Framing a New Office L with Help from the Office of Inspector General
by Myriam Jaidi, Associate with ABIL member, Cyrus D. Mehta
An individual seeking to transfer to the United States as a manager or executive (specialized knowledge employees will not be addressed in this blog) comes to you for help. She may be interested in opening a new office, or may be transferred to an existing company that has been operating for more than one year. In either event, the business involved is a small one and your client may be the only employee or one of few employees.
In light of the August 2013 report from the Department of Homeland Security ("DHS"), Office of Inspector General ("OIG") (OIG-13-107), you know you face an uphill battle, but one that may be winnable. We note that the 2006 OIG report on the L nonimmigrant category was mandated by law (section 415 of the Consolidated Appropriations Act of 2005, Pub. L. 108-447), but the 2013 report was issued at the request of Senator Grassley, specifically to examine the potential for fraud or abuse in the L-1 category. Senator Grassley has been a well known critic of immigration and is more likely than not to suspect fraud as he done with other categories, such as the H-1B and B visas, among others. Despite the potentially negative driving force behind the impetus for the report, it provides valuable insights and guidance on the L category, and some very important nuggets for practitioners filing for small businesses.
One important take-away of the OIG report, that we as practitioners have doubtless noticed, is that adjudication of L petitions has been inconsistent across various fields. "We reviewed L-1 petitions ranging from the restaurant industry to the information technology field, and concluded that adjudicators reach different decisions despite similar fact patterns." It is some comfort for practitioners, who sometimes stand amazed at the different outcomes for similar petitions, that the OIG has identified this reality and raised it as a problem.
The OIG conducted domestic and international field work, interviewing USCIS and CBP personnel, as well as consular officials, as well as managers within both the DHS and the Department of State, and found vulnerabilities in various areas, and here we focus on their critique of new office Ls and extensions. The OIG states that new office petitions (and to some extent, extensions thereof) "are inherently susceptible to abuse because much of the information in the initial petition is forward-looking and speculative." Specific problems the OIG identified in its file reviews of new office petitions included the following:
Lack of a realistic business plan or a plan that is so vague, the petitioner cannot present a viable path to meeting L-1 definitions at the end of the 1-year period;
Initial staffing structures that raise questions about the future need for an L-1A manager or executive. Common examples we reviewed included gas stations or convenience stores that list several "managers," with few workers involved in the day-to-day functions of the business;
Managers who perform nonqualifying work as a central part of their job; and
Inconsistencies or vagueness in how the beneficiary's managerial or executive job is described.
The report concludes that given the integrity risks and uncertainty at issue in new office petitions, they are "sometimes" approved erroneously. As practitioners we know that such petitions are sometimes denied erroneously as well. It is unclear how often erroneous approval occurs, or how widespread the problem is. The way the OIG report frames the issue, emphasizing improper approvals without further information on actual numbers, may result in a backlash against approval of new office L-1As, even strong cases. (The fact that the approval numbers declined drastically after the 2006 OIG report was issued (57,218 in 2007 to 33,301 in 2011) does raise the possibility that companies may face more difficulty in getting new office petitions approved after this particular report sinks in.)
In light of this bias, practitioners will need to use the information in the OIG report to strengthen new office petitions, as well as extensions, especially for small businesses. Initially, we should address what makes a business a "small" business. The H-1B fraud indicators (less than 25 employees, less than $10 million in gross income, less than 10 years in existence) are not helpful in the L context because if they were applied, most small businesses would not be able to pass muster. The L statute and regulations are structured such that a single person may open a new office in the United States pursuant to valid L-1 status. However, as the excerpt from the OIG report above demonstrates, the smaller the company in terms of number of employees, and funding, the more suspect the application. This is because the smaller the operation, the logic goes, the less likely the individual will be performing primarily qualifying duties, and the less likely the organization can support someone in a managerial or executive position. The statutory definitions specifically indicate that size may be taken into account in "determining whether an individual is acting in a managerial or executive capacity", however, where this is done, the government must "take into account the reasonable needs of the organization, component, or function in light of the overall purpose and stage of development of the organization, component, or function." INA 101(a)(44)(C).
If the company will initially have only one or a small number of employees, it is important to present clearly what the beneficiary will be doing during the start-up or initial phases, and how his or her duties may change over time as the business develops. Presenting a clear road map of development and duties will help you avoid the label of a fatally vague business plan. Demonstrate that the beneficiary may initially set up the business, rent office space, hire subordinates and/or contract for services such as accounting, payroll, even marketing and public relations, but once these decisions are made and implemented and she has assured administrative and operational support, she will focus on managerial or executive duties. Explain what her duties will be and why, support that explanation with the relevant facts and figures from a detailed business plan, and present a reasonable projection of what her future duties will be based on the type of organization, its expected needs at the one-year mark (and beyond), and the position she is slated to fill. Explain any non-qualifying duties to further distinguish the time spent on qualifying duties. In addition, if the beneficiary receives support from abroad, explain how that support ensures the development and continuing operation of the company, and how it supports the argument that the beneficiary is serving in a managerial or executive role. Finally, if during a first year some event beyond the petitioner's or beneficiary's control has significantly negatively impacted the petitioner's business and therefore its business plan, such as a natural disaster like Hurricane Sandy, such an occurrence should be explained in an extension petition. Under such circumstances, where the business has been negatively impacted, the petitioner may suggest to USCIS that if it is not inclined to approve the extension for two years under the circumstances, it could approve the petition for one year and have the petitioner make a stronger showing once it has regrouped after the event, at the next extension.
