Wednesday, April 14, 2010

The Facts of Life about Judicial Opinions -- Cyberworld

The Facts of Life about Judicial Opinions

On April 12, 2010, The United States Court of Appeals for the Third Circuit issued a decision in Cyberworld Enterprise Technologies, Inc. d/b/a Tekstrom, Inc. v. Napolitano, No. 09-2515, holding that an unambiguous statutory mandate that the U.S. Department of Labor (DOL) must bring a matter against an employer of H-1B nonimmigrants within thirty (30) days would not be recognized and applied, and that the DOL could bring its action eighteen (18) months after the statutorily mandated time had expired. The case was ably argued by a prominent immigration lawyer, Ronald Klasko, but sometimes having a good case and a good lawyer apparently isn’t enough to win the day.

The immigration case law is full of cases in which employers and aliens had their cases dismissed by courts for lack of jurisdiction as a result of missing a deadline by one day, or as a result of the rigid application some other bright line test. So, what gives? Is it a matter of whose ox is being gored? Whatever happened to “what’s good for the goose is good for the gander?”

Well, Virginia, it’s time to understand that “The Law” doesn’t work the same for everybody, at least not in the Third Circuit in deciding this case. The Cyberworld decision demonstrates what I call the “Facts of Life about Judicial Opinions.”

Forget what they taught us in Civics class, or even in law school, about the grand notion that “We are a Nation of Laws, Not of Men." For, as it turns out, Judges are mere mortals, men and women, and the power that they have is not always used in the pursuit of fairness or consistency.

Here are the Facts of Life: Whether a case is constitutional or statutory, emotional or bland, important or not, Judges do not strictly follow a single guiding light of reason, precedent, fairness or any other single overarching value. Judges, with varying degrees of integrity, impartiality and scholarship, simply decide how they want the case to come out. The Judges may decide the case to achieve an outcome for the particular litigants before the court, or they may care more about future cases of the same sort, and intend to set a precedent.

But, in the end, the Judges decide what they want to do and then craft an opinion which supports, or purports to support, the desired outcome. If the lawyers briefed the right issues, and did so competently, the Court's opinion can simply track the reasoning and language of the winning side, and do so with the authority of the court behind it and making it 'the law.'"

The day a lawyer loses his or her virginity is the day he or she comes to understand that, underneath the myths, and all the bluster about “activist judges,” “strict constructionists," and so forth, a judicial decision is nothing more than a legal brief , except that it has been signed by the Judges, and when it becomes final, it has the added power of enforcement, right or wrong, fair or not.

Monday, March 3, 2008

Obnoxious new TN "Guidance" from U.S. Department of State

U.S. Department of State Interpretation regarding “Scientific Technician/Technologist” under NAFTA

There has been a new development in the TN area which will not likely have any immediate negative impact on Canadians’ cases, but it is a significant development which may present a barrier to easy utilization of the TN “Scientific Technician/Technologist” category under NAFTA by Canadian nationals. It is likely to have a more acute and immediate effect in the cases of Mexican nationals

The U.S. Department of State (DOS) issued “Guidance” to Consulates on the “Scientific Technician/Technologist” under NAFTA; this is dated January 4, 2008 but released to the public on February 27, 2008.

As background, TN status under NAFTA has always been subject to some curious and rather imperious directives, usually agency declarations that the words do not mean what they say. This has been the case with other occupations on the TN schedule in the past.

The DOS’s January 4, 2008, e-mail reminder to Consular posts states,
“The technician who assists the engineer in the lab to design and develop a new technology may qualify as a scientific technician, but the mechanic who repairs and maintains that same technology after it’s built and used in everyday life, is not a scientific technician.”
To the contrary the NAFTA schedule which the U.S., Canada and Mexico negotiated and agreed upon provides,

“—Scientific Technician/Technologist 6 —Possession of (a) theoretical knowledge of any of the following disciplines: agricultural sciences, astronomy, biology, chemistry, engineering, forestry, geology, geophysics, meteorology, or physics; and (b) the ability to solve practical problems in any of those disciplines, or the ability to apply principles of any of those disciplines to basic or applied research.”

