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Rami Fakhoury on IT Immigration

The Fight Book: Chapter 2: Litigation Issues, Part B

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Rami Fakhoury and Mark Levey


Copyright @2010 Fakhoury Law Group/Rami Fakhoury


 


1.  Importance of Sufficiency of the Administrative Record


 The sufficiency of the record has assumed increasing importance in recent years, as the courts have found themselves glutted with immigration cases due to declining standards of adjudication, delays, and increasingly arbitrary decisions at USCIS Service Centers, the AAO, and the Board of Immigration Appeals.  The practice of issuing per curium decisions forced on the BIA by the Bush Administration led to a rebuke by federal courts, and truncated AAO decisions that don't address key evidence on the record, as in the Fred 26 Imp. case, have convinced the courts to look increasingly closely at the record for adequate consideration of evidence by administrative law judges and agency adjudicators.


In a notable recent case, the Supreme Court applied the principle that the agency must exercise its discretion, and failure to adequately consider the record is grounds for remand.  The Court used extraordinarily blunt language to remind the BIA that it could not make quick, blanket determinations of ineligibility and agency dicta to pretermit cases without considering the merits.  In Negusie v. Holder[1] the Court stated that the BIA relied on a "mistaken legal premise" and "misapplied" the law in a per curium decision that disregarded evidence that an alien's persecutory behavior was involuntary and the result of duress.  The Court declared the BIA "is in error" when it acted without exercising discretion on a material issue.   Owing to its uncritical reliance on a precedent decision, the BIA "has not yet exercised its Chevron discretion to interpret the statute in question." The Supreme Court thus deemed it necessary to remand the case to the BIA for a hearing on an issue the Board had assumed it did not have to consider. 


Therefore, establishing eligibility to the highest possible evidentiary standard that might be found reasonable is essential in any case that might be litigated. If a beneficiary is barely prima facie eligible, or if there are questions about the credibility of representations made, it is unlikely that federal judges will view the case with favor, regardless of the strength of legal arguments that counsel may apply.


In choosing potential litigants, if there is a choice: 1) present a petitioner without serious compliance issues; and 2) present a beneficiary who is clearly qualified for the position offered according to the applicable legal standards; and without unduly burdening the record, present evidence with the petition that supports all points that might later be made on appeal.


Additionally, if the petitioner does have a history of compliance issues, it would not be unreasonable for USCIS to apply a heightened level of scrutiny and evidence consistent with the oft-cited "relevant, probative, and credible" standard.  [Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989)] Documents provided on the record in any case where doubt may be raised about bona fides, therefore, should be of a sufficient quality and quantity to meet that heightened standard. 


Where there is an articulable reason to raise a "material doubt" about the credibility of statements made by the petitioner, USCIS may require more and better supporting documentation, and the courts will demand convincing evidence of eligibility for the benefit sought before even ruling on any deprivation of rights or legal issue raised.


 


2.  Higher Burden of Proof in "Doubtful or Marginal" Cases 


Even though there is no stated reason to raise doubt about the veracity of the evidence submitted, there may be reason to question its adequacy in a case.  A relevant paragraph of the 1995 Aytes memo, p. 3, [See H-1B History], reads:


 


The regulations do not require submission of extensive evidence of business relationships or of the alien's prior or proposed employment.  In most cases, completion of the items on the petition and supplementary explanations by an authorized official of the petitioning company will suffice.  In doubtful or marginal cases, the director may require other appropriate evidence which he or she deems necessary in a particular case.


 


The applicant must show by a preponderance of the evidence that the applicant is eligible for the benefit sought.  The regulations state that the burden is on the applicant to establish eligibility for the benefit sought.  [8 CFR103.2(b)(1)][2]  The regulatory standard that controls documentary evidence that may normally be required of H-1B employers is stated at 8 CFR 214.2(h)(2)(I)(B):


 

(iv) General documentary requirements for H-1B classification in a specialty occupation. An H-1B petition involving a specialty occupation shall be accompanied by:



(A) Documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation as described in paragraph (h)(4)(i) of this section and that the services the beneficiary is to perform are in a specialty

[ . . .]



(B) Copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.




Furthermore, in an outsourcing situation, there is a regulatory requirement for production of some sort of itinerary [8 CFR 214(h)(2)(i)(B)]:


 


Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.  


 


Thus, even if the USCIS has some doubt of the truth or accuracy, where the applicant provides relevant, probative, and credible evidence that leads the examiner to believe the claim is "probably true" or more likely than not", the applicant has met the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm. 1989); See, U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987) (defining "more likely than not" as a greater than 50 percent probability of something occurring). Where the examiner can articulate a material doubt, the officer may request additional evidence. If the doubt leads the officer to conclude that the claim is probably not true or accurate, the Service Center may deny the petition.


