Bridge Out of the Backlog

When we help others, we help ourselves, and together we can make a difference. With this in mind, and given the extreme push back that Senate Bill 386 (#S386) has engendered, I outline below a way that immigrants in the per country backlog can help others facing the 7% cap on per country admissions in U.S. Immigration law without relying on lawmakers. Those of you who need to read this already know the problem, as you’ve been waiting years for a green card due to per country limits, so I will not go into the problem here. What I describe here is a novel solution with a small but meaningful impact, that requires some to give to others first.

The employment based (EB) categories include family members, spouses and children, in the cap count. If there were fewer family members using the EB numbers, then there would be more EB numbers available to those suffering from the per country caps. Those families in which both spouses are in the United States in H-1B have a unique ability to make a contribution to the greater good. Let me explain.

If the principal immigrant uses their I-140 petition to adjust status, alone, then once they become a lawful permanent resident (LPR) file an I-130 petition for a spouse and children in the 2A category, they could divert the use of numbers to the Family 2A category. The Family 2A category contains a provision which states that 75% of those numbers are exempt from per country quotas, so it would be unlikely for visa availability to be limited for a certain country. Also, for many years the 2A category has been either “current” (which means visas available immediately), or backlogged one or two years. Thus, if a dual H-1B family (whether two spouses alone, or with children) were to utilize only one EB number for the principal, and utilize the 2A category for the spouse and any children, this would begin to build a bridge for others to follow and increase the number of visas available to the group as a whole. Further, if an LPR becomes a U.S. citizen, then their petition on behalf of a spouse or children (under 21) are actually completely exempt from numerical limitations. Thus, using 2A numbers, which have been relatively available for use for many years, is not likely to take away from the family category in a major way. This is because of the historically available nature of the 2A category, coupled with the fact that an LPR can become a citizen and then be exempt from numerical limitations for spouse/children entirely. The impact on the family categories of some families sacrificing a longer wait for the dependent spouse (and children) to enable other families to immigrate more quickly would be minimal. These families, who undertake this path would be EB bridge builders for others who would use that bridge to escape the endless backlogs.

There are some considerations in deciding to take this selfless course of action. First, it is critical in all immigration situations to receive the advice of counsel in your individual case, otherwise serious problems can occur. This blog is just that, a blog, and cannot substitute for competent advice in a particular case. Second, it is possible for a spouse and children to “follow to join” at a later date, using the original I-140 petition, even after the principal immigrant has been given LPR status. In that sense, eligibility to still use the I-140 of a spouse to immigrate remains valid based on that principal immigrant’s approval of adjustment of status or approval of an immigrant visa abroad, as a backup in case the 2A category proves unworkable for the spouse and/or children. Adjustment applications don’t need to be filed together for family members to still use it. Third, it is important to consider the impact of a child’s age on the process, since dependents are only permitted to accompany or follow to join the principal applicant while they’re still considered to be under the age of 21, with calculations under the Child Status Protection Act (CSPA) factored in. This area is so complex that it is not even worth explaining, due to the confusion it could cause, and requires individual advice. But the length of time that an I-140 has been pending does subtract from a child’s age. A dual H-1B family with much older children may not be the ideal candidates for this. Fourth, a spouse who has an H-4 status would not readily be able to pursue this route, because the H-4 is dependent upon the H-1B, and once the H-1B is adjusted to LPR, there isn’t a way to extend H-4 status. This bridge building can effectively only be done with dual H-1B spouses leading the charge.

While this bridge building may not help a great number of people, if even a small number of people do it, it could make the difference between a child in another family aging out, or successfully immigrating. If you are a dual spouse H-1B household please consider together with counsel whether you may be able to become an #EBbridgebuilder by utilizing the I-140 to have the principal immigrant immigrate first then file a 2A petition for spouse and children following approval of LPR status.

People are saved in hospitals every day through the generosity of organ donation. Why do people donate blood and organs for others? There is reward in knowing you have done something for others.

Trump Ends DACA, Allows Renewal Window for 30 Days

Keeping an election promise he made to other Republicans to end DACA, President Trump has bowed to pressure by Republican governors from Texas and other states to halt the program. As of today, no new initial DACA applications will be approved, and no advance parole cases will be granted.

Renewal applications that are pending now will continue to be granted. Any renewal application filed on or before October 5, 2017 will also be granted, provided the current DACA validity period expires between September 5, 2017 and March 5, 2018.

DACA approvals will continue to remain valid until they expire, and none will be revoked except in instances where the person has become ineligible, for a criminal arrest or conviction for example.