In some instances, such as in cases where the beneficiary will be serving as a "functional manager," it may be arguable that hiring workers is crucial to managing the essential function. For example, where the beneficiary manages the sales function, an important part of doing so would be to ensure a sales team is in place to carry out the actual sales. Though the OIG specifically lists hiring workers are a nonqualifying duties (see page 19), practitioners may still be able to demonstrate that in fact such a duty is a part and parcel of managing a specific function, and ensuring that the manager is not engaging in the function managed. Of course, it is important, given the guidance, to ensure that the individual is not primarily hiring employees, but the fact of hiring employees need not be dismissed out of hand as nonqualifying.
In providing an overview of the qualifying duties, and in order to dispel the presumption of "nonqualifying work as a central part" of the position, it is recommended to provide an estimate of the percentage of time the beneficiary will spend on each duty. Of course, this can be a painful exercise, particularly because a beneficiary's broader duties may not be easily dissected into meaningful minute-by-minute tasks. While attempting to trying to break up the duties, you may want to emphasize that these percentages are only an approximation as in the real world, especially involving a manager or executive with high level duties, it is often difficult to pinpoint the exact percentage of time devoted to each duty by the very nature of the high level position. Unlike a worker in a non-managerial clerical or factory job, where the employer assigns the duties in a precise manner, a top level manager who performs at the highest level within an organization must multi-task, and many of the duties may overlap. A successful manager or executive is also required to adapt to challenges and a changing business environment, in order to maximize growth for the organization. Given the discretionary role of a high level manager or executive, it would at times undermine that role if a strict percentage of time was assigned to each and every duty as it would prevent the manager or executive from innovating, adapting or taking risks. Risk-taking is vital for growth, innovation and job creation, which requires the qualities of flexibility, adaptability and the ability to change in the face of new business trends. Nevertheless, it is important to elicit and sift through the beneficiary's duties. Have them assist you in developing as specifically as possible what tasks she does and the time she tends to allocate to each. This will allow the beneficiary to present the clearest picture of the beneficiary's work and credibly demonstrate that she spends the majority of her time on qualifying duties. As an aside, it is not clear what percentage of managerial or executive duties meets the "primarily" threshold, though a general guideline, echoed in USCIS statements (specifically, R. Divine, "Comments on OIG Draft Report: A review of Vulnerabilities and Potential Abuses of the L-1 Visa Program," (Jan. 10, 2006) (included as Exhibit E to the 2006 OIG report)), is that primarily means a "majority of the time." Use this as a guide, but keep in mind that the more qualifying duties the better, and the stronger the argument that each duty is a qualifying duty, the better.
In its list of suspect cases included above, the OIG specifically singled out "gas stations or convenience stores" as examples of cases where "initial staffing structures . . . raise questions about the future need for an L-1A manager or executive." There is nothing in the law that precludes the ability of Petitioners that run gas stations, convenience stores, or similar small businesses, to obtain approval for L-1 transferees. This may not be possible for the average mom-and-pop gas station or single convenience store owner, but where the petitioner starts with one operation, such as a gas station or convenience store as an anchor investment, and demonstrates that it is expanding or intends to expand to further investments under the guidance of a function manager who is responsible for the essential function of business development, a sufficiently strong case can be made. Under INA § 101(a)(44)(A)(ii) and (iii), a function manager does not need to be supervising other managerial or professional employees in order to qualify for L-1A visa classification. Crucial in these cases is showing that the function manager is relieved from performing non-qualifying duties by subordinate staff, whether they are professional or not. Moreover, the petition would have to demonstrate that additional investments are being planned and pursued by the beneficiary pursuant to his or her mandate of strategic management, growth and investment. Again, specifics are very important – show the steps the beneficiary is taking to pursue investments (emails, letters of intent, etc.), the financing involved in such investments, explain why such action is properly taken by a function manager, someone with high level authority to commit the petitioner to a course of action or expenditure of funds.
A variety of types of small businesses can successfully petition for a transferring manager or executive (or specialized knowledge) employee. Successful cases may involve varying amounts of capitalization, salaries, numbers and types of employees, and various levels of interaction and support by the foreign entity, whether administrative, operational, or financial. The key appears to be the level of detail provided, the fact that such detail is borne out in a well diversified set of supporting documents illustrating each point made the petition, and that all issues, including elements of a position that may be nonqualifying, are clearly explained. Such detail can help to overcome the suspicion the OIG has with regard to smaller companies, or companies that are family owned and operated. In the case of family businesses, the petitioner should explain the family relationships involved and make clear the role each family member will play in the business, and their qualifications for such roles. The OIG has indicated that family based operations have been a vehicle for fraud, so a cautious practitioner will need to disabuse them of this presumption by hitting the issue head on and demonstrating the validity of the managerial or executive employment.
Practitioners and petitioners should also be aware that beginning in the first quarter of 2014, USCIS's Fraud Detection and National Security Directorate (FDNS) expects to conduct post-adjudication domestic L-1 compliance site visits. The OIG recommended that "USCIS make a site visit a requirement before extending 1-year new office petitions." The USCIS concurred and plans to being doing such site visits prior to granting an extension in a new office. Beneficiaries should be advised of the potential for a site visit to ensure that if an FDNS representative comes by, that everyone at the business knows who the beneficiary is and direct the FDNS officer to the person who will answer questions about the petition most accurately.