One may argue to the court that it is inappropriate for USCIS to raise issues related to wage and hours, as these are within the jurisdiction of DOL; nonetheless, where a petitioner has had material compliance issues, even with another Agency, that may properly form the basis for closer scrutiny in benefits adjudications. 


On appeal to AAO or the courts, an elevated standard of evidence is likely to be applied and upheld in such a case.  Even within the less demanding "preponderance of the evidence" standard, there is a wide range of latitude allowed examiners as to the adequacy of evidence that may be required to establish eligibility.   The credibility of the petitioner's representations may be challenged on one or several grounds, or the agency may choose not to articulate the basis for doubt.   Doubt cast on any aspect of the petitioner's proof may lead to a reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa petition.  On this point, USCIS has cited Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988).  It is incumbent upon the petitioner to resolve any inconsistencies in the record by independent objective evidence, and attempts to explain or reconcile such inconsistencies, absent competent objective evidence pointing to where the truth, in fact, lies, will not suffice.  Id. at 582, 591-92. 


Material doubts may spring from an actual history of violations or profiling of the applicant.  If the latter, and the agency can be shown to be manifestly unfounded in its methods, the court may explicitly throw out the particular decision on that basis, effectively ruling that the agency must not continue with the same method.   Similarly-situated litigants may cite this ruling in their own suits, or a class-action may follow. 


 As we know, the FDNS system is based upon profiles of "articulable fraud," and all petitions having designated indicators of present or past indicators are run through FDNS-DS.  As an example, two of these "articulable fraud" indicators are potentially common tell-tale indicators for some clients: contracts for consultants or staffing agency show no end-client (no work description or itinerary); along with smaller, newer companies.  We should assume that all such employer's petitions get run through FDNS-DS, and that RFEs and site visits result, with significant additional cost and delay to these petitioners.


It would not be difficult to identify test cases and a class of litigants to challenge this policy.


 


3.  The Effect of Minor Discrepancies and Factors Indicating Alleged Credibility Issues Not Raised On the Record


 


Legally, factors going toward the exercise of discretion must be stated and reasons explained by the agency.  If the Service does not expressly raise the issue of past compliance, it should not be a factor behind the decision-making of USCIS or the AAO.  In the Seventh Circuit, for instance, the court has expressly held that it is not proper for an adjudicator to deny a claim based on allegations of inconsistencies without giving the applicant a chance to respond or explain the inconsistencies. Tadesse v. Gonzales, 492 F.3d 905, 911 (7th Cir. 2007)(remanding to Board of Immigration Appeals (BIA), holding that the Immigration Judge (11) "should have explored whether there was a good reason for the inconsistency, rather than bringing it up for the first time in the opinion, when it was too late to explain"); Shtaro v. Gonzales, 435 F. 3d 711, 716 (7thCir. 2006)(remanding to the BIA, holding that "credibility determinations may not be based on minor discrepancies that are easily explained, and he did not attempt to ascertain whether these omissions could be accounted for");Uwase v. Ashcroft, 349 F.3d 1039, 1043 (7th Cir. 2003). 


Issues that go toward the credibility of the petitioner are not normally raised affirmatively with the agency or on appeal, unless first brought up by the agency.  Deliberations by the court are normally restricted to the administrative record.


 


4.  UNREASONABLE INITIAL DEMAND FOR EVIDENCE AND RFEs: USCIS Demands for Contracts With End-User Clients, Other Third-Parties, and Other Unreasonable Agency Evidentiary Demands              


Under the Neufeld memo, USCIS can demand evidence from third-parties, such as a letter or other document from the end-user company, describing in detail the job duties and naming the beneficiary, in order "to establish the beneficiary's employment at, or for, XYZ [end-user] Corp."


It is desirous that a requirement to produce such documentation not be found to be legally binding in a general way.  In an environment of strict regulatory scrutiny and mounting penalties for corporate compliance problems, particularly involving misrepresentation, companies are increasingly reluctant to make representations on the record.   Sarbanes-Oxley has forced a real change in the mindset of many clients, and they are far less forthcoming with attestations and internal documents that they once were.  Lawyers may sometimes feel that they are fighting their clients as well as the agency in order to document business immigration cases.


Many end-user client companies are understandably reluctant to provide such written attestations as it is believed this might subject them to significant risk of potential liability, regulatory scrutiny or even investigation by DHS, DOL and other federal agencies.  Such voluntary disclosure, if it involves sensitive or privileged information, may also entail potential liability of litigation by employees and counter-parties.