If your DACA approval expires between September 5, 2017 and March 5, 2018, you should consider renewing your DACA by the deadline of October 5, 2017. Here is the link to the memorandum ending the DACA program:

https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca

Here is an FAQ.

Now that DACA is ending, we need Congress to pass a law allowing for legal status for DREAMers. The best way to do this is for people to call their Senators and Congressperson and ask them to support passage of the DREAM Act.

You can find your Congressperson by entering your zip code on the House of Representatives website (www.house.gov) and your Senator on this website: www.sentate.gov

Urge them to pass the DREAM Act, and also encourage your friends, family, neighbors and coworkers to urge passage of the DREAM Act.

Family Preparedness for Immigration Riads / Preparación Familiar para Invasiones Migratorias

Oregon based non-profits have created these tools to prepare your family in case of immigration raids: Family Preparedness Guide in English

Organizaciones sin fines de lucro en Oregon han creado estas herramientas para preparar su familia en caso de invasiones migratorias: Guía de Preparación Familiar en Español

H-1B Reform - Quantitative or Qualitative?

With recent campaign rhetoric and a new administration, H-1B reform is once again in the headlines.  Reform is surely needed.  But what type of reform?

The H-1B Cap and Lottery

There were 236,000 petitions filed for H-1B status in April 2016 for only 85,000 H-1B numbers, and USCIS ran a lottery to decide who would get an H-1B with an October 2016 start date.  The lottery distribution itself has been challenged in court as unlawful in the case of Tenrec, Inc. v. USCIS.  That case argues the statute specifies the distribution be "in the order in which a petition is filed" and not randomly.  But whether the agency distributes the visas in a lottery, or in a wait list fashion (first-in first-out), capping the category per year means that there will be a wait to get a number, because those who lose the lottery in successive years are in a de facto waiting line.  Many have entered for three years without a number - that's a wait.  As I have argued before, first-come first-served approach is more fair than a lottery system, with those filing earlier receiving visas earlier.  Running a lottery just allows some to cut ahead in line.  It also allows big companies to file massive numbers of petitions in order to increase their odds.  The case to abolish the lottery distribution process is under advisement before a federal judge and could be decided any day now.

The 85,000 H-1B cap is a quantitative restriction that hampers competitiveness and leads to abuse of U.S. workers.  To be fair, some who are eligible for an H-1B are exempt from the caps.  There are Canadian and Mexican professionals who can utilize NAFTA, and Australians who can use the E-3.  Multi-national companies can utilize the un-capped L-1 visa for managers, executives, and those with specialized knowledge.  Institutions of Higher Education, and non-profit or government research organizations are exempt from the H-1B cap, and can petition for an H-1B employee at any time without regard to the caps.  There are even private entities which can employ someone under exempt status if they are working principally for an exempt employer, or where there is a close affiliation (such as shared board of directors) between the for-profit and exempt entity.  The 65,000 cap set back in 1990 has only been increased, however, by 20,000 by allowing that many who have U.S. Master's degrees to be issued a number.  Unless one of the special exemptions applies, therefore, a U.S. company is prohibited from hiring the global talent they would like.

As a private citizen who reads the news, I have been dismayed to read of the alleged abuses of the H-1B system by companies like Disney and others.  No one should have to train their replacement who is on a non-immigrant visa.  As an immigration attorney, I have seen amazing contributions to businesses by professionals on H-1B visas.  My experience, over the past 20 years (ok, 4 months short of 20 years) of immigration practice, has been that companies hire H-1B workers for those positions which are tough to fill, and that companies end up paying more for an H-1B worker than a U.S. worker.  I represent a wide range of industries including manufacturing, civil and environmental engineering, renewable energy, health sciences, biomedical engineering, and information technology.  In order to maintain global competitiveness, U.S. businesses need to be able to tap the global talent pool.  So the numerical caps definitely get in the way of domestic enterprises being competitive in the global market.  So, is capping the category the best way to deal with abuses?  I firmly believe the caps are not the right tool.

Prior to 1990, there was no cap on H-1B petitions.  Instead, the pre-1990 Immigraiton Law required the H-1B beneficiary to show they were a person of "distinguished merit and ability" coming to "perform services of an exceptional nature."  That was a qualitative limitation, not a quantitative one.  In fact, right now, Congress is discussing qualitative limitations on the type of H-1B workers that are permitted to work in U.S. industry.  