Note that that part (b) of the primary source uses “or,” not “and,” and thus the mechanical technician who has the ability to “solve practical problems” seems, to me, to qualify for TN in performing the repair and maintenance of technology after it has been “built and used in everyday life.”

However, in immigration practice, sometimes the rules are what the people in power say they are, and we must plan our efforts in light of them. A Consular Officer with “Guidance” in hand is not likely to be open to the obviously correct meaning of words “solve practical problems” in the actual NAFTA documents if the language of the “Guidance” clearly (and incorrectly, without legal basis and contrary to the primary source) directs that only designing and developing in a laboratory is permitted for a TN Scientific Technician.

For the moment, the more dramatic effect of this Guidance will occur with Mexican TNs who must apply for visas at the U.S. Consulates in Mexico. Canadians are visa-exempt, and the United States Citizenship and Immigration Services (USCIS) and United States Customs and Border Protection officers may or may not ever pick up this mis-Guidance and apply it to Canadian Scientific Technicians seeking initial TN entry or extensions of status.

Also, it seems to me that, in the some situations at least, we can craft our TN supporting statements to reflect the data and research aspects of the work that Canadian Scientific Technicians do, and explain without over-explaining that this work still qualifies, even within the more restrictive definition in this “Guidance.”

Please contact Mark G. Murov as desired to discuss this development and how it might affect ongoing or contemplated strategies for your company’s use of the TN category.

Wednesday, February 13, 2008

To H-1B or not to H-1B?

To H-1B or not to H-1B?

That is the applicant for Adjustment of Status’s question.

The question of whether an applicant for Adjustment of Status is “better off” keeping up his H-1B status for work authorization and using an H-1B visa “stamp” for reentry --- as opposed to using an Advance Parole (AP) travel document for international travel and reentry and his or her Employment Authorization Document (EAD) for employment, is complex to analyze and understand. Here are some basic considerations:

It is always better to have “double coverage” than to rely upon one or the other. It is more expensive to have double coverage.

USCIS has recently announced that it will deny applications for renewal EADs which are filed more than 120 days in advance of the current EAD expiration, BUT it is not uncommon for USCIS to fail to adjudicate the new EAD application within 120 days of filing, thus leaving a good faith applicant with a gap in employment authorization.

For changing employers after “job flexibility” benefits have vested (six months after filing Application for Adjustment of Status and also having an approved I-140 immigrant visa petition, and continuing to work for a U.S. employer in the “same or similar” occupation), having an Employment Authorization Document (EAD) and Advance Parole (AP) travel document makes it possible to change jobs in one day; no filings are necessary. The worker can work anywhere and can depart and reenter without any filing by the new employer and without having to visit a U.S. Consulate for a visa stamp to reenter.

It is time-consuming and can be burdensome to schedule a visit to the Consulate for visa stamping, and the duration of the stamp is limited by the duration of the underlying approved H-1B petition.

Reentering on AP almost always results in being put into “secondary inspection,” with long waits, rude treatment and a likelihood of missing a connecting flight.

After reentry on AP, a person must have an EAD to be employed; he or she will not be an H-1B as result of that entry, even if the employer’s petition is unexpired. Unauthorized employment in that situation is a statutory bar to the granting of the Application for Adjustment of Status, and the alien will then have to depart and reenter and re-file the Application for Adjustment of Status or process an immigrant visa at a U.S. Embassy abroad, and possibly have to become an H-1B again while waiting.

ICE (Immigration and Customs Enforcement Agency) takes the position that an Applicant for Adjustment of Status who last entered on AP is deportable, although it will use “discretion” as to whom this will be enforced. (It has detained and placed in removal proceedings some Muslim men who were Applicants for Adjustment of Status based on marriages to U.S. citizens; in order to avoid “profiling” it has announced that employment-based Applicants for Adjustment of Status who lack a valid, unexpired nonimmigrant status are subject to the same rule, although there have been no reports of this actually happening to employment-based Applicants for Adjustment of Status.)