If this is a real concern for the company that is preventing production of documentation, then that needs to be communicated to the agency.   The incoming USCIS General Counsel's office has indicated an awareness and sensitivity to this issue, and it may be resolved administratively.  If not, the Immigration Bar should be ready to litigate it.


However, seemingly sweeping and intrusive demands for evidence may not be entirely irrational from the perspective of agency examiners, and a Federal Judge may also see it that way.  Contracts between petitioners and end-user clients may contain sections that might establish which company, the petitioner or the end-user client, indeed employs the beneficiary.  That should be the sole legitimate interest USCIS has in such documents.  Therefore, it might be reasonable for the petitioner to respond to USCIS with only those sections of such documents, if any exist, that refer to the terms of third-party site employment of the beneficiary.  Even that may exceed the sensitivities of some end-user clients, and so as not to risk damage to commercial relationships, the agency should normally be satisfied with attestations from the petitioner and other documentation of the employer-employee relationship with the beneficiary, such as a properly executed employment contract with a non-compete clause, as discussed above at Sec. _____.  That is, precisely the regulatory requirement stated at 8 CFR 214.2(h)(2)(I)(B) and  the agency directive contained in the 1995 Aytes Memo.    


On the other hand, it is important to find a practical and legal basis to curtail fishing expeditions and excessive demands for documentation about third-parties.  It may seem obvious on its face to the attorney that XYZ [end-user] Corp. is not the employer, in fact, and that an itinerary, contract, or signed statement should not be required from third-parties.  However, that point might be lost on the AAO, and there is also a risk that a panel of federal judges might be convinced that such a requirement is reasonable and within the discretion of USCIS.   That would be a disastrous ruling.


The determining factor in a judicial decision on this point is likely to boil down to the question of what evidence can reasonably be demanded by the agency, a factor that must be balanced against what is reasonable and necessary for companies to withhold.  The burden is on the applicant when seeking benefits, and so it would seem that the burden is on the applicant to establish what might be a necessary omission in the record, and to provide a reasoned and convincing explanation as to why certain categories of documents are not being provided.  Such an explanation is particularly important in view of the mandatory language of the Neufeld memo, particularly if litigation is a possibility.  The evidentiary burden on the plaintiff is higher in cases where the agency can point to past misconduct by the petitioner, fraud or misrepresentation, discrepancies in evidence produced, failures to produce evidence reasonably expected, or other factors that go to undermining the credibility of the petitioner, and such a plaintiff is at a great disadvantage in litigation.  Attorneys need to ask themselves whether it might be better to reserve such an issue for a plaintiff with a clean compliance record and a clearly eligible beneficiary.


5. Denial Based on Failure to Produce Fully- detailed Itinerary Unreasonable


It is strongly recommended that petitioners provide as much information about the duties to be performed as is known and can be documented.  An affirmative demonstration of detailed information about the location, nature of duties to be performed, etc. may prevent issuance of an RFE or subsequent denials.   Whether or not that can be provided depends upon the particular circumstances of each case, such as the nature and duration of known assignments, along with the willingness of clients and third-parties to disclose potentially privileged information.


If there are circumstances that would prevent disclosure of third-party agreements, that needs to be explained to the Service. 


By demonstrating candor and disclosure as fully as might reasonably be expected, counsel shifts the burden back on the Service to justify its refusal to accept alternative documentation or evidence.  Under no circumstances should representations be made to the Service about itineraries or in-house assignments that cannot be specified or substantiated in some way.  Any unsubstantiated claim is proper cause for USCIS to request additional evidence, and may raise issues about credibility, particularly if the petitioner has any history of compliance problems.


In the absence of exhaustive efforts to document work to be done and outside assignments, USCIS may deny the case citing a BIA decisions for support, as follows.  The Matter of Treasure Craft decision has often been used, and misused, to deny cases where attorneys have provided substantive responses to Service Center RFEs but without providing the specific document demanded.  The USCIS General Counsel indicated it was close to issuing policy directives in a revised version of the Adjudicators Field Manual (AFM) that would address this problem concerning probative evidence.  The result, as we see in the attachment to the Neufeld memo, is some rhetorical nod to flexibility of common law standards, but a long shopping list of documents actually demanded.


 Frankly, if the record does not show that good-faith efforts were made to provide the mandatory documents specifies by the memo, or reasonable alternative and plausible explanation for inability or refusal to produce end-user contracts, the chances of approval or successful appeal are remote.


The burden is on the petitioner to provide convincing evidence that specialty employment is offered, particularly the initial assignment.  If that work is to be performed on an in-house project, that representation must be well-documented.