That the OIG report demonstrates that the government may view petitions filed by small businesses unfavorably is helpful to petitioners in illustrating how they need to improve petitions they file, and where they need to provide explanations and documentation to further demonstrate the credibility of a petition. Petitioners should also highlight that small businesses are a recognized engine of a recovering economy, as borne out by reports published by organizations like the November 2009 report by the Ewing Marion Kauffman Foundation, and articles by Thomas Friedman, and other reputable writers addressing economic issues. The statutes and regulations governing the L category themselves recognize the importance of new and small businesses, despite the government suspicion of them. As discussed on numerous occasions on this blog, USCIS has also recognized the importance of entrepreneurs and small business in the context of its "Entrepreneurs in Residence" initiative. In addition to presenting a strong, well-documented petition, practitioners can balance the negatives presented by the OIG against the positives presented by the USCIS in the context of its support of entrepreneurs, and include a short discussion of the significance of small businesses, even family businesses, in the context of economic recovery and growth.
The OIG reports from 2013 and 2006, along with the USCIS memoranda responding to each report, are required reading for practitioners representing petitioners filing new office Ls and extensions thereof. In addition to the regulations, these documents provide essential guidance on how to strengthen cases for new and/or small businesses.
Immigration Voices: "Visa Now Needed for U.S. Citizens to Enter the Beltway?"
Angelo Paparelli, ABIL Immediate Past President and Ted J. Chiappari *
Shutting down the government for a couple weeks gave Congress time to turn to our immigration laws this month. Reports have been leaked that at the top of Congress's agenda is a proposal to introduce a visa requirement for US citizens to enter and reside in Washington, DC. Dubbed the Beltway visa and assigned the letters "DC", the proposed visa requirement has been praised by some as a rare expression of Congressional introspection and an acknowledgment that our elected officials have so alienated themselves from their constituencies that the District of Columbia deserves special status as its own sovereign jurisdiction within the United States. Others have criticized the move as a political ploy to draw attention away from serious immigration reform. Here are the contours of the proposed law:
Who is Eligible for the Beltway Visa?
An internal straw poll of current Members of Congress shows universal agreement that they will be eligible for the new visa without the need to do anything other than present their Congressional ID at ports of entry into the Beltway. Most legislators also agree that lobbyists should qualify for the visa, but with some restrictions. The proposal with the most traction is to adapt the current EB-5 investor visa category[i] to allow lobbyists meeting certain criteria to reside permanently in Washington, DC. Lobbyists would have to invest at least $1 million in a pooled Congressional incumbents' campaign fund and prove how the lobbyist's investment will create at least 10 jobs for US workers.
There is bitter dispute, however, about whether federal employees (other than Members of Congress) should be granted the DC visa. Most likely, the increased fees and hiring limits on H-1B specialty occupation workers and L-1 intracompany transferee workers proposed in the recent Senate bill on comprehensive immigration reform (called S.744)[ii] will be adopted in modified form, requiring executive branch agencies to pay annual fees from $2,500 to $15,000 per federal employee and placing a cap on the number of workers an agency could employ in order to discourage the government from hiring. Some Congressmen proposed adding a general provision to defund the judiciary entirely and indefinitely, but because of Constitutional concerns raised, Congress will most likely develop a more measured response to its concerns about judicial activism and intervention in immigration matters, perhaps by limiting the period of any activist judge's authorized stay in DC status to three non-consecutive months per year.
Impact on Current Residents of Washington, DC?
Spokesmen for Congressional members pressing for the new visa acknowledge that the proposal, if enacted, would render virtually all current residents of the District of Columbia "illegal" (or to use the preferred term among the Washington elite, sans papier, and deportable to one of the 50 States. Various monetary fees have been discussed, ranging from $1,000 upwards, that residents could pay in order to obtain the new visa and remain in Washington, DC. Concerns about mass deportation were summarily dismissed, however, with Congressmen emphasizing the importance of national security, fiscal responsibility and the rule of law. Commuters from neighboring states would similarly be affected, but concerns about loss of talent precipitated by the new restriction and its economic impact were also dismissed. Some Congressmen were adamant that there was plenty of talent already in Congress and no need to import any more. One Senator conceded off the record that, with the government shut down, there really wasn't all that much to do, so he didn't see a problem.
There has been vigorous debate on how best to enforce the borders of the District of Columbia. Some Congressmen have insisted that no visas should be processed until the District's borders have been effectively sealed, saying they don't want to repeat the mistakes the United States has made with its international borders. Others want to introduce "triggers" similar to those in S.744, tying the legalization of the undocumented to the achievement of certain border security milestones. Some have advocated that the District should apply the latest drone technology to secure its borders, while others are placing their faith in National Security Agency (NSA) monitoring systems to track "illegals" entering Washington without proper documentation.
New Grounds of Inadmissibility – E-Verify and Mandatory Health Insurance
In order to use the DC visa, visa holders (other than members of Congress) would be registered with E-Verify[iii] and thereby prove their eligibility to work in the United States as a prerequisite to obtaining the DC visa. (Since so many sight-seeing attractions in Washington were closed due to the shutdown, Congress hasn't actually given any thought to foreign tourists who might want to visit our capital and how they could comply with this requirement.) Should the federal government – including the current E-Verify program – become unfunded again (a real possibility given the partisan one-upmanship after a deal was struck in the 11th hour on October 16), the Beltway visa would remain unavailable except to current Members of Congress. A proposal has also been suggested to fund E-Verify with user fees – similar to how immigration benefits currently are funded – to raise revenue and to allow for the DC visas to be issued as soon as possible, but some members of Congress are actually pleased that the lack of funding would delay implementation of the new visa.