If a pending I-485 and/or a concurrently filed I-140 is denied, an alien without underlying H-1B status is instantly out of status.

Taking all of the above into account, I generally advise my clients to have double coverage, to keep up a valid H-1B petition and visa stamp if at all possible, and to use the AP and/or EAD as an emergency backup instead of the primary vehicle for working and traveling.

If an applicant for Adjustment of Status finds it burdensome or expensive to keep up the H-1B petition and visa, he or she should be aware of the negative aspects of relying upon AP and EAD as sole vehicles.

Monday, August 27, 2007

The Anatomy of a Mirage, Part III: “The Autopsy”

The Anatomy of a Mirage, Part III: “The Autopsy”

By Mark G. Murov

So, what do we know about the July Visa Bulletins fiasco, now that the dust has finally settled? I’ll try to keep it simple, recapping the events without full background analysis.

First: in many recent years, USCIS has allowed immigrant visa “numbers” (slots) to “die on the vine” by failing to do its job of concluding enough employment-based green card Applications for Adjustment of Status (Forms I-485) during the current Fiscal Year. This failure has been a contributing factor in the creation of an ongoing backlog of applicants, prejudicing the legal rights of substantively qualified immigrants to timely obtain their LPR status.

Second: in May and June, 2007, the U.S. Department of State (DOS) followed its own historical procedures (and sound practices generally) by advancing the visa cutoff dates to reflect the under-consumption of Fiscal Year 2007 visa numbers by USCIS. There was nothing unprecedented or improper in this forward spike; it was a legitimate and admirable attempt to force USCIS to pick up the pace of its I-485 adjudications, so that numbers would not die on the vine again this year. The result was that the EB-1, EB-2 and EB-3 cutoff dates were scheduled to go “current” for July. We know what happened next: USCIS somehow claimed to have “approved” enough cases in a two-week period to use all the remaining Fiscal Year 2007 numbers, and so advised DOS.

Third: DOS next issued a “Revised” Visa Bulletin for July, 2007, showing that no visa numbers were available for any EB categories. USCIS was, for the moment, off the hook, and could then refuse to accept the massive number of filings which had already occurred or which would occur during July. The Revised Bulletin also would have earned the USCIS vast revenues due to the filing fee hike scheduled for July 30.

Fourth: Due to public outcry, threats of litigation and obvious questions about how USCIS could possibly have consumed all those numbers between June 14 and July 1 (including its admission that some numbers were requested on July 1 and July 2), the government announced a settlement on July 17 whereby DOS would issue a third visa Bulletin, and filers would have until August 17 to file based on the original July Visa Bulletin, and at the old filing fees.

Fifth (Cracking the Code, unequivocally): In mid-August, the September Visa Bulletin was released, showing fixed cutoff dates in some EB categories. How could all of the numbers have been consumed on July 2, followed in Mid-August by the establishment of cutoff dates rather than showing 100% “unavailable” designations for September? Obviously, the numbers were not consumed, or at least not properly and actually consumed, as opposed to having allegedly been “requested” by USCIS in late June and early July.

Accountability? We’ll see.

The workings of the preference system and the allocation of visa numbers can be complicated, sometimes inscrutable. But what happened in late June is not complicated; it is in fact quite transparent, and an embarrassment.

Who should be accountable for this fiasco? The worst I can say about the DOS is that it was too quick to accept the USCIS's assertion in releasing the Revised Bulletin on July 2. But who at USCIS engaged in misconduct? And what’s happening now? Is “oops, I guess we got caught” the last word on this event? Don’t the DHS and the Department of Justice have a duty to investigate? I, for one, would like to know if the persons who attempted this fraud are still in place and running the agency.

