readily embraced by US corporations, is associated with a distasteful term in immigration parlance, namely the “job shop,” whose presence has become ubiquitous with Indian beneficiaries of employment visa petitions. The heightened scrutiny, often leading to an arbitrary denial, is exercised even if the USCIS has approved the H-1B petition previously on the exact same facts. Most problematically, H-1B visa applicants face unreasonable and arbitrary treatment at US Consulates in India, and are subject to unnecessary demands for the same documentation even after they were submitted to the USCIS, resulting in denials or recommendations for revocation of their petitions. Most Indian H-1B visa holders are fearful of travelling to India presently out of fear that they will be denied a visa based on an approved petition.   CBP at ports of entry has also exercised this subjective scrutiny over Indian H-1B entrants in the IT consulting field at ports of entry.

On March 12, 2012, the USCIS issued a revised Q&A on the Neufeld Memo containing helpful language under Questions 5 and Question 13, which did not exist in the prior guidance dated August 2, 2011.

Q5: Am I required to submit a letter or other documentation from the end-client that identifies the beneficiary to demonstrate that a valid employer-employee relationship will exist between the petitioner and beneficiary if the beneficiary will perform services at an end-client/third-party location? 

A5: No. While documents from the end-client may help USCIS determine whether a valid employer-employee relationship will exist, this type of documentation is not required. You may submit a combination of any documents to establish, by a preponderance of the evidence, that the required relationship will exist. The types of evidence listed in the memorandum are not exhaustive. Adjudicators will review and weigh all the evidence submitted to determine whether you have met your burden in establishing that a qualifying employer-employee relationship will exist.

Q13:  The memorandum provides an example of when a computer consulting company had not established a valid employer-employee relationship. Are there any situations in which a consulting company or a staffing company would be able to establish a valid employer-employee relationship?

A13:  Yes. A consulting company or staffing company may be able to establish that a valid employer-employee relationship will exist, including where the beneficiary will be working at a third-party worksite, if the petitioning consulting or staffing company can demonstrate by a preponderance of the evidence that it has the right to control the work of the beneficiary. Relevant factors include, but are not limited to, whether the petitioner will pay the beneficiary’s salary; whether the petitioner will determine the beneficiary’s location and relocation assignments (i.e. where the beneficiary is to report to work); and whether the petitioner will perform supervisory duties such as conducting performance reviews, training, and counseling for the beneficiary. The memorandum provides a non-exhaustive list of types of evidence that could demonstrate an employer-employee relationship.

It is heartening to know that the failure to submit direct document from the end client will not be fatal. It is often times very difficult to obtain such a letter from the end client, especially when there are multi-vendor arrangements between the end client and the H-1B petitioner. Moreover, the end client may not want to be involved in any way in the visa petitioning process, without realizing that its reluctance to submit a letter can result in a denial of the H-1B petition and deprive it of a crucial worker for its project. The revised Q & A states that the petitioner “may submit a combination of any documents to establish, by a preponderance of the evidence, that the required [employer-employee] relationship will exist.” It is hoped that USCIS will not willfully ignore this guidance. Also, consuls should note that the absence of direct documentation from the end client should not cause them to refuse the H-1B visa, and recommend to the USCIS that the H-1B petition be revoked.

Also welcome is the absence of the pejorative term “job shop” in the answer to Question 13, and the fact that the Q&A states that a consulting or staffing company can still demonstrate through the preponderance of the evidence that it has the right to control the work of the beneficiary, even though he or she may be at a third party client site. It also provides helpful tips on how the consulting or staffing firm can demonstrate a right of control through conducting performance reviews, training and counseling for the beneficiary. While the USCIS would doubtless prefer the daily assertion of actual control by the H-1B petitioner even though it has professed that the H-1B employer only exercise the right of control, it is encouraging to note that this latest guidance does indeed provide concrete examples that are truly indicative of “the right to control.” It would appear that, so long as the indicia of ultimate supervision are present, the absence of day-to-day review will not be fatal.  Such flexibility will not only restore a utilitarian suppleness to the H-1B but to other non-immigrant visa categories, notably the off-site L-1B intra-company transferee, where artificial notions of rigid control have also proved consistently at variance with contemporary business practice.