For perspective, the U.S. currently has around 159 million workers in the workforce.  Even if the entire non-immigrant workforce, including H, L, E, O and other visas is in the few hundred thousand level, that is only a fraction of one percent of the U.S. workforce.  While the current system has permitted abuse of the H-1B program to occur in some instances, it is hard to believe that such a small fraction of the U.S. workforce could really impact U.S. workers employment opportunities in a meaningful way.  That is not to say there are some who have lost their jobs to H-1B workers.  I merely point out that the sheer numbers preclude any kind of huge impact on those who are looking for work.  In fact, those U.S. citizen men who are playing hours of video games each day (perhaps millions) instead of looking for work has a much higher impact on the economy than H-1B visas.

Salaries and Prevailing Wages

Salaries of H-1B workers and prevailing wage rates are being discussed in Congress now as a qualitative limitation on the H-1B category.  In my experience, most of my clients are paying in the 90th percentile of wages, which represents "Level IV" wages which is the highest level of the four tier prevailing wage system.  If you'd like to see what prevailing wages are in a given area, broken down by occupation and location within the country, you can visit the FLCDataCenter website.  Those rates are researched and updated each year, and published there by the Department of Labor for use in the Labor Condition Application (LCA) that is required in H-1B petitions.  Level IV wages are extremely high, representing the highest mean wages in the occupational category.  An H-1B employer must pay prevailing wages even if they pay U.S. citizens less, as the requirement is to pay the higher of the prevailing wage or wage paid to similarly employed U.S. citizens.

One proposal in Congress is to raise the minimum salary level to $100,000.  That kind of across the board minimum does not work when taking into consideration the myriad of occupations, and the differences in cost of living (and thus salaries) of different parts of the country.  If Congress is intent on making salary a qualitative limitation on the H-1B category, it would be better to link it to a certain wage level within the DOL prevailing wage rates.  But doing so would make it virtually impossible for a company to hire a recent graduate, for example.  It would also make it harder for smaller companies, or start ups, to get the talent they need.

Recent Graduates

What to do about recent graduates from U.S. universities who are foreign students and require H-1B visa sponsorship to work in the United States?  Do we tell them to get out of the country after they've spent tens or hundreds of thousands for a U.S. education?  If we do so, we lose talent we need.  Increasing the minimum salary to a Level III or Level IV as a qualitative restriction would likely make it difficult for any recent graduate from a U.S. university to get a job under the H-1B.  Considering the fact that U.S. universities gain considerable income from foreign student tuition, and that many U.S. educated foreign students have gone on to start amazing companies employing droves of U.S. citizens, it would seem like we are shooting ourselves in the foot by turning away promising foreign graduates.  Yet opponents of H-1B visas may very well point to lost opportunities for recent U.S. citizen college graduates.  How can we balance the need to utilize talent from within U.S. universities, and ensure that qualified U.S. citizens don't get passed over?  A salary floor won't do that.

The STEM OPT program permits an F-1 student who has a degree in Science, Technology, Engineering or Math to obtain Optional Practical Training for a period of 36 months following graduation.  A solution to enable the United States to keep the best and brightest of our U.S. educated students would be to expand the STEM OPT program by allowing all degree fields to be eligible, but require the payment of at least Level II wages.  This represents a compromise which will ensure a transition period for U.S. graduates, increase the chance we will still have international students wanting to come and pay foreign student tuition at our colleges and universities, and protect opportunities for U.S. graduates by a prevailing wage requirement combined with a short period before the F-1 OPT recipient needs to comply with the stricter qualitative H-1B requirements.

Small Companies and Start Ups

Implementing a salary floor as a qualitative restriction is going to negatively impact small companies and start up enterprises.  Congress should consider providing an exemption from a salary floor or any quantitative (cap) restrictions for a certain small percentage of the company's workforce.  For example, if a company were to be given an allotment of up to 3 employees or 5% of their FTE employee total, whichever was greater, that would allow companies to supplement their workforce with global talent in a small proportion to their overall employee count.  It is hard to see how such a small percentage of H-1B workers, relative to the overall workforce, would negatively impact wages or working conditions.  

My Recommendation

If H-1B reform were left up to me, I would consider the following immediately:

  • Eliminate the H-1B numerical cap (a quantitative restriction) entirely;
  • Institute a salary floor at the Level IV wage level or above, per DOL prevailing wages, as a general rule for H-1B petitions;
  • Institute an F-1 student OPT program of 36 months with a salary floor at the Level II wage level or above, and remove the restriction on degree field;
  • Create an exemption from the Level IV wage level requirement for any petition which is filed by an employer which does not have more than 5% of full time employees in H-1B status (or more than 3 employees for a very small employer), but still require as per current law, the payment of prevailing wages based on the four levels currently available.

