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Carl Shusterman's Immigration Update

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  1. CSPA Oral Arguments Before the Supreme Court

    http://shusterman.com/images/CSPA-Oral-Arguments-Supreme-Court.jpg
    On December 10, 2013, the Supreme Court of the United States heard oral arguments concerning who benefits from the “Retention of Priority Date” clause of the Child Status Protection Act (CSPA).

    Hopefully, in the next few months, this matter will be settled once and for all, and sons and daughters of parents who immigrated years ago will, at last, be permitted to rejoin their families in the U.S.


    Government’s Argument

    The government, having lost in the Court of Appeals, first addressed the Court:

    The Board of Immigration Appeals reasonably interpreted Section 1153(h)(3) when it ruled that creation of a new petition by a new petitioner did not qualify as automatic conversion of an existing petition to an appropriate family-sponsored category…”

    However, various Justices let the government know that they were not persuaded:

    Justice Ginsburg: “What about all the time this one child has been waiting? It gets no credit for that?”

    Justice Alito: “…your reading of this statute gives (h)(3) a very, very narrow scope.”

    Justice Breyer: “…it's just unlikely that Congress meant (3) to apply to a…little molecule when there's the whole ocean.”

    Justice Sotomayor: “It would have been much, much simpler to say this is limited to F2A beneficiaries than to write it the way they did and say this is to everybody who ages out.”

    Justice Kagan: “…it seems as though you shouldn't be entitled to Chevron deference on that question, given what Wang said about it.”

    The government attempted to counter each of the above statements. It argued that the Court recognized that “deference is particularly appropriate in immigration contexts.”

    The government expressed concern about delays to persons waiting in the F2B line, but when questioned by Justice Breyer, it revealed that it was impossible to calculate how much of a delay that these persons would experience if the respondent’s prevailed in this lawsuit.


    Chevron Test

    The issue in this case is whether the Court must give “Chevron deference” to an administrative decision interpreting a law, in this case, the Board of Immigration Appeals (BIA) decision in Matter of Wang. Here, the Court uses the following two-step test:

    Step 1"First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress."

    Step 2 – [I]“f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).


    Respondent’s Argument

    http://www.wilmerhale.com/uploadedImages/Shared_Content/Images/People/Attorney/Fleming_Mark_lo.jpgWhen it was his turn to address the Court, Mark Fleming, the attorney arguing the matter on behalf of the immigrant families, stated:

    “The government began at Step 2 of Chevron, but I would submit that this case can and should be resolved at Step 1. The government is asking this Court to read the statute in a highly disfavored way such that it is not harmonious but at war with itself, and nothing in the language requires that...”

    “…provision (h)(3) consists of one sentence, and that sentence consists of two parts separated by a comma. Before the comma, the language sets forth one and only one eligibility criterion. After the comma, the language sets forth two things that shall be done if the eligibility criterion is satisfied. Now, importantly, the government does not contend that there is any ambiguity in the language before the comma. Everyone agrees that it contemplates and includes all derivative beneficiaries. There's no dispute about that. And a bedrock rule at the Step 1 inquiry is that the Court reads the statute as a harmonious whole. That goes double when we're talking about a single sentence. So if there is a possible reading of this sentence that is harmonious with the clear opening clause that applies to all derivative beneficiaries under Step 1 of Chevron, that is the reading the Court gives to the statute.”

    _____________________________________________________________________________________

    Section 203(h)(3) - RETENTION OF PRIORITY DATE - If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.
    ____________________________________________________________________________________

    Justices Kennedy and Scalia questioned how “automatic conversion” would operate. Justice Scalia was concerned that respondent’s interpretation of the clause would permit an adult son or daughter to immigrate to the U.S. over his or her parent’s objections.

    Mr. Fleming explained that in the highly unlikely event that the parent did not want his son or daughter to join him in the U.S., he could refuse to sign an affidavit of support and they would not be able to immigrate.

    Justice Kagan: “Based on -- another understanding of Chevron is sometimes Congress writes confusing statutes that point in two different directions at once, and then there's a choice. Does the Court make the best of it or does the agency make the best of it? And the agency knows a lot about the subject matter, and especially this agency, and so irrespective of whether Congress meant to delegate something in some very self-conscious way, this is a confusing statute, it's a kind of the muddle. The agency gets to do it.”