DC visa applicants must also prove that they have adequate health insurance, a provision borrowed from the J-1 exchange visitor program.[iv] Congress has also seriously considered borrowing the basic construct of the J-1 program for the DC visa, delegating the administration of the program to private-sector agents, called "sponsors," who would be responsible for the initial review of the application for eligibility and would also be held accountable for visa-holders' compliance with the program requirements.[v]
Narrowly defeated was a proposal to keep deadbeats out of DC by insisting that visa applicants prove their creditworthiness as part of the visa application. The proposed ground of inadmissibility would have prohibited DC visa issuance to anyone who has ever defaulted on a loan.
As mentioned above, Congress has considered various means to limit even further what it considers to be judicial meddling in immigration matters. In the eyes of many Members of Congress, current law[vi] has still not effectively stripped the courts of jurisdiction over immigration matters, so Congress is considering not only the defunding of the judiciary but also repeal of the Administrative Procedure Act, at least with regard to immigration matters, and some have even floated a Constitutional amendment.
Legislators have written conflicting effective dates into the various DC visa bills, some preferring December 32, 2013, while others are advocating for a retroactive September 31, 2013. Ordinarily, these kinds of discrepancies are left to the executive branch or the courts to resolve if Congress doesn't come up with a fix itself. With another government shutdown on the horizon and judicial review potentially eliminated, it remains up to Congress to clarify when the Beltway visa law, if in fact enacted, will take effect.
Comprehensive immigration reform, like health care, tax reform and a balanced budget, is hard work. Tough decisions must be made, policies thought through, discussed civilly and resolved through compromises hammered out where both sides set partisanship aside. Running into your room and locking your door – in essence what the House of Representatives did on the 2014 budget and continues to do on comprehensive immigration reform – does not produce effective solutions to complex problems. Instead, it only invites ridicule. We deserve better.
* Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City. Angelo A. Paparelli is a partner in Seyfarth Shaw in New York and Los Angeles. The authors thank Olivia M. Sanson, an associate at Satterlee Stephens Burke & Burke LLP for her assistance in the preparation of this article.
[i] By way of background, the EB-5 investor visa gives entrepreneurs the option to obtain permanent residence (the "green card") in the United States if they make a substantial investment in a business that creates at least 10 full-time jobs for US workers. That investment can be as little as $500,000 if the business is in a high unemployment area; otherwise the minimum investment is $1 million. The program has gained tremendously in profile and popularity recently, in part because of lack of readily available credit from traditional sources, which has increased the demand for alternative sources of financing, and in part because the program's insistence on job creation is politically attractive. Even so, critics claim that the program is fraught with abuse and poor administration, and also claim the program favors wealthy foreign nationals and puts a price tag on US citizenship, a perception fostered, e.g., by online ads from immigration attorneys on "Buying a EB5 Green Card" (see. e.g., http://www.youtube.com/watch?v=cyJ_OcyYqZY, last accessed on October 14, 2013). See Andrew Rafferty, "Money can't buy love, but it can open the door to US citizenship," U.S. News on NBCnews.com (April 28, 2013), http://usnews.nbcnews.com/_news/2013/04/28/17724530-money-cant-buy-love-but-it-can-open-the-door-to-us-citizenship (last accessed on October 14, 2013).
[ii] S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act , the bipartisan bill passed in June 2013. For a detailed summary of the bill's H-1B and L-1 provisions, see Austin T. Fragomen, Jr., "Immigration Reform and the H-1B and L-1 Categories," 90 Interpreter Releases 1763 (Sep. 2, 2013). See also Immigration Policy Center, American Immigration Council, "A Guide to S.744: Understanding the 2013 Senate Immigration Bill," at http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill, for a summary of all of the bill's provisions. On October 2, 2013, Democrats in the House of Representatives introduced H.R.15, also entitled the Border Security, Economic Opportunity, and Immigration Modernization Act and based on the Senate bill – see Immigration Policy Center, American Immigration Council, "A Guide to H.R. 15," at http://www.immigrationpolicy.org/special-reports/guide-hr-15-border-security-economic-opportunity-and-immigration-modernization-act (last accessed on October 14, 2013).
[iii] Under S.744, E-Verify, now a voluntary (and free) program that allows businesses to confirm employment eligibility online, would become mandatory for all employers over a five-year period. See Immigration Policy Center, American Immigration Council, "A Guide to S.744: Understanding the 2013 Senate Immigration Bill," at http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill,
[iv] 22 CFR § 62.14 requires that each exchange visitor have medical and accident insurance in effect throughout the entire visit. The mandatory insurance must include coverage of medical benefits of at least $50,000 per accident or illness, repatriation of remains in the amount of $7,500; medical evacuation expenses of $10,000; and a deductible of no more than $500 per accident or illness.
[v] See, in general, 22 CFR §§ 62.1 – 62.17.
[vi] 8 USC § 1252 [Immigration and Nationality Act § 242], which, among other things, generally precludes judicial review of any denial of discretionary relief and of any removal order based on the commission of a criminal offense.
Matter of Douglas: The BIA Confirms That Brand X Can Sometimes Be a Force for Good
On October 17, 2013, its first day back to normal operations after the end of the recent federal government shutdown, the Board of Immigration Appeals (BIA) issued a precedential opinion, Matter of Douglas, 26 I&N Dec. 197 (BIA 2013). At first glance, Matter of Douglas is about an interesting but obscure aspect of a section of the Immigration and Nationality Act (INA) that was repealed more than a decade ago. But perhaps more importantly, Matter of Douglas is also an example of the BIA using its authority to go against Court of Appeals precedent decisions under National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) ("Brand X"), to the benefit of an immigrant and potential U.S. citizen rather than to the detriment of the immigrant.