The above system would require high wages for companies which employ a large percentage of employees in the H-1B system.  It would also recognize that U.S. companies need to employ a certain level of global talent to remain competitive in the international marketplace.  If a company wants to employ more than a small percentage of their workforce, they'll have to pay more for it.

AILA Message on Presidential Campaign Result

A New Challenge for AILA and the Communities We Serve

 

We woke up this morning to the news most of us did not expect and many of our clients feared: after one of the most divisive campaigns in modern history that included statements maligning immigrants from Mexico and scapegoating Muslim-Americans, a call for mass deportations and the end of DACA, and a speech in Arizona presenting a wish list of restrictionist policy proposals, Donald Trump has won the election and will become the 45th president of the United States.  

All of us are facing calls from anxious clients: from DACA recipients whose hopes for a life with legal status for themselves and their families in the United States appear to be dimming, from relatives who fear their family members may be removed or forever barred from coming, from business leaders who are less confident that America’s immigration system will support economic growth, and from employees on work visas who fear losing all they have built in the United States.  We must remember that whatever personal anxieties we may have about what the next few years will bring are dwarfed by the fears and anxieties of our clients and the immigrant population.

For more than 70 years, AILA members have stood alongside our clients, helping them realize the American dream. We are their advocates and their voice, helping them through the tough times.  We have been here before: in the McCarthy era, when even a whisper of sympathy to the Communist cause could derail an immigrant’s life in the United States; in 1996 and the years that followed, when the Illegal Immigration Reform and Immigrant Responsibility Act wreaked havoc on our nation with severe penalties that had retroactive effect, and jurisdiction stripping provisions that severely curtailed federal court review; and in the dark days after September 11, when we found ourselves up against unexplained adjudication delays, detention without due process, and trials based on secret evidence.  Through it all, AILA members have worked tirelessly to secure fairness and justice for those in immigration proceedings of every kind.  And this time is no different. AILA will continue to fight for a just and fair system using every tool at our disposal.  

It is important to remember, as we look forward to an uncertain future, that we have invaluable and unlimited resources at our disposal: the talents, ingenuity, passion, legal acumen, and persistence of our fellow AILA members. Looking forward, we must continue to support one another as we always have, by coming together for inspiration, to share war stories, and to take every opportunity that we can find to advocate for fair and just treatment for immigrants. Together we must carry this message of unity and perseverance to the immigration agencies, to Congress, and to the courts.

We look forward to meeting these challenges together with all of you.

Benjamin Johnson, AILA Executive Director

 

TSI Alternative Now that Supreme Court Halts DAPA

Today the Supreme Court upheld the denial of the DAPA program in a split, 4 to 4 tie decision, issuing only a one sentence ruling, "The judgment is affirmed by an equally divided Court."  That means that DAPA (and also expanded DACA) will not go into effect.  The current DACA program remains unaffected, however, and will continue.

With the nation's highest court ruling effectively that DAPA cannot proceed, it is now time for the administration to consider implementing an alternative, which I proposed last year, which would also lead to work permits being issued to parents of american citizens with a long residence in the United States.  The alternative is the "Turn Self in for Deportation" alternative, and it is linked to a different executive power than the DACA program, and one that is less likely to fail in court like the DAPA program.  The alternative is founded on current law, the "cancellation of removal" statute, and the power of the executive branch to "commence proceedings, adjudicate cases, or execute removal orders" without judicial review.  The alternative, in short, requires the administration to allow the individuals who have been here for 10 years and who have a U.S. citizen or permanent resident child, spouse or parent to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application and work permit application, then Administratively Close their case so it gets out of the streamline of pending cases.

Because of the importance of this issue, I will reproduce the original blog post below in order to describe how such an alternative can work under existing law and be immune from judicial intervention.

The White House has another option to defer deportation and grant work permission for low priority undocumented immigrants - a Turn Self In for Deportation program.

How would that work?  The answer lies in the laws that Congress passed in 1996.  If a person in the United States without authorization can show 1) 10 years of continuous physical presence in the U.S. (with allowances for breaks of 90 days or less if totaling 180 days or less), 2) good moral character, 3) a lack of conviction for certain crimes, and 4) establishes that their removal would result in exceptional and extremely unusual hardship to the person's spouse, parent or child who is a U.S. citizen or lawful permanent resident, then that person can apply for a green card from an immigration judge, and have their deportation cancelled.  The law is 8 U.S.C. 1229(b) and it is called "Cancellation of Removal."  Yep, Congress said that if you have been here a long time and deportation would work a hardship on your kids, then you should be able to stay here as a lawful permanent resident.  That's the law.