Beyond that, while the H-1B petitioner must always retain primary control, Neufeld redux does not demand total or exclusive control. This could mean, for example, that input from end users as part of performance reviews would not only be tolerated but sanctioned.  While the selection of locations and assignments remain the province of the H-1B petitioner, as they should, there is no reason why daily on-the-job consultations with end user management cannot take place consistent with retention of H-1B status. A distinction between first and last decisions as compared to every day tactical adjustments is good news for an economy still struggling to get back on its feet. Though this may not have been their intent, the drafters of this update have brought the Neufeld memorandum closer to what Judge Kessler had in mind when she dismissed the Broadgate complaint:

To summarize, the Court concludes the Memorandum establishes interpretive guidelines for the implementation of the Regulation, and does not bind USCIS adjudicators in their determinations of Plaintiffs’ H-1B visa applications

This latest guidance represents an unspoken but nonetheless enlightened attempt to align the Neufeld Memorandum with the way America works. If followed, it can help save H-1B petition requests from impending doom. The only remaining issue is whether this revised Q&A will be seriously followed by the USCIS officers, and in turn, by the US Consulates. Regardless,  an H-1B petitioner whose business model involves placing H-1B workers at third party client sites should actively rely on this revised Q&A when filing H-1B petitions or when responding to requests for evidence to assert its right of control over the beneficiary.

There is a larger reason why those of us who have so strenuously attacked the Neufeld Memorandum should welcome this revision. The absence of guidance is the lawyer’s worst nightmare. Without knowing how the game is played, the lawyer does not know when to advance or when to retreat. He or she is prone to putting in too much or not enough, placing undue emphasis on what is tangential while glossing over the truly essential. Some cases take an excessive amount of time to prepare while others are filed prematurely. Law becomes a high stakes poker game, justice by ambush. The USCIS adjudicator is also at sea. Uncertain what standards to employ, frustrated by  nagging suspicion that agile advocacy by an unscrupulous bar will win benefits for clients who do not deserve them, the line analyst at the Vermont or California Service Center faced with a subtle H-1B fact pattern looks in vain to Washington for clarity that does not come. The process becomes complex, complicated and expensive. Conflict replaces cooperation leading to litigation and micromanagement. There seems no exit. When nothing is certain, almost anything can happen.

That is where the Neufeld Memorandum and the August 2011 guidance left us (although the earlier guidance consistent with DHS’s policy to welcome entrepreneurs clarified how an owner of a company could get an H-1B visa). Not really knowing how the USCIS would interpret the third party placement of an H-1B temporary worker, we were left with a Hobson’s choice between bedlam and litigation. The only thing that was certain was the absence of certainty itself. That is why this most recent Neufeld Q&A is so welcome for it has within it the potential to restore clarity and stability to a singularly important question of law in the increasingly contentious H-1B debate at a time when both qualities were singularly lacking. Rhetoric is not reality, however, and the possibility that skeptical USCIS adjudicators will simply ignore this most recent guidance remains a disturbing possibility. We all know from bitter experience the gap between promise and performance. Good intentions in Washington DC can be frustrated quite well by sustained resistance in the trenches. If the wisdom of good men and women will prevail, this will not happen. Hopefully, the deliberate deployment and informed application of this newly minted wisdom will turn the Neufeld Memo from a symbol of intransigence into a  tool for nuanced adjudication. That will deserve the genuine approbation of all those who doubtless will wonder why the USCIS did not think of this earlier.

Note: We thank ILW.COM for making August 2, 2011 USCIS guidance available to us.

This article originally appeared on the Insightful Immigration Blog on March 18, 2012 at blog.cyrusmehta.com

Working H-4 Spouses Get to Take a Step Forward, But is it a Giant One?

By Gary Endelman and Cyrus Mehta

Sometimes it takes a while for a sound idea to gain acceptance. Granting employment authorization to H-4 spouses is a good example. In late March 2010, the authors urged In The Tyranny of Priority Dates that this be done, with or without an employment authorization document (EAD). A few months later, then USCIS General Counsel Roxanna Bacon, Service Center Operations Head Donald Neufeld and Field Operations Chief Debra Rogers recommended precisely this same step to USCIS Director Alejandro Mayorkas, but only for those “H-4 dependent spouses of H-1B principals where the principals are also applicants for lawful permanent residence under AC 21.” Memorandum, Administrative Alternatives to Comprehensive Immigration Reform (posted as AILA InfoNet Doc. 10073063 on July 30, 2010). The memo was leaked by those who wanted to defeat any administrative initiatives and they did so. There matters stood until a few days ago on January 31, 2012 when the Department of Homeland Security brought this idea back to life. The announcement includes other goodies too, but this is what it specifically says about the possibility for an H-4 spouse to work:

  • Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

Those who dig a bit deeper on the government’s regulatory agenda site find a key qualifier that severely limits the benefit granted. Some H-4 spouses it seems are more deserving of the right to work than others: employment authorization is to be extended only to those “H-4 spouses of principal H-1B nonimmigrants who have begun the process of seeking lawful permanent resident status through employment and have extended their authorized period of admission or “stay” in the U.S. under section 104(c) or 106(a) of Public Law 106-313 also known as the American Competitiveness in the 21st Century Act.” This means that no H-4 spouse whose H-1B principal has not spent more than 6 years in the USA will be eligible to apply for an EAD. At a minimum, a PERM labor certification or I-140 would have to have been filed, and even approved to qualify for the 3 year H extension under Section 104(c) of AC 21, if less than 365 days had elapsed since submission. After all this, while it seems as if we should celebrate, how loud should the cheering be?

There is no need for the USCIS to adopt such an exceedingly narrow interpretation. After all, if we look at the essentially unlimited authority granted by INA 274A(h)(3)(B), it seems clear that the USCIS can grant employment authorization to anyone at any time for any purpose. As our insightful colleague David Isaacson has cogently pointed out, under these circumstances, an EAD can be issued to someone who is not attached to either a PERM or an approved I-140. Indeed, an H-4 spouse whose H-1B principal is the beneficiary of an approved family-based third preference I-130 benefits not at all since such approval would not sustain a 7th H year under AC 21. Save for National Interest Waivers and Persons of Extraordinary Ability, which do not need a job offer, the right of an H-4 spouse to work is conditioned upon the willingness of the H-1B principal’s employer to sponsor his/her mate for LPR status, something over which the H-4 spouse has no control.

There is nothing in the INA that prevents an H-4 spouse from working. This prohibition is purely an act of regulation. That being the case, what prevents the USCIS from taking a more generous view? We would do well to remember that the unavailability of an EAD outside the adjustment of status context forces people into the H-1B category who might not otherwise need or even want to be there. Allowing all H-4 spouses to work would ease the pressure on the H-1B category and, by so doing, serve to diminish opposition to all employment-based immigration. While it is true that the H-1B is subject to an annual limitation each year, most other nonimmigrant work visas do not have an annual cap. Beyond that, America suffers when the nation forgets that many talented H-1B beneficiaries choose not to stay here because their H-4 spouses are unable to work. See Matt Richtel , Tech Recruiting Clashes with Immigration Rules, N.Y.Times, Apr.12, 2009.

Truth be told, there is no need for any H-4 spouse to apply for an EAD. Why not simply include H-4 spouses as part of 8 CFR Section 274a.12(a) so that they could work incident to status? This is a simple yet elegant way to ameliorate the extreme economic hardship that our system needlessly inflicts upon H-4 spouses. In fact , why limit this to H- 4 spouses? There is nothing to prevent the Executive from granting work authorization to teenage children on H-4 visa status.

There is no reason why an H-4 spouse should have to wait for years before being allowed to work. Since both the H and L categories are clothed with dual intent – both visa categories allow the holder to apply for a green card from the very outset – the H-4 spouse should be treated exactly like the L-2 spouse when it comes to applying for an EAD. Indeed, the H-4 spouse may be more deserving of a work permit if the wait for the green card under the employment based second and third preferences can take several years, or even decades, especially if the spouses are born in India or China. In fact, despite a cap on H1B visas compared to unlimited L migration, AC21 makes it possible, and certainly more frequent, for the H4 spouse to remain in the USA far longer than the L-2 counterpart, thus making the need for employment authorization more not less compelling. If the USCIS wants to limit the scope of this benefit, allow it to be conditioned upon the filing of a non-frivolous labor certification, or I-140 if no labor certification is required, regardless of how long the H-1B has been in the United States. This would advance the national interest by enhancing the incentive for H-1Bs to come to the United States and remain here, despite chronic visa backlogs.

Ours is a policy of audacious incrementalism designed to maximize the remedial possibilities within the INA as it now exists while waiting for something better, namely congressional enactment of comprehensive immigration reform. Not only is it fitting and proper for the USCIS to formulate immigration policy on highly minute technical issues of surpassing importance, it is no exaggeration to contend that the Constitution expects this to happen. Indeed, without this, who would do it? Far from crossing the line and infringing upon the authority of Congress, what we ask the USCIS to do augments Congressional prerogatives by providing a practical way forward. For those who say that we ask too much too soon, we respond with one simple question, the same one that Hillel the Sage asks in Ethics of the Fathers: “If not now, when?”

This post originally appeared on The Insightful Immigration Blog.


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