At issue in Matter of Douglas was former section 321(a) of the INA, repealed effective February 2001 by the Child Citizenship Act of 2000, which in relevant part replaced INA §321(a) with the simpler rule of current INA §320. As Matter of Douglas explained, former §321(a)
provided that citizenship was automatically acquired by a child born outside the United States of alien parents under the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents, is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of the subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.
Matter of Douglas, 26 I&N Dec. in 198 (emphasis in original).
The question in Matter of Douglas was the relevance of the order in which the conditions of former INA §321(a) were satisfied. As the BIA explained, Mr. Douglas
was born in Jamaica on January 29, 1976, to his married parents, each of whom was a native and citizen of Jamaica. On December 14, 1981, [Mr. Douglas] entered the United States as a lawful permanent resident. [Mr. Douglas]'s mother was naturalized on April 13, 1988. His parents were divorced on July 25, 1990. [He] became 18 years old in 1994.
Matter of Douglas, 26 I&N Dec. at 198. That is, Mr. Douglas's mother became "the parent having legal custody of the child when there has been a legal separation of the parents" under former INA §321(a)(3) only after she was naturalized, having been naturalized in 1988 and divorced in 1990. Both of these events, however, happened while Mr. Douglas was a lawful permanent resident and before he reached the age of 18, in compliance with former INA §321(a)(4)-(5).
In its earlier decision in Matter of Baires, 24 I&N Dec. 467 (BIA 2008), the BIA had held that "A child who has satisfied the statutory conditions of former section 321(a) of the Immigration and Nationality Act . . . before the age of 18 years has acquired United States citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after the naturalization." Matter of Baires, 24 I&N Dec. at 467. Under this rule, Mr. Douglas would be a U.S. citizen. Case law of the U.S. Court of Appeals for the Third Circuit, however, as the BIA acknowledged, required that one seeking to show acquisition of citizenship under former INA §321(a)(3) demonstrate "that his [parent] was naturalized after a legal separation from his [other parent]," rather than before such a separation. Jordon v. Att'y Gen., 424 F.3d 320, 330 (3d Cir. 2005) (alterations in original) (quoting Bagot v. Ashcroft, 398 F.3d 252, 257 (3d Cir. 2005)). In Matter of Baires, the BIA had noted the Third Circuit case law, but had indicated that "we are not bound by the Third Circuit decisions on which the Immigration Judge relied because this case is within the jurisdiction of the Fifth Circuit." 24 I&N Dec. at 469. The proceedings in Matter of Douglas, however, had taken place within the jurisdiction of the Third Circuit, and so the BIA had to decide whether to follow Matter of Baires or the Third Circuit's decisions in Jordon and Bagot.
The BIA chose to follow Matter of Baires, rather than Jordon and Bagot, and so found Mr. Douglas to be a U.S. citizen and terminated his removal proceedings. Under Brand X, as the BIA explained, an administrative agency such as the BIA can sometimes be entitled to "Chevron deference" pursuant to Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) regarding its interpretation of a statute, even when there has been a prior court interpretation of the statute going the other way, so long as that court did not find that the statute unambiguously supported its interpretation. Believing that its interpretation in Baires was a reasonable interpretation of the statute, and that Jordon and Bagot had not interpreted the statute to be unambiguous, the BIA concluded that under Brand X it could and would follow Baires, rather that Jordon and Bagot, even in the Third Circuit.
It appears that this may be the first time that the BIA has explicitly relied on Brand X to rule in favor of the immigrant respondent. The BIA has, to be sure, previously rejected Court of Appeals case law that it thought to be incorrect in favor of a more immigrant-friendly approach. In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), for example, the BIA declined to follow the Second Circuit's decision in Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir 2006), and held that the one-year period in which a timely application for asylum may be made runs from the applicant's literal "last arrival" even when that last arrival followed a relatively brief trip outside the United States pursuant to advance parole granted by immigration authorities (which the Second Circuit had held would not restart the one-year clock). The proceedings underlying Matter of F-P-R-, however, appear to have taken place in the Ninth Circuit, not the Second, see 24 I&N Dec. at 682 (referring to "the absence of any controlling decisions on the issue from either the United States Court of Appeals for the Ninth Circuit or the Board"), and so the BIA did not have to determine whether it would follow Joaquin-Porras within the Second Circuit. Here, in contrast, the BIA held that it would not follow Jordon and Bagot even within the Circuit that had decided them. And while there was a footnote in the BIA's acclaimed decision in Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012) (regarding travel on advance parole by one who has accrued unlawful presence) that could be read as pointing in this direction, the BIA in Arrabally made much of the fact that it was addressing an aspect of the law that the petitioner in the Third Circuit's previous decision in Cheruku v. Att'y Gen., 662 F.3d 198 (3d Cir. 2011), had not challenged, see Matter of Arrabally, 25 I&N Dec. at 775 n.6. It appears that Matter of Douglas may be the first BIA decision to go flatly against a contrary Circuit precedent under Brand X and do so to the benefit of the immigrant respondent.