    Mr. Fleming responded that it was clear that (h)(3) applies to all derivative beneficiaries, and that it was very possible for the agency to interpret the words “retention” and “automatic conversion” in a matter which would implement the intent of Congress. Furthermore, “retention” and “automatic conversion” are deemed separate and distinct benefits by the statute. Even if the agency decided that automatic conversion was not possible in selected cases, the son or daughter would still be able to “retain” the priority date of the original F3 or F4 petition.

    Justice Scalia: “Well, this is all upside down. I thought it's the agency that we deferred to. If it can be read in the way the agency wants, we affirm the agency's position.”

    In response to a comment by Justice Scalia that the two benefits, retention and automatic conversion, were conjunctive, not disjunctive, Mr. Fleming revealed that the government had, despite its arguments, been denying automatic conversion, but not retention, to F2A derivative beneficiaries from the date that CSPA was enacted (August 6, 2002) until 6 days before the government submitted its reply brief. This, he said, demonstrated that retention and automatic conversion can, and have been, implemented as separate benefits.

    Justice Scalia remained unpersuaded.

    Mr. Fleming ended his argument by declaring that even under Step 2 of Chevron, the BIA decision failed to draw a rational line between 2B beneficiaries, treating those with familial relationships with permanent residents more favorably than those with relationships with both U.S. citizens and permanent residents.


    Government’s Reply

    “The Respondents were trying to put far too heavy a burden on the government in the Chevron deference case. So long as the agency has arrived at a reasonable reading of this very complicated statute, the agency is entitled to deference here.”

    “The government also expresses its concern with the possibility that a derivative beneficiary could “have a priority date somehow in their pocket that they could walk around with and use 20 years later when somebody filed a different petition on their behalf, an employment petition…”

    Chief Justice Roberts: “Well, it's not so odd to say they've got a priority date in their pocket when the statute says the original priority date - they'll retain the original priority date.”


    Conclusion

    While it is impossible to predict the final outcome of a case based solely on the oral arguments, I remain cautiously optimistic that the Supreme Court will ultimately agree with both the 5th and the 9th Circuit Courts of Appeals that the statute is unambiguous and that there is no need to defer to the flawed BIA decision in Matter of Wang. A decision may be forthcoming as early as February or March.

    As recognized by many of the Justices, the government is arguing for a very restrictive reading of CSPA. Yes, the DOJ instead portrays itself as the defender of those in the F2B line and categorizes our clients as “line-jumpers”.

    What the DOJ conveniently overlooks is that CSPA created (h)(1) to allow all qualifying derivative beneficiaries who would, in the past, have “aged-out” and lost their place in line to immigrate together with their parents in a particular preference category. Under the government’s reasoning, why are they are not “line-jumpers”? Congress simply made a policy decision to give sons and daughters who have waited for years in line for permanent residence together with their parents credit for their wait, and not send them to the back of the line. If is clear that (h)(3) extends this same credit to unmarried sons and daughters of permanent residents.

    Could it be that the DOJ simply disagrees with these policy decisions?

    If so, they should lobby Congress, not the Supreme Court, to change the law.

    Updated 12-20-2013 at 01:45 PM by CShusterman

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  2. Immigration Reform Without a Pathway to Citizenship?


    http://s1.ibtimes.com/sites/www.ibtimes.com/files/styles/v2_article_large/public/2013/03/30/immigration-reform_rally.jpg Is there any chance that we will get Comprehensive Immigration Reform (CIR) before the end of the year?


    President Obama remains hopeful. He is even willing to drop the Senate’s approach and have Congress pass a number of immigration bills as many Republicans in the House of Representatives are proposing. “If they want to chop that thing up into five pieces, as long as all five pieces get done, I don't care what it looks like.”


    The problem is that none of bills that have been considered by the House Judiciary Committee even touch on what to do about the 11 million undocumented persons living in the U.S. The Committee wants to make the border (at least the one with Mexico) more secure, make E-Verify mandatory and bring in more high-tech and agricultural workers. That’s all well and good, but aren’t they ignoring the Big Elephant in the room: What about the 11 million?


    Here is the root of the problem: In the 2012 Presidential election, Hispanics and Asians voted overwhelmingly for President Obama. No surprise since his opponent’s solution to our broken immigration system was “self-deportation”.


    The GOP knows that if they want to win back Hispanic and Asian voters, they must address our immigration problem. However, by passing a bill containing a Pathway to Citizenship for 11 million persons, many Republicans are afraid that they are enfranchising people who are going to vote for their opponents.