It is probably no coincidence, therefore, that the DAPA program was established for otherwise law abiding individuals who have been here a number of years and are parents of American citizens.  If the government were to put all the estimated 4 million individuals who might qualify for DAPA into removal proceedings, a large portion of them would likely qualify for Cancellation of Removal, and would be entitled to a trial where they could prove the elements of the Cancellation of Removal claim.  This would completely cripple the removal system and prevent the removal of more dangerous individuals.  According to a Wall Street Journal Article, removal hearings are now being set 5 years into the future due to an already long backlog of cases waiting to be heard.  With 230 immigration judges around the country already handling 375,000 cases per year, the system is at the absolute limit. Add 4 million more to the list of pending cases, including mostly those with Cancellation of Removal claims (requiring more court time to handle than many other cases), and hearing dates could be set not 5 years away, but 50 or 100 years in the future.  Add to that the annual limit on 4,000 grants of Cancellation of Removal, and meritorious cases would be pending for 1,000 years.

So how would a Turn Self In for Deportation program work in place of DAPA?  The Obama Administration could allow the portion of DAPA eligible individuals who had the required 10 years in the country to be issued a Notice to Appear (NTA) in immigration court, allow them to file a Cancellation of Removal application, then Administratively Close their case so it gets out of the streamline of pending cases.  In the old days, the predecessor to the NTA, the Order to Show Cause (OSC) could be requested by walking an out-of-status client into investigations and having them written up.  This was done to seek relief before an immigration judge.  At some point the agency decided to limit the issuance of charging documents to cases they thought they could win.  But DHS could certainly allow the old process to operate again, and could certainly direct the Office of Chief Counsel to join in motions to Administratively Close all cases in which the person was eligible for Cancellation of Removal and who also requested such administrative closure.  This process would enable the individual to apply for a work permit, just the same result as if they had applied for DAPA.  By allowing the cases to be Administratively Closed, the system would not be crippled, and removal proceedings involving individuals with serious criminal convictions could proceed.  

So why don't more people just Turn Self In for Deportation?  That is because Immigration and Customs Enforcement (ICE) has no process to allow for this.  That's right - unless you are a priority for removal, ICE will not usually place a person in removal proceedings by issuing an NTA unless that person is a priority for removal, which at this time involves only people apprehended at the border or those arrested for crimes, and not all those otherwise law abiding individuals who may have Cancellation of Removal.  Some individuals have filed asylum applications in order to be placed in removal proceedings, because denial of asylum leads automatically to an NTA being issued and the individual being placed in removal.  The NTA filing, in turn, allows them to apply for Cancellation of Removal and a work permit, but the process is not without risk outside of an organized system as reported by the New York Daily News.  So, because of the risk of deportation, and the fact that no Turn Self In for Deportation program exists, few of the otherwise law abiding 4 million are in removal proceedings, and cannot therefore apply for Cancellation of Removal.  These are the truly "undocumented" because they are eligible for legalization but cannot apply for it unless they are in removal proceedings, and they aren't likely to get there because they are not committing crimes.

A Turn Self In (TSI) for Deportation program would also be even more shielded from judicial review than the DAPA program, because Congress has enacted laws (namely 8 U.S.C. 1252(g)) to completely insulate the decision to commence removal proceedings against someone from judicial review.  When this post was originally drafted in February 2015, a few scholars commented that the TSI program would be subject to the same problems as the DAPA program in terms of jurisdiction to review in the courts.  Not so, in my opinion.  As the Fifth Circuit held last year (and upheld by the Supreme Court today), "DAPA amounts to the Secretary's decision - at least temporarily - not to enforce the immigration laws as to a class of what he deems to be low priority aliens.  If that were all DAPA involved, we would have a different case."  Slip Op., p. 23-24.  The Court also held, "Unlike the claim in AAADC, the states' procedural claim does not involve a challenge to the Secretary's decision to 'decline to institute proceedings, terminate proceedings, or decline to execute a final order of deportation,' nor does deferred action pursuant to DAPA mean merely that 'no action will thereafter be taken to proceed against an apparently deportable alien.'"  Slip Op., p. 25-26.  The statute, 8 U.S.C. 1252(g), states that "...no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General [now DHS Secretary] to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act."  Because issuing an NTA to someone is an act to commence proceedings, it is immune from judicial review, unlike DAPA.  The decision to join in a motion to administratively close a case is arguably not within the jurisdictional protections of 1252(g), but if the agency were to have issued and filed several million NTAs in immigration court, it would be hard to imagine a court which would not allow the officials in charge of managing their dockets the discretion to join in admin closure motions to enable the orderly prioritization of the removal process.  If millions of cases were not administratively closed, it would result in the whole system grinding to a halt, and massive multi-decades waits for court hearings.  Also, the issuance of work permits is a separate process from the issuance of the NTA and the person's own application before the court for cancellation.  So DHS isn't really responsible for that, it is just part of how the system already works.  How could a court find any reason to stop a process that Congress itself enacted?