The possibility of using Brand X as a force for good has been raised before, notably by Gary Endelman and Cyrus D. Mehta in their articles on "The Tyranny of Priority Dates" and "Comprehensive Immigration Reform Through Executive Fiat", as well as their post on this blog which explained how the BIA's decision in Matter of Zeleniak, 26 I&N Dec. 158 (BIA 2013), implementing the Supreme Court's striking down of Section 3 of the Defense of Marriage Act in United States v. Windsor, 133 S. Ct. 2675 (2013), effectively overruled the Ninth Circuit's earlier decision in Adams v. Howerton, 637 F.3d 1036 (9th Cir. 1982) in regard to recognition of same-sex marriages for immigration purposes. Like Matter of F-P-R-, however, Matter of Zeleniak had not explicitly relied on Brand X. In this regard, Matter of Douglas is a significant step forward.
Of course, Brand X is not always a force for good. Less than a year ago, for example, the BIA decided in Matter of M-H-, 26 I&N Dec. 46 (BIA 2012), that it would disregard the Third Circuit's decision in Alaka v. Att'y Gen., 456 F.3d 88 (3d Cir. 2006), and follow its own prior decision in Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), so as to consider even some crimes that are not aggravated felonies as "particularly serious crimes" which can bar withholding of removal. The merits of Matter of M-H- (which this author considers dubious) are beyond the scope of this blog post, but it is only one example of the fact that the BIA can seek to rely on Brand X to strip applicants for relief of protection that a Court of Appeals has given them. Also within the last year, the BIA invoked Brand X in Matter of Cortes Medina, 26 I&N Dec. 79 (BIA 2013), to find that violation of California Penal Code 314(1), regarding indecent exposure, was categorically a crime involving moral turpitude, despite the contrary decision of the Court of Appeals for the Ninth Circuit in Nunez v. Holder, 594 F.3d 1124 (9th Cir. 2010). Nor are these the only examples; an exhaustive list of all instances in which Brand X has been invoked by the BIA to the advantage of the Department of Homeland Security and the disadvantage of an immigrant would unnecessarily lengthen this blog post.
Now that the BIA has acknowledged in Matter of Douglas that Brand X is not a one-way ratchet and can also work in favor of immigrants, however, it is important for practitioners to keep Brand X in mind when they are faced with unfavorable Court of Appeals case law interpreting an ambiguous immigration statute. Especially where existing BIA case law in other circuits is more favorable, an unfavorable Court of Appeals decision in a particular circuit need not be the last word.
DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shown Movement in China 'Other Workers' Category
The Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin, which explains additional points and notes forward movement in the China employment-based third preference "Other Workers" category.
Visa availability calculations. DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered "Current." For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be "oversubscribed" and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.
The DOS noted that the FY 2013 employment annual limits were reached before the end of September, and no further allocation of numbers was possible after that time. Offices continued to process employment cases, submitted them in the normal manner, and such cases were then held in the Visa Office's "Pending Demand" file. All eligible cases were then allocated employment-based numbers on October 1, 2013, under the FY 2014 annual limits.
DOS said that the number of 1-485 adjustment of status applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services (USCIS) has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. These filings are the result of the cut-off dates for those countries having been advanced by over three years since April. DOS said that such demand must be considered in the determination of the monthly cut-off dates to prevent any unnecessary fluctuation in those dates.
The imposition of cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, DOS noted. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status. Therefore, DOS said that the totals in the Visa Bulletin charts should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand taken into consideration during the determination of new dates.
Visa Bulletin. The Visa Office noted in its November 2013 Visa Bulletin that:
It is important to remember that the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.
When applicants fail to appear 9r overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or "Current" status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.
China: Rapid forward movement of the cut-off date, as a result of there being insufficient demand to use all available numbers, allowed the category to reach the Worldwide third preference cut-off date in May 2013. The continued lack of demand has allowed the "otherwise unused" numbers available under that limit to be provided for use in the China employment third preference Other Workers category. The continued addition of those numbers has allowed the cut-off date for that category to reach the China third preference date for November. This is the same action which has been possible for the Other Worker category in other "oversubscribed" countries such as India and Mexico. A sudden increase in demand for China employment third preference visas could require corrective action in the China Other Worker cut-off date at any time.
The DOS's information includes charts showing the estimated total number of visas available for each employment preference category and country for fiscal year 2014. Demand data used in the determination of the November 2013 employment preference cut-off dates are also included in the charts. The information is available at http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf. The latest Visa Bulletin for November 2013 is available at http://travel.state.gov/visa/bulletin/bulletin_6168.html.
Bordering on the Absurd: Immigration Expertise Lacking at U.S. Border Agency
Angelo Paparelli, ABIL Immediate Past President
[Blogger's note: Today's post offers a shocking analysis of how the decision by Congress some ten years ago to combine the functions of U.S. Customs, Immigration and Agricultural inspectors into a single agency, U.S. Customs and Border Protection (CBP), has led to disastrous consequences for applicants seeking admission to the U.S. under our nation's immigration laws. Written by a senior DHS official, now retired, shows how the supremacy of Customs over Immigration has created an error-prone, inexperienced corps of immigration officers within CBP]
By Incognito
Once upon a time there was a government agency called the Immigration and Naturalization Service (INS), which many people hated. INS critics called upon Congress to restructure the agency, thinking that all faults would go away if that happened. Congress finally did a major restructuring, creating the Department of Homeland Security and abolishing INS. A funny thing happened on the way to restructuring, as Congress did what Congress meant to do, and not exactly as the INS critics meant for Congress to do.
The INS inspections function transferred to the Office of Field Operations (OFO) in a new agency called U.S. Customs and Border Protection (CBP). An unintended consequence was that the observed level of immigration expertise has dropped alarmingly in CBP's new OFO. How may this have happened?