    What to do?


    The Chairman of the House Judiciary Committee is working on a bill which would allow the undocumented to qualify for work and travel permits, but not for green cards and citizenship. Okay, maybe a Pathway to Citizenship for the Dreamers. The Chairman of the House Oversight Committee has a slightly different take. He would grant the undocumented a six-year provisional status, and would allow them to get green cards and naturalization, but only if they qualify under current law. The rest, probably the overwhelming majority, could remain in the U.S., but only under a newly-created temporary worker category.


    How are proponents of comprehensive immigration reform reacting to such proposals?


    Surprisingly, a good many CIR supporters are no longer insisting on a Pathway to Citizenship. A leading immigration advocate, Representative Luis Gutierrez (D-IL), states that he is open to compromise, and seems willing to accept a bill which would protect the undocumented from deportation even if it does not offer a Pathway to Citizenship for all.


    Maybe half a loaf is better than none at all, but aren’t we creating a two-tier society?


    Will there be a new immigration law in 2013, or even in 2014, and what will it say? Only time will tell.

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  3. Senators Weigh in on CSPA Lawsuit


    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremebuilding.jpg When Congress passed the Child Status Protection Act (CSPA) in 2002, there was wide bipartisan support concerning the need to change the immigration law to prevent the separation of families during the waiting process.

    Both the Senate and the House of Representatives passed the legislation unanimously, and it was signed into law by President Bush. One of the flaws in the immigration law that CSPA was designed to remedy was that when children turned 21 years old while waiting with their families for their green cards to be issued, they were no longer able to immigrate to the U.S. with their parents despite that the fact that they had waited in line for many years, even decades.

    Congress established a two-step solution to this problem. First, in order to avoid family separation due to administrative delays, the number of days that a visa petition was pending would be subtracted from the child’s age. If the resulting age was less that 21, the child could immigrate together with his parents. Second, if after this calculation the child’s age was over 21, the child would retain the priority date of the original petition. That is, he would be given credit for the years spent waiting in line. Also, the petition would automatically convert to the appropriate category. In most cases, this would be the family-based 2B category, since the child was now the unmarried adult son or daughter of a permanent resident.

    Seems simple enough, but nevertheless, we have been litigating this issue in the federal courts since 2008. The government maintains that the relevant provision is ambiguous and that courts should defer to a very restrictive interpretation of the law promulgated by the Board of Immigration Appeals (BIA) in Matter of Wang in 2009. The BIA held that while the first step of the formula applies to derivative beneficiaries of all family-based and employment-based preference categories, the second step applies only to a tiny subset of family-based beneficiaries. This is a curious interpretation since both subsections of the law clearly apply to the same people. The only difference is that the first step applies to persons whose age, after performing the formula, is under 21 while the second step applies to those whose age is over 21.

    The three U.S. Courts of Appeals which have issued precedential decisions regarding this issue all agree the language of the statute is unambiguous and, hence, there is no need to defer the BIA’s decision. However, two courts (the Fifth Circuit in Texas and the Ninth Circuit in California) ruled that the statute unambiguously foreclosed the BIA’s approach, whereas the other (the Second Circuit in New York) held that the statute unambiguously required it. The Solicitor General sought Supreme Court review, arguing that the law’s language is ambiguous and that courts should defer to the BIA.

    The language in dispute was first drafted by the Senate. The BIA, in Matter of Wang, curiously omitted any quotes from Senators when discussing the meaning of the disputed sentence. Wouldn’t it be helpful if Senators from both parties could speak directly to the Justices of the Supreme Court as to the meaning of the statute that they authored?

    On November 4, exactly that occurred. A bipartisan coalition of current and former U.S. Senators — former Senator (now Governor) Brownback (R-KS), and Senators Feinstein (D-CA), Hatch (R-UT), McCain (R-AZ), Menendez (D-NJ) and Schumer (D-NY) submitted a legal brief to the Supreme Court. What does the brief say?

    The Senators carefully explain Congress’ reasons for passing the CSPA, and clearly demonstrate the disputed subsection requires that the agency extend its benefits to all derivative beneficiary children.

    The following quotes from the brief are helpful in understanding the purpose of the law.

    On page 9, the Senators explain that

    “Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had already waited.”

    and

    “The Solicitor General’s argument that the CSPA covers only beneficiaries of F2A petitions directly conflicts with the primary purpose for which the law was enacted. In enacting this legislation, Congress meant to correct the inequities of the pre-CSPA regime in full.”