Now that the DAPA program has been halted by the nation's highest court,  the Obama Administration could consider allowing people to turn themselves in and issuing NTAs to several million of the DAPA eligible group who have been here at least 10 years.  As stated above, the commencement of removal proceedings is entirely beyond the jurisdiction of the courts to interfere with.  Upon filing all those millions of NTAs with the Immigration Court, the Administration could then decide to implement an orderly policy to Administratively Close them (since keeping them in the system would crash it) and allow the system that Congress established to issue the group work permits.  

A far better solution, however, would be for lawmakers to recognize that deporting parents of American citizens who have lived here for many years is not a practical strategy, setting aside for a moment even the humanitarian concerns, and work together in bipartisan fashion to come up with a logical and workable immigration system that takes this group out of the cross hairs of the deportation system.  Until that time comes, however, the Administration must come up with strategies to enforce the immigration laws in a smart way, including separating out those who should not be taking up our limited removal system resources by allowing them to provide proof of their low priority status.  In order to encourage people to come out of the shadows and become pre-identified as low priority for removal, the Administration must give some benefit - work authorization - for such a program to work.  

The parents of Americans with lengthy U.S. residence should be allowed the decision to document themselves as low priority by requesting an NTA, and after filing a cancellation application, be issued work permits.

H-1B Lawsuit Demands Place in Line

A place in line, not a rejection based on a computerized lottery, is what employers and employees are seeking in a soon-to-be-filed class action lawsuit challenging the H-1B lottery process.  Unlike the lottery, however, there is no need to cross your fingers on this filing, as the law is as plain as a pikestaff.  A lottery process for H-1B quota distribution is not authorized by law.  Instead, the law states H-1B numbers are to be provided based on filing date order.  The reasons that the H-1B lottery is illegal are outlined in our earlier BLOG and PODCAST.  The DRAFT LAWSUIT (in the form of the motion for summary judgment) is now available for review for the first time, before it is filed with the federal courts.  The lawsuit seeks the opportunity to resubmit rejected H-1B petitions and receive a priority date and place in line for future available H-1B numbers, so that rejected petitioners and beneficiaries do not have to endure another random lottery.  H-1B lottery victims may register their contact information on the H-1B LOTTERY LAWSUIT page and receive updates on the lawsuit, or register to be considered as a plaintiff.  You may also read the FAQ for more information.  

UPDATE - June 2, 2016 - the class action lawsuit has been filed in federal court.

Who's Who Legal Identifies Renison as Leading Corporate Immigration Lawyer

Who's Who Legal has identified Brent Renison as one of the world's leading private practice lawyers in the Corporate Immigration area.  Since 1996, Who's Who Legal has identified the foremost legal practitioners in multiple areas of business law around the world from over 100 countries.  Those lawyers listed have been selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide.  Only specialists who have met independent international research criteria are listed.

Back of the line! - but is it legal?

I’m going to explain how the immigration service has been unlawfully revoking the approval of petitions for nearly a quarter of a century.  The impact of this unauthorized action on hopeful immigrants has been terrible, resulting in many thousands losing their place in the queue after having waited many years, and having to move to the back of a line in some cases decades long.  To understand how this has happened, you’ll need to understand some basics of the immigration process.

We have a petition process in the U.S., which allows U.S. citizens and permanent residents to file an immigrant petition for a close relative, and allows a U.S. employer to file a petition for an employee after certain prerequisites are met.  The petition is a form that is filed with USCIS, the immigration agency, and when the petition is approved it is assigned a priority date which is the date the person got in line for one of the limited immigrant visa numbers.  In most cases, the priority date is the date the petition was filed, but in cases requiring Department of Labor certification before filing the petition, USCIS uses the DOL filing as the priority date.  Congress has established that immigrant visas, and thus green cards, should be given out in order of priority date, so that people whose petitions were filed before others in the same category should be given green cards first.

After USCIS approves the petition, the agency sends it to the State Department when the person is outside the United States.  It can be many years and even decades between the approval of an immigrant petition and a visa becoming available.  During those years of waiting, an immigrant can check the visa bulletin published by the U.S. Department of State on a monthly basis, or wait to be contacted by the State Department.  Since there are no accurate estimates of how long it may take to actually get a green card in a given category, most people wait to hear back from the State Department. 