With any merger, there must be a melding of corporate cultures. Immigration inspectors had been part of the Department of Justice, Customs inspectors had been part of the Treasury Department, and Agriculture inspectors had been part of the Agriculture Department. With the common goal envisioned by DHS, the expectation that within a relatively short period, perhaps 1 – 3 years but not more than 5 years, the several cultures would unite into one common purpose.
Relatively quickly, with political backing, agriculture inspectors reestablished themselves and their mission as being unique. Their critical mission has thrived in the new agency, as better resources and inspection techniques have allowed this OFO/CBP component to better protect against invasive species.
On Day One, March 1, 2003, it was clear, however, that the former U.S. Customs Service had won the decades-old tension with INS over which agency's culture and structure was better suited to take over the border inspections program. Ninety per cent or more of OFO/CBP's top managers came from Customs. The expectation was that the Customs and Immigration missions would be performed adequately by the same officers. Ten years later, this realistic expectation has not been met, as observed by immigration practitioners.
In the beginning, the attitude among legacy Customs people was that the reason there was DHS restructuring was because INS had admitted alien terrorists who had carried out the 9/11 atrocities. As Congress had abolished INS as an agency, the perceived judgment was that all things Customs were good, and all things INS must be bad and not to be trusted. Also, if INS had not let "those aliens" into the country, terroristic activities would not have happened. The solution appeared obvious – just don't let aliens into the country. However, that simple answer didn't work, given the hundreds of millions of visitors to the country each year. Therefore, the new CBP culture fostered the idea of figuring out some reason, any reason, to not admit an alien. This culture also fit the mind-set of the INS cowboys who had made up a sub-set of the INS inspections program.
There were a certain number of INS district, regional, and headquarters personnel who transferred to CBP. The question became, what should be done with them? After all, Customs had operated since 1789 without that resource. In that way, former INS managers, who previously had managed port of entry operations, found themselves suddenly stripped of wide-ranging responsibilities and assigned duties of little importance. Not fired, and not particularly valued, their presence was merely tolerated by the dominant culture of the new agency. Although many (especially younger field supervisors) have survived the new culture, some transferred to other agencies, and more retired when that option became available. CBP failed to stem the loss of that valuable immigration resource, with the predictable result that the quality of meaningful oversight of immigration decisions has lessened greatly.
Similar things happened to the attorney resource that transferred from INS to CBP. The overwhelming perception from attorneys who transferred was that CBP's Office of Chief Counsel (OCC) did not value them as attorneys knowledgeable about immigration issues, but merely as positions that could eventually be filled with the personnel that Customs wanted all along in those slots. Part of that thought came from the reality that the journeyman grade for an INS attorney was GS-14, while journeymen Customs attorneys were only GS-13s. OCC welcomed the higher graded positions, but not the incumbents. Attrition worked its toll, through transfers and retirements, quickly resulting in diminished immigration expertise in OCC. Not to worry though, because when responsibility for legal counsel on immigration inspections issues was transferred to OCC, OCC attorneys attended a two hour briefing. Emerging from the briefing, OCC deemed themselves competent to advise on all immigration complexities. Contributing to the problem, as GS-14 and -15 level former INS attorneys left CBP, they were not replaced with experienced OCC (government) attorneys, but with new kids just out of law school. Bright people, but, nonetheless, new kids on the block having no experienced immigration attorneys to mentor them.
Are things better now? At least one field office of Associate Chief Counsel, when presented with an immigration question, simply declines to answer but refers the issue to Headquarters OCC. More than one former immigration attorney from the former INS/DOJ structure who transferred to the DHS structure has deplored the alarming lack of immigration competence in CBP's OCC. From this, a casual observer may conclude that if OCC ever had a goal of maintaining or developing immigration expertise, it has fallen short of realizing that goal.
Lack of knowledgeable oversight has made meaningful decision-making review more difficult. In the old INS structure, the entire chain of command, from port of entry management, to the INS district, regional, and headquarters offices, consisted of career immigration officers. The chain of command managers had the knowledge to discern weaknesses in cases when apparent ineligibilities had developed at lower levels. With expertise gained through time had come the additional experience of making decisions involving discretionary authorities. In the new CBP environment, top managers were most likely (90%) to have come from legacy Customs and had neither the experience nor the expertise to spot weaknesses in questionable immigration cases. Also, with the old INS cowboys contributing their version of law and procedure, their attitude of "The only good alien is a refused alien" gained greater dominance.
Nor were the former Customs managers comfortable exercising discretionary authorities. The Customs culture, dealing with goods and merchandise, had developed a "good or bad" mentality. If something was good, or permitted, it was allowed entry. If something was bad, it either was not permitted entry, or penalized in some way. Therefore, the concept of detecting an inadmissible alien, but permitting that person to continue into the United States, was difficult to adjust to. Much easier just to send the inadmissible alien home, rather than take a chance of having a discretionary decision questioned by that manager's chain of command, or agonizing whether the person who had been allowed to travel may commit some further sin.
Contributing to the reluctance of offering discretion is the Customs culture of hanging officers out to dry for the slightest perceived infraction. Over decades, this culture had trained the Customs chain of command to pass the buck when a decision was even slightly out of the ordinary. Not having been trained to make discretionary decisions, and, in fact, having been trained to not make discretionary decisions, it is little wonder that exercising discretion was such a difficult concept to embrace.
Over the years, criticism of discretionary decisions is no longer limited to those from the chain above. Line officers have made reports to internal affairs that supervisors are abusing discretion authority in favor of aliens thought to be inadmissible by line officers. First and second line supervisors are now damned if they do and damned if they don't, both by chain of command or internal affairs second guessing.