Monday, July 16, 2007

The Mirage - Part 2

This supplements and analyzes the recent entry, "The Anatomy of a Mirage"

Reliable sources now indicate that in the weeks following the mid-June announcement of the July visa availability, the USCIS requested tens of thousands of immigrant visa numbers. It is undisputed that requests for some of these numbers were made on July 1 and 2 (during the month of July), so that numbers could then be (ahem!) “unavailable” for the month of July, thus enabling the USCIS to refuse to accept new applications “during” July. (Don’t claim you can’t understand this.) Instead of an orderly use of the visa slots as dictated by the Immigration and Nationality Act, what we have witnessed is a chaotic misuse of the procedures, for the convenience of the USCIS and to the detriment of the companies and people USCIS calls its “customers.”

How does an agency become so arrogant as to believe that the law exists only for its own convenience? One theory would be that there is a Bush (Cheney) "administration culture," a darker version of "corporate" cultures in our law firms and at our clients' companies. It is not coincidental that this Visa Bulletin-Gate would occur for the only time in 30 years under an administration where the VP can cynically claim to be part of the legislative branch to dodge the legal requirements that apply to the executive. It is easy to image how this shell game was plotted by senior USCIS officials: "We can just request all the numbers, and then try to catch up by using them later. Who is going to stop us? This system is so complicated that only an EB-2 Computer Scientist from India can understand it, and no one will be able to explain how this move is illegal. Now we won’t have all that extra work next month.”

Welcome to America (sometime in the future).

Sunday, July 8, 2007

The Anatomy of a Mirage

By Mark G. Murov

On July 2, 2007, the U.S. Department of State (DOS) issued an unprecedented “Revised Visa Bulletin” which informed us that the United States Citizenship and Immigration Services (USCIS) had by some means consumed so many immigrant visa slots in the preceding two weeks that there were no slots left for the remainder of the 2007 Fiscal Year, and that there would be no more filings of Applications for Adjustment of Status (Form I-485) until October 1, 2007.

Here are the links to the original July Visa Bulletin, and the revised version

As previously explained in mid-June, the forward movement which created the “current” status for all employment-based immigrant visa categories for July was, in the first place, something of a “false positive.” The excessive demand for the limited number of slots was still there, and there were people in line for the final allocation of numbers. What was reported in mid-June was that the door would open for the month of July, and perhaps longer, and that a large number of persons could file and as a result become vested with the right to apply for and receive an Employment Authorization Documents (EAD) and Advance Parole (AP) travel documents, and to renew them as needed until the Lawful Permanent Residence (LPR or green card) is eventually granted. In addition, the opportunity to file the Application for Adjustment of Status by the principal alien would in due course create “portability” or the right to change jobs and retain his or her vested approvals (of the Application for Alien Labor Certification and immigrant visa petition).

The mechanics of the availability of these immigrant visa “numbers” (slots) are complex. However, what happened in the past two weeks is as follows: USCIS had not consumed as many slots (i.e., approved as many pending cases) as projected during the first three quarters of 2007 Fiscal Year. The DOS computer then directed the DOS to issue a report for July that slots were available to all who had reached the point of being able to file Applications for Adjustment of Status but for lack of a slot. The USCIS, realizing that it would be inundated with tens or hundreds of thousands of applications during the month of July, made an unprecedented push and approved a (reported) 60,000 pending applications in two weeks, thus consuming all of the remaining 2007 Fiscal Year slots for all categories, regardless of the “priority dates.”

Then, at USCIS’s request, the DOS issued a “Revised” Visa Bulletin (the only one I have seen in my 30 years in this field), thus enabling the USCIS to reject the Applications for Adjustment of Status which immigration lawyers had rushed to prepare and file.