    On page 16, the Senators dismiss the Solicitor General’s ambiguity argument in the strongest terms:

    “The Solicitor General’s Attempt To Manufacture Ambiguity Erodes Congress’s Ability To Effect Its Will Through Clear, Unambiguous Draftsmanship.”

    On page 18, the Senators condemn the executive branch’s attempt to rewrite the CSPA:

    “The Solicitor General’s continuing insistence that the CSPA is ambiguous raises serious institutional concerns. While Congress can and often does rely on agency expertise to fill intentionally placed gaps in statutory language, it does not typically give an agency carte blanche to rewrite statutory language that is clear simply because the agency declares that the statute contains ‘tension.’ The Solicitor General’s attempt to read ambiguity into a statute simply because the requirements of the statute diverge from preexisting agency procedures undermines the authority of Congress. This Court should reject that attempt and reaffirm the agency’s duty to carry out the mandates of a congressional statute.”

    Finally, on page 19, the Senators conclude that

    “In the face of such an unambiguous congressional mandate, the existence of alleged ‘tension’ between the statute and preferred agency procedure is not sufficient to generate ambiguity where none exists. Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”

    The Senators’ brief is both forceful and convincing. Families which are impacted by this section of CSPA may wish to read the full brief of the Senators as well as the amicus briefs submitted by the Catholic Legal Immigration Network and by Immigration Advocacy Organizations.

    The Solicitor General has until November 27 to submit a reply brief.

    Our firm is co-counsel in the case, and the case will be argued in the Supreme Court by Mark Fleming, who specializes in appellate litigation at WilmerHale. The Supreme Court will hear oral argument on December 10, and a decision is expected in early 2014.

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    Updated 11-20-2013 at 11:10 AM by CShusterman

  4. Indian IT Company Agrees to Pay $34 Million Settlement

    http://assets.bizjournals.com/dayton/news/scales%20of%20justice*304.jpg?v=1
    Various companies have paid one million dollars or more to the government in order to settle cases involving immigration violations. However, the $34 million settlement that an Indian IT company recently agreed to pay is the largest yet.

    What did the company do to bring this on itself?

    The U.S. Attorneys’ Office in the East District of Texas accuses Infosys, a multi-billion dollar company based in India, of misusing B-1 business visitor visas to place foreign-born employees in professional jobs in the United States.

    USCIS.gov states that persons on B-1 visas are permitted to come to the U.S. to engage in any of the following activities:

    • Consulting with business associates
    • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
    • Settling an estate
    • Negotiating a contract
    • Participating in short-term training
    • Transiting through the United States
    • Certain air crewmen may enter the U.S. as deadhead crew with a B-1 visa


    However, in order to work as a computer programmer or a systems analyst in the U.S., a person must usually possess an H-1B visa. Most H-1B employers are subject to a numerical cap which, in practice, allows them to sponsor professional employees only during the first week of April each year. Also, applying for an H-1B worker involves an expenditure of several thousand dollars in attorneys’ fees and government filing fees.

    Infosys employs over 160,000 workers in more than 30 countries. Approximately 15,000 of these workers are employed in the U.S. 10,800 have H-1B visas and 1,600 have L-1B specialized knowledge visas. According to a confidential source, the number using B-1 visas is about 1,000. The company claims that it uses B-1 visas only for “legitimate business purposes”.

    In the settlement agreement, the government and Infosys essentially agree to disagree. The government states that the company provided their B-1 workers with a memorandum which instructed them “to deceive U.S. Consular Officials, including specific instructions to avoid certain terminology, to secure entry of the visa holder in the United States." Infosys, despite agreeing to pay the government $34 million, "denies and disputes any claims of systemic visa fraud, misuse of visas for competitive advantage or immigration abuse. Those claims are untrue and are assertions that remain unproven."

    The matter began as a whistleblower case brought by a disgruntled employee. A civil lawsuit by the employee was dismissed. However, in 2011, the B-1 issue raised by the employee led the Department of Justice and the DHS to audit Infosys’ I-9 forms.

    This settlement does not subject Infosys to any civil or criminal judgment. It allows the company to continue to supply IT professionals to U.S. firms and to be eligible for federal contracts.

    Although $34 million sounds like a lot of money to you and me, given that Infosys’ market capitalization exceeds $30 billion, the settlement amount is simply “chump change” for the company. Indeed, news of the settlement had little effect on the company’s stock price. And making the payment certainly beats spending time in Federal Prison.