  1. 1.      Unreasonable Demands for Long-term Itinerary Distinguished From Requirement to Document Existence of Initial H-1 Caliber Position


It is simply unreasonable for USCIS to demand production and documentation to support a detailed itinerary for assignments to worksites that may or may not occur many months or years into the future.  However, this situation is different from a failure to establish that the petitioner has initial work for the beneficiary on the initial start date, and that work will be in a specialty occupation. 


 



  1. 2.      SAMPLE DENIAL BASED ON UNSUPPORTED ASSERTION OF "IN-HOUSE PROJECT  


 


However, this situation is different where the petitioner can establish that there is initial work for the beneficiary on the initial start date, and that work will be in a specialty occupation, but that the worker may later be assigned elsewhere.   It is unreasonable for USCIS to routinely demand privileged (and potentially compromising) materials from the petitioner's clients.   Petitioners should not provide itineraries any further into the future than is reasonable foreseeable, and this issue of unreasonable and discriminatory effect (along with improper procedure) should be the focus of appellate efforts, if USCIS does not make administrative measures to correct these problems.  The Neufeld memo indicates there will be no such accommodation, and that all petitions must account for a "complete itinerary" for the full period of stay requested.


 



  1. 3.      SAMPLE AAO DENIAL BASED ON POSSIBLE CHANGE IN FUTURE JOB ASSIGNMENTS


 


 


 


 


 


 


The above denial is based in an unreasonable demand for documentation that exceeds the regulatory standard for production of evidence.  Few petitioners who place employees at client sites can be expected to demonstrate by documentation the employment conditions for a period distant from the date of application.  This places petitioners with short-term contracts with third-party clients at a particular disadvantage, as it can be nearly impossible to provide contracts for work more than six-months after the date of initial application on April 1. 


 The regulations indeed state that the burden is on the applicant to establish eligibility for the benefit sought.  [8 CFR103.2(b)(1)][3]  However, the regulations do allow for alternative means - such as petitioner's affidavit along with evidence that the petitioner has the means to continue the offered employment without benching -- of showing that ongoing employment will be available after the completion of an initial contract.  The regulatory standard that controls documentary evidence that may normally be required of employers is stated at 8 CFR 214.2(h)(2)(I)(B):


(iv) General documentary requirements for H-1B classification in a specialty occupation. An H-1B petition involving a specialty occupation shall be accompanied by:



(A) Documentation, certifications, affidavits, declarations, degrees, diplomas, writings, reviews, or any other required evidence sufficient to establish that the beneficiary is qualified to perform services in a specialty occupation as described in paragraph (h)(4)(i) of this section and that the services the beneficiary is to perform are in a specialty

[ . . .]



(B) Copies of any written contracts between the petitioner and beneficiary, or a summary of the terms of the oral agreement under which the beneficiary will be employed, if there is no written contract.




Furthermore, in an outsourcing situation, there is a regulatory requirement for production of some sort of itinerary [8 CFR 214(h)(2)(i)(B)]:


Service or training in more than one location. A petition that requires services to be performed or training to be received in more than one location must include an itinerary with the dates and locations of the services or training and must be filed with USCIS as provided in the form instructions. The address that the petitioner specifies as its location on the Form I-129 shall be where the petitioner is located for purposes of this paragraph.  


If the petitioner can produce a statement of work specified a contract with the end-user that extends into the period after October 1, or specifically provided for extension, arguably that document in combination with other evidence submitted should satisfy the regulatory requirements and establish the existence of a specialty position at the client worksite.  Where there is no long-term statement of work, an attestation from the petitioner should ordinarily be adequate.


This is a different issue from a requirement in Neufeld, also imposed in these cases, that an employer in an outsourcing relationship provide a detailed itinerary listing specific locations and time frames for every assignment for the full duration of a three year period of validity, which is clearly an unreasonable demand by USCIS. 


Given the misstatement of the regulation at page 10 the memo, and the other misapplication of regulatory standards by USCICS, plaintiff would have a decent chance to prevail on this issue.


Additionally, when the petitioner does have a history of compliance issues, and this is raised on the record, USCIS applies a heightened level of scrutiny and evidence consistent with the "relevant, probative, and credible" standard.  Documents provided on the record in such case where the agency has an articulable reason to raise a "material doubt", therefore, should be of a sufficient quality and quantity to meet that heightened standard. 


When the USCIS raises credibility issues based on past compliance issues, that allegation may be overcome on appeal, only to see the AAO raise the issue of material sufficiency of evidence about the "H-1B caliber" of the position, and use that as the basis for denial.