Although everyone is annoyed and frustrated, this action by the agencies appears to be in keeping with the mechanics of the Immigration and Nationality Act, and in my view will not likely be overturned by a lawsuit. There are several aspects of these developments which are nonetheless very offensive:

First, the USCIS talks about “customer service” and we have never, ever, seen USCIS work so hard to approve cases to serve us as the customers. The push in this instance was self-serving, to avoid having more cases filed, and to delay filings until after the filing fees rise yet again on July 31 as scheduled. Additionally, without this push, those with reasonably good priority dates could have filed their Applications for Adjustment of Status during the 4th quarter months (July, August and September, 2007), and they will now have to wait until October. In addition, others whose cases are pending might have been actually approved during the 4th quarter and they will have to wait until at least October also.

Also annoying is the historical fact that one of the reasons for the existence of the huge backlog was that the agencies involved in these types of cases [the U.S. Department of Labor (DOL) and the USCIS] had not cared about backlogs or customer service in 2001 through 2005, and thus permitted immigrant visa slots to die on the vine in those years. If those slots had been utilized when available, none of this would have occurred.

So, intended or not, events have resulted in a mirage appearing on June 14 and then, confusingly, disappearing on July 2, 2007 to the disappointment of all concerned. The only slight benefit was to those whose pending I-485 cases were finally approved a bit earlier than otherwise, but they had Employment Authorization Document (EAD) and Advance Parole (AP) travel documents and an early approval to them was of much less value than the filing opportunity would have been for those whose hopes were raised and then found themselves holding an empty bag.

Sunday, January 21, 2007

Dealing with a USCIS Request for Evidence (RFE) - Part 1

Ideally, your case is strong on the merits and well presented, and filing it results in a quick Notice of Approval at the initial review by the USCIS. But all cases are not strong, and good immigration lawyers can and do file marginal or “dicey” petitions, often for good reasons (that is the subject of a future blog entry). Let’s jump past that discussion for now and consider the sometimes dreaded, never happy “RFE.”

Types of RFEs

There are at least 5 types of RFEs. Today’s blog entry will discuss one of them. (The 5 types are 1. The bogus RFE to interrupt a Premium Processing Service deadline; 2. The nuanced or totally inscrutable RFE: “Playing Parlor Games”; 3. The “killer” RFE: the translation is “your case will be denied no matter what you submit” and 4. the documentary RFE: you forgot (or USCIS overlooked) a document, and it can be readily submitted or resubmitted with comfort that the Notice of Approval will be forthcoming as soon as the officer sees it. 5. The benign RFE: You overlooked an element of the case the officer has made a perfectly reasonable request for a legitimate reason, and the exact description of what is needed is explicit and (thankfully!) your client has the proof readily available.)

The client has hundreds of employees, including scores of engineers. The H-1B petition is for a for a Transformer Design Engineer earning $69,000 per year. All of the documentation was submitted and well organized to establish every element of the case, including a detailed statement of the profesional nature of the duties of the position. The USCIS issues the following RFE:

“The evidence submitted fails to establish that the position offered meets the definition of a Specialty Occupation. Please submit proof that the position requires a Bachelor’s degree.”

"Really?" You say. In immigration practice at the USCIS Service Centers, yes, really.

The motivation for this mishugas is utterly transparent:, merely cutting and pasting some “boiler plate” text into an RFE, and creating a fax cover, can be accomplished in 45 seconds, and adjudicating the case to completion would take 45 minutes. Perhaps the USCIS officer’s daughter’s soccer game was starting in 30 minutes. Whatever the reason, your case is on hold until you respond. And it has to be the correct response.

An experienced immigration lawyer can address this RFE in a way which forces the USCIS to approve the petition, and counsel should not be worried about winning the case. But counsel must be careful: The response to the RFE is the one and only opportunity to create a record of fact and law. Obviously, the Officer is either untrained, lazy, or just hostile to the case for some unknown reason.

The only safe response will be a structured and referenced reply, overloaded with evidence and advocacy, and replete with citations to U.S. Government resources, university web sites and other independent statements of the obvious: that a Transformer Design Engineer position requires a person with a Bachelor's in Electrical Engineering, due to the nature of the duties. A "dumb" RFE is like a poisonous reptile, just a much as the RFE which obviously foreshadows an intent to issue a final denial.