After waiting years or decades, the State Department should ultimately send out a notice by mail and email to let the immigrant know their priority date is coming up for a visa number, and that they can apply.  This is called registration for a visa.  But the system of notification is far from perfect, and a person’s change in address or email address can result in the person not being notified.  Lots of people fail to receive notification.

Because there are some people who, after waiting so many years, decide not to immigrate after all, Congress authorized the State Department to terminate a registration where the immigrant has not contacted the State Department after a year.  There is no question that the State Department has been able to terminate registration for the orderly administration of visa issuance since the provision was enacted in 1976, when Congress authorized termination of registration.  In 1976, Congress also authorized automatic revocation of the petition itself.  Regulations were issued after that allowing not only for the State Department to terminate the person’s registration for a visa, but to also allow the immigration service to revoke the petition, effectively destroying it and the person’s place in line.  When that happens, everything is absolutely gone, and the person has to start over.  That’s a harsh result.  In 1991, however, Congress took away the immigration service’s ability to revoke the petition and take away the person’s place in line.  The regulations, however, were not updated, and in the past quarter century, the immigration agency has been revoking petitions based on the law prior to 1991.  This is unlawful and unauthorized.

There were good reasons for Congress to disallow the complete destruction of a petition and place in line just because the State Department terminated the person’s registration for a visa.  Back in 1975, when Congress was considering what to do with termination of registration and revocation of petitions, the State Department Assistant Secretary for Congressional Relations, Robert McCloskey, wrote a letter dated September 22, 1975 to the House Judiciary Committee Chairman.  In that letter, the State Department voiced its opposition to the termination and revocation law being considered by Congress.  Here is what the letter said:

“Section 5 (3) would amend section 203(e) by inserting therein provision for cancellation of an alien’s registration on an immigrant visa waiting list under certain circumstances.  Under this provision, an alien registered on an immigrant visa waiting list would face cancellation of his registration if he failed to pursue his application within one year after notification that his turn had been reached making it possible for him to do so.  The alien would be accorded one additional year during which he could seek restoration of his registration by establishing that his failure to pursue his application had been due to reasons beyond his control.  If the alien failed to come forward during the additional year or if he did so but was unable to establish that his failure to pursue had been due to circumstances beyond his control, the cancellation of his registration would become final and any petition approved to accord him an immigrant status would be revoked. 

The issue of registrants on immigrant visa waiting lists (often referred to as ‘insurance registrants’) who do not pursue their applications when given an opportunity to do so is a long-standing and difficult one.  The presence of such applicants on waiting lists adds to the recordkeeping and other administrative burdens on consular offices abroad and can create false impressions of the magnitude of active demand for immigration.  The Department is, therefore, sympathetic with the objective of this proposed amendment.  On the other hand, the Department foresees that there may well be difficulties in the implementation of this proposal and that its implementation could itself add to the administrative burdens on consular officers.

For this reason, the Department several years ago established an administrative procedure which achieves the purposes sought by this proposal but without incurring the potential difficulties which this proposal might entail.  Consular officers have been instructed to separate all pending immigrant visa applications into two categories – active and inactive.  Among those cases considered to be ‘inactive’ are those in which the alien has failed to respond to an invitation to pursue his case within one year after the invitation is sent to him.  Records pertaining to ‘inactive’ cases are stored separately from those pertaining to ‘active’ cases and are generally not maintained in the working areas of consular offices.  Thus, the administrative burdens associated with maintenance of such records are avoided and there remain only isolated cases in which available storage space is constricted.  Furthermore, all summary reports of total registered demand for immigration are maintained by the two categories – active and inactive – and it is thus possible to identify without difficulty total active registered demand for immigration and, thus, to have a meaningful idea of its magnitude. 

Since this administrative procedure involves neither physical destruction of records and associated documents nor the loss by an alien of any entitlement under the law, it is our belief that it is preferable to the procedure proposed in section 5 (3) of the bill.  We are, therefore, opposed to the enactment of this section.”

So, the State Department was itself opposed to the termination of registration provisions, particularly because it would result in “loss by an alien of any entitlement under the law,” but Congress enacted the restriction in 1976 anyway, although later in 1991, Congress acted to restore a person’s ability to have their visa petition remain intact after State Department terminated registration for the visa. 