Faced with diminishing immigration expertise in OFO/CBP, and with increasing negative publicity about poor decisions at ports of entry, former Commissioner Basham asked a Headquarters working group why "immigration" seemed to be such a dirty word. The answer should have come easily from OFO/CBP's top managers, many of whom had developed well-deserved reputations in Customs of having little regard for immigration issues and immigration personnel. Although publicly articulating allegiance to the combined immigration and customs missions, their actions spoke loudly in exposing their prejudices against that "immigration" dirty word. Is it any wonder then that line officers, trained observers as they are, pick up on the non-verbal clues noticed by Commissioner Basham when he asked why "immigration" seemed to be such a dirty word in OFO/CBP? It takes a truly determined effort for any individual officer to develop immigration expertise on the officer's own initiative when doing so takes the officer outside the dominant agency culture.
Note also how CBP has eliminated the term "immigration" whenever possible, largely replacing discussions of "immigration" issues with "admissibility" issues. One "Day One" proposal was that the best use of officers historically assigned to immigration secondary would be to reassign that resource to more intensive baggage examinations. There have even been top-level questions of whether OFO/CBP wasn't now past using the term "immigration officer." Those questions eased only when reminded that Congress had chosen to keep the term "immigration officer" in the INA. After all, if OFO/CBP had no one designated as immigration officers, who would make decisions about eligibility/ineligibilities under the INA?
Also note the mid-level field manager who recently commented, "I came from Customs, and I just don't get this Immigration stuff." But now we've gone ten years down the road in the new agency, and managers still haven't learned to properly apply Immigration issues. If legacy Customs managers still haven't learned, where is the fault – with the manager for refusing to learn about Immigration complexities, or for the agency for not providing training and holding managers responsible for faulty chain of command decisions on immigration issues?
The Customs culture is alive and well. The Customs culture does not hold OFO top field managers responsible for poor decisions about immigration issues. There is a cultural lack of emphasis on developing or retaining immigration expertise, in the officer corps, among OFO managers, and in OCC. Poor decisions are supported by the attitude that OFO/CBP officers' immigration decisions are considered, in the first instance, to be correct, in spite of the numerous examples, both publicized and not, of incorrect decision making.
CBP' Office of Field Operations must correct its inadequacies. Immigration practitioners can help by continuing to bring cases to OFO/CBP's attention for correction and corrective training. If these efforts fail, there may be opportunities for reform through judicial review. Eventually, Congress may step in, again.
Delays for Overseas Spouses of U.S. Citizens Seeking Green Cards
One of the most fundamental benefits under immigration law is for the ability of a US citizen to quickly sponsor a foreign national spouse for a green card. While the granting of immigration benefits is contentious in today's political environment, no one has disputed, even immigration restrictionists, that a US citizen cannot swiftly bring into this country a foreign national whom he or she has married overseas. Under the Immigration and Nationality Act, the spouse of a US citizen qualifies as an immediate relative, and falls outside the quotas that other relatives of US citizens may be subject to such as adult sons and daughters or siblings. Minor children and parents of US citizens also qualify as immediate relatives.
The Form I-130 petition is used to sponsor a spouse, minor child or parent of a US citizen who is outside the US. In the recent past, such an I-130 petition filed with the United States Immigration and Citizenship Services on behalf of an immediate relative got approved in about 3-4 months. The case was then sent to the National Visa Center, a clearing house for the consular posts of the Department of State. One the petitioner submitted the required documents to the NVC, the file was dispatched to the consular post and an appointment was quickly scheduled. The entire process generally took about six months or a little over.
More recently, I-130 petitions filed on behalf of spouses and other immediate relatives are reportedly taking much longer. This author has heard that I-130s filed in January or February 2013 have still not been approved. The Vermont Service Center states that I-130 petitions received on October 22, 2012 for immediate relatives are being adjudicated presently. The California Service Center does not indicate any processing time for a similar I-130 petition. This is quite frankly a shocking state of affairs. The reason for the delay is that the I-130s are being shunted to local USCIS offices for processing rather than being processed at the California or Vermont Service Centers, which is how they were processed previously. Still, this is no excuse for the USCIS to cause so much delay. It makes no sense to allow spouses of US citizen to wait for so long outside the US before they can join their loved one in the US. The USCIS is capable of far greater efficiency as it demonstrated when it more quickly adjudicated thousands upon thousands of applications under the Deferred Action for Childhood Arrivals (DACA) program.
While the filing of a concurrent I-130 petition with an I-485 application for adjustment of status may process more quickly, the foreign spouse has to be in the US in order to adjust status. If a spouse enters the US on a nonimmigrant visa, such as a tourist visa, with the intention to adjust status, such an I-485 can be denied if the spouse had a preconceived intent to apply for permanent residence while entering the country as a tourist. If, on the other hand, the spouse came genuinely as a tourist, but changed his or her mind after arriving in the US, then it can be demonstrated that there was no preconceived intent, or worse, fraud or misrepresentation with respect to the purpose of entering the US on a tourist visa. Of course, if the spouse enters on a nonimmigrant visa, such as an H-1B or L visa, which allows for dual intent, then the spouse's intent to apply for a permanent immigrant benefit is not an issue. The number of people on H or L visas who become spouses of US citizens is relatively few, though, and many people are unable to apply for a tourist visa to even visit the US temporarily to meet their spouses while the I-130 petition remains pending. People who are nationals of Visa Waiver countries can visit the US for 90 days without applying for a visa, but they too may risk being questioned about their intent at the port of entry.