  1. 4.      SAMPLE AAO DENIAL BASED UPON UNMET DEMAND FOR DOCUMENTATION TO ESTALISH H-1B CALIBER REQUIREMENT OF THE POSITION OFFERED:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



  1. 5.      Prima Facie Eligibility versus Clear and Convincing Evidence of Eligibility 


There was a second notable case handled by the Fragomen law firm in 2008.  That was the GST L-1B case decided by the AAO, which that law firm did not appeal to the federal courts, unlike the PERM audits suit that prevailed, forcing DOL to withdraw its decision.   The likely reason there was no litigation was because the GST case, which is discussed in detail in the L-1 section, below, hinged upon the question of what is a reasonable amount of professional preparation for "specialized knowledge" position.  That is the sort of specialized judgment that the courts are likely to defer to the expertise of the agency, unless the decision rendered can be shown to not be reasonably related to statute and regulation.  In this case, there are no recent regulations that can be referred to.  Also, the main legal support for the petitioner's argument to the AAO rested upon older policy statements by legacy INS, a position that was recently abandoned by USCIS.  That support based in the shifting sand of agency dicta likely would not be found adequate for a Court of Appeals to overturn USCIS on policy issues.


Here's a related sort of a case that might not be suitable for litigation:  if a particular employer cannot demonstrate that it has sufficient in-house work to occupy benched H-1B workers, and does not have a sufficient volume of ongoing contracts to show that it will in all likelihood have another project to assign the new beneficiary, that does not weigh favorably in convincing a federal judge that the AAO has abused its discretion in denying an H-1B case.   Again, this is the sort of subject matter where, even if in the past INS would have approved such a petition based upon guidance in past editions of the Adjudicator's Field Manual, it is properly within the discretion of the agency to determine for itself on a case-by-case basis where to draw the line regarding "H-1B caliber employment" in a more exacting manner, even if it disadvantages smaller, newer firms, provided that is not the purpose behind a change in policy and provided that the agency properly articulates its policies through published policy guidance.  If this is an option, such petitioners should enter into a strategic partnership with a larger firm, ideally one that operates in the same line of business with the company or in a closely-related specialized field, and one which has an established track record of success in petitioning and maintaining an H-1B workforce.


 



  1. 6.      Avoid Reliance on Older Agency Policy Memos in Litigation


 


Therefore, USCIS comes into any court case ahead on points - federal judges allow agencies flexibility in interpreting their own regulations -- DHS clearly has an advantage going into court, and a plaintiff must be able to articulate how a decision clearly breaches law or regulation, or that the agency has failed to follow APA guidelines, such as the "publish and comment" requirement, and why informal case-by-case rules-making ("de facto rules or binding norms")  is not appropriate because they result in decisions that are inconsistent with statute and regulation.  If it can be shown that the agency has been operating in an area that is reserved by shared statute with another agency (USDOL), then the court is less likely to defer to the agency.  


 USCIS deviation from past articulation of policy - e.g., memos from the Associate Commissioner -- if it does not clearly contradict law or published regulation, is inadequate support for litigation, unless the new interpretation is shown to contradict a long-established "definitive interpretation."   In recent years, in areas where it has wanted to maintain power to change standards quickly and without eliciting public attention, USCIS and the AAO have refused to publish regulations and precedent decisions.  That, in itself, may indeed be cause to pursue an APA action, if the agency fails to follow through on General Counsel Bacon's stated promise that the AAO will again begin issuing precedent decisions.  Now that potential litigators have seen the promised policy statement, and publications of precedent decisions have not been forthcoming, it might be time to commence major litigation; but, industry advocates should clearly indicate to the agency that they intend to pursue strong cases in the courts if reasonable grievances are not constructively addressed by administrative action.


 







[1]  No. 07-499, 555 U.S. ___ (Mar. 3, 2009).




[2]  For a more complete statement of appropriate evidentiary standards in adjudications of  nonimmigrant visa petitions, see, HQOPRD 70/2 Interoffice Memorandum To: Regional Directors Service ...,
From: William R.Yates, Associate Director, Operations. Date: February 16, 2005. Re: Requests for Evidence (RFE) and Notices of Intent to Deny, http:// www.uscis.gov/files/pressrelease/RFE021605.pdf


 




[3]  For a more complete statement of appropriate evidentiary standards in adjudications of  nonimmigrant visa petitions, see, HQOPRD 70/2 Interoffice Memorandum To: Regional Directors Service ...,
From: William R.Yates, Associate Director, Operations. Date: February 16, 2005. Re: Requests for Evidence (RFE) and Notices of Intent to Deny, http:// www.uscis.gov/files/pressrelease/RFE021605.pdf


 



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