Digging into the statute, INA Section 203(g) is the current one which went into effect on October 1, 1991, and 203(e) was the statute in existence prior to that date.  The old 203(e) read as follows:

“(e) ...The Secretary of State shall terminate the registration of any alien who fails to apply for an immigrant visa within one year following notification to him of the availability of such visa, but the secretary shall reinstate the registration of any such alien who establishes within two years following notification of the availability of such visa that such failure to apply was due to circumstances beyond his control.  Upon such termination the approval of any petition approved pursuant to section 204(b) shall be automatically revoked.”

The new and current 203(g) section has almost identical language except for the last sentence, authorizing automatic revocation.  In 1991, the statute was amended to specifically remove that.  So that means as of 1991, USCIS had no authority to automatically revoke petitions in cases where the immigrant’s visa registration was terminated.  Yet, the automatic revocation regulations were drafted prior to the change, and were never updated, and thus USCIS has been unlawfully revoking the approval of petitions for the past 24 years based on outdated and unlawful regulations.

There is a section which authorizes USCIS to revoke petitions.  INA Section 205, states: “The Secretary of Homeland Security may, at any time, for what he deems to be good and sufficient cause, revoke the approval of any petition approved by him under section 204.  Such revocation shall be effective as of the date of approval of any such petition.”

That section does not, however, authorize automatic revocation.  Courts have held that the immigration service cannot automatically revoke petitions, and that “good and sufficient cause” requires something that would have formed the basis for a denial in the first place.  The Board of Immigration Appeals, in a case called Matter of Estime, held that petitions can only be revoked based on facts which might have resulted in a denial in the first place.  For example, if USCIS approves a case and then discovers later a fraud was committed, then that is good and sufficient cause.  Also, if someone does not respond to Department of State fast enough, then the statute authorizes the State Department to terminate their registration with the State Department.  But that by no means constitutes a basis for USCIS to then revoke the approval of the petition.  There are drastic consequences that result from termination followed by automatic revocation – loss of priority date is the big one. 

There is also the case of Singh v. Clinton, in the 9th Circuit, which holds that in order to be effective, the “alien” must be notified of the availability of the visa, which means the beneficiary, and you may well know that NVC has been bad about sending any notice to beneficiaries at all, instead sending the notice to the petitioner.  So most terminations are not valid for that reason.  But termination of registration can be remedied by paying the visa fee again, and getting the case put back into active status.  When USCIS revokes a petition, however, it has far ranging consequences.  As I said before, it results in the destruction of the petition, and also in the loss of one’s place in line. 

USCIS must immediately stop revoking petitions following a State Department termination of visa registration.  Then, the agency needs to update its regulations to be in compliance with the law passed in 1991.  If the agency fails to do these things, then the courts should step in and require them to halt the unlawful practice.  Longstanding canons of statutory interpretation hold that the regulations cannot do more than the statute allows.  Here the regulation does only what the old law allowed, and goes beyond the current law.  The USCIS policy here is vulnerable to a legal challenge, and the agency would be wise to update the policy before a judge tells them to.

Photo by Digital Vision./Photodisc / Getty Images
Photo by Digital Vision./Photodisc / Getty Images

Go Ask Your Mother - DOS to USCIS

"Go ask your mother," is what Department of State has said to aspiring immigrants, referring them to USCIS to see whether the November visa bulletin will be honored or not.  This is an embarassing slap in the face to the immigration agency, and exposes infighting and lack of communication between the two agencies responsible for managing the legal immigration process.  

On Friday October 9, 2015, the State Department issued its November Visa Bulletin, the first after the October #Visagate2015 fiasco, and for the first time asked readers to look to the USCIS for answers as to whether the bulletin would be accepted.  While the October visa bulletin stated, "USCIS has determined that this chart may be used...this month for filing applications for adjustment of status with USCIS," the November bulletin in contrast stated, "Visit http://www.uscis.gov/visabulletininfo for information on whether USCIS has determined that this chart can be used...this month for filing applications for adjustment of status with USCIS."  By sending immigrants over to USCIS, they're essentially saying, "Go ask your mother!"  Don't ask us whether it is ok or not, just ask USCIS.

USCIS, in turn, has not updated its website to indicate whether the November visa bulletin will be accepted.  This is embarassing.  If it was intentional, it is embarassing, and if it was negligent, it is embarassing.  How can our government operate in such a way, when the stakes are so high?  When the two agencies which oversee the orderly immigration process have decided to stop talking and coordinating, what can we come to expect?  Can we rely upon the representations made, or will we be left guessing?  What is Secretary of State John Kerry saying about all this, or Leon Rodriquez, the USCIS head?  One can only assume that the agencies have run amok, and are leaderless, scattered and divided.  That does not bode well for immigrants, their families, and the employers who rely upon them for critical support.