    However, this is should be a cautionary tale for any employer thinking of toying with U.S. immigration laws, especially those who don’t have a rainy day fund of several millions of dollars to tap. U.S. Attorney John Bales made the point succinctly: “We want other companies like Infosys to be on notice that we will be looking.”

    Also, the settlement may aid lawmakers in the House who are trying to limit the use of H-1B and L-1B visas by IT consulting firms in rounding up the necessary votes to do so. The Senate bill (S.744) already contains such a provision.

    Employers beware!

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    Updated 12-02-2013 at 12:08 PM by CShusterman

  5. USCIS Launches Redesigned Websites

    http://www.hudsonlg.com/wp-content/uploads/2013/05/USCIS.jpg
    On October 30, the USCIS introduced new websites, in English and in Spanish.

    The new sites are designed to enhance the user experience. In the past, I’ve always had a difficult time finding the information I needed on uscis.gov. Because of this, I made sure that our website links to the most helpful pages on USCIS website from our temporary visas page, our green cards page, our citizenship page, our forms page, our USCIS page, etc. Hopefully, this saves our users a lot of time.

    However, it seems that it is much easier to find the information I need on the new USCIS website than on the old one. Bravo!

    The green menu near the top of the page contains the following items:


    1. Forms
    2. News
    3. Citizenship
    4. Green Card
    5. Tools
    6. Laws


    Place your cursor over the word “Forms”, and a pull-down menu provides links to a lot of useful information. The first row links to the most commonly searched for USCIS forms. The second row links to a chart showing the filing fees for various types of USCIS forms. It also links to a section regarding e-filing procedures and an explanation of how to order forms by phone and by mail. Finally, there is a link to the most searched for State Department forms and a link to the CBP page explaining the new I-94 procedures. The third row breaks down the forms according to category: Citizenship, Family-Based, Employment-Based, etc.

    Most of the other 5 menu items also have multiple rows of menu items which link to commonly searched for topics. The “Citizenship” tab links to various items concerning naturalization, citizenship through parents, and State Department passport information. The “Tools” tab provides links to a host of helpful services. It explains how to get a copy of your file, find a civil surgeon, check the status of your pending application, etc.

    Other menu items may still need a little work. For example, the “News” item contains only 3 links in the pull-down menu. While the “News Releases” and “Alerts” links are up-to-date, the “Questions and Answers” link stops in July 2012. Perhaps there is a reason for this, but if so, the page does not explain what it is.

    There are other items which need additional work. For example, when I worked as an INS Attorney (1976-82), I spent a couple of years interviewing persons claiming U.S. citizenship through their parents. The laws pertaining to “acquisition” and “derivation” of U.S. citizenship are complex, and the legal requirements change every few years. For this reason, INS Attorneys always relied on 4 handy charts published by the government.

    When I created our website in 1995, I wanted to link to these charts on the INS/USCIS website. However, it was extremely difficult to find them. When I finally did so, I linked to them from our “US Citizenship Through Parents” page. However, every few months, the government would change the URL/Address of these pages, thereby breaking my links. After repairing the broken links over a dozen times, I decided to put the 4 Nationality Charts on our website.

    Ever the optimist, I hoped that the new USCIS website would make it easier to find the 4 charts. In order to test my thesis, I placed my cursor of the “Citizenship” tab and down came the various menu items. I clicked on the link entitled “Citizenship Though Parents”. Two charts instantly appeared, but where were the other 2?

    I decided to try a new approach. I clicked on the website’s internal search engine which reads “What are you looking for?” and entered the words “Nationality Charts”. I got 89,900 results, but wait, the first 4 were links to the elusive Nationality Charts. Eureka!

    However, when I clicked on the first link, I did not see the chart, but the following message:

    Please be aware that the Adjudicators Field Manual (AFM) Chapters 71 to 76 and Appendices 71-1 to 75-7 have been superseded by USCIS Policy Manual, Volume 12: Citizenship & Naturalization as of January 22, 2013.

    Hmm… I then clicked the “Policy Manual” link, and from there, I clicked on “Part H: Children of U.S. Citizens”. This provided me with a lot of great information, but very complex. Where were the charts? Perhaps, if I were willing to spend a considerable amount of time clicking links, I would have found them, but for now, I’ll stick to my own website.

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    Updated 12-02-2013 at 12:11 PM by CShusterman

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